An unaccompanied 7-year-old in Texas in 2021.Dario Lopez-Mills/AP
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Congressional Democrats sent a letter to Health and Human Services (HHS) Secretary Robert F. Kennedy Jr. on Monday, urging him to rescind a new policy they say violates the rights of unaccompanied immigrant children and makes them vulnerable to deportation.
Under the policy, unaccompanied minors would be represented in court by HHS lawyers instead of independent attorneys, a change the lawmakers say creates a conflict of interest, given the administration’s desire to deport as many immigrants as possible and the health department’s role in detaining the children.
“The immigration judge works for the Trump administration. So does the prosecutor. Under your plan, so would the child’s lawyer. That is unacceptable,” wrote Sens. Tammy Duckworth and Dick Durbin (Ill.), Elizabeth Warren and Edward Markey (Mass.), Adam Schiff (Calif.), and Ron Wyden (Ore.).
As I reported earlier this month, HHS had quietly announced the creation of a new division, the Unaccompanied Alien Children Legal Representation Division, to perform this legal work. Kennedy’s agency also oversees the Office of Refugee Resettlement, which is responsible for placing kids in shelters after they cross the border alone and deciding when to release them to relatives in the United States.
“They’re just ordering everybody removed—even good asylum claims where the kids are genuinely going to be killed.”
Under President Trump, ORR is holding kids significantly longer than it had under Biden—about six months on average; it also is sharing information with ICE. “HHS holds these children in custody, decides where they live, and shares information about them and their families with immigration enforcement. HHS cannot also be their lawyer,” the lawmakers wrote.
Federal law gives unaccompanied minors a right to an attorney, and HHS’ own regulations stipulate they should receive a legal orientation from an independent provider. Historically, that’s been done by a network of experienced nonprofits, led most recently by the Acacia Center for Justice. But the Trump administration let the network’s contract expire over the summer. It then awarded the job to Burke Law Group, a small firm with far less experience in these matters, but greater ties to Trump: One of Burke’s co-founders served in the first Trump administration and one of its founding partners works for the second.
Facing backlash, Burke Law Group pulled out. Next, the contract went to Our Rescue, a nonprofit founded by a former ICE agent. A court put that deal on hold after the Acacia Center filed a protest against it. In the meantime, the administration gave a temporary contract to the US Committee for Refugees and Immigrants, whose personnel, according to court filings, often sit silently in court and have only represented 12 children so far; by contrast, the nonprofit network had been representing more than 20,000.
The network’s advocates doubt the government’s lawyers will have their clients’ best interests in mind if they take over the cases. “The idea that HHS, the same agency that’s detaining the children, would be able to provide the kind of child-centered, zealous and trauma-informed, independent legal services that were mandated by Congress is frankly absurd,” says Shaina Aber, the Acacia Center’s executive director. Aber questions whether HHS attorneys would help children who are wrongly detained or abused or mistreated while in government custody.
“It’s a major conflict of interest and ethical concern,” adds Adina Appelbaum, an attorney with the Amica Center for Immigrant Rights, part of the nonprofit network.
Some independent attorneys have continued representing kids without pay, but they can’t afford to pick up new cases and say the administration is hampering their work in other ways. For one, immigration judges in the Justice Department are fast-tracking children’s cases, requiring them to attend hearings with little time for counsel to prepare, according to a lawsuit filed this month. “They’re just ordering everybody removed—even good asylum claims where the kids are genuinely going to be killed” if they return to their countries of origin, says Laura Smith, an attorney at the Children’s Legal Center in Illinois.
In recent weeks, the administration has also transferred children’s cases to courts far from where they are living, their attorneys say, thus forcing the children and their lawyers to appear virtually, even when there is courtroom space in the jurisdiction where they are located, where they could otherwise attend in person. Meanwhile, the Department of Homeland Security lawyers seeking to deport the children can often show up at the new location, putting the children at a disadvantage.
Attorney Lauren Fisher Flores, who represents kids at the American Bar Association ProBAR in Texas, says she and a young client logged into one hearing but could not see the judge on the screen, which made it difficult for the child to follow what was happening.
“Part of due process is having to look at the child they’re deporting and explain things to that child, and have the child be able to ask questions,” she says. “When you have a child looking at an empty court room, and you have no real ability for all the parties to be in the same space, it’s contrary to child-friendly best practices, and it means children are just churned through this deportation machine.”
When I reached out to the Executive Office for Immigration Review, the Justice Department office that handles immigration cases, it said it was not “fast-tracking” cases but rather working efficiently, and it defended the virtual hearings. The office “prioritizes the timely completion of all cases and makes scheduling adjustments as needed to ensure cases do not languish,” a spokesperson said. HHS did not respond to my questions about its lawyers representing unaccompanied minors, but told the Associated Press that the lawyers would “give the Department an additional mechanism to provide these children direct legal support while dedicated public servants work around the clock to safely reunify them with their families.”
The senators who sent the letter on Monday aren’t buying it. They are calling on the administration to restore independent counsel for the kids. “Unaccompanied children deserve lawyers whose only loyalty is to them,” they wrote. “We demand that you rescind this harmful policy before a single HHS attorney stands beside a child in immigration court.”
