Unaccompanied Children Lawyers: Senators Push HHS to Retreat

Six Democratic senators gave HHS until Oct. 30 to promise that none of its own attorneys will represent an unaccompanied child in immigration court. The demand arrives as the independent legal network that once served these children has largely stopped working.

Six Democratic senators asked Health and Human Services Secretary Robert F. Kennedy Jr. on Oct. 19 to dismantle the department’s new in-house unit of unaccompanied children lawyers and to confirm in writing by Oct. 30 that no HHS attorney will represent a child in immigration proceedings. The letter, led by Sen. Tammy Duckworth of Illinois and signed by Sens. Richard Durbin, Ron Wyden, Adam Schiff, Edward Markey and Elizabeth Warren, targets the Unaccompanied Alien Children Legal Representation Division that HHS placed inside its Office of the General Counsel through a Sept. 29 Federal Register notice. It is the first formal challenge from Capitol Hill to a unit that drew questions as soon as it appeared, as earlier coverage of the HHS legal division laid out.

The timing gives the dispute real weight. The contract that paid a national network of nonprofit lawyers to represent children released from federal custody expired July 31, and the senators say it covered more than 20,000 children. Its replacement has stalled. Mother Jones reported on Oct. 19 that the temporary provider, the U.S. Committee for Refugees and Immigrants, has represented only 12 children so far, and that a contract awarded to Our Rescue is on hold after a protest by the Acacia Center for Justice, which ran the old network. If outside counsel stays scarce, the HHS division could become one of the few lawyers a child is offered.

When the custodian is also the lawyer

HHS, through its Office of Refugee Resettlement, holds the child, decides whether a sponsor is suitable, and controls release. Federal law also gives HHS a veto over a key route to a green card for these children: a state juvenile court cannot rule on the custody or placement of a child in HHS custody, a required step for Special Immigrant Juvenile status, unless HHS consents. An HHS attorney pursuing that relief would in some cases be asking the attorney’s own employer to say yes.

The senators build their case on legal ethics. Division attorneys would be HHS employees supervised by the general counsel, who reports to the secretary, and the letter points to professional conduct rules that bar a lawyer from letting the person who employs or pays the lawyer direct the lawyer’s professional judgment. They also note that the notice creating the division sets out no procedure for screening conflicts, protecting client confidences or separating the lawyers from HHS’s custody decisions, while saying the division may coordinate with other federal entities.

The statute is less decisive. The 2008 Trafficking Victims Protection Reauthorization Act tells HHS to ensure, “to the greatest extent practicable,” that children who have been in its custody have counsel, and to make every effort to use pro bono lawyers, but it does not say who may not serve. The fight is therefore likely to turn on ethics rules and how the unit is built.

HHS presents the division as a supplement rather than a substitute. It told the Associated Press, as Mother Jones reported, that the unit gives the department “an additional mechanism to provide these children direct legal support while dedicated public servants work around the clock to safely reunify them with their families.” The Justice Department’s Executive Office for Immigration Review told Mother Jones it is not fast-tracking children’s cases.

How many children are in the pipeline

Federal data show the size of the population at stake. The Office of Refugee Resettlement received 128,904 referrals of unaccompanied children from DHS in fiscal 2022, 118,938 in fiscal 2023 and 98,356 in fiscal 2024, according to its published data, which do not yet cover later years. Set against those numbers, the 12 children Mother Jones reported for the stopgap provider show the size of the gap.

Legal aid groups are also asking a Maryland federal court to suspend USCIS rules that they say push unaccompanied children into asylum interviews on short notice in a case that began with a suit seeking to restore 21 days’ notice. That fight, like disputes over the Louisiana staging site for migrant children, assumes someone independent is speaking for the child.

What the Oct. 30 deadline can and cannot force

The letter carries no legal force, and HHS need not answer. A binding answer is more likely to come inside individual cases, once an HHS attorney files a notice of appearance and a judge or child advocate raises the conflict on the record. The Our Rescue protest may matter more still, because a working outside network would shrink the HHS unit’s role.

Oct. 30: the senators’ deadline for HHS to confirm in writing that its lawyers will not represent children.
Contract protest: a decision on the stayed Our Rescue award would show whether an independent provider network returns.
First appearances: whether HHS attorneys begin entering immigration court cases, and how judges respond.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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