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Lawsuit against Homeland Security Says That New Asylum Policy Violates Child Immigrants’ Rights

GREENBELT, MARYLAND, JULY 8, 2019 — Four young asylum seekers are suing the Department of Homeland Security saying that a new policy unlawfully limits their ability to seek asylum. In a lawsuit filed in U.S. District Court in Maryland, the asylum applicants say a May 31 policy by U.S. Citizenship and Immigration Services violates their rights under the Trafficking Victims Protection Reauthorization Act (TVPRA), the Administrative Procedure Act, and the Fifth Amendment to the Constitution.

The lawsuit was filed by Public Counsel, the Catholic Legal Immigration Network, Inc. (CLINIC), Kids In Need of Defense (KIND), and Goodwin Procter LLP on behalf of the plaintiffs, who arrived in the United States as children, unaccompanied by a parent or legal guardian. It seeks class-action status and a temporary restraining order, blocking implementation of the policy.

The four young immigrants filed applications for asylum because of violence, discrimination, and persecution in their home countries. The TVPRA, a 2008 law, ensures that children who arrive in the United States without a parent or legal guardian can seek asylum in a child-appropriate interview with a trained asylum officer and that they are not subject to the one-year filing deadline.

“This policy changes the rules for these children’s cases midway through the process,” said Rebecca Scholtz, senior attorney with CLINIC. “This retroactive and unlawful policy eviscerates the protections Congress enacted for vulnerable children, and, if allowed to go forward, will cause grave harm to asylum-seeking children who face violence and persecution in their home countries.” 

Congress created the TVPRA protections in 2008. They ensure that children such as the plaintiffs, who arrive in the United States without a parent or legal guardian, can seek asylum in a child-appropriate interview before a trained asylum officer. The TVPRA also ensures that children will not be frozen out of the asylum system if they take more than one year to find an attorney and file their applications. The lawsuit aims to preserve these protections in the face of a policy that USCIS adopted May 31, 2019, without advance notice to the public and an opportunity for public comment.

The new policy requires asylum officers to redetermine whether an asylum applicant who had already been found to be an “unaccompanied alien child” continued to meet the statutory definition of that term on the date of filing for asylum. The policy applies to all USCIS decisions issued on or after June 30, 2019. This means that child asylum applicants who submitted their filing after they had turned 18, or after reunifying with a parent or legal guardian, face the prospect of having USCIS refuse to decide their asylum applications, even those filed long ago.

The new policy would force affected child asylum applicants to raise their claims only in an adversarial immigration court hearing. The redetermination policy also applies to unaccompanied children’s exemption from a one-year filing deadline for asylum, meaning that if the affected children lose their TVPRA protections as unaccompanied children they may lose eligibility for asylum altogether.

“No child fearing persecution should find their path to safety blocked with unreasonable obstacles,” said Scott Shuchart, an attorney with KIND. “In Maryland alone, KIND serves many children who stand to be deprived of these basic safeguards established by Congress. We ask the court to ask the executive branch to follow the law. It is ironic to see yet another harsh move against asylum seekers coming this month, as we are celebrating our own nation’s freedoms, not least the freedom from fear.”

“Congress rightly created special asylum protections for children, and we are fighting to keep those in place — not just for our own clients, but for children nationwide. A 7-year-old’s only route to asylum should not require cross-examination by a government attorney in court,” said Kristen Jackson, senior staff attorney at Public Counsel.

“We are troubled by the administration’s decision — with no notice to the public — to remove protections Congress provided for immigrant children seeking asylum,” said Kevin DeJong, attorney at Goodwin Procter LLP. “We aim to halt this harmful policy, which retroactively imposes a one-year bar on filing for asylum for many vulnerable children, and takes them out of an asylum process designed for them in favor of putting them in front of a judge and prosecutor.”

“We will vigorously challenge every government effort to disregard legal protections for children seeking asylum. The law provides a child-appropriate process for boys and girls fleeing violence to find a safe haven here. It is inconceivable that a child should be forced to bypass that avenue and instead sent to an adversarial courtroom to tell their story,” said Mary Tanagho Ross, appellate staff attorney at Public Counsel.

The defendants are the Department of Homeland Security and its acting secretary, and U.S. Citizenship and Immigration Services and its acting director.


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