Around the country, people are heeding the advice to stay home and protect themselves and others from the harm of COVID-19. Sports events have been canceled. National conferences have been postponed indefinitely. Schools are closed and children are doing schoolwork around kitchen tables. Despite the economic costs, businesses have either decreased hours or closed down to protect public health.
But in many immigration courts, it is business as usual for detained children. For more than a week, lawyers, immigration advocates, and children’s rights organizations have called for a halt to all non-emergency court hearings.
But there’s been no change. In fact, on Tuesday, March 24th, the Executive Office for Immigration Review issued new guidance proclaiming that in Harlingen, Baltimore, San Antonio, and Chicago detained children must attend immigration court in person. This decision endangers the health of the children required to be in court, as well as the judges, attorneys, child advocates, court personnel, and others who come in contact with them. It endangers us all.
Appearing in immigration court, an adversarial setting where children stand before an immigration judge and face a government attorney who argues against them has always confused and scared children.
But right now, when our nation’s leading scientists are imploring people to stay home and avoid even small gatherings, children are rightfully terrified of going to immigration court. There, they know they will come into contact with judges, attorneys, child advocates, court personnel, and other children — without knowing whether any of those people are contagious with COVID-19.
Many children in immigration custody are escaping violence and persecution and have experienced unthinkable atrocities and trauma. When they arrive at our border to seek protection, they are apprehended by Customs and Border Protection and eventually transferred to the custody of the U.S. Department of Health and Human Services through its Office of Refugee Resettlement (ORR). The children remain in ORR custody while they await release to family members in the United States.
There is no pressing need for children in ORR custody to be in immigration court hearings right now. To win the right to remain in the United States, the children will have to submit applications for asylum or for other forms of protection. This means that while they are in government custody, their hearings should be limited in focus. Judges generally inquire about the child’s intentions, whether they have a lawyer or need time to find a lawyer and their prospect for release from custody.
The Department of Justice, which runs the county’s immigration courts, has stubbornly refused to postpone hearings for immigrants — including children — who are in government custody. As recently as last week in cities including Houston, Texas, Arlington, Virginia, and New York City, children were being transported to crowded immigration courts.
If we have learned anything over the past few weeks, it’s that COVID-19 can be transmitted by anyone — adults and children. While the federal government is advising people not to gather in groups larger than ten, children are going to court, sitting on crowded benches, shoulder to shoulder, waiting for their cases to be called. The courtrooms are filled. Beyond the immigration judge, there are attorneys, Child Advocates, and court personnel.
One by one, the children and all of these other adults go through the metal detectors. The children file into the public seating area and wait for their case to be called. In Houston, our staff watched children wait for their hearings in crowded hallways for up to seven hours. After sitting and standing close to people, children then return to shelters and risk exposing other children and their caretakers.
In other parts of the country, the courts are requiring children to appear by video or telephone. While video hearings reduce children’s risk of exposure to the COVID-19 virus, they simply do not work for children.
Just one week ago the Young Center accompanied a very young child with a developmental delay who appeared before an immigration judge on a television screen. She waited three hours and was instructed several times to sit down and be serious by facility staff observing the proceeding. When it was finally her turn, she was so nervous and restless that she answered “no” when the judge asked for her name.
Other immigration courts are continuing with children’s hearings, telling children that they don’t have to appear for their hearings at all — in person or by video. That alternative might work as a temporary measure for children who have lawyers and Child Advocates.
But most immigrant children in custody don’t have a lawyer or child advocate at this early stage. This means that in many cases, a judge and a government attorney are getting on the phone to talk about a child’s case without the child or anyone representing them on the phone. How does that give a child a fair opportunity to be heard? How is that due process? Our answer: it’s not.
There is only one way to make sure that unaccompanied children are healthy and have a fair chance in immigration court: Close the courts and postpone their hearings. Unless there is a true emergency, there is no reason why children’s immigration cases cannot be delayed until it is safe for them to again be in court and have their voices heard. During a global pandemic, adults should do everything to keep children safe and protected. All children.
Maria Woltjen is a human rights advocate and the founder and executive director of the Young Center for Immigrant Children's Rights, which fights for the best interests, safety, and well-being of unaccompanied and separated immigrant children.