U.S. immigration courts are moving toward more child-appropriate procedures, but funding could determine whether those procedures will effectively protect minors in immigration proceedings.
A group of 18 senators, led by Sens. Michael Bennet (D-Colo.) and Catherine Cortez Masto (D-Nev.) are calling on the upper chamber’s appropriators to dive into the weeds on Executive Office for Immigration Review (EOIR) procedures as they craft the fiscal 2025 budget.
In a letter to Sens. Patty Murray (D-Wash), Susan Collins (R-Maine), Jeanne Shaheen (D-N.H.) and Jerry Moran (R-Kan.), the 18 senators highlighted a December memorandum issued by EOIR Director David Neal with guidelines on treatment of cases involving minors.
“Properly implemented, the Director’s Memorandum could help children understand and participate in their court proceedings by creating accommodations that complement a child’s developmental level,” they wrote.
“It could also relieve strain on the immigration courts by aggregating these similar cases and streamlining the handling of pending cases of children who have claims awaiting adjudication by U.S. Citizenship and Immigration Services (USCIS), thereby avoiding duplication of efforts by multiple government agencies.”
The EOIR, the immigration court system, is part of the Department of Justice, an administrative court rather than part of the judiciary.
Its funding is under the jurisdiction of the Commerce, Judiciary and Science (CJS) Appropriations Subcommittee, led by Shaheen and Moran. Murray and Collins lead the Senate Appropriations Committee.
In their letter, the senators led by Bennet and Cortez Masto ask the appropriators to include specific language in the fiscal 2025 Committee report, commending the EOIR for Neal’s memorandum, and directing the Department of Justice to submit a report detailing its implementation.
“This report shall address at a minimum: the name and number of immigration courts implementing juvenile dockets; training that has been provided to juvenile docket judges; protocols for assessing individual court compliance with the memorandum as well as corrective actions taken in the event of noncompliance; methods that courts are using to facilitate legal representation for children; and any immigration court resources conserved by utilization of juvenile dockets,” reads the proposed language.
Because the EOIR is not part of the judiciary, standard constitutional protections afforded to criminal defendants are not mandatory in immigration cases.
That means, for instance, that people in immigration proceedings don’t have the right to an attorney, even if they are unable to understand the allegations against them, or the consequences of their actions in court.
Neal’s memo directs immigration judges to take certain measures to protect children in proceedings, including elemental issues like understanding an oath and sworn testimony.
“The immigration judge should take care to explain the oath to the child at a level appropriate to the age of the child. For example, a child may be told they should promise to ‘tell the truth’ or to ‘tell what really happened.’ A child should also be reassured that they may say ‘I don’t know’ if they are unsure how to answer a question and that they may request a question be asked a different way if they do not understand it. A child should be told they should not feel at fault if an attorney raises an objection to a question,” reads part of Neal’s memo.
Yet even with those administrative safeguards, the EOIR faces challenges in providing safe and fair environments for children who are essentially under trial.
According to the Transactional Records Access Clearinghouse, a government data tracker housed at Syracuse University, 31 percent of all foreign nationals issued a notice to appear in 2022 were 17 or younger, and 16 percent were 18 to 24 years old.
Neal’s memorandum says immigration courts should have a separate docket for respondents younger than 21.
“The Memorandum also outlines certain procedures and practices that immigration judges should follow in order to create an environment where children can better comprehend and participate in their proceedings and where judges can better administer justice. Ideally, the immigration courts will seek to engage legal service organizations that represent unaccompanied children in the juvenile dockets with the goal of maximizing legal representation,” reads the letter led by Bennet and Cortez Masto.
In November, Bennet introduced a bipartisan bill that would establish a separate children’s court within the EOIR, with judges and court officials specialized in processing children.