No Child Should Appear in Immigration Court Alone

Erica Bryant Associate Director of Writing // Alyssa Snider Former Research Associate, Unaccompanied Children Program // Becca DiBennardo Senior Research Associate
Jan 28, 2022

While the U.S. government may provide pillows and booster seats for children who are too small for the chairs in immigration court, it doesn’t have to give them an attorney to protect their rights. As a result, far too many children face deportation proceedings alone. They shouldn’t have to.

Why aren’t children who are facing deportation entitled to an attorney?

The Sixth Amendment guarantees lawyers for the accused in all criminal prosecutions, but those protections do not apply to people facing deportation, which is considered a civil proceeding. Although immigrant children facing deportation have the right to hire an attorney, they are not provided with one if they or their families can’t afford to hire one. As a result, children can end up in complex, adversarial legal proceedings with no one to protect their rights.

Why is it critical for children facing deportation to have an attorney?

Without an attorney, children in deportation proceedings might not know their rights or the legal pathways for them to remain in the country. And the United States offers a number of legal protections for children who may face dangers to their life, liberty, and well-being in their home countries. Special Immigrant Juvenile Status (SIJS), for example, is a legal protection for children who have been abused, abandoned, or neglected. The U.S. government can also grant asylum to those fleeing persecution in their home countries. There are also specific protections for survivors of crime or human trafficking. Accessing these protections is not easy. A person must determine which legal options they can pursue, recognizing that eligibility changes over time and varies by jurisdiction and age. They must adhere to strict filing rules, interact with multiple government agencies, and present evidence and legal arguments against trained government lawyers in an adversarial setting. This is extremely difficult for adults, especially those who may have trauma histories or are unfamiliar with the English language, and all but impossible for children.

What happens when children face immigration proceedings without an attorney?

It is so difficult to prove an immigration case without a lawyer that, regardless of the strength of their immigration claims, from 2005 to 2017, 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. For many children, deportation means returning to very unsafe conditions.

How many children face deportation proceedings without the protection of an attorney?

According to Executive Office of Immigration Review (EOIR) data from 2005 to 2017, nearly one-third of unaccompanied children did not have an attorney to help them during their proceedings. It is difficult to provide more recent information about the numbers of children in immigration court because the United States provides such poor data on child immigration cases. The Transactional Records Access Clearinghouse (TRAC), an independent organization that uses the Freedom of Information Act (FOIA) to collect and publicize government data, recently determined that post-2017 data from the Executive Office of Immigration Review is inconsistent, unreliable, and too faulty to be trusted when it comes to child immigration cases.

What is the solution to this problem?

Given the high stakes and complexity of immigration proceedings, children, like all immigrants facing deportation, need a public defender system that ensures that no one appears in immigration court alone. Children who can’t find or afford an immigration attorney should be provided a court-appointed attorney, similar to public defenders who assist people who cannot afford legal defense in criminal courts. In addition to understanding the nuances of immigration law, those attorneys should have a trauma-informed practice and access to integrated social services. Such a system would truly protect the rights of children who are facing the complexity of the immigration system and the prospect of deportation.