Federal cuts took lawyers away from migrant children. A lawsuit is still trying to bring it back

A lawsuit that aims to restart funding providing legal representation to unaccompanied migrant children was back in court this week.

U.S. Health and Human Services has for years funded a program providing legal aid to migrant children facing immigration court proceedings.

The agency canceled the majority of a roughly $200 million contract paying legal service providers to do that work. Providers filed suit after that, arguing that eliminating direct legal representation violates the Congressionally-approved Trafficking Victims Prevention and Protection Reauthorization Act, or the TVPRA, along with the Health and Human Services’ own guidelines.

Justice Action Center founder and attorney Karin Tumlin, who represents the providers, told the judge children have already started appearing alone in proceedings without lawyers, and one had even been deported.

“And finally, we know that children have been held in detention and ORR shelters longer than necessary because they have no one to explain their rights to them,” she said.

Tumlin and her co-counsel argue the government has not complied with an April 1st restraining order that temporarily restores funding for legal services, and say additional children have been referred to providers since that ruling. They’re asking for a preliminary injunction to further stop the move.

The Department of Justice argued the government is still honoring its obligations by providing group Know Your Rights talks for detained children and legal screenings.

“The agency is very much acting consistent with the TVPRA and the foundational rule, when it provides the things that it must provide,” Department of Justice Attorney Jonathan Ross said in court Wednesday.

Under TVPRA guidelines, the government is required to “ensure, to the greatest extent practicable,” ensure unaccompanied children receive counsel in legal proceedings.

The suit sites that law and the Office of Refugee Resettlement’s 2024 Foundational Rule, which requires the government to “fund legal service providers and to provide direct immigration legal representation” to unaccompanied children if there are available appropriations. It argues appropriations are supposed to be available through Sept. 2027.

Ross agued the agency had ultimate control over how to interpret those requirements.

“Not only in the foundationary rule does the word ‘discretion’ expressly appear, but courts have routinely interpreted that ‘to the greatest extent possible,’ means that the agency has discretion with the who, the what, the why, the how, and the when,” he said.

Tumlin said regardless of how it happened, direct legal services needed to be restored.

“This isn’t about dollars and cents, If the defendants were taking actions to ensure that unaccompanied children could get some of the funds that Congress expended on their behalf and had representation, even if it was not representation by our clients, they would have redressability, their harms would be addressed they would be able to fulfill their mission of ensuring that children don't stand alone in immigration court,” she said.

U.S. District Judge Araceli Martínez-Olguín said her ruling on whether to grant a preliminary injunction and force the government to resume funding was forthcoming.