In September 2017, an Executive Office for Immigration Review (EOIR) memorandum was circulated on various listservs. The memo is dated September 19, 2017 and is addressed to James R. McHenry III, the acting director of EOIR, from Jean King, General Counsel. The memo is titled “Legal Opinion re: EOIR’s Authority to Interpret the Term Unaccompanied Alien Child for Purposes of Applying Certain Provisions of TVPRA.” It is believed that the memo was distributed to all immigration judges (IJs).

Summary of Memo

The memo provides a legal opinion to EOIR on two questions: (1) whether the Department of Homeland Security (DHS)’s determination about whether an individual is an “unaccompanied alien child” (UAC) is legally binding on EOIR; and (2) whether an individual who previously “had UAC status” but no longer meets the UAC definition loses protections afforded to UACs by the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). The nine-page memo concludes that the DHS’s determination about UAC status is not binding on IJs; rather, IJs have authority to “resolve any dispute about UAC status” during removal proceedings when it is relevant to a respondent’s eligibility for relief or to whether the initial asylum jurisdiction provision found at 8 U.S.C. § 1153(b)(3)(C) applies. The memo also concludes that an individual previously classified as a UAC who no longer meets the UAC definition may lose TVPRA protections afforded to UACs.

The Memo Concludes That IJs Can Make Independent UAC Determinations

The memo, in its discussion of IJs’ authority to make UAC determinations, concludes that even though there is no express statutory language granting IJs this authority, Congress’s intent in enacting the TVPRA was to give IJs the authority to make UAC determinations. It notes provisions of the TVPRA that implicate EOIR, such as the requirement that UACs be placed in removal proceedings under INA § 240 rather than be subjected to expedited removal under INA § 235(b); the fact that UACs are exempt from the one-year filing deadline and safe third-country bar in asylum cases; and UACs’ eligibility for voluntary departure without regard to their ability to pay for the travel. It reasons that IJs must have the authority to make UAC determinations in order to apply these provisions properly. 

The memo acknowledges that the TVPRA “explicitly limit[s] an [IJ’s] jurisdiction” over initial asylum applications filed by UACs, but it argues that the IJ can make a UAC determination for purposes of the “threshold jurisdictional question” as to whether the IJ has jurisdiction over the initial asylum filing.  In a footnote, the memo states that even though in its view “DHS’s determination of UAC status is not binding on an [IJ],” as a matter of policy an IJ need not sua sponte re-determine UAC status “in cases where ICE does not object to a continuance or administrative closure to allow a respondent to pursue an asylum application with USCIS.”  The memo concludes that IJs can resolve “any dispute about UAC status” when it is necessary to decide a respondent’s eligibility for relief or in determining if the IJ has initial asylum jurisdiction.

The Memo Concludes That an Individual Previously Classified as a UAC Can Lose TVPRA Protections If His or Her Status Changes

The memo then reasons that an individual who previously had UAC status can lose TVPRA protections if his or her status changes. It provides three examples of a status change: (1) turning 18; (2) becoming “accompanied” after a parent is located to provide care and custody; and (3) being granted legal status. It discusses three scenarios where a respondent previously classified as a UAC could lose TVPRA protections:

1. The memo states that for purposes of initial asylum jurisdiction, the most natural reading of the statute is that only respondents who are UACs “at the time of filing” the asylum application may apply with USCIS initially.
2. For purposes of the voluntary departure benefit afforded to UACs by the TVPRA, the memo concludes that while the statute is ambiguous, its most natural reading is that only those respondents who are determined by the IJ to be UACs “at the time that a respondent applies for voluntary departure” are eligible.
3. The memo concludes that the exception for UACs to the one-year filing deadline ceases to apply once a respondent is no longer a UAC. However, the memo concludes that while there is some ambiguity about when the one-year time limit begins to run, the best interpretation is that it is “tolled while a respondent is in UAC status and begins running when a respondent loses such status.”

Practice Tips

It remains to be seen how many IJs will interpret this guidance in practice. CLINIC continues to track de-designation trends and asks that practitioners report such incidents using our web form. The following practice tips might assist practitioners in representing individuals who have been previously deemed UACs in light of the September 2017 EOIR memo:

• If the DHS attorney takes the position that a respondent is no longer a UAC, practitioners should remember that pursuant to this memo, in EOIR’s view IJs are not bound by the DHS’s position and instead have authority to independently examine the issue. Practitioners might treat any DHS statements about UAC status as motions for re-determination of UAC status, even if the DHS does not use that terminology. Practitioners could then insist that the procedures and deadlines governing motions in immigration court be followed, allowing time for the practitioner to file an opposition. In cases where it benefits the client, practitioners may wish to present oral and/or written arguments, and supporting evidence, to show that the respondent remains a UAC with the correspondent protections. CLINIC’s Practice Advisory on Strategies to Combat Government Efforts to Terminate “Unaccompanied Child” Determinations contains potential strategies and arguments. This strategy will ensure a strong record in the event of an appeal – either where the IJ rules in the practitioner’s favor and the DHS appeals, or where the practitioner needs to appeal an unfavorable IJ ruling at the end of the case or as an interlocutory appeal.
• Likewise, if the IJ appears poised to unilaterally determine that a respondent is no longer a UAC, practitioners should insist on the opportunity to make an evidentiary record on the issue and present oral and/or written arguments. Practitioners might also argue that it is inappropriate for an IJ to unilaterally reconsider a respondent’s UAC status for asylum jurisdiction purposes, given the memo’s focus on IJs’ resolving “disputes” over UAC status and the EOIR “policy” noted in footnote 3 of the memo. This argument might be particularly important if it appears that the IJ’s behavior is motivated by bias against a particular child or UACs in general. Practitioners may also choose to challenge the memo’s conclusion that IJs have any authority whatsoever to determine UAC status, though this position taken to its logical extreme would effectively insulate from review the DHS’s unilateral attempts to strip UAC status.
• Even if the child is not planning to apply for asylum and the practitioner does not think that the UAC determination is relevant to the child’s relief, it may be advantageous to object to any DHS attempt to “terminate” UAC status and to make a complete record upon which the IJ will base his or her decision and preserve the issue for appeal. It may be particularly important to force the DHS on the record to articulate its rationale for the relevance of the UAC de-designation in light of the possible long-term implications of the DHS’s position that a youth is no longer a UAC. For example, the DHS could seek to terminate the § 240 proceedings if the youth has been in the United States less than two years and subject the youth, as a non-UAC, to expedited removal proceedings.
• For practitioners whose clients are facing the one-year filing deadline, consider whether age-based arguments exist, for example:
  • that the one-year filing deadline was tolled during the period the respondent was a UAC (as the memo directs)
  • that the extraordinary circumstances exception to the bar applies given the respondent’s age and other factors. This can apply whether the child loses UAC status before or on his/her 18th birthday.  Helpful ideas on this subject can be found in CLINIC’s practice advisory, in an unpublished BIA decision from May of 2017, and in footnote 6 of the memo
• For respondents previously determined to be UACs who plan to file for asylum where there has been no “affirmative act” by the DHS to terminate the UAC status, practitioners should file for asylum with USCIS as soon as possible. A 2013 USCIS memo, which remains in effect as of the date of this article, states that USCIS will accept jurisdiction over the initial asylum filing of individuals who were formerly determined to be UACs if there has been no affirmative act to strip the status. This may set up a conflict between two different parts of the DHS: the USCIS, which has accepted jurisdiction under the guidance that is currently in place, and the ICE attorney in immigration court, if he or she takes the position that a child is no longer a UAC and thus not entitled to USCIS jurisdiction. Practitioners should seek administrative closure based on the pending asylum application with USCIS, arguing that deference is owed to the entity (USCIS) to whom the TVPRA expressly grants jurisdiction and authority over UAC asylum cases, rather than to ICE, to which the TVPRA expressly grants no authority related to asylum determinations for UACs.  Remember that the relevant point in time for initial asylum jurisdiction purposes is the date of filing of the asylum application. CLINIC’s practice advisory contains ideas for arguments that could be presented in immigration court about why USCIS has jurisdiction, including that deference should be afforded to USCIS’s jurisdiction determination, policy reasons behind recognizing USCIS’s jurisdiction such as administrative efficiency, and an expanded interpretation of the word “filed.”

*CLINIC wishes to thank Kristen Jackson, senior staff attorney at Public Counsel, for her thoughtful contributions to this article.