Group #3 Immigration - Children & DACA
• A Child-Centered Approach to Representing Children in the U.S. Immigration Legal System
Lindsay Harris, University of the District of Columbia David A. Clarke School of Law, & Laila Hlass, Tulane University Law School
This chapter examines children’s experience in navigating the United States immigration legal system and offers guidelines for practitioners in implementing a child-centered approach in representing children. We detail children’s rights through the various stages of the immigration legal system including apprehension, detention and custody, adjudication of claims before multiple federal agencies, and legal and physical removal. We catalog existing protections built into the legal system for children, as well as identify pressing issues in the legal landscape including access to counsel, family separation, considerations of the best interest of the child, and the “school-to-deportation pipeline” phenomenon.
A number of nonprofit organizations have developed specialized practices to represent migrant children; subsequently, guidance on representation has expanded in recent decades. In this chapter, we synthesize existing recommendations and refine best practices to child-centered approaches. This includes accounting for particular communities of children, as well as varying levels of development and trauma experienced, as well as how cultural identities, including race, gender, and language, may raise issues in representation. After identifying key principles and protocols, we investigate how these guidelines are implicated in various aspects of representation including interviewing, counseling, communication, fact investigation, eliciting testimony, and termination of the relationship. Drawing on existing literatures in trauma-informed lawyering and child-centered representation, we conclude with reforms needed to move towards an emergent child-sensitive approach in the immigration legal system.
• Agency Lawmaking through Reliance Interests
Haiyun Damon-Feng, University of Washington School of Law
The modern administrative state has increasingly sought to perform quasi-legislative functions through informal agency action. This has become a much used and generally effective tool for presidential policymaking as executive agencies seek to respond to presidential policy and political agendas while navigating an increasingly polarized and stagnant federal legislature. The President and agencies have engaged in largely unilateral processes, including through the issuance of executive orders, policy memoranda, and other sub-regulatory guidance, in order to effectuate their desired changes in law and policy. Notable examples of this practice are the Deferred Action for Childhood Arrivals (DACA) program and the Migrant Protection Protocols (often referred to as “Remain in Mexico”). In both cases, sitting presidential administrations enacted policies through agency memoranda and policy directives that significantly altered long-standing agency practice; incoming presidential administrations (of a different political party) sought to rescind the memoranda and reverse the policy; and federal courts intervened and halted the administrative policy reversal, citing the reliance interests created by the policies.
The role that reliance interests play in securing the “stickiness” of such administrative policies following the transition of presidential administrations is under-explored in legal scholarship. This article provides the first account of the import and impact of reliance interests following the Supreme Court’s decision in Department of Homeland Security v. Regents of the University of California, and it raises significant questions about the implications a strong theory of reliance holds for the administrative process and the relationship between executive, administrative, and legislative power.