New Proposed DOJ Rule Puts Children in Harm's Way
On Friday, September 25, 2020, the Young Center, along with more than 1,280 organizations and individuals, submitted public comments opposing a proposed rule by the Department of Justice’s Executive Office for Immigration Review that, if implemented, will rob immigrant children of due process and put them in harm’s way. By arbitrarily limiting the time in which children can share their stories, find counsel, develop cases, and pursue appeals, this proposed rule flies in the face of the science and the facts of children’s development, and is an assault on children’s due process rights and antithetical to consideration of their best interests. Here are three of the many ways in which the proposed rule would harm children.
By preventing the Board of Immigration Appeals (BIA) and immigration judges from administratively closing cases, this rule will deny many children a fair opportunity to pursue humanitarian relief from deportation that is only available outside of the immigration court.
By greatly restricting the amount of time that the BIA is permitted to extend deadlines for parties to file a brief or reply brief to a maximum of 14 days, with only one possible extension permitted, this rule will lead to fewer respondents, including child respondents, being able to find counsel for their appeals. Unaccompanied children already face numerous barriers to finding legal representation, particularly due to the face that the government doesn’t provide them with lawyers, and they must find pro bono counsel. As a result, a large percentage of unaccompanied children do not have legal representation. Limiting extensions will prevent more children from securing representation and force them to navigate the complex immigration court system by themselves.
By also imposing other mandatory timeframes in appeals that do not give sufficient time for BIA staff and board members to adequately review cases, the proposed rule undermines consideration of a child’s best interests by prioritizing speed over fairness. Preventing BIA staff and board members from having adequate time to review cases on appeal increases the risk of erroneous and inappropriate orders of removal. For many immigrants, particularly immigrant children, this means being returned to a country where they may face danger and physical harm, including trafficking and persecution.
Administrative closures and other procedural safeguards in immigration proceedings ensure that children have adequate time to prepare their cases, to find legal representation, and to pursue available relief from removal outside the immigration court. Many children are ultimately found eligible for humanitarian relief and would be exposed to serious harm and re-victimization if relief were improperly foreclosed and an improvident order of deportation was entered due to the elimination of procedural safeguards that ensure a fair opportunity to be heard. The proposed regulations would jeopardize the safety and well-being of immigrant children by decreasing the ability of children and families to have a fair opportunity to be heard and to seek relief from deportation, as they are permitted to do under U.S. law. The importance of fairness in immigration court proceedings cannot be overstated: for many immigrants, particularly unaccompanied children, having a fair opportunity to be heard and to pursue avenues of relief from deportation can mean the difference between living in safety in the United States or being returned to a country where they may face danger and physical harm, including trafficking and persecution. The U.S. government should ensure that, before it imposes such grave consequences through ordering a child's deportation, every child in immigration proceedings has a fair opportunity to be heard and access a robust review process.
As an organization that serves unaccompanied and separated immigrant children facing deportation, we witness firsthand the complexities of the immigration process and the many hurdles children face in this adversarial setting. Our government should work towards removing those hurdles wherever possible to protect children and their rights and to center children’s best interests throughout the process, rather than removing procedural protections that are critical in ensuring that children have a fair opportunity to be heard. We therefore call on the DOJ to rescind the proposed rule.