On October 16, 2018, the Board of Immigration Appeals (BIA) issued a published decision in Matter of M-A-C-O-, 27 I&N Dec. 477 (BIA 2018), regarding jurisdiction over asylum applications filed by individuals who were previously designated as unaccompanied immigrant children (UICs), but filed for asylum after they turned 18 years old.  Pursuant to INA § 208(b)(3)(C), the USCIS asylum office “shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child.”  In 2013, USCIS issued a policy memorandum essentially stating that once a child has been designated as a UIC, that child remains a UIC for asylum office jurisdictional purposes unless there has been an affirmative act by the Department of Health and Human Services, Immigration and Customs Enforcement, or Customs and Border Protection to terminate that status. As a result, in many parts of the country, USCIS asylum offices have been adjudicating the asylum applications of individuals who were previously designated as UICs, but had turned 18 prior to filing an asylum application.

In Matter of M-A-C-O-, the BIA analyzed whether the asylum office has initial jurisdiction over an asylum application filed by an individual who was previously designated a UIC and has since turned 18, when there has been no affirmative act to terminate that status. After reviewing the statutory definition of a UIC, which includes as an element of the definition, being under 18 years of age, the BIA determined that the respondent was not a UIC at the time he filed for asylum and therefore the immigration court properly exercised initial jurisdiction over his asylum application.

The USCIS Asylum Office was given initial jurisdiction over asylum applications filed by UICs through the Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008, a law which created a number of protections for UICs. While youth who have turned 18 may not meet the statutory definition of a UIC, the rationale for giving the USCIS Asylum Office initial jurisdiction over the claims of "unaccompanied children" - e.g., their mental and emotional development; their particular vulnerability; and their dependence on others to pursue immigration relief - is as applicable to an 18.5 year old as it is to a 17.5 year old.

Practice Pointers

• The statute refers to “unaccompanied alien child,” also known as “UAC,” but advocates typically use and encourage the use of the term “unaccompanied immigrant child” or “UIC” instead. The definition of an unaccompanied alien child can be found at 6 U.S.C. § 279(g)(2), which states that an unaccompanied alien child is a child who
  (A) has no lawful immigration status in the United States;
  (B) has not attained 18 years of age; and
  (C) with respect to whom—
  (i) there is no parent or legal guardian in the United States; or
  (ii) no parent or legal guardian in the United States is available to provide care and physical custody.

• The plain language of the asylum statute states that the USCIS asylum office has initial jurisdiction over asylum applications filed by UICs. INA § 208(b)(3)(C). Thus, so long as an individual met the definition of a UIC at the time of filing, the asylum office should retain initial jurisdiction over the asylum application even if the individual no longer meets the definition of a UIC at the time of adjudication.
   
• Age is not the only way an adjudicator could find that an applicant does not meet the definition of a UIC.  If a UIC is released from custody to a parent or legal guardian and does not file for asylum until after release from custody, an immigration judge could also find that the individual did not meet the definition of a UIC for purposes of the asylum office’s initial jurisdiction. See M-A-C-O-, 27 I&N Dec. at 480 n.3 (noting that the question of whether the respondent’s release to his aunt – a possible “legal guardian” – also caused him to lose his UIC status is outside the scope of the BIA’s decision). Attorneys should keep in mind that “legal guardian” is generally a legal term of art and simply releasing a child to the custody of a non-parent family member does not automatically make that family member a “legal guardian.”  Relatedly, if a child is eligible for asylum and is also pursuing a Special Immigrant Juvenile Status predicate order in state court, it may be critical to file the child’s asylum application with USCIS prior to obtaining a guardianship order placing the child under the legal guardianship of another individual.
   
• EOIR issued a policy and procedures memorandum last year, clarifying that judges have the authority to verify a youth’s UIC status. OPPM 17-03. When representing a youth who has filed or will file an asylum application with USCIS and is scheduled for an immigration court hearing in the interim, attorneys should be prepared to argue to the judge that the youth remains a UIC for asylum office jurisdictional purposes because the youth was or will be a UIC at the time the asylum application was or is filed.    

For more information regarding NIJC's work with and on behalf of unaccompanied immigrant children, please click here. Attorneys representing unaccompanied children in asylum and SJS petitions can find resources here.