** LEGAL UPDATE **
On October 16, 2018, the Board of Immigration Appeals (B.I.A.) issued a decision in the case Matter of M-A-C-O- that limits the amount of time during which United States Citizenship and Immigration Services (USCIS) has jurisdiction over asylum applications of those who entered the U.S. as unaccompanied minors. People who entered the U.S. as unaccompanied minors must now file their initial asylum applications with USCIS before they turn 18 years old.
By way of background, it's important to know that there are two ways to apply for asylum in the United States—affirmatively and defensively.
People who are in removal (deportation) proceedings must ordinarily apply defensively, which means they present their case in immigration court in front of a judge as a defense to removal.
Those who are not in removal proceedings (either because they have another lawful status or because they have not been put into removal proceedings yet) can apply affirmatively with USCIS (also known as the "asylum office").
The affirmative process is considered preferable because the applicant presents his or her case during a non-adversarial interview with an asylum officer. If this affirmative application is not approved and the applicant has no other legal status, he or she is then sent to immigration court to apply again before the immigration judge.
While most people in removal proceedings must apply for asylum defensively there is an exception for those who entered the U.S. as unaccompanied child migrants. These migrants are defined as “children who lack lawful immigration status in the United States, who are under the age of 18, and who either are without a parent or legal guardian in the United States or without a parent or legal guardian in the United States who is available to provide care and physical custody.”
This determination is made upon U.S. entry, so that even if a child is coming to the U.S. to be reunited with a parent or guardian, he or she will usually be designated as an unaccompanied child migrant at the border.
Although unaccompanied minors are put into removal proceedings, USCIS (or the asylum office) still has initial jurisdiction over their asylum cases, meaning they are first able to apply for asylum in an interview with an asylum officer as if they were not in removal proceedings.
A provision of a 2008 law—the William Wilberforce Trafficking Victims Protection Act (TVPRA) included this protection so that vulnerable children would be able to first present their cases in a non-adversarial setting. Previously, those who entered the U.S. as unaccompanied minors held this designation through their entire case unless it was affirmatively taken away. This meant that even if a child later turned 18, he or she would still be able to file an asylum application affirmatively with USCIS.
Under the B.I.A.’s decision in Matter of M-A-C-O-, unaccompanied minors can apply for asylum affirmatively with USCIS only if they do so before they turn 18. This is significant because many of these asylum seekers are not made aware of the procedure to apply for asylum or are not able to gain legal help to apply for asylum until after they turn 18.
Now, those who entered as unaccompanied minors, but are now over 18, will not be able to apply for asylum with USCIS, but will have to directly apply with the immigrant court defensively. Those who are over 18 must also be aware of the one-year filing deadline for asylum. A person over 18 must apply for asylum within one year of entering the U.S. or within a reasonable time (generally considered six months) after turning 18 if they were under 18 when they entered and more than a year has passed since they entered.
Effective Date: October 16, 2018