To protect the defenseless: the need for child-specific substantive standards for unaccompanied minor asylum-seekers.

• Author: Villareal, Danuta

1. INTRODUCTION II. UNACCOMPANIED REFUGEE CHILDREN A. Definition B. Reasons Why Children Leave Their Countries of Origin III. OVERVIEW OF ASYLUM LAW A. 1951 United Nations Convention Relating to the Status of Refugees and 1967 United Nations Protocol Relating to the Status of Refugees B. Application of the 1951 Convention to National Laws C. Selected Definitional Requirements 1. Persecution 2. Well-founded fear 3. "On account of" 4. Race 5. Religion 6. Nationality 7. Social Group 8. Political Opinion IV. CHILD-SPECIFIC APPROACH TO ASYLUM A. The Convention on the Rights of the Child 1. International Rights of the Child 2. Best Interests of the Child 3. Opportunity to Express Views 4. Other Obligations B. Special Guidelines for Determining Child Refugee Status 1. United Nations' Guidelines 2. Immigration and Naturalization Service Guidelines C. Special Problems with Child Asylum Claims 1. Articulating Acceptable Asylum Grounds 2. Proving Past Persecution 3. Proving Well-founded Fear of Persecution 4. Proving Persecution on Account of Political Opinion 5. Proving Persecution on Account of Membership in a Particular Social Group V. RELIEF A. Congressional Mandate B. Congressional and Agency Policy Changes C. Judicial Intervention VI. CONCLUSION I. INTRODUCTION

   Today, approximately half of the world's refugees are children, totaling twenty million world-wide. (1) Tragically, these children often receive no protection against the raging vices of war, civil conflict, and human rights abuses. (2) Moreover, while they may flee their home countries for the same reasons as adult asylum-seekers--to escape armed conflict, persecution, and poverty--they also flee from child-specific human rights violations, family abuse, and neglect. (3) Some of the child-specific human rights abuses are completely unrelated to armed conflict or civil unrest (4) as countless children fall prey to child trafficking, bonded labor, child prostitution, and child pornography. (5) Others experience the trauma of certain cultural practices such as female genital mutilation, forced child marriage, and religious sexual servitude. (6) Finally, they may be denied the most basic rights of family, home, or education. (7)

   Although many children eventually seek refuge in Western Europe or the United States, (8) immigration authorities may deny their asylum claims as unfounded. (9) In order to qualify as a refugee, one must have a well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. (10) Unfortunately, many of the reasons why children flee from their home countries do not qualify them for refugee status. (11) Although children are generally eligible for asylum on the same terms as adults, they are often viewed as "appendages of their families." (12) If they are deemed refugees, it is by virtue of the asylum granted to the adult with whom they are traveling. (13) Unaccompanied refugee children, however, must provide their own basis for the asylum claim, and unfortunately, the specters of deprivation and abuse they flee do not readily satisfy the current definition of a "refugee." (14)

   This comment focuses on the plight of unaccompanied refugee children in the asylum system. It calls for flexible substantive child-specific standards based on the best interests principle, which should be applied to unaccompanied refugee child asylum claims. Part I explains who unaccompanied refugee children are and the forces behind their refugee status. Part II expounds the relevant issues in asylum law. Part III explores special guidelines for determining child asylum claims. Finally, Part IV proposes remedial measures and child-specific substantive changes in the area of unaccompanied children's asylum issues.

2. UNACCOMPANIED REFUGEE CHILDREN

   1. Definition

      Some of the children (15) seeking refuge in the United States and Western European countries are totally alone, while others may be traveling with relatives or other adults. (16) The children in the latter group may seem accompanied; however, the adults with whom they travel are not necessarily qualified to care for them. (17) Recognizing the need for special treatment of these children, the United Nations High Commissioner for Refugees (UNHCR) defines unaccompanied children as "children under eighteen years of age who have been separated from both parents and are not being cared for by an adult who, by law or custom, is responsible to do so." (18) In view of recent experience, however, UNHCR recognizes that even though many children have been separated from their legal or customary caregiver, they may not actually be unaccompanied. (19) Although such children may be traveling or living with an adult, sometimes even an extended family member, they still face many of the same risks encountered by unaccompanied refugee children. (20) Thus, the broader term, "separated children," which refers to "children under eighteen years of age who are separated from both parents or from their previous legal or customary primary caregiver," (21) better expresses some of the potential protection needs of these children. (22)

      U.S. law combines both of the above approaches; (23) although U.S. law uses the term "unaccompanied alien child," the concepts embodied in it reflect the broader idea of "separated children." (24) Under the U.S. definition, an "unaccompanied alien child" is one who

      (A) has no lawful immigration status in the United States;

      (B) has not attained 18 years of age; and

      (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. (25)

   2. Reasons Why Children Leave Their Countries of Origin

      There are numerous reasons why children may feel compelled to leave their home countries. (26) The European members of the Save the Children Alliance have recently sponsored a study of 218 cases of unaccompanied children who had traveled to Europe. (27) The study results showed that among the reasons why these children left their homes were the following:

      violent death of parent(s), sometimes in front of child; detention and torture of child; armed conflicts that target child civilians; genocide; forced recruitment of children into armed forces, some under 10 years of age; trafficking of children for the purposes of prostitution under brutal conditions; persecution of child's ethnic group; denial of education due to the child's ethnic identity; political activities of the child or child's family members resulting in persecution; rape and sexual assault; abuse and/or abandonment by parents; poverty and complete lack of opportunity. (28) III. OVERVIEW OF ASYLUM LAW

   1. 1951 United Nations Convention Relating to the Status of Refugees and 1967 United Nations Protocol Relating to the Status of Refugees (29)

      A person's eligibility for asylum turns upon whether the person fits within the conventional definition of a refugee. (30) The 1951 Convention (31) applies the term "refugee" to any person seeking protection outside the borders of his or her own country owing to "well-founded fear of being persecuted for reasons 'of race, religion, nationality, membership of a particular social group or political opinion." (32) As a result, under the 1951 Convention, the international community does not have to accept purely humanitarian refugees who face a generalized danger to their life or liberty because of war or political unrest in their home countries. (33) Likewise, the 1967 Protocol includes the 1951 Convention's definition of a "refugee"; however, it does so without the geographic and temporal limitations of the 1951 Convention . (34)

   2. Application of the 1951 Convention to National Laws

      The 1951 Convention has become a major guideline for dealing with refugees. In the European Union, all member states have ratified the Convention and used its definition of "refugee" in their national laws. (35) Likewise, the United States has integrated the 1951 Convention's definition of a "refugee" into its law. (36)

   3. Selected Definitional Requirements

      1. Persecution (37)

         Persecution is an unjustified threat of serious harm, including, but not limited to, a threat to life or freedom on account of race, religion, nationality, political opinion, or membership in a particular social group. (38) The Board of Immigration Appeals defined "persecution" as a "threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive." (39) Persecution can result from both governmental and non-governmental action that the government is either unwilling or unable to control. (40) Examples of persecution, as applied to adult asylum-seekers, include discrimination, if the government-imposed restrictions are clearly prejudicial; prosecution based on an individual's race, religion, nationality, social group, or political opinion; restrictive economic measures directed at a specific racial, religious, national, social, or political group; and gender-based persecution, including domestic violence, and rape. (41)

      2. Well-founded fear

         To qualify for asylum, the applicant must establish a well-founded fear of persecution. (42) Both subjective and objective evidence are used in determining whether a well-founded fear of persecution exists, that is, a refugee's "frame of mind ... supported by an objective situation." (43) The most convincing evidence is that of past persecution, (44) although a reasonable risk of future or hypothetical future persecution may also amount to a well-founded fear. (45)

      3. "On account of"

         The U.S. law imposes on prospective asylum applicants an additional requirement not found in the 1951 Convention. (46) Namely, applicants must demonstrate that their fear of persecution is "on account of' one of five reasons enumerated in the statute: race, religion, nationality, social...