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NEW BIA CASE STATES THAT AN “AGED-OUT” CHILD STILL QUALIFIES FOR DERIVATIVE ASYLUM

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In a recent case decided by the BIA,Matter of A-Y-M-, 25 I&N Dec. 791 (BIA2012), the Board reversed the decision of an immigration judge (“IJ”) in California. The Board found that the 23-year-old unmarried child was eligible for derivative asylum status since she was under 21 when the asylum application was pending. This is not news to most of us who have been applying this, however, there may be possibly other extensions of meaning that can be drawn from this and now it is established in case law.

In order to prevent the children of asylum applicants from losing their eligibility due to “aging out,” Congress enacted the Child Status Protection Act, Pub. L. No. 107-208, 116 Stat. 927 (2002) (“CSPA”). The CSPA explains that an unmarried alien seeking derivative asylum status based on the approval of the parent’s asylum application and who turned 21 while the application was pending is still considered a “child” for the purpose of acquiring derivative asylee status under Section 208 (b)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(3)(B) (2006).

The respondent, a 23-year-old unmarried native and citizen of El Salvador, was found inadmissible, denied relief based on asylum claim and ordered removed from the US because she reached the age of 21 before her mother’s application for asylum was granted.The respondent appealed to BIA from the IJ’s decision. At the time when the respondent’s mother applied for asylum, she was 16 years old and included in her mother’s I-589 application.Precisely, when her mother submitted the asylum application, she was 17 and unmarried. The IJ granted asylum to respondent’s mother, but not to the “aged out” respondent who was 22 at that time. This is astounding in and of itself since the CSPA has been applied since 2002 on this scenario.

Fortunately, the Child Status Protection Act prevents such ill-fated consequences for the children of asylum applicants. The CSPA amended section 208(b)(3)(B) expanding eligibility for potential derivative asylees. The provision clearly applied to the respondent also because her mother filed for asylum after the CSPA was enacted in 2002.Therefore, the respondent statutorily qualified as a “child” for the purpose of establishing eligibility for derivative status under section 208(b)(3)(B). Based on this, the Board of Immigration Appeals (BIA) concluded that the respondent warranted a grant of derivative status and remanded the matter to the IJ.

Filed under: Immigration Issues

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