Access to Legal Services for Unaccompanied Children

Who are unaccompanied noncitizen children?

An unaccompanied noncitizen child (formally known as an “unaccompanied alien child”) is one who is under the age of 18, has no lawful immigration status in the United States, and does not have a parent or legal guardian in the country. A child may travel unaccompanied to the U.S. to escape violence, persecution, abuse, and poverty, or to rejoin a family member in the United States, among many other—oftentimes interrelated—reasons. Unaccompanied children are often faced with various challenges throughout their journey to the United States. These challenges include poor health, disruptions to education, abuse, human trafficking, and exploitation. Once apprehended by immigration officials or referred from another federal agency, unaccompanied children are transferred to the custody of the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services. According to ORR, during Fiscal Year 2023, 118,938 unaccompanied children were referred to their care . In recent years, many unaccompanied children have originated from Guatemala, Honduras, El Salvador, and Mexico.

Why is a lack of access to legal services for unaccompanied children a problem?

Unaccompanied children do not have a legal right to counsel. For this reason, children who are placed in removal proceedings may have to appear before an immigration judge on their own within the courtroom setting. In addition to the trauma an unaccompanied child may have faced in his or her country of origin and on his or her journey to the U.S., re-traumatization during the immigration process can also occur as they are asked to recall painful memories, which are often a central part of their case. In some cases, they may receive access to pro bono legal services while in ORR custody or be connected to pro bono counsel after they are released.

Children may be eligible for various forms of legal relief, including asylum, Special Immigrant Juvenile status, and a T or U visa. According to a 2022 report from the Congressional Research Service, “the rates of asylum and other forms of relief granted in unrepresented cases were about 66% lower than the rates of relief granted in represented cases.” Access to legal services and representation can increase a young person’s chances of receiving protection for which he or she is eligible. The presence of an additional trusted adult in the child’s life can also serve to ensure the child’s personal safety. A legal service provider can respond to questions or concerns a child may have about the immigration process and identify signs of mistreatment or exploitation. Guidance from an attorney allows for easier navigation of the system and can provide much needed support.

What can be done to address the problem?

In 2023, the Executive Office for Immigration Review released a Director’s Memorandum on “Children’s Cases in Immigration Court”. The memo included guidelines instructing immigration judges to facilitate pro bono representation of children, inform children of any relief from removal for which they may be eligible, and encouraged child-friendly courtroom procedures.

The U.S. Conference of Catholic Bishops has endorsed the Immigration Court Efficiency and Children’s Court Act of 2023 (S.3178/H.R. 6145). The bill would provide special training to Children’s Immigration Court judges on developmental and trauma-informed practice, create child participation protocols that would encourage developmentally appropriate engagement, and improve access to legal services by implementing coordination between legal services organizations and the immigration courts to help children obtain counsel.