A Practice Advisory on Strategies to Combat Government Efforts to Terminate Unaccompanied Children Determinations (May 2017)

Last Updated

August 25, 2020

What is the definition of an unaccompanied child (“UC”) under federal immigration law and what protections are afforded to such children? This practice advisory is intended to educate advocates on important UC protections and assist them with starting-point strategies for combating Department of Homeland Security efforts to strip vulnerable children of protections afforded to them as unaccompanied children. The practice advisory also discusses other steps advocates and communities can take to ensure that vulnerable children’s rights are protected.

See the Downloadable Practice Advisory Below

CLINIC Analysis of the September 2017 EOIR Office of the General Counsel Memo entitled “EOIR’s Authority to Interpret the Term Unaccompanied Alien Child for Purposes of Applying Certain Provisions of TVPRA”

CLINIC’s Analysis of the December 2017 EOIR Office of the Chief Immigration Judge Memo entitled “Guidelines for Immigration Court Cases Involving Juveniles, Including Unaccompanied Alien Children”

Additional Updates:

On September 7, 2018, the U.S. Department of Homeland Security (DHS) and the U.S. Department of Health and Human Services (HHS) issued a Notice of Proposed Rulemaking intended to terminate the Flores Settlement Agreement (which currently governs the detention, release, and treatment of children detained in federal immigration custody) and which proposes to allow DHS and HHS to re-determine “unaccompanied alien child” status. See proposed 8 CFR § 236.3(d); proposed 45 CFR § 410.101. The public comment period closed on November 6, 2018, and the proposed regulations have not yet been implemented.

On October 16, 2018, the Board of Immigration Appeals decided Matter of M-A-C-O-, 27 I&N Dec. 477 (BIA 2018), in which it held that “[a]n Immigration Judge has initial jurisdiction over an asylum application filed by a respondent who was previously determined to be an unaccompanied alien child but who turned 18 before filing the application.”

In 2019, USCIS issued a new policy whereby asylum officers were instructed to make independent factual inquiries to redetermine if an applicant met the statutory definition of "unaccompanied alien child" on the date of filing the asylum application, reversing the previous 2013 policy. CLINIC, along with Kids In Need of Defense, Public Counsel and Goodwin Procter, filed a lawsuit challenging the legality of the new policy, on behalf of asylum seekers who came to the United States as unaccompanied children. JOP v. DHS, No. 19-1944 (D. Md. filed July 1, 2019). The court issued a preliminary injunction prohibiting the government from applying the 2019 policy while the JOP case is pending. See CLINIC's webpage on the JOP case for more information.

The practice materials linked on this page have not yet been updated to reflect these new developments