Introduction: Matter of M-A-C-O-, 27 I&N Dec. 477 (BIA 2018)

On October 16, 2018, the Board of Immigration Appeals (BIA) published a precedential decision in Matter of M-A-C-O-, 27 I&N Dec. 477 (BIA 2018) [PDF version]. In Matter of M-A-C-O-, the Board held that “[a]n Immigration Judge has initial jurisdiction over an asylum application filed by a respondent who was previously determined to be an unaccompanied alien child but who turned 18 before filing the application.”

In this article, we will examine the factual and procedural history of Matter of M-A-C-O- before discussing the Board’s analysis and conclusions and what the decision will mean for asylum applications filed by certain respondents who were determined to be unaccompanied alien children going forward.

Factual and Procedural History: 27 I&N Dec. at 477-78

The respondent, a 21-year-old native and citizen of El Salvador, entered the United States on or about January 1, 2015, without having been admitted or paroled. At the time of his entry, the respondent was 17 years old.

The respondent was apprehended by the Department of Homeland Security (DHS) after his illegal entry. The DHS determined that the respondent was an “unaccompanied alien child.” On January 15, 2015, two weeks after the respondent’s illegal entry, the DHS served him with a notice to appear.

On March 31, 2015, the respondent appeared at his initial removal hearing with his aunt. By this point, the respondent had turned 18 years old. The Immigration Judge moved the respondent’s case from the unaccompanied alien children docket to the adult docket. The Immigration Judge continued the removal proceedings in order to give the respondent the opportunity to procure counsel.

On July 22, 2015, the respondent appeared in Immigration Court with counsel. Through counsel, the respondent conceded that he was inadmissible as charged in the notice to appear. The respondent’s counsel notified the presiding Immigration Judge that he had filed a Form I-589, Application for Asylum and for Withholding of Removal, with the United States Citizenship and Immigration Services (USCIS) on behalf of the respondent. However, the Immigration Judge ruled that she had initial jurisdiction over the respondent’s application for relief in removal proceedings because, having turned 18 before the Form I-589 was filed, the respondent was not an unaccompanied alien child at the time of filing. The respondent’s counsel, who had anticipated that the Immigration Judge might reach this conclusion, filed an application for asylum and withholding of removal with the Immigration Judge on that same day. The Immigration Judge denied the application.

Issue Before the Board: 27 I&N Dec. at 478

The Board phrased the issue before it as follows:

The sole issue on appeal is whether the USCIS or the Immigration Judge has initial jurisdiction over an asylum application filed by a respondent [in removal proceedings] who was previously determined to be a[n] [unaccompanied alien child] but who turned 18 before filing the [asylum] application.

The Board noted that the respondent did not dispute that he was removable and did not challenge the Immigration Judge’s conclusion that he did not demonstrate his eligibility for asylum.

Statutory Background: 27 I&N Dec. at 478-79

Under section 208(b)(3)(C) of the Immigration and Nationality Act (INA), which was added to the INA as part of the TVPRA, a USCIS “asylum officer … shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child…”

The term “unaccompanied alien child” is defined at 6 U.S.C. 279(g)(2) as 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.

BIA Discussion of Respondent’s Arguments: 27 I&N Dec. at 478

The Board began its analysis by explaining the respondent’s argument.

The respondent argued on appeal before the BIA that the Immigration Judge erred by exercising initial jurisdiction over his asylum application. Relying upon the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044 (“TVPRA”), the respondent took the position that, despite the fact that he had turned 18 prior to filing his application for asylum, the USCIS retained initial jurisdiction over his asylum application because it had previously determined that he was an unaccompanied alien child. Specifically, the respondent argued that, because the DHS had determined that he was an unaccompanied alien child when he was apprehended, that initial determination that he was an unaccompanied alien child should have been considered to remain in effect until and unless it was revoked by a DHS component (U.S. Customs and Border Protection or U.S. Immigration and Customs Enforcement) or the Department of Health and Human Services (HHS). The respondent asked the Board to vacate the Immigration Judge’s decision and remand the record to allow the USCIS to adjudicate his asylum application.

The Board stated that it would review the question of law de novo (from the beginning), in accordance with 8 C.F.R. 1003.1(d)(3)(ii).

The respondent supported his assertion that his initial determination that he was an unaccompanied alien child remained in effect until or unless it was revoked by citing to a May 28, 2013 DHS memorandum to asylum officers titled “Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children” [PDF version] (“Kim Memo”). The Kim Memo instructed asylum officers that once an alien has been determined to be an unaccompanied alien child, the determination remains in effect for purpose of jurisdiction over an asylum application absent an “affirmative act” by CBP, ICE, or HHS to terminate the determination.

Board’s Analysis and Conclusions: 27 I&N Dec. at 479-80

The Board began its analysis by addressing the relevant statutory provisions [see section].

In Matter of Castro-Tum, 27 I&N Dec. 271, 279 n.4 (A.G., 2018) [PDF version] [see article], the Attorney General wrote that “[a]n alien who does not meet the statutory definition of an unaccompanied alien child is not entitled to that status.”

The Board would rely upon the decision of the United States Court of Appeals for the Sixth Circuit in Harmon v. Holder, 758 F.3d 728 (6th Cir. 2014) [PDF version], a case which dealt with a similar set of facts to those at issue in the instant case. Harmon concerned jurisdiction over an asylum application filed by an alien — who had previously been determined to be an unaccompanied alien child — when she was 23 years old. Id. at 734. The Sixth Circuit held that “[v]iewing the statute as a whole, nothing in the TVPRA or the statute it revised suggests that the jurisdictional provision applies to formerly unaccompanied alien children.” The Court then held that the statute is best read as vesting initial jurisdiction over the asylum application in an asylum officer when the applicant is actually an unaccompanied alien child. Specifically, the Court wrote in holding that the USCIS did not have initial jurisdiction over the asylum application at issue in Harmon: “The language ‘filed by an unaccompanied alien child’ creates simultaneous statutory requirements-filing the asylum application while an unaccompanied alien child. Harmon was not a child when she filed her asylum application at the age of twenty-three. The provision simply does not apply to her.” Id. at 734. The Board noted that the United States Court of Appeals for the Ninth Circuit read the statute the same way as the Sixth Circuit had in Mazariegos-Diaz v. Lynch, 605 F.App’x 675 (9th Cir. 2015), a non-precedential decision.

The Board agreed with the Sixth Circuit’s position in Harmon. It explained that section 208(b)(3)(C) of the INA plainly limits the jurisdiction of an Immigration Judge over an asylum application “filed by a[n] [unaccompanied alien child].” However, it added that “the statute does not prevent the Immigration Judge from determining whether initial jurisdiction over an application filed by an alien who has turned 18 lies with the Immigration Judge or the USCIS.” Furthermore, bearing in mind that Immigration Judges are part of the Department of Justice (DOJ) and exercise authority delegated by the U.S. Attorney General, the Board explained that “[n]either the TVPRA nor any other authority of which we are aware states that a DHS or HHS determination of [unaccompanied alien child] status is binding on an Immigration Judge in removal proceedings.” In Matter of Bulnes, 25 I&N Dec. 57, 59 (BIA 2009) [PDF version], Board stated that an “Immigration Judge has the authority to consider and decide whether he has jurisdiction over a matter presented to him.”

The Board further explained that determining whether a respondent who was at one time determined to be an unaccompanied alien child continues to meet the statutory criteria is in the purview of an Immigration Judge. For example, in footnote 2 to the instant decision, the Board cited to several provisions of the INA that “appear to contemplate that an Immigration Judge can independently evaluate a respondent’s [unaccompanied alien child] status to determine his or her eligibility for relief from removal.” In an Operation Policies and Procedures Memorandum (OPPM) issued by the Chief Immigration Judge in 2017 [PDF version], Immigration Judges are advised that “[unaccompanied alien child] status is not static, as both a[n] [unaccompanied alien child’s] age and his or her accompaniment may change. Thus, judges should insure that an alien claiming to be a[n] [unaccompanied alien child] is, in fact, a[n] [unaccompanied alien child] at the time his or her case is adjudicated.” We discuss the OPPM cited to by the Board in detail in our full article on the subject [see article].

The Board then addressed the Kim Memo. It explained that the policies in the Kim Memo are “not embodied in a regulation that has the force and effect of law.” In Matter of Briones, 24 I&N Dec. 355, 365 & n.7 (BIA 2007) [PDF version], the Board explained that “DHS policy memoranda that have not been embodied in regulations are not binding on the Immigration Judges or this Board, although the policies may be adopted by the Board when appropriate.” In the instant decision, the Board explained that such memoranda “may be relied on to the extent that [they are] persuasive…” Regarding the Kim Memo, the Board stated that “[b]y its terms, [it] does not purport to limit the Immigration Judges’ authority to determine whether a respondent in removal proceedings remains a[n] [unaccompanied alien child] or whether section 208(b)(3)(C) of the [INA] applies.”

In the instant case, the Board explained that it was undisputed that the respondent was over the age of 18 when he filed his applications for asylum and withholding of removal with the USCIS and before the Immigration Judge. Because he was over the age of 18 at the time of filing, the Board concluded that “[h]e was therefore no longer qualified as a[n] [unaccompanied alien child] at those times. Accordingly, section 208(b)(3)(C) of the [INA] is inapplicable and the Immigration Judge properly exercised initial jurisdiction to adjudicate the respondent’s [asylum] application.”

For these reasons, the Board dismissed the respondent’s appeal.

Conclusion

Under Matter of M-A-C-O-, Immigration Judges may exercise jurisdiction over asylum applications filed by respondents after turning 18 years of age but who previously had been determined to be unaccompanied alien children. Significantly, the Board held that Immigration Judge jurisdiction does not depend on whether the unaccompanied alien child determination was at any point terminated by the CBP, ICE, or HHS.

An individual facing removal should consult with an experienced immigration attorney immediately. This is especially important for vulnerable aliens such as unaccompanied alien children. An experienced immigration attorney will be able to assess each individual case and determine which forms of relief or protection may be available in removal proceedings or collaterally.

To learn more about asylum and refugee protection, please see our growing collection of articles on site [see article]. You may read our also-growing compendium of articles on immigration precedent decisions in our article index on the subject [see index].