The ABA Children’s Immigration Law Academy (CILA) created this blog post to highlight important information for advocates working with children and youth in immigration court about the recently updated guidance from the relevant government agencies on children’s cases in immigration court and the newly created juvenile dockets.
On December 21, 2023, the Executive Office for Immigration Review (EOIR) released Director’s Memorandum (DM) 24-01, Children’s Cases in Immigration Court. Advocates who work with or represent anyone under 21 years old in immigration court should review DM 24-01 because it provides useful guidance on how their cases should be handled in immigration court as well as information about the new specialized juvenile dockets.
DM 24-01 supersedes and rescinds Operating Policies and Procedures Memorandum (OPPM) 17-03, Guidelines for the Immigration Court Cases Involving Juveniles, Including Unaccompanied Alien Children, which had governed the basic principles and courtroom setting and procedures for children’s immigration cases since December 2017.
Key points about the juvenile dockets and updated guidelines, including how they differ from what was previously in place, are summarized in this post.
On December 21, 2023 (the same day as the release of DM 24-01), EOIR and the U.S. Immigration and Customs Enforcement (ICE) announced the creation of specialized juvenile dockets in 49 immigration courts across the country.
Nationwide: The announcement about the specialized juvenile docket and DM 24-01 makes clear that every immigration court should have a juvenile docket unless a court determines that it does not have enough children’s cases to warrant a specialized juvenile docket. Even if a specialized docket is not created, all courts should schedule children’s cases separately from adult cases.
Types of Cases: The juvenile docket is for respondents who are under 21 years old and are not part of a family unit. Anyone who meets this criteria can be eligible for the docket. The docket includes detained and non-detained children. It also includes unaccompanied children’s cases.
Scheduling: Cases on the juvenile docket should be scheduled separately from hearings in adult cases and be on specified days of the week at specified times.
Designated judges: DM 24-01 states that EOIR has designated specific immigration judges to preside over the juvenile dockets.
New OPLA Framework: Staffing permitting, DM 24-01 directs ICE, the Department of Homeland Security (DHS), and the Office of the Principal Legal Advisor (OPLA), to assign points of contact to manage cases for the juvenile dockets. According to the announcement from ICE and EOIR, OPLA has created a framework for handling cases on the juvenile docket. Their new framework assigns specially trained juvenile points of contact to each OPLA field office. The responsibilities of the points of contact include identifying any appropriate applications for relief or protections available to the youth. OPLA’s new framework is also meant to streamline requests for prosecutorial discretion from the juvenile docket and allow for more collaboration with advocates on joint motions, requests for discretionary relief, the timely issuance of Notices to Appear, and requests for voluntary departure.
In Absentia Orders: The new guidelines for children’s cases in immigration court include protections against proceeding in absentia in all children’s cases. For cases on the juvenile docket, they also recognize that immigration judges (IJs) should anticipate OPLA will request a thirty-day continuance after the first time a child fails to appear in their proceedings to reverify the child’s address information.
DM 24-01 provides updated guidelines for all children’s cases in immigration court. This guidance is for EOIR adjudicators and personnel on any case in which a child is the lead or sole respondent or a witness. The guidelines cover child-friendly courtroom procedures as well as:
- Legal Standards
- Relief from Removal
- Trafficking, Abuse, and Neglect
- In Absentia
In general, the updated guidelines in DM 24-01 are more expansive in scope than the superseded guidelines in OPPM 17-03. More children’s and youth’s cases are covered by the new guidelines. DM 24-01 also adds provisions that may be helpful in children’s cases and recognizes more protections for children and youth in immigration court, including limiting when courts can proceed in absentia. Additionally, the new guidelines remove certain language from OPPM 17-03 related to redetermining an unaccompanied child’s status, voluntary departure of unaccompanied children, a child’s waiver of appearance, and judicial impartiality. Finally, DM 24-01 keeps the child-friendly courtroom procedures that were in OPPM 17-03. Some of these provisions have been updated to emphasize the need for using child-friendly courtroom procedures and further protecting children. This detailed chart created by CILA to accompany this blog post compares the language of the new guidelines to the old guidelines.
Considers anyone under 21 years old a child. The definition of a “child” under DM 24-01 is broader than what was used in the superseded and rescinded guidance under OPPM 17-03. The prior guidelines applied to anyone under 18 years old. The new guidelines apply to anyone under 21 years old.
Applies to all cases with a child as the lead or sole respondent. The updated guidelines apply in any case in which a child is the lead or sole respondent and to all children’s testimony. The guidance applies regardless of whether the case is on the juvenile docket, although a few parts related to a failure to appear at the initial hearing are identified as being solely applicable to the juvenile docket.
Emphasizes the need for child-specific procedures. The overall tone of DM 24-01 represents a shift towards more recognition and appreciation of the need for special consideration in children’s cases. In addition to expanding the scope of the guidelines, multiple parts of the guidance emphasize the need to utilize these processes in all children’s cases. While DM 24-01 continues to recognize that individualized assessments will need to be made in every case to determine the most appropriate procedures, there is no longer a suggestion that “legal requirements” might caution against application of child-friendly procedures in a particular case.
Immigration judges (IJs) should inform children of relief and application options. The new guidelines direct IJs to “always” inform children of any potential relief options, including asylum and Special Immigrant Juvenile Status (SIJS). IJs should also inform children if they will need to file an application for relief with another entity or agency outside EOIR. The guidelines specify that IJs should be mindful of potential time constraints and deadlines for the child’s relief options.
USCIS has initial jurisdiction over unaccompanied children’s asylum applications. The new guidelines explicitly recognize that USCIS has initial jurisdiction over unaccompanied children’s asylum applications. As explained in the section on “What was removed?,” they also no longer have language suggesting that IJs should consider redetermining an unaccompanied child’s status. DM 24-01 states that an “unaccompanied child” is defined by statute under 6 U.S.C. § 279(g)(2). The guidelines do not specifically address jurisdiction when an unaccompanied child files an asylum application after turning 18. Note that Matter of M-A-C-O-, 27 I&N Dec. 477 (BIA 2018), has not been overturned and held that an IJ could exercise initial jurisdiction over an asylum application if it was filed by an unaccompanied child after they turned 18. DM 24-01 also appears to have inadvertently swapped the citations for the basis of USCIS’s initial jurisdiction over unaccompanied children’s asylum applications under INA § 208(b)(3)(C) and the exception for unaccompanied children to the one-year filing deadline for asylum applications under INA § 208(a)(2)(E).
Support for dismissal of unaccompanied children’s cases with a pending asylum application. The new guidelines inform IJs that they should expect to receive a motion to dismiss the case when an unaccompanied child is in removal proceedings and files an asylum application with USCIS. The guidelines recommend IJs to grant the motion in the interests of efficiency and fairness if there is no dispute between the parties.
Totality of the circumstances assessment is needed before proceeding in absentia in any child’s case. Under the new guidelines, the IJ must make an individualized assessment in any child’s case before proceeding in absentia. If the child does not appear at a hearing and OPLA requests to proceed in absentia, the IJ should consider the totality of the circumstances in determining whether to grant the request, including the respondent’s age and any impediments to them attending the hearing. The guidelines also recognize that special circumstances can be at play when a child does not appear at a hearing.
Need to verify a child’s address if they do not appear at a hearing. When a child does not appear at a hearing, the IJ must carefully review the documents to verify that the child’s address is correct, including checking whether a request to change the respondent’s address was filed with the court but overlooked.
Support for continuances in cases on the juvenile docket when a child does not appear at the first hearing. The new guidelines add a section on in absentia proceedings that includes some specific protections for children’s cases on the juvenile docket. For cases on the juvenile docket, they further recognize that IJs should anticipate OPLA will request a 30-day continuance to reverify a child’s address the first time they do not appear at a hearing. Absent extenuating circumstances, OPLA will generally request to proceed in absentia if the child does not appear again at the next hearing.
Recognition that children have special notice requirements. The updated guidance instructs IJs to be aware that there are “special notice requirements” in children’s cases. Those include the requirements in 8 C.F.R. § 103.8(c)(2)(ii) and any additional requirements from the federal courts of appeal. These notice requirements should be taken into account when determining whether to proceed in absentia in a children’s case.
Written testimony from a child is often appropriate. The updated guidelines include new language recognizing that it is “often” appropriate for an IJ to rely on a child’s written statement in lieu of oral testimony.
Specific examples of child-sensitive questions. DM 24-01 includes a new attachment that lists specific examples of child-sensitive questions that IJs should consider using when a child testifies.
Ask about who accompanied the child to the hearing. The updated guidelines instruct IJs to ask children at the start of a hearing who accompanied them to court. This new requirement is intended to help with assessing whether there are potential trafficking or abuse issues in a case. The guidelines further provide that an IJ may ask additional questions pertaining to abuse or neglect and must comply with their reporting requirements under DOJ and EOIR policy and any applicable laws. In this regard, the updated guidelines seem to build on the prior guidelines that also recognized children can be especially vulnerable to abuse or trafficking.
Recognition of the roles of child advocates and friends of the court. The updated guidelines explain the role of child advocates and friends of the court in children’s cases. Neither of these roles was recognized in the prior guidance.
Recognition that the one-year filing deadline does not apply to unaccompanied children. The new guidelines add an explicit reference to the exception to the one-year filing deadline for unaccompanied children under INA § 208(b)(3)(C).
Language about the need to assess an unaccompanied child’s status. The superseded and rescinded guidance in OPPM 17-03 stated that an unaccompanied child’s status is “not static” and that there is a need to be “vigilant” in adjudicating unaccompanied children’s cases because of a purported “incentive to misrepresent” accompaniment status or age. None of this language is in DM 24-01. The new guidelines do not contain any suggestion of abuse or fraud by unaccompanied children. Nor do they include any suggestion that IJs should be redetermining the status of unaccompanied children.
Language about voluntary departure for unaccompanied children. OPPM 17-03 expressly recognized that voluntary departure is available to unaccompanied children at no cost to the child and directed IJs to expedite voluntary departure requests, especially for unaccompanied children in custody. This language has been removed from DM 24-01. The new guidelines do not specifically discuss voluntary departure for unaccompanied children or any other children.
Language about waiver of a child’s appearance at a hearing. OPPM 17-03 had a section on whether a juvenile could waive appearance at a hearing and specifically noted that a child is obligated to attend the hearing and an IJ must state on the record that a waiver has been granted or issue a written order to that effect. This section has been removed from DM 24-01. The new guidelines are silent as to the appropriate procedures for when a child wishes to waive appearance at a hearing. Note that Chapter 4, § 4.6 of the Immigration Court Practice Manual (ICPM)—which applies in all immigration court proceedings—grants IJs the authority waive a respondent’s appearance at a hearing. ICPM Chapter 4, § 4.15(m) explains how to seek waiver of a respondent’s appearance at a master calendar hearing.
Language about judicial impartiality and discretion. The updated guidelines removed language from OPPM 17-03 that specifically recognized the need for judicial impartiality in all cases. DM 24-01 also removed the language from OPPM 17-03 that stated the guidelines are not intended to limit the discretion of IJs or mandate a specific outcome in a case has been removed. Now, the guidelines include specific guidance that should be followed in certain circumstances, including when a child fails to appear at a hearing, the exercise of jurisdiction when an unaccompanied child applies for asylum, and dismissal of an unaccompanied child’s case when an asylum application is pending.
The child-friendly courtroom procedures recognized by OPPM 17-03 remain in DM 24-01, including:
- Providing a courtroom orientation
- Explaining the procedures
- Allowing courtroom modifications
- Providing hearing breaks and shorter hearings as needed
- Removing the robe
- Explaining the witness oath
- Notifying children that they can answer questions “I don’t know”
- Explaining what to expect if there is an objection to testimony
- Ensuring appropriate interpretation during a child’s testimony
- Recognizing that child witnesses can be highly susceptible to outside influences
In some instances, the updated guidelines include stronger protections for children when discussing how immigration judges should apply these procedures. For instance, the prior guidance stated that when a child is testifying, any “[v]ague, speculative, or generalized answers . . . are not necessarily indicators of dishonesty.” The new guidelines contain a clearer directive that IJs “should not assume that inconsistencies or poor articulation in a child’s testimony reflect dishonesty.”
The new guidelines have also removed language that could have led to some IJs applying less child-friendly procedures. For instance, the cautionary language in OPPM that legal standards are not relaxed because a child is testifying with cites to certain Board of Immigration Appeals (BIA) cases has been removed.
The side-by-side comparison of the language in prior versus the new guidelines in the chart in the following section highlights some of these more nuanced changes.
The sections above summarize key updates to the guidelines in children’s cases in immigration court under DM 24-01 and highlight important differences from the old guidelines under OPPM 17-03 (which was superseded and rescinded by DM 24-01). To help further understand these updates, CILA created a chart with a side-by-side comparison of the language in DM 24-01 and the language in superseded OPPM 17-03. The chart is available here.