The Challenge

When unaccompanied immigrant children are apprehended by immigration authorities, they are placed in removal proceedings and required to appear before immigration courts. Unlike state child protection courts, which are designed to accommodate children, immigration proceedings are adversarial and require that children meet the same procedural, evidentiary, and legal rules as adults. This happens despite the fact that children don’t have the same capacity to advocate for themselves and often don’t understand how their experiences relate to a possible application for asylum or other immigration protections. Indeed, many children have been told repeatedly by adults—family or traffickers—to keep their stories secret.

In the domestic child protection context, state juvenile court judges must consider the best interests of the child before rendering a decision. Traditional guardians ad litem (friends of the child) are appointed by the judge to look out for the child’s best interests. Ideally, immigration judges would be required to take the child’s best interests into consideration when deciding whether a child should return to his or her country of origin, be granted asylum, or given other protection.

International standards set forth in the Convention on the Rights of the Child and guidelines promulgated by the United Nations High Commissioner for Refugees (UNHCR) have long declared that children deprived of their families should have the special protection and assistance of guardians. Yet, until now, few countries have taken the affirmative steps necessary to establish such programs.