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J.O.P. v. U.S. Department of Homeland Security

United States District Court, D. Maryland, Southern Division

August 2, 2019

J.O.P, et al. Plaintiffs,


          GEORGE J. HAZEL United States District Judge

         Plaintiffs J.O.P. (by and through next friend, G.C.P.), M.A.L.C., M.E.R.E., and K.A.R.C., [1] 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.

         I. BACKGROUND

         In 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).

         The 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. § 1158(a)(2)(E).

         The 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.

         The Kim 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.[2] 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.

         In the 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.

         Under 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. Id.

         Pursuant 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.

         According 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 distinction.

         The 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 ...

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