Washington, DC—Ahead of today’s House Judiciary Subcommittee on Immigration and Citizenship hearing, “The U.S. Immigration System: The Need for Bold Reforms,” Kids in Need of Defense (KIND) urges Congress and the Biden Administration to prioritize two key reforms the group says are fundamental to helping unaccompanied children overcome daunting obstacles to pursuing potentially life-saving humanitarian relief.
“The United States must mandate attorneys for all unaccompanied children and enact systemic changes to ensure the fair adjudication of children’s cases within the immigration courts,” said KIND President Wendy Young. “The safety, well-being, and in too many cases, lives of unaccompanied children hang in the balance of these reforms.”
In a statement that will be submitted for the record at today’s hearing (KIND Statement for the Record: House Judiciary Subcommittee Hearing), KIND is encouraged by a report regarding the introduction of the U.S. Citizenship Act of 2021, which the White House has said would ensure legal counsel for unaccompanied children and other vulnerable individuals. The organization notes that the majority of unaccompanied children face immigration court alone, standing before a judge without an attorney or understanding of the process. Attorneys are essential to upholding children’s legal rights in those hearings, assessing their eligibility for humanitarian relief, and guiding case preparation. The difference a lawyer makes is clear: the most recently available data from the Executive Office for Immigration Review (EOIR), covering the period of FY 2018 and the first half of FY 2019, reveals that immigration judges were 70 times less likely to grant relief to unaccompanied children without counsel than their represented counterparts.
Legal representation of unaccompanied children also increases government efficiency. As EOIR’s backlog nears 1.3 million cases, measures that protect due process while at the same time strengthening immigration court efficiency and conserving resources are more important than ever. Counsel for unaccompanied children serves all these ends. Expanding the federal government’s use of pro bono private sector attorneys for children’s cases helps leverage modest resources to reach significant numbers of children.
Even when represented by legal counsel, unaccompanied children face unique obstacles to navigating the U.S. immigration system. Only by adjudicating their cases in a way that ensures heightened procedural protections like those mandated under the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) can the government achieve due process and fundamental fairness for this vulnerable population.
Unfortunately, structural defects in the immigration court system frustrate due process and judicial independence for unaccompanied children. EOIR and the immigration courts operate within the executive branch, leaving them subject to the political interference of the administration in power. The Trump Administration aggressively exploited these openings by driving new policies and rulings that advanced its anti-immigrant agenda while weakening due process for unaccompanied children and limiting the ability of judges to reach fair and impartial decisions in these children’s cases.
KIND notes that Congress should address such systemic due process barriers and foster independence and impartiality by passing authorizing legislation creating an independent immigration court system under Article I of the Constitution—a system free from the political interference of any administration. Congress should also engage in continuing oversight, and use appropriations channels, as needed, to ensure that EOIR adopts all necessary measures to fairly adjudicate children’s cases. Among other actions, EOIR, together with the Department of Homeland Security, must ensure that the legal safeguards guaranteed such children under the TVPRA and other laws attach for the full duration of their cases.
“While KIND is encouraged by the promises and progress made by the 116th Congress and the Biden Administration to address unaccompanied children’s unique vulnerabilities, much work remains to bring about essential reforms that would not only safeguard due process for unaccompanied children, but in many cases save their lives,” Young added.
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