Matter of M-A-C-O (BIA 2018)
Decided October 16, 2018
This is a decision seeking to resolve a jurisdictional issue about when an individual in removal proceedings initially determined to be an unaccompanied minor by the Department of Homeland Security files an asylum application first with USCIS after turning 18 years of age. When there has been no affirmative act to terminate that status, in many parts of the country, USCIS offices have continued to adjudicate the applications of individuals initially determined to be unaccompanied minors, but who filed their asylum application after turning 18 years old. However, this case clarifies that the Immigration Judge may claim initial jurisdiction over such a case, refuse to continue the case to permit USCIS to decide the asylum application, and require the individual to file an asylum application defensively in court. According to the Board of Immigration Appeals:
While section 208(b)(3)(C) of the Act limits an Immigration Judge’s jurisdiction over an asylum application filed by a UAC, 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.
Important takeaway: While the holding in this case was limited in scope, the BIA left open the possibility that since age is not the only way an adjudicator could find that an applicant no longer meets the definition of an unaccompanied minor, if the child is released from custody to a parent or legal guardian and does not file for asylum until after release from custody, an immigration judge could also find that the individual does not meet the definition of a unaccompanied minor for purposes of determining whether USCIS retains initial jurisdiction over the asylum application.
