NIJC and its network of 1,500 pro bono attorneys provide legal counsel and representation to nearly 10,000 immigrants each year, including thousands of unaccompanied children detained in the Chicago area. Children seek refuge in the United States for many reasons: to escape war, gangs, or violence; to flee abuse; or to reunite with family. Others enter involuntarily as labor or sex trafficking victims. In recent years the number of unaccompanied immigrant children migrating to the United States has nearly tripled.
NIJC’s Immigrant Children’s Protection Project provides legal services to unaccompanied children held in Chicago-area shelters. The Children’s Protection Project visits all of these facilities on a weekly basis to interview the children, conduct legal assessments, and deliver “Know Your Rights” presentations that provide an overview of the immigration court process. This on-the-ground experience provides NIJC a unique in-depth perspective on the realities children face when they enter the U.S. alone, and on the need for systemic reforms to ensure children's human and due process rights in the complex immigration legal system.
Navigating the Immigration System
Unaccompanied immigrant children face many challenges navigating the immigration system alone, including:
No right to court-appointed counsel. Unless they can afford attorneys or secure pro bono counsel, they appear in court without legal representation.
- A confusing and complex court system. Deportation proceedings against children often begin in the jurisdiction where the child is placed in the custody of the Department of Health and Human Services (HHS) Office of Refugee Resettlement (ORR). Once a child is released from an ORR shelter to a sponsor or to foster care, it is the child’s responsibility – regardless of age or legal representation – to submit paperwork to inform the court that he or she has moved and to file a formal motion to change venue if the new address is under the jurisdiction of a different court. If a child does not properly update his or her address, he or she could be ordered deported in absentia for failing to appear in court.
- Lack of clear guidelines to grant relief. DHS has yet to provide clear guidelines on the exercise of prosecutorial discretion (PD) as it applies to UICs. Expanded exercise of PD would help provide relief for many UICs with strong ties to the United States who are not a priority for deportation.
- Absence of legally binding regulations to protect children in DHS custody. Upon apprehension, UICs are held in DHS custody. Although there are standards to guide the treatment of UICs, DHS lacks appropriate legally binding regulations to protect children in their custody. Currently, little oversight exists to ensure that UICs are treated humanely and cared for according to child-appropriate protocols while in DHS custody.
Regardless of their immigration status, unaccompanied immigrant children should be treated as children first. Children should not be expected to navigate a complex immigration system alone. Congress and the Obama Administration must take steps to provide critical safeguards to unaccompanied children, including:
- Providing counsel to unaccompanied children. Children face insurmountable challenges and experience a denial of due process when navigating the U.S. immigration system without attorneys. Access to legal representation is critical for children to be able to understand the legal protection and immigration benefits that may be available.
- Increasing funding for legal orientation programs (LOPs) at ORR shelters and legal orientation programs for custodians (LOPCs) when children are released. As unaccompanied children move more rapidly through the ORR system, the government must ensure that children receive basic information about their rights and responsibilities, and individualized legal assessments to understand whether they might be eligible for immigration relief. Once they are released, their family or sponsors must also have access to information about the immigration system so they can properly assist the children during the immigration process.
- Enact protocols to end abusive treatment at the border. NIJC’s survey and mass complaint on behalf of 116 unaccompanied children abused in CBP custody demonstrate that unaccompanied children often are held in extreme temperatures, prevented from sleeping, provided with little food and placed in shackles by DHS officers at the border. DHS must develop legally binding regulations and oversight mechanisms, in collaboration with nongovernmental organizations who serve this population, to ensure officers treat children humanely.
- Passing comprehensive immigration reform legislation so families can legally and safely reunify. Undocumented family members in the United States need a mechanism to safely and legally reunite with their children. Immigration reform must include provisions that allow parents to obtain lawful immigration status and petition for their children and other family members.