Introduction

Bernard Lukwago was fifteen years old when rebels with the Lord's Resistance Army (LRA) kicked in the door to his family home and murdered his parents. 1 The rebels tied Lukwago's hands with a rope and took him to their camp. 2 At the camp, armed rebels held Lukwago captive in a tent with other kidnapped children. 3 The rebels told him that if he tried to escape he would be killed. 4 Lukwago witnessed the rebels kill two children who had failed in  [*798]  their attempt to flee. 5 The rebels trained Lukwago to shoot a gun and threatened to kill him if he refused to follow their orders. 6 Once trained, the rebels forced Lukwago to fight alongside other children on the front line against government soldiers. 7 The rebels also forced Lukwago to accompany them on attacks against civilians. 8 During these attacks, Lukwago witnessed the rebels mutilate civilians by cutting their lips and fingers. 9

Lukwago escaped from his captors while collecting firewood weeks after his capture. 10 Carrying a false passport, Lukwago arrived in the United States at New York's John F. Kennedy airport in November 2000. 11 He immediately applied for asylum, based on his past persecution by the LRA. 12 The Immigration and Naturalization Service (INS) detained Lukwago in prison for twenty-one months while his asylum claim wound its way through the system. 13 In August 2001, an immigration judge rejected  [*799]  Lukwago's claim based on his finding that Lukwago's testimony was not credible. 14 Specifically, the immigration judge found Lukwago not credible due to his demeanor in the courtroom, citing his lack of eye contact. 15 The IJ also found suspicious Lukwago's  [*800]  response when asked how he felt upon witnessing his parents' murders; he said he had felt "nervous." 16

Lukwago's lawyers appealed his case to the Board of Immigration Appeals (BIA), which rejected the immigration judge's reasons for questioning Lukwago's credibility. 17 Nonetheless, the BIA denied Lukwago's request for asylum. 18 Although the BIA acknowledged that the evidence established that the LRA "does harm children," it did not "demonstrate that [Lukwago] was targeted by the LRA because he was a child." 19 Thus, the BIA found that Lukwago had not shown that his mistreatment was on account of his membership in a particular social group, namely, children in Uganda. 20 Indeed, the BIA  [*801]  questioned whether a group based on age could qualify as a particular social group. 21 As this case makes clear, U.S. asylum law reserves no special protection for children in Lukwago's position. The law treats his misfortune the same as that of any adult civilian caught up in the throws of war.

With hundreds, if not thousands, of children seeking asylum in the United States each year, this and many other cases involving children raise hard questions about whether the United States asylum system adequately recognizes and accounts for the special difficulties of child asylum-seekers. 22 These questions include  [*802]  whether there are additional factors asylum adjudicators should consider when deciding whether to grant asylum to children; whether the asylum system should afford children special procedural protections; whether a different legal standard should apply to children's asylum claims or whether one standard should apply equally to adult and child claimants; and whether the United States owes a responsibility to children beyond that which it may owe adults.

This note attempts to highlight some of the deficiencies of current asylum practice as it pertains to children, describe how U.S. asylum policy may be moving towards greater recognition of the enormous procedural hardships faced by children in the U.S. asylum system, and propose some concrete solutions. Part I describes the historical foundations of U.S. asylum law, the substance of the law itself, and its application in practice. Part II highlights the international measures that have been taken to recognize the special status of child refugees. Part III examines the ways in which U.S. asylum policy currently responds to child refugees, including recent legislative proposals to afford children in the asylum system greater procedural protections, and suggests ways in which certain procedural protections should be expanded. Finally, Part IV discusses the failure of current U.S. asylum law to account properly for the forms of persecution unique to children and suggests ways to increase substantive protections for children.

I. The Historical Foundations of U.S. Asylum Policy

The enormous need for humanitarian action to assist the millions of people displaced by the Second World War spurred the international community to craft new standards for the protection of refugees. 23 These humanitarian principles, embodied in the 1951  [*803]  United Nations Convention Relating to the Status of Refugees (1951 Convention) and in its 1967 Protocol (1967 Protocol), impose on countries the obligation to protect any individual, outside her country of origin, found to have a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion." 24

With the passage of the Refugee Act of 1980 (Refugee Act), the United States, for the first time, provided a comprehensive and continuing statutory framework for the admission of refugees into this country, and brought the United States into conformity with its obligations under the Refugee Convention. 25 The Refugee Act  [*804]  incorporated the definition of "refugee," as codified by the Refugee Convention, into the Immigration and Nationality Act (INA), the basic body of U.S. immigration law. 26 Like the Refugee Convention, humanitarian principles are central to U.S. refugee policy under the Refugee Act. 27 The Refugee Act authorizes the United States Attorney General to admit refugees from places outside as well as inside the United States who meet the statutory definition of a refugee. 28

A. Proving Asylum Eligibility under U.S. Law

In order to make a claim for asylum under the INA, an applicant has the burden of establishing that she meets the definition of a refugee. 29 The INA defines a refugee as a person outside her country of nationality, who is "unable or unwilling to [return to] 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." 30 In  [*805]  order to establish a well-founded fear, an applicant must provide subjective evidence that she actually fears return, as well as objective evidence that there is a reasonable basis for her fear. 31 An applicant may satisfy her burden of demonstrating her subjective fear by expressing her opinions, feelings, and experiences. 32 An applicant may satisfy the objective requirement through documentary evidence, if such evidence is available, or through her own persuasive and credible testimony. 33

While the INA does not define persecution, U.S. courts have interpreted the term to involve "the infliction of suffering or harm upon those who differ ... in a way that is regarded as offensive." 34 Although persecution "does not require bodily harm or a threat to life or liberty," it is a strong concept involving more than discrimination or harassment. 35 The persecutor need not be the  [*806]  government as long as the government is unable or unwilling to control the persecuting individual or organization. 36

A well-founded fear of persecution may be demonstrated by establishing either past persecution or a well-founded fear of future persecution. 37 Demonstration of past persecution creates a rebuttable presumption of a well-founded fear of future persecution. 38 Where the INS has successfully rebutted an applicant's past persecution claim, the applicant bears the burden of raising alternative facts to demonstrate a well-founded fear of future persecution. 39

B. Recent Developments in U.S. Asylum Law

In 1990, the INS created a new corps of asylum adjudicators specially trained in evaluating human rights conditions in foreign  [*807]  countries. 40 These asylum officers review the asylum applications of claimants who apply "affirmatively." 41 Asylum officers may either grant an applicant asylum, or alternatively, refer the application to the Executive Office of Immigration Review (EOIR), commonly known as "immigration court," for review by an immigration judge. 42 Applicants who apply affirmatively are not placed in detention during proceedings. 43

An applicant must make a defensive asylum claim when the INS initiates removal proceedings against her. 44 Defensive claims are not heard by the asylum corps, but are under the exclusive jurisdiction of the EOIR. 45 Applicants who make defensive claims may be detained pending the immigration judge's determination of their eligibility for asylum. 46

 [*808]  In addition, the Illegal Immigration Reform and Responsibility Act of 1996 mandated that the INS detain, and place in expedited removal proceedings, asylum applicants identified at U.S. ports of entry. 47 Those who indicate a fear of persecution during the expedited removal process receive a "credible fear" interview with an asylum officer. 48 At the interview, the applicant must establish that that there is a "significant possibility" that she could establish eligibility for asylum. 49 If the asylum officer determines that the applicant has a credible fear of returning to her country of nationality, she refers the claim for ordinary removal proceedings before an immigration judge, at which time the applicant may raise her asylum claim. 50

II. International Recognition of the Special Legal Status of Refugee Children

Almost half of the twenty-one million refugees in the world are children under the age of eighteen. 51 As many as 20,000 children,  [*809]  unaccompanied by parents or legal guardians, apply for asylum each year in North America, Europe, and Australia. 52 Children flee from some of the most atrocious abuses, including forced military conscription, female genital mutilation, forced marriage, child labor, sexual servitude, and domestic violence. 53 According to the U.N.'s 1996 Machel Report, a study documenting the effects of armed conflict on children, children are not merely innocent bystanders to war, but have become targets of genocide, forced military recruitment, sexual violence, torture, and exploitation. 54

The 1989 Convention on the Rights of the Child (CRC)  [*810]  represented the first international treaty to explicitly provide special protections for children's rights. 55 While international refugee law previously viewed a child's asylum claim as derivative of his or her parent's claim, the CRC obligates states to ensure that each child seeking refugee status, whether accompanied or unaccompanied by his or her parents, receives protection and humanitarian assistance. 56 Moreover, the "best interests of the child" must be a primary consideration of states in all actions concerning children, including those undertaken by public or private social welfare institutions, courts of law, administrative authorities, and legislative bodies. 57 The CRC applies to every  [*811]  child within a state's jurisdiction and prohibits discrimination irrespective of the child's or her parent's birth or any other status. 58

Over 190 countries have ratified the CRC, making it the most ratified human rights treaty in history. 59 Although the U.S. has not ratified the treaty, it is a signatory, and thus is obliged under international treaty law to refrain from acts which would defeat the object and purpose of the Convention. 60 The INS has  [*812]  acknowledged that the CRC serves as a significant source of guidance in developing U.S. policies for child asylum seekers. 61

In 1997, the U.N. High Commissioner for Refugees proposed a set of children's asylum guidelines based on the CRC's international norms for the protection of children's rights. 62 The UNHCR Guidelines, like the CRC, underscore the importance of delivering effective protection and assistance to children in a systematic, comprehensive, and integrated way. 63 Although such a comprehensive approach would require close collaboration among a wide variety of government bodies, specialized agencies, and non-governmental groups, such collaboration would be possible because the "best interests" principle would provide clear guidance  [*813]  to policymakers in all actions pertaining to children. 64 For example, the UNHCR Guidelines suggest that states appoint each child a legal representative, as well as a guardian or advisor with child welfare expertise, to ensure that the child's interests are safeguarded and her needs appropriately met. 65 The UNHCR Guidelines further urge states to not detain child applicants in prison-like conditions, establish an expedited procedure to process their claims, and take into account each child's stage of development and particular vulnerabilities when assessing her claim. 66 Perhaps most significantly, the UNHCR Guidelines call attention to the types of human rights abuses that may constitute persecution under the Refugee Convention for children, but not for adults. 67

Before the UNHCR issued its guidelines, Canada and the United Kingdom, which also account for a high percentage of all asylum claims lodged in industrialized countries, had taken steps to ensure that their domestic asylum laws reflected their international commitments to meet the needs of child asylum seekers. 68 In 1996,  [*814]  Canada's Immigration and Refugee Board issued a set of innovative guidelines concerning child applicants. 69 The Canadian guidelines provide for the appointment of a "designated representative" to ensure the protection of the child's "best interests" throughout the asylum process. 70 In addition, they attempt to ease the burden on unaccompanied children by establishing a special procedure for their claims and an evidentiary standard sensitive to each child's level of maturity and development. 71

 [*815]  The United Kingdom has also taken steps to address the particular difficulties children face in the system. 72 In 1994, the United Kingdom's Home Office, the government department responsible for internal affairs, developed the Refugee Council Panel of Advisors for Unaccompanied Refugee Children (Children's Panel). 73 The Children's Panel was designed to provide advice, support, and advocacy to child applicants, independent of the U.K. Immigration and Nationality Department, to ensure that they receive fair and equal access to legal representation, care, and accommodation. 74 Although the advisors do not represent the children in asylum proceedings, they provide children with assistance in finding qualified legal counsel. 75 Moreover, the advisors are responsible for meeting the child's educational, housing, health care, and other social welfare needs throughout the  [*816]  asylum process. 76

III. Children in the U.S. Asylum System

U.S. asylum policy has not traditionally differentiated between the claims of children and adults. 77 With increasing numbers of child asylum seekers entering the U.S. each year, however, the U.S. has become far more responsive to international and domestic pressure to expand the protections afforded to children. 78

Every year, thousands of children enter the United States seeking protection from human rights abuses occurring in their countries of origin. 79 Many of these children enter unaccompanied by parents or guardians. 80 In 2002, U.S. authorities apprehended more than five thousand unaccompanied children attempting to enter the country without documentation. 81 Many of these children are victims of highly profitable child smuggling and trafficking rings. 82

 [*817]  Prior to 1997, the INS regularly detained children in prisons alongside juvenile delinquents and adult offenders. 83 As part of the settlement agreement reached in Reno v. Flores, a 1993 federal class-action suit challenging the INS's detention of unaccompanied minors in prison-like conditions, the INS agreed to place detained children "in the least restrictive setting" in light of the child's age and special needs. 84 The INS may detain children in juvenile correction facilities only if the child presents a risk of flight or has a criminal record. 85 Although INS detention practices have improved in some areas, many argue that the INS has made far too little progress in seeking out alternatives to detention, such as release to relatives and foster care. 86 Even after the Flores  [*818]  settlement, nearly one-third of unaccompanied children remain housed in secure detention facilities designed for juvenile offenders. 87 In response to concern over the INS's perceived conflict of interest in serving concurrently as jailor, prosecutor, and caretaker of unaccompanied children, Congress recently transferred responsibility for the care and custody of child asylum seekers from the INS to the Office of Refugee Resettlement (ORR). 88

 [*819] 

A. Changes in the Procedural Protections Afforded to Child Asylum Seekers

There are positive indications that U.S. refugee policy is moving toward a greater awareness of the particular procedural obstacles children face in the asylum system. On December 10, 1998, the INS issued guidelines providing asylum officers with child-sensitive interview procedures and training. 89

The INS Guidelines set forth special procedures to remedy the particular difficulties that children face in applying for asylum, and accept the CRC's "best interests of the child" standard as a "useful measure" for determining appropriate interview techniques for child asylum seekers. 90 For example, the Guidelines call for training INS personnel in the unique needs of children asylum seekers, with the goal of creating a ""child-friendly' asylum interview environment." 91 To this end, the Guidelines suggest several steps to assist in "building rapport" with children  [*820]  applicants. 92 For example, interviews begin with a discussion of "neutral topics," such as career goals, school, pets, and hobbies, an explanation of what will happen during the asylum interview, and reassurance that the child is not expected to be able to answer all of the questions asked of her and that her answers will remain confidential. 93 In addition, the Guidelines suggest that officers "take the initiative" in actively evaluating whether the child understands the process by "watching for non-verbal clues, such as a puzzled look, knitted eyebrows, downcast eyes, long pauses, and irrelevant responses." 94

Moreover, the Guidelines acknowledge that children "may be less forthcoming than adults ... in order not to relive their trauma" and recognize that children "may not present their cases in the same way as adults." 95 Thus, the asylum officer's questions should be "tailored to the child's age, stage of language development, background, and level of sophistication." 96 While the burden of proof remains on the child to prove her asylum eligibility, the asylum officer must take the child's "age, relative maturity, ability to recall events, and psychological make-up ... into account when assessing the credibility of a claim and must ... gather as much objective evidence as possible to evaluate the claim." 97

The INS Guidelines also stress the key role that children's guardians can play in protecting the best interests of the child in the asylum process. 98 Guardians are commonly used in other areas of U.S. law to assist children. For example, federal law requires states to provide children who are the subject of abuse or neglect proceedings with a "guardian ad litem, who may be an attorney or  [*821]  a court appointed special advocate (or both)." 99 These guardians are responsible for "obtaining firsthand, a clear understanding of the situation and needs of the child and ... making recommendations to the court concerning the best interests of the child." 100 The INS Guidelines envision that guardians would assist in "bridging the gap between the child's culture and the U.S. asylum interview." 101 The INS Guidelines refer to the guardian as a "trusted adult," noting that "a child's parent or relative [may be] a logical and appropriate support person." 102

Although the INS Guidelines affirm the significance of children's guardians in the asylum process, they ultimately place no affirmative responsibility on the government to provide each child with a guardian. 103 Furthermore, although parents, friends, and other trusted adults often provide invaluable support to child applicants, child welfare professionals with expertise in the particular needs of children asylum seekers could provide a higher level of assistance. 104 The need for a corps of child welfare professionals is especially relevant for unaccompanied children, who often lack access to trusted adults. 105 Moreover, the INS  [*822]  Guidelines do not guarantee that child asylum seekers will receive legal counsel. 106 Presently, less than half of the children in INS custody have representation. 107

In May 2003, Senator Diane Feinstein introduced bipartisan legislation in the U.S. Senate that would significantly expand services for children who arrive unaccompanied in the U.S. 108 Congresswoman Zoe Lofgren introduced an identical bill in the U.S. House of Representatives in October 2003. 109 The bill, titled the "Unaccompanied Alien Child Protection Act of 2003," would require children under the age of eighteen in federal custody to be represented by counsel in immigration proceedings. 110 If pro bono representation is not available to a child, the bill mandates provision of government-funded legal representation. 111 The bill would also establish a pilot program to develop an independent corps of guardians ad litem with expertise in child welfare. 112 These guardians would serve to "ensure that the [child's] best interests ... are promoted ... in [immigration] proceedings." 113 Enactment of the bill would represent a major step towards treating child asylum seekers with the care and sensitivity they deserve. 114  [*823]  The bill would redefine the government's priorities with respect to refugee children by making the protection of their interests central to all actions and proceedings. 115

B. Remaining Procedural Obstacles

In 1996, spurred by a wave of anti-immigrant sentiment, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). 116 IIRAIRA placed a one-year filing deadline on all applicants, even those residing legally in the United States, to submit their asylum applications for adjudication. 117 The deadline may be overcome by showing that (a) circumstances materially affecting the applicant's eligibility for asylum have changed; or, (b) extraordinary circumstances led to the delay in filing. 118 While the one-year deadline may increase the  [*824]  efficiency of the system by weeding out applicants who lack bona fide asylum claims, it raises concerns that genuine refugees who inadvertently miss the deadline will be barred from gaining asylum. 119 These concerns are particularly relevant for children seeking asylum who may lack the maturity to understand the intricacies of U.S. asylum law and frequently do not have access to legal counsel. 120

The INS regulations implementing IIRAIRA partly address these concerns by providing asylum adjudicators with the discretion to exempt unaccompanied children from the one-year deadline. 121 According to the regulations, in some cases, children lacking parental or caregiver accompaniment may suffer from a legal disability grave enough to invoke the extraordinary circumstances exception. 122 For example, the BIA found that a fifteen year-old unaccompanied child who was detained in INS custody during the one-year period immediately following his arrival in the United States established extraordinary circumstances that excused his failure to file for asylum before the expiration of the one-year deadline. 123

Accompanied children, however, would not be permitted the  [*825]  same exemption, under the assumption that these children would derive their status from a parent's claim or would be aided by a parent in making an asylum claim. 124 This rationale, while true in many instances, fails to take into account that some children may have interests contrary to those of their parents. 125 For example, a child who has suffered severe abuse at the hands of an accompanying parent would have grounds for asylum while the accompanying parent would not. 126 In a situation where an abusive parent might wish to protect himself against potential criminal charges, or may simply wish to remain undetected by the INS, the accompanying parent may have an interest in preventing the child from applying for asylum. 127 In such a case, the child's failure to file before the expiration of the one-year deadline would result in grave consequences.

The INS regulations should provide asylum adjudicators with discretion to take into account the factors that prevent any child, whether accompanied or unaccompanied, from seeking asylum within the first year of her arrival before barring her claim for exceeding the deadline. In fact, the INS proposed a similar approach in its basic training course for asylum officers. 128 In addition to the list of "extraordinary" circumstances sufficient to overcome the one-year filing deadline in the CFR, the training course discusses additional circumstances, such as severe family opposition, language barriers, or profound difficulties in cultural adjustment, which may also constitute extraordinary  [*826]  circumstances. 129 These additional considerations should be included in the CFR in order to afford immigration judges the same discretion as asylum officers to protect both accompanied and unaccompanied children from the harsh consequences of the one-year deadline.

IV. Needed Changes in Children's Substantive Eligibility for Asylum

In order to fully realize the INS Guidelines' admirable goal of protecting children in the U.S. asylum system, U.S. policymakers must consider whether children require a separate substantive legal standard that accounts for their status as children. In addition, U.S. policymakers must address the fact that U.S. asylum law often fails to acknowledge the specific forms of persecution unique to child applicants. Finally, the increasing subjection of children to forced conscription in armed conflicts around the world demands that policymakers evaluate whether the exclusion principle, which bars "persecutors of others" from receiving asylum protection, should be applied to former child soldiers seeking asylum.

A. Applying a Separate Legal Standard to Children's Asylum Claims

Although the INS Guidelines and the proposed bill expand the procedural protections for children who apply for asylum, they do not significantly alter a child's substantive eligibility under U.S. asylum law. 130 Thus, while directing asylum officers to take into account such factors as "the age, relative maturity, ability to recall events, and psychological make-up of the child ... when assessing the credibility of a claim," the INS insists that the Guidelines "[do]  [*827]  not create new law or alter existing law." 131 A child must still meet the refugee definition, therefore, in order for these factors to have a positive bearing on her claim. 132 As a consequence, the INS Guidelines permit asylum officers very little discretion to ensure that these factors actually have an effect on the ultimate decision to grant or deny asylum to a child. 133

Unlike other types of adjudications, asylum proceedings present special challenges for applicants. 134 In asylum proceedings, the applicant bears the burden of proof for establishing her eligibility for asylum. 135 In most cases, the events at issue occurred far away, making it very difficult for applicants to secure the witnesses, documents, and other evidence crucial to their claims. 136

The U.N. High Commissioner for Refugees has proposed that adjudicators account for these evidentiary challenges by affording the applicant the "benefit of the doubt." 137 This standard  [*828]  recognizes that even after the applicant has made a "genuine effort" to corroborate her story there may still be a lack of evidence for some of her statements. 138 Moreover, the High Commissioner recommends that adjudicators play an active role in facilitating the applicant's "genuine effort" by sharing the applicant's duty to evaluate and ascertain all the relevant evidence. 139 Thus, although the burden of proof in principle remains with the applicant, the adjudicator also bears a responsibility to "use all the means at his disposal to produce the necessary evidence in support of the application." 140

This approach is especially relevant for child applicants, who often lack the maturity to understand their role in the adjudicatory process and for whom it may be more difficult to present evidence with the same degree of consistency and precision as adults. A standard that eases the child's burden of production, applies evidentiary rules flexibly, and affords the child the benefit of the doubt with respect to questions of credibility could significantly increase the likelihood that a child genuinely deserving of refuge will be granted asylum. Moreover, this standard would bring U.S. asylum law in closer conformance with international human rights norms pertaining to children as well as U.S. child welfare laws, which adopt the best interests principle as the standard that should be applied in all actions concerning children. 141

The policy that child applicants must meet the same substantive standard as adults cannot be reconciled with the INS Guidelines' acknowledgement that, for child asylum seekers, "the balance between subjective fear and objective circumstances may  [*829]  be more difficult for an adjudicator to assess." 142 Children under sixteen years of age may "lack the maturity to form a well-founded fear of persecution ... requiring the adjudicator to give more weight to objective factors." 143 Furthermore, adherence to the adult standard would not permit adjudicators to afford child claimants a "liberal application of the benefit of the doubt," even though the Guidelines suggest that this may be necessary in certain circumstances. 144 While the informal atmosphere of an asylum interview may provide sufficient opportunity for an asylum officer to meet the "challenging responsibility" of adjudicating a child's claim, the INS Guidelines do not address the very different context of removal proceedings, which are far more formal and adversarial. 145

In many areas of U.S. law, including tort, contract, and  [*830]  criminal law, a different legal standard is applied to children based on their status as a minor. 146 The U.S. Supreme Court has acknowledged the special status of children under U.S. law, stating:

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. 147

Contract law and tort law afford children greater flexibility to protect them from the harsh penalties of the adult legal standard. 148 Underlying this grant of greater flexibility is the belief that children, due to their innate vulnerability and immaturity, should not be assumed to comprehend the impact and nature of their acts. 149 Criminal law provides children with a separate court system and procedures, with the ultimate goal of rehabilitating children, not punishing them. 150

There is little, if any, evidence that the adoption of a more  [*831]  flexible standard for children would result in a dramatic surge in children's asylum claims in the United States. 151 Even if more children are granted asylum in the United States under this standard, the U.S. will have taken seriously its humanitarian obligations toward the international community by assuming a larger share of responsibility for children affected by war and abuse.

B. Recognizing the Forms of Persecution Unique to Children

Neither the INS Guidelines nor the proposed Unaccompanied Child Protection Act address the forms of persecution unique to child applicants. 152 For many child asylum seekers, the fact that they are children is central to their claim. 153 Examples of cases in which the persecution alleged only applies to children include infanticide, female genital mutilation, bonded child labor, child marriage, and the sale of children. 154 In other cases, behavior that might not rise to the level of persecution when targeted at adults may constitute persecution when children are the targets. 155 For example, whereas U.S. asylum law currently views military conscription as a right of sovereign states, and thus not as a form of persecution, this adult-centered approach is insensitive to the situations of children fleeing forced military or guerilla conscription. 156 Because children are more likely to be traumatized  [*832]  by hostile situations due to their age, lack of maturity, and vulnerability, particular behaviors that would not constitute persecution for an adult, such as aggressive police questioning, threats, or physical abuse, may produce lasting damage, physical, or psychological trauma in a child that amounts to persecution. 157

Two recent cases involving the forced recruitment of children by military or guerilla forces reflect the difficulty courts face when confronted with such forms of persecution that do not fit neatly into current asylum doctrine. In Cruz-Diaz v. I.N.S., Carlos Cruz-Diaz, a native of El Salvador who entered the U.S. illegally at the age of fifteen, sought reversal of the Bureau of Immigration Appeal's (BIA) decision to deny him asylum. 158 At his removal hearing, Cruz-Diaz testified that he feared persecution from the El Salvadorian army, which he believed had murdered members of his family, as well as guerillas from whom he had deserted. 159 Although the immigration judge found that Cruz-Diaz had proven his subjective fear of persecution, the judge denied his claim because under current asylum law, the army's "hunt" for Cruz-Diaz for fighting with the guerillas did not amount to persecution. 160 On appeal, Cruz-Diaz argued that the immigration judge erred by holding him to the same standard as an adult who had evaded military conscription. 161 The Fourth Circuit rejected this argument, finding no Congressional intent to apply a different standard to children's asylum claims. 162 Thus, it concluded that Cruz-Diaz was not entitled to special protection from the actions of the military on account of his youth, and the immigration judge appropriately treated his claim like that of "any other citizen of El Salvador who participated in or refused to participate in the  [*833]  activities of either the guerillas or the army." 163

The Fourth Circuit also denied asylum to Rafael Garcia-Garcia, who, like Cruz-Diaz, entered the U.S. illegally from El Salvador. 164 At his removal hearing, Garcia-Garcia testified that when he was sixteen years-old, guerillas came to his home and threatened to kill him unless he joined their forces. 165 After the guerillas forced him at gun-point to attack deserters with a baseball bat, Garcia-Garcia fled his captors while they were sleeping. 166 Upon hearing from his father that the guerillas had come to his home looking for him, he fled El Salvador, fearing retaliation. 167 Garcia-Garcia argued that his abduction and the violence he was forced to inflict on deserters constituted persecution, particularly in light of his age at the time. 168 The Fourth Circuit rejected Garcia-Garcia's argument, refusing to find that the forced recruitment of a child amounts to persecution. 169

These cases underscore the limitations of U.S. asylum policy, which fails to afford children substantive provisions that account for their status as children. 170 As the definition of persecution continues to evolve, U.S. policymakers must craft asylum policies that are flexible enough to accommodate the range of situations from which people seek asylum. 171 For example, in 1995, the INS  [*834]  issued a memorandum recognizing that the refugee definition encompasses certain gender-related claims of women asylum seekers. 172 In re Fauziya Kasinga, a case involving female genital mutilation, became the first BIA precedent decision to grant asylum to a woman based on gender persecution. 173 In reaching its decision, the BIA carefully considered the context from which the claimant fled, her position within the society, and the social and political role of the practice of female genital mutilation within her culture. 174 With growing recognition that gender-based violence constitutes a human rights violation, asylum policymakers have reinterpreted the concept of persecution expansively to protect victims from such abuse. 175 Likewise, the concept of persecution  [*835]  must be expanded with regard to the forms of abuse child applicants commonly face in order to allow adjudicators to make meaningful distinctions between the claims of children and adults.

C. The Exclusion Principle and Children

The exclusion clause under the Refugee Convention, which bars certain categories of individuals from gaining asylum, does not distinguish between adults and children. 176 In the United States, the subject of a bar against asylum first surfaced in 1948, regarding concern that former Nazis and their collaborators could attempt to use U.S. refugee protections to gain asylum. 177 With the codification of the Refugee Convention's definition of "refugee" under the 1980 Refugee Act, U.S. refugee law adopted the Convention's exclusion from status as a refugee "any person who ordered, incited, assisted, or otherwise participated in the persecution of any person" on account of their race, nationality, religion, political opinion, or membership in a particular social  [*836]  group. 178 As military and guerilla leaders increasingly resort to forced conscription of children on a massive scale, however, the bright line that supposedly once separated persecutor from victim has blurred. 179

There is both domestic and international consensus that the law should treat children who have committed criminal acts differently than adults. 180 Like other areas of U.S. refugee law, however, the exclusion clause does not distinguish children from adults. 181 The situation of forcibly conscripted former child soldiers provides a stark example of the consequences of applying the exclusion clause to child applicants. 182

 [*837]  Military and rebel recruiters prey upon children precisely because of their physical and psychological vulnerability. 183 Child soldiers are more obedient, less likely to question orders, and easier to manipulate than adult soldiers. 184 Furthermore, unlike their adult counterparts, children remain vulnerable even after hostilities have ceased. 185 Many rebels refuse to release child soldiers to their families after the hostilities are over, while those who are released or escape often have no living family members to whom they can return. 186 Some child soldiers fear retaliation by their former communities or former enemies for their perceived ties to the rebel forces. 187 Former child soldiers, denied an  [*838]  education and the opportunity to learn civilian trades, are in tremendous need of assistance in gaining the skills necessary to reintegrate into peacetime society. 188

In response to the recruitment of children in conflicts throughout the 1990s, human rights activists, child advocates, and international humanitarian organizations embarked on a massive campaign to combat the use of child soldiers under the age of eighteen. 189 Their advocacy culminated in the U.N. General Assembly's unanimous adoption of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. 190 Since its adoption in May 2000, more than one hundred nations have signed, and seventy nations have formally ratified the Protocol. 191 On December 23, 2002, the United States became the forty-fifth country to ratify the  [*839]  Protocol. 192 The Child Soldiers Protocol establishes eighteen as the minimum age for forced recruitment and direct participation in hostilities. 193 While the Protocol does not speak directly to a state's obligations vis-a-vis refugees who are former child soldiers, it calls upon states to implement programs aimed at the "physical and psychosocial rehabilitation and social reintegration of children who are the victims of armed conflict." 194

In Liberia and Sierra Leone, where children were abducted and forcibly conscripted on a massive scale, the UNHCR looked to the CRC and the Child Soldiers Protocol rather than to exclusion practice in developing its policies toward former child soldiers. 195 These policies recognize that forced conscription represents a serious violation of children's rights, and that children, due to their age, should not be held responsible as adult combatants. 196 For example, whereas adult former combatants may not seek asylum until they have been demobilized and placed under observation for a period of time in an internment camp, former child soldiers are not interned, live with other refugees in a refugee camp, and may apply for asylum. 197 The U.N.'s Machel study also emphasized that the use of child soldiers is a problem created by adults, which should be eradicated by adults. 198 In addition, the treaty  [*840]  establishing the International Criminal Court makes the recruitment of children under age fifteen a war crime. 199 Recognizing that child soldiers are victims first and foremost, the ICC statute shields children under the age of eighteen from prosecution. 200

While there are important policy reasons for prohibiting individuals who voluntarily commit serious crimes from enjoying the benefits of asylum, these policies, which serve to prohibit former Nazis and other perpetrators of serious crimes from seeking refuge in this country, were not intended, nor should they be extended, to exclude children. 201 To apply the bar to former child soldiers like Bernard Lukwago would fly in the face of the positive work that U.S. policymakers and the international community have undertaken to address this pernicious form of child abuse.

Conclusion

The growing international consensus that child asylum seekers require special protections has important implications for U.S. asylum laws. Although the U.S. asylum system currently does not differentiate between adult and child applicants, the United States should build on recent proposals to afford greater procedural protections to child asylum seekers with substantive provisions that address the forms of persecution unique to children. With millions of children suffering from the consequences of armed conflicts around the world, the international community has a special legal and moral obligation to ensure that child asylum seekers receive adequate care and protection. As this record of violence makes clear, a world unwilling to protect children is one in which "children are slaughtered, raped, and maimed ... exploited as soldiers ... starved and exposed to extreme brutality." 202 In short, it is a world devoid of the most basic of human values. The United States has an important role to play in ensuring that children who  [*841]  escape such turmoil are properly protected.

FOOTNOTES:

n1. Lukwago v. Ashcroft, 329 F.3d 157, 164 (3d Cir. 2003). The Lord's Resistance Army is an organized rebel group that has waged a brutal war against the Ugandan government for seventeen years. Press Release, Human Rights Watch, Uganda: Sharp Decline in Human Rights (July 15, 2003), at http://www.hrw.org/press/2003/07/uganda071503.htm. Both sides have committed gross human rights abuses, including murder, torture, rape, recruitment of children, and arbitrary detention. Id.