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Samantha Putterman
By Samantha Putterman April 26, 2019

Migrant infants have appeared as defendants in immigration court for years, despite viral claim

The topic of unaccompanied toddlers appearing in immigration court drew widespread attention in 2018, after the Trump administration implemented its "zero tolerance" policy, leading to thousands of children being separated from their families. Accounts of small children being questioned by judges drew public outcry.

It didn’t take long for disturbing reports to emerge: These children, some as young as one, were appearing as defendants in immigration court unaccompanied by their parents or even attorneys.

Outraged, some people claimed the practice was new, ushered in by Donald Trump’s administration alone.

That’s wrong.

An image recently shared on Facebook is making that claim again, and features an image of a small child with the word "ICE" written across it, along with the seal for the U.S. Department of Homeland Security.

Additional text above and below the photo says, "For the first time in the 242 year history of the United States of America … a one-year-old child appears in court as a defendant."

The photo was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook.)

There has been an increase in unaccompanied children appearing in immigration courts within the last year, and that may be due to the Trump administration’s tough stance (as well as a record number of families attempting to cross the southern U.S. border) – but the practice itself is nothing new.

Megan McKenna, senior director of communications and community engagement for Kids in Need of Defense (KIND), told PolitiFact that young children have been subjected to immigration proceedings for years.

"It’s always been the case with children. It’s been a different, evolving system but children of all ages have had to appear in immigration deportation proceedings," McKenna said. "We have been referred kids as young as six months old prior to the Trump administration and also throughout it."

The Homeland Security Act of 2002

The Unaccompanied Alien Children program was created by law in 2002 when the Department of Homeland Security was established. It outlined the nation’s approach to caring for and treating minors who have illegally entered the U.S. alone or who were separated from an adult.

On March 1, 2003, the Homeland Security Act of 2002 transferred responsibilities for the care and custody of these children from the Immigration and Naturalization Service to the Office of Refugee Resettlement (ORR) under the umbrella of Department of Health and Human Services.

Since then, the ORR has cared for over 340,000 migrant children, according to the program’s website.  

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Unaccompanied minors are placed in facilities for 60 days, on average while they await their hearings. They can also be released to a relative or sponsor earlier.

These children are not guaranteed a right to an attorney, something that also predates the Trump administration.

ORR does offer services, indirectly, by contracting with the nonprofit Vera Institute for Justice, an organization that "works to preserve the rights of tens of thousands of migrant children," according to its website. The Vera Institute partners with a network of legal service providers across the U.S. who inform migrant children of their rights under U.S. law and defend them in their legal proceedings as part of its Unaccompanied Children Program.

While these nonprofits or law firms that offer pro bono services certainly help the children, McKenna says that many unaccompanied migrant children do not receive sufficient representation because the demand for attorneys willing to take these cases is so outmatched by attorney availability.

Founded in 2008, lawyers at KIND started providing legal counsel to unaccompanied immigrant children in January 2009. According to a January 2018 report, the organization found that 50 percent of the children have had no one to represent them in immigration court, making them five times more likely to be deported. That lines up with data from TRAC, a Syracuse University clearinghouse for immigration research, that shows that, indeed, on average since 2005, roughly 52 percent of all children undergoing immigration court proceedings have had no representation.

In the years since Trump took office, the percentage of children who have had no one to represent them has steadily increased, just as the raw number of cases themselves have increased, according to TRAC. Unrepresented minors accounted for 32 percent of the children who faced deportation hearings in 2016, 50 percent in 2017, 60 percent in 2018 and 71 percent so far in 2019.

Also according to that data, 60,695 unaccompanied children faced deportation hearings in 2017, compared to 54,037 in 2016 and 32,536 in 2015.

There has also been a dramatic increase in infants and toddlers appearing in immigration proceedings under the Trump administration, data shows.

In July 2018, Kaiser Health News reported that 70 babies younger than age one had appeared for their own deportation proceedings from Oct. 1, 2017 to June 30, 2018.

The number is up from the previous two years, which was 24 infants in all of fiscal year 2017 and 46 in fiscal year 2016. (Fiscal years run from Oct. 1 through Sept. 30)

Kaiser’s report also said that, from the Justice Department data reviewed, a total of 1,500 unaccompanied children, from newborns to age 3, have been called in to immigration court since Oct. 1, 2015.

Our ruling

A viral image on social media makes the claim that a "one-year-old appears in court as a defendant" for the first time in U.S. history.

Recent data does show a significant increase in the amount of young unaccompanied children appearing in immigration proceedings over the last fiscal year, but the practice was not implemented by the Trump administration – it’s been in place for over a decade.

We rate this post False.

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For the first time in U.S. history, a one-year-old appears in court as a defendant.
Wednesday, April 10, 2019

Our Sources

Facebook post, April 10, 2019

U.S. Department of Justice, Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry, April 6, 2018  

Office of Refugee Resettlement, "Unaccompanied Alien Children," Accessed April 21, 2019

Vera Institute for Justice, Legal Services for Unaccompanied Children, Accessed April 24, 2019

TRAC Immigration via Syracuse University, Juveniles — Immigration Court Deportation Proceedings, Accessed April 23, 2019

Kaiser Health News, Defendants In Diapers? Immigrant Toddlers Ordered To Appear In Court Alone, June 27, 2018

Kaiser Health News, From Crib To Court: Trump Administration Summons Immigrant Infants,  July 18, 2018, Unaccompanied Minors in Deportation Proceedings, July 19, 2018

Broadly, Toddlers Appearing Unaccompanied in Immigration Court Is Nothing New, July 9, 2018

Phone interview, Megan McKenna, senior director of communications and community engagement for Kids in Need of Defense (KIND), April 24, 2019

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Migrant infants have appeared as defendants in immigration court for years, despite viral claim

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