Oregon Senator Ron Wyden and five Senate colleagues are pressing Health and Human Services Secretary Robert F. Kennedy Jr. to dismantle a newly established federal legal division authorized to represent unaccompanied migrant children in immigration proceedings, challenging whether attorneys employed by the agency responsible for their custody can independently defend their interests.
The senators requested written confirmation by October 30 that HHS attorneys would not represent the children in immigration proceedings. Their letter also calls for restoring independent legal representation through pro bono attorneys and experienced outside providers selected through competitive awards.
Wyden’s office released the request October 20, following its publication by Illinois Senator Tammy Duckworth’s office October 19. Duckworth, Illinois Senator Richard Durbin, California Senator Adam Schiff and Massachusetts Senators Edward Markey and Elizabeth Warren joined Wyden in signing the letter. All six are Democrats.
The dispute follows a September 29 Federal Register notice signed by Kennedy establishing the Unaccompanied Alien Children Legal Representation Division within the HHS Office of the General Counsel. The division is authorized to advise children, provide introductory instruction about immigration procedures and represent individual children before immigration courts and other immigration adjudicatory bodies. Its attorneys may continue representing a child throughout the proceedings.
HHS’s organizational notice places the division under an associate general counsel who reports through a designated deputy to the department’s general counsel. The same notice requires the division to operate separately from the Children, Families, and Aging Division, the Administration for Children and Families and the Office of Refugee Resettlement.
Under that arrangement, attorneys representing a child cannot also advise those agencies on matters involving that child’s representation. The notice permits coordination with other federal legal offices and agencies when consistent with the attorneys’ professional responsibilities to their clients.
The senators contend those provisions do not sufficiently address conflicts that could arise between a child and the department. HHS, through the Office of Refugee Resettlement, oversees the custody, placement and release of unaccompanied children referred to its care. An attorney representing a child could need to challenge those decisions or investigate allegations involving a federally supported facility.
Their letter questions how an HHS attorney would pursue a child’s interests when doing so requires opposing the department’s position, examining alleged mistreatment within its programs or seeking relief that depends on challenging government actions. It also raises concerns about whether children would disclose abuse, trafficking or sensitive family information to an attorney employed by their custodian.
The senators argue that the organizational notice does not establish detailed procedures for screening conflicts, protecting confidential communications or separating legal representation from custody decisions. Their objections have not, through the letter itself, produced a judicial determination that the division is unlawful.
Existing federal regulations provide specific requirements for legal services delivered to children in ORR custody. Those rules require an independent, qualified legal service provider to deliver an age-appropriate orientation in the child’s native or preferred language. They also provide for confidential legal consultations and private communication with attorneys and other authorized representatives.
The regulations further direct ORR to fund immigration representation for specified groups of children when obtaining pro bono counsel is impracticable, subject to available appropriations and agency determinations. The senators cite those requirements, along with the Trafficking Victims Protection Reauthorization Act of 2008, in seeking a return to outside representation.
The challenge adds to a separate oversight effort involving Oregon Representative Andrea Salinas. On October 16, Salinas and Wyden led a bicameral congressional letter questioning the administration’s handling of unaccompanied children’s immigration cases, including access to counsel, hearing schedules and opportunities to prepare applications for protection.
That letter directed 25 questions to federal immigration agencies and sought responses by October 30. It addresses the broader processing of children’s cases, while the six-senator letter focuses on the role of HHS-employed attorneys.
As of October 21, the reviewed public records contained no confirmation that HHS had rescinded the division or responded to the senators’ latest demand. The September notice establishes the division’s authority, but does not identify how many attorneys have been assigned or how many children they have represented.