On October 06, 2011, the Office of the Citizenship and Immigration Services Ombudsman (Ombudsman's Office) hosted a public teleconference on unaccompanied alien children (UAC) seeking asylum. Rena Cutlip-Mason, Senior Advisor to the Ombudsman, interviewed guest speakers from U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of Justice’s Executive Office for Immigration Review (EOIR). Section 235(d)(7)(B) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) provides USCIS with initial jurisdiction over any asylum applications filed by UACs. UACs have no lawful immigration status in the United States; have not attained 18 years of age; and have no parent or legal guardian in the United States, or have no parent or legal guardian in the United States available to provide care and physical custody. See 6. U.S.C. § 279(g)(2).
Representing USCIS were Joseph Langlois, Chief of USCIS Asylum Division, currently Acting Associate Director of Refugee, Asylum, and International Operations (RAIO) Directorate; Mary Margaret Stone, Supervisory Asylum Officer; and Dorothea Lea, Office of the Chief Counsel. Representing EOIR were Barbara Leen, Counsel to the Director; Scott Rosen, Chief Counsel, Office of the Chief Immigration Judge; Liane Jarvis, Chief Regulatory Counsel, Office of the General Counsel; and Steven Lang, Program Director, Office of Legal Access Programs.
They explained the processing of UAC cases and provided updates on current procedures, as summarized below.
Questions and Answers
Who has jurisdiction over UAC cases? What if the UAC is in removal proceedings?
Section 235(d)(7)(B) of the TVPRA places initial jurisdiction of asylum applications filed by UACs with USCIS, even for those UACs in removal proceedings. USCIS will need to determine whether an applicant in removal proceedings is a UAC at the time of filing. If so, USCIS has initial jurisdiction. USCIS also has initial jurisdiction over asylum applications filed by UACs with other pending claims in immigration court, with a case on appeal before the Board of Immigration Appeals, or with a petition for review with a federal court.
Can you describe the coordination between EOIR and USCIS on UAC issues?
Ms. Leen explained that since the passage of the TVPRA, EOIR and USCIS have worked together on issues that impact UAC cases. She shared that representatives from USCIS, EOIR, and the Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR), are working to draft and implement new regulations. There are interim procedures in place, but EOIR and USCIS coordinate with each other and other Federal agencies to address issues as they arise.
What training have USCIS officers and Immigration Judges received on the TVPRA and children's cases?
Mr. Langlois discussed multiple training modules that USCIS has developed on the TVPRA, international law as it relates to children, and sensitivity techniques for interviewing children. Most of these trainings were developed by USCIS headquarters (HQ), but are available online to all USCIS adjudication and asylum officers. Mr. Langlois also shared that USCIS developed a set of Guidelines for Children in Asylum Claims that were included in the 2011 Asylum Officers' Basic Training Course. Additional training on sensitivity techniques related to interviewing children was recently provided to all eight asylum offices nationwide. This training is not yet publicly available.
Mr. Rosen noted that all EOIR immigration judges (IJs) receive mandatory training on the TVPRA for dealing with unaccompanied alien children in removal proceedings.. During the 2009 and 2010training conferences, EOIR offered optional advanced training on UAC issues, and other issues relating to children and juveniles in immigration proceedings. EOIR anticipates continuing to offer similar training opportunities in the future.
If the strongest claim available to a UAC is not asylum, do IJs allow continuances, if requested, to allow the case to be processed in family court and USCIS? In the alternative, does USCIS allow UACs to request rescheduling of asylum interviews if Special Immigrant Juvenile Status (SIJs) is pending simultaneously?
Ms. Cutlip-Mason explained that where children may be eligible for more than one type of immigration relief, such as asylum, Special Immigrant Juvenile status, and a U visa, one type of claim may be stronger than another. Additionally, certain types of immigration relief may have longer processing times.
Mr. Rosen explained that an IJ may grant a continuance for good cause on a case-by-case basis.
Mr. Langlois noted that a USCIS asylum office will reschedule an interview, without cause, one time prior to the scheduled interview date. Any subsequent requests to reschedule will be granted only upon a showing of good cause. Mr. Langlois further noted that the Asylum Division coordinates with other USCIS offices regarding the adjudication of any other applications that may be pending simultaneously with an asylum claim.
Are IJs provided guidance on how to respond to cases where USCIS has disagreed with the IJ's UAC determination?
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). USCIS typically does not have jurisdiction to accept the filing of a Form I-589 filed by an applicant in removal proceedings. Because section 235(d)(7)(B) of the TVPRA places initial jurisdiction of asylum applications filed by UACs with USCIS, even for those UACs in removal proceedings, USCIS will need to determine whether an applicant in removal proceedings is a UAC at the time of filing such that USCIS has initial jurisdiction. Ms. Cutlip-Mason indicated that stakeholders have expressed frustration regarding these jurisdictional determinations.
Mr. Rosen explained that IJs determine on a case-by-case basis how best to proceed if DHS disagrees with the IJ's UAC determination. This may include scheduling a hearing on the asylum application, and any other applications for relief being pursued by the individual.
Ms. Leen stated that each agency makes jurisdictional determinations for different purposes. EOIR and USCIS make a jurisdictional determination over a UAC's asylum claim only. Ms. Lay stated that a UAC instruction sheet is available from ICE counsel that clarifies the jurisdictional requirements for each Federal agency.
Can you explain why, if USCIS finds it lacks jurisdiction in a UAC case, ICE trial attorneys can cross-examine a child despite sensitivity concerns when the case is brought to Immigration Court?
Ms. Lay stated that if USCIS finds it lacks jurisdiction in a UAC case, USCIS transfers the case back to immigration court for adversarial proceedings before an IJ. ICE trial attorneys cross-examine respondents based as part of these proceedings.
Ms. Leen explained that because of the adversarial nature of immigration court proceedings, cross-examination is permitted. In addition, the IJ requires all available information to make a proper determination when there are disputes over the facts or applicable laws. EOIR has a number of measures in place to ensure that IJs employ child-sensitive procedures. As EOIR and USCIS continue in the joint rulemaking process, EOIR welcomes any additional suggestions or comments regarding opportunities to make procedures in EOIR more child-sensitive. Please submit any such suggestions or comments to DOJ.EOIR.OGC@usdoj.gov.
If a child would like to review the asylum officers' interview notes, is there a way he/she can do so?
USCIS representatives explained that USCIS asylum officers' interview notes are not publicly available, but if ICE counsel introduces them in the record during a hearing, a child, and the individual's representative, would then have the opportunity to review those notes.
When does the employment authorization clock start for children who file with the asylum office while in removal proceedings?
Mr. Langlois explained that the clock starts when the asylum petition is filed for both UACs and any other affirmative asylum applicant. The clock is stopped where the delay is caused by the applicant, for instance, where there is a request to reschedule the hearing by the applicant.
Some UACs are in the custody of HHS-ORR. If an interview needs to be rescheduled at the request of HHS, this will not be considered to be the fault of the applicant, and the clock will not be stopped.
Who generally participates during an UAC asylum interview at USCIS?
USCIS representatives shared that USCIS asylum officers always interview the asylum applicant in addition to witnesses who are brought by the applicant. Sometimes trusted adults accompany children, but are not brought as witnesses. They may be interviewed where the questions focus on jurisdictional issues. These lines of questioning are intentionally non-adversarial. However, USCIS may interview trusted adults as a witness where they are granted permission by the child, so long as that child has the capacity to consent.
How do USCIS and EOIR reconcile testimony from a child that contradicts testimony from an adult?
Mr. Rosen said IJs determine the reliability of all evidence and assign appropriate weight to the testimony based on a number of factors, including credibility and any other evidence that the parties present.
Mr. Langlois also shared that USCIS considers the child's age development, the impact of the event, time between the testimony and the event, any special needs, the child's ability to comprehend the event, and the potential that the child was shielded from the event by the family for developmental or cultural reasons.
Mr. Langlois noted that contradictory testimony is not necessarily an indication of credibility issues for a child. The child will have an opportunity to explain inconsistencies during his/her interview or through a Request for Evidence (RFE). USCIS also conducts additional headquarters (HQ) review of these cases.
Callers also had an opportunity to ask questions, many of which are included below:
What happens if a UAC files for asylum while in federal custody, but is then reunited with a parent?
USCIS representatives indicated that UAC status attaches upon the date of filing with USCIS. See page 16 of the USCIS Asylum training guidance, Guidelines for Children's Asylum Claims. If the child was unaccompanied at the date of filing but was subsequently reunited with a parent, the child will still be considered unaccompanied for the purpose of the asylum application before USCIS. However, if reunification occurred before the time of filing, the child will no longer be considered a UAC before USCIS.
If an unaccompanied child in HHS custody reaches the age of 18 and is transferred to an adult facility, is the child's UAC asylum application still processed by USCIS?
If the child was unaccompanied and under 18 upon filing with USCIS, UAC status attaches upon the date of filing, and the child's application will continue to be processed by USCIS.
Do EOIR or USCIS have policies on the requirements for a "friend of the court" or a "trusted adult"?
The TVPRA authorizes HHS to appoint independent child advocates for child trafficking victims and other vulnerable unaccompanied alien children, often referred to as a "friend of the court." Ms. Lay explained there are no requirements for who can qualify as a "friend of the court."
A stakeholder expressed concern that some UACs may be taken advantage by the child's "trusted adult" or "friend of the court". Ms. Leen explained that IJs received training on how to identify trafficking situations or troubling indicators that suggest an unaccompanied child in their court room may be in a dangerous situation. Similarly, Mr. Langlois said that all USCIS offices have training and policies that help adjudicators recognize indicators for trafficking and dangerous situations.
When will UAC-related regulations be published?
DHS and EOIR are working to publish UAC-related regulations soon. They are a high priority for both DHS and the Department of Justice (DOJ). Multiple DHS and DOJ components are involved in the development of these regulations.
If minor children traveled into the United States unaccompanied, but their parent is present in the United States with Temporary Protected Status, will those children be eligible for prosecutorial discretion?
The Department of Homeland Security (DHS) is working on implementing existing guidance regarding the appropriate use of prosecutorial discretion in a manner that is consistent with the DHS enforcement priorities. In part, this process will identify low priority cases and, on a case-by-case basis, set the cases aside to allow for additional resources to be focused on high priority cases. This process does not involve the creation of an affirmative application process, although consistent with longstanding practice, individuals in removal proceedings, and their representatives, remain free to submit information relevant to their case to the appropriate ICE field offices or attorneys.
Please send case inquiries on UAC issues to Ms. Cutlip-Mason at Rena.Cutlip-Mason@dhs.gov.