U.S. immigration courts are moving toward more child-friendly procedures, but funding may determine whether these procedures 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 asking Upper House appropriators to delve into the weeds of Executive Office for Immigration Review (EOIR) procedures. how they craft the fiscal 2025 budget.
In a letter to Senators Patty Murray (D-Wash.), Susan Collins (R-Maine), Jeanne Shaheen (D.N.H.) and Jerry Moran (R-Kan.), the 18 senators highlighted a December memo issued by EOIR Director David Neal with guidance on handling cases involving minors.
“If properly implemented, the Director’s Memorandum could help children understand and participate in their legal processes by creating accommodations that complement the child’s developmental level,” they wrote.
“It could also alleviate pressure on immigration courts by aggregating these similar cases and simplifying 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 from multiple government agencies.”
EOIR, the immigration court system, is part of the Department of Justice, an administrative court rather than 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, senators led by Bennet and Cortez Masto ask appropriators to include specific language in the Fiscal 2025 Committee report, commending EOIR for Neal’s memo and directing the Department of Justice to submit a report detailing its implementation.
“This report will address, at a minimum: the name and number of immigration courts implementing juvenile proceedings; training that was provided to juvenile judges; protocols for assessing individual court compliance with the memorandum, as well as corrective actions taken in the event of non-compliance; methods that courts are using to facilitate legal representation for children; and any immigration court resources retained through the use of juvenile proceedings,” the proposed language says.
Because EOIR is not part of the judicial branch, the standard constitutional protections afforded to criminal defendants are not mandatory in immigration cases.
This means, for example, that people involved in immigration proceedings do not have the right to a lawyer, even if they cannot understand the charges against them or the consequences of their actions in court.
Neal’s memo directs immigration judges to take certain steps to protect children in proceedings, including such elementary issues as understanding an oath and sworn testimony.
“The immigration judge must take care to explain the oath to the child at a level appropriate to the child’s age. For example, a child may be told to promise to “tell the truth” or “tell what really happened.” A child should also be reassured that they can say “I don’t know” if they are not sure how to answer a question and that they can ask for a question to be asked in a different way if they do not understand it. A child should be told that he or she should not feel guilty if an attorney raises an objection to an issue,” reads part of Neal’s memo.
However, even with these administrative safeguards, EOIR faces challenges in providing safe and fair environments for children who are essentially on trial.
According to the Transactional Records Access Clearinghouse, a government data tracker located at Syracuse University, 31% of all foreign nationals who issued a notice to appear in 2022 were 17 years old or younger, and 16% were between 18 and 24 years old.
Neal’s memo says immigration courts should have a separate process for respondents under 21.
“The Memorandum also outlines certain procedures and practices that immigration judges must follow in order to create an environment where children can better understand and participate in their proceedings and where judges can better administer justice. Ideally, immigration courts will seek to engage legal services organizations that represent unaccompanied children in juvenile proceedings 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 juvenile court within EOIR, with judges and court staff specialized in processing children.
This story originally appeared on thehill.com read the full story
