Restricted accessResearch articleFirst published online 2025-6
In Whose Best Interests? Comparing Children’s Treatment in Immigration Court and in Child Protection Hearings in Minnesota: Similar Issues Without the Relevant Tools or Best Interests Standard
Federal immigration courts and state child welfare courts make decisions regarding certain similarly situated children in need of protection, but how does immigration court compare in its procedures for dealing with them? This article uses a comparative court observation approach to consider that question, by analyzing six months of observational data from the Fort Snelling Immigration Court juvenile docket, along with observations in Minnesota juvenile court child protection proceedings. Findings include the prioritization of federal government interests over children’s best interests, apparent in the US Government ensuring that an attorney represent its own interests before the immigration judge, while children must represent themselves if unable to find or afford an attorney. Furthermore, unrepresented children must navigate complex multi-agency procedures in order to seek the two most common forms of legal protection (Special Immigrant Juvenile Status, and asylum). Finally, the federal government fails to provide appropriate tools for responding to indicators of child welfare matters mentioned in immigration court, despite holding states to account for their handling of child maltreatment.
DettlaffAlan J.2023. Confronting the Racist Legacy of the American Child Welfare System. Oxford: Oxford University Press.
16.
DuquetteDonOrlebekeBrittanyZinnAndrewPottRobbinSkylesAdaZhouXiaomeng. 2021. Children’s Justice: How to Improve Legal Representation of Children in the Child Welfare System, [NACC E-version, 2021]. National Association of Counsel for Children, and University of Michigan Law. https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1109…context=books
First Star Institute. 2019. A Child’s Right to Counsel: A National Report Card on Legal Representation for Abused & Neglected Children. http://www.caichildlaw.org/Misc/RTC4.pdf
HHS/ACF/CB (U.S. Department of Health and Human Services, Administration for Children and Families, Children’s Bureau). 2017. “High Quality Legal Representation for All Parties in Child Welfare Proceedings, Log No: ACYF-CB-IM-17-02.”https://www.acf.hhs.gov/sites/default/files/documents/cb/im1702.pdf
25.
ItzkowitzMiriamOlsonKatie. 2022. “Closing the Front Door of Child Protection: Rethinking Mandated Reporting.”Child Welfare100(2):77–98.
KellerMaryBeth.2017. Operating Policies and Procedures Memorandum 17-03: Guidelines for Immigration Court Cases Involving Juveniles, Including Unaccompanied Alien Children. Office of the Chief Immigration Judge, Executive office for Immigration Review, US Department of Justice, December20, 2017. https://www.justice.gov/eoir/file/oppm17-03/dl
28.
KerwinDonaldMilletEvin. 2023. “The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog.”Journal on Migration and Human Security11(2):194–227. https://doi.org/10.1177/23315024231175379.
29.
KerwinDonaldKerwinBrendan. 2024. “What Will It Take to Eliminate the Immigration Court Backlog? Assessing ‘Judge Team’ Hiring Needs Based on Changed Conditions and the Need for Broader Reform.”Journal on Migration and Human Security12(2):75–84. https://doi.org/10.1177/23315024241226645.
McHenryJames R.III. 2019b. “Legal Advocacy by Non-representatives in Immigration Court.” PM 20-05, November 21, 2019. EOIR Director, US Department of Justice. https://www.justice.gov/eoir/page/file/1219301/dl
RobertsDorothy. 2022. Torn Apart: How the Child Welfare System Destroys Black Families–and How Abolition Can Build a Safer World. New York, NY: Basic Books.
TRAC (Transactional Records Access Clearinghouse). 2014. “New Data on Unaccompanied Children in Immigration Court.”TRAC Immigration, Syracuse University. https://trac.syr.edu/immigration/reports/359/
57.
TRAC. 2024a. “Too Few Immigration Attorneys: Average Representation Rates Fall from 65% To 30%.”TRAC Immigration, Syracuse University, January24, 2024. https://trac.syr.edu/reports/736/
58.
TRAC. 2024b. “Two-Thirds of Court Asylum Applicants Found Legally Entitled to Remain.”TRAC Immigration, Syracuse University, May17, 2024. https://trac.syr.edu/reports/742/
United Nations. 2013. “Convention on the Rights of the Child, Committee on the Rights of the Children, General Comment No. 14 (2013) on the Right of the Child to Have His or Her Best Interests Taken As a Primary Consideration (art. 3, para. 1)*.” CRC/C/GC/14, May 29, 2013. https://www2.ohchr.org/english/bodies/crc/docs/gc/crc_c_gc_14_eng.pdf
61.
USCIS (U.S. Citizenship and Immigration Services). 2024. “I-589, Application for Asylum and for Withholding of Removal.”USCIS, DHS. https://www.uscis.gov/i-589
Please find the following supplemental material available below.
For Open Access articles published under a Creative Commons License, all supplemental material carries the same license as the article it is associated with.
For non-Open Access articles published, all supplemental material carries a non-exclusive license, and permission requests for re-use of supplemental material or any part of supplemental material shall be sent directly to the copyright owner as specified in the copyright notice associated with the article.
