Written by: Stephen Manning

On December 23, 2008, Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act.  William Wilberforce was an English abolitionist who waged a battle for twenty-six years to end the slave trade in England.  His efforts resulted in the Slave Trade Act of 1807 that abolished slave trade in British Empire and, then, in 1883 the abolishment of slavery in the British Empire.

The TVPRA does many notable and important things as explained by Deborah Lee, Manoj Govindaiad, Angela Morrison, and David Thronson in this practice advisory. Here at Immigration Slip Opinion, we would like to draw your attention to section 235(d)(7) of the TVPRA which provides:

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(7) ACCESS TO ASYLUM PROTECTIONS- Section 208 of the Immigration and Nationality Act (8 U.S.C. 1158) is amended–

(A) in subsection (a)(2), by adding at the end the following:

`(E) APPLICABILITY- Subparagraphs (A) and (B) shall not apply to an unaccompanied alien child (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))).’; and

(B) in subsection (b)(3), by adding at the end the following:

`(C) INITIAL JURISDICTION- An asylum officer (as defined in section 235(b)(1)(E)) shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))), regardless of whether filed in accordance with this section or section 235(b).’.

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Under 235(d)(7)(B), if unaccompanied alien child files an asylum application, the Asylum Office gets review no matter where in the process the child’s case may be.  The Asylum Office published this guidance memo with the details on the “initial jurisdiction” change.

We haven’t seen any guidance on section 235(d)(7)(A), though.  This section adds a new line to the end of the “Exceptions” paragraph in the asylum statute.  As amended, the asylum statute reads:

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INA 208(a)(2) Exceptions. -

(A) Safe third country….

(B) Time limit. – Subject to subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of alien’s arrival in the United States.

(C) Previous asylum applications…..

(D) Changed conditions….

(E) APPLICABILITY- Subparagraphs (A) and (B) shall not apply to an unaccompanied alien child (as defined in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g))).

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As we read the asylum statute as amended, it seems that any noncitizen who holds the status of an unaccompanied alien child at any time during the one-year period after his or her entry into the United States United States in the status of an unaccompanied alien minor is never subject to the one-year filing deadline.  If we understand it correctly (and we think we do), an UAC who later turns 18 or marries or waits many, many years can always file for asylum.

The statute seems plain on this point.  First, section 235(d) of the TVPRA states that the enactment is intended to provide “permanent protection for certain at-risk children.”  Second, the amended statute states simply that the time-bar “shall not apply”.  Unlike TVPRA 235(d)(7)(B) that grants initial USCIS jurisdiction to asylum applicants who are UAC’s at the time of filing, TVPRA 235(d)(7) (A) has no such limitation.  The asylum statute already contains a provision that accounts for minority status when considering whether an exception to the time-bar applies — that’s in INA 208(a)(2)(D).

We are watching for cases that might raise this issue.  We identified one at the Board, but they remanded it without a decision for additional proceedings.  If you have a case that raises this issue, please consider contacting the AILA Amicus Committee.