The DHS Office of the Ombudsman recently issued formal recommendations for the treatment of unaccompanied minor asylum seekers.  The report is entitled Ensuring a Fair and Effective Asylum Process for Unaccompanied Alien Children.

In 2008, the law was changed so that review of unaccompanied child asylum cases was shifted from EOIR (the Immigration Courts) to USCIS (William Wilberforce Trafficking Victims Protection Reauthorization Act).  The Ombudsman’s recommendations address problems with the implementation of the new law.

Statistics about the number of unaccompanied child asylum applicants are hard to come by.  According to the DHS Yearbook on Immigration Statistics, in FY 2011, there were 76 children under age 16 granted asylum and a total of 569 people under age 19 granted asylum.  These figures do not include dependent children.   Also, these are the number of asylum applications granted.  I did not find information about the number of denied asylum cases for unaccompanied children.

The Ombudsman’s recommendations touch on a number of problems, including redetermining unaccompanied alien child (“UAC”) status, difficulty rescheduling UAC interviews, inadequate methods and approaches to adjudication, and the failure of USCIS to issue regulations concerning UAC cases.  The Ombudsman made the following recommendations:

1. Accept jurisdiction of UAC cases referred by the Executive Office for Immigration Review.
2. Accept jurisdiction of cases filed by children in federal custody under the U.S. Department of Health and Human Services. 
3. Follow established UAC-specific procedures, expand implementation of certain best practices, and enlist clinical experts for quality assurance and training. 
4. Limit Headquarters review to a process that can be managed within 30 days.
5. Issue as soon as possible regulations regarding the UAC asylum process.

I want to comment on two of these recommendations.  First, the always exciting issue of jurisdiction.  It seems that the current procedure is for EOIR or CBP (Customs and Border Protection) to make a determination that the alien is an unaccompanied child asylum seeker.  Once that determination is made, the alien’s case is transferred to USCIS.  The USCIS Asylum Office then re-determines whether the alien is an unaccompanied child.  Essentially, the child–who may not have any documentation or other evidence about her age–is forced to prove that she is a child during two separate interviews.  If she fails to do so, potentially her case will be bounced back to EOIR, which has already determined that it does not have jurisdiction.  This seems like a potential problem for the alien; not mention a waste of resources for the government.

The second issue, which is probably more problematic, is the Ombudsman’s recommendation that USCIS issue regulations implementing the 2008 law.  Four years after the law was passed, USCIS has still not issued regulations concerning unaccompanied child asylum seekers.  This reminds me of the failure to issue regulations for the Violence Against Women Act (“VAWA”).  For years, immigration attorneys used an informal application process for VAWA cases because no regulations were issued.  Although I understand that issuing regulations can be complicated, I don’t see why it should take years.  Regulations are important to help guide adjudicators and attorneys, and to ensure fairness.  Of course, the Ombudsman cannot compel USCIS to issue regulations, but I would have liked to see a stronger statement about this problem.

Overall, the Ombudsman’s recommendations seem sensible.  Hopefully, USCIS will take its own advice and implement the recommendations promptly.