Federal Policy May Strip Legal Protection from Kids Crossing Border Alone

A new policy from the federal agency that detains unaccompanied, undocumented children has sparked questions about their ability to obtain fair legal representation.

 The 9th Circuit Court of Appeals ruled on July 5 that unaccompanied minors may not be held in immigration detention without a bond hearing, but the Office of Refugee Resettlement (ORR) is now grappling with how to represent these juveniles in court.

Prior to the July 5 decision, juveniles in ORR secure facilities had not been eligible for bond hearings wherein they could argue to be released from confinement and into the custody of a sponsor.

ORR provides unaccompanied, undocumented children access to representation for deportation and immigrant status proceedings. Funding for legal counsel is allocated to service providers through the Vera Institute of Justice, who funnels the money to children’s immigration legal services nationwide.

Early last week, ORR released a new policy that barred the use of that money for bond hearings, alarming some advocates for these immigrant children.

“ORR is not operating as a child welfare agency,” said Holly Cooper, co-director of the Immigration Law Clinic at University of California, Davis, in response to the new policy. “They [ORR] are not protecting kids by limiting their access to legal proceedings. The court has ruled that children have the right to a bond hearing, but what good does that do, if they don’t access a lawyer?”

Last week, the Vera Institute sent an email to its ORR grantees, detailing the new policy from ORR: ORR dollars cannot be used to exclusively provide representation for the purpose of a bond hearing.

A Vera Institute email explaining the new policy to its ORR grantees was obtained by The Chronicle of Social Change.

According to the email, if a service provider is already representing a child in immigration proceedings and a bond hearing is found necessary, then funding may be used. But a service provider “may not initiate representation with a child solely for purposes of a bond using Vera/ORR funding.”

Most children handled by ORR, the agency charged with the care and placement of unaccompanied minors in immigration proceedings, spend a minimal amount of time in shelters or medium security facilities before being released to a sponsor. Sponsors, often kin or family friends, assume the financial, educational, housing and legal obligations of the child with ORR oversight, including ensuring that the child appears in court for their immigration status case.

Unaccompanied immigrant youth who are deemed dangerous to themselves or others, or are considered at-risk of running away are not eligible to be released to sponsors. These minors end up in one of two ORR secure facilities: Yolo County Juvenile Detention Center in Woodland, California, or Shenandoah Valley Juvenile Center in Staunton, Virginia.

The 1997 Flores Settlement Agreement set national standards regarding the detention, release, and treatment of all undocumented children in federal custody, including a provision that detained minors be placed “in the least restrictive setting appropriate to the minor’s age and special needs.” The July decision upheld a January ruling by U.S. District Court Judge Dolly Gee that the federal government was in violation of the Flores agreement by not allowing children in the secure facilities a right to a bond hearing, which will determine whether the government may hold someone.

According to Cooper, one of the lead prosecutors in the 9th Circuit Flores Appeal case, prior to this ruling, children could be held indefinitely without an ability to plead their case to be housed with an ORR sponsor.

Bond hearings are critical for getting children into the “least restrictive environments” with family or friends, but having never conducted bond hearings prior to the ruling, both advocates and ORR are unsure of how this new process will unfold, according to an ORR-funded legal service provider.

Children who are eligible for bond hearings that do not already have a pro bono lawyer will either need to hope that their families or sponsors can hire a lawyer or they will have to represent themselves. Currently, fewer than half of kids in deportation proceedings have legal counsel.

Bond hearings may be costly. An ORR-funded legal service provider who declined to be identified estimated that bond hearings could take up to three days.

“In response to a query from The Chronicle of Social Change, a spokesperson from ACF said that there are currently 30 pending requests for Flores bond hearings, though some advocates think that number of children in ORR custody that are eligible for a bond hearing could be much higher.

According to the spokesperson, “ORR has provided notices to UAC (unaccompanied alien children) in HHS custody of their right to a Flores bond hearing following the Ninth Circuit Court of Appeals decision in Flores v. Sessions.”

ORR declined to comment on the reasons for the new policy.

Note: This article has been updated to reflect the that ORR provided information about the total number of pending requests for Flores bond hearings. However, it did not provide on-the-record comment about the new policy restricting funding for bond hearings.

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