United States District Court, D. Maryland, Southern Division
J.O.P, et al. Plaintiffs,
U.S. DEPARTMENT OF HOMELAND SECURITY et al., Defendants.
J. HAZEL United States District Judge
J.O.P. (by and through next friend, G.C.P.), M.A.L.C.,
M.E.R.E., and K.A.R.C.,  on behalf of themselves and other
similarly situated individuals seeking asylum, filed a class
action complaint against Defendants U.S. Department of
Homeland Security (DHS), Kevin McAleenan in his official
capacity as Acting Secretary of DHS, U.S. Citizenship and
Immigration Services (USCIS) and Kenneth Cuccinelli in his
official capacity as Acting Director of USCIS. ECF No. 1.
Plaintiffs challenge a new policy that changes the rights
held by unaccompanied children who are now seeking asylum.
Id. Pending before the Court is Plaintiffs'
Motion for a Temporary Restraining Order, which requests that
the Defendants' previous policies for unaccompanied
children seeking asylum be maintained until the Court may
consider the new policy's validity. ECF No. 14. A hearing
was held on July 19, 2019. ECF No. 43. For the following
reasons, Plaintiffs' motion will be granted.
2008, Congress enacted the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 (TVPRA or the
Act). TVPRA, Pub. L. No. 110-457 § 235(d), 122 Stat.
5044, 5074, codified at 8 U.S.C. §§ 1158, 1232(d).
The Act extended legal protections to children who entered
the United States without a parent or other legal guardian
and were determined to be “unaccompanied alien
children” (UACs). A UAC is a child who:
(A) has no lawful immigration status in the United States;
(B) has not attained 18 years of age; and (C) with respect to
whom-(i) there is no parent or legal guardian in the United
States; or (ii) no parent or legal guardian in the United
States is available to provide care and physical custody.
6 U.S.C. § 279(g)(2). The TVPRA requires that after an
unaccompanied child is discovered by federal government
officers (often U.S. Customs and Border Protection (CBP) or
U.S. Immigration and Customs Enforcement (ICE) officers), she
must be transferred to the custody of the Office of Refugee
Resettlement within the Department of Health and Human
Services, typically within a 72-hour period, for care and
further screening. Unlike the agencies whose mission is to
enforce immigration laws, the Department of Health and Human
Services has social workers trained to work with children. 8
U.S.C. § 1232(a)(3).
TVPRA also provides that USCIS, not an immigration court, has
initial jurisdiction over a UAC's asylum application. 8
U.S.C. § 1158(b)(3)(c). The USCIS asylum process is a
less adversarial system more sensitive to the special needs
of children who do not know how to navigate an immigration
system designed for adults, and who likely sought safety in
the United States without understanding their legal options.
ECF No. 1 ¶ 5. Instead of having to be cross-examined in
an adversarial courtroom by trained government lawyers,
unaccompanied children engage with USCIS officers trained to
conduct non-adversarial interviews and to apply child-
sensitive and trauma-informed interview techniques.
Id. ¶¶ 11, 49. The TVPRA also directs
USCIS to help make counsel available to these children. 8
U.S.C. § 1232(c)(5). Additionally, while asylum
applicants generally must file their asylum applications
within one year of entering the United States, id.
§ 1158(a)(2)(B), the TVPRA exempts unaccompanied
children from this one-year filing deadline, id.
TVPRA delegates authority to federal agencies to enact
“regulations which take into account the specialized
needs of unaccompanied alien children and which address both
procedural and substantive aspects of handling unaccompanied
alien children's cases.” Id. §
1232(d)(8). The Act neither directs USCIS to redetermine an
individual's UAC status at the time of an application for
asylum when a federal agency has initially determined the
child meets the UAC definition nor expressly prohibits the
agency from making a redetermination at that time. See
Id. §§ 1158, 1232. Similarly, the TRVPA
neither expressly authorizes nor expressly prohibits USCIS
from rescinding an earlier UAC determination. Id.
However, in a memorandum authored by Asylum Chief Ted Kim in
May 2013 (Kim Memo), USCIS implemented a policy of accepting
jurisdiction of asylum applications filed by individuals
previously determined to be UACs without having asylum
officers make redeterminations regarding the children's
status. ECF No. 15-6.
Memo came shortly after a 2012 report by the Citizenship and
Immigration Services Ombudsman recommended that USCIS
implement the policy of not rescinding UAC determinations.
ECF No. 15-5. In an independent analysis of problems
encountered by unaccompanied children seeking asylum in the
United States, the Ombudsman started from the understanding
that when a child is placed in removal proceedings, the
apprehending entity, whether ICE or CBP “must make a
finding that the child is unaccompanied.” Id.
at 7. Prior to the 2012 Ombudsman Report, USCIS
had been performing redeterminations of a child's UAC
status upon receipt of an asylum application and again during
the asylum interview. Id. at 5-6. The Ombudsman
outlined several problems with re-determining UAC status,
including difficulty rescheduling UAC interviews, and
inadequate methods and approaches to adjudication.
Id. The Ombudsman was concerned that instead of
“facilitating expedited, non-adversarial interviews
envisioned by Congress, ” the USCIS policy of
undertaking a redetermination of UAC status at every asylum
interview created “delay and confusion.”
Id. at 6.
Ombudsman's view, “TVPRA's procedural and
substantive protections were designed to remain available to
UACs throughout removal proceedings, housing placement, and
the pursuit of any available relief, ” and
“[s]ubjecting a child seeking asylum to multiple UAC
determinations as [was] required by USCIS' temporary
guidance appears at odds with the TVPRA's express
purpose, namely, to provide timely, appropriate relief for
vulnerable children.” Id. Further, the
Ombudsman acknowledged that “Congress did not provide
language indicating that the filing of an asylum application
should trigger a new or successive UAC determinations that
could eliminate statutory protections or remove the UAC from
[removal] proceedings.” Id. at 7. The
Ombudsman concluded that “[e]liminating the practice of
USCIS re-determining UAC status during the asylum interview
would also restore a level of fairness that comes from having
a predictable and uniform process.” Id. at 8.
the policy adopted by the Kim Memo, which was consistent with
the Ombudsman report's recommendations, asylum officers
were required to accept determinations by CBP and ICE
regarding UAC status even if an individual had turned
eighteen or been reunited with a parent or guardian by the
time he applied for asylum. ECF No. 15-6 at 3. As recently as
May 20, 2019, USCIS confirmed that the asylum policy set
forth in the 2013 Kim Memo remained in effect. ECF No. 15-8
at 4. But on June 14, 2019, USCIS published a memorandum on
its website that changed the rules for determining whether a
child is eligible for TVPRA protections. ECF No. 15-2. The
2019 Redetermination Memo is dated May 31 2019, but was not
made available on the USCIS website until June 14, 2019.
Id.; ECF No. 1 ¶ 8. The policy set forth in the
Redetermination Memo became effective on June 30, 2019.
to the Redetermination Memo, all asylum officers are now
required to “mak[e] independent factual inquiries in
all cases in order to determine whether the individual met
the UAC definition on the date of first filing the asylum
application.” ECF No. 15-2 at 3. The Redetermination
Memo states that the “updated procedures”
“apply to any USCIS decision issued on or
after the effective date” of the memorandum.
Id. at 2 (emphasis in original). Under the new
rules, an individual originally designated as a UAC who,
perhaps relying on the former policy, applied for asylum
after reaching the age of eighteen or after being reunited
with a parent or guardian, will arrive at an asylum interview
to find that USCIS must now decline jurisdiction because of a
redetermination that the applicant was not a UAC at the time
he filed an application. See Id. Under the prior
rule, individuals determined to be UACs by CBP or ICE had two
opportunities to present their claims on the merits: first
through the USCIS process and again, if necessary, in an
immigration court. ECF No. 1 ¶ 81. But under the new
policy, some individuals will no longer be eligible to
participate in the first half of this process because by the
time they applied for asylum they had attained the age of
eighteen or had been reunited with a parent or guardian.
Id. ¶ 9. Further, under the new rules, an
individual who had previously been determined to be a UAC and
who applied for asylum outside of the one-year filing
deadline could lose all right to asylum due to the imposition
of the one-year bar from which he believed he was exempt.
Id. ¶ 81.
to a leaked internal memorandum from 2017, unknown members of
the administration considered rescinding the 2013 Kim Memo as
one of a number of proposed “Policy Options to Respond
to Border Surge of Illegal Immigration.” ECF No. 15-3
at 2. However, a comment on the memo, also by an unknown
author, noted that “DOJ allows immigration judges to
make independent determinations as to when a minor is a
UAC” and “it would be good for DHS to have the
same policy.” ECF No. 15-3 at 2. Consistent with this
comment, the Redetermination Memo explained that USCIS
decided to change course from the 2013 policy to ensure that
the agency is making “jurisdictional determinations in
a manner consistent with Immigration Judge
determinations.” ECF No. 15-2 at 3. Under Board of
Immigration Appeals precedent, Immigration Judges also have
initial jurisdiction over asylum applications filed by
individuals previously determined to be UACs who have turned
eighteen before filing their application. Id.
(citing Matter of M-A-C-O-, 27 I&N Dec. 477 (BIA
2018)). Thus, both USCIS and immigration judges have initial
jurisdiction over UAC asylum applications. Id.
However, where USCIS officers were not making
redeterminations about previously granted UAC status pursuant
to the 2013 policy, immigration judges were making such
redeterminations. Id. The new policy eliminated that
Redetermination Memo did not address whether the facts and
circumstances that underlay the agency's prior policy
(and that were described in detail in the 2012
Ombudsmen's report) had changed. See Id. The
Redetermination Memo also did not address whether USCIS had
taken into account any interests of those individuals who had