The Department of Health and Human Services has created a legal division to give direct legal services to unaccompanied migrant children, according to a Federal Register notice published September 29. The Associated Press reported on October 7 that the move appears to lay the groundwork for one of the biggest changes to children’s legal representation since 2008.
The notice restates the organization of HHS’s Office of the General Counsel and adds the Unaccompanied Alien Children Legal Representation Division. It gives few details beyond the division’s structure and purpose. HHS has not said when the division will be fully operating.
What the notice says about legal representation
The division would be led by an Associate General Counsel who reports to the General Counsel through a designated Deputy General Counsel. The notice says it operates as a legal service provider for unaccompanied children.
It also sets a firewall. The division is separate from the HHS division that advises the Administration for Children and Families. It may not advise or represent that agency or the Office of RefugeeA person outside their country of nationality who cannot return because of persecution or a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group or political opinion (INA 101(a)(42)). Admission as a refugee is discretionary, and annual admission levels are set through a Presidential Determination. A person already in the United States or at a port of entry with a similar claim may instead seek asylum.See it in the glossary Resettlement, which handles the custody and care of these children, on matters where the division is advising or representing a child.
HHS told the AP the division will give the department “an additional mechanism” for direct legal support while it works to reunite children with their families. The department did not say whether it will keep contracting with outside legal groups.
How children’s legal representation worked before
Unaccompanied children have had access to government-funded legal help since 2008, largely through nonprofit contractors. The AP reports the administration cut ties with the Acacia Center for Justice, which managed 24,000 cases through a network of legal service providers. Advocates told the AP that funding through Acacia was suspended on July 31.
The government has since awarded a contract worth up to $244 million to another organization, Our Rescue, according to the AP. Acacia has challenged that transition, and short-term arrangements, including a temporary contract with the U.S. Committee for Refugees and Immigrants, are filling the gap. Advocates say some children have gone to hearings without a lawyer.
What critics and HHS say
Shaina Aber, Acacia’s executive director, said that placing representation inside the agency that holds children in custody does not meet basic standards of “independence of counsel.” Wendy Young, president of Kids in Need of Defense, noted that the child’s lawyer, the judge and the government attorneys seeking removal would all be federal employees.
HHS has responded with its brief statement and the firewall language in the notice. The AP notes there is precedent for government-paid defense lawyers in criminal and military courts, but not in immigration court.
What to watch
The notice does not say how many attorneys the division will have, how children will be assigned to it, or whether outside providers will continue. Those details would show how the new division fits with existing contracts. You can follow related rules and lawsuits in the Policy Tracker.