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US immigration

Defendants in diapers? Migrant toddlers are ordered to appear in US courts alone

‘We were representing a three-year-old in court recently who had been separated from the parents. And the child – in the middle of the hearing – started climbing up on the table’

PUBLISHED : Thursday, 28 June, 2018, 12:30pm
UPDATED : Thursday, 28 June, 2018, 10:01pm

As the White House faces court orders to reunite families separated at the border, immigrant children as young as three are being ordered into court to attend their own deportation proceedings without a guardian, according to lawyers in Texas, California and Washington.

Requiring unaccompanied minors to go through deportation alone is not a new practice. But in the wake of the Trump administration’s controversial family separation policy, more young children – including toddlers – are being affected than in the past.

The 2,000-plus children will likely need to deal with court proceedings even as they grapple with the ongoing trauma of being taken from their parents.

“We were representing a three-year-old in court recently who had been separated from the parents. And the child – in the middle of the hearing – started climbing up on the table,” said Lindsay Toczylowski, executive director of Immigrant Defenders Law Centre in Los Angeles. “It really highlighted the absurdity of what we’re doing with these kids.”

The Immigration and Customs Enforcement, which oversees the deportations of unauthorised immigrants, did not respond to a request for comment.

Toczylowski said parents typically have been tried along with young children and have explained the often-violent circumstances that led them to seek asylum in the US.

The children being detained under the new “zero tolerance” policy, though, are facing immigration proceedings without a parent by their side.

“The parent might be the only one who knows why they fled from the home country, and the child is in a disadvantageous position to defend themselves,” Toczylowski said.

Meanwhile, the broader legal situation is in flux. A federal judge Tuesday night commanded the White House to reunify families within 14 days if the child is under five and 30 days if the child is older. The Justice Department has not indicated whether it will appeal. Lawyers who are involved in the cases said it’s unclear how the judge’s order will work in practice, and when and how it could take effect.

“We don’t know how the judge’s order is going to play out with reunification of children. What if parents have already been deported?” said Cynthia Milian, a Texas-based lawyer at the Powers Law Group.

In the interim, she added, the implications for kids remain an urgent concern.

Given the trauma the children faced in their home country that spurred their families to flee and the pain of being separated from a parent, the expectation that children can mount a legal defence is “unconscionable,” said Dr Benard Dreyer, director of the division of developmental-behavioural paediatrics at New York University School of Medicine.

“It’s certainly grossly inappropriate,” said Dreyer, who is a member of the American Academy of Paediatrics advocacy committee. “I’m ashamed that we’re doing this.”

Leaders at three legal services organisations and a private firm confirmed that the children are being served with notices to appear in court. They are not entitled to an lawyer but rather are given a list of legal services organisations that might help them.

Steve Lee, a UCLA child psychology professor, said expecting the children to advocate for themselves in court is an “incredibly misaligned expectation.”

“That couldn’t be any less developmentally appropriate,” he said, adding that some children may not be mature enough to verbalise a response.