Issue Brief: Fast, Not Fair — How Expedited Processes Harm Immigrant Children Seeking Protection
Children of Immigrants
Over the years, an increasing number of children and families have arrived at the U.S. southern border seeking protection from persecution, violence, and abuse. Generally, when children and families arrive requesting legal protections, they must make their case to a judge in adversarial immigration court proceedings where a government attorney argues against their case, often without legal representation of their own. While unaccompanied children have some specific protections under law that acknowledge their needs based on their age and developmental stage, children in families must face the same complex and confusing immigration system that adults do, and protections for children generally are woefully inadequate.
One trademark of the immigration system is expedited processes, where individuals seeking asylum have a short period of time to make their claim for protection. Most recently, the Biden Administration finalized a new asylum rule that imposes strict timelines on families and individuals seeking asylum before U.S Citizenship and Immigration Services (USCIS) and immigration courts. Members of Congress have sought to extend or expand expedited processes through legislation.
Expedited processes for children seeking safety jeopardizes their rights and best interests, particularly rights to safety, liberty, and family integrity. They deny the reality of children’s distinct developmental stages; the impact of trauma on their ability to build their case; their need for support from trusted adults, counsel and advocates; and instances where children are eligible for protection independent of their parent or legal guardian. Yet, our immigration system has repeatedly subjected children and families to expedited processes, and recent policies threaten to expand their use for children’s cases.
While it is critical that children’s cases be adjudicated as efficiently as possible, it should not be at the expense of ensuring that children have a full and fair opportunity to be heard and judges have the ability to exercise their discretion to set and extend case deadlines according to the specific and unique needs of each child. We urge the government to engage in a wholesale reimagining of the immigration system for children founded on the principle that all children seeking protection in the United States must be able to participate in a holistic process of decision-making that centers children and ensures that the child’s best interests are the primary consideration in every decision. As part of this reimagining, the
U.S. government must 1) immediately end the use of expedited processes for everyone, but particularly for children in families; 2) have specialized corps of adjudicators for children’s cases, which would include cases of children in families; and 3) train all adjudicators on substantive considerations for children’s cases, and procedures to create a child-sensitive environment for adjudication.
This issue brief outlines the expedited processes children currently face, how expedited processes deny children safety and due process, and makes recommendations to ensure that all children have a fair opportunity to tell their stories and be granted humanitarian protection.
What are expedited processes?
Expedited processes are immigration policies that fast-track consideration of immigrant children and families’ claims for humanitarian protection. They can occur at the border or when children and families’ cases are being adjudicated before government agencies. There are currently three main types of expedited processes: Expedited removal, dedicated dockets, and the Biden Administration’s new interim final rule (IFR) on asylum.
Expedited removal is a legal authority given to immigration officers to order an individual’s deportation from the border, without a hearing before a judge and with little or no access to legal counsel. Under expedited removal, Customs and Border Protection (CBP) officials ask individuals if they have any fear of returning to their country of origin during initial processing. If families express fear of return, CBP refers them for a credible fear interview with an asylum officer. During that interview, asylum seekers must show that they are likely to face persecution if returned to their country. If an asylum officer finds that an asylum seeker has a significant possibility of being granted asylum or another form of protection, the asylum seeker and their family are then referred for an asylum interview or immigration proceedings before an immigration judge. If the officer finds that an asylum seeker does not have a credible fear of return, the asylum seeker and their family can be removed from the border. Children who arrive at the border or are apprehended with families are subject to expedited removal.
In May 2021, the Biden Administration announced the creation of the Dedicated Docket program, which set a goal of issuing decisions for asylum cases before immigration court within 300 days from their initial hearing. Currently, only families seeking asylum are in the program. This change in policy has significantly impacted children: A 2022 UCLA report found that in Los Angeles, children made up almost half of those on the dedicated docket, and of those children, more than half were 6 years old or younger. Data obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University show that of the more than 80,000 new immigration court cases for children between October 2021 and February 2022, roughly 20,000 (25%) were for children in families in the dedicated docket.
This is not the first time that children seeking asylum have had to present their case for protection on a fast-tracked timeline. In 2014, the Obama Administration announced expedited hearings (also called “rocket dockets”) in response to the increasing number of children and families arriving at the border. The Trump Administration also prioritized unaccompanied children and families for expedited hearings, seeking to have these cases completed in a year or less.
Biden Asylum Rule
In March 2022, the Biden Administration published an interim final rule that included new strict timelines under which families and individuals seeking asylum would appear before USCIS and immigration court. Under the rule, an individual or family would have their credible fear interview within days of being apprehended and their asylum interview between 21-45 days after a positive fear screening. If denied by an asylum officer, an individual or family would have to appear for immigration proceedings, with their final merits hearing occurring within three and a half months. In all, an individual’s or family’s whole case could be heard within four months of arrival.
Why are expedited processes harmful for children?
Expedited processes prioritize speed over fairness in considering children’s asylum cases. Children are different from adults, and therefore their claims for protection require both time and specialized care in both their preparation and adjudication. Expedited processes inherently lack this time and care, and each of the processes detailed above lack specialized procedural or substantive protections for children. They therefore threaten the safety and due process rights of asylum-seeking children.
Rigid and short timeframes for asylum cases fail to consider the unique needs of children
Children in immigration proceedings often warrant heightened procedural protections to ensure that a child has a fair opportunity to be heard. Children are developmentally distinct from adults, with research showing that children’s brains continue to develop well into their twenties. Children process and recall information differently, as perception, memory, recall, and other capacities develop with age; even older children vary in cognitive abilities. Cultural and linguistic differences may further hinder communication and comprehension as a child is interviewed. Children also need time to build trust in the professionals who advocate for them and to understand the basics of the adversarial system.
In addition, a child’s ability to establish eligibility for asylum or other forms of protection for which they may be eligible often depends on individual and institutional actors whom children do not control. Because children are neither financially nor emotionally self-sufficient, asylum-seeking children are dependent upon others to facilitate their participation in a legal system designed for adults. They must depend on the support of parents or other adult caregivers and on scarce free or low-cost resources for legal, medical, and educational services. Even if ready to pursue relief, a child may be unable to influence adults or institutions on whom progress depends.
Despite the limitations inherent in children’s ongoing intellectual, social and emotional development, children are held to the same high bars for asylum eligibility as other litigants. Claims for asylum are time- and labor-intensive, placing demands on children that they may be unequipped to meet in the short term. For example, a forensic evaluation of a child’s medical or psychological history often provides essential evidence for a meritorious asylum claim, but obtaining these services pro bono often entails wait times of many months. For children whose cases are tied to that of their parents, these child-specific considerations are rarely taken into account. While it is critical that children’s cases be adjudicated as efficiently as possible, it should not be at the expense of ensuring that children have a full and fair opportunity to be heard and judges have the ability to exercise their discretion to set and extend case deadlines according to the specific and unique needs of each child.
A history of trauma affects a child’s navigation of removal proceedings Many immigrant children have suffered trafficking, abuse, or other violence from events that occurred in their countries of origin, during their migration journey, or upon arriving in the United States. In particular, child migration from Central America is frequently connected to gang violence, the erosion of human rights, violence in the home, and other grave danger in their countries of origin. The resulting trauma histories, and often compounded trauma, exacerbate the gap that a child must bridge to participate in preparing a legal defense.
A trauma history can affect a child’s ability or willingness to provide information about past incidents. Children who have experienced trauma may have piecemeal or nonlinear memories of the harm they suffered, making it time-consuming to develop and corroborate their claims. It often takes time for them to talk about their experiences. For many, the asylum process is the first time they ever discuss their experiences, and it is a process that requires time and patience — both to ensure a full understanding of their story and to avoid a process that inflicts additional and unnecessary harm on a child.
By forcing a child to address traumatic facts to meet a predetermined timeline rather than one that accounts for the child’s age, development and trauma history, expedited processes ignore the significant impact of trauma on children, the ways in which trauma can delay a child’s ability to assist their attorneys in preparing their cases, and ultimately obstruct decision-makers in the fact-finding process.
Children and families need time to find counsel and adequately prepare their asylum cases
For children, access to legal representation is critical to ensuring that their stories and expressed wishes are effectively communicated and understood in their immigration proceedings. It is unreasonable to expect any person, especially a child, to understand the complexities of U.S. asylum law and lay out every element of their claim by themselves without representation. Yet, expedited processes deny children and families adequate time to find legal representation. For example, a January 2022 TRAC report analyzing Executive Office for Immigration Review (EOIR) data regarding the Biden Administration’s Dedicated Docket program found that in the first seven months of the Dedicated Docket program in 2021, only 15.5% of asylum seekers had legal representation; for those who had been in the program longest, that percentage only went up to 45%. In contrast, over 90% of respondents in asylum cases placed on a regular docket during that same time period had attorneys. A December 2022 TRAC report analyzing EOIR data since the start of the program found that only 43% of all cases assigned to the Dedicated Docket had legal representation; representation significantly declines for cases more recently assigned to the docket, with only 6% of cases assigned between July and September 2022 represented.
Consistent with prior research demonstrating the critical impact of legal representation on the ability of asylum seekers, particularly children, to obtain legal relief in immigration proceedings,21 the inability to obtain legal representation has made it extremely difficult for families on the Dedicated Docket to win legal relief. Only 7% of cases on the Dedicated Docket that were closed in 2022 were granted asylum, compared with 52% of cases in regular proceedings. Moreover, TRAC data shows that only 4.7% of those ordered deported during the first 7 months of the Dedicated Docket had legal representation. On the other hand, of the mere 13 people granted asylum during that same time period, all of them had legal representation. Similarly, the UCLA report analyzing data for the Dedicated Docket in Los Angeles found that most of the families ordered removed in absentia did not have representation, while the vast majority of those families who were able to file applications for asylum or were able to get their cases transferred to a regular docket were represented.
Even if a child or family can find counsel, children’s developmental stages and trauma demand that a child have time to feel safe recounting sensitive facts that give rise to eligibility for immigration relief or adequately develop specific technical legal arguments for their case. An attorney’s preparation of a case is extensive and often labor-intensive, requiring multiple steps to ensure a robust application for asylum (see graphic). Expedited processes impede attorneys’ ability to prepare children’s and families’ cases to ensure that those with meritorious claims for asylum will not be sent back into harm’s way.
Children should be able to pursue independent claims for asylum
By law, children may assert independent asylum claims, separate and distinct from the claims of their parents and guardians. Expedited processes deny children in families the opportunity to make a claim for protection independent of their parent or legal guardian. A report on expedited removal by the U.S. Commission for International Religious Freedom found that children under 14 arriving with parents had few opportunities to make an independent claim for protection, as border patrol agents question only the parent on behalf of the child. When asked about scenarios where children might have a claim independent from their parent or legal guardian, “border patrol agents responded . . . that they were confident that, since the child had made it to the safety of the United States, s/he would voice any concerns s/he had,”28 despite the fact that border patrol agents are uniformed, armed government officials who encounter children and families right after they have ended an arduous journey.
Similarly, the UCLA report found that families on the Dedicated Docket in Los Angeles were unaware that children could make a separate claim for relief and that few children were able to pursue independent claims. In some cases, judges have encouraged families to consolidate their claims, failing to consider the possibility that children may have independent claims. Judges particularly fail to appreciate that children may have separate claims for relief that involve sensitive information that a child may be unable to disclose in the presence of their parents or guardians. Because expedited processes typically lack personnel trained in child development and trauma and child-appropriate, private spaces, they are particularly ill-equipped to ensure that children are able to articulate separate claims for protection.
Children may be returned to danger
For all the reasons given above, expedited processes increase the risk that children will be wrongfully denied legal protection, separated from family, and/or sent back to the very persecution, torture, or abuse that they have fled. A TRAC report regarding the Biden Administration’s Dedicated Docket program found that the program has resulted in high rates of deportation orders: Of the completed cases where EOIR had jurisdiction, 94% of those cases resulted in a deportation order. The UCLA report found that in Los Angeles, children made up almost half of those on the Dedicated Docket and 99% of completed cases resulted in removal orders.30 More than 72% of those removal orders, of which nearly half were for children, were issued in absentia – an outcome particularly unfair for children who have little or no control over whether they are able to appear in court.31 The impacts of past expedited dockets are similar: In a similar report in 2014, a TRAC report found that of those families placed on expedited dockets who were unrepresented, 43% were ordered removed in their initial hearing and fewer than 4% won their cases.
The stakes are too high for our asylum system to sacrifice fairness and children’s safety in favor of expediency. We urge the government to implement significant reforms to ensure that children in our immigration system have a full and fair opportunity to be heard.
Above all, we urge a wholesale reimagining of the immigration system for children. The harms caused by expedited processes to children reflect a broader and more fundamental problem – our complex and adversarial immigration system fails to account for the specific and unique needs and capacities of children. Moreover, the limited, existing protections for children that do exist were created as “carve-outs” or exceptions and reflect the needs of particular groups of children—such as children who arrive at the border without a parent, or those who were brought to the country at a very young age by a parent. Yet, there is little justification for treating immigrant children in fundamentally different ways based on circumstances that are often beyond the child’s control.
As proposed by advocates for children in the report Reimagining Children’s Immigration Proceedings, a new process for children must begin with the principles that (1) children seeking protection in the United States participate in “a holistic process of decision making which places the child at the center” and ensures that the child’s best interests are the primary consideration in every decision; and that (2) “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.”32 Only then can we create a system that safeguards children’s rights and ensures that children are truly able to seek the protection they need.
Additionally, we offer the following recommendations for steps the government should take immediately toward ensuring that children have a fair opportunity to be heard and seek protection: