Luis Cuellar Garcia v. William P. Barr ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0178p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LUIS EDUARDO CUELLAR GARCIA, ┐
Petitioner, │
│
> No. 19-3489
v. │
│
│
WILLIAM P. BARR, Attorney General, │
Respondent. │
┘
On Petition for Review of an Order of the Board of Immigration Appeals;
No. A 209 003 936.
Decided and Filed: June 8, 2020
Before: MERRITT, THAPAR, and LARSEN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Juan P. Caballero, MICHIGAN STATE UNIVERSITY COLLEGE OF LAW, East
Lansing, Michigan, for Petitioner. Jaclyn E. Shea, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
THAPAR, J., delivered the opinion of the court in which LARSEN, J., joined.
MERRITT, J. (pp. 7–18), delivered a separate dissenting opinion.
_________________
OPINION
_________________
THAPAR, Circuit Judge. Luis Eduardo Cuellar Garcia sought asylum in the United
States. The question here is who should have decided his fate: an immigration judge or the
United States Citizenship and Immigration Services (USCIS). Garcia argues that the
No. 19-3489 Cuellar Garcia v. Barr Page 2
immigration judge lacked jurisdiction over his case. We disagree and deny his petition for
review.
Garcia illegally entered the United States eight days before his eighteenth birthday.
At that time, an immigration official found him to be an “unaccompanied alien child.” 6 U.S.C.
§ 279(g)(2). Over a year later, Garcia applied for asylum, withholding of removal, and
protection under the Convention Against Torture, claiming that he had been threatened by gangs
in his home country (El Salvador). And based on his purported status as an “unaccompanied
alien child,” he sought relief from the USCIS. But instead, an immigration judge took
jurisdiction over his case, reasoning that Garcia was now nineteen years old and thus no longer a
“child.”
The immigration judge reviewed Garcia’s case and eventually denied his claims for
relief. The Board of Immigration Appeals largely affirmed that ruling on the merits but
remanded the case so that the immigration judge could determine whether to continue removal
proceedings while Garcia pursued adjustment of status. The immigration judge denied the
continuance. The Board affirmed.
Garcia then moved for a stay of removal pending this petition for review. But our court
denied the stay. Garcia has since been removed from the country.
In his petition for review, Garcia challenges his immigration proceedings on three
grounds: (1) that the immigration judge lacked jurisdiction over his case; (2) that the judge
applied the wrong legal standard to his claim under the Convention Against Torture; and (3) that
the judge wrongly denied his motion for a continuance. We review the legal questions presented
in the petition de novo. See Hernandez v. Whitaker, 914 F.3d 430, 433 (6th Cir. 2019).
Jurisdiction. Garcia first challenges the immigration judge’s jurisdiction over his case.
Specifically, he points to 8 U.S.C. § 1158(b)(3)(C), which provides that USCIS “shall have
initial jurisdiction over any asylum application filed by an unaccompanied alien child (as defined
in section 279(g) of Title 6).” According to our circuit—as well as the statutory text—this
provision requires that the alien be an “unaccompanied alien child” when he applies for asylum;
it’s not enough that the alien was an “unaccompanied alien child” when he first entered the
No. 19-3489 Cuellar Garcia v. Barr Page 3
country. See Harmon v. Holder, 758 F.3d 728, 733–35 (6th Cir. 2014); see also Salmeron-
Salmeron v. Spivey, 926 F.3d 1283, 1287–89 (11th Cir. 2019); Mazariegos-Diaz v. Lynch, 605 F.
App’x 675, 675–76 (9th Cir. 2015); Cortez-Vasquez v. Holder, 440 F. App’x 295, 298 (5th Cir.
2011) (per curiam). Garcia was nineteen years old at the time of his asylum application, so the
provision doesn’t seem to apply here. See 6 U.S.C. § 279(g)(2)(B) (defining an “unaccompanied
alien child” as someone who “has not attained 18 years of age”).
To be sure, our prior decision in Harmon didn’t address what would happen if the alien
had been previously found to be an “unaccompanied alien child” at the time of his entry. See
758 F.3d at 734 & n.3. But that finding turns out to be irrelevant. Again, the statute requires that
the asylum application be filed by an “unaccompanied alien child (as defined in [6 U.S.C.
§ 279(g)]).” 8 U.S.C. § 1158(b)(3)(C) (emphasis added). And that statutory provision defines an
“unaccompanied alien child” as someone who (1) “has no lawful immigration status in the
United States,” (2) “has not attained 18 years of age,” and (3) has no “parent or legal guardian in
the United States” who can provide physical custody and care. 6 U.S.C. § 279(g)(2). Nowhere
does the statute ask whether an immigration official previously found the applicant to be an
“unaccompanied alien child.” Rather, it asks only whether the alien meets the statutory criteria
at the time of his application. And like other judges, immigration judges have the power to
determine their own jurisdiction. See, e.g., Xiao v. Barr, 979 F.2d 151, 154–55 (9th Cir. 1992);
In re Bulnes-Nolasco, 25 I. & N. Dec. 57, 59 (BIA 2009); cf. Landon v. Plasencia, 459 U.S. 21,
31 (1982). Thus, the immigration judge properly exercised jurisdiction once he found that
Garcia did not meet the statutory criteria at the time of his asylum application.
For what it’s worth, the Board of Immigration Appeals recently reached the same
conclusion in a published decision. See In re M-A-C-O-, 27 I. & N. Dec. 477, 480 (BIA 2018).
And the Departments of Homeland Security and of Health and Human Services have codified the
same reading of the statute in two regulations—though the changes postdate the immigration
proceedings in this case. See 8 C.F.R. § 236.3(d); 45 C.F.R. § 410.101; see also Apprehension,
Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 Fed.
Reg. 44,392, 44,426–27, 44,454–55, 44,491 (Aug. 23, 2019) (explaining that the regulations
No. 19-3489 Cuellar Garcia v. Barr Page 4
implement the “plain language” of § 279(g)(2)). But the statutory text more than speaks for
itself.
Garcia points out that USCIS has a policy of exercising jurisdiction in cases like his own.
See Memorandum from Ted Kim, Acting Chief, Asylum Division, U.S. Citizenship and
Immigration Services, Updated Procedures for Determination of Initial Jurisdiction over Asylum
Applications Filed by Unaccompanied Alien Children 2 (Mar. 28, 2013).1 Taken at face value,
this policy doesn’t help him since it doesn’t divest immigration judges of jurisdiction over any
cases; it simply tells USCIS officials that they should also exercise jurisdiction over these cases.
See id.; see also J.O.P. v. U.S. Dep’t of Homeland Sec., 409 F. Supp. 3d 367, 375 (D. Md. 2019)
(explaining that, under the USCIS policy, immigration judges also exercise jurisdiction over
these cases). In fact, the policy isn’t even binding legal authority. See, e.g., Ortega-Cervantes v.
Gonzales, 501 F.3d 1111, 1118–19 (9th Cir. 2007); In re Briones, 24 I. & N. Dec. 355, 365 n.7
(BIA 2007). So it’s hard to see how it could have affected the immigration judge’s jurisdiction
over Garcia’s case.
But even if the policy purported to divest the immigration judge of jurisdiction, it
wouldn’t matter. The relevant statute unambiguously grants “initial jurisdiction” to USCIS only
when the alien is an “unaccompanied alien child” when he applies for asylum. 8 U.S.C.
§ 1158(b)(3)(C); Harmon, 758 F.3d at 734. And the statute unambiguously defines an
“unaccompanied alien child” as someone who has not yet turned eighteen. 6 U.S.C. § 279(g)(2).
Whatever the policy said, it couldn’t rewrite the plain terms of the statute. See Arangure v.
Whitaker, 911 F.3d 333, 337–38 (6th Cir. 2018); see also Salmeron-Salmeron, 926 F.3d at 1289
n.6 (pointing out that the USCIS policy improperly allows the agency to “engage in a legal
fiction” that conflicts with the “clear jurisdictional language of the statute”).
In sum, the immigration judge properly exercised jurisdiction over Garcia’s case.
1For the record, USCIS recently tried to replace this policy. See Memorandum from John Lafferty, Chief,
Asylum Division, U.S. Citizenship and Immigration Services, Updated Procedures for Asylum Applications Filed
by Unaccompanied Alien Children (May 31, 2019). But a district court in another circuit has temporarily enjoined
the agency from doing so. See J.O.P. v. U.S. Dep’t of Homeland Sec., 409 F. Supp. 3d 367, 380 (D. Md. 2019). The
dissent invokes the reasoning from this decision as the basis to grant Garcia relief. Yet Garcia himself tells us that
this revised policy was adopted long after his immigration proceedings and thus has no bearing on this case. See
Garcia Br. at 18 n.2. That’s probably why he hasn’t offered any argument based on the district court’s opinion.
No. 19-3489 Cuellar Garcia v. Barr Page 5
Convention Against Torture. Garcia next argues that the immigration judge applied the
wrong legal standard to his claim under the Convention Against Torture. To prevail on this
claim, Garcia must show that he would be in danger of being tortured if he returned to
El Salvador. See Ali v. Reno, 237 F.3d 591, 596 (6th Cir. 2001). Torture includes acts inflicted
by private parties “with the consent or acquiescence” of public officials. Singh v. Ashcroft, 398
F.3d 396, 404 (6th Cir. 2005) (quoting 8 C.F.R. § 208.18(a)(1)). And based on this definition,
our circuit has said that torture includes cases in which public officials show “willful blindness”
to private torture. Amir v. Gonzales, 467 F.3d 921, 927 (6th Cir. 2006). In doing so, our circuit
abrogated a prior Board of Immigration Appeals decision known as In re S-V-, 22 I. & N. Dec.
1306 (BIA 2000), which limited the term “torture” to willful acceptance, see Amir, 467 F.3d at
927.
Garcia says that the immigration judge failed to consider the “willful blindness” standard
(and that the Board summarily adopted the same reasoning). But that’s simply not true. The
immigration judge specifically noted that the Sixth Circuit “considers whether the government is
engaged in willful blindness of the actions of those within its borders who are engaging in
torturous conduct.” AR 422 (citing Amir, 467 F.3d at 921). Garcia insists that the judge used
other language in the decision that “harkens back” to the incorrect standard. Garcia Reply Br. at
23. Yet all he points to is a statement that an alien must show more than that the government is
“unable to control” the torture. AR 422. And that’s a correct statement of the law. See Zaldana
Menijar v. Lynch, 812 F.3d 491, 502 (6th Cir. 2015). Nor does it matter that the judge cited In re
S-V- for other legal propositions. Indeed, our court has upheld a nearly identical rule statement
(with citations to In re S-V-) even though the rule statement didn’t expressly reference the
“willful blindness” standard. See Nerghes v. Mukasey, 274 F. App’x 417, 423–25 (6th Cir.
2008). Since the rule statement here discussed the correct standard, it easily passes muster.
Continuance. Finally, Garcia argues that the immigration judge wrongly denied his
motion for a continuance. But this claim became moot once Garcia was removed from the
county. True, our circuit has said that an alien’s removal doesn’t necessarily moot his petition
for review since a removal order can have collateral consequences for the alien. See, e.g.,
Garcia-Flores v. Gonzales, 477 F.3d 439, 441 n.1 (6th Cir. 2007). Yet that doesn’t mean that
No. 19-3489 Cuellar Garcia v. Barr Page 6
every claim in the petition remains a live controversy. Garcia moved for a continuance of his
removal proceedings so that he could seek adjustment of status. But at this point, the removal
proceedings have been completed so there’s nothing left to “continue.” Simply put, we cannot
grant any relief on this claim. Hence the claim is moot. See Qureshi v. Gonzales, 442 F.3d 985,
988–90 (7th Cir. 2006); cf. Ferry v. Gonzales, 457 F.3d 1117, 1132 (10th Cir. 2006); Zundel v.
Berrong, 106 F. App’x 331, 334 (6th Cir. 2004); Soliman v. U.S. ex rel. INS, 296 F.3d 1237,
1243 (11th Cir. 2002) (per curiam).
We deny Garcia’s petition for review, except for his challenge to the denial of his motion
for a continuance, which we dismiss as moot.
No. 19-3489 Cuellar Garcia v. Barr Page 7
_________________
DISSENT
_________________
MERRITT, Circuit Judge, dissenting. Petitioner Luis Eduardo Cuellar Garcia, a native of
El Salvador, came to the United States in April 2016 to escape rampant crime and violence, often
stemming from unchecked gang warfare. He was 17 years old when he arrived at the border in
El Paso, Texas, and immediately presented himself to border officials. Because he was only
17 and entered the country without a parent or legal guardian, he was designated an
“unaccompanied alien child” and accorded certain protections not extended to adults. See
6 U.S.C. § 279(g)(2). Relying on the existing policy that extended the protections given to
unaccompanied alien children beyond age 18, Garcia, who by then was 19, filed an asylum
application with Citizenship and Immigration Services in August 2017.
Garcia’s designation as an unaccompanied alien child was in full force and effect on
August 4, 2017, when he filed his asylum application, as recognized by the immigration judge
who closed Garcia’s removal proceedings on October 2, 2107. The immigration judge properly
declined initial jurisdiction over Garcia’s removal proceedings, recognizing that Garcia’s
continued status as an unaccompanied alien child under the then-in-effect policy entitled him to
have his asylum application adjudicated by Citizenship and Immigration Services, not the
immigration court. Order of the Immigration Judge, No. A209-003-936 (Oct. 2, 2017)
(“Respondent is and remains a[n unaccompanied alien child], per [United States Citizenship and
Immigration Services] FAQs, and administrative closure for adjustment of status is appropriate
over government objection.”) (emphasis added) (Administrative Record at 1095).
Without notice, the government applied a new, unwritten and informal policy to Garcia
after he had filed his asylum application with Citizenship and Immigration Services, arguing that
he must adjudicate his asylum application in immigration court instead of in the more child-
friendly forum of Citizenship and Immigration Services. Based on this new, informal policy, the
government requested reconsideration of the immigration judge’s previous denial of jurisdiction
over Garcia’s case. Adopting the government’s argument, the immigration judge reconsidered
No. 19-3489 Cuellar Garcia v. Barr Page 8
his earlier decision and assumed jurisdiction over Garcia’s asylum application. Relief was
denied, and Garcia was deported in June 2019. Less than two months after Garcia was deported,
a federal court enjoined the new government policy that usurped, without notice, the rights of
unaccompanied alien children filing an asylum application after turning 18, and ordered that the
previous policy be maintained until the court considered the validity of the new policy. J.O.P. v.
Dep’t of Homeland Sec., 409 F. Supp. 3d 367 (D. Md. 2019). The case is currently proceeding
in the Maryland court.
I respectfully dissent from the majority opinion because Garcia is entitled to relief under
the law and policy covering unaccompanied alien children that was in effect on August 4, 2017,
the date he filed his asylum application with Citizenship and Immigration Services. The post-hoc
deprivation by the government to strip Garcia of the immigration status on which he relied, and
to deny him the protections of that status, is arbitrary and capricious and should not be condoned
by the courts. He should be paroled back to the United States to have his asylum application and
still-pending adjustment of status application1 reviewed.
I.
In 2008, Congress enacted the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (sometimes referred to herein as “the Act”). Pub. L. No. 110-457
§ 235(d), 122 Stat. 5044, 5074, codified at 8 U.S.C. §§ 1158, 1232(d). The Act extended legal
protections to “unaccompanied alien children” who entered the United States without a parent or
other legal guardian. An “unaccompanied alien child” is defined as a minor who: (1) has no
lawful immigration status in the United States; (2) has not attained 18 years of age; and (3) with
respect to whom—(i) there is no parent or legal guardian in the United States, or (ii) no parent or
legal guardian in the United States is available to provide care and physical custody. 6 U.S.C.
§ 279(g)(2). The Act requires that after an unaccompanied child is discovered by federal border
officials, he must be transferred to the custody of the Office of Refugee Resettlement within the
Department of Health and Human Services for care and further screening. Unlike the agencies
1Garcia also received status as a Special Immigrant Juvenile, which conferred certain rights relating to his
adjustment-of-status application. That application was still pending when he was deported.
No. 19-3489 Cuellar Garcia v. Barr Page 9
whose mission is to enforce immigration laws, the Department of Health and Human Services
has social workers trained to work with children. 8 U.S.C. § 1232(a)(3).
The Act also provides that United States Citizenship and Immigration Services, not an
immigration court, “shall have initial jurisdiction over an asylum application filed by an
unaccompanied alien child.” 8 U.S.C. § 1158(b)(3)(C) (emphasis added).2 The statute is silent
on when or how the designation lapses. It neither directs nor prohibits Citizenship and
Immigration Services from reassessing an individual’s status as an unaccompanied alien child at
the time of filing an application for asylum. Similarly, the Act neither expressly authorizes nor
expressly prohibits Citizenship and Immigration Services from rescinding an earlier
unaccompanied alien child determination.
The Act delegates authority to federal agencies to enact “regulations which take into
account the specialized needs of unaccompanied alien children and which address both
procedural and substantive aspects of handling unaccompanied alien children’s cases.” Id.§ 1232(d)(8). Regulations were never promulgated. In the absence of express statutory direction
or regulations, in a memorandum authored by Asylum Chief Ted Kim in May 2013, Citizenship
and Immigration Services implemented a policy of accepting jurisdiction of asylum applications
filed by individuals previously determined to be unaccompanied alien children without having
asylum officers make redeterminations regarding their status. See Updated Procedures for
Determination of Initial Jurisdiction over Asylum Application Filed by Unaccompanied Alien
Children (May 28, 2013) (“Kim Memo”).
The Kim Memo was prompted by a 2012 report by the Citizenship and Immigration
Services Ombudsman recommending that it implement a policy of not rescinding
unaccompanied alien child determinations. In an independent analysis of problems encountered
by unaccompanied children seeking asylum in the United States, the Ombudsman started from
2The asylum process before Citizenship and Immigration is less adversarial and more sensitive to the
special needs of children who do not know how to navigate an immigration system designed for adults, and who
likely sought safety in the United States without understanding their legal options. The asylum process in
Citizenship and Immigration Services uses officials trained to conduct nonadversarial interviews and to apply child-
sensitive and trauma-informed interview techniques instead of subjecting children to cross-examination by
government lawyers in immigration court.
No. 19-3489 Cuellar Garcia v. Barr Page 10
the understanding that when a child is placed in removal proceedings, the apprehending border
agency, “must make a finding that the child is unaccompanied.” United States Citizenship and
Immigration Services Ombudsman, Ensuring a Fair and Effective Asylum Process for
Unaccompanied Children at 7 (Sept. 12, 2012) (pdf file can be found at dhs.gov). Prior to the
2012 Ombudsman Report, Citizenship and Immigration Services had been performing
redeterminations of a child’s status as an unaccompanied alien child upon receipt of an asylum
application and again during the asylum interview. Id. at 5–6. The Ombudsman outlined several
problems with redetermining unaccompanied alien child status, including difficulty rescheduling
interviews, and inadequate methods and approaches to adjudication. Id. The Ombudsman was
concerned that instead of “facilitating expedited, non-adversarial interviews envisioned by
Congress,” the policy of undertaking a redetermination of unaccompanied alien child status at
every asylum interview created “delay and confusion.” Id. at 6.
In the Ombudsman’s view, “[the Act’s] procedural and substantive protections were
designed to remain available to [unaccompanied alien children] throughout removal proceedings,
housing placement, and the pursuit of any available relief,” and “[s]ubjecting a child seeking
asylum to multiple [[unaccompanied alien child] determinations as [was] required by
[Citizenship and Immigration Services’] temporary guidance appears at odds with [the Act’s]
express purpose, namely, to provide timely, appropriate relief for vulnerable children.” Id.
Further, the Ombudsman noted that “Congress did not provide language indicating that the filing
of an asylum application should trigger a new or successive [unaccompanied alien child]
determination that could eliminate statutory protections or remove the [unaccompanied alien
child] from [removal] proceedings.” Id. at 7. The Ombudsman concluded that “[e]liminating the
practice of Citizenship and Immigration Services redetermining unaccompanied alien child status
during the asylum interview would also restore a level of fairness that comes from having a
predictable and uniform process.” Id. at 8. Under the policy adopted by the Kim Memo, which
was consistent with the Ombudsman report’s recommendations, asylum officers were required to
accept determinations made by federal border officials regarding unaccompanied alien child
status even if an individual had turned eighteen or been reunited with a parent or guardian by the
time he applied for asylum. Kim Memo at 3.
No. 19-3489 Cuellar Garcia v. Barr Page 11
On June 14, 2019, Citizenship and Immigration Services published a memorandum dated
May 31, 2019, on its website, “Updated Procedures for Asylum Applications Filed by
Unaccompanied Alien Children,” that changed the policy for determining whether a child is
eligible for protections under the Act. The policy became effective on June 30, 2019, but it had
been informally applied since 2017.3 Pursuant to the June 2019 memo, all asylum officers were
required to “mak[e] independent factual inquiries in all cases in order to determine whether the
individual met the [unaccompanied alien child] definition on the date of first filing the asylum
application.” Under the new policy, an individual originally designated as an unaccompanied
alien child who, relying on the former policy, applied for asylum after reaching the age of
eighteen or after being reunited with a parent or guardian, will arrive at an asylum interview to
find that Citizenship and Immigration Services must now decline jurisdiction because of a
redetermination that the applicant was not an unaccompanied alien child at the time he filed an
application. Garcia’s case became embroiled in the changing government directives, subjecting
him to a muddled and confused immigration system where even the immigration judge assigned
to his case was unaware the government apparently changed its policy relating to unaccompanied
alien children.
II.
Garcia arrived in the United States in April 2016, and a Texas juvenile court ruled that it
was not in his best interest to return him to his native country. The juvenile court found that
Garcia had “insufficient parental protection from [gang] attacks while in El Salvador,” and that
“it is NOT in the best interest of the child to be removed to El Salvador.” In the interest of
L.E.C.G., No. 2016DCM3493 (D. Ct. of El Paso Cty., Tex., 388th Jud. Dis. May 5, 2016)
(capitalization in original) (Administrative Record at 81-85). Based on this ruling, Garcia was
accorded status by federal immigration authorities as a “Special Immigrant Juvenile,” a subset of
those designated “unaccompanied alien children” who have been neglected or abused in their
3On February 20, 2017, the Department of Homeland Security issued a memorandum announcing (among
other things) an upcoming change in the processing of unaccompanied alien children. The memo directs the various
agencies overseeing immigration and border protection to issue uniform written guidance on which arriving aliens
will receive “unaccompanied alien child” designation. There is no indication that any written guidelines were issued
before the June 2019 “Updated Procedures” policy memo.
No. 19-3489 Cuellar Garcia v. Barr Page 12
home countries. Unaccompanied alien children may receive Special Immigrant Juvenile status
only after satisfying a set of rigorous, congressionally defined eligibility criteria, including that a
juvenile court find it would not be in the child’s best interest to return to his country of last
habitual residence, and that the child is dependent on the court or placed in the custody of the
state or someone appointed by the state. 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11(c). The
child must also receive approval from Citizenship and Immigration Services and the consent of
the Secretary of Homeland Security to obtain the status. 8 U.S.C. § 1101(a)(27)(J). Once an
immigrant successfully petitions for Special Immigrant Juvenile status, the immigrant becomes
eligible for a visa under 8 U.S.C. § 1153(b)(4) (allocating a certain percentage of visas annually
to “special immigrants,” including special immigrant juveniles). Once attained, Special
Immigrant Juvenile classification conveys a host of other important benefits in addition to a path
to lawful permanent residence status. Special Immigrant Juvenile status, once granted, may not
be revoked except “on notice,” 8 C.F.R. § 205.2, and upon the government’s compliance with a
series of procedural safeguards.
On August 4, 2017, Garcia filed an asylum application with Citizenship and Immigration
Services, not with the immigration court, pursuant to his status as an unaccompanied alien child.
See 8 U.S.C. § 1158(b)(3)(C) (“An asylum officer . . . shall have initial jurisdiction over any
asylum application filed by an unaccompanied alien child.”). He was 19 years old. On October
2, 2017, at a hearing in the immigration court, Garcia moved to administratively close the
removal proceedings because he had an asylum application pending with Citizenship and
Immigration Services based on his status as an unaccompanied alien child. The immigration
judge agreed that he did not have jurisdiction over Garcia’s case, and he administratively closed
Garcia’s removal proceedings over the objection of the government:
Respondent is and remains a[n unaccompanied alien child], per [United States
Citizenship and Immigration Services] FAQs, and administrative closure for
adjustment of status is appropriate over government objection.
Order of the Immigration Judge, No. A209-003-936 (Oct. 2, 2017) (Administrative Record at
1095). The government objected to closure of the proceedings because it maintained for the first
time, in reliance on a new, as-yet-unpublished informal policy, that Garcia was not an
No. 19-3489 Cuellar Garcia v. Barr Page 13
unaccompanied alien child under the statutory definition because he was over 18 when he filed
his asylum application.
With removal proceedings administratively closed, the asylum office for Citizenship and
Immigration Services scheduled Garcia for an asylum interview in Chicago in November 2017.
However, prior to the interview, counsel for the Department of Homeland Security in Detroit
sent an email to an asylum official in the asylum office of Citizenship and Immigration Services
informing it that Citizenship and Immigration Services no longer had jurisdiction over Garcia’s
asylum application because Garcia was over 18 when he filed. Email dated Nov. 13, 2017
(Administrative Record at 1081-82). Citizenship and Immigration Services responded that
“upon further review” it agreed that it “doesn’t have jurisdiction” over Garcia’s asylum
application. Email date Nov. 14, 2017 (Administrative Record at 1081).
On November 16, 2017, based on this email exchange, the government moved to reopen
Garcia’s removal proceedings in immigration court (Administrative Record at 1077-82). On
December 4, 2017, the immigration judge summarily reversed his October 2, 2017, decision
declining jurisdiction over Garcia’s case, and granted the government’s motion to reopen
Garcia’s removal proceedings in immigration court. The immigration judge scheduled a hearing,
based at least in part on the informal email exchange (Administrative Record at 1068). Garcia
renewed his objection to the jurisdiction of the immigration court, but his objections were
overruled and his asylum application was denied by the immigration judge. Oral Decision, No.
A209-003-936 (Apr. 25, 2018) (Administrative Record at 418-27). Garcia raised his
jurisdictional challenge to the Board of Immigration Appeals, but the Board affirmed the denial
of his asylum application on October 5, 2018 (Administrative Record at 349-53). Garcia then
moved for a continuance of removal proceedings based on his Special Immigrant Juvenile status
and pending application for adjustment of status. The continuance was denied by the
immigration judge and the Board, and Garcia was deported to El Salvador in June 2019, where
he remains today.
No. 19-3489 Cuellar Garcia v. Barr Page 14
III.
It is undisputed in this case that Garcia properly received designation as an
“unaccompanied alien child” upon entry into the United States. 6 U.S.C. § 279(g)(2). The
majority argues that the immigration judge had jurisdiction over Garcia’s asylum application
because, as a 19 year old, he no longer met the statutory definition of an “unaccompanied alien
child.” But the statute addresses only the criteria that must be met initially to receive the
statute’s protections upon entry into the United States. It is silent on how and when the
designation lapses. The statute extends the one-year filing deadline for asylum applications for
unaccompanied alien children, making it reasonable to conclude that Congress knew that some
unaccompanied alien children would turn 18 by the time they filed for asylum.
Our prior decision in Harmon v. Holder, 758 F.3d 728 (6th Cir. 2014), acknowledges that
Citizenship and Immigration Services maintains jurisdiction even if the alien turns eighteen
while the application is pending. Id. at 734 (“The [statutory] section heading indicates that once
an unaccompanied alien child files an asylum application, the [United States Citizenship and
Immigration Services] maintains jurisdiction even if that person turns eighteen while the
application is pending.”) (footnote omitted citing to the 2013 Kim Memo) (emphasis added).
While the unaccompanied-alien-child designation does not last in perpetuity, Garcia reasonably
relied on the existing policy to file his asylum application at age 19 and after the one-year
deadline, reasonably believing that the protections it afforded would continue. The initial ruling
by the immigration judge declining jurisdiction over Garcia’s claim demonstrates that the
immigration court held the same view. More importantly, Harmon says nothing that would
contradict the policy of continuing the protections of the Trafficking Victims Protection
Reauthorization Act to an unaccompanied child who turns 18 after properly receiving the
designation. To the contrary, Garcia is exactly the type of arriving alien minor the statute sought
to protect.
Garcia did not receive any notice before filing his asylum application that his
unaccompanied-alien-child status had been rescinded or otherwise nullified under the new,
unwritten policy, and he reasonably relied on that status to file his asylum application with
Citizenship and Immigration Services after he turned 18. “[W]hile an agency is free to change
No. 19-3489 Cuellar Garcia v. Barr Page 15
its policies, it must address the “facts and circumstances that underlay or were engendered by the
prior policy.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009). If an agency
ignores such reliance interests, it may have “entirely failed to consider an important aspect of the
problem,” rendering the agency’s action arbitrary and capricious. See id. at 552 (Breyer, J.,
dissenting); Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 43 (1983). The manner in
which the new, as-then-unwritten and unpublished policy was applied to Garcia embodied
“arbitrary and capricious” government action.
A Maryland federal district court opinion filed in August 2019 supports Garcia’s claim
that the immigration judge should not have changed its position and asserted jurisdiction over his
asylum application. J.O.P. v. Dep’t of Homeland Sec., 409 F. Supp. 3d 367 (D. Md. 2019). On
July 1, 2019, four unaccompanied children seeking asylum filed a lawsuit against the
Department of Homeland Security and Citizenship and Immigration Services under the
Administrative Procedure Act. The plaintiffs sought declaratory and injunctive relief, claiming
that the policy set forth in the June 2019 “Updated Procedures for Asylum Applications Filed by
Unaccompanied Alien Children” would retroactively strip them of protections granted under the
Trafficking Victims Protection Reauthorization Act in violation of the Administrative Procedure
Act and the Due Process Clause of the Fifth Amendment.
On August 2, 2019, after a hearing, the court granted the motion for a temporary
restraining order, which it later converted to a preliminary injunction. The court noted that the
June 2019 memo did not address whether the facts and circumstances that underlay the agency’s
prior policy had changed, and did not address whether Citizenship and Immigration Services had
taken into account any interests of those individuals who had been relying on the prior policy in
making decisions about filing an asylum application. After a hearing, the court held that
plaintiffs and those similarly situated are likely to succeed on their claim that the redetermination
policy violates the Administrative Procedure Act because Citizenship and Immigration Services
failed to go through required notice-and-comment procedures and failed to consider reliance
interests created by the 2013 Kim Memo. The court also concluded that plaintiffs and those
similarly situated are likely to experience irreparable harm if the redetermination policy is not
enjoined, and that the balance of harms favors injunctive relief. The court explained in part:
No. 19-3489 Cuellar Garcia v. Barr Page 16
Congress has delegated authority through the [the Act] to [Citizenship and
Immigration Services] to enact “regulations which take into account the
specialized needs of unaccompanied alien children and which address both
procedural and substantive aspects of handling unaccompanied alien children’s
cases.” 8 U.S.C. § 1232(d)(8). The [June 2019 memo] skirts this instruction from
Congress that [Citizenship and Immigration Services] issue regulations to
implement procedures related to [unaccompanied alien children’s] asylum
applications.
...
Defendants entirely failed to consider reliance interests in the decision
memorandum outlining the agency’s new policy. While [Citizenship and
Immigration Services] may be justified in changing course to create consistency
between the jurisdictional determinations made by [Citizenship and Immigration
Services] and immigration judges, it needs to at least provide a “reasoned
explanation” for why it is disregarding the facts that underlay the earlier policy as
well as the serious reliance interests engendered by the prior rules. Given the
agency’s failure to do so, Plaintiffs are likely to succeed on their claim that the
redetermination policy is arbitrary and capricious in violation of the
[Administrative Procedure Act].
409 F. Supp. 3d at 377-79 (internal citations omitted).
The Maryland district court also ordered the government to retract any decisions already
rendered based on the new policy and to reinstate consideration of such cases applying
the policy in the 2013 Kim Memo. Citizenship and Immigration Services states on its
website it is reviewing all asylum applications where Citizenship and
Immigration Services determined it did not have jurisdiction under the 2019 memorandum and
will issue Notices of Re-examination of Jurisdictional Determination if jurisdiction was
erroneously declined. (https://www.uscis.gov/legal-resources/legal-settlement-notices/jop-v-us-
dept-homeland-security-et-al-information) (dated Aug. 29, 2019).4
4The website states:
On Aug. 2, 2019, the United States District Court for the District of Maryland in the case of J.O.P.
v. U.S. Dept. of Homeland Security, et. al., Civil Action 8:19-cv-01944, issued a temporary
restraining order enjoining U.S. Citizenship and Immigration Services (USCIS) from applying the
May 31, 2019, unaccompanied alien children (UAC) memorandum, “Updated Procedures for
Asylum Applications Filed by Unaccompanied Alien Children.” Pursuant to the order, USCIS
may not rely on the 2019 memorandum to reject jurisdiction over any asylum application filed by
a UAC (as defined in the Homeland Security Act, 6 U.S.C. § 279(g)(2)) under the Trafficking
No. 19-3489 Cuellar Garcia v. Barr Page 17
While the Department of Homeland Security and the immigration court did not invoke
the June 2019 policy memorandum in Garcia’s case because it had not yet been publicly issued,
Citizenship and Immigration Services declined jurisdiction over Garcia’s asylum application by
invoking the same reasoning set forth in the June 2019 policy memorandum subsequently
enjoined by the Maryland district court. The immigration judge adopted that reasoning in
reasserting jurisdiction over Garcia’s asylum application (Administrative Record at 1077-82).
Based on the injunction entered by the Maryland District Court pursuant to J.O.P. v. Department
of Homeland Security, Citizenship and Immigration Services improperly declined jurisdiction
over Garcia’s asylum application filed on August 4, 2017. Under the 2013 Kim memo, which
was reinstated by the Maryland district court, Garcia, although he had turned 19 when he filed
his asylum application, was still eligible for his application to be adjudicated by Citizenship and
Immigration Services and the immigration court should not have taken jurisdiction over it.
The majority contends that Garcia “hasn’t offered any argument based on [the injunction
issued in J.O.P.].” Maj. Op. at 4 n.1. To the contrary, the reasoning offered by Garcia as to why
the immigration court erroneously exercised jurisdiction over his asylum application and the
reasoning for issuing the injunction in J.O.P. are the same. Garcia referenced the enjoining of
the new policy by J.O.P. in both his initial and reply briefs. No “argument” is necessary because
the reasoning undergirding the government policy applied to Garcia has been enjoined. J.O.P.
orders that Citizenship and Immigration Services retract and reinstate any adverse decisions
already rendered applying the new policy. That is exactly the relief Garcia seeks.
Victims Protection Reauthorization Act (TVPRA) if that application would have been accepted
under the May 28, 2013, USCIS memorandum that predated the May 31, 2019, memorandum.
The court further ordered USCIS to retract any adverse decisions already rendered for cases
applying the 2019 UAC memorandum, and to reinstate consideration of such cases applying the
May 28, 2013, UAC memorandum, “Updated Procedures for Determination of Initial Jurisdiction
over Asylum Applications Filed by Unaccompanied Alien Children.”
In accordance with the court’s order, USCIS is reviewing all asylum applications where USCIS
determined that it did not have jurisdiction under the 2019 UAC memorandum. Applicants will
receive a Notice of Re-Examination of Jurisdictional Determination if they were notified that
USCIS declined to accept jurisdiction under the 2019 UAC memorandum.
If you believe that the court’s order in this case applies to you, and you have not received a Notice
of Re-Examination or have questions about a pending asylum application, please contact the
Director of the USCIS Asylum Office having jurisdiction over your asylum application. Please
address such correspondence to the Director of the Asylum Office and identify it with a subject
line that includes “JOP UAC issue,” followed by the applicant’s full name and A-file number.
No. 19-3489 Cuellar Garcia v. Barr Page 18
If the 2013 policy had been applied to Garcia, jurisdiction over his asylum application
would have remained with Citizenship and Immigration Services, the agency with which he filed
on August 4, 2017. And, had the 2013 policy been applied to Garcia, the immigration judge’s
ruling on October 2, 2017, declining initial jurisdiction would not have been challenged by the
government and subsequently overturned by the immigration judge based on the email exchange
between officials at Citizenship and Immigration Services and the Department of Homeland
Security in November 2017.
I would therefore vacate the Board’s order dated October 5, 2018, and remand to the
Board for review of Garcia’s asylum application under the reasoning set forth in J.O.P. v.
Department of Homeland Security. Garcia is entitled to receive a Notice of Re-Examination of
Jurisdictional Determination and he should be paroled back to the United States at government
expense. Garcia is also entitled to have Citizenship and Immigration Services assess the status of
his still-pending application for adjustment of status based on his designation as a Special
Immigrant Juvenile, which remains active.