A new memo issued last month by the Executive Office for Immigration Review (EOIR) lays out improved guidelines for immigration court cases involving children. The memo is a welcome acknowledgment that children in removal proceedings are navigating a system created for adults and therefore need special protection.
The guidelines apply to all immigration court cases involving a child who is not part of a family unit. It rescinds a 2017 Trump-era memo, which was more limited in scope and applied only to unmarried people under the age of 18. The new more expansive memo defines “child” as an individual under 21 years old. This includes but is not limited to cases involving unaccompanied immigrant children.
The memo explains that EOIR has created specialized juvenile dockets in cities with enough cases to warrant a separate docket. Juvenile docket cases are heard on specific days of the week by immigration judges who have received training on children’s issues. While the 2017 memo merely recommended that courts without a separate juvenile docket hear children’s cases separate from adult cases, the new memo now requires it. This helps ensure that child-friendly procedures are applied across the board regardless of the number of children’s cases a court has.
The guidance on credibility is another key improvement. The 2017 memo imposed a harsh standard, reminding judges that “legal requirements, including credibility standards and burdens of proof, are not relaxed or obviated for juvenile respondents.”
Immigration attorneys know how common it is for a child’s memories to shift throughout the course of a years’ long case. This is especially true when the child must recount the details of traumatic events, like those that could form the basis for an asylum, Special Immigrant Juvenile Status, or T visa claim. Age, stress, and traumatic experiences like family separation can all impact a child’s ability to remember.
The new guidance takes these challenges into account and instructs that immigration judges “should not assume that inconsistencies or poor articulation in a child’s testimony reflect dishonesty.” The memo includes an attachment with sample questions framed in a child-sensitive way. It also states that it is “often appropriate” to rely on a child’s written statement instead of requiring the child to testify in court.
In immigration court proceedings, children, including unaccompanied children, usually depend on an adult caregiver to send notice to the court if they have moved. If the adult fails to do so, however, the child typically pays the price by receiving a removal order for missing court. The memo provides a cushion for immigrant children facing this situation.
If a child misses a hearing, the government attorney must request a 30-day continuance to verify the child’s address information. If the child again fails to appear at the next hearing, and the government attorney requests to proceed with the hearing in their absence—which could result in a removal order—the immigration judge should consider the “totality of the circumstances,” before doing so. Factors include the child’s age and any known obstacles that could have prevented them from attending.
In a system that is stacked against immigrant children, EOIR’s memo sets out important due process protections for kids facing the possibility of deportation. Advocates hope that Congress will improve on these changes by passing the bipartisan Immigration Court Efficiency and Children’s Court Act of 2023. The bill would create a separate Children’s Court within EOIR with specially trained judges and stakeholders to ensure more child-sensitive and trauma-informed practices. Unlike guidelines introduced in a memo, legislative protections for kids could not be easily scaled back under a new administration.
FILED UNDER: Children, EOIR
