by Joanne Gottesman, JD & Randi Mandelbaum, JD, LLM
Federal and state laws as well as ethical and policy considerations compel child welfare agencies to act urgently to identify noncitizen children and provide them with immigration counsel. The obligation to do so is an inextricable part of what “safety, permanency, and child well-being” means (Child and Family Services Improvement Act, 2006). This issue is particularly pressing because there is no right to free counsel in deportation proceedings, even for children (8 U.S.C. § 1362, 2025).
Providing noncitizen foster children with immigration legal services is not an academic exercise, because most children in foster care will be eligible for some form of humanitarian immigration relief (Gottesman et al., 2018). In fact, over 86% of the children referred to a program in New Jersey that provides immigration legal representation to New Jersey’s foster children in 2023 had applications for some form of immigration relief filed by the end of 2024 (Gottesman & Mandelbaum, 2025). Special Immigrant Juvenile Status (SIJS), asylum, T, and U visas are the most common forms of relief for undocumented children in foster care (Gottesman & Mandelbaum, 2025).
There are three primary models for child welfare agencies to provide immigration legal services to children in their care (Casey Family Programs, 2025). The first is a pro bono referral model in which an in-house unit refers children to an outside agency or agencies for pro bono immigration representation. The second is a full representation model in which the child welfare agency contracts with one outside organization that provides a full range of immigration representation to the children (Gottesman et al., 2018). The third is a hybrid in which the agency provides limited immigration legal services to non-citizen children internally, and then refers children out for additional assistance. All have in common an internal unit within the agency focused on addressing the needs of the immigrant population of children in custody.
Several state and federal laws point to a legal obligation for child welfare agencies to identify noncitizen children in their care and provide immigration representation to these children. As to the identification of noncitizen children in care, federal law and some state laws instruct child welfare agencies to identify young people’s immigration status (42 U.S.C. § 671(a)(27), 2025). While the intent of these laws is primarily to ensure that federal funds are only made available to children who are U.S. citizens, it nonetheless mandates that all state and local agencies identify who in their custody is a noncitizen.
With regard to the provision of legal representation, one needs to look at state statutes. Some statutes define permanency in a manner that encompasses the obligation to provide legal representation. If the state statute or regulation clearly contains the right to receive services to achieve permanency, and permanency is defined in some way to include self-sufficiency, then the obligation to afford a child in state custody access to an immigration attorney is implicit.
Moreover, a few states have gone further and have passed legislation that explicitly addresses a child welfare agency’s obligation to noncitizen children in foster care. Some states directly instruct the agencies to provide legal assistance to foster children to stabilize their immigration status. Some limit this mandate to a specific point in time when the youth is getting ready to leave foster care. Other states do not mandate assistance but recommend that such assistance be provided. A few additional states do not address applications for immigration relief or legal assistance directly, but require that children aging out of foster care must be provided with social security cards and immigration documents, implying that assistance in obtaining those documents should be provided to children who need it while they are in custody (Haw. Rev. Stat. § 587A-3.1(a), 2025; D.C. Mun. Regs. tit. 29, § 6004.1, 2025; D.C. Mun. Regs. tit. 29, § 6203.2, 2025; D.C. Mun. Regs. tit. 29, § 6303.1, 2025; Iowa Admin. Code r. 441-202.11(7)(c), 2025; 18-6-1 Miss. Code R. § D-XI, 2025).
Even without a state statutory requirement, child welfare agencies must provide noncitizen children with legal representation to regularize their legal status. Numerous federal laws instruct that state and local child welfare agencies must afford all youth in their care and custody with safety, permanency, and child and family well-being (Child Welfare Information Gateway, n.d.; Lovato & Sepp, 2025). These are and have been the bedrock principles of child welfare practice for decades. Obligations to provide safety, achieve permanency, and ensure a child’s wellbeing cannot mean that a child remains at risk of being deported back to a parent who abused them or to a country where their life was in danger. They must also include the duty to ensure that all children have secure immigration status and, thus, can move toward self-sufficiency and a stable adulthood, where they can work lawfully and go to college.
Joanne Gottesman, JD, is Clinical Professor of Law and Director of the Immigrant Justice Clinic at Rutgers Law School. Her scholarship focuses on issues at the intersections of the child welfare, criminal, and immigration legal systems. Contact: [email protected]
Randi Mandelbaum, JD, LLM, is the Associate Dean for Clinical Education (Newark campus), Professor of Law, and Director of the Child Advocacy Clinic at Rutgers Law School. Contact: [email protected]