On May 5, 2022, David L. Neal, Director of Executive Office for Immigration Review, released DM 22-06, Friend of the Court. This memo replaces any prior guidance EOIR has released on friend of court. Given that friend of court can feature quite heavily into an attorney’s practice when working with children in ORR shelters, there was some concern that this new memo would bring significant changes to the practice. We will briefly discuss some issues and give CILA tips below, but for a more in-depth exploration of the new friend of court memo and its ethical implications, check out our new resource, Ethical Considerations for Appearing as Friend of Court.
Using friend of court for immigration master calendar hearings for unaccompanied children has been standard practice in many immigration courts for more than a decade. EOIR released its first guidance memo on friend of court, specifically directed at those working with unaccompanied children, in 2014. A second memo (OPPM 20-05) was released under the Trump administration in 2019 about friend of court generally with brief mentions of unaccompanied children. Nevertheless, both these prior memos and the current one, DM 22-06, are fairly consistent in their directions to attorneys acting as friend of court for unaccompanied children.
Generally, all three memos agree that “because the Friend of the Court is not a representative of a party in proceedings, the Friend of the Court cannot submit any filings in a case, including but not limited to, applications, appeals, pleadings, or motions.” DM 22-06. In addition, “assisting a respondent in filling out forms, providing transportation options for a respondent, explaining logistical procedures to a respondent, sitting with a respondent, serving as a community liaison for a respondent…” are all acceptable activities for friend of court under all three memos. OPPM 20-05. Other actions in court are also permissible, as long as authorized by anyone of the respondent’s choosing, such as “providing specific factual information regarding a respondent to the court-e.g. whether a minor has been reunified with his or her parents…or whether the respondent speaks a particular language.” OPPM 20-05. See below for CILA’s tips for friend of court in accordance with DM 22-06.
DM 22-06 does make some changes that could potentially impact friend of court practice for unaccompanied children. First, the memo is much more encouraging of friend of court than any of the prior memos and gives details as to how it will be facilitated so that each court can adopt the practice. This could certainly help in jurisdictions where judges previously refused to allow friend of court, as there will be a Regional Deputy Chief Immigration Judge to coordinate friend of court practices among the immigration courts and Assistant Chief Immigration Judges are supposed to encourage and advance friend of court practices.
The other change in DM 22-06 that could raise some questions for practitioners is that the memo allows friend of court to tell the immigration judge about any competency concerns they have about the child/respondent. Previously, practitioners have indicated that if they had competency concerns, they would enter an EOIR-28 to represent the child so they could bring their concerns in front of the judge. Ethical considerations should be reviewed carefully if doing so as friend of court. For a more in-depth discussion on this and other aspects of the new friend of court memo, check out our new resource, Ethical Considerations for Appearing as Friend of Court.
Best practices and tips for attorneys who appear as friend of the court:
- DO clarify your role as friend of court to the child, the child’s sponsor (if applicable), and for the record. If you do not intend to create an attorney-client relationship, you must clearly define the role you intend to perform to the minor, and not participate in the proceedings “in any manner that would reasonably lead the minor to believe” you are representing them.
- DO help the child navigate courtroom procedures. This may include ensuring that the child received a Know Your Rights presentation while in a shelter, identifying the child as the respondent for the court, guiding the child around the courtroom, assisting the child in identifying documents that the immigration judge requests, reinforcing information provided to the child by the Immigration Judge, alerting the court if you learn that the child does not understand what is being said, or answering the child’s non-legal questions. For example, it is permissible to answer questions the child may have about the change of address form or about proper courtroom attire. It is also appropriate to provide information about community resources, including pro bono legal and social services.
- DO gather and convey basic information about the child’s reunification status if the child is detained.
- DO gather and convey the child’s or legal service provider’s efforts to secure legal representation without compromising any issues regarding removability. If the judge is unaware as to how obtaining representation works while in ORR shelter, it is appropriate to explain the process.
- DO get the child’s consent if you are going to communicate to the court any special needs, competency issues, or particularly sensitive issues that may need to be addressed in a sidebar or special hearing. This means that you will need to have a conversation with the child about any issues prior to court.
- DO communicate to the court any technical issues that may arise during a VTC hearing including when the audio or video equipment is not working, or audio or video feeds are coming in from another hearing.
- DO NOT act as the child’s attorney. The friend of court does not have the authority to accept or concede service, admit factual allegations, enter pleadings, file motions, request a removal order or declare relief, or seek or waive appeal.
- DO assist the child in filling out Change of Address forms, and other administrative forms as appropriate.
- DO explain the requirement to return to court to the child and provide logistical support for future hearings. If you do explain the requirement to return, also explain the potential consequences of failing to appear at future hearings.