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.