Many of the migrant children who remain separated from their parents will have to appear in immigration courts alone and are at greater risk of deportation, legal experts told HuffPost.
“In some cases, children as young as 5 will be in front of an immigration judge, expected to explain why they should not be deported and manage the legal process that is required to prove that,” said Kate Lincoln-Goldfinch, an immigration lawyer who has been interviewing migrant women.
Trump announced an executive order last week to end family separation at the border, and immigration officials announced Friday that 500 parents and children have been reunited. But the government doesn’t plan to bring the remaining families together until a parent has finished their deportation hearings ― a process that can take several months ― and advocates say there is still no clear reunification system in place. As a result, children who aren’t even old enough to know the name of their home country will be forced to navigate a complex legal system by themselves.
Last year, only 33 percent of unaccompanied minor children ― the category that these separated kids fall under ― had lawyers to help them through the process, according to data from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. Since migrants are not entitled to public defenders at their hearings, they rely on limited pro bono legal services.
There’s no minimum age for appearing in immigration court.
“Babies are subject to deportation,” said Wendy Young, president of Kids in Need of Defense, an organization that pairs unaccompanied minors with lawyers. “The norm is that babies are supposed to be with their parent and the parent would speak for the baby [in court]. But, in these cases, we’re seeing them separated.”
“They are just completely disoriented, and they are in the middle of their trauma. Their singular focus is ‘Where’s my mommy and how will I get back to her?”
It’s already the case that children who arrive at the border without their parents often go through court proceedings alone, a fact that immigration advocates have always denounced, but legal experts say that these children who have now been forcibly separated from their family by the U.S. Border Patrol experience a unique kind of distress.
“They are just completely disoriented, and they are in the middle of their trauma,” said Lincoln-Goldfinch. “Their singular focus is ‘Where’s my mommy and how will I get back to her?’ So all of this other business is almost irrelevant, when, in fact, a lot of these people are fleeing violence, and if they get sent back they could be killed. And yet the child can’t focus on that.”
At the hearings, a judge will ask the children basic questions ― name, date of birth, home country ― and whether they admit or deny allegations, such as if they crossed the border illegally. Children who go through this process without parents or a lawyer have to describe why a situation back home is so bad that they shouldn’t be deported. If successful, they can apply for asylum or other forms of relief.
Kimi Jackson, the director of ProBAR, an organization that provides legal assistance to immigrants, said that in some cases migrant kids are so young that they might not know their parents’ names or be able to speak. But even if they can talk, most children who go through the court system on their own have no idea what is happening. In 2016, Lincoln-Goldfinch filmed a mock deportation hearing with her 3-year-old child to protest a California judge who said kids should be able to represent themselves in immigration court. When she asked, “What defense to deportation are you seeking?” her daughter responded, “Hide and seek.”
The confusion is even worse for children who have fled violence at home only to be separated from their parents upon arriving in the U.S. Mary Lehman Held, an assistant professor of social work at the University of Tennessee, says these children’s brains are stuck in “fight, flight or freeze mode” due to extreme stress, which makes it hard for them to remember information. Elissa Steglich, a clinical professor in the University of Texas School of Law’s Immigration Clinic, thinks the fact that their developing brains are experiencing layers of trauma means “it will be particularly challenging if not impossible to get a full story from many of these children.”
And in other cases, migrant kids simply might not know the full details of why their parents brought them to the U.S. “If a mother is taking her child out of a situation where the child is in danger, she’s not going to tell her daughter that she could be raped or killed,” said Lincoln-Goldfinch. “She’s just going to tell her she’s going somewhere safe.” But if kids don’t know why they need asylum, Lincoln-Goldfinch added, they are at greater risk of being deported.
In the absence of any set plan from immigration officials, Young said, lawyers have been trying to contact children’s parents to get more information about their situations before court proceedings begin. Steglich says that there’s no system in place to let separated parents know when their child is appearing in court or to offer them a chance to participate in the hearings.
“You’re denying that parent a voice or even notice when they were the caretakers,” she said. “It’s just egregious.”