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New Report Details Due Process Failures for Kids in Immigration Court

New Immigration Court Observation Project Releases New Issue Brief

By Michele Garnett McKenzie
October 4, 2023

Despite thousands of children appearing in immigration courts each year, immigration law and immigration courts treat children like adults. Like adults, children in removal proceedings have the right to legal representation at no expense to the government. If a child cannot find an attorney, they must navigate a complex, adversarial process on their own. The law and the courts provide no safeguards to ensure children's rights are protected. "This is outrageous," says Robin Phillips, executive director of The Advocates for Human Rights. "No child can be expected to get to court on their own, let alone navigate the immigration legal system."

Despite thousands of children appearing in immigration courts each year, immigration law and immigration courts treat children like adults.

A new issue brief from The Advocates for Human Rights' Immigration Court Observation Project details some of the systemic problems witnessed during the first year of resumed deportation hearings for unaccompanied children. Observers noted systemic failures, including an underfunded immigration court with little time or legal authority to make accommodations needed for children appearing in court. With no guaranteed right to an attorney, many children struggle to understand what is happening and what is expected of them. (If you're struggling to understand just what happens to children in immigration court, take a look at the 2018 video Unaccompanied: Alone in America, which recreates real cases by reading the hearing transcripts.)  

Concern with due process violations for unaccompanied children in immigration court is not new. A 2022 report by the Vera Institute of Justice found that "more than 90 percent of unrepresented unaccompanied children were issued an order of removal or voluntary departure. Unaccompanied children who had the benefit of legal representation at some point during their cases were more than seven times more likely to receive an outcome that allowed them to remain in the United States than those who did not have attorneys."

With no guaranteed right to an attorney, many children struggle to understand what is happening and what is expected of them.

The report notes that immigration judges presiding over unaccompanied child cases face an unenviable task. Courts face long and growing backlogs, with grossly insufficient funding. Court rules permit judges to make some accommodations when children appear in court, but they have no authority to consider the best interest of the child when determining whether a child should be deported or to appoint guardians or counsel to children appearing in their courtrooms. "The U.S. fails to meet basic international standards when it comes to kids in immigration court, and that leaves immigration judges to adjudicate these cases with their hands tied behind their backs," says Michele Garnett McKenzie, deputy director of The Advocates for Human Rights.

Key Findings:

  • Due process requires age-appropriate, trauma-informed hearings.
  • Crowded dockets undermine due process.
  • Lack of access to legal counsel undermines due process.
  • Child respondents do not understand why they are in court, what they judge is asking, or what the consequences will be.

"Reform is desperately needed, but absent that reform, every effort must be made to improve justice for children in our immigration courts," says Amy Lange, Immigration Court Observation Project Coordinator. The current system fails to ensure due process for unaccompanied children in removal proceedings. It leaves judges to adjudicate high-stakes cases, replete with trauma, for children who cannot be held legally responsible for their actions in any other setting. Tragically, it results in harm to the thousands of unaccompanied children who have turned to the United States for safety. 

Recommendations include:

  • The Department of Homeland Security, when prosecuting children for removal, must ensure children have access to protections provided under law.
  • The Office of Refugee Resettlement, when releasing children to sponsors, must ensure children and their sponsors know what they need to do to, including when and where to appear in court and how to find competent legal counsel.  
  • The Executive Office for Immigration Review must ensure it has an adequate budget to provide full and fair hearings for children. This means ensuring enough court staff to provide courtroom orientations and identify language and other child-appropriate accommodations. It means ensuring enough immigration judges so that docket sizes are reasonable and judges and other court personnel have time to receive the specialized training required to adjudicate these cases.  
  • Immigration judges can maximize children's ability to understand what is happening in court by using clear language and checking for children's understanding of explanations and expectations.