By Jess Kraus, J.D. Class of 2021
The increased number of unaccompanied minors entering the United States has been a headline-inducing topic for quite some time now.1 The complex human rights issues facing children entering the country, especially if doing so without proper documentation, have grabbed the attention of many Americans.2 Beyond the headlines, there is a lesser-known plight of unaccompanied minors: the labyrinth of opaque rules, definitions of law, and ever-evolving (and often contradictory) policies they face when seeking asylum.
To begin with, it is helpful to understand the basic structure of asylum proceedings generally. There are two procedures for applying for asylum: affirmative and defensive. Affirmative asylum is sought by individuals who have either entered the country with proper documentation and are now seeking to remain in the US on a more permanent basis in order to avoid persecution in their home country, or by individuals seeking to enter the country through a US embassy in their home country where they are being persecuted.3 Through the affirmative asylum process, applicants submit their asylum applications to U.S. Citizenship and Immigration Services (USCIS). After submitting their application, the applicant has an interview with an Asylum Officer, who determines if they are eligible. Defensive asylum is sought when an individual has entered the country with improper documentation (or their proper documentation has expired) and they have been put into removal proceedings before an immigration judge.4 In this scenario, asylum serves as a defense to removal from the United States.5 The defensive asylum process is under the jurisdiction of the DOJ Executive Office of Immigration Review (EOIR) and is adversarial.6 Rather than an interview with an Asylum Officer, defensive asylum applicants must present their case in a trial, where they can be cross-examined by an ICE trial attorney.7 While a trial may be an effective or efficient manner in which to determine the merits of an adult’s asylum claim, putting a child on trial presents distinct issues of morality and justice.
Congress recognized these very issues and created a remedy. The Trafficking Victims Reauthorization Protection Act (TVRPA) of 2008 places original jurisdiction of unaccompanied children seeking asylum with USCIS rather than with the Department of Justice, regardless of whether the child is in removal proceedings.8 This means that unaccompanied children are afforded the opportunity to first have an interview with an Asylum Officer, who makes an initial determination of eligibility. The unaccompanied child is only placed in defensive removal proceedings if the Asylum Officer determines them ineligible for asylum. Once in defensive removal proceedings, unaccompanied minors get another chance to state their case for asylum, this time in front of an immigration judge. The differences between an interview with an Asylum Officer and being on trial are stark. An interview with an Asylum Officer is a non-adversarial conversation, while a trial involves the child presenting testimony and being cross-examined in a courtroom. Giving an unaccompanied child the opportunity for an interview first, regardless of whether they are in removal proceedings, promotes fairness in the pursuit of justice.
Recognizing the importance of the procedural protections afforded to unaccompanied minors, the Obama administration, through USCIS, issued a memo in 2013 commonly known as the Kim Memo.9 Prior to the issuance of the Kim Memo, determinations of whether someone was an unaccompanied child occurred twice: first, upon entry into the United States by ICE and Border Patrol Officers and secondly, by USCIS officials after the receipt of an individual’s asylum application. The Kim Memo simplified this process by instructing USCIS officials to accept the determinations made by ICE and Border Patrol officers upon entry into the United States, as opposed to conducting a separate factual inquiry.10 This meant that as long as a child was classified as an unaccompanied child when entering the United States, they maintained that status (and the affirmative asylum procedural protections that come with it) regardless of their age and situation at the time of filing their asylum application.11 Instead of having hearings in front of an immigration judge, the child goes through asylum interviews with USCIS Asylum Officers who will make the determination about whether or not a child receives asylum in the United States.12 This process is thought to be more trauma-informed and suitable for children.13 Because of this, the Kim Memo and resulting agency action was perceived as a huge win for unaccompanied children.14
Then, in 2017, USCIS released a memo reversing course. In what is known as the Lafferty Memo, the Trump Administration declared that Asylum Officers were to determine if the applicant met the unaccompanied child definition at the time of filing their asylum application.15 USCIS would now once again conduct an individual factual analysis of every applicant’s unaccompanied minor status.16 Many children would no longer be considered an unaccompanied minor due to events, such as turning 18 years old or being reunited with and supported by a family member in the United States, that occurred between entering the country and being able to file their asylum application.17 These children would now go through the same removal proceedings as any other adult, effectively putting unaccompanied minors back in an adversarial system and across the stand from an immigration judge, as opposed to in a conference room with an Asylum Officer. This reversal of position, however, did not come without opposition.
Shortly after the Lafferty Memo went into effect, four unaccompanied minors filed suit against the Department of Homeland Security in J.O.P. v. DHS.18 Under the new policies of the Lafferty Memo, these children would have their previously-granted unaccompanied minor status revoked and would lose the procedural protections of the TVRPA.19 In 2019, the District Court for the District of Maryland granted an injunction, suspending the enforcement of the Lafferty Memo and ordering the government to revert back to the policies outlined in the Kim Memo.20 Though this case is still being litigated, the injunction against the Lafferty Memo stands until a final ruling is reached.
So where does that leave us today? Under the letter of the law as of this writing, unaccompanied minors are to have their status determined at the time of entry into the United States and be placed in affirmative asylum proceedings under the jurisdiction of USCIS instead of in defensive proceedings under EOIR jurisdiction. However, it is unclear whether the agencies involved are following this course of action.21 Many unaccompanied minors began their proceedings in a defensive manner under the Lafferty Memo and it appears EOIR may be unwilling to relinquish jurisdiction over these cases.22 Additionally, USCIS has been less than eager to accept jurisdiction of cases already pending.23 With this back and forth between administrative agencies, an already complex and daunting immigration system becomes even more burdensome for some of humanity’s most vulnerable individuals. Immigration advocates continue to push for USCIS jurisdiction in these cases and, with the support of the J.O.P. injunction, have a firm legal footing on which to do so.
1. Paula S. Fass, If You’re Shocked by Reports on Children at the Border, You Haven’t Paid Attention to American History, Time (July 11, 2019), https://time.com/5624256/american-history-protecting-migrant-children-border; Christopher Sherman, Surge in Child Immigrants Stresses Support Network, The Associated Press (Apr. 28, 2012), https://www.nbcdfw.com/news/local/surge-in-child-immigrants-stresses-support-network/1948463/; Cindy Loose, Most ‘Unaccompanied Minors’ Quickly Sent Back, Washington Post (Feb. 3, 2000), https://www.washingtonpost.com/wp-srv/WPcap/2000-02/03/034r-020300-idx.html.
2. Nicole Narea, The growing number of children in custody on the US-Mexico border explained, Vox (March 15, 2021, 5:07 PM), https://www.vox.com/policy-and-politics/2021/3/14/22325092/migrant-children-border-biden-detention.
3. Obtaining Asylum in the United States, U.S. Citizenship and Immigration and Serv., https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/obtaining-asylum-in-the-united-states (last visited March 16, 2021).
8. 8 U.S.C. § 1158(b)(3)(C).
9. U.S. Citizenship and Immigration Ser., Dep’t of Homeland Sec., HQRAIO 120/12a, Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children (2013) [hereinafter Kim Memo].
11. See id.
12. Obtaining Asylum in the United States, supra note 2.
13. Andrew Craycroft and Rachel Prandini, Immigration Legal Res. Ctr., Initial Jurisdiction Over UC Asylum Claims (Feb. 2021).
14. See id.
15. U.S. Citizenship and Immigration Serv., Dep’t of Homeland Sec., HQRAIO 120/12a, Updated Procedures for Asylum Applications Filed by Unaccompanied Alien Children (2019) [hereinafter Lafferty Memo].
17. Craycroft and Prandini, supra note 12.
18. J.O.P. v. U.S. Dep’t of Homeland Sec., No. 8:19-cv-01944-GJH (D. Md. July 1, 2019).
20. Order for Preliminary Injunction, J.O.P. v. U.S. Dep’t of Homeland Sec., No. 8:19-cv-01944-GJH (D. Md. July 1, 2019).
21. Craycroft and Prandini, supra note 12.