Arturo is a young, shy boy, who was caught by the U.S. Border Patrol after fleeing the severe violence in Central America . Like thousands of others, he will spend the next months navigating the complex immigration system to try to prove his right to stay. The Mexican government, pushed by the Obama administration, stops many of these children before the American border so less are apprehended at the border. However, the crisis has now shifted into the courtrooms where many of these young defendants face immigration proceedings without enough adequate legal representation.
An unaccompanied alien child (UAC) is a person who, “(A) has no lawful immigration status in the United States, (B) has not attained 18 years of age, (C) with respect to whom – (i) there is no parent or legal guardian in the United States, or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.” See Homeland Security Act (HSA) of 2002, Pub. L. 107-296, § 462(g), 116 Stat. 2135, 2205 (2002).
These children are escaping various forms of severe violence like gang violence, intrafamiliar abuse, abandonment, exploitation, forced marriage, female genital mutilation and trafficking for sexual and labor exploitation because of a lack of governmental and family protection. Many UACs seek Special Juvenile Immigrant Status when they would actually might also deserve asylum.
A Treacherous Journey is a report analyzing the fundamental inadequacies the immigration system’s treatment of unaccompanied minors. The William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008 included provisions to increase the legal protection for unaccompanied minors confronted with the complex immigration law system such as: (a) improving access to legal counsel for UAC, (b) appointing child advocates, (c) maintaining efforts in ensuring safe repatriation to their home countries, and (d) modifying Special Immigration Juvenile Status relief, and (e) the U.S. Citizenship and Immigration Services (USCIS) having initial jurisdiction over UAC asylum application. Unfortunately, the TVPRA mandate law’s regulations have not been issued and the provisions fail to fully protect the children’s legal rights and best interest. Children also face substantive, procedural challenges and comprehensive services the children face and need for their immigration proceedings. In addition, many of these children also need to deal with the trauma of the violence experienced in their home country, or during their escape journey to the United States.
Children are treated like miniature adults by the immigration judges and asylum officers, leading to the denial of many valid asylum claims. Children seeking asylum must meet the same refugee definition as adults: “any person who is outside any country of such person’s nationality, or in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of past persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” See INA § 101(a)(42), 8 U.S.C. § 1101. Despite humanitarian crises around the world, particularly in Central America, children are being repatriated to the same dangerous country conditions where a fear of death is real.
Even if the refugee definition of an adult and a child is the same, the United Nations High Commissioner for Refugees (UNHCR) and the United States established international and domestic guidelines to set up a child sensitive analytical framework to protect children’s best interest, a principle already recognized by the International and American child welfare and juvenile justice system. Yet, asylum is a discretionary relief and these guidelines are not binding, which creates inconsistent outcomes for very similar cases and results in children’s human rights violations. Accordingly, the child sensitive approach and guidelines are essential to protect children’s rights and best interest. This report recommends decision makers take into consideration the developmental immaturity, heightened vulnerability, greater challenges, and forms and manifestations of persecution unique to children.
First, adjudicators should recognize that children experience and fear harm very differently from adults. To determine persecution, the adjudicators must take into account the child’s perspective, family members’ fear(s) of the child persecution, and objective evidence of future persecution. Adjudicators should also apply a “liberal benefit of the doubt”, meaning that more than one inference can be drawn when looking at the evidence for future persecution. Then, the state’s inability to protect should question whether governmental protection is effective and ensures children’s rights. For instance, in one case the Immigration Judge concluded that Guatemala’s efforts to protect and prevent persecution of street children was “grossly inadequate” since there was not any enforcement of crime prosecution, nor any shelter or services for the street children.
The nexus is the causal link between the persecution experienced and the future fear of persecution on account of the membership to a particular social, racial, nationality, religious, or political group. Based on the U.S. and UNHCR guidelines for children’s asylum claims, circumstantial evidence of the societal context, like country condition reports and experts, is useful and sufficient to establish the nexus. Furthermore, asylum claims are denied if internal relocation to another part of the country is reasonable, which should depend on the child’s age, development, mental status and vulnerability.
This report proposes, among other concrete initiatives, that the DHS and DOJ issue asylum regulations that comply with the TVPRA’s provision for the “specialized needs of unaccompanied alien children.” Also, the U.S. and UNHCR guidelines along with the Refugee, Asylum, and International Operations Combined Training Courses Materials should assist adjudicators to better determine each asylum elements, particularly the nexus. With the crisis having shifted to the courts, the U.S. government must recognize the humanitarian crisis these children are escaping and change the way they are treating their claims to ensure the protection of their best interests and human rights.