On Friday, a one-year-old appeared in court in Phoenix, Arizona, where, with the help of the lawyer who accompanied him, he was supposed to plead his case for asylum. But how can an asylum-seeker plead his case when the asylum-seeker cannot yet put together full sentences?
This has become a central problem for hundreds of immigrant children who, separated from their parents under President Donald Trump's "zero-tolerance" policy, must appear before an immigration judge without a parent or guardian. Even the judges themselves seem uncertain of what to do when faced with toddler-defendant. Friday's judge, John W. Richardson, admitted he felt uncomfortable doing a routine part of his job: asking the defendant if they understand the proceedings.
“I’m embarrassed to ask it, because I don’t know who you would explain it to, unless you think that a one-year-old could learn immigration law,” Richardson told the boy's lawyer, according to the Associated Press.
But despite Richardson's apparent surprise at a one-year-old defendant in his courtroom, the fact of children appearing unaccompanied to plead an immigration case predates the Trump era. Lawyers at Kids in Need of Defense, or KIND, have been representing unaccompanied immigrant children in court for ten years.
"Trump is making things much worse with his 'zero-tolerance' policy and family separation practices," KIND's Senior Director of Communications Megan McKenna tells Broadly. "But it's important for people to understand that this is how children have been forced to proceed through the immigration system for some time now."
According to the organization's findings, 50 percent of children who arrive in the U.S. have no one to serve as their counsel—a number McKenna says has been on the rise—making them five times more likely to be deported.
"It’s impossible for a child to represent themselves in deportation proceedings and have to argue against a government attorney who is fighting for a child’s deportation," McKenna says. "We have very accomplished attorneys who volunteer with us, and even they have trouble with our immigration system when they’re representing the children."
The question of whether children can legally appear unaccompanied and even represent themselves in court was answered definitively in January, when an appeals court ruled that children who cross the border without documentation have no right to a government-appointed lawyer, as defendants do in U.S. courts writ-large. The appeals court judges made the ruling based on a case from 2014, which involved a 13-year-old Honduran boy who entered the country with his mother, but was made to appear in court by himself, without any legal representation.
"If permitted to stand, [the ruling] will result in the deportation of thousands of vulnerable children to some of the most violent places on earth,” American Civil Liberties Union of Southern California Legal Director Ahilan Arulanantham told Reuters at the time.
Anahita Avestaei, a Washington D.C.-based immigration lawyer, tells Broadly that deportation will continue to be the likely fate of children forced to appear before judges by themselves—a fate she likened to a "death sentence."
"Being deported often means returning to a country where you've been threatened with death, rape or torture," Avestaei says. "These are courts that can essentially sentence you to death. If a kid is busted for smoking marijuana, he has the right to an attorney. But if a kid could go home to die he has nothing."
The Trump administration has made it difficult for judges to reach any decision other than deportation. In addition to the increased number of children unable to advocate for themselves cycling through the court system, the administration has also pressured immigration judges to resolve requests for asylum more quickly, which means less time to find legal representation and build a strong case. Attorney General Jeff Sessions has also tightened restrictions on who qualifies for asylum, ruling last month that victims of domestic violence and gang violence are no longer eligible.
But even without these new restrictions—without Trump's "zero-tolerance" policies and without family separation—the U.S. immigration system would continue to see small children cycle through its courts.
"This isn't a system that Trump created—the system didn’t work from the beginning," Avestaei says. "The laws allow it, and that’s the problem."