DOJ, DHS would get more staffing for children in immigration courts under bipartisan bill

A bipartisan, bicameral group of lawmakers are looking to add a new component focusing on children within the executive branch’s immigration court system, saying the measure would create new efficiencies in the severely backlogged system while also improving services for minors. 

The 2023 Immigration Court Efficiency and Children’s Court Act would establish a children’s court within the Justice Department’s Executive Office of Immigration Review that would maintain a special docket of cases for migrant children. There are currently 62,000 unaccompanied minor cases pending before EOIR. The measure was introduced by Sens. Michael Bennet, D-Colo., and Lisa Murkowski, R-Alaska, as well as Reps. Dan Goldman and  D-N.Y., and Maria Salazar, R-Fla. 

Immigration judges working in the new children’s court would receive training on child trafficking, docket management and helping kids engage in the process and understand their rights. The training would focus on treating children appropriately according to their age. Judges would allow the children time to find counsel and coordinate with legal service organizations that specialize in assisting minors. The Homeland Security Department would have to stand up a children’s cohort of attorneys who would receive similar training. 

The current system, proponents of the bill said, is designed for adults and creates both unfairness for children and logistical challenges for executive branch judges and attorneys. By streamlining cases involving children, they said, the government can “relieve strain” on the immigration system. Under the bill, children will have an easier time obtaining representation, which will in turn reduce the time a judge has to spend postponing and explaining proceedings. Children also frequently pursue alternative resolutions through U.S. Customs and Immigration Services and the bill’s supporters said the children’s court will make it easier to coordinate those efforts. 

The measure would create a ban on quota-based performance metrics for the children’s court, a practice that EOIR rolled out with significant pushback during the Trump administration. Judges working the special court would only spend 75% of their time on the children’s docket, meaning they would also work at least some adult cases. 

"After many years of working toward a more lawful and humane immigration system, I've come to understand that kids, especially unaccompanied minors, can suffer the most from the broken immigration system that we have," Bennet said. "It makes no sense to me that their cases should be handled in the same manner as adult cases and in courts that are designed for adults." 

Goldman called it "impossible" for an unaccompanied minor to arrive in the country and understand the complexities of the immigration system and praised the bill for not requiring significant new spending. The measure does authorize any funding required for Justice, DHS and the Health and Human Services Department. 

Under each of the last recent administrations, Justice has decried understaffing and sought to boost its cadre of immigration judges and support staff. With Congress’ support, it has worked to address the issue, boosting the number of immigration judges from 338 in 2017 to 659 this year. Still, a Government Accountability Office report last month found EOIR has not committed sufficient resources to workforce planning and has not assessed the effectiveness of its performance appraisal program. 

Despite the workforce growth, the backlog of pending cases before EOIR has ballooned to 2.2 million, more than four times the total in 2017.  As part of a $106 billion emergency spending request focused primarily on foreign aid, President Biden is currently asking for funding to add 375 immigration judges within EOIR and support staff for each of them.

Several advocacy groups threw their support behind the bill, including the American Immigration Lawyers Association, the American Bar Association and Kids in Need of Defense (KIND). 

“It's truly remarkable and a great testament to their and their cosponsors dedication to fundamental fairness, that in these times of division, they have united on a bill that will help protect unaccompanied children against human trafficking and child labor, while also saving government resources and promoting incredibly needed efficiency in the immigration court system,” said Wendy Young, KIND’s president. 

Lawmakers also called it an “amazing moment” to have members of both parties and chambers come together on the typically divisive issue of immigration. Still, they expressed some skepticism that Republican leadership in the House would help advance the bill. 

“Republicans and Democrats are going to have to work together to get that done,” Goldman said. “And right now, we don't have a good faith partner across the aisle to actually find solutions rather than to use political talking points.” 

Republicans who supported the measure said children deserve better than the current system. 

“Children are often the greatest victims of our broken immigration system,” Salazar said. “We must do better to meet children’s needs while streamlining immigration court proceedings and making our courts more efficient.”