On October 16, 2018, the Board of Immigration Appeals (BIA) issued a precedent decision holding that an immigration judge (IJ) has initial jurisdiction over an asylum application filed by a respondent previously determined to be an “unaccompanied alien child” who turns 18 before filing the asylum application, in Matter of M-A-C-O-, 27 I&N Dec. 477 (BIA 2018).
Facts Underlying the Matter of M-A-C-O- Decision
The respondent, M-A-C-O-, was apprehended by Department of Homeland Security (DHS) officials at the age of 17 after entering the United States in 2015 without being admitted or paroled. He was determined to be an “unaccompanied alien child” (hereinafter referred to as “unaccompanied child”) and placed into removal proceedings. An “unaccompanied alien child” is defined at 6 USC § 279(g)(2) as a child without lawful immigration status who is under 18 years old and who has “no parent or legal guardian in the United States” or has “no parent or legal guardian in the United States . . . available to provide care and physical custody.”
M-A-C-O- turned 18 before his first immigration court hearing. At a subsequent immigration court hearing, M-A-C-O-’s counsel noted that M-A-C-O- had filed for asylum with U.S. Citizenship and Immigration Services (USCIS) because he had entered the country as an unaccompanied child. See INA § 208(b)(3)(C) (stating that an “asylum officer . . . shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child”). Relying on the fact that M-A-C-O- had turned 18 before he filed the asylum application, the IJ concluded that the IJ (and not USCIS) had initial jurisdiction over M-A-C-O-’s asylum application. M-A-C-O- then filed a second asylum application in immigration court. The IJ ultimately denied the asylum application, after M-A-C-O- testified in support of it at a hearing in 2017.
M-A-C-O- appealed the IJ’s ruling about asylum jurisdiction to the BIA. He did not appeal the IJ’s decision denying his request for asylum. The BIA dismissed the appeal, concluding that the IJ had properly exercised jurisdiction over M-A-C-O-’s asylum application because he had turned 18 before filing the application.
The BIA’s Reasoning
The BIA rejected M-A-C-O-’s argument that USCIS has initial asylum jurisdiction over individuals who have previously been determined to be unaccompanied children, regardless of whether they turn 18 prior to filing. The BIA asserted that “the most natural reading of the statutory language is that an asylum officer only has initial jurisdiction over a UAC’s asylum application if it is filed while the applicant is in UAC status.” M-A-C-O-, 27 I&N Dec. at 479. The BIA stated that “[n]either the TVPRA nor any other authority of which we are aware states that a DHS or [U.S. Department of Health and Human Services] determination of UAC status is binding on an [IJ] in removal proceedings.” Id. To support its reasoning, the BIA relied on Harmon v. Holder, 758 F.3d 728 (6th Cir. 2014), and also cited a December 2017 Executive Office for Immigration Review (EOIR) Operating Policies and Procedures Memorandum (OPPM) about juvenile cases and a footnote in former Attorney General Jeff Sessions’s decision in Matter of Castro-Tum, 27 I&N Dec. 271, 279 n.4 (A.G. 2018). In the Sixth Circuit’s Harmon decision relied on by the BIA, the petitioner had entered the United States at the age of 10 on a visitor visa (before Congress enacted the special asylum filing procedures for unaccompanied children at issue in M-A-C-O-) but did not file for asylum until she was in her twenties. The Sixth Circuit noted that the petitioner did not allege that she had ever been determined to be an unaccompanied child. 758 F.3d at 734 n.3. In contrast to the Harmon case, M-A-C-O- had previously been determined to be an unaccompanied child by DHS and had applied for asylum during the same removal proceedings that had been initiated after DHS made that determination.
The BIA acknowledged a USCIS memorandum from 2013 authored by Ted Kim, Acting Chief of the Asylum Division (hereinafter “2013 Kim memo”), which states that if a child has previously been determined to be an unaccompanied child, USCIS will adopt that determination for initial asylum jurisdiction purposes unless there is an “affirmative” act by the U.S. Department of Health and Human Services (HHS), U.S. Immigration and Customs Enforcement, or U.S. Customs and Border Protection terminating the unaccompanied child finding before the child files for asylum. Under that memo, it appears that USCIS would have had initial jurisdiction over M-A-C-O-’s asylum application since he had previously been determined to be an unaccompanied child and there was no affirmative act terminating that finding. However, the M-A-C-O- decision states that the USCIS memo “is not embodied in a regulation that has the force and effect of law” and is thus not binding on IJs or the BIA, nor does it “purport to limit” IJ authority to determine whether a respondent is an unaccompanied child. 27 I&N Dec. at 480.
The BIA concluded that the IJ “properly exercised initial jurisdiction to adjudicate the respondent’s application” because he had turned 18 years old before filing for asylum with USCIS and the IJ and “therefore no longer qualified as a UAC.” Id.
Implications for Practitioners
The M-A-C-O- decision is consistent with the current administration’s policies that attempt to limit protections that Congress established for vulnerable children through the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110–457, 122 Stat. 5044. The efforts to curtail protections afforded to unaccompanied children can be seen, for example, in the President’s January 2017 executive order, a February 2017 DHS implementing memorandum, a previous EOIR memorandum and OPPM, and proposed DHS and HHS regulations that would give those agencies the authority to strip children of their unaccompanied child status and remove their access to TVPRA protections.
In light of the M-A-C-O- decision, practitioners should expect that IJs may inquire about whether the respondent was under 18 at the time he or she filed for asylum with USCIS, and may assert initial jurisdiction over the respondent’s asylum application if the respondent turned 18 before filing. While the M-A-C-O- decision only addressed the issue of a child who turns 18 before filing, IJs may also take the view that its reasoning applies equally to a child previously determined to be unaccompanied who then reunifies with a parent or legal guardian before filing. Cf. M-A-C-O-, 27 I&N Dec. at 480 n.3 (noting that the issue of whether the respondent’s release to his aunt was to a “legal guardian” within the meaning of the unaccompanied child definition was beyond the scope of the decision).
Practitioners confronting challenges related to whether a client is entitled to protections as an individual previously determined to be an unaccompanied child should weigh the various strategies available and pursue those that align with the client’s interest. For example, practitioners should consider filing for asylum with USCIS as soon as possible for clients previously determined to be unaccompanied children who plan to file for asylum. According to information provided at a USCIS asylum stakeholder meeting on November 16, 2018, the 2013 Kim memo about USCIS’s initial asylum jurisdiction over unaccompanied children remains in effect. If the client’s unaccompanied child status is called into question, practitioners should consider submitting briefing and any relevant evidence to create the strongest possible record and preserve the issue for a potential BIA appeal and/or petition for review in federal circuit court. Practitioners may want to argue that M-A-C-O- was wrongly decided and/or distinguish the facts from those in M-A-C-O-. In making arguments about initial asylum jurisdiction, the relevant point in time is the date of filing of the asylum application. See INA § 208(b)(3)(C). CLINIC’s May 2017 Practice Advisory on Strategies to Combat Government Efforts to Terminate “Unaccompanied Child” Determinations contains ideas for arguments that could be presented about why USCIS has jurisdiction, including through a broad interpretation of the word “filed” to include an individual’s initial expression to government authorities of an intent to seek asylum. CLINIC’s article discussing a 2017 EOIR memorandum about IJ authority to make unaccompanied child determinations may also be relevant.
CLINIC continues to track de-designation trends and asks that practitioners report such incidents, including IJ assertion of initial asylum jurisdiction over cases involving children previously determined to be unaccompanied, using our web form.