Get Minors Out of Immigration Court

By Andrew R. Arthur on December 28, 2017

On December 20, 2017, the Executive Office for Immigration Review (EOIR), the Department of Justice (DOJ) entity with jurisdiction over the immigration courts, issued a new Operating Policies and Procedures Memorandum (OPPM), 17-03, captioned "Guidelines for Immigration Court Cases Involving Juveniles, Including Unaccompanied Alien Children". That OPPM, which rescinds one issued in 2007, "provides guidance for adjudicating cases involving any unmarried individual under the age of 18, including as both respondents and third-party witnesses."

Of note, it goes into great detail to differentiate alien "children" from "juveniles" from "minors":

Immigration law utilizes multiple terms in different legal contexts to refer to unmarried individuals who have not attained a certain age. The Immigration and Nationality Act (INA or Act) defines a "child" as an unmarried person under 21 years of age. INA §§ 101(b)(1) and (c)(1). The regulations define a ''juvenile" as an alien under the age of 18, 8 C.F.R. § 1236.3, and refer to a "minor" when describing aliens under 14 years of age. 8 C.F.R. §§ 103.8(c)(2)(ii); 1236.2. The Homeland Security Act of 2002 introduced the concept of an "unaccompanied alien child (UAC)," which it defined as a child who has no lawful immigration status in the United States, has not attained 18 years of age, and who has no parent or legal guardian in the United States, or no parent or legal guardian in the United States available to provide care and physical custody. 6 U.S.C. § 279(g)(2); 8 U .S.C. § 1232(g).

A comparison of the two documents completed by Reuters demonstrates that the superseding OPPM clarifies that, although the capacities of children who appear in immigration court should be taken into consideration by the judge hearing a case involving an alien child, the immigration judge must still act as a neutral arbiter. The superseding OPPM also reminds immigration judges to be cognizant of the possibility of fraud in cases involving purported "children". As it states:

Moreover, because a UAC generally receives more favorable treatment under the law than other categories of illegal aliens, there is an incentive to misrepresent accompaniment status or age in order to attempt to qualify for the benefits associated with UAC status.

Having heard a number of cases involving alien children, I believe that the balance reflected in the superseding OPPM is necessary for two reasons: First, it is essential that any judge be neutral with respect to the parties in any proceeding, as the superseding OPPM makes clear with respect to alien children. The 2007 OPPM, on the other hand, could reasonably be read to balance the proceedings in favor of the alien child, a fact that diminished its effectiveness.

Second, the 2007 OPPM was written in arguably patronizing terms, to a degree that its rewriting was appropriate. In much the same way that a lawyer takes a client as he or she walks in the door, an immigration judge understands that each respondent who appears in court is going to be different in intelligence and temperament from every other. I have heard cases involving individuals who lived almost all of their lives in extremely rural areas and who received little, if any, education. On the flip side, I've heard cases involving PhDs and MDs. Needless to say, this is not a "one-size-fits-all process", and to suggest that immigration judges need to be reminded of that fact is insulting.

Interestingly, Reuters quotes a sitting immigration judge and spokeswoman for the National Association of Immigration Judges (NAIJ), the union that represents immigration judges, who was critical of the superseding OPPM. Specifically, she asserted that "the 'overall tone' of the memo 'is very distressing and concerning to immigration judges.'" In particular, that judge contends:

There is a feeling that the immigration courts are just being demoted into immigration enforcement offices, rather than neutral arbiters. ... There has been a relentless beating of the drum toward enforcement rather than due process.

With due respect to the judge in question, before whom I appeared on hundreds of occasions and for whom I have the highest respect, her statements are somewhat confusing. In fact, the superseding OPPM specifically states: "Immigration Judges must remain neutral and impartial when adjudicating juvenile cases and shall not display any appearance of impropriety when presiding over such cases," language that was omitted from the 2007 version.

Frankly, the 2007 OPPM seemed to be more slanted in favor of the alien child than helpful to an immigration judge hearing a case involving that child. It should not be surprising that such cases generally involve both public interest and strong feelings from the advocates for the children involved. The possibility of an immigration judge hearing such a case being unfairly portrayed in a poor light in the press in such cases was, honestly, high (especially because EOIR does not generally comment on pending cases), and the tone of the 2007 OPPM, subjectively, suggested that an adverse finding with respect to an alien child might not be supported by either DOJ or the administration. Strong guidance with clear procedures for dealing with alien children in immigration court, which the superseding OPPM provides, was 10 years overdue.

That document raises the question, however, of why exactly unaccompanied alien children (UACs) — that is aliens under the age of 14 who arrive in the United States without parents or guardians — are in immigration court to begin with.

While removal proceedings under section 240 of the INA are not the only cases that immigration judges adjudicate, the vast number of cases before the immigration courts are, in fact, removal proceedings. If a UAC is encountered at a port of entry without proper documents or after having entered the United States illegally, the UAC will generally be placed into 240 removal proceedings, although the UAC may also apply for asylum with the asylum office simultaneously.

Usually, an attorney will come forward to represent the UAC. This leaves, however, the unique situation in which a UAC might not be represented. While every alien has the "privilege of being represented" in removal proceedings, section 292 of the INA makes clear that the alien does not have the right to a lawyer paid for by the government.

The prospect of an extremely young alien appearing pro se in immigration court is absurd, burdens court dockets, and has led to allegations of due process violations. Last year, for example, EOIR came in for ridicule when one of its assistant chief immigration judges claimed in a deposition that he had "trained 3-year-olds and 4-year-olds in immigration law. You can do a fair hearing."

Removal proceedings are, by and large, "adversarial", that is, the government attorney "is seeking to remove a person from the United States, while the alien is seeking to remain." Needless to say, a proceeding in which one of the parties is a trained, experienced lawyer and the other is a three-year-old minor raises questions of "due process".

The most common response to this situation is to demand that paid counsel be provided to all "children" in removal proceedings. One example is the "Fair Day in Court for Kids Act of 2016", S. 2540 (2016).

That bill would have directed the attorney general to appoint counsel at government expense (if necessary) to not only unaccompanied alien children, but also to persons with disabilities, "victim[s] of abuse, torture, or violence", and "an individual whose circumstances are such that the appointment of counsel is necessary to help ensure fair resolution and efficient adjudication of the proceedings." It would also have given the attorney general the authority to appoint counsel "in any proceeding conducted under section 235, 236, 238, 240, or 241 or any other section of" the INA.

As that bill demonstrates, proponents of such proposals generally use the inability of minors to represent themselves in immigration court as a gateway to propose giving all aliens the right to paid counsel in removal proceedings.

Congress should consider amending the INA to create a non-adversarial proceeding for unaccompanied alien children. U.S. Citizenship and Immigration Services (USCIS) already conducts non-adversarial credible fear proceedings under 8 C.F.R. § 208.30(d), as well as non-adversarial affirmative asylum interviews under 8 C.F.R. § 208.9(b). The agency could specially train adjudicators to determine whether UACs are removable, and whether they are eligible for any relief from removal.

This would likely be a simpler process than it sounds. Once it is established that of individual is an "alien", the only issues are whether the alien is admissible to the United States, and if not, whether the alien is eligible for any form of relief. USCIS adjudicators would need to be trained in the grounds of inadmissibility, however; in the case of a UAC, the sole issue (as a practical matter) would be whether the alien had a visa or other document that allowed him or her to be admitted to the United States.

With respect to relief, there are, generally, only three avenues to immigration benefits: through a familial or employment relationship, or through humanitarian relief. Most USCIS adjudicators are at least as skilled in making a determination of whether a UAC would be eligible for one of these forms of relief as an immigration judge.

The non-adversarial nature of this proceeding would also give the USCIS adjudicator more leeway in adducing information from the UAC than even an immigration judge would have. In addition, such a proceeding could still allow for the UAC to be represented by counsel, facilitating the process even more.

Some criticisms of such a proposal can be anticipated. First, under American law, there is generally some sort of review available from any administrative decision. Congress could address this issue by providing a procedure for review in a statute establishing non-adversarial UAC proceedings, either within USCIS, or to the Board of Immigration Appeals in EOIR.

Second, there is an apprehension in certain quarters that USCIS adjudicators are too lenient in credible fear proceedings, and similar arguments would likely be raised as a reason not to allow USCIS adjudicators to hear non-adversarial UAC cases. There is some validity to these concerns. In FY 2017, asylum officers issued decisions in 68,811 credible fear cases, and found that fear was established in 60,566 of them (while an additional 10,899 were closed), a grant rate of 88 percent. These statistics could raise a legitimate issue that if asylum officers were given jurisdiction over non-adversarial UAC proceedings, the vast majority of decisions would be in favor of the UAC. Congress could, however, alleviate any such issues by directing USCIS to establish a corps of specially designated UAC adjudicators, and USCIS, through careful oversight, could ensure the fairness of the proceedings.

The appearance of UACs in immigration court removal proceedings slows the adjudication of cases (increasing the immigration court backlog) and can, in certain instances, raise due process concerns. Congress has the ability to draft legislation to create a non-adversarial removal proceeding that would apply only to UACs. As it moves into the second session of the 115th Congress, it should at least consider doing so.