Some of the content of this article is outdated. For example, in 2019 a federal district court issued a preliminary injunction enjoining a USCIS policy that would have rescinded the 2013 Kim Memorandum. For more information about that lawsuit, see CLINIC's JOP v. DHS webpage. For practice tips on navigating immigration court proceedings for unaccompanied child clients pursuing initial asylum jurisdiction with U.S. Citizenship and Immigration Services, see CLINIC’s October 2020 fact sheet on this topic.

On Oct. 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.