Responding to the serious problem of unaccompanied children being forced to participate in immigration proceedings without counsel, Congress passed the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), which requires that the Office of Refugee Resettlement (ORR) “ensure, to the greatest extent practicable,” that immigrant children who are in this country without their parents or guardians have lawyers to represent them in court. Since the TVPRA’s passage, Congress has reiterated its commitment to ensuring that representation by appropriating money each year for ORR to fund legal services providers who represent unaccompanied children.Notwithstanding this statutory requirement and the funding Congress has provided to help ORR fulfill it, ORR has decided to stop funding those legal service providers, leaving children—including infants—to participate in immigration proceedings without any adult, much less a lawyer, to help them. A group of legal aid groups challenged the Trump administration’s unlawful actions in the United States District Court for the District of Northern California, which issued a preliminary injunction preventing ORR from cutting off the funding. A panel of the Ninth Circuit denied the government’s request to stay the district court’s order. The government petitioned the full Ninth Circuit to review the panel’s decision.

In the summer of 2025, the Constitutional Accountability Center filed two amicus briefs, first one urging the full Ninth Circuit to deny the petition for rehearing en banc and then a second one urging the Court to affirm the district court’s order.  The briefs make three principal points.

First, as its text and history make clear, the TVRPA directs ORR to ensure legal representation for “all” unaccompanied children “to the greatest extent practicable.” Unlike other discretionary sections of the law, the legal representation requirement is a clear command. The law’s history underscores what its text makes clear: ORR has no discretion to leave unaccompanied children without counsel, so long as Congress appropriates funds for that counsel or ORR is otherwise able to provide counsel.

Second, since the TVRPA became law, Congress has consistently appropriated funding for ORR to ensure legal representation for unaccompanied children. And in awarding that funding, Congress has repeatedly emphasized that ORR should spend all appropriations available to fund direct legal representation so that lawyers do not have to triage children’s cases.

Third, ORR’s termination of all funding for representation of unaccompanied children is unlawful, and the Trump administration’s arguments to the contrary are without merit. For example, the Trump administration attempts to avoid its obligation under the TVPRA by pointing to Section 292 of the INA, but that provision simply creates an affirmative right to be represented by an attorney of one’s choice, while also clarifying that this affirmative right does not bestow a right to government-funded legal counsel. Congress’s decision not to create a right to government-funded counsel in immigration proceedings when it passed the INA does not prevent Congress from creating additional rights and duties in other laws. ORR has a statutory duty to ensure that unaccompanied minors are represented in court to the greatest extent possible, and the agency lacks the discretion to shirk that duty.