Imagine a three-year-old. Maybe they’re wearing a bright t-shirt with a cartoon character on it. They’re sitting on a chair, but their feet don't even reach the edge of the seat, so their legs just dangle there. Now, put that child in a courtroom. There is a judge in a black robe sitting high above them. There is a government prosecutor—a trained lawyer—whose entire job is to argue why that child should be deported. And the child? They have nobody. No lawyer. Just themselves.
This isn't a scene from a dystopian movie. It is exactly what happens when we talk about children representing themselves in immigration court.
It’s a weird quirk of the American legal system that most people don't realize until they’re staring it in the face. In criminal court, if you can’t afford a lawyer, the government has to give you one. "Right to an attorney," right? We’ve all heard it on TV. But immigration court is civil, not criminal. That tiny distinction means the Sixth Amendment doesn't apply. If a kid can't afford a private lawyer or find a pro bono attorney who isn't already buried under a mountain of cases, they are on their own. They are "pro se."
The "Toddler Court" Controversy
A few years ago, a senior immigration judge named Jack Weil made headlines for something he said in a deposition. He claimed that he had taught immigration law to three-year-olds and four-year-olds. He insisted they could understand the proceedings.
He was wrong. Honestly, anyone who has ever met a toddler knows that’s ridiculous.
You can’t explain the concept of "asylum" or "withholding of removal" to someone who is still learning how to tie their shoes. Yet, the system persists. According to data from TRAC (Transactional Records Access Clearinghouse) at Syracuse University, thousands of unaccompanied minors have navigated these proceedings without legal representation over the last decade. The numbers fluctuate based on border surges and policy shifts, but the core problem remains: the "adversarial" nature of the court doesn't change just because the respondent is a child.
Why does this keep happening?
Money. It basically comes down to resources.
The Executive Office for Immigration Review (EOIR), which is part of the Department of Justice, manages these courts. While there have been various programs—like the Justice AmeriCorps initiative or various grants for non-profits—there has never been a universal, federally mandated right to counsel for children in immigration proceedings.
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When a child arrives at the border alone, they are usually processed by Customs and Border Protection (CBP) and then handed over to the Office of Refugee Resettlement (ORR). Eventually, they are released to a "sponsor," which is usually a parent or a relative already living in the U.S. But being released to a sponsor doesn't mean their legal case goes away. It just means they aren't in a shelter anymore. They still have to show up to court. If that sponsor is also undocumented or living in poverty, hiring a private immigration attorney—which can cost $5,000 to $10,000—is often impossible.
The massive gap in outcomes
Does having a lawyer actually matter? Yes. It matters a lot.
The statistics are pretty grim for those without help. Data consistently shows that children with attorneys are far more likely to be allowed to stay in the United States. In some years, represented children were five times more likely to win their cases compared to those representing themselves.
Think about what a lawyer does in this context. They aren't just "talking." They are:
- Filing Form I-589 for asylum.
- Checking if the child qualifies for Special Immigrant Juvenile Status (SIJS), which requires a state court order.
- Gathering evidence of gangs or violence in the home country.
- Explaining to a terrified ten-year-old why they need to tell a stranger about the worst day of their life.
When children representing themselves in immigration court try to do this, they fail. Not because their claims aren't valid, but because they don't know the rules. They don't know how to cross-examine a government witness. They don't know that failing to file a specific piece of paper by a specific deadline means an automatic deportation order.
What it looks like inside the room
It’s quiet. Usually, there’s an interpreter. The judge asks the child, "Do you know what a lawyer is?" The child might nod, or they might just stare at the floor. The judge then explains that they have a right to a lawyer, but the government won't pay for one. Then the judge asks if they want more time to find one.
This happens over and over. "Continuances." The case gets pushed back three months, then six months. The kid grows up a little bit more in the shadows. Eventually, the judge runs out of patience. The trial—the "merits hearing"—starts.
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The prosecutor asks questions. "Why did you leave Honduras?" "Who was threatening you?" "Did you report it to the police?" If the child says "no" because the police were the ones doing the threatening, they have to explain that in a way that fits the legal definition of "nexus" to a protected social group. A twelve-year-old isn't going to use the word "nexus." They’re just going to say, "I was scared." Often, "I was scared" isn't enough for a legal win.
The psychological toll
We talk about the legalities, but we rarely talk about the trauma. Many of these kids are fleeing extreme violence. Asking them to recount that violence in a sterile courtroom, while a government official tries to poke holes in their story, is re-traumatizing.
When a child has an attorney, that attorney acts as a buffer. They can frame the testimony. They can prepare the child. Without that, the child is essentially being interrogated. It’s a lopsided fight. You have a professional litigator against a minor who might not even speak English fluently, let alone "legalese."
Is there a solution on the horizon?
There have been pushes for the "Fair Day in Court for Kids Act" and similar legislation for years. The goal is simple: mandate that the government provide counsel for unaccompanied minors.
Critics of these bills usually point to the cost. They argue that providing free lawyers will "clog" the system or encourage more migration. But proponents argue that the system is already clogged. Represented cases actually move through the system more efficiently because the paperwork is filed correctly and the issues are narrowed down before the hearing starts.
There's also the "Adversarial" vs. "Inquisitorial" debate. Some advocates suggest that immigration court for children shouldn't look like a trial at all. Instead, it should look more like a child welfare hearing, where the focus is on the "best interests of the child." But right now, the immigration judge is not legally bound to rule based on the child's best interests. They are bound by the Immigration and Nationality Act, which is a cold, hard set of rules that doesn't care much about age.
What really happens when they lose
If a child loses their case while representing themselves, a removal order is issued. Sometimes, they don't even realize it happened. They might think they’re just going home for the day.
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If they have a sponsor, Immigration and Customs Enforcement (ICE) might not immediately come to the door. But that order stays on their record forever. It means they can never get a work permit. They can never get a driver's license in most states. They live in a state of permanent legal limbo until, one day, they get pulled over for a broken taillight and end up in a detention center.
Misconceptions about "Free" Legal Aid
People often say, "Well, there are plenty of charities."
There are organizations like KIND (Kids in Need of Defense) or the Vera Institute of Justice. They do incredible work. But they are completely overwhelmed. In many jurisdictions, the "waitlist" for a pro bono lawyer is longer than the time the child has before their first court date. Non-profits have to "triage" cases, choosing the ones with the strongest legal claims because they simply don't have the staff to help everyone.
This leaves a huge chunk of kids in the "middle"—those with complicated cases that might be winnable with a good lawyer, but look like losers on paper to a harried non-profit screener.
How to navigate the system (Practical Steps)
If you are a sponsor or a family member of a child facing this, or if you're an advocate trying to help, the situation is dire but not always hopeless.
- Prioritize the "Legal Orientation Program." Many courts offer these. It’s not representation, but it’s a briefing that explains how the court works. Go to every single one available.
- The "List of Free Legal Service Providers." The court will give you a paper list. Call every single number on that list immediately. Don't wait. Many of these organizations have months-long backlogs.
- FOIA the records. You can file a Freedom of Information Act request for the child's "A-File." This contains all the government's notes from the border. A lawyer will need this eventually, and getting it early can save months of time.
- Change of Address is Vital. If the child moves, you must file Form EOIR-33 within five days. If the court sends a notice to the old address and the child misses the hearing, they will be deported "in absentia." This is the most common way children representing themselves in immigration court lose their cases before they even start.
- State Court First. Check if the child qualifies for SIJS. This requires going to a local family or probate court to get a "Special Findings Order" stating it’s not in the child’s best interest to return to their home country due to abuse, neglect, or abandonment. This must be done before the child turns 18 (or 21 in some states). This order is a golden ticket that can lead to a Green Card, effectively stopping the immigration court case.
The system is fundamentally broken for minors. It treats a six-year-old with the same procedural rigor as a forty-year-old businessman. Until the law changes to recognize that children are not just "small adults," the burden of children representing themselves in immigration court will continue to result in thousands of deportations that might have been avoided with a simple, basic right to a lawyer.
Actionable Insights for Advocates and Families
- Secure the A-Number: The nine-digit Alien Registration Number is the key to everything. Keep it in your phone, on a piece of paper, and in your email.
- Check the Hotline: Call the EOIR automated case information line at 1-800-898-7180 regularly. It will tell you the next hearing date and whether a judge has already issued a decision.
- Evidence Gathering: Start collecting school records, medical records, and letters from teachers or neighbors in the home country now. These take months to get and often require international mail or couriers.
- Look for "Low Bono": If you can't find "Pro Bono" (free), look for "Low Bono" clinics at local law schools. Law students under the supervision of professors often take these cases for a fraction of the cost of a law firm.
The reality is that nobody should be alone in a courtroom, especially not a child. But until the policy shifts, the only defense is early, aggressive preparation and an relentless search for legal counsel.