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Judge Pelletier Deprived Unaccompanied Children Right To Apply for Asylum

Dan Pelletier

Immigration Judge Dan Pelletier Wrongfully Denied Unaccompanied Children Right To Apply For Asylum

Since 2014, the Board of Immigration Appeals remanded Immigration Judge Dan Pelletier’a decisions a total of 8 times where he denied unaccompanied children their right to apply for asylum under the 2008 Trafficking and Victims Protection Reauthorization Act.

The text of decisions are below. You  can read or download the pdf version here: 

U.S. Department of Justice

Executive Office for Immigration Review

De.cision of the Board oflmmigration Appeals

Falls Church, Virginia 22041

File: – Atlanta, GA In re: (b) (6)

IN REMOVAL PROCEEDINGS APPEAL

Date: February 1, 2016

ON BEHALF OF RESPONDENT: Daniel Joseph Ortiz, Esquire

CHARGE:

Notice: Sec. 212(a)(6)(A)(i), I&N Act (8 U.S.C. § 1182(a)(6)(A)(i)] –

Present without being admitted or paroled APPLICATION: Asylum, withholding of removal; Convention Against Torture

The respondent, an 18-year-old native and citizen of Mexico, appeals the Immigration Judge’s July 28, 2015, decision denying her request for asylum, withholding of removal IB1de·r the Immigration and Nationality Act, and protection under the Convention Against Torture (“CAT”). See sections 208(b)(l)(A) and 24l (b)(3)(A) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(b)(l)(A), 123l(b)(3)(A); 8 C.F.R. §§ 1208.16(c), 1208.18.

The Department of Homeland Security (“DHS”) has not opposed the appeal. The record will be remanded.

There is evidence in the- record indicating that the respondent may have been, at one point, determined to be an “unaccompanied alien child” (“UAC) (Exh. 2).    As  such we  find  that there is a threshold issue to be addressed regarding initial jurisdiction  over the respondent’s appticotion for asylum in light of the provisions of the William Wilbertorce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No. 110-457, 122 Stat. 5044, and the procedures set forth by the United States Citizenship and Immigration Services (USCIS) relating to the adjudication of asylum applications filed by UACs.

Section 235(d)(7)(B) of TVPRA, codified at section 208(b)(3)(C) of the Act, provides that “[a]n asylum officer … shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child ….” The term “unaccompanied alien child” is defined in the Act by reference to “section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. § 279(g)),» which in turn defines the term as “a child who (A) has no lawful immigration status in the United States;

(B) haB not attained 18 years of age; and (C) with respect to whom (i) there is no parent or legal guardi.m in the United States or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.

The USCIS subsequently issued a memorandum regarding updated procedures for determining initial jurisdiction over asylum applications filed by UACs. Memorandum from Ted Kim, USCIS Acting Chief, Asylum Division (May 28, 2013), Updated Procedures forDetermination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children, HQRAIO 120/ l 2a (USCIS memo). This memorandum states that, effective June 10, 2013, in cases in which the Customs and Border Protection (CBP”) or Immigration and Customs Enforcement (“ICE”) has already made a determination that an applicant is a UAC, “and that status determination was still in place on the date the asylum application was filed, Asylum Offices will adopt that determination without another factual inquiry.Id. at 1-2. The memo goes on to state that “[u]nless there was an affirmative act by [Health and Human Services], ICE or CBP to terminate the UAC finding before the applicant filed the initial application for asylum, Asylum Offices will adopt the previous DHS determination that the applicant was a UACand will take jurisdiction over the case.” Id at 2 (emphasis supplied). The memo further explains that in such cases, where there is a prior UAC determination which is still in place at the time the asylum application is filed, USCIS will take initial jurisdiction over the case “even if there appears to be evidence that the applicant may have turned 18 years of age or may have reunited with a parent or legal guardiansince the UAC determination was made. Id.

Neither Immigration Judges nor this Board are bound by the USCIS memo cited above. Seee.g. , Matter of C. Valdez, 25 I&N Dec. 824, 826 n.l (BIA 2012) (noting that a USCIS policy memorandum was persuasive, but not binding). However, as USCIS is the agency vested with initial jurisdiction over UAC asylum applications, we would defer to USCIS’s determination of whether it retains jurisdiction over the initial adjudication of an unaccompanied minor’s asylum application.

While we recognize that the respondent turned 18 after she filed her asylum application and was also released into the custody of her mother, based on the above, neither of these. factors would necessarily deprive USCIS of initial jurisdiction over this matter. However, we cannot make a determination as to jurisdiction on the record before us, and thus conclude that remand is necessary. In this regard, further fact-finding is needed to determine: 1) whether the respondent was detennined to be a UAC prior to the initial filing of her asylum application; 2) if so, whether that status has been terminated by an “affirmative actwithin the contemplation of the USCIS memo and 3) whether the announced position of the USCIS as set forth in the USCIS memo has been withdrawn or superseded.

If this respondent comes within the scope of the USCIS memo, the respondent shall be provided the opportunity to pursue an application for asylum before the USCIS. If after additional fact-finding, it is determined that the respondent does not fall within the provisions of this policy memo , the Immigration Judge may certify the case back to the Board. 8 C.F.R.

§ 1003.7. I

Accordingly, the following order will be entered.

 We do not find the Immigration Judge’s discussion of the respondent’s sexual activity and medical history to be necessary or relevant to the analysis of the respondent’s daim (l.J. at 5-6; Tr. at 78-80).

2

(b) (6)

ORDER: The record is remanded to a different lmrnjgration Judge for further proceedings not inconsistent with the foregoing opinion.

_…..::::.._    …i..::::=-—–

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 2204 I

File: (b) (6) Atlanta, GA Date: In re: (b) (6)

NOV 2 2015

IN REMOVAL PROCEEDINGS APPEAL

ON BEHALF OF RESPONDENT: Joseph Anthony Azar , Esquire

ON BEHALF OF OHS: Joy Lampley

Assistant Chief Counsel

CHARGE :

Notice : Sec. 212(a)(6)(A)(i), I&N Act (8 U .S.C. § I 182(a)(6)(A)(i)] –

Present without being admitted or paroled APPLICATION: Asylum

The respondent, a native and citizen of Guatemala, has appealed the lnunigration Judge’s decision dated June 19, 20 l 5, which denied his asylum application Wlder section 208(b)( l )(A) of the Immigration and Nationality Act (..Act”), 8 U .S.C. §§ l 158(b)(l )(A). The Department of Homeland Security (“OHS”) has requested that the Immigration Judge’s decision be affirmed. The record will be remanded to the Immigration Court.

We review the findings of fact, including the detennination of credibility, made by the Immigration Judge under a “clearly erroneous” standard. 8 C.F.R. § 1003.l(d)(J)(i). We review all other issues, including whether tlle parties have met their relevant burden of proof, and issues of discretion, under a de novo standard. 8 C.F.R. § l003.l (d)(3)(ii). The respondent’s asylum application is governed by the amendments to the REAL ID Act. See Matter of S-B-, 24 I&N Dec. 42 (BIA 2006).

There is evidence in the record indicating that the respondent was, at one point, determined to be an “unaccompanied alien child” (“UAC”) (Exh. 3). As such, we find that there is a threshold issue to be addressed regarding initial jurisdiction over the respondent’s application for asylum in light of the provisions of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), Pub. L. No. 1 l0-457. 122 Stat. 5044, and the procedures set forth by the United States Citizenship and tmmigration Services (“USCJS”) relating to the adjudication of asylum applications filed by UACs.

Section 235(d)(7)(B) of TVPRA, codified at section 208(b)(3)(C) of the Act, provides that ‘·[a]n asylum officer shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child .... The term “unaccompanied alien child” is defined in the Act by reference tose:ction 462(.g) of the Homeland Security Act of 2002 (6 U.S.C. § 279(g)),” which in turn defines the term asa 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.”

The USCIS subsequently issued a memorandum regarding updated procedures for determining initial jurisdiction over asylum applications filed by UACs. Memorandum from Ted Kim, USCIS Acting Chief, Asylum Division (May 28, 2013), Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children, HQRAIO I 20/l 2a (“USCIS memo”). This memorandum states that, effective June I 0, 2013, in cases in which the Customs and Border Protection (“CBP”) or Immigration and Customs Enforcement (“ICE”) has already made a determination that an applicant is a UAC, “and that status determination was still in place on the date the asylum application was filed, Asylum Offices will adopt that determination without another factual inquiry.” Id. at 1-2. The memo goes on to state that “[u]nless there was an affirmative act by [Health and Human Services], ICE or CBP to terminate the UAC finding before the applicant filed the initial application for asylum, Asylum Offices will adopt the previous DHS determination that the applicant was a UAC” and ..will take jurisdiction over the case.” Id at 2 (emphasis supplied). The memo further explains that in such cases, where there is a prior UAC determination which is still in place at the time the asylum application is filed, USCIS will take initial jurisdiction over the case “even if there appears to be evidence that the applicant may have turned 18 years of age or may have reunited with a parent or legal guardian” since the UAC determination was made. Id.

Neither Immigration Judges nor this Board are bound by the USCIS memo cited above. See, e.g., Matter of C. Valdez, 25 l&N Dec. 824, 826 n. I (B[A 2012) (noting that a USCJS policy memorandum was persuasive, but not binding). However, as users is the agency vested with initial jurisdiction over UAC asylum applications, we would defer to USCIS’s determination of whether it retains jurisdiction over the initial adjudication of an unaccompanied minor’s asylum application .

On the record before us, we conclude that a remand is necessary for a determination whether this is a case in which the USCIS would take initial jurisdiction over this respondent’s application for asylum. In this regard, further fact-finding is needed I ) whether the respondent was determined to be a UAC prior to the initial filing of his asylum application; 2) if so, whether that status has been terminated by an “affirmative act” within the contemplation of the USCIS memo; and 3) whether the announced position of the users as set forth in the users memo has been withdrawn or superseded.

If this respondent comes within the scope of the USCIS memo, the respondent shall be provided the opportunity to pursue an application for asylum before the USCIS. If after additional fact-finding, it is determined that the respondent does not fall within the provisions of this policy memo, the Immigration Judge may certify the case back to the Board. 8 C.F.R. § 1003.7.

Accordingly, the following order will be entered.

2

(b) (6)

ORDER : The record is remanded to the Immigration Judge for further proceed ings not

inconsistent with the foregoing opinion.

FOR THE BOARD

3

U.S. Department of Justice

Executive Office for 1mmigratron Review

Dec1S1on of the Board oflmmigration Appeals

Falls Church, Virgrma 22041

File: – Atlanta, GA

Date:

October 16, 2015

In re:

IN REMOVAL PROCEEDINGS A PPEAL

ON BEHALF OF RESPONDENT: George E. Lee. Esqui re

ON BEHALF OF OHS: Abby L. Meyer

Assistant Chief Counsel

CHARGE:

Notice:    Sec.      212(a)(6)(A)(i), l&N Act  [8 U.S.C. §  1 182(a)(6)(A)(i)] 

Present without being admitted or  paroled

APPLICATION : Asylum; withholding ofremoval; Convention Against Torture

The respondent, a native and citizen of Guatemala. appeals the lmmigration Judge·s November 21. 2014, decision’ denying his application for asylum, wi thholdi ng of removal, and protection under the Convention Against Torture (“CAT”). See sections 208. 241 (b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231 (b)(3); 8 C.F.R. §§ 1208.13,

1208.16-1208.18. The record will be remanded.

We review for clear error the findings of fact, i ncluding the determination of credibi l ity, made by the Immigration Judge. 8 C.F.R. § l 003. l(d)(3)(i). We review de novo all other issues, i ncluding whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. § l 003. l (d)(3)(ii). The respondent’s application was filed after J\.fay 1 1, 2005, and therefore is governed by the provisions of the REAL ID Act. lv!atter of SB-, 24 l&N Dec. 42 (BIA 2006).

1 The respondent filed a timely appeal from the Immigration Judges November 21 , 2014, decision with this Board on December 22, 2014 ( see Notice of Appeal). On March 23, 2015, the Board remanded the proceedi ng to the Immigration Judge because portions of the hearing t ranscri pt were missing and there was no oral decision from the Immigration Judge (see BIA at 1 ). On May 27. 201 5. the Immigration Judge issued a decision clarifying that the testimony from the final heari ng and the Immigration Judge’s oral decision were mistakenly recorded in the digital audio record ing under a different alien number (I.J. at l ). The Immigration Judge took steps to correct the problem and certified the record back to the Board (LT . at l ). The record now contains a complete transcript and oral decision.

(b) (6)

The record reflects that the respondent in this case may have been an “unaccom panied alien chi ld” (UAC ). Thus, there is a threshold issue to be addressed regarding init ial jurisdiction over the respondent’s application for asylum in light of the provisions of the William Wilberforce Trafficking Victi ms Protection Reauthorization Act of 2008 (“TVPRA”), Pub. L. No. 110-457, 122 Stat. 5044, and the procedures set forth by the United States Citizenship and Immigration Services (“USCIS’) relating to the adjudication of asylum applications filed by UACs.

Section 235(d)(7)(B) of TVPRA. codified at section 208(b)(3)(C) of the Act, provides that ‘[a]n asylwn officer … shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child ....” The term “unaccompanied alien child” is defined in the Act by reference to “section 462(g) of the Homeland Security Act of 2002 (6 U.S .C. § 279(g)),” which in tum defines the term as ‘a child who (A) has no lawful immigration status in the Uru ted States;

(B) has not attained 1 8 years of age; and (C) with respect lo whom (i) there is no parent or legal guardian i n the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.”

The USCIS subsequently y issued a memorandum regarding updated procedures for determining initial jurisdiction over asylum applications filed by UACs. Memorandum from Ted Kim, USCIS Acting Chief, Asylum Division (May 28, 2013), Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children, HQRAIO 120/12a (“USCIS memo”). This memorandum states that, effective June 10, 2013, i n cases i n which the Customs and Border Protection (“CBP”) or Immigration and Customs Enforcement (“ICE”) has already made a detennination that an applicant is a UAC, “and that status determination was still in place on the date the asylum application was filed, Asylum Offices will adopt that determination without another factual inquiry.” id. at 1-2. The memo goes on to state that .;[u]nless there was an affirmative act by [Health and Human Services], ICE or CBP to tetminate the UAC finding before the applicant filed the ini tia l application for asylum, Asylum Offices will adopt the previous OHS determination that the applicant was a UAC” and will take jurisdiction over the case.Id. at 2 (emphasis supplied) . The memo further explains that in such cases, where there is a prior U AC determination which is still in place at the ti me the asylum application is filed, USCIS will take initial jurisdiction over the case ·even if there appears to be evidence that the applicant may have turned 18 years of age or may have reunited with a parent or legal guardian” since the UAC determination was made. Id.

Neither Immigration Judges nor this Board are bound by the USCIS memo cited above. See, e g., Matter of C Valdez, 25 I&N Dec. 824, 826 n. l (BIA 2012) (noting that a USCIS policy memorandum was persuasive, but not binding). However , as USCIS is the agency vested with initial jurisdiction over l.J AC asylum applications, we would defer to USCIS’ determination ofWhether it retains jurisdiction over the initial adjudication of an unaccompanied minor’s asylum application .

On the record before us, we conclude that a remand is necessary for a determination whether this is a case in which the USCIS would take initial jurisdiction over this respondent’s application for asylum. In this regard, further factfinding is needed 1) whether the respondent was determined to be a UAC prior to the initial filing of her asylum application ; 2) if so, whether that status has been terminated by an “affirmative act within the contemplation of the USCIS memo; and 3) whether the announced position of the USCIS as set forth in the USCIS memo has been ,withdrawn or superseded.

If this respondent comes within the scope of the USCIS memo, the respondent will be provided the opportunity to pursue an application for asylum before the USCIS. If after additional fact-finding, it is determined that the respondent does not fall within the provisions of this policy memo, the Immigration Judge may certify the case back to the Board. 8 C.F.R. § 1003.7.

Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and entry of a new decision.

3

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of 1mrnigration Appeals

Falls Church, Virginia 22041

File: Atlanta, GA Date:

In re: (b) (6)

IN REMOVAL PROCEEDINGS APPEAL

ON BEHALF OF RESPONDENT: Joseph A. Azar, Esquire

ON BEHALF OF OHS: Sirce E. Owen

Assistant Chief Counsel

AUG 27 2015

APPLJCA TION: Asylum; withholding of removal; Convention Against Torture

The respondent, a native and citizen of Honduras, appeals from the Immigration Judge’s decision dated February 9, 2015, denying his applications for asylum pursuant to section 208(b)(l )(A) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(l)(A), withholding of removal pursuant to section 24l(b)(3) of the Act, 8 U.S.C. § 1231(b)(3), and protection W1der the Convention Against Torture pursuant to 8 C.F.R. §§ 1208.I6(c)-.18. The Department of Homeland Security opposes the appeal. The record will be remanded.

There is evidence in the record indicating that the respondent was, at one point, determined to be an unaccompanied alien child” (“UAC) (Exh. 3).     As  such,  we  find  that  there  is  a threshold issue to be addressed regarding initial jurisdiction over the respondent’s application for asylum in  light of the provisions of the William Wilberforce Trafficking  Victims Protection Reauthorization  Act of 2008 (TVPRA), Pub. L. No.  110-457,  122 Stat. 5044, and the procedures set forth by the United  States Citizenship and Immigration Services (USCIS) relating to the adjudication of asylum applications filed by UACs.

Section 235(d)(7)(B) of TVPRA, codified at section 208(b)(3)(C) of the Act, provides that “[a]n asylum officer … shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child ....” The tenn “unaccompanied alien child.’ is defined in the Act by reference to “section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. § 279(g)),” which in turn defines the term as “a child who (A) has no lawful immigration status in the United States;

(B) has not attained 18 years of age; and 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.

The  USClS  subsequently    issued  a  memorandum  regarding  updated  procedures  for determining initial jurisdiction over asyl um applications filed by UACs. Memorandum from Ted Kim,  USCIS  Acting  Chief: Asylum  Division  (May  28, 2013) Update Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children. HQRAIO I20/12a (USCIS memo). This memorandum states that, effective June 10, 2013, in cases in which  the Customs and Border Protection  (CBP) or Immigration and Customs Enforcement (“ICE) has already made a determination that an applicant is a UAC,

(b) (6)

and that status determination  was still in place on the date the asylum application was filed, Asylwn Offices will adopt that determination without another factual inquiry.”  Id . at 1-2. The memo goes on to state  that “(u]nJess there was an  affirmative act by  [Health and Human Services], ICE or CBP to terminate  the UAC finding before the applicant  filed the initiaJ application for asylum, Asylum Offices will  adopt the previous DHS determination that the applicant was a UAC” and “will take jurisdiction over the ca<se .” Id. at 2 (emphasis supplied). The memo further explains that in such cases, where there is a prior UAC determination which is still in place at the time the asylum application is filed, users will take initial jurisdiction over the case even if there appears to be evidence that the applicant may have turned 18 years of age or may have reunited with a parent or legal guardian since the UAC determination was made. Id

Neither Immigration Judges nor this Board are bound by the USCIS memo cited above. See, e.g.. Matter of C. Valdez, 25 T&N Dec. 824, 826 n.l (BIA 2012) (noting that a USCIS policy memorandum was persuasive, but not binding). However, as USCIS is the agency vested with initial jurisdiction over UAC asylum applications , we would defer to USCIS’s determination of whether it retains jurisdiction over the initial adjudication of an unaccompanied minor’s asylum application .

On the record before us, we conclude that a remand is necessary for a determination whether this is a case in which the USCIS would take initial jurisdiction over this respondent’s application for asylum. In this regard, further fact-finding is needed l ) whether the respondent was determined to be a UAC prior to the initial filing of his asylum application; 2) if so, whether that status has been terminated by an affirmative actwithin the contemplation of the USCIS memo; and 3) whether the announced position of the USCIS as set forth in the USCIS memo has been withdrawn or superseded .

If this respondent comes within the scope of the USCIS memo, the respondent shall be provided the opportunity to pursue an application for asylum before the USCIS. If after additional fact-finding, it is determined that the respondent does not fall within the provisions of this policy memo, the Immigration Judge may certify the case back to the Board. 8 C.F.R.

§ 1003.7.

Ac.cordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings not inconsistent with the foregoing opinion .

2

…. U.S.Department of Justice

Exect1tive Office for Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 20530

File: (b) (6) Atlanta, GA Date:

(b) (6)

In re:

JUN l 9 2015

IN REMOVAL PROCEEDINGS APPEAL

ON BEHALF OF RESPONDENT: Amna Shirazi, Esquire CHARGE:

Notice:   Sec.     212(a)(6)(A)(i), I&N Act [8 U.S.C. § l 182(aX6)(A)(i)] 

Present without being admitted or  paroled

APPLICATlON: Continuance

The respondent, a native and citizen of Guatemala, appeals from the Immigration Judge’s decisions dated December J and 3, 2014, denying his request for a continuance. The record wiJI be remanded.

We review the findings of fact, including the determination of credibility, made by the Immigration Judge for clear error. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including questions of law and issues of discretion, de novo. 8 C.F.R. § 1003.l(d)(3)(ii).

Both before the Immigration Judge and on appeal to the Board, the respondent has argued that U.S. Citraenship and Immigration Services or USCIS), rather than the Immigration Judge, should initially adjudicate his asylum application. The respondent relies on the provisions of the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA), Pub. L. No. 110-457, 122 Stat 5044 (2008), which created procedural protections for W1accompanied alien children (UAC) who had “been forced to strugg]e through an immigration system designed for adults.’..2 Cong. Rec. S10886-0l (daily ed. Dec. 10, 2008) (statement of Sen. Feinstein, cosponsor of original Senate version). One of these protections gives UACs, including those in removal proceedings, the right to have their asylum applications reviewed in the fll’St instance by an asylum officer with the USCIS. TVPRA § 235(d)(7)(B) (codified at section 208(b)(3)(C) of the Act, 8 U.S.C. § 1158(b)(3)(C)) (stating that “[a]n asylum officer . . . shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child”).

1 The respondent has provided evidence that he filed an application for asylum with USCIS that is pending before that agency.

2 An ‘\maccompanied alien child” is defined as one who 1) “has no lawful immigration status in the United States,2) ”has not attained 18 years of aget and 3) either has no parent or legal guardian in the United States, or none is available to provide care and physical custody. 6 U.S.C.

§ 279(g).

(b) (6)

In a memorandum dated May 28, 2013, USCIS stated that in cases in which either U.S. Customs and Border Patrol (CBP) or U.S. Immigration and Customs Enforcement (ICE) “has already made a determination that the applicant is a UAC, and that status detennination was still in place on the date the asylum application was filed, Asylum Offices will adopt that determination without another factual inquiry.” Memorandum from Ted Kim to Asylum Office Staff, Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children (HQRAIO 120/12a) (May 28, 2013) at 2. Central to the issue now before us, the memo goes on to state that ”[u]nless there was an affirmative act by [the

U.S. Department of Health and Human Services (HHS)], ICE or CBP to tenninate the UAC finding before the applicant filed the initial application for asylW11, Asylum Offices wiJJ adopt the previous OHS determination that the applicant was a UAC .Id. (emphasis supplied). Further, “if CBP or ICE determined that the applicant was a UAC, and, as of the date of initial filing of the asylum application, that UAC status determination was still in place, USCIS will take initial jurisdiction over the case, even if there appears to be evidence that the applicant may have turned 18 years of age or may have reunited with a parent or legal guardian since the CBP or ICE determination.” Id.

In the case before us, the Immigration Judge denied the respondent’s request for a continuance. concluding that the above memorandum was not binding on the court, that the respondent was no longer UAC given that he had been reunified with a parent, and that the court had jurisdiction over the respondent’s application for relief (Tr. at 26). Cowtsel for the

respondent indicated that he did not wish to proceed with the application filed before the court given his argument that initial jurisdiction was with users.

To the extent the Immigration Judge may have concluded that HHS’s release of the respondent from c.ustody constituted a “termination” of his UAC status, we note that while the USCIS memo specifically references the HHS‘s Office of Refugee Resettlement (ORR) Verificatjon of Release Form, it solely does so as evidence that a UAC detennination has been m:1de. And, it is clear from this memo that the reunification of a child with a parent is not in itself determinative that UAC status is no longer in place. Further, OHS did not argue before the Immigration Judge, and has not argued before the Board in response to the respondent’s appeal, th,i.t there has been ru1 “affirmative act” by HHS, ICE, or CBP to terminate the determination that the respondent was a U AC. Nor has the DHS explained what constitutes such an act within the contemplation of the USCIS memo or argued that the memo no longer represents the position of the Government.3

Neither Immigration Judges nor this Board is bound by the USCIS memo cited above. See. e.g . Matter of C. Valdez, 25 I&N Dec. 824, 826 n.l (BIA 2012) (noting that a USCIS policy memorandum was persuasive, but not binding).  However, as USCIS is the agency vested with initial jurisdiction over UAC asylum applications, we would defer to USCIS’s determination of whether it retains jurisdiction over the initial adjudication of the respondent s application On the record before us, we conclude that a remand is warranted pending a determination by the USCIS whether it ,viii take initial jurisdiction over this respondent s application for asylum.  On remand, the parties  will have the opportunity to present evidence regarding the status of the respondent’s application before USCIS.    Should the Immigration Judge find that U SCIS has accepted jurisdiction,  proceedings  should  be continued  or administratively  closed  pending adjudication of that application. Should the Immigration Judge find that USCIS has not accepted jurisdiction over the application, he may certify the record to the Board upon the conclusion of the proceedings on remand. See generally 8 C.F.R. §§ 1003.l(c), 1003.7.

Accordingly, the record will be remanded as set forth below.

ORDER: The record is remanded for further proceedings consistent with the foregoing decision and for the entry of a new decision.

FOR THE BOARD

3 We note that while this appeal was pending, the respondent turned 18. However, the USCIS memorandum cited above states that in cases, such as this one, where a determination of UAC status is still in place on the date the asylum application is filed, USCIS will take jurisdiction even where there is evidence that the alien has since turned 18.

U,S. Department of Justice

Executivo Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: NW Atlanta, GA

Date:May 29, 2015

In re: (b) (6)

IN REMOVAL PROCEEDINGS APPEAL

ON BEHALF OF RESPONDENT: Amna Shirazi, Esquire

ON BEHALF OF DHS: Joy Lampley

Assistant Chief Counsel

CHARGE :

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § 1 182(a)(6)(A)(i)J –

Present without being admitted or paroled APPLICATION: Continuance; tennination

The respondent, a nati ve and citizen of Guatemala, appeals from the Immigration Judge’s November 17, 2014, decision ordering her removal from the United States. The record wil1 be remanded .

We review findings of fact, including credibiJity findings, under the “clearly erroneous” standard. See 8 C.F.R. § 1003.1(d)(3)(i); see also Mauer of J-Y-C-, 24 l&N Dec. 260 (BIA 2007); Mauer of S-H-, 23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, orjudgment, and all other issues de novo. See 8 C.F.R. § 1003.1(d)(3)(ii).

The respondent filed an Application for Asylum and for Withholding of Removal (Fonn 1-589) before the Inunigration Judge on October 30, 2014 (J.J. at 2; Exh. 5). Thereafter, the respondent asserted that United States Citizenship and lmmigration Services (“USCIS”) had initial jurisdiction over her asylum application, based on the “Kim Memo” (I.J. at 2; Respondent’s Motion to Continue Individual Hearing, attached Memorandum from Ted Kim to Asyl um Office Staff, Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children (HQRAIO 120/12a) (May 28, 2013)

(“Kim Memo”)). The respondent requested a continuance of the proceedings pending the adjudication of her Fonn 1-589 by users and, alternativel y, sought termination of removal

proceedings (I.J. at 2; Respondent’s Motion to Continue Individual Hearing).

The Immigration Judge found that the respondent did not appear to be an unaccompanied alien child, as contemplated by the Kim Memo, and that the Kim Memo was inappropriate with respect to the instant matter (U. at 2). Moreover , the Immigration Judge determined that the respondent was not an ‘”unaccompanied childbecause she was released into the care of her mother in July 2014 (I.J. at 2). Because the respondent, through counsel, declined to pursue her asylwn application in removal proceedings, the Immigration Judge deemed that application to be abandoned (U. at 2; Exh. 5).

On appeal, the respondent asserts that the Immigration Judge erred in concluding that the Immigration Court, rather than USCIS, was vested with jurisdiction over her asylum application (Respondent’s Brief at 3-5). She further asserts that the Immigration Judge erred in denying her request to continue removal proceedings in order to allow her the opportunity to pursue her asylum application before USCIS (Respondent’s Brief at 5). The respondent has provided documentation from USCIS acknowledging receipt of her asylum application.

We conclude that a remand is warranted pending a determination by USCIS as to whether it will  take  initial jurisdiction  over  the  respondent’s  application  for  asylum.     See  section 208(b)(3)(C) of the Immigration and Nationality Act, 8 U .S.C. § 1158(b)(3)(C) (providing that USCIS shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child).  The respondent has identified evidence in the record, including‘Verification of Release” form issued by the Department of Health and Hwnan Services (HHS), which reflects

that she was designated an unaccompanied alien child (Respondent’s Motion to Continue Individual Hearing at ft 2-3; Respondent’s Brief at 4). The Immigration Judge properly observed that, according to the Kim Memo, the unaccompanied alien child determination must still be in place on the date on which the asylum application is filed (I.J. at 2; Kim Memo at 2).

However, the Kim Memo also states that a prior detennination that an applicant was an unaccompanied alien child will be adopted by Asylum Offices, absent an ”affirmative act” to terminate that determination by HHS or the Customs and Border Protection (“CBP”) or Immigration and Customs Enforcement (“ICE”) divisions of the Department of Homeland Security (“DHS”). See Kim Memo at 2. While the Immigration Judge found that the respondent was not an unaccompanied alien child when she filed her asylum application, no specific finding was made with respect to whether HHS, CBP, or ICE undertook an “affirmative act” to terminate the prior determination that she was an unaccompanied alien child (I.J. at 2). See Kim Memo at 2. Nor did the OHS articulate its position with regard to whether an “affirmative act” effected termination of the respondent’s unaccompanied alien child status.’

Neither the Im.migration Judge nor this Board is bound by memoranda issued by USCIS. See, e.g., .Matter of C. Valdez, 25 I&N Dec. 824, 826 n.1 (BIA 2012) (noting that a USCIS policy memorandum was persuasive, but not binding). However, as USCIS is the agency vested with initial jurisdiction over the asylum applications of unaccompanied alien children, we would defer to USCIS’s determination of whether it retains jurisdiction over the initial adjudication of a respondent’s application. See section 208(b)(3)(C) of the Act. Therefore, we will remand the record to the Immigration Judge to await USCIS’s determination as to whether it has taken initial jurisdiction over this respondent’s application for asylum.

1 On appeal, the respondent indicates that her designation as an unaccompanied alien child has not been challenged by the DHS at any time (Notice of Appeal at 2).

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  • t

(b) (6)

On remand, the parties will have the opportunity to present evidence regarding the status of the respondent’s application before USCIS. Should the Immigration Judge find that USCIS has accepted jurisdiction, the proceedings should be continued or administratively closed pending adjudication of that application. If the Immigration Judge determines that USCIS has not accepted jurisdiction over the asylwn application, the respondent should be provided a further opportunity to pursue her application in removal proceedings.

Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion.

3

.,

U.S. Deparment of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: – Atlanta, GA Date: June 5, 2015

ln re: (h) (6)

IN REMOVAL PROCEEDINGS APPEAL

ON BEHALF OF RESPONDENT: Ana T. Fuentes, Esquire

ON BEHALF OF OHS: Joy Lampley

Assistant Chief Counsel

CHARGE:

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] •

Present without being admitted or paroled APPLICATION: Asylum; withholding of removal

The respondent, an 18-year-old native and citizen of El Salvador, appeals the Immigration Judges November 17, 2014, decision denying the respondents applications for asylum and withholding of removal. See sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. §§ I 158. 1231(b)(3); 8 C.F.R. §§ 1208.13, 1208.16. The record will be remanded.

There is evidence in the record indicating that the respondent was, at one point, determined to be an unaccompanied alien child” (“UAC”) (Exh. 3, printout of screenshot of “UAC Basic Information,” submitted August 20, 2014). As such, we find that there is a threshold issue to be addressed regarding irutial jurisdiction over the respondent’s application for asylum in light of the provisions of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), Pub. L. No. 110-457, 122 Stat 5044, and the procedures set forth by the United States Citizenship and Immigration Services (“USCIS”) relating to the adjudication of asylum applications filed by UACs.

Section 235(d)(7)(B) of TVPRA, codified at section 208(b)(3)(C) of the Act, provides that “[a]n asylwn officer . . . shall have irutial jurisdiction over any asylum application filed by an unaccompanied alien chi]d . . . .” The term “unaccompanied alien child” is defined in the Act by reference to section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. § 279(g)),” which in tum defines the tenn 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.

The USCIS subsequently issued a memorandum regarding updated procedures for determining initial jurisdiction over asy]urn applications filed by UACs. Memorandum from Ted Kim, USCIS Acting Chief. Asylum Division (May 28, 2013), Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children, HQRAIO 120/12a (“USCIS memo).  This memorandum states that, effective June 10, 2013, in cases in which the Customs and Border Protection  (CBP”) or Im.migration  and Customs Enforcement  (ICE) has already made a determination that an applicant is a UAC, and that status determination was still in place on the date the asylum application was filed, Asylum Offices will adopt that determination without another factual inquiry.Id. at 1-2.  The memo goes on to state that [u)nless there was an affirmative act  by [Health and HUinan Services], ICE or  CBP to terminate the UAC finding before the applicant filed the initial application for asylum, Asylum Offices will adopt the previous  DHS determination that the applicant was a UAC” and‘will take jurisdiction over the case.” Id  at 2 (emphasis supplied). The memo further explains 1hat in such cases, where there is a prior UAC determination which is still in place at the time the asylum application is filed, USCIS will take initial jurisdiction over the caseeven if there appears to be evidence that the applicant may have turned 18 years of age or may have reunited with a parent or legal guardian since the UAC detemtination was made. Id

Neither Immigration Judges nor this Board are bound by the USCIS memo cited above. See, e.g., Matter of C. Valdez, 25 I&N Dec. 824, 826 n.1 (BIA 2012) (noting that a USCIS policy memorandum was persuasive, but not binding). However, as USCJS is the agency vested with initial jurisdiction over UAC asylum applications, we would defer to USCISs determination of whether it retains jurisdiction over the initial adjudication of an unaccompanied minors asylum application.

On the record before us, we conclude that a remand is necessary for a determination whether this is a case in which the USCIS would take initial jurisdiction over this respondent’s application for asylum. In this regard, further fact-finding is needed l) whether the respondent was determined to be a UAC prior to the initial filing of her asylum application; 2) if so, whether that status has been terminated by an “affirmative act” within the contemplation of the USCIS memo; and 3) whether the announced position of the USCIS as set forth in the USCIS memo has been withdrawn or superseded.

If this respondent comes within the scope of the USCIS memo, the respondent shall be provided the opportunity to pursue an application for asylum before ‘the USCIS. If after additional fact-finding, it is determined that the respondent does not fall within the provisions of this policy memo, the Immigration Judge may certify the case back to the Board. 8 C.F.R.

§ 1003.7.

Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings not inconsistent with the foregoing opinion.

FOR THE BOARD 2

.,,

U.S. Department of Justice

, Executive Office for Inunigration Review

Decision of the BoBrd oflmmigration Appeals

Falls Church, Virginia 20530

File: (b) (6) – Atlanta, GA Date: In re: (b) (6)

JUN 17 2015

IN REMOVAL PROCEEDINGS APPEAL

ON BEHALF OF RESPONDENT: Julio E. Moreno, Esquire

ON BEHALF OF DHS: Ginger Vaudrey

Assistant Chief Counsel

CHARGE:

Notice:   Sec.    212(a)(6){A)(i), J&N Act [8U.S.C. § 1182(aX6)(A)(i)] –

Present without being admitted or paroled

APPLICATION: Asylum; withholding of removal; Convention Against Torture

The respondent a native and citizen of El Salvador, appeals the Immigration Judge’s October 20. 2014. decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). See sections 208, 241{b)(3) of the Immigration and Nationality Act, 8 U .S.C. §§ 1 158, 1231(b)(3); 8 C.F.R. §§ 1208.13, 1208.161208.18. The record wiU be remanded.

We review for clear error the findings of fact, induding the detennination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.I (d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. § 1003.l (d)(3)(ii). The respondent’s application was filed after May 1J. 2005, and therefore is governed by the provisions of the REAL ID Act. Matter of S-B-, 24 I&N Dec. 42 (BIA 2006).

The record reflects that the respondent in this case may have been an “unaccompanied alien child(..UAC”). As such, we find that there is a threshold issue to be addressed regarding initial jurisdiction over the respondent’ s application for asylum in light of the provisions of the William Wilbetforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), Pub. L. No. 110-457, 122 Stat. 5044, and the procedures set forth by the United States Citizenship and Immigration Services (”USCIS”) relating to the adjudication of asylum applications filed by UACs.

Section 235(d)(7)(B) of 1VPRA, codified at section 208(b)(3)(C) of the Act, provides that

;’[a]n asylum officer ... shall have initial jurisdiction over any asylum application filed by an unaccompanied  alien child ....1    The term unaccompanied alien child” is defined in the Act by reference tosection 462(g) of the Homeland Security Act of 2002 (6 U.S.C. § 279(g}),which in turn defines the term asa 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.

Toe USCIS subsequently issued a memorandum regarding updated procedures for determining initial jurisdiction over asylum applications filed by UACs. Memorandum from Ted Kim, USCIS Acting Chief, Asylum Division (May 28, 2013), Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children, HQRAIO 120/12a (“USCIS memo). This memorandum states that, effective June 10, 2013, in cases in which the Customs and Border Protection (”CBP”) or Immigration and Customs Enforcement (“ICE”) has already made a determination that an applicant is a UAC, “and that status determination was still in place on the date the asylum application was filed,

Asylum Offices wil1 adopt that determination without another factual inquiry.” Id. at 1-2. The memo goes on to state that “[u]nless there was an affirmative act by [Health and Human

Services], ICE or CBP to terminate the UAC finding before the applicant filed the initial application for asylwn. Asylum Offices will adopt the previous DHS determination that the applicant was a UAC” and “will take jurisdiction over the case.Id at 2 (emphasis supplied). Toe memo further explains that in such cases, where there is a prior UAC determination which is still in place at the time the asylwn application is filed, USCIS will take initial jurisdiction over the case “even if there appears to be evidence that the applicant may have turned 18 years of age or may have reunited with a parent or legal guardian” since the UAC detennination was made. Id

Neither Immigration Judges nor this Board are bound by the USCIS memo cited above. See, e.g., Matter of C. Valdez, 25 l&N Dec. 824, 826 n.1 (BIA 2012) (noting that a USCIS policy memorandum was persuasive, but not binding). However, as USCIS is the agency vested with initial jurisdiction over UAC asylum applications, we would defer to USCIS’s determination of whether it retains jurisdiction over the initial adjudication of an unaccompanied minor’s asylum application.

On the record before us, we concJude that a remand is necessary for a detennination whether this is a case in which the USCIS wouJd take initial jurisdiction over this respondent’s application for asylum. In this regard, further factfinding is needed 1) whether the respondent was determined to be a UAC prior to the initial filing of her asylum application; 2) if so, whether that status has been terminated by an “affirmative act” within the contemplation of the USCIS memo; and 3) whether the announced position of the USCIS as set forth in the USCIS memo has been withdrawn or superseded .

If this respondent comes within the scope of the USCIS memo, the respondent shall be provided the opportunity to pursue an application for asylum before the USCIS. If after additional fact-finding, it is determined that the respondent does not fall within the provisions of this policy memo, the Immigration Judge may certify the case back to the Board . 8 C.F.R .

§ 1003.7.

Accordingly, the following order will be entered .

2

(b) (6)

ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and entry of a new decision.

;       ·

FOR THE BOARD

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