New Guidelines for Children’s Cases in Immigration Court

On December 21, 2023, the Executive Office for Immigration Review (EOIR) issued a memorandum, effective immediately, providing important guidance for cases in immigration courts where the lead or sole respondent is a child (defined as under the age of 21) or where a witness is a child.

Through this memorandum, EOIR announced that it was creating specialized juvenile dockets in each immigration court that had a caseload of children’s cases. Hearings will be held on specific days of the week and will be separate from hearings for adults. Specific immigration judges will be assigned to these juvenile dockets.

The memo emphasized several guidelines applicable to all children’s cases. Some of these include:

• Relief from Removal: Immigration judges are reminded that they should always inform a child of any potential relief from removal for which they may be eligible, including special immigrant juvenile status and asylum.
• Credibility: The memo explains that children “will generally not able to testify with the precision and clarify of an adult” and that judges “should not assume that inconsistencies or poor articulation in a child’s testimony reflet dishonesty.”
• Trafficking, Abuse, and Neglect: Immigration judges should be mindful of these issues and may ask questions pertaining to potential abuse or neglect. Judges should be mindful of who accompanied the child to court and, if necessary, ask questions to ensure the child is not being trafficked.
• In Absentia Removal Orders: When an individual fails to appear for a scheduled immigration court hearing, the immigration judge will generally issue an in absentia removal order. However, in children’s cases, immigration judges are instructed to give special consideration to the child’s circumstances, allowing the government attorney time to verify the child’s address, and to consider all circumstances, including the child’s young age, before issuing an in-absentia removal order.

Recognizing the vulnerability of child respondents, the memo also instructs on child-friendly courtroom procedures. It outlines specific measures that can be taken to ensure children feel as comfortable as possible, such as explaining proceedings in child-appropriate language, permitting immigration judges to not wear their judicial robes, and making other courtroom modifications to accommodate the needs of children, such as allowing them to testify sitting next to a trusted adult rather than sitting in the witness box. The memo also stresses the importance of child-sensitive questioning to ensure a more complete and accurate record.

This new memo is a welcome affirmation of the reality that children face unique challenges navigating an immigration court system designed for adults. While there is still much to be done to ensure that children’s rights are protected in immigration court, this memo is a welcome step in the right direction.