EOIR Guidance on Juvenile Respondents and Witnesses in Immigration Proceedings

 

Introduction

On December 20, 2017, Chief Immigration Judge MaryBeth Keller released “Operation Policies and Procedures Memorandum 17-03: Guidelines for Immigration Court Cases Involving Juveniles, Including Unaccompanied Alien Children” (“OPPM 17-03”) [PDF version]. OPPM 17-03 provides policy guidance for immigration courts on the handling of cases involving juveniles. It also rescinds and replaces guidance issued on May 22, 2007, OPPM 07-01, issued on the same subject. In this article, we will review the guidance in OPPM 17-03.

Please also see our related short article on OPPM 17-03's minor modification to OPPM 10-94 [see blog].

Unaccompanied Alien Child

Definition of “Juvenile” For Purpose of OPPM 17-03

The OPPM provides guidance for the adjudication of cases “involving any unmarried individual under the age of 18, including both as respondents and third-party witnesses.” This means that the guidance applies not only to juvenile respondents in proceedings, but also to juveniles participating as witnesses.

The OPPM notes that “[i]mmigration law utilizes multiple terms in different legal contexts to refer to unmarried individuals who have not obtained a certain age.” For example, sections 101(b)(1) and (c)(1) define a “child” as an unmarried individual under the age of 21. Separate EOIR regulations define a “juvenile” as an alien under the age of 18 (18 C.F.R. 1236.3) and a “minor” as a child under the age of 14 (8 C.F.R. 103.8(c)(2)(ii); 1236.2(c)(2)(ii)). Pertinent to the OPPM, an “unaccompanied alien child” is defined as a child under the age of 18 who has no parent or legal guardian available to provide care and physical custody (6 U.S.C. 279(g)(2); 8 U.S.C. 1232(g)).

However, noting all of these statutes and regulations, it is important to remember that the OPPM “applies to all immigration proceedings involving unmarried children under the age of 18.” Furthermore, the guidance applies not only to aliens, but also to U.S. citizens and noncitizen nationals who are witnesses in immigration proceedings.

Basic Principles for Cases Involving Juveniles

The OPPM lists six basic principles that apply generally for cases involving juveniles.

  1. The OPPM states that immigration judges “should employ age-appropriate procedures whenever a juvenile respondent or witness is present in the courtroom.” However, it adds that not every case involving a juvenile is alike, and immigration judges should apply appropriate procedures in juvenile cases in light of the specific situation and the applicable laws.
  2. The OPPM notes that under 8 U.S.C. 1232(c)(2), the Department of Health and Human Services (HHS) is required to consider “the best interests of the child” in certain immigration circumstances. However, the OPPM also notes that the best interests of the child standard does not exist in the INA for immigration judges. Accordingly, immigration judges cannot rely upon “the best interests of the child” alone in making a determination regarding a child's removability or eligibility for relief or protection from removal.
  3. The OPPM reminds immigration judges that they do not have authority to appoint a legal representative or guardian for a child in proceedings. However, under 8 C.F.R. 1240.10(a)(2), they are required to provide to the respondent a list of pro bono legal service providers. The OPPM advises immigration judges to encourage respondents to make use of pro bono resources in a manner “consistent with applicable ethical principles.”
  4. The OPPM reminds immigration judges that they are required to remain impartial when adjudicating juvenile cases. This is because “[immigration judges] are unbiased arbitrators of the law and not advocates for either party in the cases they hear.”
  5. The OPPM notes that all immigration judges should be prepared to adjudicate cases involving juveniles.
  6. Immigration judges are required to report instances of child abuse, child neglect, and/or suspected human trafficking in accordance with existing EOIR guidance.

Courtroom Procedures for Juveniles

Next, the OPPM addresses procedures for adjudicating cases involving juvenile responds or witnesses in light of the general principles for handling such cases. In the following subsections, we will group the procedures by general topic in a slightly different order than the order in which they are presented in the OPPM.

Putting Juveniles At Ease in Courtroom

The OPPM notes that “[t]he courtroom is usually an unfamiliar place for children.” It explains that immigration judges may permit children, with adult supervision, to explore the courtroom (except for the immigration judge's bench, records of proceeding, and courtroom technological equipment). Juveniles may also be permitted to practice answering simple questions in order to prepare for giving testimony. Immigration court administrators are advised to be receptive to requests by legal representatives of juveniles or their custodians to permit juveniles to visit immigration courts prior to an initial hearing.

Immigration judges are advised to “permit reasonable modifications to the courtroom to accommodate children…” Such modifications may include, but are not limited to, “permitting counsel to bring pillows or booster seats for young respondents; permitting young respondents to sit in one of the pews with an adult companion or permitting the companion to sit at the counsel's table; allowing a young child to bring a quiet … personal item into the courtroom; [or] permitting the child to testify while seated next to an adult or friend…” However, modifications cannot alter the “serious nature of the proceedings.”

An immigration judge may remove his or her robe if the immigration judge determines that doing so “would add to the child's ability to participate” in proceedings. OPPM 17-03 modifies OPPM 94-10 (Oct. 17, 1994), which dealt with wearing the robe in immigration proceedings, to reflect this new policy [PDF version] [see blog].

Docketing and Waivers of Appearance

The OPPM advises immigration courts to conduct cases involving juvenile respondents “on a separate docket or at a fixed time in the week or month.” If there is not a sufficient number of cases involving juvenile respondents to justify a separate docket, immigration courts are nevertheless advised to schedule juvenile cases “at a specific time on the regular docket but separate and apart from adult cases.” Furthermore, immigration courts are instructed to work to keep detained cases and juvenile cases separate in order to ensure that juveniles are not transported or held with detained adults.

Juvenile respondents are required to attend immigration proceedings unless a waiver of the appearance is issued by the immigration judge. Immigration judges are required to adhere to 8 C.F.R. 1003.25 [PDF version] in determining whether to waive a juvenile's appearance at a hearing.

Motions to Close Hearing

The OPPM explains that, although immigration hearings are generally open to the public, immigration judges are advised to be sensitive to the concerns of juveniles “if there is a motion to close the hearing [under] 8 C.F.R. 1003.27.”

Opening Statement in Juvenile Cases

Immigration judges are advised to make a brief opening statement in cases involving juveniles or at the start of a specialized docket for juvenile cases. In this statement, the immigration judge should “explain the purpose and nature of the proceeding, [] introduce the parties and discuss each person's role, and [] explain operational matters such as recording, interpreting, and note taking.”

Time Management

The OPPM advises immigration judges to “[b]e aware of time.” It makes clear that parties should be given “a full opportunity to present or challenge evidence.” However, in light of the fact that juveniles may face additional stress or fatigue in proceedings, immigration judges should, “where appropriate,” work to limit the number of times that juveniles should be brought to court. Furthermore, in cases involving juvenile respondents, immigration judges should work “to resolve issues of removability and relief without delay.” Immigration judges may seek to limit the amount of time a juvenile is required to testify provided that it does not “compromise[] due process for the opposing party.” Finally, immigration judges are reminded that “children may require more frequent breaks than adults.”

Interpreters

Immigration judges are advised to pay special attention to interpreters in juvenile cases (where applicable). To this effect, immigration judges should allow the interpreter and juvenile to “establish some rapport by talking about unrelated matters before testimony is taken.” Immigration judges are advised to “watch for any indication that the child and the interpreter are having difficulty communicating.” Finally, statements should be translated “at an age-appropriate level.”

Child Testimony

An immigration judge must be confident that a juvenile witness is competent to testify in immigration proceedings (just as he or she must be confident that an adult witness is competent to testify). Specifically, the immigration judge must be confident “that the child is of sufficient mental capacity to understand the oath and give sworn testimony.” The immigration judge should explain the oath to a child at an age-appropriate level. Child witnesses should be told that they may answer “I don't know” if that is the correct answer to a question. Child witnesses should be reminded that they may ask for clarification if they do not understand a question. Finally, a child witness should be reminded that he or she should not feel at fault if an objection is raised to a question.

When questioning a juvenile witness, immigration judges are advised to pay special attention to “language and tone” in the interest of developing “a more complete and accurate record.” However, immigration judges are reminded that immigration hearings are adversarial. Juvenile witnesses must be subject to cross examination. Nevertheless, immigration judges may encourage parties to ask a child witness questions in “age-appropriate language and tone.” Abusive questioning should never be tolerated.

Credibility and Burden of Proof Assessments

The OPPM states that the testimony of a child “is neither inherently reliable nor inherently unreliable.” Prior to attempting to ascertain whether a child's testimony is reliable, the immigration judge must first conclude that the child is competent to testify.

The OPPM advises immigration judges to bear in mind that children “will usually not be able to present testimony with the same degree of precision as adults.” Accordingly, “[v]ague, speculative, or generalized answers by a child, especially a particularly young child, are not necessarily indicators of dishonesty.” An immigration judge should bear in mind that a child's ability to testify may be limited “by his or her skill in describing the event in a way that is intelligible to adults.”

Immigration judges are reminded that children are suggestable. Accordingly, testimony could be influenced by the child's desire to please the immigration judge or other adults.

The OPPM makes clear that “legal requirements, including credibility standards and burdens of proof, are not relaxed or obviated for child respondents.” Citing to Matter of Y-B-, 21 I&N Dec. 1136 (BIA 1998) [PDF version] and Matter of E-P-, 21 I&N Dec. 860, 862 (BIA 1997) [PDF version], the OPPM reminds immigration judges that a child witness could be determined to be honest but nevertheless provide answers that are “insufficient [] to be found credible or meet an applicable burden of proof.”

Special Procedures for Unaccompanied Alien Children

Immigration judges are instructed to “exercise special care in cases where the respondent is alleged to be [an unaccompanied alien child].”

First, the OPPM reminds immigration judges that an unaccompanied alien child is eligible for voluntary departure at no cost (8 U.S.C. 1232(a)(5)(D)(ii)). Immigration judges are advised to expedite consideration of a request for voluntary departure by an unaccompanied alien child “[t]o the extent practicable…”

Second, the OPPM notes that unaccompanied alien child status is not static. Immigration judges should ensure that an alien claiming to be an unaccompanied alien child meets the statutory requirements when the case is adjudicated. It adds that there is an incentive for a respondent to misrepresent him or herself as an unaccompanied alien child “in order to attempt to qualify for benefits” associated with such status.

Finally, the OPPM explains that, while immigration judges must “remain[] sensitive to the concerns of juveniles,” they also have a duty to be vigilant in cases where a respondent claims to be an unaccompanied alien child. Immigration judges are responsible for taking action in cases where there is suspected fraud and abuse and for disclosing such fraud and abuse. The latter requirement is found at 5 C.F.R. 2635.101(b)(11). Immigration judges must report cases of suspected fraud and abuse to the EOIR Office of the General Counsel Fraud and Abuse Program.

Conclusion

The OPPM provides immigration courts with guidance for cases involving juveniles. The OPPM provides advice for allowing juvenile respondents and witnesses to participate effectively in proceedings while reminding immigration judges of their duties under statute with regard to the administration of immigration proceedings generally. Any individual in immigration proceedings — whether he or she is a juvenile or adult — should seek to obtain experienced immigration counsel for assistance throughout the entire process.