Ted Kim Made it easier for individuals to claim unaccompanied alien child (UAC) status and gain access to the asylum process by getting rid of extra inquiries when he authored what has now become known as the “Kim Memo” in 2013. The memo stated that USCIS will no longer question an asylum applicant about whether or not they are legitimately a UAC if CBP or ICE had already initially made a determination that they are a UAC. This has the effect of giving that initial CBP or ICE decision much weight, effectively transferring jurisdiction for a removal proceeding from an adversarial hearing with an immigration judge, to a much more lenient, non-adversarial USCIS asylum officer, all based on that initial UAC determination. Importantly, that initial UAC determination holds even if “there appears to be evidence that the applicant may have turned 18 years of age or may have reunited with a parent or legal guardian since the CBP or ICE determination”:

In cases which CBP or ICE has already determined that the applicant is a UAC, Asylum Offices will adopt that determination and take jurisdiction over the case...

…In these cases the Asylum Office will no longer need to question the applicant regarding his or her age and whether he or she is accompanied by a parent or legal guardian to determine UAC status. If CBP or ICE determined that the applicant was a UAC, and, as of the date of initial filing of the asylum application, that UAC status determination was still in place, USCIS will take initial jurisdiction over the case, even if there appears to be evidence that the applicant may have turned 18 years of age or may have reunited with a parent or legal guardian since the CBP or ICE determination. Generally, an Asylum Office should not expend resources to pursue inquiries into the correctness of the prior DHS determination that the applicant was a UAC…

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In an opinion in the case J.O.P. v. US Department ofHomeland Security, a case alleging that “that the government unlawfully modified policies governing treatment of asylum applications by unaccompanied immigrant children ("UACs") in a May 2019 Memorandum,” US DistrictCourt Judge George Hazel noted the importance of a UAC determination in the removal process:

… UACs are unique among asylum applicants in that, under theTVPRA's initial jurisdiction provision, USCIS has initial jurisdiction over their applications even when removal proceedings have been initiated. The statute also exempts UACs from the requirement that a potential asylee file an application within a year of arriving in the United States. See 8 U.S.C. §1158(a)(2))(B), (E). Therefore, whether an applicant is considered a UAC can have a significant impact on his or her progression through the asylum process—this status determines whether the asylum application is adjudicated byUSCIS after a non-adversarial interview or by an IJ in adversarial removal proceedings…

Judge Hazel then went on to note that the “2013 Kim Memo”had the effect of USCIS adopting CBP or ICE UAC determinations “without another factual inquiry”:

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…USCIS adopted this recommendation in a May 28, 2013 memorandum by Acting Asylum Division Chief Ted Kim ("2013 Kim Memo"),which modified the procedures established in the 2009 Langlois Memo. ECF No.91-4 at 2. Under the new policy, in cases in which CPB or ICE had already determined that an applicant was a UAC and that determination "was still in place on the date the asylum application was filed," USCIS would adopt that determination without another factual inquiry…

The Kim Memo makes it easier for individuals to claim UAC status without significant scrutiny from USCIS, and may have the effect of increasing illegal immigration to the US, as UACs referred for removal proceedings will have non-adversarial hearings with USCIS asylum officers.

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In a panel with the Migration Policy Institute in November 2021, Ted Kim was questioned as to what reforms he would like to see made to improve the immigration system. Notably, he did not talk about tougher enforcement, but instead, said that the government needs to provide “robust legal pathways” for migrants. Kim boasted that USCIS had “restarted and expanded” the Central American Minors Program for children to receive protection and unite with parents in the United States, which opens the floodgates for more children to come to the country.

Kim also noted efforts by the Administration for individuals screened into expedited removal to have access to have asylum claims heard by a non-adversarial USCIS asylum officer rather than an adversarial immigration judge: (source)

(27:50)

We also, as the blueprint states, need to provide robust legal pathways, so that

migrants can have different alternatives than just coming by way of smugglers through

the border. So in RAIO's world, we've restarted and expanded the Central American Minors Program to provide children the opportunity to receive protection and reunite with parents in the United States, we've expanded it to include additional categories of eligible US based relatives in addition for their children. And finally, and there's more to this blueprint but the one I'll conclude with is it includes a new rule that USCIS is responsible will be responsible for implementing a proposed rule that DHS and DOJ published a few weeks ago that would amend their regulations so that individuals screened into expedited removal who are found to have a credible fear could have their claims for asylum withholding of removal or convention against torture protection initially adjudicated by USCIS asylum officer through a non-adversarial proceeding as opposed to by an immigration judge and immigration court.

Further on, Ted Kim was questioned about his comments that he thought that the expedited removal statute was outdated. Kim clarified that he didn’t think that exception to removal for asylum seekers was the problem – which has the effect of encouraging bogus asylum claims en masse – but rather, that the screening and detention process needs to be updated to handle the mass amount of asylum claims, and not only “the pockets of people that I think the original statue was intended for”:

(44:00)

Questioner: So yes, so Ted, you've got a question that was asking you about-- I know you're

not surprised to have a question, Ted. But you've got several, but you've got one that was asking, because you think the expedited removal statute is outdated, the exception for asylum seekers was designed for a past era, the questioner is curious about what changes you would recommend to the expedited removal statute.

Kim: Thank you for the question, Jessica. And it's a great, great one. And it really gets to the heart, I think, of our conversation about what is needed to change the current situation because the current system is clearly falling short. Just to clarify, what I meant to say was, I think the statute is outdated, not because of the exception, but because of the structures it creates, you know, as far as detention and this screening process and all of these handoffs. I think that system worked, maybe for the first, arguably for the first 10 or 15 years, but in the last seven or eight years, when we are seeing like large volumes of asylum seekers come through the process. the process has trouble absorbing those numbers and the demographics. So, I don't have any specifics. I would just say that if there were an overhaul to this statute, it should be able to address mass migration situations, and not just, you know, the pockets of people that I think the original statute was intended for and not to, you know, set up a process where, you know, it immediately kind of gets stressed when it sees bigger numbers…

This is a tacit admission by Ted Kim that the asylum system is being widely abused – his comment that “it should be able to address mass, and not just, you know, the pockets of people that I think the original statute was intended for” shows that he believes the asylum process should not be a rare event for the most critical cases of legitimate claims, but instead pseudo-mass immigration system for anyone that wants to make a bogus asylum claim.

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