AI Generated Image
A child who crosses the border alone and lands in federal custody may soon walk into immigration court beside a lawyer employed by the same department that is holding the child. The Department of Health and Human Services has set up an Unaccompanied Alien Children Legal Representation Division inside its Office of the General Counsel, with a stated job of providing “direct legal services” to those children. The change appeared in a reorganization notice signed by Secretary Robert F. Kennedy Jr. and published in the Federal Register on Sept. 29, and drew little attention until the Associated Press reported it this week. It lands at an awkward time. The nonprofit network that, according to AP, managed about 24,000 children’s cases lost its federal funding at the end of July, and advocates told AP that children are already appearing before immigration judges with no lawyer at all.
The notice itself is thin. It restates the structure of the general counsel’s office as 11 divisions, rescinds earlier organizational statements, and describes the new division in a single line. It says nothing about how many lawyers the division will have, when they start, which children they will serve, or how they will be separated from the parts of HHS that make custody and release decisions. HHS told AP the lawyers would give the department “an additional mechanism to provide these children direct legal support,” but it did not say whether it will keep paying outside legal providers or when the division will be fully operating.
To see why this matters, start with a basic feature of immigration court: there is no public defender. The Immigration and Nationality Act gives people in removal proceedings the right to a lawyer of their choosing, but “at no expense to the Government.” Children who arrive without a parent are the main exception Congress has made. The Trafficking Victims Protection Reauthorization Act of 2008 tells the HHS secretary to ensure, “to the greatest extent practicable,” that unaccompanied children who have been in federal custody have counsel to represent them and to protect them from mistreatment, exploitation and trafficking. The same provision directs the secretary to make “every effort” to use pro bono lawyers. For years HHS met that duty mostly by funding a national network of nonprofit legal service providers, coordinated in recent years by the Acacia Center for Justice.
That arrangement came apart over the summer. In an Aug. 6 Federal Register notice, HHS’s Office of Refugee Resettlement announced its intent to award a single-source cooperative agreement worth up to $150 million to Burke Law Group, a Houston firm, to provide legal orientation, consultations and attorney-of-record representation for a year starting Aug. 15. The notice cited the trafficking statute, ORR’s own regulations and a preliminary injunction in Community Legal Services in East Palo Alto v. HHS, a 2025 case in which legal aid groups challenged cuts to children’s representation. Mother Jones reported that the administration had ended the older arrangement after the provider network refused to hand over privileged information about its young clients, that Burke later withdrew, and that the work went next to Our Rescue, a nonprofit founded by a former ICE agent. AP put the potential value of the Our Rescue contract at up to $244 million and reported that Acacia has challenged the transition, leaving a short-term arrangement with the U.S. Committee for Refugees and Immigrants in place for now.
Against that backdrop, the in-house division reads as the administration building capacity it controls directly rather than relying on contractors it has been fighting with. That is the most natural reading of the HHS statement and of ORR’s August notice, which justified the Burke award as a way to expand capacity and fill gaps in existing services. Seen from the department’s side, a staff of salaried lawyers is also easier to direct, audit and scale than a patchwork of grantees.
The objection from the people who have represented these children for years is about independence, and it is a serious legal question rather than a slogan. Shaina Aber, Acacia’s executive director, told AP that placing children’s lawyers inside the agency that holds them in custody is unprecedented. Wendy Young, president of Kids in Need of Defense, told AP that the judge, the prosecutor and now the child’s lawyer would all be federal employees, and that a government lawyer might steer a child toward voluntary departure. Government-paid defense is not new in itself. Federal public defenders are paid with public money, and military defense counsel wear the same uniform as prosecutors. But both systems are built so that defense lawyers answer to a separate chain of authority. As described in the notice, this division sits in the general counsel’s office, which is also the office that advises HHS on everything else it does, including, presumably, the custody program.
That structure raises practical problems a lawyer would recognize immediately. A child’s interest is often to be released quickly to a parent or relative and to fight removal. The custodial agency’s interest may be caution about sponsors, or a quicker resolution of the case. Professional conduct rules require a lawyer to give undivided loyalty to the client and to keep client confidences. The dispute that, according to Mother Jones, set off this year’s contract fight was over government access to privileged information about these same children. Whether conversations between a child and an HHS-employed lawyer will be walled off from case managers and other HHS officials is a question the notice does not answer.
A good deal remains undefined. HHS has not said how the division will screen for conflicts, whether a child or family can turn down an in-house lawyer, whether outside nonprofits will continue to be funded alongside it, or how the arrangement squares with the statute’s instruction to make every effort to use pro bono counsel. It is also unclear how the division fits with the East Palo Alto injunction that ORR itself relied on in August, or with the regulations ORR cited in the same notice.
Several things could happen next. The most likely near-term arena is the courts. Legal aid groups have already litigated over cuts to children’s representation, and they could argue that lawyers employed by the custodial agency do not meet the statutory duty or the terms of existing court orders. Acacia’s challenge to the contract transition is also still pending, according to AP. Immigration judges may face the question case by case, since a judge who doubts that a child has conflict-free counsel can continue a hearing. Congress is another pressure point. ORR’s legal services are paid for through appropriations, and Mother Jones reported that dozens of lawmakers signed a letter criticizing the earlier awards. How the division is staffed and funded in the next spending bill will show how permanent it is meant to be.
For families and sponsors, the first practical step is simple: ask who the child’s lawyer works for. Children keep the right to be represented by a private or pro bono lawyer of their choice, and an outside lawyer can still enter an appearance in the case. Whatever the representation, missing a hearing can lead to a removal order issued in the child’s absence, so sponsors should track every hearing date through the immigration court’s online case portal or automated phone line and keep their address current with the court.
For practitioners and legal aid groups, the immediate task is to document how representation is working on the ground: who appears for children, whether in-house lawyers are filing for relief such as Special Immigrant Juvenile status or asylum, and whether confidentiality is preserved. That record will matter in any challenge. Policymakers and court administrators should watch for implementing guidance from HHS, which would be the first real indication of how independent the new division is meant to be.
Source: HHS, Statement of Organization, Functions, and Delegations of Authority, Federal Register, Sept. 29, 2026; ORR, Announcement of Intent to Award a Single-Source Cooperative Agreement to Burke Law Group, Federal Register, Aug. 6, 2026; 8 U.S.C. 1232 (TVPRA); 8 U.S.C. 1362; Associated Press (via WLRN), Oct. 7, 2026; Mother Jones, Oct. 7, 2026.
This article is for general information and is not legal advice. The situation is changing quickly, so please consult an immigration attorney about your specific case.
About the Author
Discover more from Immigration Analytics
Subscribe to get the latest posts sent to your email.
