On October 16, 2018, the Board of Immigration Appeals (BIA) made a decision that impacted one of the few protections that Unaccompanied Children have in the asylum process.
What is an “Unaccompanied Minor” & What Protections Do They Have?
An Unaccompanied Minor is a child that: 1) enters the U.S. without inspection, 2) is under the age of 18 at the time of entry, and 3) enters the U.S. without a parent or legal guardian. Unaccompanied Children enjoy the right to file an affirmative asylum application.
This means that instead of having their case immediately heard by an Immigration Judge, Unaccompanied Children may have their claim first heard by an asylum officer in the United States Citizenship and Immigration Services (USCIS) office. The asylum interview setting is non-adversarial. This means that the child won’t be cross-examined in the interview. If the asylum officer does not grant the child’s asylum claim, then the case is heard in Immigration Court. The interview setting provides Unaccompanied Children with an additional opportunity for protection in the U.S. However, the decision of recent case law may change that right for many youth.
In Matter of M-A-C-O, an Immigration Judge proactively moved a youth-respondent from the Unaccompanied Children docket to the Adult docket, after confirming that the youth had turned 18 years old, signaling a jurisdiction shift from USCIS to the Immigration Judge. The BIA decided that an Immigration Judge has initial jurisdiction over an asylum application filed by a respondent who was previously determined to be an Unaccompanied Children but who turned 18 before filing the application.
What does this mean?
When representing Unaccompanied Children, attorneys should consider taking the following approaches:
- Immigration attorneys should prioritize filing I-589 applications before their Unaccompanied Children-clients turn 18 to guarantee the child will get an asylum interview.
- Attorneys should also expect and anticipate inquiries from Immigration Judges about the age or familial status of their Unaccompanied Child-client.
- Attorneys should prepare for arguments from DHS counsel about the revocation of Unaccompanied Minor status if the child is over the age of 18 or has a parent/guardian available to provide care and custody.
- Attorneys should consult their mentors for questions about what Matter of M-A-C-O- means for their Unaccompanied Minor-clients.
For more information about Matter of M-A-C-O- click here: https://www.justice.gov/eoir/page/file/1101226/download
