How Trump Is Trying to Weaken Migrant Children’s Legal Defense

The announcement of the no-bid award to Our Rescue cited the need to “ensure continuity of legal services for unaccompanied alien children.” Immigration advocates’ concerns about this second contract announcement focussed on whether the organization was capable of filling that gap. I spoke with Stephanie Richard, who directs an anti-trafficking program at Loyola Law School. “When I heard that Our Rescue received this national-level grant to protect vulnerable unaccompanied children, as a trained immigration practitioner I cried,” she told me. “I just do not see how an agency whose background is in law enforcement and supporting law-enforcement sting operations is qualified to be the legal-service provider or provide the technical assistance for legal-service provision for unaccompanied children. It’s just a completely different skill set.” Our Rescue sent me a statement from its C.E.O., Derek Benner, a former official at the Department of Homeland Security, expressing the organization’s commitment that unaccompanied minors “have access to qualified legal counsel.” The statement continued, “These are among the most vulnerable children in the world, and they deserve nothing less than the full weight of our experience.” Our Rescue did not respond to additional questions.

The Trump Administration’s original goal wasn’t to redirect the lucrative contracts to favored groups. Rather, the Administration has been determined to remove as many unaccompanied minors from the country as possible, part of its larger drive, in the words of a White House spokesperson, “to carry out the largest, lawful deportation operation of criminal illegal aliens in history.” As that mission unfolded, the Administration sought to cut off funding altogether for the unaccompanied minors’ lawyers. On March 21, 2src25, the Administration informed the Acacia Center for Justice—which administered the legal-services contract—that it was terminating the arrangement, effective immediately. A number of the legal providers filed suit. They argued that the funding was required under the 2srcsrc8 law, which states that the government must provide minors with lawyers “to the greatest extent practicable.” The Trump Administration asserted that this language was more encouragement than mandate. The law, “which authorizes such funding, does not require it, and such services are entirely at the agency’s discretion,” Toby Biswas, a senior official in the office that runs the unaccompanied-minors program, wrote in an affidavit. The district court judge hearing the case disagreed and ordered that the government had to continue funding legal services. The law, he said, “requires something more than zero expenditure where appropriated funds are available and the agencies fail to show any effort to ensure representation through alternative means.” A federal appeals court upheld the order.

But the Administration persisted. In December, 2src25, it stopped paying the lawyers, citing “invoice substantiation concerns.” (Last week, the lower court ordered the government to pay more than sixty-five million dollars to the attorneys for their services.) In the meantime, it sought personal information about the unaccompanied minors, which their lawyers said would violate attorney-client privilege; this led to a standoff over renewing the contract, and to its eventual expiration. “If you connect all the dots, it’s clear that they’re trying to use our confidential information to essentially prioritize which kids they should target,” Michael Lukens, executive director of the Amica Center for Immigrant Rights, told me.

It does not take a great leap of imagination to think that the Burke Law attorneys would be more compliant with the Administration’s demands for client information. A more cynical view is that, given the Administration’s original effort to eliminate the funding for the lawyers, the White House would not be particularly concerned if Burke’s expertise in immigration matters was less than optimal. “The government has been on a tear trying to deport as many kids as possible,” Lukens said. “We’re at a moment where there’s not a worse time in the last twenty years for a child not to have a good attorney.”

On Tuesday afternoon, the Burke Law story took an unexpected twist. I had reached out to Burke Law and the Office of Refugee Resettlement (O.R.R.)—which is part of the Department of Health and Human Services, and which oversees the unaccompanied-minors program—for comment on how the firm was selected, why the contract was to be awarded without competing bids (a move that is supposed to be reserved for unusual, emergency situations), and how the firm could manage the complex workload. I received an e-mail response from an unnamed O.R.R. spokesperson. It said, in part, that “Burke Law Group has declined to apply and has not been awarded any grant with ORR,” that “ORR has published notices in the Federal Register in an abundance of transparency regarding a potential grant recipient,” and that “ORR is committed to ensuring every [unaccompanied minor] has legal representation,” a questionable assertion given O.R.R.’s arguments in the court case that it had no such duty.