The In-Betweens: How Migrant Children Navigate Immigration Court Alone

Written by Frances de Pontes Peebles

Chicago’s Immigration Court has no porticos or statues of Lady Justice. It is located in a glass-paneled office building with a sandwich shop in the lobby. There’s a security desk, though anyone is free to access the elevators. There are no signs or maps, no postings of hours or dockets. If you didn’t already know Immigration Court was here, you’d need help finding it.

I visited the Court as an observer in the aftermath of the Trump Administration’s family separation policy. My guide was Kelly Albinak Kribs, an attorney with the Young Center for Immigrant Children’s Rights. Kribs reminded me of a gymnast—small frame, bright smile, and a cheerfulness that belied her power. She quickly escorted me to the elevator bank. On the fifth floor, the doors opened to a metal detector, x-ray machine, and two good-humored guards. An American flag hung limply from its floor stand. On the wall beside it was a framed photograph of the Attorney General, grinning widely.

The Court’s windowless waiting area was quiet despite being packed with people. There were men in button-down shirts and jeans. There were women with headscarves, others without. Toddlers wiggled in their parents’ laps. A little girl no more than five years old wore a sapphire blue party dress and white heeled shoes. An old woman held an embroidery hoop and decorated a dishtowel. In her lap, under the hoop, was a folder. Everyone—except for the children—carried a folder, or a brown envelope, or a plastic sheath filled with documents. People studied the contents of their folders intently and then spoke in whispers to each other, as if they were waiting to be called for an audition and had to practice their lines.

The courtrooms were labeled with numbered plaques, like exam rooms in a medical office. Inside, however, was the traditional setup that I had only ever seen on television shows—three rows of wooden pews for spectators, a waist-high railing separating the gallery from the two lawyers’ desks and the judge’s elevated bench, all in dark wood. The judge was a blonde woman in her fifties. Flanking her were two more women: on the right, a young clerk with jet-black hair that fell past her shoulders; on the left, a woman wearing reading glasses, who was the Spanish interpreter.

The judge’s voice was soothing, like a late-night radio DJ’s. She turned her attention to the child in the respondent’s seat—an eleven-year-old girl. I’ll call her Elena, though this wasn’t her real name. Elena wore dark pants and a red polo shirt, as if she’d left school and was still in uniform. Later, Kribs tells me that unaccompanied and separated children receive clothing in detention: plain shirts, sweatpants, and Crocs for day-to-day use.

Elena smiled shyly at us, then at the judge. She crossed her arms over her stomach. On one wrist was a rainbow of plastic bracelets.

There is a separate courtroom for kids, but not a separate legal standard. In immigration court, children are treated as adults. This means that, when most migrant children face deportation proceedings, they alone must carry the legal burden of proving that they should be allowed to remain in the United States. The United States government doesn’t guarantee migrant children the right to a lawyer, so many children must navigate the immigration system by themselves, and in a language foreign to them.

Elena’s lawyer—a young woman who worked for the National Immigrant Justice Center—had short hair, buzzed clean on one side and long on the other. She informed the judge that Elena was from Romania and needed an interpreter. The judge made a speakerphone call from the bench. An automated voice blared through the courtroom:

“Welcome to Language Services. Thank you for calling Interpre-talk!”

After the judge requested a Romanian speaker, cheery music played as we all waited. Elena glanced at her lawyer.

The 2002 Homeland Security Act and the 2008 William Wilberforce Trafficking Victims Protection Reauthorization Act encouraged the Department of Health and Human Services to “make every effort to utilize the services of pro bono counsel” to represent migrant children, which has created a model where attorneys offer their services pro bono to represent children in immigration court, often with the guidance of non-profit attorneys like National Immigrant Justice Center. Despite their best efforts, not every child has counsel. Elena was lucky.

As soon as the interpreter arrived on the line, the proceedings moved with lightning speed.

“Can I talk to your representative about your case today?” the judge asked Elena.

Elena’s lawyer provided details: she came with her father. They were forcibly separated by the US government. He was deported back to Romania. Elena remains in custody, in a tender-age shelter for children under twelve years old. She is requesting Voluntary Departure back to her country of origin, back to her father.

There is no law requiring that migrant children and their parents be separated upon entering the United States. The separation practice officially began in April 2018, when then Attorney General Jeff Sessions announced that anyone who crossed the border illegally would be prosecuted criminally. Children cannot be held in criminal jails, so kids were taken from their parents and deemed “unaccompanied.” Despite a federal court order halting family separations in June 2018, separations continue due to a loophole in the ruling which takes a parent’s criminal history into account. This exception is applied broadly and seemingly at random. In one case, a mother was separated from her child because of a ten-year-old shoplifting conviction. As of December 2018, nearly 15,000 unaccompanied children were in federal custody. Each will face uniquely complex legal hurdles.

When children and parents are separated after entering the United States, they are not treated as a family but as individuals, each placed in a separate detention facility and each with their own case file or “A-number.” If a parent gets deported, their child often stays behind, alone, in a children’s detention center. In court, a child must prove why they are eligible for legal protection and how they can stay. The possible defenses range from asylum, to a number of specialized visas, to a family-based petition, or to a series of other alternatives which Kelly Albinak Kribs attempts to describe to me, but which are too varied and complicated to list. All of these options are adjudicated not only by immigration judges, but also by United States Citizen and Immigration Services, a separate agency that operates independently, with its own regulations and demands. Detention is the first step in a labyrinthine process that is arduous to navigate without qualified legal counsel, time, money and, in many cases, pure luck.

Children like Elena have two main pathways to return home: Removal or Voluntary Departure. Removal means deportation, and comes with the penalty of not being allowed back into the United States legally for anywhere from three to ten years. Voluntary departure is considered a benefit: a judge must grant it, and it comes with no penalties if a person chooses to return legally.

The government’s attorney—a woman with a gravelly voice, wearing black socks and orthopedic sandals—responded that she didn’t oppose Elena’s request for Voluntary Departure.

“What will you plan on doing when you go back to Romania?” the judge asked Elena. “Go to school?”

“Da,” she replied.

“Yes,” the interpreter’s voice on speakerphone filled the courtroom. 

All the while, Elena’s foot shook. Her sneaker hit the chair leg again and again. She fingered her rainbow bracelets.

I was an eleven-year-old girl once. Watching Elena in court, I did the calculations in my head, counting backwards to fifth grade. That was when I started to care about the brands of my clothes, the cut of my hair. I had a dollhouse that I played with in secret, because I was supposed to be getting too old for such toys. But I didn’t feel old. I felt out of place and very lonely, trapped inside an eleven-year-old body that was changing—hair growing in strange places, a chest that felt too tender when I ran a bar of soap over it in the shower. Eleven is a vulnerable age for a little girl, a time of in-betweens.

Elena stared at her lap, her brown hair hiding her face. I stared at the judge, the lawyers, clerk, the Spanish interpreter, and realized that all of them had once been eleven-year-old girls, too. And all of them were now carrying out policies enforced by the grinning man in the photograph out front; policies created by other men in Capital offices.

Elena was granted Voluntary Departure. The judge advised her to be patient; the government would get her a ticket back to Romania, to her family. Then the interpreter hung up. There was a quiet bustle of papers stapled in triplicate, the clicking of the clerk’s mouse, the shifting of bodies in chairs. Elena was dismissed from the courtroom and placed back in the custody of a male driver from the detention center.

Two weeks later, I returned to the same courtroom with the same judge presiding. Kelly Albinak Kribs sat at the respondent’s table, though she was not the lawyer. She was serving as a Child Advocate, meeting with children while they are in detention, learning their stories, and advocating for their best interests. The child Kribs advocated for on the day of my visit was a fourteen-month-old baby who I’ll call Edgar.

A woman from the tender-age detention center held Edgar in her lap in the respondent’s chair. He wore jeans and a striped, button down shirt, like a little man. His black hair was wet and combed flat.  Kribs widened her eyes and smiled at the baby, who stared placidly back.

Edgar’s father, a Honduran citizen, presented himself and Edgar to US officials at a port of entry—a place where a person may lawfully enter the country—at the border and asked for asylum. He and Edgar were taken into custody and spent that first night together. The next day, ICE officials took Edgar away without explanation.

After court, I asked Kribs if she’s been in contact with Edgar’s father, and what that night was like for him.

“Dad told me that Edgar was crying,” Kribs said. “And he didn’t know where they were taking his son and when he was going to see him again. That was March 13th, so it’s been over three months.”

As I watched Edgar in court, I tried to recall my own daughter—then six years old— at fourteen months. She was walking, though shaky on her legs. I took her to baby swim classes, where parents would stand in the pool and sing, “Humpty Dumpty sat on a wall. Humpty Dumpty had a great fall!” before dunking our babies in the water. It was a way of getting them accustomed to something strange, something potentially dangerous, in the hopes that they wouldn’t panic.

Edgar’s attorney asked for Voluntary Departure under safeguards which, in his case, meant an ICE official would eventually escort him home on a plane. The government’s attorney approved. Edgar wiggled in the caretaker’s arms. Defendants requesting Voluntary Departure must make a sworn statement—called an “offer of proof”—declaring that they are not felons or terrorists. The judge waived this in Edgar’s case, as he could not yet speak. Instead, she addressed Edgar’s lawyer.

“You’ll talk to Edgar about all of the consequences for illegal reentry?” the judge asked, then chuckled.

Others in the courtroom smiled, including Edgar’s attorney. It didn’t seem like a joke in a mean-spirited sense, rather an acknowledgment by these women of the surreality of the lines they were required to speak, the parts they must play.

When Edgar was dismissed, there was a collective “Awww” from the women in court as he rested his head on the caretaker’s shoulder.

“He’s so cute,” the translator said.

Afterwards, Kribs and I sat together on the edge of a stone planter outside the office building and talked about Edgar’s case. As his Child Advocate, she’d visited Edgar in the Chicagoland tender-age facility where he was housed, but unlike her other cases, Kribs didn’t see Edgar every week.

“At his age,” Kribs explained, “if we were to build a relationship with him, it could actually be detrimental in the long term because he’s forming an attachment to somebody who ultimately isn’t going to be a long-term source of support in his life. So we try to be mindful of that when we work with very young children.”

Kribs hoped to do some advocacy around Edgar’s return; she would try to convince ICE and the Office of Refugee Resettlement, or ORR, to allow a facility caretaker, maybe the woman who’d brought Edgar to court, to fly him back to his parents.

“That’s a long flight,” Kribs said. “He needs somebody who can be changing diapers, who can soothe a baby when their ears are popping on a plane, who can feed them, and comfort them.”

In the past, she’d advocated for slightly older kids, asking ICE officials to wear plain clothes and not carry their weapons when they returned a child, to make the process as unintimidating as possible. These are details I’d never considered, though for children they can mean the difference between fear and comfort. 

“We’re going to be dealing with piecing these families back together for months to come. Just like the kids are going to be dealing with the repercussions of this separation for years to come,” Kribs said.

Today, there are parents who’ve been deported, parents still in ICE custody, others in US Marshal custody. There are children in ORR facilities spread across the United States, placed wherever a bed is available. There are multiple agencies and thousands of case workers, judges, lawyers, and Child Advocates without a structured method of communication between one another. In this maze of burocracy, simply reuniting families becomes a heroic effort. And these are the families and children lucky enough to have even reached the United States.

As of July 2019, the administration introduced a policy denying everyone—including children—the opportunity to request asylum if they traveled through any other country to reach our border, without first applying for asylum in that particular country. Government records show that 16,000 children, including 500 infants, have been left to wait in Mexico. In Texas’s Rio Grande Valley, the nonprofit group KIND (Kids in Need of Defense) saw children “sleeping in tents on the international bridge waiting for a chance to present themselves and ask for protection.” Customs and Border Patrol officers routinely turn these children away, telling them the ports are full, or that they are not able to place them on the “wait list” to be allowed to ask for protection. Trapped between unsafe homelands and an imagined Promised Land that denies them legal asylum, many of these children put their lives in the hands of smugglers and traffickers.

Outside of Immigration Court, I thanked Kribs and hurried from our meeting to pick up my daughter from camp. They’d had a field trip to an amusement park, and she stepped off the camp’s bus with tangled hair and a glazed look from the day’s excitement. She carried a small, stuffed dog that she’d won at the arcade. That night, as I put her to bed, she cried. There was a game at the arcade, one she was not allowed to play but caught a glimpse of. There were zombies on the screen. They chased a woman. She ran but they surrounded her and carried her away.

“It looked really real,” my daughter said, still crying. “I don’t want them to take you away.”

I thought of Edgar and Elena. I wondered when their parents would be able to comfort them with a hug, a kiss, a touch.

The protection any parent is able to offer our children is fragile in the face of the world around us, a world we were all born into, not by choice but by circumstance. If our first homes were our mother’s wombs, then we are all exiles. We have all been cast out, forced to adapt to a new place, required to learn its customs, its rules, its language. We all live inbetween life and death. If we are lucky, we will have only that first, definitive displacement to reckon with, and we will have our parents to guide us through it.

That night, I slipped into bed beside my child, kissed her damp face, and felt a terrible kind of luck to be able to do such simple things, to be able to give comfort when comfort was needed. To be together, in a place we call home.

Frances de Pontes Peebles is the author of the novels The Seamstress and The Air You Breathe and a Member of the Young Center Board of Directors.

A shorter version of this essay first appeared on the Chicago Tribune.