Think Immigration: Children Should Not Face Immigration Court Alone
Unlike defendants in criminal court, immigrants facing removal or deportation proceedings are not appointed an attorney to represent them. Many people are surprised to hear that this even includes unaccompanied children who do not speak English. As of September 2024, over 830,000 of the more than 950,000 children between the ages of 0 to 17 who are in immigration court are Spanish speakers, according to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. Kids In Need of Defense (KIND) President Wendy Young noted that immigration courts are “designed for adults and do not recognize the unique vulnerability of unaccompanied children.”
Well, what’s a good solution for that? On November 1, 2023, a bipartisan group of congressional members introduced the “Immigration Court Efficiency and Children’s Court Act of 2023 ” to establish a children’s court within the Executive Office for Immigration Review. This new court would ensure unaccompanied children have fair access to protections and obtain legal representation in an exclusive environment designed to safely handle minors.
The best interests of these unaccompanied children would be determined by a child advocate or other entity or professional equipped to make such determinations. These advocates would need to take into account the safety and wellbeing of the child; the expressed interests of the child, taking their age and stage of development into account; the child’s physical and mental health; the child’s right to family integrity, liberty, and development; and the child’s identity, including their religious, ethnic, linguistic, gender, sexual orientation, and cultural identity.
The Children’s Immigration Court would be for those who were younger than 18 years old on the date their immigration court case was initiated, were determined by the U.S. Department of Homeland Security to be unaccompanied children and are the principal person in their case (unless they request to remain on the court’s general docket). Most importantly, the Children’s Immigration Court would include judges and attorneys specially trained and experienced in working with children. Trainings would include topics such as child-sensitive questioning techniques, developmental- and trauma-informed practice, methods for explaining the purpose and goals of the proceeding to children, the concept of best interests of the child, human trafficking of children, children’s claims for immigration relief, and docket management tools that facilitate children.
These especially vulnerable unaccompanied children would be provided appropriate accommodations, including breaks during their oral testimony and language screening protocols to ensure they receive interpretation in their preferred language. This is crucial because many children recently arriving from Central and South America are from a variety of Indigenous groups and do not speak Spanish as their primary language or at all. Unaccompanied children would also have the opportunity to have virtual hearings only at the request of the child or their legal representative or if the Immigration Judge on the case determines that virtual hearings would be in the child’s best legal interests.
The bill includes various procedural protections for unaccompanied children. Children would be given enough time between hearings to find an attorney, allowing their attorney and the government attorney to narrow the legal issues in their cases before their final hearing. Additionally, unless argued by the government otherwise, the Court would grant a child’s request to dismiss or administratively close their case when the child has a pending or approved application with USCIS. This is vital because it would allow a child to obtain immigration relief affirmatively rather than defensively. The Court would be required to explain to children, in a way they can understand, court proceedings and advise them regarding their legal rights and responsibilities.
Immigration court is a stressful experience. Without question, a child is different than an adult and requires a system with their wellbeing in mind. A children’s immigration court would protect unaccompanied children and their rights. Creation of a children’s court would also streamline proceedings and make the court more efficient by having a separate process for youth much like many other court systems. Immigration reform is a must, and this bill would be a welcome first step to protect a vulnerable population caught in a system not designed for youth.
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