Key Observations from Unaccompanied Children’s Immigration Hearings

Observers have witnessed immigration judges aggressively push forward the cases of unrepresented youth, jeopardizing these children’s due-process rights. Several judges held children to impossible standards, affording them less than a month to find attorneys—including during a period in which the government had terminated public funding for legal services—all while the children resided in ORR custody. One New York City immigration judge admonished a 12-year-old child, telling them to “work hard” to find a lawyer. At a later hearing, the same judge offered a child a list of pro bono attorneys but instructed him to present himself in-person at the courthouse to receive it. In some cases, judges have attempted to require unrepresented children to navigate crucial stages of their proceedings without an attorney. In one instance, a Philadelphia judge asked an unrepresented child to confirm information contained in a government-authored arrest report. Another judge, sitting in Elizabeth, New Jersey, has refused to allow the participation of child advocates, a procedure intended to ensure children’s best interests are respected.   

In other situations, like one observed in Philadelphia, judges permitted accompanying, non-attorney adults (e.g., case managers, clinicians, shelter staff, etc.) to coach children through their hearings, instructing them on how to respond to questions posed by judges. Crucially, unlike attorneys, case managers and other ORR personnel have no duty to advocate for children’s expressed interests. Asking childcare and social-work professionals to speak in court denies unaccompanied children the opportunity to ask questions and advocate for themselves, while limiting immigration judges’ ability to glean important information like a child’s primary language, mental state, and developmental stage. 

Authorities’ rush to reach decisions in children’s cases has resulted in observed instances of unlawful government conduct. In at least one case, the government forced children to appear before the immigration court in Santa Ana fewer than ten days after receiving the government-issued charging document, in violation of a statutory provision intended to protect noncitizens. In another instance, an immigration judge in Elizabeth proceeded through several unrepresented children’s hearings without providing them notice of their rights as the law requires. 

These unfair—and at times unlawful—practices unnecessarily accelerate court proceedings, inhibiting children’s ability to obtain legal counsel and, inevitably, result in worse outcomes for vulnerable immigrant children. 

Unaccompanied children, like all people facing removal, have constitutional and statutory rights to courtroom interpretation if English is not their primary language. In practice, however, access to interpretation is limited. While Spanish interpretation was generally available, observers noted instances in which children who spoke Arabic, French, Mandarin, Qʼeqchiʼ, and other languages received no relevant interpretation services in court.  

Not only are linguistically appropriate interpreters unevenly available, but some immigration judges engage in practices that undermine language access. For instance, Acacia observed immigration judges assume, without confirming, that a child’s primary language was Spanish; conduct group hearings for linguistically diverse children; and provide only Spanish interpretation for groups that included children who spoke neither English nor Spanish. Observers noted two instances, at courts in Buffalo and Philadelphia, in which court-contracted interpreters provided unclear, inaccurate, incomplete, or otherwise substandard interpretations of in-court statements.  

When interpretation services are not consistently available and judges otherwise undermine language access, children in removal proceedings cannot fully understand their rights and responsibilities nor meaningfully participate in the proceedings. 

While some judges engage with children in a child-centered and developmentally appropriate manner, the immigration courts inconsistently employ child-friendly practices. In one example, a judge in New York City became frustrated with a tender-age child with intellectual disabilities appearing via WebEx. When the immigration judge perceived the child to be distracted, she insisted—against a clinician’s recommendation—that shelter staff take away the child’s electronic tablet. When that step failed to improve the situation, the judge ordered the child to appear for the next hearing in person “to help him focus.”  

Observers noted other instances in which judges addressed children harshly or even in an intimidating manner. In the same New York City courtroom months later, hearings proceeded at a rapid pace. At one point, when background noise was audible on WebEx from a child’s line, the judge grew irritated. “Who’s making all of those noises?, ” she asked, demanding that the child mute themselves. The judge’s curt response reflects a deficit in child sensitivity, a particular concern in a setting where children may need additional support to participate effectively.   

In another such interaction in a courtroom in Dallas, an immigration judge gruffly admonished a child in the gallery for receiving a phone call from his attorney. After the child’s cell phone rang, the judge abruptly stopped the hearing and loudly reprimanded everyone in the courtroom to keep their phones off. She required the boy to come forward, confiscated his phone, and directed him to sit off to the side. She returned the child’s phone only once his case was called, warning that he would be in “a lot of trouble” if he again took a call in court. Such an intimidating judicial presence can discourage children from speaking openly, limiting their ability to participate confidently in their own proceedings.  

 These trends disempower children and deny them full participation in the legal proceedings that will determine their futures. 

Legal representatives sometimes appear in a “Friend of Court” capacity to assist the judge, protect children’s rights, and enhance courtroom efficiency. Specifically, Friend of Court advocates facilitate communication between the court and a child litigant by ensuring the child understands the judge’s questions and by helping the child express their intentions. 

 Despite the valuable role Friend of Court services can play in supporting unaccompanied children and facilitating court proceedings, observations revealed variance among immigration courts, and even individual judges, regarding the permissibility of this service. In at least one instance, a judge sitting in Elizabeth refused to allow an attorney to appear as Friend of Court for a child in long-term foster care, citing Department of Justice policy though agency policy does not, in fact, prohibit Friend of Court appearances.¹ Restricting access to legal advocacy, particularly at this time of unprecedented attacks on immigrants, will only bring harm to the children forced to appear alone before a judge. 

Since Acacia began court observations in April, immigration courts have increasingly imposed barriers to public access, reflecting a broader trend of decreased transparency in immigration adjudications.² In several instances, immigration judges told Acacia observers that they needed permission from EOIR’s Communications and Legislative Affairs Division to witness the proceedings. Separately, an immigration prosecutor in Santa Ana requested—and the immigration judge granted—a closed hearing after realizing that a journalist was present in court. In other instances, judges have refused, without  explanation, to admit observers to Webex hearings. 

 While there are valid and proper reasons for an immigration judge to close a courtroom to protect the safety or privacy of a child litigant, limiting public scrutiny and deflecting accountability are not among them. Considering the acute vulnerability of unaccompanied children and recent disruptions to funding for legal services to protect them, it is critical that courts remain accessible to the public. The government must permit non-participant observers to witness removal proceedings, track court practices, and document due-process violations and other infringements on the rights and well-being of unaccompanied children. 

Observations conducted over the last five months confirm high levels of variability in children’s removal proceedings, including inconsistencies in access to interpretation and Friend of Court services; judges’ engagement with, and accommodation of, child litigants; and courts’ and judges’ approaches toward non-participant observers. As such, children’s access to legal representation, a fair adjudication, and ultimately a just outcome depends crucially on where, and by whom, their cases are heard.