In 2008, Congress afforded unaccompanied children certain protections during the asylum process including the right to file their initial asylum application past one year of their entry to the United States. Unaccompanied children (UC) include those youth who are not yet 18 years old, lack immigration status, and are not under the care and custody of a parent. Historically, that designation would remain with the child after their apprehension by the government, and throughout their immigration proceedings even if the child turned 18 during removal proceedings. Recently, both DHS and EOIR have taken the position that unaccompanied children lose that status when they turn 18 while in removal proceedings. The BIA recently published a case that revoked the protection of initial jurisdiction before the asylum office for “a respondent who was previously determined to be an unaccompanied alien child but who turned 18 before filing the application.” As a result, advocates should consider the potential implications of losing the protection of filing an asylum application after one year.
When filing an asylum application for a client who has lost (or may potentially lose) their UC designation, consider the following other options:
Argue extraordinary circumstances, an exception to the one year deadline under 8 USC 1158(a)(2), due to the young person’s age and related factors:
- The regulations require extraordinary circumstances to be “directly related to the failure to meet the 1-year deadline” and “not intentionally created by the alien through his or her own action or inaction.” They go on to provide examples that include “legal disability (e.g., the applicant was an unaccompanied minor or suffered from a mental impairment).” Thus, age can be one such factor to consider an extraordinary circumstance although the BIA in Matter of Y-C- noted that UC status alone does not excuse a delay in filing.
- In 2017, the BIA issued an unpublished decision in Matter of A-D-, moving away from it’s previously strict interpretation of extraordinary circumstances in Matter of Y-C- when the application was filed by a minor child. In Matter of A-D-, the Board stated: “[t]oday, we clarify that … asylum applicants under 18 years old are understood to suffer from a per se legal disability excusing them from the filing deadline. To the extent our prior case law has left this ambiguous, we now clarify our position, and unify it with the practice being conducted by USCIS.”
- In Matter of A-D, the BIA also asserted that for applicants between the ages of 18 and 21, the Immigration Judge should consider “an applicant’s age, language proficiency, time in the United States, interactions with legal service providers, physical and mental health and well-being, socio-economic and family status, and housing or detention situation.” The decision went on to instruct that all factors should be considered on a case-by-case basis, in the totality of the circumstances. In that case, the Board found that 2 months beyond 21 was reasonable if the applicant can in fact establish that extraordinary circumstances prevented her from filing before 21. Other than the reasons mentioned above, there is no definition for the totality of the circumstances. The Supreme Court has previously defined the totality of the circumstances in a criminal context, as weighing the entire situation and not focusing on any one single factor to avoid a bright line rule. See llinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983)). The summary and response to comments on the regulations also provide some insight to the agencies’ intentions when they defined this exception.
Argue changed circumstances, an exception to the one year deadline under 8 USC 1158(a)(2), due to the change in legal status
- The regulations define changed circumstances as those that “materially affect” the applicant’s eligibility for asylum. They go on to provide several non-exclusive examples such as changed country conditions, changes in U.S. law, and a change in status as a dependent on someone else’s asylum application. Practitioners may argue under that definition that a change in legal status, such as the de-designation as an unaccompanied minor by an immigration judge or other agency, meets the definition of changed circumstances.
Act promptly; the applicant must file the application within a reasonable time period even where changed or extraordinary circumstances exist
- The regulations require that the applicant file an asylum application within a reasonable amount of time from the changed circumstances, and that any delay due to extraordinary circumstances be reasonable. What period of time is reasonable is analyzed on a case-by-case basis, and there is no bright line rule establishing a specific extension period. For general guidance, review the cases referenced above, and Matter of T-M-H- & S-W-C-.
- If a young asylum seeker has not yet turned 18, we strongly urge you to file the application before she does turn 18 where feasible. If not feasible, be ready to explain the extraordinary or changed circumstances, and the reasonableness in any delay past the age of 18.
- If a young asylum seeker has already turned 18, act swiftly to meet the responsibility of establishing a reasonable time frame. If the delay was a result of reliance on previous EOIR policy, note that in your brief.
This legal update is intended for lawyers and is not a substitute for independent legal advice supplied by a lawyer familiar with a client’s case. The cases cited herein do not constitute an exhaustive search of relevant case law in all jurisdictions. If you are a lawyer who represents unaccompanied children in Texas and have a question about your asylum case, or other children’s immigration matters, please reach out to us for technical assistance: http://www.cilacademy.org/request-assistance/