ARGUMENT
Amici submit this brief to provide the Court with a summary of the extensive research that demonstrates the exceptional vulnerability of unaccompanied migrant children and the additional trauma that will be inflicted on these children if Appellants eliminate funding for direct representation in immigration proceedings. There is a significant body of research that establishes what Congress has intuited: that unaccompanied minor children in adversarial immigration proceedings are a uniquely vulnerable population that require direct representation to be protected from “mistreatment, exploitation, and trafficking.” See 8 U.S.C. § 1232(c)(5). It is both commonsense and well established in research that it is developmentally inappropriate for any child—much less a child suffering the traumas of migration, parental separation, and detention—to represent themselves in complex and adversarial legal proceedings. Unaccompanied children also face significant risk of abuse both during and subsequent to their detention, particularly if such children lack a trusted adult in their lives. And children who have been separated from their caretakers and detained during migration experience dangerous levels of stress that cause lifelong psychological and physical harm. The precarious physical and mental state of these children is the context in which the Court reviews Appellants’ request for a stay, including its consideration of the public policy interest in granting a stay.
Our research shows that lawyers help to mitigate all of these harms. Granting the stay will significantly and permanently harm the 26,000 unaccompanied children currently receiving direct legal representation funded by the Office of Refugee Resettlement (“ORR”). Without representation, many of these vulnerable unaccompanied children with meritorious claims for immigration relief will be removed to countries where they face abuse, trafficking, and violence. And regardless of the strength of any given unaccompanied child’s claim, lack of representation leads to greater risk of abuse in detention, greater risk of trafficking after detention, greater risk of prolonged detention, and toxic levels of stress that threaten their long-term development and physical and mental health. Such permanent, severe harm to vulnerable children weighs strongly against the Government in the public interest analysis. Cf. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987) (where there is likely an injury that is “permanent or at least of long duration” the balance of equities “will usually favor the issuance of an injunction.”).
Amici agree with the Panel that a stay of the district court’s preliminary injunction is inappropriate because the Government has not met its burden to establish either a likelihood of success on the merits or irreparable harm. See Cmty. Legal Servs. v. HHS, No. 25-2808, 2025 WL 1393876, at *1 (9th Cir. May 14, 2025). In addition, however, a stay is inappropriate because it is against the public interest because of the significant and permanent harm to vulnerable children that will result if ORR eliminates direct funding for representation of unaccompanied children pending the resolution of this lawsuit. The Government’s attempt to eliminate funding for direct representation undermines Congressional intent to provide this vulnerable class of children with procedural regularity and a fair shot to avoid further trauma associated with detention and unsafe repatriation. That irreversible trauma is all but certain if the Government has its way, even if only during the pendency of the litigation. Consequently, a stay is clearly not in the public interest and en banc review of the Panel’s decision should be denied.