A federal class action filed Monday in Maryland claims a May 31 memorandum issued by the U.S. Citizenship and Immigration Services dramatically curtails asylum provisions for unaccompanied immigrant children.
Plaintiffs' attorneys are seeking a temporary restraining order benefiting all asylum seekers affected by the policy change, which was scheduled to take effect June 30. Their lawsuit claims the memo violates a 2008 law that protects children entering the U.S. without a parent or other legal guardian.
USCIS spokesman Daniel Hetlage said in an email Tuesday that the agency doesn't comment on pending litigation. The U.S. Department of Homeland Security and its acting secretary and USCIS and its acting director are named as defendants in the suit.
Attorneys from Catholic Legal Immigration Network Inc., Kids in Need of Defense, the Goodwin Procter LLP law firm and Public Counsel are representing four children who are named plaintiffs identified only their initials.
Plaintiffs' attorneys believe this is the first case to challenge this new policy, according to Goodwin Procter spokesman Konstantin Shishkin. Asylum applicants typically must file their petitions within one year of entering the U.S, but the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 exempts unaccompanied children from that deadline, according to the lawsuit. The 2008 law gives unaccompanied children the right to pursue asylum relief through a "child-friendly, non-adversarial process" administered by USCIS, the suit says.
But the new USCIS policy requires asylum officers to "redetermine" whether an applicant met the legal definition of an unaccompanied child when they filed, "even if that filing date was years ago, when the prior policy was in effect," the lawsuit says. The previous policy, in place since 2013, didn't require applicants to show that they had filed within one year or qualified for an exception to that deadline.
"Under the new policy, they will be deprived of their right to seek asylum before USCIS, and will face an adversarial process in which a DHS prosecutor subjects them to cross examination and advocates for their deportation," the suit says.
According to the federal Office of Refugee Resettlement, more than 46,000 unaccompanied immigrant children have been released to sponsors in the U.S. between October 2018 and May 2019. The numbers for June have yet to be released, but the tally is expected to increase.
The class action comes as the federal government struggles to deal with thousands of Central American migrants who are arriving at the border in search of asylum. The surge has overwhelmed the system, backing up immigration courts and crowding shelters along the U.S.-Mexico border where advocates and members of Congress have raised concerns about the conditions.
In Texas, a 12-year-old migrant girl reported that she and her 6-year-old sister were held inside a Border Patrol station where they slept on the floor and were treated badly. The class action's four plaintiffs are described as a 17-year-old who fled Guatemala after he witnessed a killing and now lives in Maryland; a 20-year-old who fled to Los Angeles after his parents were killed in Guatemala; and two 20-year-olds who fled El Salvador to escape persecution based on sexual orientation and now live in Maryland. All of the 20-year-old plaintiffs were teenagers when they filed their asylum applications.
Associated Press reporter Susan Montoya in Albuquerque, New Mexico, contributed to this report.