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The Trump Administration Is Considering A Proposal That Could Make Asylum Tougher For Unaccompanied Children

The Department of Justice draft regulation could be the latest attempt by the administration to deter unaccompanied minors from crossing the border.

Posted on October 2, 2019, at 11:16 a.m. ET

Cedar Attanasio / AP

The Trump administration is considering a policy that could make it harder for unaccompanied minors to obtain asylum in the United States, according to a proposal obtained by BuzzFeed News.

A Department of Justice draft regulation would put a two-month deadline for unaccompanied children to apply for asylum with US Citizenship and Immigration Services officials — a major shift in the current procedure, which does not put a timeline for children to file an application.

Adults can apply for asylum with the agency for up to a year after crossing the border.

If enacted, the change could represent the latest attempt by the Trump administration to try to deter unaccompanied children from coming to the country and applying for asylum. While the number of unaccompanied children crossing the border has dropped in recent months, administration officials have maintained that the low rates are not permanent.

A Department of Justice spokesperson said that the agency “does not confirm or comment on media speculation about regulations.”

Currently, unaccompanied children in deportation proceedings get an opportunity to present their claims to USCIS first and, if denied, get another chance in immigration court, a system long deemed essential by immigrant advocates.

Under the draft proposal, if a child does not apply for asylum with USCIS within two months after appearing before a judge for an initial hearing, the judge will move forward with the case, as opposed to continuing it until a later time and waiting for USCIS to resolve the filing.

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 body 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 claims adjudicated only in immigration court if they were placed into removal proceedings.

Compiling applications for USCIS can take time as attorneys attempt to research a child’s background, interview family members in a foreign country, and compile the relevant documents needed to prove they deserve asylum. The administration, however, claims that cases involving unaccompanied minor children lag on the immigration court’s backlog and are not resolved efficiently.

“That’s ridiculous — an asylum application is extremely complicated. The idea of mandating a vulnerable population file it within 60 days is a crazy unrealistic proposition. It’s decreasing the likelihood that children qualify for asylum and get to stay in the US,” said Sarah Pierce, an analyst at the Migration Policy Institute.

The proposal would also make another switch: It would instruct immigration judges to determine whether an individual appearing before them claiming to be an unaccompanied minor and requesting asylum is in fact qualified to be labeled as such.

For the most part, USCIS officials are generally in charge of classifying whether an individual is a minor and can rely on a previous determination made by a Border Patrol or Immigration and Customs Enforcement officer that the individual was an unaccompanied minor at the time of crossing.

The Trump administration had attempted to change the way the agency handled the determination but was later blocked by a federal court.

The proposal obtained by BuzzFeed News would put the authority into the court’s hands and judges would be instructed that they do not need to rely on previous determinations of whether an individual is an unaccompanied minor.

“It’s more likely to have UAC status taken away because they are increasing the number of actors that are examining whether UAC status is still appropriate,” Pierce said.

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