Bipartisan legislation seeks to create children’s immigration court

A bipartisan, bicameral group of legislators introduced a bill Wednesday that would add protections for minors to immigration courts, which currently have no distinct protocols to process children.

The legislation, introduced by Sens. Michael Bennet (D-Colo.) and Lisa Murkowski (R-Alaska) and Reps. Dan Goldman (D-N.Y.), Maria Elvira Salazar (R-Fla.), Hillary Scholten (D-Mich.), and Lori Chavez-DeRemer (R-Ore.), would establish a dedicated children’s court within the Executive Office for Immigration Review (EOIR), the Department of Justice agency that serves as immigration court.

“Our bill establishes a new children’s court to ensure that unaccompanied children are treated fairly and understand their court proceedings, reducing the immigration court backlog and speeding up processing time for both children and adults,” Bennet told reporters on a Wednesday call.

EOIR proceedings are unlike criminal proceedings in several ways, including that foreign nationals in immigration proceedings are not legally entitled to representation.

Because of that, they are often forced to represent themselves against government lawyers in complex legal matters where the burden of proof is often on the immigrant.

That’s led to cases like a 2018 proceeding where a Honduran 5-year-old signed a document waiving her right to a bond hearing.

According to the Transactional Records Access Clearinghouse, a government data tracker housed at Syracuse University, 81,080 minors were called to appear in immigration court in fiscal 2022.

Of those minors, 32,691 were 4 years old or younger, 28,443 were between the ages of 5 and 11, and 19,946 were between 12 and 18 at the time the Department of Homeland Security (DHS) issued them a notice to appear.

“You could imagine unaccompanied children coming to a different country, not speaking the language — scared — and that we somehow expect them to figure out what is going on in the immigration system. It’s impossible,” Goldman said.

“And we also all know from our various backgrounds how important it is to recognize children’s individual and particular needs,” he added. “They are different. The trauma is different. The social welfare issues that children face are very different than what adults face.”

Under the bill, some immigration courts would specialize in processing children to better address their welfare needs.

The EOIR judges in those specialized courts would receive training in working with children, as would the DHS lawyers representing the government in those cases.

According to the bill’s proponents, establishing the children’s court would not require more spending, and it would help reduce the backlog across EOIR by more efficiently processing children.

“The brilliant idea behind this … is to particularize a segment of the immigration court just to focus on children,” Goldman said.

“It will not allow any more or less people into the country. The law will still be the same,” he added. “It just provides proper due process and justice that we stand for so much.”

Yet the bill faces long odds, touching on a deeply divisive issue in a deeply divided Congress.

Although Bennet and Goldman praised Republicans Murkowski, Salazar and Chavez-DeRemer, they expressed doubt that GOP leadership in the House would give the bill airtime.

“There is room for bipartisanship, but the Democrats have zero control over what gets to the floor, so hopefully this will be added into some legislation that can be passed,” Goldman said.

Bennet, who as part of the 2013 Gang of Eight helped craft the last major immigration proposal to pass the Senate, said the framework of that bill still represents the best shot at broader immigration reform, but targeted measures like the children’s court are more realistic.

“Addressing the massive issues that we have in agriculture and in business, as well as creating a border that’s not chaotic and where the American people can be persuaded that we have a commitment to border security, those were the elements of the bill in 2013,” Bennet said. “Those would be the elements of political settlement today. Unfortunately, we can’t get there at the moment.

“This is a small and discrete part of our immigration system, but maybe this effort will inspire others to roll up our sleeves and address this issue in a way that will … be consistent with our commitment to rule of law in the American people’s view.”