Reimagining Children’s Immigration Proceedings: A Roadmap for an Entirely New System Centered Around Children

In this report, we set out to reimagine the way in which the federal government adjudicates an unaccompanied or separated child’s request to remain permanently in the United States. Rather than addressing problems within the current system, we set out to develop a framework for a new system, built around the needs and capacities of children. To do so, we convened a symposium bringing together experts in the fields of immigration, international migration, child welfare, juvenile justice, and child development. The goal was to draw upon their expertise and lessons learned from efforts to reform child welfare and juvenile justice proceedings over the last many decades. We focused both on processes and substantive protections, addressing the roles of multiple federal agencies in determining the protections children should receive, including the right to remain in the United States if it is unsafe for them to return to their countries.

Below is the Executive Summary of the report. Click here to download the complete PDF of the report.

Immigrant children who seek protection in the United States are thrown into a system of laws, regulations and policies developed for adults. That system is adversarial in nature, with the government in the position of protagonist, fighting to restrict migration into the United States. Children are on the defensive. They bear the burden of responding to and defending against the government’s effort to remove them from the country and they bear the burden of proof to win protection. In short, it’s the worst of both worlds. In many cases, their ability to access protection depends on whether or not they are accompanied by a parent or legal guardian, with modest, child-specific protections available to children that are unaccompanied or separated from a parent. Unlike many other systems, decisionmakers are not required—or in some instances even permitted—to consider their best interests when making decisions that directly impact a children’s safety, permanency, and connection to family.

For decades, advocates for children have worked to carve out discrete protections for immigrant children in this system. They won the right for children to be held in spaces designated for children—provided not just with food and a bed, but also with education, recreational activities, medical attention, and the right to meet with lawyers. They succeeded in transferring unaccompanied and separated children’s care and custody from the government’s enforcement agency to a federal agency focused on health and welfare. They secured the right for unaccompanied and separated children to be released from government custody to family, prioritizing release to parents without regard to the parents’ immigration status. They fought for a law that authorizes federal officials to appoint independent advocates to child trafficking survivors and other vulnerable, unaccompanied children to ensure that the child’s best interests are considered in decision-making. This same law permits unaccompanied and separated children seeking asylum to make their claim before an asylum officer, rather than face a government attorney in a courtroom. The law requires federal officials to ensure children’s safe repatriation when they ask to return or are forced to return to their home countries.

Advocates continue to seek greater protections for immigrant children, including legal representation for all children, and a mandate that every agency consider the child’s best interests in every decision. But change is incremental at best, and within immigration reform debates, protections for children continue to be inserted piecemeal into a system designed for adults. More recently, advocates have had to direct their energy toward ensuring that the few protections that already exist are not stripped away in a bargaining game over larger immigration policies. Advances are hard won, but insufficient. The immigration system lags behind developments in child welfare and juvenile justice by decades (e.g., the right to counsel) and in some cases, a century (the creation of separate courts for children).

With the support of the John D. and Catherine T. MacArthur Foundation, we set out to reimagine the way in which the federal government adjudicates an unaccompanied or separated child’s request to remain permanently in the United States. Rather than addressing problems within the current system, we set out to develop a framework for a new system, built around the needs and capacities of children. To do so, we convened a symposium bringing together experts in the fields of immigration, international migration, child welfare, juvenile justice, and child development. The goal was to draw upon their expertise and lessons learned from efforts to reform child welfare and juvenile justice proceedings over the last many decades. We focused both on processes and substantive protections, addressing the roles of multiple federal agencies in determining the protections children should receive, including the right to remain in the United States if it is unsafe for them to return to their countries.

What follows is a summary of our recommendations for wholesale change.

Seven guiding principles emerged from the Chicago Symposium and subsequent conversations with experts. These principles represent a radical change in the policies and practices embedded in the existing adjudicatory process for children. Whether advocates and policymakers pursue comprehensive reform of immigration laws or instead seek piecemeal reforms at a time when wholesale reform is impracticable, they should check any proposed laws, regulations, or policies against these principles to ensure a child-rights approach to policymaking.

1: A Child’s Best Interests Is a Primary Consideration in Every Decision
In every decision made about a child, from the moment the child is identified or apprehended by immigration officials until a final decision is made, the child’s best interests shall be a primary consideration. This does not preclude other considerations, such as the child’s stated interests, a parent’s stated interests, concerns for the safety of others or national security. But consideration of the individual child’s best interests—which includes consideration of the child’s stated interests—must inform every decision, with decisionmakers held accountable for meeting this obligation.

Principle 2: Safety and Family First
When any child is identified by immigration authorities (at the border or internally) the sole focus shall be finding a safe placement with family, minimizing any time spent in institutional, government care. Children apprehended with parents or other family members—whether at the border or internally—shall not be separated for purposes of immigration enforcement absent a determination that the parent or family member poses an imminent danger to the child’s safety, a determination that would be subject to prompt review by a judge with expertise in family law. The initiation of an immigration case to determine whether the child will remain in the United States or return to home country will begin only after the child’s safe reunification with family or placement in a family- or community-based setting such as foster care.

Principle 3: A Fundamentally Fair Process
After safe placement in the community, children who wish to remain in the United States will participate in a holistic process of decision making which places the child at the center. Children will not be subject to repeated inquiry about past traumatic events and there will be timely but not rushed decision-making. All children will be represented by counsel and vulnerable children will be appointed a child advocate to help identify the child’s best interests.

Principle 4: Specialization
Every participant and decisionmaker in a child’s case will have specialized training in child development and the impact of trauma on children, as well as training and experience working with children from different cultural backgrounds.

Principle 5: No Repatriation to Unsafe Situations
A child may fail to prove eligibility to remain in the United States. However, before repatriation, the government must demonstrate to an independent adjudicator that the child will be safe upon return. If a child will not be safe upon return, the child will be permitted to remain in the United States until adulthood.

Principle 6: Childhood Continues to Age 21
There is consensus in the scientific community that children continue to develop and mature well into their 20s. An increasing number of legal systems have recognized this principle, extending the age of childhood or youth to 21. All immigrant youth will be recognized as children and will be able to avail themselves of child-specific protections until they reach the age of 21.

Principle 7: All Children Share the Same Rights and Protections
All children placed in immigration proceedings, whether arriving at the border or encountered within the United States after being here for any period of time, hold the same rights. These include the rights to express their own wishes, to safety, to liberty, to be protected from family separation, to develop, to maintain their identity, to have their best interests considered in all decisions, to be treated with dignity and respect, and to have a fair opportunity to seek protection from harm.

With these principles as our guideposts, and with direction from experts in a variety of disciplines, including migrant children who sought protection in the United States, we turned to the task of designing a system that recognizes and treats migrant children as children. What follows is our proposed Roadmap for Change—a reimagination of the process for deciding whether a child who comes to, or is brought to, the United States and expresses a wish to stay, is able to do so.

This Roadmap does not layer onto the current system. Its starting point is the needs and capacities of children. The Roadmap’s first priority is children’s immediate need for shelter, safety and family, and thereafter, the need for permanency. Unlike the current system, where government custody—detention—is the one space in which children are guaranteed certain protections, this system connects children to services at the time and place best suited to the child’s needs and vulnerabilities—once they are placed with families or living in family-like settings.

When it is time to adjudicate the child’s case, the proposed system puts the child at the center of the case, rather than positioning the child as a respondent/defendant. Decisionmakers and advocates involved in the case collaborate to discern the child’s interests even though they may ultimately disagree.

Children are not left to navigate complex legal proceedings on their own. The reimagined system guarantees an attorney for every child, to ensure the child’s expressed wishes are known and considered. It provides a child advocate for vulnerable children, including those who may be unable to express an opinion or whose best interests may be unknown or uncertain. Children may seek various forms of protection, whether as asylees, survivors of trafficking or other crimes, based on abuse, abandonment or neglect that they experienced in their home countries, or some other existing basis in immigration law. If they are successful, they will secure the right to remain permanently.

We spent considerable time debating the merits of a single decisionmaker as compared to multiple decisionmakers in the child’s case. Ultimately, we proposed hybrid, in which a single decisionmaker—a presiding judge—oversees and follows the legal case from start to finish. If a child fails to qualify for traditional forms of protection, that presiding judge will make the ultimate determination of whether the child can safely repatriate. But for the many children who first pursue some other form of protection—whether asylum, protection as a trafficking victim, or protection based on their relationship to another family member—those claims will continue to be adjudicated by specialized decisionmakers, who have expertise in that particular area of law—and who under the Roadmap would have special training to evaluate children’s claims.

The reimagined system also creates a new basis for protection from removal. If a child is unable to request protection, or is denied relief, that child cannot be repatriated to home country unless the government proves that the child would be safe upon return. In contrast to the current system, in which a child carries the burden to prove they are eligible to remain in the U.S., under the new system the burden will shift back to the government, which will have an affirmative obligation to prove that the child can be returned safely. The government will be required to provide facts and evidence specific to the child’s case in order to demonstrate its capacity to facilitate the child’s safe return.

A finding that the child cannot be safely repatriated will result in the grant of “best interests protective status” that will protect the child from repatriation until adulthood.

In 2008, Congress took an affirmative step to ensure safe repatriation when it passed the bipartisan William Wilberforce Trafficking Victims Protection Reauthorization Act, which imposes on multiple federal agencies an obligation to ensure the safe repatriation of children. Aside from a briefly funded pilot project to facilitate children’s safe return to Guatemala, by and large the federal government has taken no steps to fulfill the statute’s mandate to prevent the unsafe repatriation of children. In significant ways, the non-governmental community has stepped in to fill this void. But those programs remain ad hoc, focused on specific children or specific countries, and are not integrated into decision-making about how, when, and to what conditions children will be returned.

Thus, our reimagined system functions as follows.

When children are apprehended by immigration authorities, the government’s sole focus will be on finding a safe placement where the children can live outside of government custody as their immigration case proceeds. The Roadmap’s goal is a period of government custody that lasts for days or weeks—not months or years. Children who arrive with a trusted, adult caregivers who are not their parent should not be separated from those adults, absent indicators of trafficking or other imminent danger. This will mean a reworking of the definition of "unaccompanied children," and/or changes to immigration law that will extend the same protections to all children, whether accompanied or unaccompanied (including the right to seek protection). Children who are truly unaccompanied will be placed in homes in the community (such as temporary foster placements or group homes) rather than institutionalized care, which today commonly includes facilities of 200, 400 or even 1400 “beds”. Government custody lasting more than a few weeks, or any refusal to promptly reunify a child with a parent or legal guardian in the United States, will be subject to review by a court outside of the immigration system (e.g., a family court), with expertise in adjudicating children’s custody. The government will be prohibited from sharing information gathered about the child to ensure safe short- and long-term placement with immigration enforcement authorities or using that information to pursue the child’s removal or removal of the child’s family members.

Perversely the current system creates additional hurdles for children who may have the greatest need to reunify with family or live in a community setting while seeking protection: specifically, children with physical or mental health needs, children with disabilities, and very young children. In the current system, unaccompanied children with special or greater needs often face greater delays in reunifying with family while their needs are evaluated. At the same time, family members are tasked with identifying services while the child is still separated and detained (and often deteriorating, suggesting the need for more services, which leads to longer detention . . . a vicious circle.) In the reimagined system, the government will carry the burden to demonstrate that the child’s placement with family, with community-based supports, will be unsafe. Absent that demonstration, children will be released to family or placed in foster care, and provided with integrated, holistic support to ensure their safety and healthy development.

Unaccompanied children who do not have family members or other sponsors to take custody, but who do not wish to return to their countries, will have the same opportunity to be placed in a supportive, home-based environment and will be eligible for community-based foster placements or other forms of supportive housing, such as independent living situations for older teens. They will not have to prove their eligibility for protection in order to access these placements. This is a significant change from the existing system, where foster placements or group homes for children without sponsors are available only to children identified as having “viable” claims for protection. The existing system places attorneys in a gatekeeper role, limiting their ability to zealous advocate for each child’s holistic needs. In the reimagined system, the government will be obligated to maintain as many foster placements as necessary for children who lack a family sponsor, without regard to the child’s likelihood of prevailing in a claim for protection once again shifting burdens off of the child, and onto the government.

Children already living in the United States—including but not limited to “DREAMers,” DACA recipients and those who entered unbeknownst to immigration authorities—will remain in the home in which they were living when identified by immigration officials, unless that home is determined to present an immediate danger to the child by a family court.

Finally, children who wish to return promptly to their country of origin—at any point—will be able to do so with the assistance of counsel and an appointed child advocate. This may arise in situations where children were brought to the United States against their will, or when children wish to return to home country because of changed circumstances or emergency circumstances (e.g., illness or death of a loved one), or simply because they change their minds free of government coercion.

The processes below were designed with an eye toward eliciting information in a manner tailored to each child’s age and development without endangering the child’s safety, so that adjudicators have the best possible information on which to base decisions.

Presiding Judge. Each child’s case will be assigned to a presiding immigration judge, who, while not the decisionmaker on every protection claim, will be responsible for guiding the child’s case through the adjudicatory process and making the ultimate determination as to whether a child can safely repatriate if no form of permanent protection is granted.

Preliminary Conference. With a nod to the more child-appropriate process of family court, the child’s case, which will commence only after the child’s release from custody to a safe placement, will begin not with a hearing but with a case conference attended by all parties, including the child’s parent(s) if available. If the child does not have counsel, a lawyer will be appointed at government expense. Particularly vulnerable children will be appointed a child advocate.

Consolidated Application for Protection. At a time determined during the preliminary conference, the child’s attorney will submit a single, consolidated, application for each form of relief the child has elected to pursue, for which the child can establish prima facie eligibility or make a non-frivolous claim. This concurrent process is intended to help streamline the child’s application for legal relief so that stories of trauma and hardship do not need to be told multiple times and to facilitate counsel’s ability to explore all possible claims for protection. The case will not be complete—and the child will not face removal—before all claims for protection are fully adjudicated.

Government review of the Application for Protection. The attorney’s submission of a child’s application(s) for protection will trigger a reasonable but limited window for each agency responsible for reviewing the petition(s) to grant the petition, issue a request for additional evidence or testimony, or deny the petition outright. Claims for protection will be evaluated by agencies with expertise in the form of protection (e.g., trafficking, asylum) and by specially trained adjudicators in these agencies.

Opportunity for Further Inquiry. Decisionmakers from any agency who require additional information from the child will submit questions to the presiding immigration judge. If those questions cannot be addressed by the child’s attorney in writing, the immigration judge will schedule an interview with the child where all outstanding issues can be addressed. The single interview format provides the child with a non-threatening, less adversarial setting, more akin to the interviewing models employed by child advocacy centers investigating claims of child abuse.

Determination of Eligibility. Within a limited time after the submission of all applications, including time for review, questions from the government and a possible interview with the child, each decisionmaker will render a decision on the child’s application(s) for protection and submit that decision to the presiding immigration judge. If the child is granted a form of protection, the government will end its efforts to secure the child’s removal to home country. If the child is denied protection, the child will be guaranteed an appeal of the denial(s).

If the child seeks protection but is unsuccessful, or if the child is unable to raise any claim for protection but fears return, the government will then carry the burden to prove that the child can safely repatriate. The government, not the child, will be obligated to provide case-specific evidence that the child will be safe upon return to home country. Evidence could include testimony or affidavits that there is a parent or legal guardian in the child’s home country both available and willing to take custody of child and able to meet the child’s needs. If the child had provided evidence that she will be unsafe in her country as part of her earlier application(s) for protection, the government will have to provide evidence of either changed circumstances or of feasible steps that will protect the child upon return.

If the government cannot meet this burden, the child will automatically receive best interests protective status, which will be valid until the child is 21 years old. This status serves two purposes. First, it will prevent the government from placing children into unsafe situations. Second, by allowing children who will be unsafe in their home country to remain in the United States until the age of 21, protective status recognizes that childhood and adolescence extends well beyond the age of 18. Second, during this period, children will have the opportunity to complete their education and mature physically, emotionally, and intellectually, consistent with evidence that childhood extends beyond the age of 18.

At the age of 21, some young adults may seek return to their country of origin. To the extent that the government seeks to return (deport or remove) any young adult who was previously granted protective status as a child, the young adult will have an opportunity to present evidence that return would pose a threat to their safety. For some young adults, time spent in the United States may make them a target for persecution or other violence should they return to their home country; they may also face return to country conditions that have changed since the time they applied for protection as a child. For all young adults previously granted protective status, the equities they develop during their time in the United States—including attending school, graduating, obtaining a G.E.D., working or volunteering, and establishing family, community or religious ties, will be considered by the government in exercising its discretion to allow these young adults to remain in the United States.

The following pages describe this reimagined system in detail, Including: a discussion of the conceptual shifts necessary to reimagine a fair system for children (Part I); an analysis of how stakeholders in children’s cases would have to adapt their roles in a system where children’s rights were at the center (Part II); and a detailed Roadmap for Change, beginning with the moment of apprehension and continuing through the final adjudication of a child’s protection claim (Part III). Throughout the report, we include the voice of experts who participated in the Chicago Symposium; the report concludes with commentaries from six of those experts, including an adult with lived experience in the current system and other experts in law, child development, migration, and justice (Part IV).

This chart shows how in a Reimagined System, children will not have to think about their legal case (whether they can remain in the U.S. or must return to home country) until they are free of government detention. When the legal process begins, children will have an immigration attorney and a child advocate at their side. Their safety will be paramount—they will not be forcibly returned to their country until the U.S. government can prove they will be safe. Children’s rights and best interests will be considered in every step of the process.