On May 31, 2019, USCIS announced a policy limiting USCIS asylum jurisdiction over applicants previously determined to be “unaccompanied alien children” (UAC). The memo reversed a 2013 policy, often referred to as the “Kim memo,” that specified that USCIS took jurisdiction over asylum applications filed by applicants who had previously been determined by ICE or CBP to be “unaccompanied alien children.” Once a child was designated as unaccompanied, the child’s status remained in place from the time the child was apprehended at the border to the end of immigration court proceedings.

The new policy was adopted without advance notice or opportunity for public comment and requires asylum officers to re-determine whether an asylum applicant who had already been found to be an “unaccompanied alien child” continues to meet the statutory definition of that term on the date of filing for asylum. This means that 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. These asylum applicants would be forced to raise their claims only in an adversarial immigration court hearing.

On July 1, 2019, plaintiffs filed a complaint in U.S. District Court for the District of Maryland challenging this new policy. On October 15, the U.S. district court granted a preliminary injunction. The injunction adopts the terms of the previous restraining order issued in this case, providing assurance that USCIS must continue to abide by its 2013 policy until the conclusion of litigation or further order of the court.