Kids Forced to Represent Themselves: The New Face of Immigration Law

May 17, 2020

Guest blogger: Gaganpreet Kaur, law student, University of San Francisco:

Countless hours of preparation in law school, hundreds of hours of case research, 10 sessions of practicing my case in the mirror and I was still terrified I’m giving a moot court oral argument. Even a non-graded practical assignment and I was still nervous to stand in front of three lawyers to present my argument. But I wasn’t fighting for my life, I wasn’t fighting to stay in a country that I considered home. I held a bachelor’s degree, I wasn’t between the ages of 2 and 6 standing in a courtroom not being able to comprehend a language that wasn’t my own.

Point is, young kids are presenting themselves in court to vouch for their right to stay in the country. They are expected to make their case and present it in a real court that will result in consequences, it’s not a practice drill, or for the experience, it’s their fight to stay in the United States. Little children are being faced with the US legal system and forced to act as adults. Not only is the immigration system showcasing its problems, but it is failing the children.

The United States government allows children who have been brought into this country by their parents, separated from their parents, or crossed alone to present their “case” at an immigration hearing. These kids are so young, and faced with repercussions that are beyond their understanding. They have to ask a judge to relocate them with their parents, or tell the judge they want to stay in America. They are too young to comprehend the enormity of the matter. Deportation. Removal. Voluntary departure. Immigration lawyers will carefully ponder which decision to make with their client. Say those terms to a four year old and ask them to choose.

Immigration hearings are considered “civil” courts and a party is not guaranteed a lawyer if they cannot find or afford one. Anyone that is competent can testify on their own behalf, meaning a child must be “competent” to testify. This means that the child must understand the difference between the truth and a lie, and must promise to tell the truth in court. Seems simple enough. But is a child equipped to stand and explain to the judge they want to stay in the place they consider home? Is the child in the right state of mind rather than be terrified or even know the repercussions that could be had—even a law student gets anxiety standing in front of a fake practice trial?

Kids in Need of Defense (KIND), an organization that helps immigrant children find attorneys is one of the many trying desperately to give the kids a fair and adequate hearing. As of 2014, more than 80 percent of children who showed up to court unrepresented were deported, whereas children who appeared in court with legal representation, only 12 percent were deported.¹ There is a stark difference between having representation and not having someone to fight a case who knows the legal terms or the courts process. For the kids immigrating, English is not their first language and some are so small that they are unaware of what an interpreter is explaining either.

These young kids are not competent enough to understand the difficult words and legal terms. A lot of them are unable to understand and communicate efficiently in English. The kids are brought into court in a single file line, and expected to present themselves in front of a judge.

The Executive Office of Immigration Review (EOIR) recently issued guidance that instructed immigration judges to hear and complete unaccompanied children’s cases within 60 days. This is far more burdensome because many children will be unable to obtain counsel or even file applications for relief in this unreasonably tight timeframe. More and more unrepresented minors will be forced to face a judge without the proper resources and guidance, further hurting children in the process.

The normal stress of a lawyer in front of a judge is nothing compared to what unrepresented children in deportation hearings must be going through. The longer they have to go through with this, the more the system is failing them.

Egkolfopoulou, Misyrlena. August 21 2018. https://www.theatlantic.com/politics/archive/2018/08/children-immigration-court/567490/