Minor nonimmigrants (under 18 years old) can be placed into removal proceedings for all of the same reasons as adults. For example, a minor can be removed (deported) for entering the U.S. without being inspected by a border official or overstaying a tourist visa. However, given their youth and the often harsh nature of removal proceedings, the relevant government agencies have special protections in place for those minors facing deportation.
Special Procedures for Detained Minors
Nonimmigrants who are present in the U.S. without permission or who have violated the terms of their visas or other laws risk being placed into detention by Immigration and Customs Enforcement (ICE). To learn more about immigration detention facilities, see Nolo’s article “Living Conditions in Immigration Detention Centers.” When a minor is arrested for immigration violations, the agent or officer must determine whether or not he or she is an “unaccompanied minor.” An unaccompanied minor is a child under 18 years old who does not have a parent or legal guardian in the United States.
Upon determining that the minor has a parent or legal guardian in the U.S., ICE will place the minor into removal proceedings. The minor child will likely have an opportunity to “bond out” of detention if a parent or guardian is able to care for him or her. However, many children remain in detention centers with their parents – particularly those who were caught shortly after they attempted to enter the United States.
There are different rules in place for unaccompanied minors. These minors are transferred to the Office of Refugee Resettlement which will provide care until an alternative placement is possible. This scenario most often occurs when a child is caught at the border without a parent or legal guardian (for example, if the minor is coming to the U.S. to be reunited with relatives). The Office of Refugee Resettlement provides housing and educational services to unaccompanied minors while they are in removal proceedings, unless they are released to a parent, legal guardian, or other family member in the United States. These minors will still face removal proceedings in Immigration Court. However, the Office Refugee Resettlement provides an orientation of what to expect in removal proceedings. Legal representation is not automatically provided to unaccompanied minors. However, children in removal proceedings should retain an immigration attorney to assist them in defending against removal. A list of pro bono (free) and low cost attorneys should be provided in Immigration Court.
Immigration Court Rules for Minors
Minors who are placed into removal proceedings with their parents will most likely have their two cases “joined” or heard at the same time. Children in removal proceedings face the same fate as adults: They will either be granted relief by an Immigration Judge (such as cancellation of removal or a grant of asylum) or be ordered removed from the United States.
There are numerous “child-sensitive” procedures that can be employed by the Immigration Court and court staff, such as:
- Minors in removal proceedings are permitted to tour an empty courtroom, usually prior to their first hearing, so that they can familiarize themselves with the court.
- During their court hearings, minors are allowed “reasonable modifications” to make them feel more comfortable, such as permission to bring a toy or other comfort item. They are also allowed to sit with an adult companion, rather than in the witness stand typically designated for immigrants in removal proceedings.
- A minor’s presence may be waived by the Immigration Judge for Master Calendar Hearings (preliminaryImmigration Court hearings).
- Courts can schedule children’s cases on a separate docket, apart from adult cases.
- Judges are permitted to remove their robes during court hearings for minors.
- During hearings, judges can allow more breaks for minors.
Special Procedures for Unaccompanied Minors Applying for Asylum
There are special procedures in place for unaccompanied minors who are applying for asylum. To learn more about applying for asylum, see Nolo’s section, “Applying for Asylum Status.”
Typically, when a person in removal proceedings applies for asylum as a defense, all applications and evidence are submitted to the Immigration Judge, who will hear the testimony, and ultimately decide whether or not to grant asylum. For an unaccompanied minor, this procedure differs.
Unaccompanied minors are permitted to apply for asylum affirmatively, with U.S. Citizenship and Immigration Services (USCIS). This allows them an opportunity to have their asylum request heard outside the adversarial system of the Immigration Court. An asylum officer specially trained to interview juvenile applicants will first hear the asylum claim. If the asylum officer grants the application, the pending removal proceedings will be terminated. If the asylum officer does not grant the application, he or she has a second chance to apply in court with an Immigration Judge.
In addition, a number of other defenses are available to minors in removal proceedings. For a more detailed discussion on these defenses, see “Minors in Removal Proceedings: Defenses to Consider.”