US immigration trials turn tougher for kids

New York: The US justice department has issued new guidelines for immigration judges that remove some instructions for how to protect unaccompanied juveniles appearing in their courtrooms.

A December 20 memo, issued by the Executive Office for Immigration Review (EOIR), replaces 2007 guidelines, spelling out policies and procedures judges should follow in dealing with children who crossed the border illegally alone and face possible deportation.

The new memo removes suggestions contained in the 2007 memo for how to conduct "child-sensitive questioning" and adds reminders to judges to maintain "impartiality" even though "juvenile cases may present sympathetic allegations".

The new document also changes the word "child" to "unmarried individual under the age of 18" in many instances.

An EOIR official said the new memo contained "clarifications and updates" to the 10-year-old guidance "in order to be consistent with the laws as they've been passed by Congress".

Immigration advocates said they worry the new guidelines could make court appearances for children more difficult, and a spokesperson for the union representing immigration judges said judges were concerned about the tone of the memo.

President Donald Trump has made tougher immigration enforcement a key policy goal of his administration, and has focused particularly on trying to curb the illegal entry of children.

One changed section of the memo focuses on how to make children comfortable in the court in advance of hearings. The old guidance says they "should be permitted to explore" courtrooms and allowed to "sit in all locations, (including, especially, the judge's bench and the witness stand)".

The new guidance says such explorations should take place only "to the extent that resources and time permit" and specifically puts the judge's bench off limits.

The new memo also warns judges to be sceptical, since an unaccompanied minor "generally receives more favourable treatment under the law than other categories of illegal aliens", which creates "an incentive to misrepresent accompaniment status or age in order to attempt to qualify for the benefits". It also says to be on the lookout for "fraud and abuse", language that was not in the previous memo.

Dana Marks, a sitting judge and spokesperson for the National Association of Immigration Judges, said the "overall tone" of the memo "is very distressing and concerning to immigration judges".

"There is a feeling that the immigration courts are just being demoted into immigration enforcement offices, rather than neutral arbiters," Marks said. "There has been a relentless beating of the drum towards enforcement rather than due process."

Former immigration judge Andrew Arthur, who now works at the Center for Immigration Studies, which promotes lower levels of immigration overall, said the new guidelines were needed.

In their previous form, he said, "so much emphasis was placed on the potential inability of the alien to understand the proceedings... that it almost put the judge into the position of being an advocate".

The new memo notes in a preamble that not all child cases involve innocents, and that the courts might see "an adolescent gang member" or "a teenager convicted as an adult for serious criminal activity."

In cases where children are called to testify, the old guidance instructed judges to "seek to limit the amount of time the child is on the stand". The new guidance says judges should "consider" limiting the child's time on the stand "without compromising due process for the opposing party", which is generally a government prosecutor.