The 21st Birthday, Hailed by Most, but Dreaded by Some Aliens

By David North on June 6, 2012

One's 21st birthday is routinely a time for celebration. One is old enough to buy liquor and is regarded by most laws as an adult, with all its rights and responsibilities. When I was younger the birthday also meant that my peers and I could vote.

That birthday, however, is a day of dread for some aliens, because it marks the end of some migration rights that go to children, but not to adults. If you had a right to some immigration benefit that you lost on this birthday you have, in the jargon of the trade, "aged out".

The trend in the immigration business as currently managed, however, is that some of the disadvantages of turning 21 are being blurred or overruled as part of what looks like an ongoing process of encouraging immigration of all kinds by redefining terms to suit the needs of aliens. Sometimes this is done by law, sometimes by administrative fiat, and sometimes by the courts. Here are some recent samples of this trend.

The Abused "Child". The specific facts are often distressing, as they are in a case decided by USCIS's in-house appeals body, the Administrative Appeals Office (AAO), on August 11, 2011. (In the tradition of the agency, it was published only recently.) The nameless illegal alien (AAO scrubs everyone's names from case files, even those of the judges) now 26 or 27, was four years old when his parents smuggled him into the country. His father, a green card holder, filed a petition for his son's admission as an immigrant in 2000, 11 years after his arrival, when he was 15. The petition was approved four years later, when the young man was 19, but for reasons not made clear in the decision, that 2004 approval did not legalize the petitioner's presence in the United States.

In 2009 when he was 24 years old, the young man filed a petition (I-360) for a green card admission as an abused child, arguing that his father's continued abuse (and his abuse of his mother) had caused a delay in his filing. One is supposed to do this before the magic 21st birthday.

This claim was initially rejected at the staff level, as "untimely", but supported by the AAO on the grounds that the father's abuse had been one of the major causes of the delay in filing.

There were other complications: The mother had secured a protective court order vis-a-vis the father; the father's one-time immigration lawyer had destroyed the file; the father had refused to help his child's immigration case because the young man had supported his mother in a call to the police for help; and so on. I am not sure what the decision should have been, but it certainly is part of a larger trend.

The Child of the Asylum Applicant. In this case, decided in May by the Board of Immigration Appeals (BIA, yet another immigration appeals tribunal with a different set of responsibilities), a child of a once-failed El Salvadoran asylum applicant was found eligible for relief. The applicant's case — she was 16 when she first applied for asylum with her mother in 2005 — was at first rejected. Then time passed and her mother's application was accepted on appeal, but the daughter's was rejected because by then she was over 21. Then the BIA stepped in and, in the decision Matter of A-Y-M, said that her age was in effect frozen at the time of her first application, so now that the mother was accepted for asylum, the child should be, too.

Had the daughter married prior to the BIA decision, she would have been out of luck, because her right to remain a "child" for asylum purposes applies only to unmarried people.

Young People in the Custody of Juvenile Courts. The administrative decision in this case deals with a whole class of young people — those dependent on or in the custody of the juvenile courts. Many, but not all, of them are both juvenile delinquents and illegal aliens, but if they can make a case that they have been abandoned or neglected by parents (presumably aliens as well) they can get their green cards as Special Immigrants within the employment-based provisions of the INA.

The USCIS decision was that if they filed their papers before their 21st birthday, they could get the benefit even if the agency decisions were made after that birthday.

Note that all three of these actions related to victims of various kinds; such persons (refugees, asylees, crime victims, trafficking victims) all play major roles in our immigration policies.

Meanwhile, Former University Students. These just-described three rounds of "you're-still-a-child-when-you're-not" decisions have a parallel with the much larger-scale Bush II and Obama administrations' decisions that "you're still a college student when you're not". This is a reference to the Optional Practical Training program (OPT), which gives cash subsidies to U.S. employers hiring foreign — rather than American — graduates in a long list of occupations.

The subsidies stem from the fact that even off-campus alien college students do not pay payroll taxes, nor do their employers. The latest round of these OPT decisions were described in a previous blog. This program plays off the DHS power to define foreign college students to include, in these cases, aliens who left college as much as 29 months earlier.

All of these contrary-to-fact rulings, though the specifics vary, lead in only one direction: more migration by more people.