Children’s Best Interests vs. Government’s Interests: How Does Immigration Court Differ From Juvenile Court?

by Susan Schmidt, DSW, LGSW

Immigration policy changes and enforcement actions currently seem inescapable, from the termination of immigration status and programs, to the apprehension of immigrants in homes, workplaces, and even immigration courts. As immigrant detention reaches the highest level on record (Chishti & LaCarte, 2025), and apprehensions and deportations continue to increase, what does due process look like for children and youth who end up in immigration court?

Court Differences

Minnesota has one immigration court at Fort Snelling that handles immigration cases for residents of Minnesota, North Dakota and South Dakota. While the immigration court has recently been excluding public observers from court, during a sabbatical in 2023-2024, I was able to observe 653 children and youth on the “juvenile docket” at the Fort Snelling immigration court. For comparison, I also observed 372 children and youth involved in child welfare court proceedings in five Minnesota counties—primarily Ramsey, along with Anoka, Dakota, Hennepin, and Nobles.

Point of Intersection in SIJS Cases

An area of intersection for both types of courts involves Special Immigrant Juvenile Status (SIJS), a visa for children and youth who have experienced abuse, neglect or abandonment by one or both parents. An SIJS visa can lead to lawful permanent residence (also called a green card), eligibility for a work permit and social security number, and other potential benefits. SIJS—originally conceived by social workers in California—was created in 1990 for undocumented youth aging out of the foster care system without the ability to support themselves (Schmidt, 2017). To be eligible, immigrant youth must have an order from a court hearing juvenile matters finding: that they are dependent on the court; that parental reunification with one or both parents is not viable due to abuse, abandonment, or neglect; and that it is not in their best interests to be returned to their country of origin. With this court order, youth can submit an SIJS application to USCIS. While immigration court does not grant SIJS (USCIS does this), the immigration court may choose to pause proceedings while SIJS applications are pending.

SIJS has been an important route to legal permanency for young people who have experienced maltreatment. Unfortunately, SIJS was classified as an employment visa (rather than a humanitarian status) with annual numerical limits on the number of visas that can be issued. A backlog of over 100,000 SIJS applications currently exists and can require a years-long wait for status (End SIJS Backlog Coalition, n.d.-a). The Biden Administration issued “deferred action” protection from deportation for youth waiting in this visa backlog, but the U.S. Citizenship and Immigration Services (USCIS) announced the termination of deferred action in June 2025 (USCIS, 2025; NIPNLG, 2025). A November 2025 court decision reversed this USCIS policy change, allowing approved SIJS applicants to again receive deferred action and a work permit while awaiting a visa (NIPNLG, 2026).

Since the profession’s roots in the settlement house movement, social workers have been important advocates for children and for immigrants (Schmidt, 2019). Given social workers’ significant involvement in child welfare systems and proceedings, we are uniquely situated to identify and refer immigrant youth for immigration legal services. Social workers can also join the nationwide End SIJS Backlog Coalition to advocate for immigrant youth protections, and to empower immigrant youth in organizing and advocating for themselves (End SIJS Backlog Coalition, n.d.-b).

As social workers, we challenge social injustice, and advocate for the vulnerable. In this context, that includes advocating for due process and legal assistance for children involved in immigration proceedings. In this period of increased targeting of immigrants, we can recognize, and speak up for, the dignity and worth of all children and youth, no matter where they were born.

Readers accustomed to observing child protection proceedings in Minnesota might note some of the following differences for children in immigration court:

There is no “best interests” standard for children in immigration court. Children’s best interests are not a primary consideration in making immigration decisions, with attention to best interests varying by presidential administration. While the Executive Office for Immigration Review (EOIR, i.e. immigration court) under the Biden Administration recognized the relevance of children’s best interests (Neal, 2023), the second Trump Administration has returned to an earlier interpretation that the best interest of the child “alone cannot provide a legal basis for granting relief or protection not otherwise sanctioned by law” (Keller, 2017). The federal government protects its own interests through a government attorney, but many children have no adult advocate in court.
Children must find their own attorneys in immigration court, and only 37% of the youth I observed had legal representation. Another 31% were unrepresented (pro se), and 32% did not appear for their court hearings. Immigration judges give children a paper list of local non-profit legal organizations and then expect children or their family members to arrange and pay for attorneys themselves. Many children or their guardians reported in court that they had tried unsuccessfully to reach attorneys, were put on waiting lists, or couldn’t find lawyers to take children’s cases (Schmidt, 2025).
There are no guardians ad litem (GAL) in Minnesota’s immigration court. A comparable role is played by “child advocates”, defined as “third parties who make independent recommendations regarding the best interests of an unaccompanied child” (45 CFR 410.1308), but these only exist in certain locations across the country (See Practice Tips), and not in Minnesota. Even in locations where a child advocate program exists, they are only provided to the most vulnerable children (e.g. very young children; those with physical or mental disabilities; children separated from caregivers; child victims of trafficking or violence; etc.). For comparison, of the 372 juvenile court hearings that I observed, 74% of children and youth had a GAL present in court or had one appointed during the hearing. Unrepresented youth were primarily involved in truancy cases and a GAL may not have been statutorily required.
Children may have to travel hours to attend immigration court, and must arrange their own transportation. Children with hearings at the Fort Snelling immigration court came from all over Minnesota, North Dakota, and South Dakota. While many young people were in the Twin Cities metro region, others came from places such as Detroit Lakes, MN, Sioux Falls, SD, and Fargo, ND. Some immigration hearings occurred remotely, but this option appeared to be inconsistently mentioned to child respondents and their family members. Children represented by attorneys were the most likely to attend court online.
There can be serious penalties for children who do not attend their court hearings, such as a judge’s order for the child to be removed (i.e. deported) from the US. By contrast, very few children and youth attended their child welfare hearings, with a 75% absence rate in the child welfare cases I observed. This comparison between courts made me wonder about realistic expectations for children and youth regarding court appearances, particularly if they cannot drive, navigate, or pay for public transit; if they are not old enough to read; do not read English; or if they do not receive the hearing notice.
There are no social workers or social services provided to help children in Minnesota’s immigration court. I compared the oral statements of children and youth in immigration court with the content of Minn. Stat. ch. 260C (2003) on Juvenile Safety and Placement, and identified possible verbal indicators of maltreatment under the statute, such as: abandonment; physical or sexual abuse; inadequate food, clothing, shelter, or education; sexual exploitation; habitual truancy, and possible labor trafficking. The immigration court was ill-equipped to respond to these indicators of potential maltreatment, even though such issues arose.
Immigration court was adept at handling Spanish interpretation and hybrid hearings. They used court-employed Spanish interpreters for simultaneous translation through courtroom headphones, but interpretation of other languages required judges to call federally contracted language lines for phone interpretation via speakers in the courtroom ceiling. While hearings occurred in the EOIR courtroom, cases with attorneys were varied—with attorney and child client in the courtroom, both online, or one online and the other in the courtroom.

Practice Tips for Social Workers Assisting Non-citizen Children and Families in Child Welfare Systems

Refer non-citizens for immigration legal services as soon as possible; resources in Minnesota include: The Advocates for Human Rights; Immigrant Law Center of Minnesota; Mid-Minnesota Legal Aid; Southern MN Regional Legal Services.
Treat immigration status information as confidential and protected data.
Consider accompanying clients to immigration court hearings, for support and accountability.
Encourage immigrant families to create a care plan for children, in case of detention or deportation, such as:
Consider getting help with intercountry casework (such as home studies, follow up visits, document finding, person tracing, in other countries) through International Social Service-USA Branch.