Administrative Chaos: Responding to Child Refugees—U.S. Immigration Process in Crisis
Administrative Chaos: Responding to Child Refugees-U.S. Immigration Process in Crisis
Lenni B. Benson 0 1 2
0 New York Law School , USA
1 Thi s Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information , please contact , USA
2 Lenni B. Benson, Administrative Chaos: Responding to Child Refugees-U.S. Immigration Process in Crisis, 75 Wash. & Lee L. Rev. 1287 (2018), https://scholarlycommons.law.wlu.edu/wlulr/vol75/ iss3/4
Administrative Chaos: Responding to
Child Refugees?U.S. Immigration
Process in Crisis
Professor Lenni B. Benson*
I. Introduction.................................................................... 1288?
II. Statutory Protections in Existing Law ......................... 1293?
VI. Agency Reactions to Increased Numbers of
Child Apprehensions ................................................................. 1301?
VII. In Search of a Best Practice........................................... 1317?
A. A System that Balances Enforcement and
Deterrence of Smuggling and Fraud with
Fairness and Access to Justice................................ 1317?
B. Characteristics of a Better Model for
Adjudication ............................................................. 1318?
1. Do Not PlaceAll ApprehendedChildren
into Detention .................................................... 1319?
2. Do Not Place Children in Removal
Proceedings?At Least Initially ........................ 1319?
* Professor of Law and Director of the Safe Passage Project Clinic at New
York Law School. Appreciation to the staff of the Safe Passage Project
Corporation, a nonprofit housed at New York Law School and currently aiding
over 700 immigrant youth. Learn more at www.safepassageproject.org. Thank
you to Monica Cordero Sancho for data analysis assistance. I also thank the
members of the National Association of Immigration Judges (NAIS) for making
its materials on several key issues available to the public on their website.
VIII. Conclusion ...................................................................... 1321?
John Oliver, the popular comedian on HBO, recently aired a
twenty-five minute segment exploring the manner in which the
U.S. government adjudicates children?s removal and asylum
claims.1 As part of that segment, he reported that at least one
senior judge testified during a deposition that he had aided a child
as young as four years old to understand enough immigration law
to be able to proceed without an attorney.2 Oliver included videos
simulating how a child of that age might answer the standard
queries of an immigration judge.
Judge to Child: ?And if you are ordered removed, do you wish to designate a country where you will be removed??
Child: (Long pause, then smile) ?Pizza!?
Frankly, this Article will come alive and mean a great deal
more to you if you stop reading and take a moment to view the
Oliver program. The analysis below will be here when you return.
What Oliver helps to make clear is that our immigration courts are
the wrong forums to consider the protection needs of children.3 In
1. See Last Week Tonight, Immigration Courts: Last Week Tonight with
John Oliver (HBO), YOUTUBE (Apr. 1, 2018) (showing John Oliver?s program on
April 1, 2018), https://www.youtube.com/watch?v=9fB0GBwJ2QA.
2. See Deposition of Immigration Judge Jack H. Weil at 69?70, J.E.F.M. v.
Lynch, 837 F.3d 1026 (9th Cir. 2016) (No. 2:14-cv-01026),
mini.pdf (detailing ways in which young children are taught to understand
immigration law). This litigation surrounds the due process right to appointed
counsel for children. See infra note 44 and accompanying text (discussing the
litigation process immigrant children face).
3. See generally Lenni B. Benson, Finding the Forum that Fits: Child
Immigrants and Fair Process, 23 ROGER WILLIAMS U. L. REV. 419 (2018)
this Article, I will briefly survey some of the other problems in the
current administrative structures where at least five different
agencies and courts may be required to consider a single child?s
case, and why some of the current administrative decisions are
making an already complex system much worse.
More than 50% of the world?s refugees are children.4 Yet our
international law and legal processes are ill prepared to address
the special needs or to fairly assess the protection claims of young
people. Sadly, the United States is no exception to this rule, and in
recent years the established procedures used to adjudicate
children?s claims have come under repeated attack. The theme of
this Symposium was examining immigration adjudication and
policy through the lens of actions taken by the Executive Branch.
For those who seek to aid or represent youth seeking asylum or
other humanitarian protection, the behavior of the Executive
Branch has produced administrative chaos.
This Article was prepared in the late winter of 2017 and before
the Trump Administration formally began to separate parents and
children apprehended at the Southwest border.5 This Article
(discussing the appropriate forums for child immigration needs).
4. See Trends at a Glance, UNHCR: THE UN REFUGEE AGENCY,
http://www.unhcr.org/globaltrends2016/ (last visited Sept. 20, 2018) (?Children
below 18 years of age constituted about half of the refugee population in 2016, as
in recent years.?) (on file with the Washington and Lee Law Review).
5. The origin and implementation of this new policy to separate parents and
children at the U.S. border was very nontransparent. It has been through
litigation and Congressional oversight hearings and advocates have begun to
realize how most of the implementation was ?ad hoc? and the relevant agencies
were poorly prepared. There were at least four or five law suits filed to challenge
the legality of the separations of parents and children. Most were consolidated in
the national class action brought by the Immigrant Rights Project of the American
Civil Liberties Union. See, e.g., Ms. L. v. Immigration and Customs Enf?t, No.
3:18-cv-0428-DMS-MDD (S.D. Cal. June 26, 2018) (granting plaintiffs? motion to
certify class alleging that the government has a widespread policy of separating
immigrants from their families). For a three-part series discussing the origins of
the policy, the resulting litigation, and empirical assessments of the numbers of
children impacted, see Adam Isacson et al., Washington Office on Latin America
https://www.wola.org/analysis/national-shame-trumpadministrations-separation-detention-migrant-families/ (last visited Sept. 20,
2018) (reporting on the policy and effect of the Administration?s immigration
policy) (on file with the Washington and Lee Law Review).
primarily describes the law and procedure for adjudicating claims
for ?unaccompanied? children, a term of art found in the federal
statutes.6 As a result of the family separations more than 3,000
children were re-characterized as an ?unaccompanied alien child?
and custody of these children was transferred to Health and
Human Services away from the Department of Homeland
Security.7 It is beyond the scope of this Article to address all of the
turmoil, heartbreak, and legal violations that resulted from this
unfortunate practice of family separation. And as of the end of
August 2018, there are still many children who have not been
released nor reunited with family. What is clear, is that the
administrative chaos described here became even more volatile,
stressed, and confusing as thousands of additional children were
suddenly transformed into ?unaccompanied children.?
Before I outline some of the administrative and executive
actions, let us examine the available data about the apprehension
of unaccompanied children at our southwest border.8
El Salvador 1,394 3,314 5,990 16,404 9,389 15,987 9,143
Guatemala 1,565 3,835 8,068 17,057 13,589 17,113 14,827
Honduras 974 2,997 6,747 18,244 5,409 9,305 7,784
Mexico 11,768 13,974 17,240 5,634 11,012 10,857 8,887
Totals: 15,701 24,120 38.045 67,339 39,399 53,259 40,631
Aggregate FY 2013 to FY 2017: 278,494 Unaccompanied Children
6. See 6 U.S.C. ? 279(g)(2) (2012) (defining ?unaccompanied alien child? to
mean a child who ?has no lawful immigration status in the United States; has not
attained 18 years of age; and with respect to who there is no legal guardian in the
United States?). This provision of the Trafficking Victims Protection
Reauthorization Act (TVPRA) is not directly integrated into the INA itself.
7. The role of the HHS is described in great depth below. See supra note 13
and accompanying text (discussing the Office of Refugee Resettlement (ORR)
within the Department of Health and Human Services (HHS)).
8. See U.S. Border Patrol Southwest Border Apprehensions by Sector
FY2017, U.S. CUSTOMS & BORDER PROT. (Dec. 15, 2017), https://www.
cbp.gov/newsroom/stats/usbp-sw-border-apprehensions-fy2017 (last visited Sept.
20, 2018) [hereinafter ?CBT Stats?] (comparing the number of unaccompanied
alien children at the Southwest border in 2017 and 2016) (on file with the
Washington and Lee Law Review).
While these numbers are significant, especially at a time when
overall apprehensions at the Southwest border are falling,9 the
total number of children is very small in comparison to the refugee
flows in other parts of the world. For example, UNICEF reports
that hundreds of thousands of children are moving from the Middle
East and northern Africa in an effort to reach Europe.10
The phenomenon of children on the move is not unique to the
United States.11 When compared with the significantly larger
number of people and children arriving in other parts of the world,
we have the resources and personnel to address child migration
thoughtfully. We can design and implement a system that respects
the needs and abilities of children to navigate the adjudication
system. But the politics of the moment and the lack of leadership
within Congress, together with the current patchwork
adjudication models, have only compounded the confusion and
tension in adjudicating children?s statutory claims for protection.
For while children may, as a matter of theoretical, moral, and
ethical duties, have a general claim to protection from a
9. U.S. Customs and Border Protection (CBP) reported apprehensions in
FY 2017 were 310,531 and unaccompanied children represented 41,435 of these
totals. Therefore, around 13% of all apprehension represents unaccompanied
children. See U.S. CUSTOMS & BORDER PROT., CBP BORDER SECURITY REPORT:
FISCAL YEAR 2017 2 (2017) (?CBP recorded the lowest level of illegal cross-border
migration on record.?); Southwest Border Migrations FY2018, U.S. CUSTOMS &
BORDER PROT. (June 6, 2018),
https://www.cbp.gov/newsroom/stats/sw-bordermigration (last updated Aug. 8, 2018) (last visited Sept. 20, 2018) (listing the
number of individuals apprehended at the border) (on file with the Washington
and Lee Law Review); CBT Stats, supra note 8 (same).
10. In a 2017 fact sheet issued by the UN, UNICEF, and the IOM, the
authors estimated that in the first half of 2017 Europe noted that children
represented 161,087 refugee protection claims. See UNHCR, UNICEF & IOM,
REFUGEE AND MIGRANT CHILDREN IN EUROPE 4 (2017),
pdf (describing asylum application and decisions in European countries in 2017).
But all of the leading international organizations note the problem with accurate
data. See UNICEF, A CALL TO ACTION: PROTECTING CHILDREN ON THE MOVE STARTS
WITH BETTER DATA 2 (2018), https://www.iom.int/sites/default/files/press_
release/file/pbn_02152018_Call%20to%20action_clean.pdf (discussing issues
with unreported migrating children).
11. On September 10, 2018, Elgar Press published a book I edited with Dr.
Mary Crock that explores the treatment of migrant children in many regions of
the world. See generally MARY CROCK & LENNI BENSON, PROTECTING MIGRANT
CHILDREN: IN SEARCH OF BEST PRACTICE (2018).
nation-state, this Article will focus on those avenues of protection
that already exist within U.S. statutory law. In other words, our
Executive Branch has a duty to faithfully execute the laws. A very
real part of that duty is to consider and decide children?s claims for
asylum and other protections.
Almost all children apprehended at our borders are taken into
federal custody and the U.S. Customs and Border Protection (CBP)
drafts documents to begin formal removal proceedings.12 The
custody of these young people is controlled by the Office of Refugee
Resettlement (ORR)13 within the U.S. Department of Health and
Human Services (HHS). At the same time, the case files are
transferred to Immigration and Customs Enforcement (ICE), the
prosecutorial division of the U.S. Department of Homeland
Security (DHS). Again, usually without exception, ICE lodges a
formal Notice to Appear (NTA) requiring the young person to
appear and defend in a removal or deportation hearing before the
Executive Office of Immigration Review (EOIR), otherwise known
as the ?immigration courts,? a division of the Department of
Confused yet? Let?s summarize one more time:
1. Child is apprehended by CBP.
2. CBP turns the child over for detention to ORR. Most
youth have been released to a relative or sponsor as
mandated by a long-standing settlement agreement.14
3. ICE takes the file from CBP and files a charging
document to begin removal proceedings before EOIR.
12. Removal is the term used to describe hearings formerly known as
deportation or exclusion hearings. See Immigration and Nationality Act (INA)
? 240, 8 U.S.C. ? 1229(a) (2018) (describing removal proceedings). The vast
majority of children apprehended at the southern border are put into removal
hearings and charged with being inadmissible at entry for lack of a visa. See INA
? 240, 8 U.S.C. ? 1229(a) (2018) (discussing the process for a removal proceeding).
13. This division of HHS is inaptly named as ?refugee resettlement.? For
while other components do assist with refugee resettlement, the main function of
the ORR for unaccompanied children is to detain the young person as part of the
adjudication of the removal case. The name is completely misleading.
14. See, e.g., Reno v. Flores, 507 U.S. 292, 292?98 (1993) (describing the
rights of a child pending deportation). This litigation has a long history and
resulted in a settlement. Id. On September 7, 2018, HHS issued proposed
regulations with DHS in an attempt to supersede this settlement. See 83 Fed.
Reg. 45,486 (Sept. 7, 2018).
Not one of those agency actors has a duty of assisting the
young person to apply for statutory protection. Only the EOIR may
have any responsibility for aiding a child to seek asylum, but as is
outlined further below, a completely separate division of DHS, the
United States Citizenship and Immigration Service (USCIS), at
least initially makes the relief decisions. In the middle of all of
those massive agencies, the child is rarely represented and can
easily be stranded within the maelstrom of agency action and
This confusing overlap of jurisdictions and responsibility for
the immigrant child is partially the result of the lack of a
comprehensive statutory design. The next section explores the
fundamental substantive forms of protection available to most of
the immigrant youth.15
II. Statutory Protections in Existing Law
The fundamental source of federal legal authority in
immigration matters is the Immigration and Nationality Act
(INA).16 A statute that has grown and been amended since its
initial adoption in 1952. While Congress has not truly,
systematically addressed how children?s claims should be
distinguished from those of adults, there are many protections and
categories found within existing law that protect children from
removal and, in many cases, authorize a path to full immigrant
status as a lawful permanent resident.17 In 2008, the most direct
15. For a useful article describing the processing of children arrested at the
border and containing valuable flow charts, see generally Olga Byrne & Elise
Miller, The Flow of Unaccompanied Children Through the Immigration System:
A Resource for Practitioners, Policy Makers, and Researchers, VERA CTR. ON
IMMIGR. AND JUST. (Mar. 2012),
https://www.vera.org/publications/the-flow-ofunaccompanied-children-through-the-immigration-system-a-resource-forpractitioners-policy-makers-and-researchers (last visited Sept. 20, 2018) (on file
with the Washington and Lee Law Review).
16. The INA is codified at 8 U.S.C. ? 1101 et seq. In this Article I cite to both
the INA section and the parallel citation in the U.S. Code. Most immigration
attorneys and judges refer solely to the INA provisions in immigration matters.
Many of the key regulations found in 8 C.F.R. are similarly numbered to the
corresponding INA section.
17. A lawful permanent resident (?LPR?) is a person permitted to live, work,
and significant provisions directly addressed the phenomena of
unaccompanied children by creating a statutory definition in the
Trafficking Victims Protection Reauthorization Act.18 And while
this definition does give some substantive and procedural
protection to children, it is clear from the operation of the laws over
the last ten years that the statutory scheme and administrative
implementation has created far too many problems both for
government goals of efficiency and accuracy and even more
critically for fairness and access to justice for the vulnerable child
Here, I briefly outline the existing forms of statutory
protections below because without an understanding of these
substantive protections, it is difficult to fully understand why
recent administrative responses and procedural changes are at
risk of swamping or destroying substantive protections.
III. U and T Status
Congress authorizes the USCIS to grant short-term resident
status and later full immigrant status to those who have been
trafficked to the United States (T status)19 and to some people who
have been victims of crimes within the United States (U status).20
To qualify for these protections, a young person has to assemble
and file an appropriate petition and document the predicate
requirements. In some cases, these petitions require the applicant
to document cooperation with prosecution authorities. Typically,
the agency adjudication process requires six months to two years
before an individual receives a final decision from the USCIS.
Further, Congress has capped the number of people who can access
these categories of protections,21 but in the past the administrative
and remain indefinitely in the United States. The USCIS issues a ?green card? to
document this status. In almost all cases, a person cannot naturalize to full U.S.
citizenship without first obtaining LPR status.
18. See supra note 6 (defining unaccompanied alien child).
19. See INA ? 101(a)(T), 8 U.S.C. ? 1101(a)(T) (2012) (defining T immigrant
20. See INA ? 101(a)(U), 8 U.S.C. ? 1101(a)(U) (2012) (defining U immigrant
21. The T visa is capped at 5,000 annually for the principal applicants. See
view has been that people with pending applications should not be
pushed through the removal system but should be allowed to
complete the evaluation and adjudication process before USCIS.
The immigration court has no authority to grant this protection.
A. Family Petitions
Under the INA, a parent who has permanent resident status
may sponsor his or her child to immigrate to the United States
under the family-based second preference.22 Stepparents are
included in this category. Some youth who reach the United States
could access legal status through family sponsorship provided they
can clear the adjudication delays, but they may have to return to
the country of origin to complete the immigration process.
Congress caps the total number of youth who can immigrate in this
category at a base of 114,000 per year.23 There is currently a quota
delay of at least two to four years, and the delays can grow longer
if demand increases.24 The USCIS is the sole adjudicator of the
INA ? 214(o) (2?3), 8 U.S.C. ? 1184(o) (2?3) (2012) (stating numerical limitations
on the number of T visas allotted per year). The U is limited to 10,000 principal
applicants. See INA ? 214(p)(2)(B), 8 U.S.C. ? 1184(p) (2012) (providing numerical
limits on the number of U visas allocated per year).
22. See INA ? 203(a)(2), 8 U.S.C. ? 1153(a)(2) (2012) (discussing the
allocation of visas to those ?who are the spouse or children of an alien lawfully
admitted for permanent residence?).
23. See id. ? 1153(a)(2)(B) (stating that, for unmarried sons and daughters
of citizens, there ?shall be allocated visas in a number not to exceed 114,200?).
The quota allocation includes spouses and adult unmarried sons and daughters
of permanent residents. The quota can be expanded by adding unused visas in
other family categories. For details see Visa Bulletin for May 2018, U.S. DEP?T
STATE (Apr. 6, 2018),
https://travel.state.gov/content/travel/en/legal/visalaw0/visa-bulletin/2018/visa-bulletin-for-may-2018.html (last visited Sept. 20,
2018) (summarizing the availability of immigrant numbers during May) (on file
with the Washington and Lee Law Review).
24. No one can predict the exact delay. This estimate is based on observing the
monthly movement of the queue in the second preference category over the past five
years. In FY 2017, 61,883 spouses and minor children immigrated to the United
States in this category. See U.S. DEP?T OF STATE, CLASSES OF IMMIGRANTS ISSUED
VISAS AT FOREIGN SERVICE POSTS 1?2 (2017), https://travel.state.gov/content/dam/
(reporting immigration data from 2013 to 2017). The report does not separate children
from spouses. Id.
family petition. The immigration court has no authority to grant
A parent or stepparent who is a U.S. citizen may similarly
sponsor an unmarried minor child, under the age of twenty-one as
an ?immediate relative? to the United States.25 This category has
no statutory quota limits.26 Again, only USCIS can adjudicate the
qualifications of the underlying visa petition. An immigration
court cannot complete the young person?s adjustment to that of
permanent resident unless the young person was lawfully
inspected and admitted at a port of entry in the United States. In
the vast majority of cases for unaccompanied youth, even those
who may have a U.S. citizen parent who could sponsor them, there
is no ability of the immigration court to complete the adjudication.
IV. Special Immigrant Juvenile Status (SIJS)
A path to permanent residence for those young people who
have been abused, neglected, abandoned, or similarly harmed is to
demonstrate to a state court with jurisdiction over the juvenile
that reunification with one or both parents is not possible, and that
it is in the best interest of the young person to remain within the
United States.27 Thus, this statutory system contemplates a
bifurcated adjudication of child protection between the state of the
child?s residence and the USCIS.28 Moreover, Congress has limited
25. See INA ? 201(b)(2)(A), 8 U.S.C. ? 1151 (b)(2)(A) (2012) (defining
?immediate relatives? for sponsorship purposes).
26. In FY 2017 over 50,000 children immigrated to the United States after
sponsorship by a U.S. citizen parent or stepparent. See Visa Bulletin for May
2018, supra note 23 (discussing the visa bulletin).
27. See INA ? 101(a)(27)(J), 8 U.S.C. ? 1101(a)(27)(J) (2012) (stating options
for permanent residence for those that have been determined dependent on a
juvenile court in the United States).
28. See Elizabeth Keyes, Evolving Contours of Immigration Federalism: The
Case of Migrant Children, 19 HARV. LATINO L. REV. 33, 37 (2016) (?Existing
literature takes the bifurcated state-federal structure as given, and seeks to make
important improvements from within that framework. This article questions the
framework itself.?). In several state courts, the bifurcated nature of the
adjudication is fully examined and reaffirmed. See, e.g., H.S.P. v. J.K., 223 N.J.
196, 209?10 (N.J. 2015) (discussing the role of the state courts and USCIS in
obtaining special immigrant juvenile status); Matter of Marisol N.H., 979
N.Y.S.2d 643, 645?46 (N.Y. App. Div. 2014) (same); see also SAFE PASSAGE
the total number of youth who can benefit from this category to
9,600 people per year.29 The immigration court has no authority to
grant this protection.
A. Asylum and Refugee Admissions
People, including children, who have a well-founded fear of
persecution or who have suffered past persecution may be
considered for asylum protection within the United States or may
have a claim for protection adjudicated externally and brought to
the United States as a ?refugee.?30 The INA authorizes the
President to expressly set a quota and priorities for refugee
admissions from abroad.31 The Trump Administration?s history of
suspending all refugee admissions and then restricting the
admissions and reducing the total quota is well documented in
other Articles within this Volume.32 But in addition to showing a
PROJECT, SPECIAL IMMIGRANT JUVENILE STATUS MANUAL: A STEP-BY-STEP GUIDE
FOR SAFE PASSAGE PROJECT PRO BONO ATTORNEYS 1?3 (2017),
https://www.safepassageproject.org/wp-content/uploads/2017/09/Safe-PassageProject-SIJS-Manual-summer.2017.pdf (providing more information on the
Special Immigration Juvenile Status).
29. Immigration in this category is charged to quota within the ?employment
based? fourth preference. Until recently there was rarely a delay due to an
excessive demand. As each country is capped at 7% of the total allocation, a delay
has arisen for youth from three to five countries: El Salvador, Guatemala,
Honduras, and sometimes India and Mexico. See Visa Bulletin for May 2018,
supra note 23 (discussing the visa bulletin).
30. See INA ?? 207, 208, 209, 8 U.S.C. ?? 1157, 1158, 1159 (2012) (detailing
the processes for allowing refugees into the United States). There are related
forms of protection such as precluding removal for those who would face torture
or those who can show a higher standard of persecution under the ?withholding
of removal? status. Congress has also authorized a Temporary Protected Status
(TPS)?a formal grant of work authorization and temporary permission to reside
that will be discussed below below?but that is not typically a form of relief
immediately available to new arrivals to the United States. See generally INA
? 244, 8 U.S.C. ? 1254 (2012) (providing details about temporary protected status
in the United States).
31. INA ? 207, 8 U.S.C. ? 1157 (2012).
32. See also Julie H. Davis & Miriam Jordan, Trump Plans 45,000 Limit on
Refugees Admitted to U.S., N.Y. TIMES, Sept. 26, 2017, at A19 (describing Trump?s
plans for refugee camps). On September 18, the Trump administration announced
further reductions to 30,000 people for the next fiscal year. This is the lowest
number in the history of the program. See Julie H. Davis, Trump to Cap Refugees
well-founded fear or the experience of past persecution, the
applicant must demonstrate that the persecution was ?on account?
of one of the statutorily protected grounds: political opinion, race,
nationality, religion, or membership in a particular social group.33
This requirement known as the ?nexus? requirement can be very
difficult for any person to establish; it is particularly challenging
for children and youth to articulate, especially where the
persecution they are experiencing is from systemic organized crime
within the country of origin.
If a person has reached a U.S. border, port of entry, or is
apprehended within U.S. territory, he or she usually has an
opportunity to make a claim of protection under the asylum
provisions.34 Children who are apprehended alone, for example,
not in the care of a legal guardian or parent, are not subject to some
of the same expedited procedures that allow border officials to
summarily adjudicate claims for asylum.35 Almost all
unaccompanied children are exempt from those procedures and the
one-year statutory deadline to seek asylum relief.36 Almost all
Allowed Into U.S. at 30,000, a Record Law, N.Y. TIMES (Sept. 17, 2018)
https://www.nytimes.com/2018/09/17/us/politics/trump-refugees-historiccuts.html (last visited Sept. 20, 2018) (discussing President Trump?s cuts in the
number of refuges that can be resettled in the United states) (on file with the
Washington and Lee Law Review).
33. See, e.g., Karen Musalo, Personal Violence, Public Matter: Evolving
Standards in Gender-Based Asylum Law, 36(2) HARV. INT?L REV. 45, 46 (2015)
(discussing the historical context of international refugee protection); Matter of
A-R-C-G-, 26 I. & N. Dec. 388, 388?89 (B.I.A. 2014) (defining the refugee status);
Karen Musalo, Revisiting Social Group and Nexus in Gender Asylum Claims: A
Unifying Rationale for Evolving Jurisprudence, 52 DEPAUL L. REV. 777, 781
(2003) (defining a refugee as a person with a ??well-founded fear of being
persecuted for reasons of race, religion, nationality??) (internal citation omitted).
34. See INA ? 208, 8 U.S.C. ? 1158 (2012) (granting authority to apply for
35. INA ? 208(a)(2)(5), 8 U.S.C. ? 1158(a)(2)(5) (2012) (excluding
unaccompanied children from the safe child country and time limit provisions).
36. See INA ? 208(a)(2)(E), 8 U.S.C. ? 1158(a)(2)(E) (2012) (discussing the
authority to apply for asylum); William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008, Pub. L. No. 110-457, ? 235(d)(7)(A) (2008)
(finding that if the government challenges the child?s classification as an
?unaccompanied child,? the individual may be subject to a one year deadline to
apply); see also U.C. HASTINGS COLL. OF LAW CTR. FOR GENDER & REFUGEE
STUDIES, CHILDREN?S ASYLUM CLAIMS: CGRS PRACTICE ADVISORY 2?3 (2015),
children from Mexico and Canada apprehended at or near the
international border can be summarily returned.37 Children found
within the interior of the United States from these countries may
have greater opportunities to pursue asylum or other protections.
Unlike all of the preceding categories of protection,
immigration courts do play a role in the adjudication of children?s
claims. Normally, anyone put into removal proceedings may only
seek asylum protection directly before the immigration judge.
However, the past and current administrations have chosen to
allow an unaccompanied child to first apply for asylum before a
division of the USCIS known as the Asylum Office.38 There a
trained asylum officer conducts a non-adversarial interview and
the child is not cross examined by a prosecutor. If the Asylum
Office finds the child or youth is eligible for asylum, any pending
removal case is usually terminated. One year after the grant of
asylum, a young person can seek formal adjustment to full
permanent resident status.39 There is no statutory quota limiting
the number of asylum grants.
However, if the Asylum Office does not find that a young
person qualifies for asylum, the child?s case is returned to the
immigration court for adjudication of the claim on a de novo basis
before an immigration judge. If the case is denied by the judge, the
young person may appeal to the Board of Immigration Appeals and
later to a federal circuit court of appeals.
https://cgrs.uchastings.edu/sites/default/files/CGRS_Child_Asylum_Advisory_331-2015_FINAL.pdf (laying out jurisdictional issues for children seeking asylum);
THE SAFE PASSAGE PROJECT, THE ASYLUM MANUAL: A STEP-BY-STEP GUIDE FOR
SAFE PASSAGE PROJECT PRO BONO ATTORNEYS 11?15 (2017),
https://www.safepassageproject.org/wp-content/uploads/2017/10/Safe-PassageProject-Asylum-Manual-v10.2017.pdf (providing background information
regarding asylum for children).
37. See APPLESEED, CHILDREN AT THE BORDER: THE SCREENING, PROTECTION,
AND REPATRIATION OF UNACCOMPANIED MEXICAN MINORS 1 (2011),
http://www.appleseednetwork.org/wp-content/uploads/2012/05/Children-At-TheBorder1.pdf (discussing ?unaccompanied Mexican children caught at or near the
border with little or no evaluation of the risks they faced upon return to Mexico?).
38. See INA ? 240, 8 U.S.C. ?1229(a) (discussing the removal proceedings
39. See INA ? 209(a)(1), 8 U.S.C. ? 1159(a)(1) (2012) (discussing procedures
for aliens who have been in the United States for over a year).
V. Prosecutorial Discretion and Deferred Action
While not expressly included in the INA, it is a long tradition
of the immigration agencies to allow youth to seek the end of
removal proceedings or stay removal orders as a matter of agency
prosecutorial discretion. While many people are familiar with the
2012 program known as Deferred Action for Childhood Arrivals
(DACA),40 discretion at a variety of stages in immigration
adjudication has been a common feature of agency consideration of
a child?s request for protection.41
In sum, there are myriad forms of protection for children. Most
adjudicated by the USCIS but the children?s cases are structured
as removal cases before the EOIR, so coordination, navigation,
redundancy, inefficiency, and delays seem obvious. In recent
months, the new Administration has added to the stress on this
complex web. Chaos is the result.
40. The USCIS website states that the information is no longer current,
however recent litigation has preserved the eligibility to renew DACA. See
Consideration of Deferred Action for Childhood Arrivals, U.S. CITIZENSHIP &
https://www.uscis.gov/archive/consideration-deferred-actionchildhood-arrivals-daca (last visited Sept. 20, 2018) (providing information about
DACA) (on file with the Washington and Lee Law Review); see also Deferred
Action for Childhood Arrivals: Response to January 2018 Preliminary Injunction,
U.S. CITIZENSHIP & IMMIGR. SERVICES, https://www.uscis.gov/humanitarian/
(last visited Sept. 20, 2018) (providing updated information on deferred action
requests) (on file with the Washington and Lee Law Review). As of August of
2018, there are at least six different law suits addressing the Trump
Administration?s ability to rescind the DACA program and litigation brought
challenging the Executive?s authority to create such a program. In one of these
suits, the federal district court ruled that the President?s termination of the
program was invalid. See NAACP v. Trump, 298 F. Supp. 3d 209, 245 (D.D.C.
2018) (rejecting termination of the program but staying the implementation of
the order for ninety days) and on August 17, 2018, the district court agreed to
stay its mandate on the rescission and allowing new application while the
government appeals its findings; however, the court?s order requiring DHS to
accept renewal applications became fully effective. Id. at 245?46.
41. For a comprehensive discussion of the role of discretion in immigration
matters, see generally SHOBA SIVAPRASAD WADHIA, BEYOND DEPORTATION: THE
ROLE OF PROSECUTORIAL DISCRETION IN IMMIGRATION CASES (2016).
VI. Agency Reactions to Increased Numbers of Child
As already noted, the increase in child arrivals is a worldwide
issue, but in 2014 the federal government began to respond more
formally to the dramatic increase in children arriving from the
Northern Triangle of Central America: El Salvador, Guatemala,
and Honduras. While the Obama Administration referred to the
movement of these children as a ?humanitarian crisis,? various
components of the federal government began to seek ways to slow
the arrivals and speed up the adjudication of cases. In theory, a
fast adjudication can help deter future flows of people if the main
assumption is that a significant number of the people arriving do
not have bona fide refugee or protection claims. Fast adjudication
and rejection and then return of the youth to the home country,
would potentially deter those who come to the United States in
hope of gaining many years of presence simply because the system
could not complete the adjudication of their case.
Thus, in an effort to increase adjudication speeds, the EOIR
announced in the summer of 2014 that all new unaccompanied
child cases would be a top priority and would have a first hearing
within twenty-one days of the commencement of the proceeding
measured by EOIR receipt of the NTA.42 To handle this directive,
both ICE prosecutors and court personnel had to alter docketing
patterns, reassign judges, and expand the number of people
scheduled for initial or master calendar hearings. The realignment
frequently meant significant postponement of other cases, some of
which might have been awaiting adjudication for years in busy
immigration courts. Almost immediately, most immigration judges
began to realize that the case files and even the children had not
caught up with the initiation of the hearings. People began to refer
to the specialized rushed hearings as the ?surge? docket. Advocates
across the country began to organize triage screenings and mass
42. See Memorandum from Judge Brian M. O?Leary, Chief Immigration
Judge of the Exec. Office of Immigration Rev. (Sept. 10, 2014) (prioritizing
detained cases) (on file with the Washington and Lee Law Review). Similarly, the
agency expedited the scheduling of the removal cases of parents arriving with
small children and required scheduling of these removal cases within
twenty-eight days. Id.
orientation programs to try to prepare people for the immigration
The purpose of the rushed hearings was not very clear from
the beginning. The vast majority of young people appeared without
legal representation and judges necessarily granted continuances
so that the child could find counsel at ?no expense to the
government.?43 Several organizations mounted legal challenges to
the long-standing refusal of the immigration courts to provide
appointed counsel even to indigent children.44 To help meet the
need for legal assistance, significant new pro bono projects were
launched and many people began to expand their private practice
to focus on the needs of children.
The Obama Administration, while unable to directly fund
legal representation for all children, did expand several programs
that for the first time provided some children with access to free
counsel. In an innovative approach, the EOIR partnered with the
Corporation for Community National Service and created the
Justice AmeriCorps program.45 With a very small allocation of
funds, this program found willing nonprofit organizations in
several states to host AmeriCorps fellows, both junior attorneys
43. See INA ? 292, 8 U.S.C. ? 1362 (2012) (guaranteeing a right of
representation but at ?no expense? to the government).
44. The ACLU of Southern California, along with several other
organizations, filed a lawsuit that was ultimately unsuccessful on procedural
grounds. See J.E.F.M. v. Lynch, 837 F.3d 1026, 1029 (9th Cir. 2016) (finding a
lack of subject matter jurisdiction in the district court to consider the right to
counsel due to the INA requirement of exhaustion of the removal and
administrative proceedings before seeking this type of judicial review). In later
litigation, a Ninth Circuit panel ruled that an unrepresented child who did have
his parent present had not established a due process right to appointed counsel.
See C.J.L.G. v. Sessions, 880 F.3d 1122, 1129 (9th Cir. 2018) (denying the petition
for appointed counsel). Litigation continues on these issues, and the challenges
have sought en banc review. The Ninth Circuit ordered the government to submit
written briefing in response to the en banc petition by March 26, 2018. See
C.J.L.G. v. Sessions, 880 F.3d 1122, 1151 (9th Cir. 2018) (requesting briefing).
45. See Justice Department and CNCS Announce $1.8 Million in Grants to
Enhance Immigration Court Proceedings and Provide Legal Assistance to
Unaccompanied Children, U.S. DEP?T OF JUSTICE (Sept. 12, 2014),
https://www.justice.gov/opa/pr/justice-department-and-cncs-announce-18-milliongrants-enhance-immigration-court-proceedings (last visited Sept. 20, 2018)
(announcing the Justice AmeriCorps program) (on file with the Washington and
Lee Law Review).
and paralegals who were able to provide direct representation to
young people under the age of sixteen at the time of arrival.46
Moreover, the HHS expanded funding for some limited legal
representation of children held in ORR detention. Still, the number
of children able to secure counsel continued to be a problem and
the significant number of children?s cases in the court
overwhelmed the free resources.
At the same time that the EOIR was expediting the first
hearings for unaccompanied children, the USCIS Asylum Office
similarly stated that it would put children?s filings as a top priority
and would typically try to schedule children for an asylum
interview within three weeks of receipt of the application.
Simultaneously, the Asylum Office detailed people to the
southwest border to conduct interviews of adults and adults with
small children inside detention centers. Consequently, the Asylum
Office soon saw a growing backlog in its outstanding workload.
Additionally, the already lengthy waiting periods for the
adjudication of an asylum application for those who affirmatively
filed and were not yet in removal proceedings grew even longer; in
some cases, the wait approached three to four years of delay.
While never formally documented, it appears that the Obama
Administration authorized funds to the government of Mexico in
an effort to increase Mexican interdiction of Central American
citizens and to increase internal immigration enforcement within
Mexico. Formally called Programma Frontero Sur, Mexico
reported in 2014 that it would expand enforcement on the southern
border with Guatemala. Ultimately, Mexico reported a 70%
increase in apprehensions the next year. Of these, over 18,000
children were deported by the Mexican government.47 But after
internal concerns about Mexico?s compliance with its own domestic
laws requiring protection of migrant children, the rates of removal
and interdiction decreased in the following years.48
By the winter of 2016, then-Director of the EOIR, Juan
Osuana, testified to the Senate Judiciary Committee that the
EOIR needed expanded appropriations to handle its growing
workload and a backlog of over 474,000 cases. He testified that
between May 1, 2014 and the end of January 2016, the EOIR
received 52,344 juveniles cases.49 He also announced the EOIR
would stop rushing the initial hearings for children within the first
twenty-one days and instead aim for first hearings between thirty
and ninety days.50
By the election in the fall of 2016, juvenile cases represented
over 12% of the workload of the some of the very busy immigration
courts.51 Moreover, of the 60,699 cases started in FY 2016, about
one-third were unrepresented.52 In FY 2017, another 54,036 cases
48. Human Rights Watch issued a lengthy report on the interdiction of
children in Mexico. See HUMAN RIGHTS WATCH, CLOSED DOORS: MEXICO?S FAILURE
TO PROTECT CENTRAL AMERICAN REFUGEE AND MIGRANT CHILDREN 41 n.118 (2016),
on Mexican refugees in America). The report included a discussion of U.S.
apprehensions falling by 22% as Mexican apprehensions increased by 70%. See
id. at n.118 (discussing the increase in unaccompanied children at the border in
2014). Politico also reported that Mexico is no longer willing to negotiate with the
United States about refusing asylum applicants who pass through Mexico due to
the Trump Administration?s demands that Mexico fund a new border wall. See
Ted Hesson, Trump Blows Asylum Deal, POLITICO (Apr. 19, 2018, 10:00 AM),
https://www.politico.com/newsletters/morning-shift/2018/04/19/trump-blowsasylum-deal-176430 (last visited Sept. 20, 2018) (on file with the Washington and
Lee Law Review).
49. See ?The Unaccompanied Alien Children Crisis: Does the Administration
Have a Plan to Stop the Border Surge and Adequately Monitor the Children?? to
Revise Docketing Practices Relating to Certain Priority Cases Before the S. Comm.
on the Judiciary, 114th Cong. (2016) (statement of Juan P. Osuna, Director,
Department of Justice?s Executive Office for Immigration Review) (addressing the
?unaccompanied child crisis?).
50. See Memorandum from Judge Brian M. O?Leary, Chief Immigration
Judge of the Exec. Office of Immigration Rev. (Feb. 3, 2016) (discussing changes
to enforcement hearings) (on file with the Washington and Lee Law Review).
51. I have regularly tracked the percentage of juvenile cases in the New York
Immigration Court, the largest immigration court in the United States. This data
point is based on my monitoring of the reported data.
52. See Juveniles?Immigration Court Deportation Proceedings, TRAC
IMMIGR., http://trac.syr.edu/phptools/immigration/juvenile/ (last visited Sept. 20,
2018) (tracking the number of unaccompanied juveniles at the border) (on file
begun and the percentage of children unrepresented increased to
approximately 70% of the children.53
Further, most children?s cases were resolved not by
adjudications within the immigration court itself, but because ICE
agreed to a closure of the case, either because relief was available
to the child before USCIS or due to an exercise of prosecutorial
discretion. Immigration courts did not reach the goal of speedy
adjudication. The average immigration case required 957 days for
completion in the fall of 2016.54
At this same time, the USCIS implemented a centralization of
the adjudication of children?s petitions for Special Immigrant
Juvenile Status (SIJS).55 These petitions had been filed at regional
USCIS service centers or in the specific district office where a
young person might reside. The centralization in a new National
Benefits Center in Missouri soon resulted in a significant shift in
the criteria and adjudication of the SIJS petitions. The USCIS
adjudicators, who are not required to be attorneys, began to return
petitions to children and counsel (if represented), rejecting state
court juvenile orders making the required ?special findings? or
seeking additional evidence to verify and corroborate the state
with the Washington and Lee Law Review).
53. Id.; see also Monica Cordero, Clarisa Shocin & Annie Nova, Backlog in
New York Immigration Court Leaves Most Undocumented Children Without
Lawyers, WNYC NEWS (Nov. 27, 2017),
visited Sept. 20, 2018) (describing a delay in ?more than 88,000 [cases] involving
54. See Immigration Court Processing Time by Outcome by Removals,
Voluntary Departures, Terminations, Relief, Administrative Closures, TRAC
IMMIGRATION, http://trac.syr.edu/phptools/immigration/court_backlog/court_ proctime_
outcome.php (last updated June 2018) (last visited Sept. 20, 2018) (listing the
amount of time it took to complete immigration cases in Los Angeles) (on file with
the Washington and Lee Law Review). In 2017 the average was 930 days. Id. This
data does not segregate juvenile cases from those of adults, but it may be that
juvenile cases would similarly require many days and months, primarily because
the child is seeking relief in other fora such as the Asylum Office or before USCIS.
55. See USCIS to Centralize Processing of Special Immigrant Juvenile Cases,
U.S. CITIZENSHIP & IMMGR. SERVICES (Nov. 1, 2016), https://www.uscis.gov/news/
alerts/uscis-centralize-processing-special-immigrant-juvenile-cases (last updated
Nov. 1, 2016) (last visited Sept. 20, 2018) (providing information about the
centralization of the SIJ program) (on file with the Washington and Lee Law
court rulings. By statute the USCIS is required to adjudicate this
particular petition within 180 days, but national advocates began
to report delays in adjudication and many reported pending
petitions of more than nine to twelve months. Most importantly,
and relevant to this Article, the USCIS began to apply standards
found in a new guidance document known as the Adjudicator?s
Policy Manual.56 Despite neither change in existing regulations
nor formal promulgation of the 2011 proposed amendments to the
existing regulations, the USCIS began to return and deny petitions
relying primarily on this guidance document and its new standards
for adjudication. While it is beyond the scope of this Article to fully
articulate all the problems with changing adjudication standards
by policy or guidance documents, it is a central tenant of
administrative law that agencies must usually create new ?rules?
through formal notice and comment rulemaking or, in some
situations, by agency adjudication.57 New obligations created
through guidance documents are vulnerable to later judicial
challenge.58 While this consolidation of adjudication began in the
fall of 2016, the USCIS has continued to reevaluate standards used
to adjudicate SIJS petitions and recently a USCIS counsel
memorandum confirmed that the agency was revisiting and
investigating prior adjudicatory standards.59
56. See Part J?Special Immigrant Juveniles, U.S. CITIZENSHIP & IMMIGR.
https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume6PartJ-Chapter1.html (last visited Sept. 20, 2018) (detailing the purpose and
background of the manual) (on file with the Washington and Lee Law Review).
The policy manual was not promulgated through publication in the Federal
Register and does not formally amend the published regulations found in 8 C.F.R.
? 204.11. However, many of those regulations have been superseded by
subsequent statutory amendments and cannot be relied upon in their entirety.
See SAFE PASSAGE PROJECT, supra note 28, at 1 n.1 (providing ?information and
instructions for each stage of the multiple phases of a Special Immigrant Juvenile
Status (SIJS) case?).
57. See 5 U.S.C. ?? 551(4), 553 (2012) (defining ?rule? and setting forth notice
and comment Rulemaking procedures).
58. Generally, rules or procedures that create new binding obligations are
legislative rules requiring notice and comment. See Jill E. Family, Administrative
Law Through the Lens of Immigration Law, 64 ADMIN. L. REV. 565, 566 (2012)
(introducing the topic of non-legislative rules compared to rules that require
notice and comment rulemaking).
59. See Liz Robins, A Rule is Changed for Young Immigrants, and Green
Card Hopes Fade, N.Y. TIMES, July 23, 2018, at A22 (noting that, despite the
With the adjudication of SIJS petitions slowing down, the
delays soon directly impacted the immigration courts. ICE and
many immigration judges were reluctant to terminate a
deportation proceeding if the USCIS had not yet completed
adjudication of the young person?s eligibility for SIJS. Accordingly,
the typical response was for the immigration judge to grant a
further continuance, not a closure, keeping the already crowded
dockets full of cases where no action might be necessary if USCIS
approved the petition. After the new Administration came to
power, advocates reported direct opposition to these continuances
by ICE counsel. Typically, the government attorney would argue
that ?relief was speculative? and ask the judge to go forward on
finding the young person removable. Advocates for the children
would usually argue for additional time or make the argument that
even if the court did go forward and order removal, such action
would force the advocate for the child to either seek asylum or
appeal to the Board of Immigration Appeals, or if no further relief
was available, later necessitate a complex motion to reopen once
the USCIS would grant the petition. The burden on the
immigration judges and the waste of court time is obvious.
While these details in procedure may seem complex or
obscure, the cumulative impact was to use many more hours of
court, prosecutor, and defense advocates? time. And, of course, for
children who did not have counsel, understanding the technical
arguments or how to preserve eligibility was likely impossible.
While each case is unique, the data appears to show that a child
who is represented is able to complete the removal case with a
positive outcome six times more frequently than the unrepresented
child.60 At the same time, the EOIR began to report an increase in
headline, the change is not through a ?rule? but policy guidance interpretations
and adjudications). The growing number of denials of SIJS petitions was also
explored by reporters at Politico. See Ted Hesson, Travel Ban at SCOTUS,
POLITICO (Apr. 25, 2018, 10:00 AM), https://www.politico.com/newsletters/
morning-shift/2018/04/25/travel-ban-at-scotus-182935 (last visited Sept. 20,
2018) (discussing updates in employment and immigration policy) (on file with
the Washington and Lee Law Review). This article quotes the USCIS General
Counsel as stating that the agency believes some state courts lack the ability to
return a child to the custody of their parent after age eighteen and that this is a
legal basis to refuse eligibility for SIJS. Id.
60. See Children in Immigration Court: Over 95 Percent Represented by an
children failing to appear and thus an increase in in absentia
orders of removal. While some immigration judges were concerned
about ordering a young person removed when evidence of actual
service of the NTA was not provided, many judges did issue such
orders. And the BIA ruled that an immigration judge should accept
as proof of service the address supplied by the ORR to ICE and the
EOIR as sufficient to meet the agency requirements before an in
absentia order of removal could be issued.61
In short, the change in scheduling and adjudications before
the EOIR, the Asylum Office, and the USCIS all combined to slow
down the completion of removal cases. Perhaps seeing no gain in
completing cases and no advantage to the rapid scheduling, shortly
after the inauguration, the new Acting Chief Immigration Judge,
Mary Beth Keller, issued an agency memorandum rescinding the
2014 and 2016 prioritization of children?s cases.62 Instead, the
memorandum instructed court administrators to schedule
Attorney Appear in Court, AM. IMMIG. COUNCIL (May 16, 2016),
https://www.americanimmigrationcouncil.org/research/children-immigrationcourt-over-95-percent-represented-attorney-appear-court (last visited Sept. 20,
2018) (detailing the obstacles children who must represent themselves in the
immigration court system face) (on file with the Washington and Lee Law
Review); see also Fernanda Santos, It?s Children Against Federal Lawyers in
Immigration Court, N.Y. TIMES, at A10 (Aug. 20, 2016),
https://www.nytimes.com/2016/08/21/us/in-immigration-court-children-mustserve-as-their-own-lawyers.html (last visited Sept. 20, 2018) (?Every week in
immigration courts around the country, thousands of children act as their own
lawyers, pleading for asylum or other type of relief in a legal system they do not
understand.?) (on file with the Washington and Lee Law Review).
61. The Attorney General certified this case to himself on his own motion,
vacated the ruling of the BIA and requested amici briefing in 27 I & N Dec. 187
(A.G. 2018). Despite multiple opposing amici briefs in this pro se case, the
Attorney General ruled that unless DHS consents, an immigration judge has no
authority to use ?administrative closure? in immigration cases. See Matter of
Castro-Tum, 27 I. & N. Dec. 271, 279 (A.G. 2018) (holding that ?immigration
judges and the Board do not have the general authority to suspend indefinitely
immigration proceeding by administrative closure?).
62. See Memorandum from Mary Beth Kelly, Chief Immigration Judge, to
all Immigration Judges (Jan. 31, 2017), https://www.justice.gov/sites/default/files/
pages/attachments/2017/01/31/caseprocessingpriorities.pdf (rescinding earlier
prioritization of cases involving children in the immigration courts) (on file with
the Washington and Lee Law Review).
children?s cases within ninety days of receipt and to no longer
prioritize adult with children cases at all.63
In 2017, the Asylum Office continued to prioritize juvenile
filings, and unlike the immigration court, it did not stop the
prioritization. Still, backlogs grew and, for a variety of reasons, the
workload of the asylum offices grew. The agency reported in
January 2018 that more than 311,000 applications were pending
nationwide, and the agency formally ended the prioritization of
Contributing to the delay in the completions before the
Asylum Office (and therefore a slow return of the case to the
immigration court if the application is not granted) was a new
administration directive that directed the Asylum Office to
question children about whether their parents had paid smugglers
to bring them to the United States. In some situations, this made
the adults who were caring for children afraid to attend the asylum
Further, many divisions of DHS began to investigate whether
any of the applicants were involved in gang activity in the country
of origin or within the United States. Children began to be
questioned, not only by asylum officers, but in some situations
were referred to special units within ICE where they were asked
about whether they were in a gang or ?knew anyone in a gang.? In
early summer of 2017, ICE rearrested hundreds of youth (the exact
number is unclear) and detained these youth in secure ORR or ICE
facilities. In many of these cases, ICE alleged they were involved
in gang activity or associated with gang members. In July of 2017,
the ACLU of Northern California filed an action on behalf of A.H.,
a young man caught up in the ICE round up known as Operation
Matador.65 He was taken from his mother?s home in Long Island,
64. See Press Release, U.S. Citizenship and Immigr. Services, USCIS to
Take Action to Address Asylum Backlog (Jan. 31, 2018) (?Citizenship and
Immigration Services (USCIS) announced today that the agency will schedule
asylum interviews for recent applications ahead of older filings, in an attempt to
stem the growth of the agency?s asylum backlog.?). For further discussion, see
infra note 69 and accompanying text (providing insight on the number of refugee
children arriving in the United States).
65. See Saravia v. Sessions, 280 F. Supp. 3d 1168, 1202 (N.D. Cal. 2017)
(certifying the class and granting a partial injunction). This order subsequently
New York without notice to her or to his counsel, flown to
California, and locked into a secure facility.66 It took weeks of
litigation before A.H. was first transferred to a New York juvenile
detention facility managed by ORR and ultimately ordered
released by an immigration judge nearly six months after his
original arrest.67 But without the litigation, it is unclear if the
hearing before the immigration judge would have ever taken place.
This litigation, known by the last name of his parent, Saravia, has
resulted in hearings for many of the detained youth and, at least
of those cases known to me, all but one has resulted in a finding
that the young person is not a danger to himself or others and the
ORR was ordered to release the young person.68
At least in the beginning of FY 2018, it appeared that the rate
of children arriving seemed to decrease. In the first half of FY 2018,
the CBP reported that between 3,000 and 4,000 children have been
apprehended each month?a decrease of 24% based on the same
time period in 2017.69 Still, if apprehensions continue to follow
created a process of custody review hearings called Saravia hearings in the
immigration courts. See Operator Matador Nets 39 MS-13 in Last 30 Days, U.S.
CITIZENSHIP & IMMIGR. SERVICES (June 14, 2017), https://www.ice.gov/news/
releases/operation-matador-nets-39-ms-13-arrests-last-30-days (last visited Sept.
20, 2018) (detailing the launch of the Operation Matador) (on file with the
Washington and Lee Law Review). The regulations proposed by HHS on
September 7, 2018 would eliminate immigration judge authority to review HHS
custodial decisions as ordered in Saravia and required under the Flores
settlement. See 83 Fed. Reg. 45,406, 45,509 (outlining the new regulations).
Instead the HHS proposes to create hearing officers within the HHS. See id.
(codified at 45 C.F.R. 410.810). This proposal is particularly troubling as it
substitutes HHS administrators for training hearing officers in the immigration
Saravia, 280 F. Supp. 3d at 1179.
67. Id. at 1180.
68. While I did not represent any young person in these hearings, I organized
trainings and aided advocates with a variety of organizations to prepare for the
69. See U.S. Border Patrol Southwest Border Apprehensions by Sector
FY2018: Southwest Border Unaccompanied Alien Children (0?17 yr. old)
Apprehensions, U.S. CUSTOMS & BORDER PROT., https://www.cbp.gov/
newsroom/stats/usbp-sw-border-apprehensions (last updated July 5, 2018) (last
visited Sept. 20, 2018) (listing the number of unaccompanied alien children by
sector) (on file with the Washington and Lee Law Review). The apprehension of
family units, parents traveling with young children, was down by over 34% during
the first six months of the fiscal year. Id. As this article was finalized, the CBP
prior seasonal patterns, this could mean the arrival of over 42,000
children by the end of the year. This number would exceed total
apprehensions in FY 2017. Thus, the pressure on the agencies to
increase adjudication rates and to complete cases grows apace.
Perhaps due to this continued arrival of children or perhaps
for other related reasons, the EOIR once again addressed priorities
for juvenile cases and in December 2017 rescinded prior directives
about conducting children?s hearings and reduced many of the
specific instructions to the immigration judge about the child
sensitive approach.70 In New York and other parts of the country,
long standing segregation of children?s cases from those of the
regular adult population ended and it was not unusual to find new
juvenile cases assigned to judges who had never previously heard
juvenile cases. Further, the Attorney General had formally ended
the Justice AmeriCorps program and by the winter of 2018,
participants in that program no longer received docket information
allowing them to identify and prepare for new unaccompanied
juveniles scheduled for first hearings.
Similarly, in February 2018, the Asylum Office officially
changed asylum adjudication, even for unaccompanied children?s
cases to a formal ?First In First Out? (FIFO) system.71 FIFO means
that new juvenile filings should be scheduled for hearing within
reversed its earlier predictions and reported record apprehensions and an
increase in July. Id. Now the agency is reporting a 19% increase in children
apprehensions and a 27% increase in family apprehensions. Id.
70. See Memorandum from MaryBeth Keller, Chief Immigration Judge, to
All Immigration Judges (Dec. 20, 2017) (providing guidelines for immigration
cases involving children) (on file with the Washington and Lee Law Review). For
a news story comparing the prior and contemporary procedures, see Mica
Rosenberg, Exclusive: U.S. Memo Weakens Guidelines for Protecting Immigrant
Children in Court, REUTERS (Dec. 22, 2017, 10:15 PM),
BN1EH037 (last visited Sept. 20, 2018) (?A Dec. 20 memo, issued by the Executive
Office for Immigration Review (EOIR) replaces 2007 guidelines, spelling out
policies and procedures judges should follow in dealing with children who crossed
the border illegally alone and face possible deportation.?) (on file with the
Washington and Lee Law Review).
71. See Affirmative Asylum Interview Scheduling, U.S. CITIZENSHIP &
IMMIGR. SERVICES, https://www.uscis.gov/humanitarian/refugees-asylum/asylum/
affirmative-asylum-interview-scheduling (last updated Jan. 26, 2018) (last
visited Sept. 20, 2018) (prioritizing asylum applications that are the most recently
filed) (on file with the Washington and Lee Law Review).
twenty-one days, but those cases already waiting in the system will
have to wait for agency resources to be adequate to schedule the
asylum interview. This will potentially mean that some cases
already pending in the immigration courts will be stuck, awaiting
asylum adjudication before USCIS and the judge unwilling or
unable over ICE objection to formally administratively close or
terminate the removal hearing.
Another aspect of immigration adjudication is, of course,
agency decision making. Cases may arise individually through the
immigration courts and then proceed on an appeal to the BIA, the
administrative appeal tribunal within the DOJ. This tribunal is
created by regulation and controlled by the Attorney General as
head of the DOJ. In the spring of 2018, Attorney General Sessions
reached into the pool of cases before the BIA in unprecedented
ways, certifying several pro se cases?including at least one
involving a juvenile?to himself for additional review and
reconsideration. What is most unusual in these sua sponte
certifications is that many of the cases involved unpublished BIA
opinions; although the Attorney General requested amici briefing
on issues as he framed them, the private bar had no immediate
access to the underlying cases. Calls to the EOIR and email
requests to General Counsel were referred to the EOIR Director.
The certifications at first seemed to concern single cases, but on
further inquiry parties learned that the Attorney General had
gathered several similar cases together and combined them into a
single request for amici briefs.
In one case, I personally called and asked for the agency to at
least tell me the name of the DHS ICE counsel or the immigration
court from which the appeal originated so that briefing could be
prepared with the appropriate federal circuit court of appeals
law.72 No response came from the queries to the EOIR. Eventually,
advocates were able to spread the word about the certifications and
72. The BIA and other immigration agencies follow the doctrine of
?nonacquiesence,? meaning that the adjudicators follow the law of the circuit that
governs the jurisdiction of the removal hearing or where an individual resides.
See Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal
Administrative Agencies, 98 YALE L.J. 679, 694?712 (1989) (describing the
nonacquuiescence practices of the SSA and the NLRB).
in most of the cases, before amici briefs were prepared,73 the
underlying cases could be identified.
To people unfamiliar with immigration law, the Attorney
General?s ability to select and review appellate administrative
positions may seem improper. It is a long-standing tradition within
the BIA but has been used rather infrequently.74 Professor
73. Of additional concern in these requests for amici briefs was the very
short time period for preparation and submission of briefs, frequently on complex
issues of substantive asylum law or immigration procedure. Amici had to request
extensions and at times the extensions were not ruled upon until the very
deadline was upon the parties. See, e.g., Matter of L-A-B-R, 27 I. & N. Dec 245,
245 (A.G. 2018) (asking for briefing on the power of an immigration judge to grant
continuances, a provision already in regulation at 8 C.F.R. ? 1003.29). The
current regulation allows the judge to exercise discretion and provides for
continuances for ?good cause.? Id. On August 16, 2018, the Attorney General ruled
in Matter of L-A-B-R that immigration judges must issue written decisions in
granting continuances and must carefully assess whether a delay due to visa
adjudication or availability is so long that a continuance is unwarranted. See
Matter of L-A-B-R, I. & N. Dec. 405, 405 (A.G. 2018). The implications of this
decision on the workload of the immigration courts and individual judges is
already of concern. Twenty former judges signed a statement critiquing the
decision as imposing a significant burden on the judges and potentially
interfering with the judge?s ability to perform his or her duties neutrally. See
Jeffrey S. Chase, Statement of Former Immigration Judges and BIA Members in
Response to Matter of L-A-B-R, OPINIONS / ANALYSIS ON IMMIGRATION LAW BLOG,
https://www.jeffreyschase.com/blog/2018/8/17/statement-of-former-immigrationjudges-and-bia-members-in-response-to-matter-of-l-a-b-r- (last visited Sept. 20,
2018) (expressing concern over the ?Attorney General?s latest blow to judicial
independence?) (on file with the Washington and Lee Law Review); see also Letter
from Widener U., to Jeff Sessions, Attorney Gen. (Aug. 14, 2018) (critiquing new
performance quotas) (on file with the Washington and Lee Law Review).
74. Typically, only one or two cases in four years would be subjected to
Attorney General certification, and usually those cases involved complex issues
of substantive law interpretation long debated and where splits had arisen
amongst the various federal circuit courts of appeal. See, e.g., Matter of Cristoval
Silva-Trevino, 24 I. & N. Dec. 687, 709 (A.G. 2008) (certifying the case by Attorney
General Mukasey), rev?d, 742 F.3d. 197 (5th Cir. 2014) (rejecting the Attorney
General?s approach to interpreting criminal convictions as involving ?moral
turpitude?), vacated, OFFICE OF THE ATTORNEY GENERAL, IN RE: MATTER OF
CRISTOVAL SILVIA-TREVINO (2015),
http://www.immigrantdefenseproject.org/wpcontent/uploads/2011/03/AG-Order-Vacating-Silva-Trevino-2015.pdf; see also
Matter of R-A-, 24 I. & N. Dec. 629, 632 (BIA 2008) (remanding the matter for
Board reconsideration following certification by Attorney General Janet Reno
and three subsequent Attorney General certifications). The case has a
complicated history and after 14 years ultimately resulted in a grant of asylum
for a woman who was a victim of domestic violence. For a detailed history of the
case, see Matter of R-A, U.C. HASTINGS CTR. FOR GENDER & REFUGEE STUD.,
Margaret Taylor argues that the ability to select cases and remove
them from the BIA adjudication process is particularly harmful to
the appearance of neutrality in agency adjudication and has been
used as a last minute tool to upend precedent.75 What is
particularly troubling in the rapid number of certifications issued
in the winter of 2018 is that many are unusual in form and content,
and many are focused on purely procedural aspects of the powers
of the immigration judges to control the administration of cases
before them. Jeff Chase, former immigration judge and staff
attorney at the BIA, has also critiqued the recent spate of Attorney
General Certifications in his blog and explained that the process
was used very sparingly under both Eric Holder and Loretta
Indeed, the Attorney General has openly criticized the
performance of the immigration courts and recently taken several
steps to try to increase the speed with which cases are completed.
First, in March of 2018 the EOIR announced that all judges would
be subjected to performance evaluations that required the judge to
meet an average of 700 decisions per year with 95% of all merits
hearings concluding in one sitting.77 Further, performance would
https://cgrs.uchastings.edu/our-work/matter-r (last visited Sept. 20, 2018)
(discussing the procedural posture of the case) (on file with the Washington and
Lee Law Review).
75. See Margaret H. Taylor, Midnight Agency Adjudication: Attorney
General Review of Board of Immigration Appeals Decisions, 102 IOWA L. REV.
ONLINE 18, 19 (2016) (discussing decisions in controversial BIA cases).
76. See Chase, supra note 73 (questioning the appropriateness of a large
number of class certifications by Attorney General Sessions) (on file with the
Washington and Lee Law Review). In this blog, retired Judge Chase also
mentions why the process is perhaps unnecessary today and is a relic of a time
when the BIA lacked professional staff. Id.
77. See NAIJ, IMPOSING QUOTAS ON IMMIGRATION JUDGES WILL EXACERBATE
THE CASE BACKLOG AT IMMIGRATION COURTS 1 (2018),
rbate_the_Court_Backlog_1-31-18._.pdf (?The imposition of quotas is not the right
solution to this problem and will contribute to increasing the backlog.?); see also
Hearing on Strengthening and Reforming America?s Immigration Court Before the
Subcomm. on Border Sec. & Immigr. Of the Sen. Comm. on the Judiciary, 115th
Cong. 2 (2018),
https://www.judiciary.senate.gov/imo/media/doc/04-1818%20Tabaddor %20Testimony.pdf (statement of Ashley Tabaddor, President,
National Association of Immigration Judges) (?I am here today to discuss urgently
needed Immigration Court Reform and the unprecedented challenges facing the
be considered below acceptable if the judge had a rate of reversal
higher than 15%. While many judges may be able to complete a
large number of cases quickly, those are usually in the context of
courts where the respondents are recent arrivals and do not qualify
for any relief based on humanitarian grounds nor have the
requisite length of residence or family ties that allow them to apply
for limited forms of discretionary relief. Assuming an immigration
judge works forty-eight weeks a year and sits on the bench at least
four days a week, completing 700 cases would require nearly five
merits cases each day.78 That pace would leave little time for
motion practice, research, and considerations of country conditions
or allowing parties much time to present witnesses or live
testimony in merits hearings. Bond hearings, which may have to
be conducted on an expedited basis, do not count toward case
completions in the new standards.79
Second, as of April 26, 2018, as I complete this Article,
Attorney General Sessions had originally announced a suspension
of all of the ?Know Your Rights? Legal Orientation Programs
managed by the DOJ within immigration detention centers.
Members of Congress and EOIR support these programs for
educating individuals about their options, their lack of any relief,
and reducing overall detention costs by eliminating people seeking
continuances because they were under a misimpression that they
could qualify for relief. However, on April 26, 2018, Attorney
General Sessions?s announced that the programs would remain in
Immigration Courts and Immigration Judges.?).
78. Judges typically have one day for preparation and office work and hear
master calendar or initial scheduling hearings several days a month. Under this
schedule, as many as sixty cases may be scheduled for a single morning. Merits
or trial hearings for cases where the individual is contesting removal or seeking
asylum or other forms of relief usually require several hours of argument and
listening to witnesses. Here, I have assumed that there are 144 days of merits
hearing time alone divided into 700 cases to reach 4.86 cases each merit sitting.
79. See U.S. DEP?T OF JUST., MANAGEMENT OF IMMIGRATION CASES AND
APPEALS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW ii n.3 (2012),
https://oig.justice.gov/reports/2012/e1301.pdf (??Receipts? are defined by EOIR as
the total number of proceedings, bond redeterminations, and motions to reopen
or reconsider received by the immigration courts during a reporting period. Our
review included only proceedings receipts.?).
place but that he was ordering an assessment of their overall
One of the odd characteristics of Attorney General Sessions?
critiques and public statements about the operation of the
immigration courts is that in tone and content they appear focused
on immigration law enforcement and not on neutral adjudication.
For example, in the fall of 2017 Attorney General Sessions stated,
?[W]e are coming for you. . . . Securing our border, both through a
physical wall and with the brave men and women of the border
patrol and restoring an orderly and lawful system of immigration
is part and parcel of this anti-gang strategy.?81 The job of
prosecuting people for removal is delegated by the INA to the DHS,
not the Attorney General. And while the DOJ continues to have
jurisdiction to use other mechanisms of enforcement such as
criminal prosecutions, the tone of the remarks weakens the
independence of the EOIR and raises questions about an ex parte
relationship between the DHS and EOIR. It definitely raises
questions about the ability of Attorney General Sessions to serve
in an adjudicator?s role.82
80. See Maria Sacchetti, Sessions Backtracks on Pausing Legal Aid for
Immigrants Facing Deportation, WASH. POST (Apr. 25, 2018),
visited Sept. 20, 2018) (discussing Sessions?s decision not to suspend a legal-aid
program for detained immigrants while it undergoes review) (on file with the
Washington and Lee Law Review).
81. See Jeff Sessions, Attorney Gen., Remarks to the Federal Law
Enforcement in Boston about Transactional Criminal Organizations (Sept. 21,
2017). To be fair, some of his remarks are addressed to other division of the DOJ
and concern criminal law enforcement, but when he extends to a discussion of
DHS practice, it makes it difficult to see how he can be unbiased as the chief
adjudicator reviewing decisions of the EOIR. It was also Sessions who announced
the end of DACA, a program solely administered by the DHS. See Theresa Seiger,
Full Transcript: Session Announces End to DACA Immigration Program, WOHIO
(Sept. 5, 2017),
(last visited Sept. 20, 2018) (providing information regarding Sessions? decision
not to end DACA) (on file with the Washington and Lee Law Review).
82. The BIA has stated that the standard for judicial recusal is whether
there is evidence of bias in extrajudicial statements. See Matter of Exame, 18 I.
& N. Dec. 303, 306 (BIA 1982) (articulating the standard for judicial review due
to bias). This brief raises concerns that the Attorney General?s many statements
So, Mr. Sessions has challenged the operations of the
immigration courts? governing procedures. While the
Administrative Procedure Act does provide some exceptions for
procedural rules from notice and comment rulemaking, several of
the cases Mr. Sessions certified to himself would change
regulations that were promulgated after full compliance with
notice and comment rulemaking. The manner of the rushed attack
on the court operations, rather than a more deliberate use of
administrative procedure, is likely to make further federal
litigation inevitable and the manner of the DOJ actions more
vulnerable to judicial intervention as running afoul of APA
VII. In Search of a Best Practice
A. A System that Balances Enforcement and Deterrence of
Smuggling and Fraud with Fairness and Access to Justice
The main goal of this Article has been to demonstrate that the
current multi-headed hydra of agencies and procedures used to
adjudicate the claims of protection for immigrant children is
woefully complex, inefficient, and responsible for bureaucratic
hurdles that impede fairness. While recent administrative leaders
have reprioritized the processing of children?s cases, sometimes
rushing them forward, other times pushing them aside, the main
indicate that he may not be able to act as an impartial adjudicator. See generally
Brief for American Immigration Council as Amici Curiae Supporting Respondent,
In re Reynaldo Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018),
atter_of_castro-tum_amicus_brief.pdf. Further Canon 3 of judicial ethics for
federal courts requires a judicial officer to act impartially. See CODE OF CONDUCT
FOR UNITED STATES JUDGES CANON 3(A)(6) (U.S. Courts 2014) (?A judge should not
make public comment on the merits of a matter pending or impending in any
court.?). As explained earlier, in this capacity the Attorney General is acting as
the chief adjudicator within the Department of Justice.
83. The EOIR proceedings are, in part, exempt from some of the adjudication
requirements of the APA, but the rules promulgated by the agency are subject to
the rulemaking provisions of the APA. See Ardestani v. INS, 502 U.S. 129, 134
(1991) (holding that the INA exempts the hearing procedures from the APA
requirements found in ?? 556 and 557).
result is we lack a coherent and effective adjudication scheme.
While greater coordination amongst the agencies could potentially
lead to clarity and improvements for both the systems and the
children within it, that coordination has never been demonstrated
and in recent years is more highly fragmented than ever.84 Even
for those in government who might want to deter children from
reaching the United States or who do not believe that the majority
of children fleeing violence are qualified for refugee protection, the
current system is not providing an efficient adjudicatory
mechanism that might resolve claims without years of delay. Thus,
no matter your view of the current population of children seeking
protection, all may agree we need administrative coherence and a
new architecture for adjudication. What we do not need is more
battles over chaotic process. We are better served by turning away
from tinkering on the edges of the adjudication.
B. Characteristics of a Better Model for Adjudication
In the space allowed, I can only sketch out essential
characteristics of a better model for administrative adjudication.
As this Article is being written, the UN is convening meetings
around the world and discussing new compacts on the treatment
of refugees and is paying specific and careful attention to the needs
of children.85 But given the substantive protections already
possible for children, I make the following recommendations.
84. For a detailed and thoughtful analysis of ways to improve the existing
system, see generally JENNIFER NAGDA & MARIA WOTJEN, FRAMEWORK FOR
CONSIDERING THE BEST INTERESTS OF UNACCOMPANIED CHILDREN (2016),
85. See Global Compact for Migration, U.N. REFUGEES AND MIGRANTS,
https://refugeesmigrants.un.org/migration-compact (last visited Sept. 20, 2018)
(?The global compact for migration will be the first, intergovernmentally
negotiated agreement, prepared under the auspices of the United Nations, to
cover all dimensions of international migration in a holistic and comprehensive
manner.?) (on file with the Washington and Lee Law Review).
1. Do Not Place All Apprehended Children Into Detention
While the federal government has a legitimate concern for the
immediate welfare of unaccompanied children crossing the U.S.
border or seeking admission at a port of entry, detention is the last
resort mechanism. Federal custody of children should be brief and
handled by an agency that has no role in the enforcement of
immigration laws. While the current model uses the HHS, the lack
of counsel and advocates for the children held in HHS custody and
the lack of a clear mechanism to secure release from detention has,
over time, lessened protections for children and lengthened
detention for many.86 If a child cannot be released to licensed state
agencies or relatives within a brief period of time, the government
must find appropriate settings where children can have medical
and psychological support in an environment that is the least
restrictive of fundamental liberties. At the current time, many of
the young people seeking to come to the United States already have
close family ties and relatives within the United States, and
regardless of the status of these individuals, the child should be
released as soon as possible. The long-term costs and harms of
detention are so high that detention cannot be further justified.
2. Do Not Place Children in Removal Proceedings?At Least
Teeing up the removal mechanism requires that ICE and the
EOIR shift priorities to the juvenile cases and ignores the
possibility that most of the children might be able to secure
immigration status without regard to the removal process. While
DHS could always reserve the possibility of initiating removal for
those children who do not have a path to status or who prove truly
dangerous to the welfare of the people of the United States,87 there
is no need to start with removal. Instead, there should be one
86. See supra notes 65?68 and accompanying text (discussing the Saravia
87. Most juvenile convictions do not qualify as removable offenses. This
acknowledgment that some children could be dangerous is not meant to justify
wide scale deportations. If the children were a danger to themselves or others, the
best approach would be to refer the children to the state juvenile justice system
rather than trying to create an entirely separate federal system.
component of the USCIS that is specially staffed, trained, and
empowered to adjudicate all of the possible remedies or protection
needs of children. This division could be carved out of the existing
Asylum Office or the units within USCIS that handle
humanitarian visas such as those for victims of trafficking or
3. Adjudication Should be Conducted in a Manner Appropriate to the Age and Mental Health of the Applicant Child
Administrative efficiency might suggest centralized filings of
all children?s visa petitions, but if there is no appointed counsel
and no ability to conduct free medical or mental health
assessments, the procedural barriers may negate the benefits of
centralization. With appropriate appointed advocates for children
and the ability of the public to request and seek assistance, many
children may be able to avoid exploitation that can come from a
lack of understanding of the legal options. Adjudication models and
evidentiary requirements should be adapted to the best practices
in evaluating children, not a system roughly hewn from models of
adjudication designed for adults or an adversarial system.
4. Be Transparent and Compliant with the Rule of Law
For far too long, too many of the rules, procedures, and
decisions in children?s cases have not been generally available to
the public. There are few reported federal court decisions setting
for the standards for children seeking asylum. The AAO and
USCIS should work to identify more precedent decision specifically
for children?s cases and ensure that the adjudications are
consistent. While all agencies struggle with notice and comment
rulemaking, the need for transparency and participation from the
advocacy community, is more critical than ever as the number of
children grow. Published rules can help guide advocates and
adjudicators and provide a platform for judicial review to
determine if agency adjudication is arbitrary or capricious. The
failure to publish the SIJS rules after a 2008 statutory change is a
shameful abandonment of a duty to the most vulnerable.88 But
more rulemaking in all of the areas of adjudication would provide
useful guidance, increase consistency, and clarify areas where
case-by-case adjudication may be more appropriate.
While the Trump Administration has demonstrated a
penchant for irregular and erratic administrative action, it is not
the first administration to struggle with adapting the complex
interaction of child protection law, immigration law, and court
procedures to find the right balance between fairness, efficiency,
and accuracy. Perhaps the real fault lies with Congress. In 2008
Congress took a careful and measured step to officially recognize
that the law needed to provide some protections for unaccompanied
children as part of the TVPRA. But this is not enough.
Today it is clear that there has been a failure to fully think
through and integrate the operation of the many divisions of DHS
and that the operations of the Office of Refugee Resettlement are
far too makeshift. It is an overgrown patchwork of overlapping
jurisdictions with disparate missions. Every aspect of the
administration of justice here is showing the strain. There are
growing inequities in finding representation, growing numbers of
children again appearing at our border, and enormous backlogs in
adjudication and re-adjudication due to agency lack of clarity and
coherence, and even rapid and retroactive restrictive
interpretations in the substantive law.
Perhaps rather than trying to tinker at the edges with rough
justice or obstacles to fairness in the administrative procedure, we
need a coherent and well-designed process. Congress should invest
in and guide the development of a new integrated process after
deep consultation with advocates and experts in design and
operation of juvenile justice systems, as well as careful assessment
of the views of the myriad of adjudicators each with distinct
institutional interests. And while administrative dysfunction is
not limited to immigration law, here the harm is too great.
88. Proposed rules were promulgated in 2011. Ten years have passed since
the amendment of the SIJS statute by the TVPRA in 2008.
Vulnerable children are caught in the maelstrom of the
administrative chaos. We can, we must, do better.
A.? Family Petitions....................................................... 1295 ?
IV. Special Immigrant Juvenile Status (SIJS ) ................... 1296 ?
A. ? Asylum and Refugee Admissions............................ 1297 ?
V. Prosecutorial Discretion and Deferred Action.............. 1300? 3 . Adjudication Should be Conducted in a Manner Appropriate to the Age and Mental Health of the Applicant Child .............. 1320? 4 . Be Transparent and Compliant with the Law ..................................................................... 1320 ? 46 . Id . 47 . See Clay Boggs, Mexico's Southern Border Plan: More Deportations and
Widespread Human Rights Violations , WOLA (Mar. 19 , 2015 ),
and-widespread-human-rights-violations/ (last visited Sept . 20 , 2018 ) (reporting
a 117% increase in the deportation of minors) (on file with the Washington and