Protecting Unaccompanied Children who are Not Competent to Participate in Removal Proceedings

In light of the unique and extraordinary circumstances that unaccompanied youth experience, it is important for attorneys representing unaccompanied children in removal proceedings to understand when a child client may lack competency to participate in removal proceedings and how to utilize safeguards for these children in immigration court. When working with a child to build a legal case, the attorney may have concerns about a child client’s ability to understand their case and how the case is progressing in immigration court. The attorney may also worry about the youth’s ability to collaborate with the attorney in the development of the case and to testify and present evidence before the adjudicator. These are normal concerns when working with children due to their age, maturity, and emotional and mental development. These concerns may be further exacerbated if the youth experienced trauma and/or if the youth has an intellectual disability or developmental delay. As attorneys work with child clients, it is important for practitioners to identify when safeguards should be requested to protect a client who demonstrates indicia of incompetency.

This post provides a framework for how to address competency issues in children’s immigration cases. It addresses:

  • What is competency
  • How to assess a child client’s competency
  • Competency hearings and the framework for addressing competency issues under the BIA’s decision in Matter of M-A-M-
  • When to consider requesting a competency hearing in immigration court because of concerns about a client’s competency
  • What possible safeguards to request at the competency hearing
  • Additional ethical considerations to consider when seeking safeguards for child clients
  • Resources to learn more

This post is also the first in what CILA intends to be a series on “Ethics and Working with Unaccompanied Children.” Check CILA’s blog for future updates!

Conclusion

We hope that this blog post is useful and informative to practitioners representing unaccompanied migrant youth in removal proceedings. If you have questions about immigration court safeguards, competency and capacity issues for clients in removal proceedings, or your ethical duties to your client, consider reaching out to CILA for Technical Assistance.

This post is part of CILA’s series on “Ethics and Working with Unaccompanied Children.” Click here for other posts in the series.