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USCIS Memo on Procedures for Asylum Applicants Filed by Unaccompanied Alien Children

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On May 31, USCIS issued a memo titled “Updated Procedures for Asylum Applications Filed by Unaccompanied Alien Children”. This memo establishes new instructions for asylum officers making UAC determinations for individuals in removal proceedings who were deemed to be UACs at one time but later turned 18 prior to filing their asylum applications. In making UAC determinations, USCIS officers evaluate whether the applicant was under 18 years of age at the time of the first filing and was unaccompanied, meaning that the individual had no parent or legal guardian in the U.S. or at least none that was willing or able to provide care.

Beginning June 30th, asylum officers must conduct an “independent factual inquiry as to whether the individual met the UAC definition at the time of first filing the asylum application”. Officers will be required to examine all available records and information and elicit any additional information from the applicant when necessary, including oral testimony and supplemental documentary evidence. The individual filing for asylum bears the burden of establishing that they have met the UAC definition, and must provide all relevant evidence to support the determination. The determination ultimately affects whether USCIS will have jurisdiction over an individual in removal proceedings as USCIS only has jurisdiction over an asylum application if it is determined that the application was filed by a UAC. Further, aside from jurisdictional concerns, this determination affects whether an individual is subject to the one-year filing deadline as UACs are precluded from this deadline.

These new guidelines give USCIS greater discretion to exclude individuals from the UAC designation, thereby revoking their access to the Trafficking Victims Protection Reauthorization Act protections. Further, requiring such a rigorous investigation may result in longer detention periods for children who are required to show more evidence, which could cause more traumatization in children who remain detained.  

In advance of the June 30th effect date of these guidelines, practitioners with pending cases should push for expedited interview scheduling and decisions. Beyond the effective date, practitioners may want to ensure that a child planning to pursue Special Immigrant Juvenile Status files their asylum application before obtaining a legal guardian in state court as USCIS could refuse asylum jurisdiction if it finds that the child has obtained a legal guardian and thus is no longer unaccompanied. Most importantly, practitioners should present as much evidence and as many arguments as possible in the initial filing to demonstrate that a client was a UCA at the time of the filing.

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