In October 2018, the Board of Immigration Appeals (BIA) issued a published Matter of M-A-C-O-, which will have the effect of preventing certain young immigrants from having their claims heard in the first instance by the asylum office. An Unaccompanied Alien Child (UAC) is someone under the age of 18 with no legal status and who has no parent or guardian with them. Most Safe Passage clients are designated UACs upon entry. UAC designation is important because UACs have their asylum claims heard first by the asylum office, a non-adversarial setting, even though they are in removal proceedings (adults in removal proceedings have their asylum claims heard during an adversarial trial against an ICE prosecutor). Prior to M-A-C-O, UACs who turned 18 before filing their asylum applications and who had not been officially stripped of the UAC designation by DHS were still able to take advantage of UAC asylum protections. M-A-C-O, however, gives immigration judges the power to determine whether a young immigrant previously designated a UAC remains a UAC, and therefore whether the asylum office or EOIR can hear their asylum claim in the first instance. The decision goes on to say that a previous designation of a young person as a UAC is not “binding” on immigration judges.
Despite this tough language, UACs who turn 18 should not assume that they have been automatically “de-designated.” Rather, advocates should make the argument that M-A-C-O- stands for the proposition that an immigration judge can de-designate a young person, but that the de-designation is not automatic. There is a strong argument that until an immigration judge formally de-designates a UAC, that young person should still be able to have their claim heard in the first instance at the asylum office.