As a retired immigration judge, I have watched with concern reports of the surge of unaccompanied immigrant children crossing the border into the United States. There are many reasons for concern—their housing, their health, their safety. To me, there is an additional, very real, and often overlooked question looming on the horizon: What will happen when these children, even toddlers and babies, appear alone in immigration court?
Yes, alone. While a person in immigration proceedings is entitled to be represented by a lawyer if they can afford it, there is no constitutional or even statutory right to appointed counsel in immigration proceedings. That means those who cannot afford a lawyer must appear in court alone, including children.
While I am pleased to see the Biden administration plans to provide government-funded legal representation for certain immigrant children in eight U.S. cities, this new initiative is still a far cry from the universal representation needed to support children in removal proceedings.
Imagine, if you can, a child — 2 years old, 10 years old or 17 years old — appearing before an immigration judge alone. How does a child, already intimidated and confused by the courtroom setting, understand the nature of the court proceedings and the charges against them? How can a child understand the complexities of immigration law, their burden of proof, and possible defenses against deportation? The short answer is they cannot.
And yet, day in and day out, immigration judges across the United States are charged by law with conducting hearings with unaccompanied and unrepresented children. Many of these judges do their best to humanize the proceedings and explain that the children have rights, but the judges are not advocates. They have no relationship with the children and often lack access to critical facts. There is simply no substitute for competent counsel standing next to these children in court. Even as unaccompanied children have continued to cross the border in recent months, we do not have a plan for giving them counsel, the critical safeguard they need.
It is imperative that we do. We need to build on the Biden administration’s Counsel for Children Initiative and create a nationwide program that provides government-appointed lawyers to represent any unaccompanied child in immigration proceedings. Our bedrock principles of due process and equal justice under the law demand no less, and commitments to these principles are precisely what separates this administration from the brutality and callousness of the prior administration. We cannot in good conscience allow any unaccompanied children to appear in immigration court alone.
There are also non-profit organizations that have stepped in to provide a template for hiring and training immigration attorneys skilled at representing minors. Founded by the late Judge Robert Katzmann, Immigrant Justice Corps has trained over 230 lawyers to provide counsel to over 80,000 immigrants and their families with a 93 percent success rate on completed cases. And the Immigrant Children Advocates Relief Effort (ICARE) collaborative funded by the New York City Council and the Robin Hood Foundation, has represented a majority of unaccompanied minors in New York City who cannot afford counsel.
While all these programs are laudable, nonprofits alone cannot solve the legal representation crisis. As of October 2020, over 92,000 unaccompanied children are awaiting immigration proceedings in the United States. The majority of them do not have counsel and are likely to be deported to countries where they face persecution. The federal government must work with these organizations to create a structured, sustainable system of government-funded attorneys across the United States to represent vulnerable children facing deportation. The stakes for all these children, for the credibility of our legal system and for our country, are too great to ignore.
Sarah Burr is former assistant chief immigration judge in charge of the New York City Immigration Courts and Board member of Immigrant Justice Corps.