It Takes a World to Raise a Child

 [*2]  I. INTRODUCTION

Currently, at least one person out of twenty-one people in the world is a refugee or displaced person. 2 According to the Office of the United Nations High Commissioner for Refugees (UNHCR), more than half of the world's refugees are estimated to be children under the age of eighteen. 3 Fifty-six percent of the refugees are children between the ages of zero and seven. 4 One third of all the refugees leave their country of origin and enter another country's border to seek safety. 5 The United States Supreme Court acknowledged the influx of unaccompanied minors seeking asylum in the United States when it stated that "the INS arrests thousands of alien juveniles each year (more than 8,500 in 1990 alone)--as many as 70% of them unaccompanied." 6

Notwithstanding the increased procedural protection the Immigration and Naturalization Service (INS) afforded unaccompanied minor asylum seekers through the promulgation of Guidelines for Children's Asylum Claims, these minors still are not afforded proper substantive protection under the Immigration and Naturalization Act (INA). In Cruz-Diaz, the Fourth Circuit of the United States Court of Appeals held that in "the absence of statutory intent to apply a different standard to a juvenile . . . we are not at liberty to substitute a different interpretation." 7 Thus, unlike other areas of American jurisprudence, minor asylum seekers are held to the same legal standard as adult asylum seekers. The uniform application of the well-founded fear legal standard to determine asylum eligibility may have led to the denial of unaccompanied minors' asylum applications, notwithstanding the humanitarian policy underlying American asylum law and the heightened sense of persecution and  [*3]  vulnerability of unaccompanied minors.

Those unaccompanied minors who reach America have often arrived alone because they fled their country of origin without their parents, were sent ahead of their parents with the assumption that the parents would follow, or because they were accidentally separated from their parents during flight from their country of origin. 8 Once these unaccompanied minors enter the U.S. border, and either make themselves known to the INS or the INS learns of their illegal presence in the U.S., the unaccompanied minors enter the immigration legal process to adjudicate whether they will remain in the U.S. or be deported to their country of origin.

The purpose of this article is to argue that minor asylum seekers should not be held to the same legal standard as adult asylum standards for the following reasons: (1) American jurisprudence has historically applied a different legal standard to children based on their status as children; (2) the humanitarian policy underpinning asylum is furthered by granting sanctuary to children in light of the children's heightened sense of vulnerability and limited ability to cope; and (3) international law supports a change in the INA to apply a child sensitive legal standard.

Part II of the article discusses the policy underpinning U.S. immigration law and asylum law. 9 Part III is a brief survey of the well-founded fear component in the analysis of an asylum seeker's eligibility. 10 Part IV outlines two fourth circuit cases that applied the same objective legal standard in the well-founded fear analysis to a juvenile asylum seeker. 11 Part V surveys the psychological effects children of human rights abuses endure. 12 Part VI discusses the INS's Guidelines for Children's Asylum Claims that were promulgated in 1998 with the intent of providing a child friendly atmosphere for the child applicant's asylum hearing. 13 Part VII surveys areas of American contract law, American tort law, and American criminal law and concludes that in these three areas minors are held to a legal standard that takes into consideration their cognitive, emotional and physical development. 14 Part VIII looks at international law to determine the standards that children are held to. This section specifically discusses the United Nations Convention on the Rights of the Child and the legal standard the Convention implements in dealing with children's legal claims. 15 Finally, Part IX offers policy alternatives to change the current standard applied to minor asylum seekers, in an attempt to bring U.S. asylum law into alignment with other areas of American jurisprudence and international law. 16

II. U.S. IMMIGRATION POLICY

A sovereign state retains the fundamental right to control its borders, decide who can legally live within its borders, and define which individuals within its  [*4]  borders are citizens. 17 In the United States, Congress controls the country's borders and substantially impacts America's culture, economic stability and political tone through its immigration policy. 18 The immigration policy Congress enacts to govern the arrival of foreigners into America is inherently discriminatory because immigration policy allows some foreign nationals to enter, while keeping others out. 19 Immigration policy is geared towards determining the basis on which the United States Congress and citizens choose whom to admit and whom to exclude from its borders. 20

There is currently immigration legislation introduced in the U.S. House of Representatives to place a moratorium on immigration by aliens other than refugees, priority workers, and the spouses and children of United States citizens. 21 The Mass Immigration Reduction Act was predicated on policy concerns that increased immigration rates have adverse effects on the employment market and working conditions of American citizens, the ability to maintain Federal environmental quality standards, and the stability of the public school systems and public hospitals in areas where immigrants are likely to settle. 22

The adverse U.S. immigration policy began in the 1970's when the media, public opinion, and government began to articulate their disfavor of America's liberal immigration policy. 23 As such, Congress began to curtail the immigration laws and to decrease the number of immigrants entering each year. 24 Public opinion continues to advocate for even more restrictive limits on immigration. 25

Immigration was decreased for several reasons. The first, and most frequently debated reason, was that the current immigration level presented an economic disadvantage to American citizens. 26 Other public policy concerns include the strain immigrants place on the nation's public services, the belief that immigrants do not contribute to American society, 27 and the immigrants' inability or unwillingness to assimilate to American culture. 28

Humanitarian and foreign policy reasons are the impetus for admitting foreigners into the United States under the asylum provision of the Immigration and Nationality Act (INA). 29 In its 1997 report to Congress on Immigration Policy, the U.S. Commission on Immigration Reform stated that asylum and "refugee admissions [are] based on human rights and humanitarian considerations, as one of  [*5]  the several elements of U.S. leadership in assisting and protecting the world's persecuted." 30

III. U.S. IMMIGRATION LAW

The United States Congress, through constitutional mandate, 31 regulates the country's immigration policy and rates through the Immigration and Nationality Act (INA), which is sporadically codified in Title VIII of the United States Code. The INA is a complex Congressional Act that allows foreign nationals to enter the United States for a stated period of time, indefinitely, or permanently for specific statutorily defined purposes. 32 8 U.S.C. § 1158 statutorily defines asylum as one of the immigration statuses that allows a foreign national to enter and remain in the United States permanently.

A. U.S. Asylum Law

An applicant may be granted asylum in the exercise of discretion if the applicant meets the statutory definition of "refugee." 33 A refugee is defined as:

Any person who is outside of any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 34

When the applicant has met the definition of refugee, the applicant merely becomes eligible for asylum. 35 The actual grant of asylum remains within the discretion of the Attorney General. 36

In the context of the refugee definition, persecution is defined in terms of what a reasonable person would deem "offensive"; therefore, it is not necessary that the persecuting government intended to inflict punishment or harm on the asylum applicant. 37 The well-founded fear standard contains an objective and subjective component. 38 Fear is the subjective component and requires only that the applicant actually experience fear from the state's actions against the applicant in the applicant's country of origin. 39 The well-founded language requires an objective analysis of whether the applicant's fear is genuine and requires the applicant to show that a reasonable person in the applicant's circumstances would fear persecution if  [*6]  sent back to the applicant's home country. 40

To meet the definition of "refugee" and become eligible for a grant of asylum, the asylum applicant's must fear persecution from the government of the applicant's country of origin on account of the applicant's race, religion, nationality, membership in a particular social group, or political opinion. 41 Race as a statutory basis for requesting asylum has not been heavily litigated, but the relatively little case law does support that the applicant must show that the government of the applicant's country of origin participated in conduct that caused the applicant to fear persecution on account of race. 42 To receive a grant of asylum based on a well-founded fear of persecution motivated by religion, the asylum applicant must establish that he faces persecution on the basis of his religious beliefs in the country of origin. 43 The International Religious Freedom Act of 1998 ("1998 Act") 44 provides asylum applicants seeking asylum based on religious grounds with a more thorough and objective approach to their requests. The 1998 Act requires the Secretary of State to prepare Human Rights Reports that relate to "freedom of religion and freedom from discrimination based on religions. . . ." 45 The 1998 Act provides further procedural protection to applicants claiming religious persecution, by requiring that all asylum officers and immigration judges receive training on the nature of religious persecution abroad, including country specific conditions, 46 and further provides that the annual reports issued by the Secretary of State be used as a resource by the asylum officers and immigration judges. 47

In response to the U.N. Convention and Protocol relating to the status of Refugees, the U.S. adopted membership in a particular social group as a category to the refugee definition in 1980; however, the statute and legislative history is void of any reference to what Congress meant by "membership in a particular social group." 48 The lack of legislative intent has led to varying definitions on the scope of the category among the federal circuits. One court defined social groups as "discrete homogenous groups targeted for persecution because of assumed disloyalty of the regime." 49 The First Circuit described "social group persecution" as persecution that is based on "a characteristic that either is beyond the power of an individual to change or that it ought not be required to be changed." 50 Yet another federal appellate court wrote that "there can be no plainer example of a social group based on common, identifiable, and immutable characteristics than that of a nuclear  [*7]  family." 51 Clearly, until the United States Supreme Court addresses the issue, there will continue to be no consensus among the federal appellate courts on what precisely constitutes membership in a particular social group.

Asylum claims based on persecution for political opinion comprise the greatest portion of asylum litigation. Persecution on account of political opinion has been defined by the Board of Immigration Appeals as occurring when "the particular belief or characteristic a persecutor seeks to overcome in an individual is his political opinion." 52 In 1992, the United States Supreme Court held that the statutory language "on account of" political opinion means on account of the "victim's political opinion," not the persecutor's. 53 In 1997 the Ninth Circuit established a four-prong test for analyzing whether an applicant's persecution is on account of political opinion. 54 The test requires the applicant to show the following: (1) that he or she has been subjected to persecution; (2) that he or she possess a political opinion; (3) that his or her political opinion is known or imputed by the persecutors; and (4) that the persecution was on account of his or her political opinion. 55

B. Judicial Deference to Congress and INS in Immigration Matters

The United States federal court system accords a great deal of deference to the INS and Congress in immigration law matters. This is principally due to two reasons. The first reason, as stated by the United States Supreme Court, is because Congress appointed the INS to implement the public policy underlying immigration laws, therefore, "appropriate deference must be accorded its decision." 56 The second reason is due to the fact that "INS officials must exercise especially sensitive political functions that implicate questions of foreign relations" 57 and "based on the separation on powers principles," judicial involvement in these political matters has been consistently rejected by the United States Supreme Court. 58

The judicial deference given to Congress and INS decisions is frequently referred to as the Immigration Law Plenary Power Doctrine. 59 The Plenary Power Doctrine was established through a series of Supreme Court rulings handed down over the last 111 years. 60 The development of the doctrine began in 1889 when the Supreme Court held that Congress' power to regulate immigration through legislation was inherent in U.S. sovereignty:

That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy.  [*8]  Jurisdiction over its own territory to that extent is an incident of every independent nation. It is part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power. 61

Over the 111 years since the Supreme Court first pronounced the plenary power of Congress to legislate immigration, the Court has strengthened the doctrine through subsequent rulings, to the extent that the doctrine is an intricate principle in American jurisprudence that will be adhered to for some time to come. 62

IV. JUDICIAL REVIEW OF ASYLUM APPLICATIONS FROM UNACCOMPANIED MINOR PETITIONERS

There are only two U.S. Courts of Appeals decisions discussing the application of the legal standards to juvenile asylum applications. Both of these decisions come from the fourth circuit, where the court published only one of the decisions. Clearly, the law of the land in the fourth circuit allows the application of the adult standard to minors' asylum applications. Ostensibly, this will be a question of first impression in the other circuits, when and if, it ever comes up for review.

A. Cruz-Diaz v. U.S. Immigration & Naturalization Service 63

In Cruz-Diaz the petitioner, Carlos Diaz-Cruz, sought a reversal of the Board of Immigration Appeals' decision denying him asylum under INA § 1158. 64 In September of 1992, Cruz-Diaz, a native of El Salvador, entered the U.S. illegally at the age of 15. 65 Upon the INS apprehending Cruz-Diaz in Texas, the petitioner sought political asylum under INA § 1158, or "in the alternative, that he be allowed to leave the country voluntarily." 66

Cruz-Diaz testified at the deportation hearing, before an immigration judge, that if he was to return to El Salvador his life would be in jeopardy from the El Salvadorian army and the guerillas. 67 Cruz-Diaz testified about his knowledge of the guerillas and the El Salvadorian army murdering his family members and others unrelated to him. 68 In addition, Cruz-Diaz testified that he had to go into hiding from army soldiers whom he thought would arrest or kill him because of his association with the guerillas. 69 Although the immigration judge found Cruz Diaz to be "honest, straight forward and credible, and to have a subjective fear of persecution," the immigration judge denied Cruz-Diaz's asylum application on the grounds that Cruz-Diaz failed to meet the objective well-founded fear of persecution on one of the five enumerated grounds under the Immigration and Naturalization Act. 70 The immigration judge held that the government was hunting Cruz-Diaz for his participation with the guerillas, which was not an act of persecution. 71 On appeal to  [*9]  the Board of Immigration Appeals, the decision of the immigration judge was affirmed. 72

On appeal to the U.S. Court of Appeals for the Fourth Circuit, the court affirmed the decision of the immigration judge and the Board of Immigration Appeals. 73 In its analysis, the court stated that "Cruz-Diaz must show a reasonable possibility of persecution or that a reasonable person in similar circumstances would fear persecution on account of his political beliefs or one of the other enumerated grounds." 74 In response to Cruz-Diaz's argument that his status as a juvenile should preclude him from the adult objective standard, the court found the following:

no error of applying this standard of proof for a juvenile. In the absence of statutory intent to apply a different standard for a juvenile, and in light of the reasonable interpretation by the INS that the standard as stated takes into consideration the petitioner's age, we are not at liberty to substitute a different interpretation. 75

B. Garcia-Garcia v. U.S. Immigration & Naturalization Service 76

Garcia-Garcia, an El Salvador native petitioned the U.S. Court of Appeals for the Fourth Circuit for a reversal of the Board of Immigration Appeals' denial of his asylum application and withholding of deportation. 77 In an unpublished decision, the fourth circuit affirmed the Board of Immigration Appeals' decision. 78 In 1991, when Garcia-Garcia was 17 years of age, guerillas entered his father's home and threatened to kill Garcia-Garcia if he did not accompany them and join the guerilla organization. 79 The guerillas abducted Garcia-Garcia and forced him at gun-point to beat a deserter with a baseball bat. 80 Garcia-Garcia was eventually able to escape from his abductors and moved from one area of El Salvador to another and also Guatemala in an attempt to avoid retaliation from the guerillas. 81 Garcia-Garcia finally left El Salvador after learning from his father that the guerillas were looking for him. Garcia-Garcia feared that the guerillas would kill him if he were to return to El Salvador. 82

On appeal, Garcia-Garcia argued that his abduction by the guerillas and being forced at gun-point to beat another person at with a baseball bat constituted past persecution within the meaning of the INA. 83 In addition, Garcia-Garcia asserted that the Board's failure to take into account his status as a juvenile at the time of the incident was erroneous. 84 The court rejected this argument and held that the "standard applies to juveniles, and there is nothing in the record suggesting that the Board failed to consider Garcia-Garcia's age as a factor in rejecting his asylum  [*10]  application." 85

V. PSYCHOLOGICAL TRAUMA ENDURED BY CHILD ASYLUM APPLICANTS

Children are more susceptible to human rights violations because they are unable to attract attention to the violations due to their inability to vote, and lack the necessary political connections and verbal skills necessary to call attention to violations on their human rights. 86 Unaccompanied minors are especially prone to human rights violations because of "neglect, violence and exploitation." 87 According to an experienced child psychotherapist, unaccompanied minors that have endured human rights violations are considered abused children:

A central similarity between the experiences of children abused in situations of domestic violence and children who experience human rights abuses is the pathogenic effect of secret events . . . The external world of refugee children includes the secret techniques of repression that repressive governments use and the incomprehensible events that transform previously trusted neighbors into enemies. . . ." 88

Refugee children are particularly vulnerable to psychological trauma because of their exposure to violence in their country of origin. 89 In 1991 a team of researchers in Mozambique surveyed 504 displaced children, between the ages of six and fifteen, in that country to document the children's war-related experiences. 90 The study produced the following results:

77% had witnessed murder, often of large numbers of people; 88% had witnessed physical abuse or torture; 51% had been physically abused or tortured themselves; 63% had witnessed rape or sexual abuse; 64% had been abducted from their families; 75% of the abducted children were forced to serve as porters or human cargo carriers; and 28% of the abducted children were trained for combat (all of the 28% were boys). 91

The exposure to violence that children in conflict face leads to substantial psychological trauma that is exacerbated by the children's inability to draw attention to the human rights violations being perpetuated upon them. 92

In response to a child's exposure to violence, the child may experience an acute or chronic reaction. An acute reaction to the stress of witnessing violence is "a normal shock reaction that follows exposure to a highly stressful event." 93 An acute  [*11]  reaction will usually subside within a couple of days after the child's exposure to violence, during which time the child will experience high levels of anxiety. 94 If the child's trauma is extreme, the child's psychological damage may be permanent, especially if the child has witnessed the loss of a parent or other family member. 95 If the child's reaction to the violence is chronic, the child's reaction extends past the short duration of an acute reaction and "include[s] a persistence of often debilitating symptoms." 96 A child's "chronic reaction is frequently marked by symptoms of Post Traumatic Stress Disorder (PTSD), which may include a persistent re-experience of the incident, reduced responsiveness and interaction with the child's environment, and a loss of hope for the future." 97 "Profound alterations in personality, behavior, and moral development also have been noted among child victims of chronic political violence, human abuse, and impoverishment." 98

The psychological effects of violence and human rights violations are even more profound for unaccompanied minors. 99 When a child experiences a trauma, such as a violent event, the child turns first to her parents for security, and then to her community for security. 100 Thus, when a child becomes separated from her parents and community after a traumatic experience, the child will sustain intense psychological and physical reactions that may persist indefinitely, because the people in the child's life that usually provide the child with security after a traumatic event are absent. 101 Recognizing the unique vulnerability and circumstances of unaccompanied minors seeking asylum in the U.S., the INS issued procedural guidelines for the unaccompanied minor's asylum hearing. 102

VI. INS ADJUDICATION OF UNACCOMPANIED MINORS' ASYLUM APPLICATIONS

A. Definition of an Unaccompanied Minor

The INS defines an unaccompanied minor as a child under the age of 18 who seeks admission to the United States and who is not accompanied by a parent or guardian. 103 The United Nations Higher Commission of Refugees (UNHCR) defines an unaccompanied minor as an "individual who is separated from both parents and is not being cared for by an adult who by law or custom has responsibility to do so." 104 Although the INS guidelines and UNHCR guidelines differ in language, under both definitions an unaccompanied minor has been separated from her parents.

 [*12]  B. Guidelines for Children's Asylum Claims

The increase in the number of unaccompanied minors in U.S. immigration proceedings and the international concern with the issue over the past ten years led INS to promulgate the Guidelines for Children's Asylum Claims (U.S. Guidelines) in 1998. 105 The U.S. Guidelines promulgated child sensitive interview procedures and analysis for asylum claims from unaccompanied minors because of the "unique vulnerability and circumstances" of unaccompanied minors in asylum interviews. 106 The U.S. Guidelines were the result of the increasing attention from the international community regarding the unique topic of child asylum seekers. 107 The U.S. Guidelines came in response to the Canada Immigration and Refugee Board's 1996 promulgation of Child Refugee Claimants: Procedural and Evidentiary Issues 108 as well as the UNHCR's 1994 promulgation of Refugee Children: Guidelines on Protection and Care, 109 and the UNCHR's 1997 promulgation of Guidelines on Policies and Procedure in Dealing With Unaccompanied Children Seeking Asylum. 110

The purpose of the INS' procedural guidelines for children's asylum interviews was to create an environment that would allow the child to speak freely and openly about the circumstances surrounding his claim. 111 These Guidelines were promulgated because children asylum seekers are not as open as adults, and may be reluctant to tell the reasons they are seeking asylum because of fear of reliving the trauma. 112 INS recognized that child asylum seekers present their cases differently than adults and implemented the Guidelines to allow the INS asylum officers to interact appropriately with the child during the interview. 113

The U.S. Guidelines allow the unaccompanied minor to have a trusted adult present during the interview as support and to "bridge the gap between the child's culture and the U.S. asylum interview." 114 A trusted adult may help alleviate the child's fear and hesitation of testifying about tremendously traumatic events, as well as aid the child psychologically. 115 The U.S. Guidelines encourage the asylum officer to build a rapport with the child so the child's fear and timidity are minimized during the interview, thereby promoting complete and accurate testimony. 116 To achieve this result, the U.S. Guidelines recommend that the asylum officer discuss neutral and child oriented topics at the beginning of the interview before requesting the child to recount the trauma he experienced in his country of origin. 117

The U.S. Guidelines also promote child-sensitive questioning and active listening techniques to help the hearing officer elicit the reasons the child is seeking asylum. 118 The hearing officer is required to tailor his questions to the child's age,  [*13]  language skills, and background in order to accurately assess the merits of the child's claim. 119 The U.S. Guidelines list many suggestions to aid a hearing officer in forming child appropriate questions. For example, the hearing officer should use short questions and sentences, choose easily comprehensible words over harder ones, use open-ended questions, tolerate long pauses in the child's answer, and avoid legally technical terms, such as "persecution", which a child would be unable to answer simply because he does not know what it means to be persecuted. 120

The U.S. Guidelines take into account the fact that children may be unable to precisely describe the facts leading up to their departure from their country of origin, and may be unaware of the current living conditions and political stability of their home country. 121 In addition, the U.S. Guidelines recognize that a child's culture may impact the child's testimony in the areas of time and dates and counsel the hearing officer on the fact that a child's testimony may not be as accurate and precise because of the child's development and culture. 122

The U.S. Guidelines, if implemented properly, provide an atmosphere where an unaccompanied minor feels free and comfortable to discuss the trauma that brought him to the United States, thereby allowing the hearing officer to determine the child's claim with the complete and accurate facts that surround the child's departure from his country of origin. However, these internal INS procedural guidelines fall short of implementing substantive laws that acknowledge the unique protection children seeking refuge from human rights violations need. They require the children to meet the same "procedural, evidentiary, and legal rules as . . . adult asylum seekers." 123

VII. THE TREATMENT OF CHILDREN IN OTHER AREAS OF AMERICAN JURISPRUDENCE

American jurisprudence confers "extraordinary protections and assistance to children" where court action potentially involves a fundamental right. 124 The United States Supreme Court recognized a minor's special consideration in American jurisprudence when it stated that youth:

is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults. Particularly during the formative years of childhood and adolescence, minors often lack the experience, perspective and judgment expected of adults. 125

This section analyzes the legal areas of contracts, torts, and criminal law in American jurisprudence, which recognize the vulnerability and intellectual constraints of minors and have protected the child by providing child sensitive legal  [*14]  standards and guidelines. The areas of contract law and tort law provide children with substantive protection from the harshness of adult legal standard. Criminal law in contrast provides the child defendant with a court and court procedures, separate and distinct from adult criminal defendants, in an attempt to rehabilitate, instead of punish, juvenile offenders.

A. American Contract Law

Modern and contemporary American contract law treats children and adults differently. Because the child lacks the sophistication to legally enter into complex contract agreements, the courts in the past held that the contract was void at its inception and unenforceable. 126 The modern trend is to hold the contract voidable upon the minor's option. 127 In general American law protects a child from the harsh penalties of breaching contractual obligations, since the child lacked the maturity and intellect necessary to understand his contractual obligations. 128 There are, however, some exceptions to the modern rule. 129

1. The infancy law doctrine

Under classical contract law, contracts entered into by minors were void ab initio. 130 Black's Law Dictionary defines Void ab initio as "[a] contract that is null and void from the beginning." 131 This rule, was abandoned at the turn of the century because of the harsh results that occurred when the rule was applied. The courts adopted a more logical rule that rendered the contract voidable at the contracting minor's option. 132 This rule allowed the honest minor to fulfill the terms of the contract at his option and retain the attendant benefits of performing his contractual benefits. This rule also allowed a minor to disaffirm his contractual obligations even after he had "squandered or lost the property" he had contracted for. 133 The Wisconsin Supreme Court explained the necessity of allowing minors to disaffirm contracts and avoid performance:

[The] right . . . of a minor to disaffirm a contract . . . variously known as the doctrine of incapacity or the 'infancy law doctrine,' is one of the oldest and most venerable of our common law traditions...It is generally recognized that its purpose is the protection of minors from foolishly squandering their wealth through improvident contracts with crafty adults...Thus, it is settled law. . . that a contract of a minor . . . is voidable at the minor's option . . . and is entitled to all consideration he has conferred incident to the transaction. 134

 [*15]  2. The lack of capacity doctrine

The Restatement (Second) of Contracts § 12 also articulates the view that infants are unable to contract:

(1) No one can be bound by contract who has not legal capacity to incur at least voidable contractual duties. Capacity to contract may be partial and its existence in respect of a particular transaction may depend upon the nature of the transaction or upon other circumstances.

(2) A natural person who manifests assent to a transaction has full legal capacity to incur contractual duties thereby unless he is:

(a) under guardianship, or

(b) an infant, or

(c) mentally ill or defective, or

(d) intoxicated. 135

Under the Restatement, the infant's inability to enter into an enforceable contract was predicated on the view that infants lack legal capacity to enter into a contract.

Although there are some statutory and judicial exceptions to the minor's right to disaffirm a contract, the infancy doctrine and incapacity doctrine remain firmly rooted in America's law of contracts. Their presence is predicated on the contention that minors lack capacity to contract because of a lack of sophistication and maturity. American jurisprudence in its parens patriate capacity has stepped in and protected the contracting minor. Minors and adults are treated differently under traditional and contemporary American contract law because of a child's innate vulnerability in sophisticated and complex legal relationships.

B. American Tort Law

American tort law differentiates substantially in its treatment of minors and adults. In some situations children are completely exonerated of any tortious conduct that resulted in injury and damages to another. If the court or jury determines that the child possessed the requisite legal capacity to be held responsible to injurious conduct, the court applies a flexible standard of care to determine if the conduct rose to tortious liability.

1. The tender years doctrine

A child of tender years is defined as a "person of such immature years as to be incapable of exercising the judgment, intelligence, knowledge, experience, and prudence demanded by the standard of the reasonable man applicable to adults," because a young child simply lacks the capacity to know or realize that his conduct may cause harm or injury to another. 136 Most courts in America hold that "children of certain ages are incapable of negligence as a matter of law." 137 "Although the  [*16]  tender years standard has never been strictly defined in terms of years and months... most jurisdictions refuse to apply the doctrine to exonerate a child of negligence who is over ten years of age." 138 The tender years doctrine stands for the principle that children under a certain age lack the capacity to incur responsibility for their tortuous conduct because children of tender years lack the mental maturity to comprehend the impact and nature of their acts. 139

2. The Illinois rule

The Illinois Supreme Court articulated the Illinois rule in Chicago City Railway, Co. v. Tuohy. 140 This rule is similar to the tender years doctrine except the rule supplies age limits for when to apply the rule and what party has the burden of proof. 141 In jurisdictions that recognize the Illinois rule, children under seven years of age are considered, as a matter of law, to be incapable of negligence. 142 Children from seven to fourteen years of age are presumed to be incapable of committing a negligent tort; however, this is a rebuttable presumption. 143 A child over the age of fourteen is presumed to be capable of committing a tort; however, the presumption is rebuttable, and the burden lands on the minor to show incapacity. 144

3. The modern trend

Under the modern trend, the courts do not impose fixed age limits to determine if the minor had the requisite capacity to commit negligence. 145 Under application of the modern rule, the finder of fact, i.e, judge or jury, must determine if the child was capable of negligence. 146

4. The standard of care

If a court applies one of the above rules and determines that the child defendant was capable of committing negligence, the court must next determine the standard of care the child was required to use. 147 The standard of care for a child who was not engaged in an adult activity and did not use an inherently dangerous instrumentality is conduct that is "expected of a reasonably careful child of the same age, intelligence, maturity, training and experience." 148 The courts have deviated from the traditional "reasonable man in like circumstance" standard of care to encourage children to pursue childhood activities "without the same burdens and responsibilities with which adults must contend." 149

 [*17]  Traditional and contemporary American negligent tort law applies different standards to minors in determining whether the child can commit a negligent act. If it is determined that the child had the mental capacity to understand that her act could have injured another person, the courts invoke a standard of care specifically tailored, not only to the child's status as a minor, but to the child's level of intelligence, maturity, training, and experience. The courts have deviated from the standard of care used in determining an adult's negligent acts and embraced a flexible standard of care to determine if a child's act was negligent.

C. American Criminal Law

American criminal law is another area of law that handles adults and children differently. Of the three areas of law researched to determine if American law deviates from adult standards and principles for juveniles, the American criminal law system is the one area that is quickly merging into a consistent set of substantive and procedural rules for adults and children as more and more juvenile offenders are being certified as adults and tried in state and federal district courts. 150 The increase in the juvenile crime rate and society's "get tough" attitude on crime is the impetus for the trend to converge the juvenile and adult criminal court systems. 151

The juvenile justice system developed at the end of the nineteenth century to treat and rehabilitate juvenile criminals, rather than punish the minor delinquents, which was the purpose of the adult criminal justice system. 152 The separation of adults and children in the criminal justice system was supported by the social sciences, where adult criminal law was inapplicable to juveniles because it was "sublimated social vengeance." 153 Juvenile criminal courts were developed on the belief that children offenders, unlike adult offenders, were not responsible for their criminal behavior, because the delinquent behavior resulted from "fateful life experiences, poor parenting, and a lack of properly instilled values." 154 The juvenile courts were based on a European attitude that children are developmentally incomplete emotionally, morally and cognitively, rendering them psychologically vulnerable, and are therefore dependent upon adults. 155

VIII. THE TREATMENT OF CHILDREN IN INTERNATIONAL LAW

International human rights principles recognize children as tomorrow's leaders and attempts to shield the children from harm because of their physical and emotional vulnerability. 156 The international community has ratified numerous  [*18]  documents and treaties to protect the rights of children throughout the world. 157 The United Nations Convention of the Rights of the Child ("Convention") is the most notable international document protecting the rights of children. 158 Although, the Convention is not binding on the United States government, because the it is not a signatory to the convention, a brief description of its history and Articles provides information on the international community's view on the treatment of refugee children, and an understanding why the United States has chosen not to ratify the Convention.

A. A Brief History of the Convention

The Convention has been ratified by 191 nations since the United Nations formally adopted the Convention in 1989. 159 Unfortunately, the United States is one of only two countries who has failed to ratify the Convention. 160 The only other country that has not ratified the Convention is Somalia. 161 What is ironic about the unwillingness of the U.S. to ratify the convention is the fact that the U.S. played a major role in the ten year process of drafting the Convention. 162 There are 350 non-governmental organizations in the United States that support the Convention. 163 These non-governmental organizations include religious, professional, service, and labor organizations. 164

Although, the Convention has received tremendous support in the United States, including support from President Clinton, and non-governmental organizations, the Convention has faced considerable political opposition. 165 There have been several arguments cited for the reluctance of the U.S. to ratify the Convention. For example, it has been suggested the President Bush failed to send the Convention to the Senate for advice and assent because the Convention did not adequately protect the fetus and the proscription of executing criminals under the age of eighteen. 166 Although these are realistic and logical reasons, there appears to be  [*19]  one paramount reason contributing to the United States' reluctance to ratify the Convention.

Many individuals opposing the Convention cite the opinion that ratification of the Convention will interfere with the parent-child relationship as it is currently defined under American jurisprudence. 167 Opponents of the Convention cite several of the Convention's articles to support their proposition that the Convention impedes the parent-child relationship. For example, opponents argue that Article 2 interferes with the parent-child relationship because the Article places the responsibility of providing for the well-being of a child on the shoulders of the government. 168 Many opponents also refer to Article 3 of the Convention in support of their contention that the Convention impermissibly interferes with the rights of the parent under U.S. law. 169 One organization has based its opposition in the ratification of the Convention on the argument that:

the U.N. Convention on the Rights of the Child would make Congress the national guardians of children, charged with seeking "the best interest of the child," and answerable to the United Nations. Yet the government's definition of a child's best interest is often very different from a parent's definition. 170

Regardless of the political debate that is raging in the U.S. over the ratification of the U.N. Convention on the Rights of the Child, there are several articles worth addressing to analyze the international community's opinion on the handling of a  [*20]  child seeking refuge in a foreign country.

B. Applicable Articles of the Convention on the Rights of the Child

The Convention contains fifty-four articles to provide the international community with a standard set of governmental policies to protect the well-being of children and promote the children's physical, emotional and mental well-being. 171 Article 22 of the Convention provides special protection to the world's refugee children. 172 The Convention requires that children applicants seeking asylum receive "appropriate protection and humanitarian assistance." 173 The Convention also provides the fundamental principle that the best interests of the child should be applied in all actions concerning the child. 174 Although the Convention does not define the best interest of the child standard, the standard should be applied according to the fundamental values of the civilized societies. 175 The language "all actions concerning the child" in the Convention "indicates that the principle should be applied when legislative bodies are considering laws, in courts of law, when administrative authorities are dictating policies and budgets are being allocated, and in all other public activities." 176

IX. POLICY ALTERNATIVES

There are three possible policy alternatives to address the issue of whether unaccompanied minors seeking asylum in the United States should be held to the same objective standard as adult asylum seekers. Each policy alternative's strengths and weaknesses are discussed in this section.

A. The Do Nothing Alte rnative

This policy alternative requires Congressional and judicial inaction and leaves the issue in its present position while a Congressional Commission, INS, or a similar and appropriate governmental commission attempts to accurately define and measure the problem. There are several strengths weighing in favor of this policy alternative. This policy approach leaves the issue open for discussion and determination at a time when the immigration policy is more favorable in Congress. America's current concern with immigration and its effect on America culture, economy and stability does not present a forum where the issue will be met with objectivity and logic. Furthermore, the treatment of unaccompanied asylum seekers has only recently entered the immigration landscape and it will take some time to accurately measure the frequency, rate and need of these children. Postponing this issue for future debate will allow the problem adequate time to unfold and present an accurate portrayal of the problem, thus allowing policy implementation that addresses an actual, instead of perceived problem.

There are several weaknesses that this policy alternative would yield if it were implemented. First, although there is not a clear consensus on the prevalence  [*21]  of unaccompanied minors seeking asylum, there is consensus that the current objective standard denies child asylum applicants asylum status because the child is required to meet an adult legal standard. The do nothing approach will injure an unknown number of unaccompanied children seeking asylum. It will continue to place unaccompanied minors in a precarious legal position until the policy issue is placed on the national agenda. The approach is tantamount to "see no evil, hear no evil, speak no evil."

B. Judicial Intervention Alternative

The greatest strength of this alternative is that the judiciary would align the legal standards in asylum law with the legal standards in other areas of law. The Fourth Circuit Court of Appeal's interpretation in Cruz-Diaz of the objective standard to determine whether the asylum applicant's fear is "well founded" held minor asylum seekers to the same legal standard as adults. 177 Under American jurisprudence, children are usually not held to the same legal standard as adults because of the European belief that children are emotionally and mentally underdeveloped. 178 Thus, American jurisprudence has a rich history of shielding children from the harsh consequences they would face if they were held to adult legal standards. 179

This alternative is not without substantial problems. The first and most obvious weakness is that this alternative will take a great deal of time to be adjudicated. The United States Supreme Court is the only court in the country that can decide whether the Cruz-Diaz court was correct in its application of the objective standard to a juvenile asylum seeker. In its analysis, the Supreme Court will naturally factor the Plenary Power Doctrine, which accords a great deal of discretion to Congress and the INS in matters pertaining to immigration and naturalization.

The question of whether to take a case to the United States Supreme Court is a burdensome and difficult decision to make. The first step is to analyze the composition of the court and each of the justice's attitude about the issue to determine if taking the case up to the Supreme Court would yield a favorable result. If the wrong decision is made at this stage and the Court grants certiorari and decides to affirm the holding in Cruz-Diaz, the legal issue is foreclosed under the stare decisis doctrine, which requires strict adherence to precedent. Furthermore, this approach may not produce results if the legal issue is petitioned to the Supreme Court because there is no guarantee that the Supreme Court will grant certiorari. It is quite possible that this policy alternative will yield negative results, or even no results at all. The other weakness of judicial intervention is that asylum law is a congressional creature and the Constitution places immigration policy within the powers of Congress to regulate. Judicial intervention may be viewed by Congress and the Court as constitutionally unfeasible.

C. Congressional Intervention

This policy alternative produces considerable advantages. The first advantage is that it puts the issue before the governmental body that has been  [*22]  constitutionally mandated to regulate America's borders. This alternative does not incite the constitutional or separation of powers concerns that judicial intervention does. In addition the legislative process allows public hearings and testimony to thoroughly investigate and hear both sides of the issue. Through the legislative process, Congress and the public will have the opportunity to consider the psychological and physical trauma unaccompanied minors experience in their home countries. Legislative hearings will also allow for arguments on whether or not America's current asylum policy, with regard to unaccompanied minors seeking asylum, is within the expectations of the international community. Furthermore, Congress will have the opportunity to consider the protection children are granted by other areas of law and determine if alien children will receive similar protection in America's asylum law. In short, intervention through the legislative process will fully develop the depth of the issue in the context of international and domestic expectations on the treatment of children who have been traumatized through no fault of their own, and then decide if a change in the INA would further the humanitarian policy reasons underpinning grant of asylum.

The major weakness of this alternative is the extended time it would require to receive any policy determination from Congress. Immigration policy is clearly prioritized on the country's political agenda, however, the legal standard to be applied in unaccompanied minors asylum requests is not. The issue needs to go through the complete policy process, starting with defining the issue as a public problem and placing it on the political agenda. During this process, numerous unaccompanied minors will continue to be held to an adult legal standard that may produce adverse consequences.

Public opinion and government's desire to restrict immigration rates is another key weakness to congressional intervention. Americans are currently disenchanted with immigrants because of the expense and burden the immigrants place on the public benefits and the economic hardship on the economy. Undoubtedly, unaccompanied minors will require extensive and expensive public support ranging from foster care, mental health services, medical services and educational services. Embracing children from other countries who have been persecuted carries a very hefty price and in the current climate of immigration policy, it is likely that the issue will not even make it onto the political agenda.

X. CONCLUSION

The Fourth Circuit Court of Appeals requires that child asylum seekers meet the same objective legal standard to prove a well-founded fear of persecution if the child were to be returned to his country of origin. The Fourth Circuit's holding in Cruz-Diaz ignored the psychological damage unaccompanied minors have sustained from their exposure to violence. In addition, these children do not have the support of their parents and community to help them deal with the trauma. The Cruz-Diaz court also failed to accord unaccompanied minors the same protection that children frequently enjoy in other areas of American jurisprudence. The Cruz-Diaz court applied the same legal standard to the minor applicant because it refused to apply a different legal standard to a juvenile applicant without Congressional permission. This deference to Congress is consistent with the Immigration Law Plenary Power Doctrine that has a 111 year history in American jurisprudence. Thus, unless and until the U.S. Congress amends the INA to allow a child sensitive legal standard in juvenile asylum applications, it appears unlikely that the judiciary  [*23]  will interfere with the current application of a uniform legal standard.