The U.S. immigration system is currently in disarray, especially with regard to unaccompanied migrant children. The current administration has rolled back many policies that directly protected children and has instituted others that make it harder for this vulnerable group to navigate the immigration system. These policies often deprive migrant children of their due process rights in many ways: by wrongfully sending them back across the border, keeping them from testifying at their own trials, or overlooking the responsibility to teach them about their rights (Lee). Additionally, these children are often sent to immigration court to face immigration judges and ICE prosecutors alone, without even speaking English. Kids in Need of Defense (KIND) is a non-profit organization that provides pro bono legal services to unaccompanied migrant children. KIND employs thousands of volunteer attorneys to defend these children and guide them through the ever-changing U.S. immigration system. The key findings from this study include:

• Training attorneys on how to work with traumatized children is important, but it is also crucial that children feel safe and understood at home and know the risks of missing trial dates so they do not run away and receive removal orders due to missed hearings.
• Utilizing pre-existing partnerships with the government can help programs like KIND ensure that children are receiving due process rights in the shelters they are held in.
• Concentrating on in-house attorneys that can take dozens of cases each allows non-profits like KIND to maximize the amount of children they are able to help.
• Partnering legal advocacy with policy advocacy can help mutually reinforce their shared cause by establishing a connection of experience with persuasive solutions.

Background

Since 2014, the number of unaccompanied children arriving at the United States-Mexico border has risen steadily. This year alone, U.S. Customs and Border Protection (CBP) estimates that over 100,000 unaccompanied children will be apprehended at the border, the majority of whom will be between 12 and 17 years of age and from Guatemala, El Salvador, and Honduras. These children are often fleeing from drug- and gang-related violence, sexual and gender based violence, and human trafficking. Their parents are either separated from them at the border or send them alone because they have a better chance at survival than if they stay in these dangerous areas. One mother whose 11-year-old son was threatened with death if he didn’t join the gang MS-13 said,  “I couldn’t stay in Honduras waiting for something to happen to my son.” 

The current administration has made dozens of policy changes regarding the immigration and asylum-seeking process since the start of 2017, when the administration issued Executive Order 13767, “Border Security and Immigration Enforcement Improvements.” This executive order put forth the model that the administration would continue to advocate for throughout the presidential term, including border wall construction, prolonged jailing of asylum seekers, and use of expedited deportation policies. In March of 2018, Attorney General Sessions overturned a decision known as the Board of Immigration Appeals, which effectively destroyed asylum seekers’ due process rights in immigration court by forbidding them from testifying on their own behalf. The only option to challenge this comes with legal representation, which many asylum seekers do not have access to. Later that year, the Department of Homeland Security (DHS) proposed a rule that would basically terminate the Flores settlement, a court settlement that limits the time and conditions under which children can be detained. The proposed change sought to terminate such provisions that protect migrant children. These changes would directly interfere with the children’s right to asylum and therefore directly interfere with due process. 

The government deprives these children of their due process rights in other ways, too. Their increased detainment times give children far less access to attorneys, which means they have a much lower chance of receiving relief. In addition, many children are not receiving their “know your rights” screenings in the detainment centers. Teresa Lee, an attorney from KIND, says, “The idea that children have due process is a farce; they don’t have access to it even though they have a right to it” (Lee).

All of these policies illustrate the challenge facing migrant children today. They often come to the United States with no family, language skills, money, or legal aid, and are put up against the U.S. immigration system. Consideration for the fact that they are children is diminishing. Most of all, due process is being stripped from them, and oftentimes they face a judge and a prosecutor advocating for their deportation completely alone. Children are five times more likely to gain U.S. protection if they have an attorney, while children without an attorney have a 10 percent chance of winning their cases. Since over half of these migrant children do not have representation, the odds are not in their favor. 

Stakeholders

1. President Trump and his voters: 

One of Trump’s selling points on the election stump was that he would handle the border crisis. His most vocal contingent of voters is made up of populists who have relied on his promise and continue to look toward its fulfillment. Many populists see migrants as different and dangerous, as both criminals and job stealers who will change the values of the United States. This is a big issue for the upcoming presidential election. 

1. U.S. Department of Homeland Security (DHS)

DHS is a cabinet department of the U.S. government whose mission is to protect the nation from threats. Within DHS is the United States Customs Border Protection (CBP), one of the largest enforcement agencies in the U.S. government whose job is to enforce immigration policy. Many of the policies the administration has passed have come from the DHS in an effort to discourage migrants and asylum seekers from making the journey to the U.S. 

1. U.S. Immigration and Customs Enforcement (ICE)

ICE is an enforcement agency under DHS. ICE patrols the U.S. border and apprehends migrants crossing the border. ICE also employs attorneys who serve as prosecutors against migrant adults and children in their immigration court hearings (Lee). 

1. U.S. Citizen and Immigration Services (USCIS)

USCIS is another agency under DHS which administers the naturalization and immigration process for immigrants. USCIS has a program that many unaccompanied children are often eligible for called Special Immigrant Juvenile Status (SIJS) which, if granted, qualifies the individual for permanent residency.

1. State Courts

Sometimes, immigration trial procedures for unaccompanied children start at the state court because the child is eligible for SIJS.

1. U.S. Department of Justice (DOJ) and immigration judges

DOJ is the executive office for immigration review and runs immigration court in the U.S. The agency appoints all immigration judges, who are in charge of choosing relief or deportation for migrants. These immigration judges work under the direction of the U.S. attorney general, who is currently William Barr. Judges are used as law enforcement tools and their work is incredibly important. However, the DOJ has installed quotas and deadlines on how many cases immigration judges must meet, or else they could lose their appointments. This period, the quotas are as high as 700 cases per year with less than 15% overturned on appeal, which is about 3 to 4 cases per day. This burns out judges quickly, and doesn’t allow for the time it takes to have a thorough trial. Experts warn that these quotas undermine due process rights for immigrants. 

1. U.S. Department of Health and Human Services (HHS)

HHS provides care and shelter to unaccompanied children while they are in custody. HHS operates the Office of Refugee Resettlement (ORR), which places unaccompanied migrant children in shelters across the United States to more quickly pass them to guardians or other adults in the country who are willing to care for the children. 

1. Unaccompanied Migrant Children:

Thousands of migrant children are currently stuck in the U.S. immigration system and are facing family separation, squalid living conditions, and possible deportation back to the communities from which they fled. Their futures are completely dependent on U.S. immigration policy.

KIND Program Implementation

Kids in Need of Defense (KIND) is a non-profit organization that provides pro bono legal services to unaccompanied migrant children facing the U.S. immigration system in the hopes of ensuring all migrant children have due process rights. While KIND has 10 branches throughout the United States, this case study will focus on the Washington, D.C./Northern Virginia branch, which currently has about 640 open immigration cases (Lee). 

KIND has a contract with ORR stipulating that children who will soon be released from the shelters to guardians will be referred to KIND if there is a branch nearby (Lee). KIND’s legal services are made possible by the thousands of attorneys working pro bono for these unaccompanied children. These attorneys are trained through their firms and through webinar sessions on everything they need to know about working with migrant children experiencing trauma, different forms of legal relief for unaccompanied minors, and many other topics that become prevalent depending on government policy changes (Lee). Each attorney is also given a KIND mentor who can provide answers about the children’s specific needs. KIND generally places clients with attorneys on a first-in, first-out basis to decrease the amount of time children are left without representation, but also takes into account that many children have suffered sexual and gender-based violence and need a lawyer of a certain gender. KIND also has a group of in-house attorneys, but since 2017 the government has stopped funding their work in direct legal aid (Lee).

About 95% of the children the D.C. office serves are from El Salvador, Guatemala, and Honduras (Lee). KIND attorneys are generally seeking to provide their clients with a form of relief which will culminate in the child having permanent residence, and therefore most often try to obtain asylum or SIJS for their clients. The trial period can last a very long time, with asylum taking a minimum of four to five years and SIJS taking at least seven years (Lee). The child is in removal proceedings for the entirety of this time.

KIND Special Tactics Implementation

Between 2017 and 2019, many executive orders and other department policies have changed the way the immigration process works. Since KIND is subject to the whim of the administration and the agencies, KIND leaders must find creative ways to push back against these policies outside of policy advocacy.

Family separation has always been around, but it became more of a practice under the zero tolerance policy passed in May 2018. At that point, KIND formed a team of attorneys and support staff to focus on representation of children separated from their families. These attorneys also work with parents to help them reunite with their children once they get out of detention.

Another policy that KIND has been working to counteract is the Migrant Protection Protocols (MPP), enacted at the end of 2018. The MPP send migrants back to Mexico while they await U.S. immigration trial, and are supposed to exempt unaccompanied children. However, many children are mistakenly marked as “accompanied” and are sent to Mexico by ICE agents. KIND has worked to send attorneys and support staff to the Mexico border to physically walk the children across and affirm that they are unaccompanied (Lee).

Results

KIND’s work has been extremely successful in the last three years. While the exact numbers of children granted relief each year were not disclosable, the rates of success are impressive. In 2016, KIND had a 90 percent rate of clients receiving legal relief when the client stayed with KIND throughout his or her proceedings. Within a year, that jumped up to 98 percent. In 2018 it dropped a bit, but was still 96 percent for completed cases. In addition, 10, 700 attorneys, paralegals, and law students were trained in 2018, and 2175 cases were opened. These results have concrete effects for the children coming out of these trials. It means they are able to settle down in a place where they have a future and invest their time, energy, and emotions into a community. For many, it means permanent safety from the threats that would have harmed or killed them back in their home countries.

Lessons Learned

The tactics KIND uses to restore due process have worked well, and several lessons can be learned from studying KIND’s work. For example, ICE officials are able to make the “mistake” of marking unaccompanied children as accompanied and sending them back across the border because the migrant children would never understand the illegality of it. However, an adult, especially an attorney who knows the law, can escort the child back across and ensures that the official checks the right box. This action has drastically altered the futures of hundreds of children. Furthermore, it worked because it successfully compelled government officials to follow their own rules and made sure they could not take advantage of minors. This is a very successful tactic for KIND, and it should see wider use in other fields that deal with vulnerable and uninformed populations facing injustice.

Another challenge KIND has found a way to counter is when government agencies incorrectly deny special status application of unaccompanied children, which can result in immediate removal orders. In these cases, KIND’s tactic is to repeatedly and consistently appeal the applications until the agency corrects the decision. This is a crucial resource provided for these children because the bureaucracy is so confusing that it is almost impossible for those inexperienced with the processes to get the resources they need (Lee). KIND’s continued persistence in this field might not seem like anything new, but it teaches another way in which organizations like KIND can force their governments to abide by their own laws. This practice should be continued and resources should be allocated to these types of problems in other fields to assure that the government corrects its own mistakes. These two examples show that even when an organization is at the complete whim of the government for how policy must be enforced, it can still mitigate difficulties by forcing the government to act on its own rules.

But it is important to remember those children who do not fall into the 90, 98, or 96 percent of KIND’s success stories. Teresa mentioned that many of the children not included in KIND’s successes have received removal orders because they have missed mandatory immigration court hearings (Lee). She said this was often due to the children running away from home, and consequently breaking contact with their lawyers who inform them of the details for their hearings. It is important to note why these children run away in the first place. First, many young children often do not realize the consequences of missing a court date. They might run away and see no negative consequences. KIND should work to make sure the importance of attendance at trial communicated to the children as often as possible and from as many sources as possible. Children do not always feel comfortable talking to attorneys the same way they do when talking to guardians, teachers, or friends, so it is crucial that all of the figures in these children’s lives are repeating this important information.  

Additionally, migrant children often run away because they face extreme mental and physical trauma when coming to the United States, and that trauma can manifest in anxiety, depression, and other psychological and emotional issues. While KIND does train its attorneys in responding to trauma, it is unlikely that many households or shelters that take migrant children in have this training. Since these households share a lot more time with the children than attorneys do, it is even more important that they understand how to support the children in this way. A possible area that KIND could branch out into in the future is providing workshops for families or relatives that are taking in migrant children to make it more likely that the children feel safe at home. This would hopefully decrease the children’s rates of running away and increase their rates of staying in touch with their attorneys and attending all court hearings.

It is also important to consider why the U.S. immigration system has a policy stating that a child who misses even one court date over a period of five to 10 years is eligible for immediate removal. This is such a vulnerable group that one would think consideration would be given. While this is not something KIND can change right now, they can continue to help educate the public and other policy advocacy groups about the injustice of this practice.

Another area in which the lack of due process has not yet been mitigated is in the detention centers that the migrant children are taken to. While these shelters have legal aid available and are supposed to present a “know your rights” screening to the children, the legal aid offered is often sparse at best and the screenings often do not take place. Teresa said, “The lack of a presence [of legal aid] at the shelters makes due process look like a joke” (Lee). However, these shelters are run by ORR, the same program that currently has a contract to refer children to KIND when they are released from the shelters. If KIND already has a strong relationship with ORR, in the future it should not be difficult for KIND to arrange “know your rights” screenings in the shelters conducted by KIND officers. KIND could further take advantage of this relationship by requesting to add to the legal team present at the shelters to answer questions and help the children figure out the immigration process. Since KIND is a non-profit organization and is partially funded by the government already, this should not require outside financial aid. The government should be able to pay for this through their preexisting program and simply reallocate the funds to KIND that they were spending on other legal aid groups that were not performing. 

A third and obvious way KIND can further promote due process is by expanding its number of attorneys and the number of cases each attorney can take. However, the government has made this difficult to do. While KIND has always received aid from the government for the work it does, in 2017 the government announced that KIND could no longer use public funds to directly support legal services in immigration court cases (Lee). That means the KIND can only continue the most important aspect of the work it does — defending kids in immigration court — thanks to the generosity of many attorneys, paralegals, and law students. However, many of these volunteers can only take one or two cases each, as they also have full time jobs. Before 2017, KIND had a host of in-house attorneys who focused solely on KIND efforts and were paid through these government grants (Lee). Since each of those attorneys had around 65 cases at a time, KIND was able to reach and help many more migrant children. Though KIND is currently doing the best it can to allocate funds, train pro bono attorneys and open more field offices, it just cannot have the kind of reach it used to have without the employment of those in-house attorneys. In the future, KIND should apply for a grant that would fund that team of in-house attorneys until a new administration reinstates KIND’s ability to use government funds for direct representation. That could exponentially increase the number of migrant children KIND is able to defend, and consequently protect due process on a grander scale. 

Within the confines of this restrictive environment in which KIND operates, a limited approach of mitigating issues by finding ways to control the situation makes sense. But to cause widespread societal change, policies must shift. Policy advocates can help make this change, but they will need to partner with legal advocates like those at KIND to fully understand the ins and outs of why the current process does not work and how it can be fixed. If there is a chance that a new president will come into power next year, it is imperative that policy advocates and legal advocates work together to have plans laid out for how to persuade this new administration of needed changes to administrative policy.

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