New Data on Unaccompanied Children
in Immigration Court

The recent surge of tens of thousands of unaccompanied children attempting to enter the country has touched off a heated debate. Some ask whether having Immigration Judges decide the fate of these children only postpones their inevitable deportation since it is alleged that few have any valid claim to remain in the United States. Others hotly dispute this contention.

This special report presents information derived from current and detailed case-by-case Immigration Court records tracing decisions on removal orders sought by the Department of Homeland Security (DHS) concerning unaccompanied children who have been apprehended by the agency. The data, current through June 30, 2014, was obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University from the Executive Office for Immigration Review (EOIR) under the Freedom of Information Act.

The data trace the status of over 100,000 such cases. The information includes every instance over the last decade flagged as a juvenile case currently recorded in EOIR files. In each of these cases, the Department of Homeland Security instituted the action requesting that the court issue an order to deport these children. Because the DHS has authority to screen and then immediately deport unaccompanied Mexican children without any formal hearing, only a small proportion of children from Mexico are referred to the Immigration Court by the DHS. For this reason unaccompanied children who are immediately deported by DHS are not part of the court data examined here. See About the Data for additional details.

As shown in Table 1, cases filed in the courts in the last few years (since the increase began) make up about half of the total cases filed. As of end of June, court proceedings had been completed on 59 percent of all cases (60,209 matters out of the 101,850). Proceedings were ongoing for the remaining 41 percent.

Table 2. Pending Workload in Immigration Courts* Type Number Percent Juvenile cases 41,641 11% Other cases 333,862 89% total 375,503 100% *as of June 30, 2014

Figure 1. Pending Workload in Immigration Courts

Accompanying this special report is a new web-based tool which provides the public with detailed access to the data TRAC has compiled on these cases. Using this tool, you can drill in to pinpoint how many cases have been filed for any particular nationality, state, immigration court, and hearing location, and also find the current status of these cases. For those cases in which the proceedings have concluded, the outcome is provided. Additional details on each case are also available in the data tool.

While public attention has been focused on the plight of juveniles arriving at our borders and their growing numbers, unaccompanied children make up a small proportion of those impacted by the current administration's enforcement activities. Although the recorded number of new Immigration Court juvenile cases during the last three months (April - June 2014) has doubled over the previous six months of this fiscal year (October 2013 - March 2014), these cases still make up only 11 percent of the Immigration Court's backlog — a total of 41,641 pending juvenile cases out of the total backlog of 375,503 cases. See Table 2 and Figure 1.

How Often Does a Child Appear Unrepresented?

It is well established that the odds of prevailing in court are much better for an individual who has the assistance of a lawyer. Yet the government is under no obligation to provide legal counsel to the indigent — even if they are children — in Immigration Court proceedings. Meanwhile, the government itself is always represented by an attorney.

Few children appearing in Immigration Court have the financial resources to hire an attorney, even though in most of the matters it is reasonable to assume they do not comprehend the nature of the proceedings they face or the complex procedural and substantive challenges of the immigration law. (Of course, there is also a language barrier, since most unaccompanied minors do not speak English.) While many immigration lawyers and law clinics attempt to provide legal assistance on a pro bono basis, their numbers are insufficient to meet the need. One result of this is that children were not represented about half of the time (48%) they appeared in Immigration Court, although there is wide variation by state and hearing location. Less than a third (31%) have thus far been able to secure an attorney in currently pending cases. See Table 3.

How Often Do Immigration Judges Conclude That Children Can Stay?

The data show that in a large number of cases, Immigration Judges decline to order these children's removal. Many are found to have legitimate legal grounds to remain in this country. The data also show that outcomes in these cases are all too often determined by whether an attorney was present to assist the child in presenting his or her case. For this reason, results are tabulated separately for children with and without representation. (For those cases in which Immigration Court proceedings have concluded, the child was represented in 31,036 cases, and appeared without an attorney in the remaining 29,173 of juvenile cases heard by an Immigration Judge.)

Here are the results in brief:

• Outcome if attorney present. In almost half (47%) of the cases in which the child was represented, the court allowed the child to remain in the United States. The child was ordered removed in slightly more than one in four (28%) of these cases. And in the remaining quarter (26%) the judge entered a "voluntary departure" (VD) order. (While with a VD order the child is required to leave the country, the child avoids many of the more severe legal consequences of a removal order.)
• Outcome if no attorney. Where the child appeared alone without representation, nine out of ten children were ordered deported — 77 percent through the entry of a removal order, and 13 percent with a VD order. One in ten (10%) were allowed to remain in the country.

Table 4 provides year-by-year outcome data for these cases. This table is based on the fiscal year the DHS filed the case in the Immigration Courts, and not the year of the court's decision. This arrangement of data facilitates examining the outcomes for any particular cohort of children defined by when they were apprehended and placed in removal proceedings. Given the increasing numbers of unaccompanied children that are now arriving, it is reasonable to ask the question "Do these children appear to have any less legitimate claims to remain in the country than those who arrived earlier in the decade?"

Answers to this question must be tentative, given the large proportion of cases that remain to be decided for children who have arrived recently. However, outcomes thus far do not suggest that children who have arrived during the recent surge present less worthy cases. Examining cases filed during the last 21 months (FY 2013 through June 30, 2014) for which outcomes have been reached, a greater proportion of the children have been allowed to remain in this country, and a smaller percentage were ordered deported, relative to earlier cohorts of children. This was true both for those who were represented as well as those who were not. For example, for children who had the assistance of an attorney, less than one out of three were ordered deported, while two-thirds were allowed by the Immigration Judge to stay. This is a higher proportion of children allowed to remain in the U.S. than the roughly 50/50 split that was previously seen for the decade as a whole. Even without the assistance of an attorney, over a quarter of recently arrived children have been allowed by an Immigration Judge to remain, as compared with only 10 percent for the decade as a whole.

Reasons Children Are Allowed To Stay

The DHS initiates these court proceedings by seeking a removal order, and the Immigration Judge has to decide whether or not it is appropriate under the particular set of facts given the law that applies to the case. While an Immigration Judge may find that a specific type of relief provided by immigration statutes should be granted, the removal order also can be denied when DHS does not have valid grounds for removing the individual. In the case of unaccompanied juveniles, there are a range of statutory protections that may apply and that can result in the court denying the government's request. For example, asylum may apply to those fleeing persecution. Special Immigrant Juvenile Status (SIJS) can be granted to protect children who have been abused, abandoned or neglected. T-visas exist for those found to be victims of human trafficking, while U-visas can be granted for victims of certain crimes.

Most of the time, whether these special forms of relief are granted is determined by some other government agency and not directly by an Immigration Judge and thus would not be recorded as the basis for the court's decision. Only when the judge is the person that actually grants a specific form of relief does the court's database record the type of relief granted, such as asylum. One of the reasons that decisions in court cases frequently take time, apart from the court's own backlog of cases, is because court proceedings may be adjourned waiting for another government body to act on applications under these provisions.

When another agency has granted one of these forms of relief, the Immigration Judge typically will order the case "terminated," or close the case for "other" unspecified reasons, either through a decision or some form of administrative closure. As shown in Table 5, when the child has an attorney, "terminated" and "other" are the most common reasons recorded for closing a case and allowing the child to remain in the country. Relief personally ordered by the Immigration Judge occurs less frequently.

DHS itself can recommend that a case be closed and the child be allowed to remain in the country through the exercise of its longstanding prosecutorial discretion (PD) authority. Since FY 2012, the court has included PD as a basis for the closure of a case. Since that time, PD has been the reason for 9 percent of juvenile closures. Examined another way, this amounts to 3 percent of all concluded juvenile cases filed during the last decade.

Look for Further Updates

TRAC plans to continue tracking Immigration Court proceedings on juvenile cases. We will regularly update this data series focusing on children, and will provide public access to the updated results via our web-based data access tool. This will allow the public to examine when court proceedings are concluded as well as the outcomes reached. TRAC will also continue to add information on new filings as soon as the court records on the filing are received. If you would like to receive automatic notification when we post new data, follow us on Twitter or sign up for our email alerts.