have thank you can't for her case number twelve thirty two sixty eight and twelve forty one seventy three f of harmon versus eric holder oral argument not to exceed fifteen minutes per side miss an asylum officer at the agency administratively shall have original jurisdiction over cases for unaccompanied alien children the most important point that i want to raise this morning children are afforded greater protection than an alien child listed as a derivative and their parents application meaning somebody who has appearance she may be applying to the child advocate and counsel to assist her in rema gratian proceedings and is excused from the one you're filing deadline and that in the next sentence the government says by way of contrast ing and the alien that has appeared with another company alien child  the alien with a parent does not entitle to any legal assistance so i just want to make it clear because if you look at the statues the government relied on only company alien children are not entitled to legal assistance there so in canada any distinction you make is that an unaccompanied alien child purportedly is is done it eighteen so to speak whereas unaccompanied child who already has the benefit of a parent or guardian they are gets protection to age twenty one can be filed on behalf of his or her parents and then gets to ride on their application isn't that your primary that's in china  financial burden because if you look at the state sections that the government sites about being entitle to legal counsel it just says access to counsel and to thirty five  says that they'll be provided access to counsel and then for two thirty five b six it says the secretary of health and human search service is is authorized to appoint a child advocate they're ok and at two thirty five c five says that the secretary of health and human services as much as practicable will try to find pro bono counsel for for the only company ilian children and they it's specifically says consistent with eight u s c thirteen sixty two which is the general right to counsel at no expense to the government that every alien has so you know that might make a significant and i you know as well had a terrible life i'm not going to tell you her story and this is something that affects so many people and i'm just privileged to be able to do this pro bono but couldn't you begin with one year timeframe for the unaccompanied at the one year after they stepped foot in united states and you see whether they apply for asylum and so this too early age to easy is like another section connected to you know the sections for regular grown ups  and so the proper way to interpret it would be to say that they also have a kind of clock and you look at the white year after they enter and you see whether they were an unaccompanied alien child and as well how you determine whether safe you know country and whether the one year deadline apply to them so that shall not language under your argument comes into play upon th one year timeframe when they become an unaccompanied alien child yes that's that's right and you know if you think about it nothing magical happens to somebody between when they're seventeen and three hundred sixty three days and when they turn eighteen and in fact they're still a child even if the immigration nationality act that the headings that congress gave although they're not part of the statue they certainly make it clear that they were expecting permanent protection for these people in terms of the the type of disability that they have that they can't get their act together to you know file this out application when they're under age eighteen those disabilities don't go away when they're you position correctly in there there is no time limit of any kind whatsoever a sixty year old person who came into this country as an unaccompanied minor child could age sixty when countering some sort of problem  have and you know is a new statue and there's no cases anywhere explaining it and i read it i was like oh my gosh he can apply for asylum he's forty years old and the government in that case actually agreed with the interpretation and then he but the court in the exercise of caution they issued a show whether they said file asylum and see what happens and we did he got an appointment and he actually showed up in the end they said oh wait a minute you still haven't open case so after that's terminated we will you know here you are silent location and they even sent us a letter saying that which is at the record of twenty four and i know that the is the way that the asylum office the agency that is the expert in asylum is is is a mystery is that they're letting those people you know forty year old apply for asylum but i guess that and actually when i got the order  absolutely i mean even in the house and senate early version of the bill it always said both sides permit protection for risk children and it makes sense that these people need that kind of protection because they have a lot of you know they could have i mean like take ms harman you know she she was raped she lost her parents which she was very very young she couldn't even you know even though her brother helped her apply for t p s which is especially for people  she couldn't handle it your position is have affectively says there's this one year rule for asylum and when you walk into america as an unaccompanied alien child and you qualify as an unaccompanied alien child then the statutory language says that one year provision in the statute no longer applies that's correct ever ever that's correct and that has how it has been interpreted in real life in the alley him case for example thank you and i just want to mention in terms of like there are several criteria for state more deference in case you give the agent agency you know thoroughness of their consideration ability of their reasoning you know for example in the second b a opinion they said something about all the statues about putting people in fluster carry can't possibly have to do with this even the government didn't mention anything about you know foster care really an issue i mean i don't think that anybody would say that those you know sixty year old would go into foster care we're only talking about the one year deadline and also where the case should be and the reason it should be at the asylum office is because it's not at risk area there's no prosecutor you know scaring the person cross examining and even though they're setting or make us brief would suggest that that wind which could could partake of a different interpretation that five year old i has a temporal component correct that they they they they said that i'm referring to another i mean they might have said that but i don't i think that that's wrong good morning may it please the court kelly wallace for the attorney general the plain language of the t v p r a which is how all refer to the at the trafficking victims protection act states that it applies to aliens who have not attained the age of eighteen because it is harmon was twenty three years old at the time she filed her asylum application she did not qualify as an unaccompanied alien child and thus the t v p r a burden of proof and jurisdiction provisions do not apply to her the one year clock clear and convincing evidence that the application has been filed within one year after the date of the aliens arrival in the united states what the t v p r race did is simply take that burden away from an unaccompanied alien child to show their of entry into united states except that the statutory language is so paragraphs and to be shall not apply to an unaccompanied alien child the only place that that one year time limit is it is in paragraph be so if those no longer apply then there's no time limit it's how can that just be a burden of proof when the time limit no longer exists because if you read it it's not really a time limit it's that they alien that sub that subparagraph be actually it's not really a clock it's everyone thinks of it as a clock because of what they actually need to show but if you look at what it says it says the alien must show by clear and convincing evidence that the application has been filed within one year so what it actually what removing the per that requirement does is mean that that unaccompanied alien child does not have to show by clear and convincing evidence that they  they're filed their application within one year they don't have a burden of proof to show any entry they so it's simply the burden of proof it's not a one year clock where do you get the one year timeframe which is what you want to say you cannot do and i'm saying that it is in that same subpar graph b well how does that not go well what if it doesn't apply and you get to keep the one year time for any and get rid of the so and i don't company daily in child does not have to show by clear and convincing evidence that they filed their asylum application within one year of entry an unaccompanied alien child is defined as an alien who has not attained to the age of eighteen attained the age of eighteen they are no longer an unaccompanied alien child and therefore it's a paragraph b does apply to them so that's why i'm saying it's actually a burden of proof provision rather than we're not counting a clock or saying when you show up in immigration court or are first before the asylum officer you unaccompanied alien child are exempt from this burden of proof provision assuming there are form i have no idea if there is when did you could have shown up last week but we can make up a hypothetical that the alien entered by himself at age ten and at age seventeen he somebody helped him out and said hey you should really file for asylum the seven years it doesn't matter he's still under the age of eighteen he's not attained the age of eighteen therefore assuming he's unaccompanied and that's not an issue in this case he he benefits from the t v p r a burden of proof provisions because he doesn't have to show one year  within one year of entry but if he is no longer an unaccompanied alien child if a live in fifty eight to be does not apply to him because it shall not apply to an unaccompanied alien child so if he is no longer and i unaccompan regarding children who are accompanied by parents and came and wide on their parents application made up one made on their behalf until they're twenty one and then can continue to ride as their parents application is pending so while there's a again only refers to unaccompanied alien child children so children who don't have a legal gardening guardian of the that's the distinction it seems to me that what we have is this new wilb force william wilberforce act that is created to address a very particular problem children who come to america without anyone to guide or guard them and  already existed at that time was a provision that say that protected that and i build them to come in and address their minority or address i think mental status that forgotten the other arm of that so you said the exceptions to the one you had already exist why who what would congress have been doing if what they already had took care of the exact same issue it didn't though this is the difference is this burden of proof provision does not ever apply to an unaccompanied alien child if they are an unaccompanied alien child at the time the application is filed because that's what is required so it shall not apply to an unaccompanied alien child let's say we've got an alien like ms harman who came in as an unaccompanied alien child but waited until she turned twenty four almost twenty four to file her asylum application she can still benefit from the preexisting regulations and  provisions because she can show that she is accepted or has an excuse for filing late not that she's completely exempt from it but that she has to show that because of her minority she did not file within one year in her case she's going to have it would be a little bit trickier because she waited almost the age of twenty four so she's really going to have to show from when she entered a ten to eighteen which she didn't file because of her minority and then from eighteen to twenty three but some other reason  the question because the issue is you have this protection in place for congress this is not good enough we are going to do something else for children who come to our shores unaccompanied and bayer the scars and the burdens of where they kind prom so we are going to give them something more to maybe it doesn't answer the question to psycho you still have the earlier one question is congressional intent what did they intend to get to that already existing protection with this because if they added nothing which somewhat appears to me to be your argument  then then the act is illusory it doesn't provide there's no construction that's providing in the thing where congress clearly took something up with the intent of providing additional permanent protection know and i'm sorry perhaps you've misunderstood my argument and alien who is not attained the age of eighteen doesn't have to show any proof whatsoever of their time of entry and when their asylum application was filed that's what the t v p r a dead an alien who is over the age of eighteen regardless of whether or not they were accompanied or unaccompanied when they enter the united states still has to show proof of entry and they have to show some sort of disability whether it be minority mental capacity hospitalisation something that prevented the filing and they still have a burden of proof to show that when they entered and when their asylum application was filed and why they didn't file it within one be but if minority is a given provision but then then you already have a of that protection no because that would only get the to eighteen and what we're saying is for the children who have not so you got the fifteen year old that's arguably a very different situation than a twenty three year old so the fifteen year old doesn't have to show that they jumped on the train in mexico and rode up to the border and snuck across were not requiring that of the fifteen year old the twenty three year old were saying look you've been here for you know however long and miss harman's case fourteen years nearly that you need to have some evidence of what was going on in your fourteen years here because now you are an adult and as an adult you have many more responsibilities than child under eighteen fourteen years old is that for the five years she would the one year requirement still applies but her minority could serve as an an exception to it but that's i'm saying in ms harman's case she would have to show from ten to eighteen that could be a minority but eighteen to twenty four that's going to be have to be something else i think that if we look at the whole t v p r a we also see that it clearly was intended to apply to minor children not people who are forty wanting to file an asylum application after living in this country for over three decades and why did we apply to mr allen we have some significant concerns discussing the specifics of mr all the hounds case there are very stringent confidentiality requirements regarding asylum cases and while i know ms lewis was the counsel of record on that case there's and been nothing presented from mr ali him releasing her to discuss the specifics certainly because but i am no longer an unaccompanied alien child i want to file for asylum where do i file you must file in asylum court since you are not an unaccompanied alien child at the time of filing your asylum application and you are in removal proceedings u s c i s does not decided to take that case that was their decision but it's quite clearly laid out and their memory that's been published on their website sense the t v p r i went into effect and it does not apply to aliens over the age of eighteen at the time they filed for their asylum application and in fact if you read the t v p r i as a whole it simply makes no sense to apply it and that's in that fashion and that's why you can't but if we are attempting to congressional intent it's not impossible in your view that congress could have decided we have a group of people that come in his children under incredibly trying circumstances and we are willing to give the one year asylum filing time frying for them for life i've read i could do that they could but they did not here they did not that's the question isn't it now and i mean i think if you really read it what how unaccompanied alien children are to be treated they get protection by health and human services they do get the secretary of health and human services actually says it shall ensure to the greatest extent practicable that all and accompanied alien children are are have access to counsel for all that accompanied alien children if we were if we accept ms list as a definition of all unaccompanied alien children as including those who have already turned eighteen then we're giving access to counsel to know my problem is i think it's two million i'm struggling with the actual interpretation of the statutory language because it's not necessarily that these people remain an unaccompanied child it's the act say is there is this time limit and when you become an alien chow that time limit goes away permanently now that doesn't make them have to have all of the requirements when they're forty of an unaccompanied alien child it simply says that congress had a time limit and said for those people will remove the time limit period respectfully i disagree your honor what it actually says  be referring to the one you're filing application deadline shall not apply to an unaccompanied alien child an unaccompanied alien child is defined as an alien who has not attained to the age of eighteen but i did you reach the  your brief time frame that you said she had to file for one of ninety eight to the brief indicated that she did not file within her filing deadline which is for one of ninety five believe that was it would have been or eighteenth birthday exactly they're for she can never applied for a slow no not at all she's just she gets the benefit of the preexisting i c regulations which allowed her to show that her minority was a mind are not your brief and she'd been in the united states for four years her visa had been expired for three years but it was four years before she turned eighteen so why would ninety eight be a timeframe which might otherwise preclude her successfully applying because she hasn't clearly convincingly showed it within one year she can say but i was confined cabin or whatever or i was it institution or whatever the circumstance might be that could toll who could permit her them  yes and that's in fact actually what happened in this case she presented her asylum application the immigration judge found it was not filed within the one year period and he considered her claim for withholding of her more own protection under the convention against torture and found she failed to meet her burden of proof for those that status when you become an adult and then you have to show some other basis or justification for the delay in filing your petition and minority can count for part of that time ok yeah i mean she basically after the age of eighteen is in the same position as any other ilian adult trying to file for asylum she's not prevented from doing a good job i'm sorry except kind of company child well that's why i said  e that an alien adult she's in the say after the age of eighteen it's as if she was any other adult alien applying for asylum she gets all the same benefits under the act she has the regulator up to an adult  accompanied by his or her parents because their psych told twenty one well but see that can also work both ways because that is that that child has to rely on his parents who may not have an attorney who may not file the best application who may basically have just been kind of spinning wheels while he was waiting to be twenty one until he was twenty one so then he's going to have to show from eighteen to twenty one why he didn't file as asylum application which will probably be because he was hopefully rely on his parents successful application but he does not he is still at some point going to have to show why he didn't file the application so in a sense it's not really any while will he's got three years more for his parents to file on his behalf if the your filed and applying he gets to stay in america until they are application is resolved beyond his twenty one years so he or she has his until that whole system plays out and then has the opportunity to come forward under the old rules right i think essentially what you're asking is can alien now adult former child on his parent's application can that person file his own application after all of that his plight out what we're talking about is is this equality under treatment or inequality there from eighteen to twenty one that said you're concerned the larger category is this this is so small i can't even tell you most of these are screened this is the first case i've had that this situation comes up we screen our cases and if there is someone who qualifies as an unaccompanied alien child we remained it to the board to send it to the immigration judge for a determination of unaccompanied alien stat unaccompanied alien child status and if the i j a makes us factual findings then in the cases administratively closer terminated and then it is referred to c i s that is the normal process that case that muscle is referred to was unusual in that the court had actually issued an order to show cause so most of these are getting circumvented before briefing the courts not even seeing them but i  mean i'm going to say a handful like that you know in the office you know release i personally carry fifty to one hundred cases at any given time i've maybe had three in the last you know since two thousand and nine so it just doesn't for the waiver of that time canada now she's got the equivalent of asylum there she's under no threat of being removed to liberia and she'd had she didn't even her quest to stay over move on from this court if she was so fearful of going to liberia instead she just went back to canada where she had tried to go in two thousand and seven and were eight of her siblings live so i guess i would also ask the court if this is the appropriate case to reach this issue given that miss the miss harman really has no fair return at this point thank  you first of all i want to mention that there is no federal judicial review about the board's decisions on timeliness of asylums applications whether the there was a mistake about whether she should have been granted an extraordinary circumstance the court no court can review that that's pretty significant and that's another reason which i think i didn't even think of before you know of your application you don't have to have to meet that requirement if you are an unintended alien child you know if you don't have to file if you come in age for fourteen or whatever you don't have to file within one year unlike the situation if you come at age twenty four age eighteen you do have to show clearly and convincingly that the application is f well you know whenever you come seventeen three hundred sixty four days we're not going to be concerned when you showed up you can father asylum application eighteen and one day  circumstance not for example ms harman couldn't have you know we can we know that she had couldn't get together her t p s application so why do we think she should have been able to get together and sign of application in the government type and that's different for  you still have the opportunity to explain why it was he did not he's incapable of meeting the burden of proof the circumstances render him incapable of doing so but he still has the opportunity to say you know i was incapacitated or whatever or whatever and that's why i didn't i cannot do that part of my application somebody who comes in is as an adult it's presumed that they should know that they should apply for asylum and they can say well i didn't know you had to apply for one year that's like very clear in case law but let's say somebody came in when they're ten they're there are they going to be thinking about asylum when they turn eighteen and one day old howard how is it going to end they don't have parents how do you come to their mind that they should even apply for and the child becomes a child in the generic sense  arrives on his eighteenth birthday and knows no more is no more aware or alert or attentive than the child who has been here for several years without candidate for asylum ok let us assume that that's part of the issue i mean why should the person who came here as an unaccompanied child at whatever age have a benefit upon reaching majority lifelong opportunity to claim asylum to avoid being deported removed is an eighteen year old who leaves the home country under the same circumstances and has a bonafide equally bonafide a claim for asylum has a greater congress had to make an age cutoff and that they felt it was that you know it is a typical it's kind of like a lot of things and that you know i maybe to some extent it's arbitrary or you turn a lose the opportunity  if somebody makes an admission that until a certain age they can't make admissions and then you have to after they're sixty they maybe they can add or maybe sometimes they can you can serve notice on a sixteen year old immigration court but you can't serve it on some  someone other hundred eighteen and there's quite different you have to give it to their guardian you know so i guess you have to have age cutoffs but you know congress here you know you know wanted to protect the vulnerable they had to make a cutoff in up i think that like other benefit you're telling me about i think that evaporate once you reach a certain milepost because now you presume to be able to handle the matter for yourself the  companied alien child who applies before there is a particularly savvy child most children would not be aware that and often they're in custody the reason that they are applying why congress the liberally would extend a benefit to a twenty four year old who has been an adult for six years that it would not extend to a twenty four year old government said what their position was about the interpretation of temper before this case and also in the government's hypothetical they said something like at seventeen someone might help them out apply for asylum even in their own in the government's own hypothetical that they made up here they were saying that somebody help the person do it it's ok we thank you