Abstract

Excerpted From: Nickole Miller, Accommodating Childhood in Immigration Removal Proceedings, University of Illinois Law Review 1003 (2026) (386 Footnotes) (Full Document)

About twenty kids as young as four years old form a single file line as they wait to go through security. Wide-eyed boys in t-shirts and jeans crack their knuckles. They have never been to a courtroom before. Some are wearing suits, in an attempt to make a good first impression .

They take a seat on one of the thinly padded metal chairs, crossing and recrossing their legs. Teenage girls with colorful hair braids study their surroundings. Toys, stuffed animals and coloring books decorate the waiting room. The children have come here not to play, but to stand in front of an immigration judge and defend themselves against deportation .

“ It looks almost like you’re going into a pediatrician’s office,” said Katie Annand, managing attorney with Kids in Need of Defense (“KIND”), an organization that helps immigrant children find attorneys. “There are children lining the benches of the courtroom and have no one to represent them. ”

Across the country, 953,835 children ages 0-17 are fighting against deportation in immigration court. And just like the children in the story above, the vast majority--73% of these children--are doing so without the help of legal counsel. Fiscal year 2024 saw an all-time high for new removal proceedings initiated against children ages 0-17: 424,170 new cases. These numbers correlate with the high rates of political instability, crippling poverty, gang violence, and environmental destruction across the globe. While data from fiscal year 2025 indicates the number of new deportation proceedings and southwest land border crossings has dropped, the pressures on children fighting deportation under the second Trump administration have increased. Indeed, since January 2025, the second Trump administration has enacted various immigration policy and enforcement reforms that directly harm and target children.

Despite their tender age and developmental immaturity, children in removal proceedings are held to the same standards as adults with no right to government appointed counsel. The precarity of children facing deportation is compounded from day one by their race, ethnicity, class, language, trauma, dependency on adults, immigration status, and other factors that limit their resources and increase their risk for harm. Additionally, most children must try to defend themselves against charges from trained government attorneys without a lawyer. This structural asymmetry results in poor outcomes for the children: a removal order, colloquially known as a deportation order, is the most likely ruling for an unrepresented child in immigration court. A removal order was nearly 4.2 times more likely for unrepresented children than children represented by counsel. The consequences of these outcomes for children are severe-- they face expulsion from the place they now call home, along with family separation, violence, or neglect if deported.

There is a robust body of legal scholarship critiquing children’s experience in immigration court and arguing for appointed counsel under due process, children’s rights, and statutory construction theories. There is also a rich body of scholarship and caselaw in the juvenile law context that marshals scientific findings from neuroscience, adolescent brain development, and developmental psychology research to argue for child-specific protections and developmentally informed legal analysis. There is a gap, however, in the literature analyzing immigration removal proceedings from a child development lens. This Article fills that gap.

This Article is the first to argue that children are developmentally incompetent to represent themselves in immigration court. Developmental incompetence is a child’s inability to understand, reason, communicate, or meaningfully participate in legal proceedings because of normal developmental immaturity across social, emotional, communication, physical, and cognitive domains. This Article centers on the lived realities of migrant children and explores how their normative development and heightened rates of trauma impact their experience in immigration court and curtail their ability to meaningfully exercise their rights. It concludes that brain and behavioral science should be used in the immigration context--much like their use in the juvenile delinquency and juvenile sentencing context--to animate legal analysis and compel appointed counsel and other accommodations for children such as child advocates and specialized juvenile dockets.

The current immigration court system, which treats children like adults, is fundamentally flawed and unfair. Recent advances in our understanding of child development and brain science reveal that children are different from adults in ways highly relevant to legal proceedings. This Article proceeds in four Parts to argue that children are developmentally incompetent to represent themselves in immigration court and the government must appoint counsel and implement additional accommodations as a result.

Part II explores the research on children’s physical, communicative, cognitive, and psychosocial development. In doing so, it lays the foundation for why children do not get a fair day in court when threatened with deportation because the system fails to acknowledge and accommodate their normative development. Part III highlights the demographics of children in removal proceedings, the challenges these children uniquely face, and the disparate outcomes they receive as a result. Part IV gives the general background of immigration removal proceedings. It discusses the rights of noncitizens in removal proceedings generally and children specifically. Part V applies research on childhood development to advance legal and policy arguments for appointed counsel and other rights affirming accommodations for children. This Part also counters critiques that counsel for children and other accommodations are too costly or administratively burdensome. Data from pilot projects show that investments in lawyers reduce court costs, improve court efficiency, and strengthen confidence in the reliability of decisions. Ultimately, this Article uses a development-informed framework to reimagine what a fair immigration court system for children could look like.

[ . . . ]

There is a growing body of neurological, psychological, and physiological research that lends scientific evidence to the commonsense conclusion that children are different than adults. In the last decade or so, legislatures and courts have cited this research to support child-specific protections in the juvenile law context. This research, however, has yet to make its way into immigration law jurisprudence, policy, or practice. This Article advances that conversation by arguing children are developmentally incompetent to represent themselves in immigration court. Child development research can and should compel appointed counsel and child-specific accommodations for children in immigration removal proceedings. For laws and policies related to child respondents to be fair and just, they must account for normative child development, especially given the high stakes.

Dana Leigh Marks, a former immigration judge and past president of the National Association of Immigration Judges, famously compared deportation proceedings to death penalty cases in a traffic court setting--describing the absurdity of these cases where deportation can, in effect, be a death sentence--yet there is no right to appointed counsel to help people navigate these notoriously complex and lengthy proceedings. These challenges are exacerbated for children who face adult laws and adult expectations. No child should be forced to face deportation proceedings alone in a court system that fails to accommodate their unique developmental needs.

Associate Professor of Law and Director of the Middleton Center for Children’s Rights at Drake University Law School.