J.O.P. v. U.S. Dept. of Homeland Security, et. al., Information

ALERT:  The District Court for the District of Maryland has certified a class and entered an Amended Preliminary Injunction in the case of J.O.P. v. U.S. Dept. of Homeland Security et al., Civil Action 8:19-cv-01944 (PDF, 57.46 KB). USCIS has been enjoined and restrained from applying the May 31, 2019, memorandum, “Updated Procedures for Asylum Applications Filed by Unaccompanied Alien Children” (2019 memorandum). USCIS rescinded the 2019 memorandum as of issuance of the initial temporary restraining order on Aug. 2, 2019. USCIS will apply its May 28, 2013, memorandum, “Updated Procedures for Determination of Initial Jurisdiction over Asylum Applications Filed by Unaccompanied Alien Children” (PDF, 558.52 KB) (2013 memorandum) when making determinations about whether it has jurisdiction over asylum applications as applications filed by Unaccompanied Alien Children (UAC). Until further notice, USCIS has agreed not to make jurisdiction determinations under INA section 208(b)(3)(C) that rely solely on a UAC redetermination noted in ENFORCE Alien Removal Module (EARM) or other ICE or DHS systems as terminating a prior UAC determination, unless it documents that ICE placed the individual in ICE custody as an adult detainee. While this agreement remains in effect, USCIS will place on hold cases involving any other act that might qualify under the 2013 memorandum as an affirmative act before filing.

On Dec. 21, 2020, the District Court for the District of Maryland certified a class and entered an Amended Preliminary Injunction in the case of J.O.P. v. U.S. Dept. of Homeland Security et al., Civil Action 8:19-cv-01944. The class is defined as all individuals nationwide who, before the effective date of a lawfully promulgated policy prospectively altering the policy set forth in the 2013 Kim Memorandum:

  • were determined to be an Unaccompanied Alien Child (UAC);
  • filed an asylum application that was pending with USCIS; and
  • on the date they filed their asylum application with USCIS, were 18 years of age or older or had a parent or legal guardian in the United States available to provide care and physical custody, and for whom USCIS has not adjudicated their asylum application on the merits.

The Amended Preliminary Injunction enjoined USCIS from deferring to EOIR determinations in assessing jurisdiction over asylum applications filed by UACs in removal proceedings. We will retract any decision issued on or after June 30, 2019, for cases in which a lack of jurisdiction notice was issued due to an EOIR determination that the applicant was not a UAC at the time of filing. USCIS is further enjoined from relying on the 2019 memorandum to decline jurisdiction over asylum applications of individuals previously determined to be UACs and from subjecting such asylum applicants to the one-year time limit for filing described at 8 U.S.C. § 1158(a)(2)(B). The court also ordered us 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” (PDF, 558.52 KB).

In accordance with the court’s order, we are reviewing all asylum applications where we determined that we did not have jurisdiction under the 2019 UAC memorandum or deferred to an EOIR assessment of jurisdiction. Applicants will receive a Notice of Re-Examination of Jurisdictional Determination if we declined to accept jurisdiction over their asylum application for one of these reasons.

Until further notice, we have agreed not to make jurisdiction determinations under INA section 208(b)(3)(C) that rely solely on an UAC redetermination noted in ENFORCE Alien Removal Module (EARM) or other ICE or DHS systems as terminating a prior UAC determination, unless it documents that ICE placed the individual in ICE custody as an adult detainee. While this agreement remains in effect, we will place on hold cases involving any other type of act that might qualify under the 2013 memorandum as an affirmative act before filing.

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-Number.

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