The Trump administration has asked at least 70 babies under the age of 1 to come to court in 2018 and personally make their case to an immigration judge about why they should be able to stay in the U.S.
Kids have long been forced to navigate the U.S. immigration system alone as thinly stretched pro bono legal aid organizations struggle to provide lawyers for every child. But new Justice Department data obtained by Kaiser Health News and the Texas Tribune show the number of babies under 1 summoned to immigration court recently increased almost 200 percent, from 24 in fiscal year 2017 to 70 so far in fiscal year 2018 (which ends Sept. 30).
“It sounds bizarre, it is bizarre, but this is what’s happening,” said Wendy Young, president of Kids In Need of Defense, an organization that provides free legal counsel to immigrant kids. “It’s obviously tragic but not surprising to us.”
About one in three unaccompanied minors were represented in immigration court in fiscal year 2017, according to data from the Transactional Records Access Clearinghouse at Syracuse University. Of the kids denied asylum in 2017, 91 percent were unrepresented. And of the kids granted relief, just 14 percent were unrepresented, according to the same data.
The Trump administration’s forced separation of thousands of kids from their parents at the border under the “zero tolerance” has added an extra layer of difficulty to KIND’s efforts to represent every child. While family units are considered for asylum together, once a child and a parent are separated into the custody of two separate agencies — the departments of Health and Human Services and Homeland Security, respectively — their cases are on two different tracks.
“The separated children are uncharted territory for us,” Young said. “We’ve never seen the government systematically separating kids and putting them in an entirely different legal track than the parents. Unaccompanied children asylum claims are handled differently than adults are.”
Complicating things further, the agencies did not have a system in place to track which child belonged to which adult, so lawyers for kids are often unable to reach their parents to discuss the details of their life and their wishes for the child, which are key aspects in an asylum claim. Government officials are working to reunify kids with their parents by July 26 under a court-ordered deadline, but officials say they are currently unable to identify parents for 70 kids.
Young thinks it is unlikely that any of the 70 babies asked to appear in court this year are kids who the government separated from their parents under the policy. Instead, she thinks they probably migrated with family members such as siblings, aunts, uncles or grandparents, or they were smuggled.
Curiously, the 609 kids aged 1 to 5 who were summoned to appear in immigration court this year is nearly half the 1,128 who were summoned last year. Young said KIND has seen a shift downward in the average age of their clients, but did not know the reason for the profound disparity between the under 1 age group and the over 1 age group.
A spokesman for the Justice Department said officials provide kids with a list of pro bono legal services, and last year the department sent a guidance to judges on how to make children more comfortable in the courtroom. In addition, children may have a relative, sponsor or guardian in the U.S. attend their proceedings.
Faced with an increase of unaccompanied kids immigrating to the U.S. in 2014, the ACLU sued the Obama administration to try to guarantee the right to government funded counsel for kids in immigration court. An appeals court dismissed the lawsuit in 2016. Both the Senate and the House have introduced a bill called the “Fair Day in Court for Kids Act,” which would provide that same guarantee, but neither chamber has voted on the proposal yet.
Cover image: Activists, including childcare providers, parents and their children, protest against the Trump administrations recent family detention and separation policies for migrants along the southern border, near the New York offices of U.S. Immigration and Customs Enforcement (ICE), July 18, 2018 in New York City. Photo by Drew Angerer/Getty Images.