The Biden administration has rescinded a policy signed in the waning days of former president Donald Trump’s term that made it harder for immigrant children to obtain asylum in the US, according to an internal email obtained by BuzzFeed News.
“This is an important step towards restoring the protections for unaccompanied children that were slowly stripped away over the course of the Trump administration,” said Sarah Pierce, an analyst at the Migration Policy Institute. “It also decreases pressure on [Immigration and Customs Enforcement] officers, no longer forcing them to regularly investigate and make conclusions on a child’s custody situation and age.”
The policy came after years of Trump officials complaining that unaccompanied minors and their families abuse the immigration system through “loopholes” that allow them to remain in the US after crossing the border to seek asylum. It required that ICE officers review whether an immigrant child was still “unaccompanied” each time they encountered the minor. The officers were also told to evaluate all available information in determining whether the child should still be classified as unaccompanied, including whether they had turned 18 and whether there was an “available” guardian in the US who could care for them or was already doing so.
Such a change was expected to lead to making some children ineligible to have their asylum claims initially heard and processed by United States Citizenship and Immigration Services (USCIS). Unaccompanied immigrant children in removal proceedings get an opportunity to present their claims to USCIS first and, if denied, get another opportunity in immigration court.
On Thursday, Tae Johnson, the acting director of ICE, sent an email to staff stating that he was rescinding the policy and that, “effective immediately,” officers would no longer be required to make the determination in an effort to “prevent the loss of procedural and legal safeguards created by Congress that were designed to keep [unaccompanied immigrant children] safe.”
The policy change comes as the Biden administration attempts to deal with more unaccompanied children crossing the US border in recent weeks.
The process stems from the Trafficking Victims Protection Reauthorization Act of 2008, signed by then-president George W. Bush, which made it so USCIS was the first agency to hear and determine asylum claims made by children who arrived in the country without a guardian — a law meant to place unaccompanied minors, who sometimes do not have legal representation, in a less adversarial setting than adults, who have their asylum claims adjudicated only in immigration court if placed into removal proceedings.
The change in settings can be the difference in whether a child is able to obtain asylum.
Asylum officers have a mandate to offer humanitarian protection to those fleeing dangerous situations, while immigration judges aim to be neutral arbiters of cases, experts said. The officers are trained in how to do nonadversarial interviews, while in immigration court, an attorney from the Department of Homeland Security can cross-examine the children.
The policy was also expected to expose minors to potential arrest by officers who could target a family for an enforcement action if the child was no longer determined to be unaccompanied. Those children could only be detained in government shelters overseen by a different agency.
In 2019, USCIS instituted a policy that forced asylum officers to determine whether an immigrant who applied for asylum was an unaccompanied child at the time of filing, meaning anyone older than 18 at the time could not apply.
The policy was later partially blocked by a federal judge.