Immigration Article of the Day: Accommodating Childhood in Immigration Removal Proceedings by Nikole Miller

America’s adversarial immigration court system adultifies children. Approximately one million children in immigration court must navigate notoriously complex proceedings while being held to virtually the same standards and procedures as adults. Children—even infants—are expected to respond to the charges against them, present and rebut evidence, make legal arguments, and pursue their claims for legal relief, all without appointed counsel. As a result, most are unrepresented and predictably unsuccessful in their fight against deportation. The challenges these children face are compounded by issues of race, ethnicity, class, language, trauma, dependency on adults, and other factors that limit the children’s resources and increase their vulnerabilities. Despite this, lawmakers and courts so far have been unwilling to extend special protections to children in immigration court.

But children are not simply miniature adults. Recent advances in our understanding of child development and brain science reveal that children are different from adults in ways highly relevant to legal proceedings. Our immigration court system must change to reflect these new insights.

This Article is the first to marshal current scientific findings regarding the cognitive, developmental, emotional, and social immaturity of children to argue children are developmentally incompetent to represent themselves in immigration court. This Article establishes that it is unfair to nominally provide children with the same rights and responsibilities as adults without considering their ability to meaningfully effectuate them. Brain and behavioral science can and should be used in the immigration context, much like their present use in the juvenile delinquency and juvenile sentencing context, to compel appointed counsel and other accommodations like child advocates and specialized juvenile dockets. Applying a developmental lens to the treatment of children in removal proceedings exposes how structural inequities baked into the immigration court system uniquely harm children, thereby unlocking new insights and strategies for advocates and policy makers to create a fairer immigration court system for children. 

KJ