On May 31, 2019, U.S. Citizenship and Immigration Services (USCIS) issued a memorandum changing its internal policy for assessing asylum office jurisdiction over asylum applications filed by previously designated unaccompanied immigrant children.  This memorandum and the summary below provide critical information for any pro bono attorney representing a previously designated unaccompanied child in an asylum case that remains pending before the asylum office or has not yet been filed.

Background

Generally, the USCIS asylum office only has jurisdiction over the asylum applications of noncitizens who are not yet in removal (deportation) proceedings.  However, pursuant to INA § 208(b)(3)(C), the asylum office “shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child” even if the child is already in removal proceedings.  (Emphasis added.)

In 2013, USCIS issued a memorandum explaining that the asylum office would treat previous determinations of unaccompanied status as binding for jurisdictional purposes so long as that determination had not been rescinded at the time the asylum application had been filed.  Practically speaking, this meant that so long as there had been no formal government action to rescind a previously designated unaccompanied child’s status (which did not frequently occur), the asylum office maintained initial jurisdiction over the child’s asylum case, even if the child was 18 or older, or was living with a parent or legal guardian at the time the asylum application was filed.

New Policy

On May 31, 2019, USCIS announced that it is reverting to the policy that existed prior to 2013 and will now make independent evaluations as to whether a previously designated unaccompanied child met the definition of an unaccompanied child at the time the asylum application was filed, even if there had been no formal action to rescind the prior unaccompanied status determination.  To make this jurisdiction determination, asylum officers will now examine whether, at the time of filing, the child:

1. Lacked lawful immigration status;
2. Was under 18; and
3. Had no parent or legal guardian in the United States who was available to provide care and physical custody.

(These requirements make up the definition of an "unaccompanied alien child" as defined in 6 U.S.C. § 279(g)(2).)  Additionally, pursuant to INA § 208(a)(2)(E), unaccompanied children are exempt from the one-year filing deadline for asylum.  This memorandum asserts that asylum officers must now assess whether the child constituted an unaccompanied child at the time of filing for purposes of determining whether to apply this statutory exemption to the one-year filing deadline as well.

Please note that the memorandum is effective as of June 30, 2019 and applies to any asylum office decision issued on or after that date.

Impact on Current Cases

Most unaccompanied child asylum applicants are unable to file for asylum until they are released from Office of Refugee Resettlement custody (the government agency that provides care and custody for unaccompanied children until they can be released to family or relatives).  Moreover, many unaccompanied children are released from ORR custody to the custody of one or both parents.  Thus, as a result of this memorandum, it appears that the asylum office will likely find itself to lack jurisdiction over many of NIJC’s pending unaccompanied child asylum applicants, including many previously designated unaccompanied child clients who are represented by pro bono counsel. 

Based on experience, NIJC expects that the determination as to whether an individual was an unaccompanied child on the date the asylum application was filed will likely be made in the context of an asylum interview.  This means that a child will not know whether the asylum office has determined it has jurisdiction over the child’s case until after the child has had a full asylum interview, and the asylum office issues a decision on the case as a whole

As a result, pro bono attorneys representing previously designated unaccompanied children have a variety of next steps to consider and discuss with their client.  These could include the following options:

1. Bypassing the asylum office process and moving forward with a merits hearing before an immigration judge;
2. Proceeding with the asylum office interview in hopes of successfully arguing that the asylum office has jurisdiction over the case;
3. Waiting to receive an interview notice from the asylum office, requesting that the asylum office issue a notice that it lacks jurisdiction over the case, and then continuing to proceed before the immigration court.

Factors to consider when determining next steps may include, among others:

1. The likelihood that the asylum office will find they have jurisdiction over a child’s case;
2. The impact on the child of requiring the child to detail prior traumatic events to an asylum officer who is likely to find that the asylum office lacks jurisdiction over the case;
3. The benefits of moving quickly towards adjudication.

These factors are very fact-specific and will differ tremendously from case-to-case.  NIJC strongly encourages pro bono attorneys representing unaccompanied child clients through NIJC to review the new memorandum and the relevant factors in their client’s case, and then reach out to their NIJC asylum point-of-contact to discuss recommendations on how to proceed.