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Toward a Comprehensive Response to the Transnational Migration of Unaccompanied Minors in the United States. By *Carolyn J. Seugling

I. Introduction

The U.N. High Commissioner for Refugees (UNHCR) is responsible for approximately 22.3 million of the approximately fifty million refugees or displaced persons in the world. 1 Almost ten  [*863]  million of these people are children. 2 Unaccompanied minors comprise almost five percent of any given refugee population, thus approximately 500,000 children in total. 3 Half of all displaced persons seeking asylum are children. 4

The number of unaccompanied minors seeking asylum has increased dramatically in industrialized countries in recent years. For example, in 1998 only two unaccompanied minors sought asylum in Ireland. 5 By 2003 the number had grown to 868. 6 Six times as many unaccompanied minors sought asylum in the United Kingdom in 2003 as in 1997. 7 The Netherlands experienced a similar increase from  [*864]  1,562 in 1996 to 6,705 in 2000. 8 Overall asylum applications for unaccompanied minors in twenty-six European countries rose from 12,102 in 1998 to 16,112 in 2000. 9 U.S. estimates indicate that 5,000 unaccompanied minors are detained there, a fifty percent increase from 1997. 10 The United States does not provide statistics on how many unaccompanied minors apply for asylum each year. 11 The dramatic increase in the number of unaccompanied minors has created two distinct issues for these children, as well as for immigration officers, judges, and advocates. 12 These groups are forced to wrestle, first, with the problems posed by unaccompanied minors' care and custody, and second, with the evaluation of any legal claims they might have. 13 How countries care for unaccompanied minors varies dramatically. Some countries automatically detain unaccompanied minors in jail-like facilities. 14 Others place them in national foster care systems without treating them differently than  [*865]  they do their own citizens. 15 Countries generally handle refugees' legal claims similarly: the international response has come to focus on "containing the influx" of refugees by narrowing existing legal standards. As such, it has either become more difficult for unaccompanied minors to receive asylum, or they may be denied the ability to apply at all. 16 Because an unaccompanied minor faces difficulty in bringing and substantiating an asylum claim, only five percent of unaccompanied minors' applications for asylum are granted in developed countries. 17

The United States addresses the influx of unaccompanied minors in a piecemeal fashion. 18 National attention focusing on the egregious conditions of unaccompanied minors in U.S. detention spurred legislation resulting in a recent decision to relocate an unaccompanied minor's care to the Office of Refugee Resettlement within the Department of Health and Human Services (DHHS). 19  [*866]  This change should improve the treatment of children while asylum applications are pending and "bring U.S. treatment of unaccompanied alien children into line with international standards." 20 However, the Homeland Security Act failed to incorporate provisions of the proposed legislation that would have begun to address the unaccompanied minors' substantive rights. The United States continues to evaluate the asylum claims of unaccompanied minors using the standards created explicitly for adult asylum seekers that are based on the 1951 Geneva Convention. 21 The United States also narrowly interprets the definition of "refugee" in contravention of international human rights norms. 22

Although transferring unaccompanied minors' care and custody from the INS to the DHHS was part of the largest reorganization of the U.S. government in the last fifty years, reorganization is not a substitute for necessary substantive reforms. 23 With the political  [*867]  climate in the United States having changed after September 11, advocates have warned against "linking refugees and terrorism" thus subjecting refugees to further abuses. 24 Broadening the interpretation of asylum standards is necessary to secure unaccompanied minors' legal rights as children who suffer persecution, separate and distinct from persecuted adults. Expanding the interpretation of "refugee" explicitly to include unaccompanied minors as a social group capable of experiencing persecution would insulate them from possible negative repercussions and backlash against immigrants in general, address their unique needs and circumstances, and align U.S. law with international legal norms. 25

Part II of this Note provides an overview of how unaccompanied minors reach the United States and recent changes in custody procedures aimed at ameliorating harsh detention conditions faced there. Part III discusses legal standards qualifying unaccompanied minors for lawful permanent resident status and the challenges they routinely face meeting those standards. Part IV examines the unique persecution that unaccompanied minor refugees and street children experience and argues that it is a reason for the United States to treat unaccompanied minors' asylum claims differently than those of adults and recognize unaccompanied minors as a social group persecuted because of their common characteristics. 26 Part V suggests that expanding the interpretation of refugee is the appropriate way to achieve U.S. compliance with international human rights norms and would be useful in establishing a more comprehensive approach to displaced children.

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II. Care, Custody, and Control of Unaccompanied Minors in the United States

A. Displacement and Arrival in the United States

"As a transnational phenomenon, refugee flight involves multiple sites and diverse agents of oppression, within, across, and between borders." 27 Children may begin their migration on their own initiative most likely fleeing war and civil unrest, forced recruitment as soldiers, child labor, prostitution, or life as a street child. 28 Some become separated from their parents in transit, as the family flees oppressive conditions. Others could be shipped by their parents to the United States. 29 Others are forcibly separated from their families and countries of origin in trafficking or smuggling schemes. 30

Though there is no typical description of an unaccompanied minor, they tend to be young adults and many come from the same regions. The average unaccompanied minor in the United States is  [*869]  fifteen years old, but some have been as young as eighteen months old. 31 Most unaccompanied minors in the United States are non-English speaking Latin American and Chinese youths. 32 Senator Edward Kennedy, co-sponsor of the Unaccompanied Alien Child Protection Act of 2001 (Kids Act), recognized that transnational migration of unaccompanied minors occurs for a variety of reasons. Kennedy stated that "some flee human rights abuses, others have been abused or abandoned by their parents or flee armed conflict or dangerous conditions in their home countries." 33 Though they have such diverse origins, unaccompanied minors are treated as a single group once they arrive in the United States.

B. History of Custody and Control

Before January 2003, when the INS apprehended unaccompanied minors in the United States, they retained sole custody and corresponding responsibility for their well-being. 34 The INS also initiated removal proceedings in the Executive Office for Immigration Review (EOIR). 35 This puts the INS in an awkward situation because it is both an unaccompanied minor's caretaker and their prosecutor. 36 This situation creates an inherent conflict of interest and prohibited the INS from making decisions regarding care and custody issues that served the best interest of the child. 37

Unaccompanied minors are detained in a national network administered by the INS. Individual children could be transported to  [*870]  facilities wherever and whenever a bed became available, regardless of the distance from extended family or advocates assisting them. 38 Many children were held in detention for over three months and some have remained for as long as three years. 39 As a result, unaccompanied minors remained unfairly detained in harsh correctional facilities until their immigration status became resolved. 40

The United States is one of a very few countries that detains children. 41 Most other countries adhere to the UNHCR guidelines which suggest alternatives to detention, such as placing unaccompanied minors in a country's child welfare programs and granting unaccompanied minors equivalent services to those provided its citizens. 42 Moreover, because the INS does not provide information about detained children, outside agencies have difficulty monitoring detention conditions. 43 Language barriers and the general lack of knowledge about U.S. immigration law compounds these difficulties in the detention facing unaccompanied minors. 44

The inadequacy of facilities and procedures for the care and custody of unaccompanied minors was supposed to be resolved after Reno v. Flores. 45 At issue in Flores was the INS policy of releasing children only to a legal guardian or parent except in "unusual and  [*871]  extraordinary cases." 46 Since unaccompanied minors have neither parents or guardians, prior to Flores, they were often housed for long periods in juvenile detention facilities, or in facilities intended for adult criminals. Unlike traditional procedures typically followed in the treatment of domestic children, the INS did not determine if placement in less restrictive facilities was an option. 47 The INS agreed to settle the dispute at issue in Flores after the Court handed down this decision. 48 The settlement instituted nationwide procedures allowing unaccompanied minors to be released "to any adult who executes an agreement to care for the child and ensures his or her presence at immigration proceedings." 49 The Flores settlement also allowed the INS to hold children in detention for only seventy-two hours, except in emergencies. 50

The INS has asserted that it is in substantial compliance with Flores settlement. An INS spokesperson stated that "the priority is to put [unaccompanied children] in the least restrictive facility, where we have space. When a juvenile is placed in juvenile hall, it is because it is the absolute only location left." 51 Unfortunately, over one third of these children are held in juvenile jails. 52 The settlement illustrated one of the ways the INS has sought through structural reorganization and not substantive reforms to improve an unaccompanied minor's condition. "In 2000, the INS transferred all of its children's programs to its Detention and Removal office." 53 This change has made it forty percent less likely that a child will be reunited with family. 54 Critics argue that "while such efforts might be well-meaning, they cannot work because the federal government's bias toward incarceration and deportation will always trump its responsibility to look out for a child's best interest." 55 Several hundred unaccompanied minors still remain in long-term detention. 56 Although the INS has maintained it  [*872]  was in substantial compliance with the Flores settlement, four years later in 2001 Human Rights Watch found that this has not prevented an "institutional bias" favoring law enforcement over the best interest of the child. 57 A 2001 Justice Department Report from the Inspector General criticized the INS for similar reasons. 58 Most recently, Amnesty International's national report confirmed that the detention of children in the United States violates standards of care for refugees and is "unconscionable." 59

C. Experiences of Children While in INS Detention Facilities

Problems in the INS policies relating to unaccompanied minors are illustrated in the stories of those who have faced INS detention. For instance, Mekabou fled Liberia after his father was murdered. Unfortunately, he encountered more violence in the United States. He was apprehended by the immigration police who beat him. 60 Mekabou was then sent to adult prisons and only won asylum after a year and a half in detention. 61 Similarly, Malik Jarno was in detention for over three years. 62 Though the INS claims he is an adult, Jarno asserts he is a minor. 63 In custody, he has been housed with adults and allegedly severely beaten by immigration officials. 64 Jarno filed a civil rights claim against the INS and the Piedmont Regional Jail for his claimed "abuse and neglect." 65 Alfredo Lopez Sanchez spent eighteen months in detention and was transferred between eleven shelters, a jail, and a hotel before he was released. 66 Immigration officials thought he had an undocumented relative in the  [*873]  United States and refused to release him to an acceptable sponsor. 67 After being neglected and abused by his father in Guatemala, his time in INS custody made him, in his own words, "just want ... to die." 68 Edwin Larios Munoz fled Honduras after being abandoned, and feared that if he was homeless and living on the streets he would be killed. 69 Edwin told his story at Senate hearings on the Unaccompanied Alien Child Protection Act. 70 He discussed being locked up, beaten with sticks, crying, and having to reside next to criminals for almost six months while in INS custody. 71

D. Recent Developments: Change of Custody and Control

Advocates claim the INS violated "hundreds, perhaps thousands" of other unaccompanied minors' rights. 72 Developing a consistent, coherent approach for these children's care and custody is essential. In the words of U.S. Senator Dianne Feinstein, "The INS has not done what it should have done up to this point. Therefore, my view is that the only way to handle this is to put it in legislation." 73 In January 2001, Feinstein introduced the Kids Act. 74 The Kids Act sought to find solutions to the procedural and substantive issues facing unaccompanied minors. 75 The Kids Act's primary focus was to insure respect of unaccompanied minors' human rights while they are in detention. 76

The Kids Act would have addressed both procedural and substantive issues. It would have created a Special Office of Children's Services within the Department of Justice that "would [have been] responsible for ensuring that the children's needs are met and that their best interests are held paramount in all proceedings and actions involving them." 77 It would also have established minimum standards of custody, 78 and have provided trained guardians ad litem to children so that their needs in custody were  [*874]  met. 79 This guardian ad litem would also have made recommendations regarding their custody, detention, release, and removal based on the best interests of each child. 80 The Kids Act would also have assured legal representation, first through pro bono programs and then at the expense of the government, if other representation was not available. 81 Finally, the Act would have sought to ensure that INS adjudicators, immigration judges, and other personnel would have been trained on how to address children's needs in asylum claims. 82

Essential parts of the Kids Act 83 aimed at protecting children from abuse within the INS detention system were passed via incorporation into the Homeland Security Act of 2002 (HSA). 84 The HSA authorized "the largest reorganization of the U.S. government in over fifty years." 85 Among other things, the Homeland Security Act transferred the care and custody of unaccompanied minors to the Office of Refugee Resettlement (ORR) within the Department of Health and Human Services when it was signed into law on November 25, 2002. 86

The ORR has extensive experience in the child welfare area because it has resettled vulnerable and traumatized children for years. 87 Since 1975, ORR has resettled over 2.2 million refugees (adults and children). 88 ORR has resettled approximately 12,000 juveniles since 1980. 89 Advocates hope the ORR will improve conditions of detention, and hasten unaccompanied minors release to  [*875]  appropriate caregivers. 90 Alfred P. Carlton, Jr., president of the American Bar Association, referred positively to this change stating that "children who arrive at our borders alone and unprotected will no longer have their prosecutor serve as their caretaker." 91 Transferring unaccompanied minors' care to the ORR also eliminated some advocates' fear that the Department of Homeland Security, responsible for adult immigration enforcement, might over time "treat these [unaccompanied minors] as potential terrorists, regardless of the need to do so." 92 As such, it has removed the possibility of there being any conflict of interest on the part of one agency.

Additionally, the HSA recommended that ORR use the refugee child foster care system as a means to place unaccompanied minors until their status is resolved. 93 Refugee children have been placed through foster care, group care, independent living, or residential treatment. 94 Nguyen Van Hannah, head of ORR, said, "Our direction is to look into foster care as a major way to handle the children." 95 Lastly, the HSA required tracking unaccompanied minors so that advocates and attorneys could be informed of their status upon arrival. 96

Several substantive rights and improvements in asylum proceedings that the Kids Act would have guaranteed were omitted from the HSA. 97 Senator Feinstein, sponsor of the Kids Act, spoke negatively about choosing reorganization over reform when she said, "the provisions to provide them the critical help they need were left  [*876]  out." 98 These provisions included the right to a guardian ad litem to make a determination as to what was in the best interests of the child, government funded attorneys to represent those interests, the requirement that the best interest of an unaccompanied minor be paramount in the decision making process, as well as increased strength for special immigrant juvenile visas. 99 Training for judges and personnel administering unaccompanied minors' asylum claims was also omitted from the HSA. In response, Feinstein introduced a bill including many of the provisions omitted from the HSA. 100

By not adopting any of the substantive provisions of the Kids Act, Congress chose to take its traditional "path of least resistance" by reorganizing rather than addressing substantive issues regarding the rights of unaccompanied minor children. 101 Since the HSA requires a study to facilitate the best way attorneys may be appointed, 102 the substantive issues remain to be addressed.

III. Systemic Challenges: Obtaining Lawful Permanent Residence

A. Lawful Permanent Residence

An unaccompanied minor may obtain lawful residence in the United States depending on why they left their country of origin. Unaccompanied minors may apply for lawful permanent residence if they qualify as (1) a special immigrant juvenile, 103 (2) a victim of trafficking under the Violence Protection Act of 2000, 104 or (3)  [*877]  because they have been granted asylum. 105 The first two legal remedies take into account unique circumstances that children might encounter in which they played no active role. The third applies the same standard to children as applied to adults seeking asylum and remains the only remedy for a children who have played an active role in their transnational migration into the United States. 106

1. Victims of Trafficking

Under the Victims of Trafficking and Violence Protection act of 2000, if a child has been a victim of trafficking and suffered physical or mental abuse they would qualify for a U-visa and be allowed to remain in the United States. 107 If a child has suffered a "severe form of trafficking in persons," 108 and can demonstrate that they would suffer "unusual and severe harm if they were removed from the United States" 109 the child would qualify for a T-Visa. This legislation offers protection to the estimated 45,000 to 50,000 women and children illegally trafficked into the United States. 110 After successfully applying for a T-visa, a child would obtain a nonimmigrant visa valid for three years and could later apply for permanent residency status. 111

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2. Special Immigrant Juveniles

Unaccompanied minors, in the custody of a state's juvenile system, who have been abused or neglected while in the custody of another country, can petition the Attorney General to allow an application for special immigrant status. 112 If an application is made, the state court must then find that the child has been abused and neglected, and that it is in the child's best interest to remain in the United States. 113 If so determined, the unaccompanied minor will be placed in the foster care system and may eventually become a lawful permanent resident. 114

3. Children Seeking Asylum

Children fleeing persecution in their country of origin, or who are abused, can bring a claim for asylum if they have a "well founded fear of persecution based on race, religion, nationality, political opinion or membership of a particular social group." 115 "When an alien is seeking withholding of deportation, he bears the burden of demonstrating that it is "more likely than not' that he will be persecuted or tortured upon his return to the country in question." 116 This standard is both objective and subjective. Applicants must prove both the objective reasonableness of their fear of persecution as well as that they have subjectively experienced this fear. 117 A ten percent possibility of persecution is sufficient to establish a well-founded fear. 118

B. Systemic Challenges

Even if unaccompanied minors would satisfy these legal requirements, they often face difficulties that prevent them from obtaining lawful residency. The first challenge in meeting all of the above legal tests is that counsel is not appointed at the expense of the  [*879]  government, as it is in domestic criminal proceedings for children. 119 About eighty percent of unaccompanied minors wade through the complex process of obtaining lawful residency, outlined above, without representation. 120 Unaccompanied minors

encounter a stressful situation in which they are forced to make critical decisions. Their interrogators are foreign and authoritarian. The environment is new and the culture completely different. The law is complex ... . In short, it is obvious to the Court that the situation faced by unaccompanied minors is inherently coercive. 121

Even if a child has a viable claim under the current standards, without representation it is likely the children will be deported to their country of origin. 122 Unaccompanied minors are fifty percent more likely to win their claims and get protection if they have an attorney. 123 Rud Luubers, U.N. High Commissioner for Refugees, said that a "renewed commitment from countries around the world was needed, to ensure that children had access to asylum procedures and that they were assisted by legal representatives." 124

Responding to this "coercive" environment in 1998, the United States developed guidelines that provide advice on interviewing and processing an unaccompanied minor's claim for asylum. 125 Although the guidelines do not alter or provide substantive rights, they do recognize that during the asylum process a child may not be able to respond as an adult would and may need special interviewing procedures tailored to the child's developmental capacity. 126 However, as guidelines, they neither guarantee nor mandate judicial compliance with or training on the guidelines. 127

The second challenge for unaccompanied minors is that if their claims are appealed to Article III courts, Article III courts do not uniformly apply or adhere to the guidelines implemented for the purpose of assisting unaccompanied minors in asylum proceedings. The guidelines specifically establish that an unaccompanied minor should be interviewed in a child sensitive manner and their testimony given sufficient credibility even if a child has some gaps of  [*880]  recollection. 128 Interviewing remains a recommendation and not a requirement. For example, in Elian Gonzalez's highly publicized case, no interview was conducted and the Eleventh Circuit held that an interview was not required. 129

Additionally, "the guidelines recognize that children under the age of 18 may experience persecution differently from adults and may not present testimony with the same degree of precision as adults." 130 The guidelines, however, have not persuaded immigration judges to reevaluate their conceptions of children's testimony or of children as rights holders. 131 Immigration judges continue to deny asylum because of credibility issues 132 as well as disbelief that minors can hold political ideas for which they could be persecuted. 133 Applying the same asylum standard to children as to adults, without factoring in whether or not children have the developmental and psychological ability to prove they have been subjectively and objectively persecuted leads to denial of otherwise viable claims made by unaccompanied minors.

The third challenge that unaccompanied minors face is that immigration judges have a demanding docket requiring fast processing creating an almost insurmountable barrier for an unrepresented, unaccompanied minor to obtain asylum. EOIR has not systematically incorporated the guidelines into its adjudication, 134 and the reviewing body, the Board of Immigration Appeals (BIA) consists of nineteen judges responsible for processing 32,000 cases a year. 135 One immigration judge, speaking to the Human Rights Watch Child's Rights Project, stated:

All the INS people in Washington care about are the numbers, so we're under a lot of pressure just to move things along  [*881]  faster ... . That's a problem for kids, who can't get counsel. There are ways to get around rules and it's in the judge's discretion to decide who's a "responsible person.' In other judges' courtrooms, I just don't know what happens to these kids. There aren't enough lawyers for them ... . The kids are scared ... . Generally they don't know what the hell is going on. 136

Recognizing that these guidelines have not been implemented across the board, on February 1, 2002, then-INS Commissioner Ziglar outlined reforms at the National Immigration Forum as part of a new initiative to "revise the 1998 guidelines on children's asylum claims to reflect recent development in law and policy; and providing supplemental training following publication of the guidelines." A year later, nothing has been accomplished regarding this, despite the dire need, and Ziglar has been replaced by an acting Commissioner. 137

C. Compounding the Challenges: The Homeland Security Act

The HSA abolished the INS and transferred all of the INS's service functions to the Bureau of Citizenship and Immigration Services (BCIS), a department within the HSA. EOIR remained within the Department of Justice. 138 The EOIR is the only immigration body remaining under the Department of Justice supervised by the Attorney General. The effect of this transfer raises many concerns for advocates. Locating immigration services within the DHHS along with five other divisions raises three primary concerns: (1) that there will be competition for resources and resulting decrease of asylum seekers in the country; (2) that the mission of the new department aimed at keeping out terrorists will create a "paramilitary culture" at odds with assisting valid immigration services; and (3) that the nation's ability to both enforce immigration laws and prevent terrorist attacks would be diminished. 139

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IV. Substantive Challenges: Obtaining Asylum

A. Unaccompanied Minors' Experience Persecution Differently Than Adults

Understanding how an unaccompanied minors experience persecution is essential to adjudicating their asylum claims. Notably left out of the Homeland Security Act was a proposal in the original Senate version that would have required a report on the "worldwide situation faced by unaccompanied refugee children." 140 An assessment of the problems faced by unaccompanied minors is needed to create understanding that these children are persecuted around the world because of their status as children without a protective guardian. 141 The following is a brief and incomplete description of the persecution of unaccompanied minors and their increased likelihood of persecution. Human rights research should be continued to document the continued persecution of unaccompanied minors.

1. Displaced Unaccompanied Minors

The general hardships minors face are compounded because they face them without legally responsible caregivers. Rud Luubers, U.N. High Commissioner for Refugees, has said that refugee children "are often exposed to armed conflict, and lack of access to food, water, shelter and basic health care. They are vulnerable to manipulation and forced military recruitment and they are often exposed to HIV/AIDS." 142 Study findings show that unaccompanied children are vulnerable specifically because they are not protected by an adult responsible for their care. 143 The U.N. General Assembly has said  [*883]  that unaccompanied refugee minors to be "among the most vulnerable refugees and the most at risk of neglect, violence, forced military recruitment and sexual assault and therefore require special assistance and care." 144 A recent study aimed at assessing the refugee child's concerns identified that separated children or unaccompanied children face: "a greater risk of sexual exploitation and abuse... ; a greater risk of military recruitment; a greater risk of child labor... ." 145

Refugees "defy easy categorization because some face abuse and neglect at home, others face abuse and neglect in their own country while separated, yet others face persecution after they have become a refugee." 146 Children are displaced for reasons specific to their status as children: forced abduction in times of unrest, forced military recruitment, sexual abuse, and forced labor are examples of forms of refugee-producing phenomena which are either peculiarly meted out to children or which take on a dimension that can only be experienced by child refugees. 147

Children have also been increasingly used as soldiers in the developing world. The study explains that military recruits may be as young as ten years old. 148 Boys are generally used in military activities, while girls are "recruited" for purposes of sexual slavery and forced labor. 149 In one instance, approximately one hundred boys were conscripted from a refugee camp into the Sudan People's Liberation Movement/Army which had a base near a UNHCR refugee camp. 150

Young females are used for sexual slavery. Scholars have noted that girls are taken from refugee camps and "sold for sex to highly organized networks operating transnationally." 151 "Unaccompanied minors ... face a particular risk of sexual exploitation, abuse and violence since they may not have a trusted adult to protect and assist them." 152 Fourteen-year-old Vietnamese girls were trafficked into  [*884]  Cambodia for sex and arrested for illegally entering Cambodia by the same officers who freed them from being sexual slaves. 153 Minors are specifically targeted for sexual exploitation because it is believed that they are "less likely to be infected with HIV." 154

Unaccompanied minor refugee children also experience persecution different from that which adults suffer within newly formed care networks within refugee camps. For example, while in refugee camps, unaccompanied children band together to form groups usually headed by an older child. 155 In the newly formed unit the children are forced to work and are denied educational opportunities. 156 Many times an unaccompanied minor might be taken in by a stranger and suffer abuse, neglect, and exploitation by this caregiver. 157 Many caregivers are not related to the unaccompanied minors and are struggling economically. 158 These caretakers force the unaccompanied minors to work as cooks, in other forms of domestic labor, or in the marketplace, while their own children do not. 159 The unaccompanied minor is discriminated against in favor of the child for whom the foster parent is legally responsible. 160 Unaccompanied minors in a foster family unit complain of being given little food or eating only once a day while the other members of the new social unit eat twice. 161 Unaccompanied minors are often also physically and emotionally abused while the biological children of caretakers do not suffer similar abuses. 162 These unaccompanied minors suffer, "a kind of slavery ... the child thinks she has to obey, that she can't go anywhere." 163 Although these children would likely qualify for special immigrant status, they should also be able to qualify for asylum because of their persecution based on being a child without anyone legally responsible for their care.

 [*885]  According to the Convention on the Rights of the Child which secures "children separated from their parents ... the same rights as other children," 164 the UNHCR or the government where the refugee camp is located is responsible for their protection and assistance. 165

UNHCR is responsible for identifying separated children, monitoring their care, intervening if they are being abused or their needs are not being met ... . [However] it may be very difficult to obtain reliable information about what goes on within families or communities ... . When social workers do detect mistreatment ... [they] have few resources at their disposal and have seldom been able to do more than provide occasional assistance to the child or the family. 166

2. Unaccompanied Minor Street Children

Street children are also unaccompanied minors. Interestingly, many street children feel that other children within their street child group are "like a family." 167 In Spain, Moroccan migrant children are abused by Spanish police officers and then expelled to Morocco, where they are reported to be beaten again by the Moroccan police force and abandoned on the street. 168 Human Rights Watch published a report that details Spanish officials' abuse of unaccompanied minor children in an effort to force them to return to Morocco so that they will not drain welfare services which are guaranteed to them under Spanish law. 169 The Spanish government admits to failing to monitor the situation or remedy these abuses. 170 The children are in effect persecuted because of their very status as unaccompanied minors.

Street children also endure hardship in other countries. Guatemalan street children often experience violence including beatings and sexual assault by private security guards who report to the Interior Ministry. 171 These children are persecuted for their homeless status under the auspices of what the police deem to be "creating a public scandal." 172 "In December 1999, the Inter American  [*886]  Court of Human Rights ruled that two police officers were responsible for the 1990 deaths of five street youths and that the Guatemalan government had failed to protect the rights of the victims." 173 In Albania, children are exploited rather than protected by the police. "There are approximately 800 street children in Tirana. Trafficking in children for sex and, to a lesser degree, for begging rings was a serious problem ... . Albania is a country of origin and a transit country for trafficking. Police corruption and involvement in trafficking was a problem." 174 Reports have been made of abuse of Brazilian, Colombian, Indian, Kenyan, Egyptian, and Sudanese street children. 175 Human Rights Watch notes in some countries the "notion of social cleansing" is applied to street children even when they are not distinguished as members of a particular racial, ethnic, or religious group. Branded as "anti-social" or demonstrating "anti-social behavior," street children are viewed with suspicion and fear by many who would simply like to see street children disappear. 176

B. Unaccompanied Minors' Experience of Persecution is Not Adequately Accounted for in Application of the U.S. Definition of "Refugee"

International agreements granting protection to refugees in a host country were developed after World Wars I and II. 177 The international community sought to protect educated yet homeless Europeans and persons fleeing communism. 178 In the process, "special needs" refugees such as women, the elderly, children, and homosexuals were marginalized. 179 Some authors posit that asylum law and discourse have become biased in favor of "male, adult, heterosexual and able-bodied asylum seekers" because conventions were initially designed to protect them and have not been revised to reflect the changing circumstance of displaced persons. 180

 [*887]  This failure to provide specific remedies for the problems unique to children during the original convention was not due to these problems being unknown. 181 Rather, children's rights were thought to be derivative of their parents' rights and as such received no explicit attention. 182 Even following the almost universal ratification of the 1989 Convention on the Rights of the Child, children's status remains derivative in the refugee context. 183 This trend is even magnified in the United States which has not ratified the convention. 184

As derivative, "children are ascribed an essentially "passive' role. This role significantly posits that something or someone other than the child was the real focus of harm or persecution." 185 Conceptions of children as derivative clearly places unaccompanied minors at a disadvantage because they have no parent from which to derive status and are not viewed as individual targets for persecution. 186 The UNHCR says "it may be difficult for an unaccompanied minor to establish refugee status using the same refugee criteria and procedures applied to adults... . UNHCR encourages countries to ... determine the refugee status [of children] using the broadest possible interpretation." 187

The nature of war has changed, and that has exaggerated the danger to unaccompanied minors. 188 Increasingly, children are  [*888]  soldiers, casualties, and targets for crimes against humanity. 189 "Refugee children are in double jeopardy, because they are children and because they are refugees." 190 If a refugee child is in double jeopardy, an unaccompanied minor is in triple jeopardy: as a child, as a refugee, and as someone with no protector. Although they are subject to the same harsh conditions as are adults, their persecution does not end once the primary conflict or war is over. Rather, unaccompanied minors remain vulnerable to becoming victims of forced domestic labor, abuse, persecution, and denial of educational opportunities in their new care networks. They are targeted because of their status as children without the protection of a primary caregiver. Yet the same asylum standards created for adults are applied to children. 191

In hearings on the Kids Act, Senator Kennedy said, "We have no system now that recognizes that these are ... children first and ... newcomers second." 192 Although age alone cannot be the defining figure for a persecuted group, 193 there is a "need to fashion a jurisprudence that is responsive to the specificity of child persecution, in a legal context in which age has not previously been considered a relevant factor." 194 As the Fourth Circuit states "in the absence of statutory intent to apply a different standard to a juvenile, ... [the court] is not at liberty to substitute a different interpretation." 195 Congress, not the federal courts must therefore clearly express the intent that unaccompanied minors receive a different standard. Congress has begun the process of taking into account the circumstances of unaccompanied minors who have been trafficked or abused and neglected. 196 Yet, distinguishing these two groups from other types of unaccompanied minors has created a false dichotomy  [*889]  between children who are coerced into coming to the United States unaccompanied, and those who actively participate in their transnational migration in search of a safe haven. 197 As Jacqueline Bhabha, Executive Director of Harvard University's Human Rights Studies, said unaccompanied minors' "needs converge at the point of arrival in the host state." 198

V. Proposals for Change: Old and New

A. Create New Visa Status for Unaccompanied Minors

One solution for unaccompanied minors, not just unaccompanied minor refugee children, is to have Congress create a new non-immigrant visa based on their status as unaccompanied minors. 199 This solution may result in negative consequences such as separation of families over the long term. For example, if parents feel it is in their child's best interest to send him or her to the United States, upon arrival the child could be granted a non-immigrant visa. The United States should not encourage this separation and harm to the child by granting universal visas. 200 Children who are given visas for humanitarian reasons may still end up involved in smuggling, living as prostitutes, involved in crime, or murdered. 201 Abuse of a system aimed at assisting unaccompanied minors but not narrowly tailored could cause the idea of refugee protection to fall into disfavor. 202 Moreover, family reunification and unity has been a longstanding goal of immigration policy, and statutory provisions should not be created that would thwart this policy which is in the best interest of the child. 203

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B. Expand the Interpretation of Refugee to Include Unaccompanied Displaced Minors as a Specific Social Group

Congress adopted the 1980 amendment to the definition of refugee without providing any meaningful guidance on interpreting or defining its terms. A refugee, as noted above, is someone who has a "well founded fear of persecution based on race, religion, nationality, political opinion, membership of a particular social group." 204 Race, religion, and nationality are relatively determinate. Defining what constitutes persecution and membership in a particular social group has posed significant challenges for courts. 205 There is no universal definition of social group or persecution.

No court has ruled that unaccompanied displaced minors constitute a particular social group capable of experiencing persecution because of their membership in this group. The guidelines do not mention the possibility that unaccompanied displaced minors could constitute a particular social group. Rather, the guidelines stipulate that age and generally harsh conditions suffered by many cannot define a particular social group. 206 However, unaccompanied minors experience persecution unique to their circumstances which the definition of refugee should be expanded to recognize.

1. Displaced Unaccompanied Minors Meet the Current Standard and Should Therefore Be Recognized as a Persecuted Social Group

Persecution must be due to one of the five enumerated grounds to be granted asylum, the last of which is membership in a particular social group. Courts have defined the term "social group" because it is not defined in the Act. 207 The First, Third, and Seventh Circuits follow a standard 208 based on a BIA decision, Matter of Acosta, which suggests that a social group must be based on a

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shared characteristic that might be an innate one such as sex, color, or kinship ties... . The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis... .whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences. 209

The Ninth Circuit allows for a social group to be comprised of a "voluntary associational relationship or by an innate characteristic that is so fundamental to the identities or conscience of its members that members either cannot or should not be required to change it." 210 This standard parallels the UNHCR's definition of a social group. The UNHCR defines social group as "persons of similar background, habits or social status." 211 The Second Circuit defines a particular social group as one "comprised of individuals who possess some fundamental characteristic in common which serves to distinguish them in the eyes of the persecutor or in the eyes of the outside world in general." 212

As the INS guidelines illustrate, membership in a particular social group cannot be based on broad characteristics such as youth and gender. 213 Furthermore, the guidelines also state that, "the type of harm a child may suffer cannot serve to define the particular social group on account of which that particular harm is suffered." 214 The reason that these children are persecuted or targeted for military service is because they lack parents to protect them. Their vulnerability is a product of their lack of a primary caregiver. This characteristic distinguishes them from other youth and can serve to define them as a group. Unaccompanied minors largely lack the ability to change their circumstances. Although unaccompanied minors suffer similar types of harms, under either the voluntary association or innate characteristic standards, unaccompanied minors should be recognized as a social group capable of experiencing persecution.

Unaccompanied minors suffer persecution on account of their membership in a social group of children without primary caregivers to look out for their interests. The BIA has defined persecution to  [*892]  include "threats to life, confinement, torture, and economic restrictions so severe that they constitute threat to life or freedom, ... physical or mental harm ... [and] discriminatory practices [that] can accumulate over time or increase in intensity so that they may rise to the level of persecution." 215 Persecution must be proved by objective facts that show that past persecution can be inferred or that there is a risk of future persecution. 216 After persecution has been objectively proven, the applicant must prove that they have actually been persecuted or fear persecution. Persecution need not consist of "country-wide civil strife and anarchy." 217 The BIA has stated that "Congress specifically rejected a definition of "refugee' ... that would have included "displaced persons,' i.e., individuals who flee widespread conditions of indiscriminate violence resulting from civil war or military strife in a country." 218

Unaccompanied minors in refugee camps generally become separated from their parents and displaced as a direct result of civil conflict. This said, the guidelines for unaccompanied minors point out that "generally harsh conditions shared by many other persons do not amount to persecution." 219 Consequently, the grave experience and existence of unaccompanied minors under their "generally harsh conditions" do not prove they have been either objectively or subjectively persecuted. However, individual unaccompanied minors suffer physical and mental abuse as well as receiving so little food that it could constitute a threat to their lives. The discrimination against unaccompanied minors as compared with the biological children of the caretakers rises to the level of persecution when they are denied educational opportunities and forced into domestic labor. Unaccompanied minors are also specifically targeted for military conscription because they are more malleable than adults and have no adult to protect them.

2. Street Children Recognized as a Specific Social Group of Unaccompanied Minors

Support for expanding the definition of refugee to encompass unaccompanied minors comes from a recent decision that a street child, if returned to his country of origin, would suffer persecution based on membership in a particular social group of street children. In November 2001, an unaccompanied minor street child was considered for the first time to be part of a particular social group of  [*893]  other unaccompanied minors and granted asylum. 220 The immigration judge relied on the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, not the U.S. government guidelines, to determine that "sensitivity to the age of the child might affect the analysis of his or her refugee status." 221 In this case, a sixteen-year-old native of Guatemala would become part of a group of "street children" if returned to Guatemala. 222 The immigration judge relied on Acosta's definition of a social group: a group which shares a "protected characteristic [of which] the prosecutor could become aware [ ], and that the persecutor has the means and inclination to persecute ... to be defined on a case by case basis." 223 The judge concurrently applied the Sanchez-Trujillo definition of social group as "a collection of people closely affiliated with each other, who are actuated by some common impulse or interest." 224

3. Displaced Unaccompanied Minors Are Similar to Unaccompanied Minor Street Children

Unaccompanied minors in refugee camps share characteristics and experience similar persecution to that of street children. Often times, unaccompanied minor refugee children band together to form new care groups in refugee camps led by an elder girl child for their protection and survival. The "characteristic" that unaccompanied minors share is their unaccompanied status in their home country which leaves them open to persecution. They face similar persecution to that of street children, such as physical and sexual abuse from which neither their government nor the UNHCR protects them. All these children should be considered a social group.

The definition of refugee should be explicitly expanded to include unaccompanied minor refugee children who suffer persecution, and have a well-founded fear of persecution at the hands of the new caretaker or an outside group that preys on children living together. 225 Membership in a particular social group was last expanded when the BIA recognized gender as a possible reason for persecution. 226 Expanding the interpretation to include unaccompanied minors would promote the purpose of the Refugee Convention. 227

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C. Ratify the Convention on the Rights of the Child

One last possibility that would grant unaccompanied minors more extensive rights within the refugee context is if the United States ratified the Convention on the Rights of the Child. One hundred and ninety state parties have explicitly recognized children's vulnerability by adopting the Convention on the Rights of the Child. 228 The United States has signed but has not ratified the convention, and until it becomes ratified it does not have the force of law. 229 The United States remains one of only three member states that have not ratified the Convention. 230 At the U.N. General Assembly Special Session on Children, supporters of the Convention, accused the United States of trying to marginalize the Convention and prevent it from becoming the "global standard" that the rest of the world recognizes for children's rights. 231

If the United States does not ratify the Convention, it could theoretically be bound under the CRC if it has "acquired the status of customary international law" not contrary to domestic laws. 232 However, because so many non-optional provisions are contrary to domestic law, it is unlikely that the CRC would ever bind the United States if it does not ratify the convention itself.

The United States is unlikely to ratify the CRC because of numerous articles that face U.S. opposition. 233 Moreover, "contrasting obligations" within the CRC make it unlikely that even if ratified it would have the force to give children new substantive rights within the refugee convention. 234 Additionally, the committee who reviews  [*895]  compliance with the CRC criticizes many of the countries that have adopted it for failure to meet its standards. 235

VI. Conclusion

Everyone wants to help children. No one ever answers the question of why so many children still suffer. 236 Advocates and politicians have taken the first steps towards alleviating unaccompanied minors' suffering in U.S. custody by changing their custodians. However, "reform lies in politicians' recognition that "restructuring alone is not going to solve all the problems, [but rather] just begins the effort' of reexamining the assumptions, goals, and approaches of immigration policy." 237 It is important to reexamine the assumptions, approaches, and goals of immigration policy for unaccompanied minors. At the very least, unaccompanied minors deserve legal counsel and help with the research necessary to document their claims. Unaccompanied minors should be considered as children who experience different forms of persecution because of their unaccompanied status and not under the same standards applied to adult asylum seekers. Expanding the definition to include recognition of unaccompanied minors as a social group would protect their interests and align U.S. immigration law with international norms.

 

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