The Trump Administration Is Reducing Legal Pathways For Immigrant Kids To Stay In The Us

The Trump administration is narrowing the options for undocumented children to stay in the United States — putting up procedural hurdles that make it increasingly difficult for them to get either residency or asylum.

In recent months, the Trump administration has issued administrative rulings preventing immigration courts, which are part of the executive branch, from delaying cases if children are waiting on in-process visas, and reassessing whether all children who came to the United States by themselves can be classified as unaccompanied minors.

While those moves have been public, immigration courts are now invoking these rulings particularly broadly as reasons for quick deportations. Lawyers for some of these children argue the application by the courts has been overly broad and essentially steamrolls over the children’s legal rights.

“It’s a full on assault on children,” said Kel White, who leads public engagement and training efforts at the Acacia Center for Justice, which until last month, upon the expiration of its contract with the government, oversaw the representation of thousands of children in immigration court. “This is a cruel and massive orchestration to strip children of their rights to have a fair and child-centered proceeding.”

The efforts in the aggregate seem poised to erode a long-held principle of the immigration system — that children are uniquely vulnerable and as such are entitled special rights and procedural safeguards.

The Department of Justice’s Board of Immigration Appeals, an internal body that reviews cases from the nation’s immigration courts, has prevented judges from pausing deportation cases while children pursue Special Immigrant Juvenile Status visas — which are given to children who have suffered abuse or neglect. The board argued that the multi-year State Department backlog in issuing those visas makes waiting unfeasible.

And broadly speaking, some immigration judges are beginning to reassess whether children immigrants who entered the country by themselves can be classified as unaccompanied minors if they were later reunited with their parents in the United States. Changing that would block them from a number of benefits, including the ability to have their asylum cases heard by staff at U.S. Citizenship and Immigration Services who are better trained to interview children. That alone could affect the adjudication of thousands of children's asylum claims.

“The vast majority of our kids are seeking relief through SIJS or asylum,” said Jennifer Hojaiban, a senior policy adviser at Kids in Need of Defense, one of the largest nonprofits representing unaccompanied children in deportation proceedings. “We're going to have to figure out these strategies to appeal these decisions. And someone's going to have to bring this to federal court and try to get a ruling that constrains the immigration judges.”

Already, those rulings are affecting deportation cases working their way through the courts. At the Executive Office for Immigration Review courthouse in Annandale, Virginia, last week, a judge employed those jurisprudential limits in a number of cases. Judge Paul McCloskey, who held master calendar hearings in nearly 50 cases Wednesday and Thursday of last week, cited these recent legal changes as rationales not to issue continuances and in some cases used them to preliminarily deny asylum claims.

The Executive Office for Immigration Review, which oversees the nation’s immigration courts and the Board of Immigration Appeals, declined to comment on individual cases, but did say in a statement that “unnecessary delay hurts both aliens with meritorious claims and the American public who wish to see aliens with non-meritorious claims removed as quickly as possible. As it continues to add new immigration judges, EOIR will continue to make scheduling adjustments to ensure all cases are handled in a timely and lawful manner.”

The Justice Department added in a separate statement that “reducing the immigration court backlog remains one of the highest priorities for this administration” and that it “is restoring integrity to our immigration system by hearing cases fairly, expeditiously, and uniformly, in accordance with the law.”

“Board of Immigration Appeals decisions reflect straightforward interpretations of clear statutory language,” the statement continued. “The BIA is now recommitted to following the law and fulfilling its core adjudicatory mission.”

The restrictions imposed so far affect a large swath of children. Adults have a series of paths to obtaining legal status — including marrying a U.S. citizen or permanent resident or finding an employer that will sponsor them — that children do not.

The Special Immigrant Juvenile Status Visa is available to unauthorized immigrant children who have a protective order from a state probate court affirming that they have been abused, abandoned or neglected by their parents. Lawyers have previously asked immigration judges to halt cases while their clients await those visas, which are capped under federal law.

The March ruling on delaying cases means that some children who were approved in 2023 for that visa may be subject to deportation, even though they could receive it from the State Department in the coming months, especially since the department has improved its pace of processing those applications. As of now, the State Department’s visa bulletin says that it is only dealing with approved visa applications dated on or before Oct. 15, 2022.

The State Department did not respond to requests for comment. U.S. Citizenship and Immigration Services directed POLITICO to the Justice Department.

Lawyers in many cases in Annandale last week objected to McCloskey’s interpretations of the law. The attorneys argued that the visa bulletin changes regularly, and sometimes dramatically, and that an immigrant’s status as an unaccompanied child is not a fluid designation that can change during proceedings. The judge noted their objections for the record, but at no point diverged from his interpretation of the Board of Immigration Appeals rulings.

Some children in removal proceedings theoretically qualify for a “T visa” if they can prove they were a victim of human trafficking. That visa would allow them to stay for four years in the U.S. and grants a path to a green card. But the standard for proving that is high.

In the meantime, advocacy groups are working with other nonprofits to compile evidence of bias from immigration judges against children in removal proceedings and have begun suing the federal court using habeas corpus petitions to secure the release of children who have spent several months in Health and Human Services facilities.

While Board of Immigration Appeals rulings can be appealed to the federal circuit courts, those appeals will likely only further strain already stretched immigration lawyers.

Hojaiban warned that recent disruptions to federal funding for the network of organizations representing these children pro bono may further limit the ability to appeal decisions, even if they believe the Board of Immigration Appeals is wrong.

“We may have to close those cases even if there are grounds for appeal,” Hojaiban said.