Changes in Unaccompanied Immigrant Children Laws in the U.S.

1. HISTORY OF IMMIGRATION LAW REGARDING UNACCOMPANIED MINOR CHILDREN

Introduction

U.S. immigration policy is being made in an age of rights. Civil rights have been a central part of the discourse shaping the debate over U.S. immigration policy since at least the 1960s. Prior to this time, widespread racism made a restrictive national immigration policy politically viable. However, since the 1960s, the idea that fairness and non-discrimination should fundamentally shape U.S. immigration policy has predominated in the immigration policy debate in this country. As a result, the U.S. government has faced increased difficulty in passing effective restrictions on either illegal or legal immigration.

Some of the children seeking refuge in the United States are totally alone, while others may be traveling with relatives or other adults[1]. The children in the latter group may seem accompanied; however, the adults with whom they travel are not necessarily qualified to care for them[2]. 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”[3].

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. 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. 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,” better expresses some of the potential protection needs of these children.

U.S. law combines both of the above approaches[4]; although U.S. law uses the term “unaccompanied alien child,” the concepts embodied in it reflect the broader idea of “separated children.” 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.

Reasons Why Children Leave Their Countries of Origin

There are numerous reasons why children may feel compelled to leave their home countries[5]. 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. 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[6].

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

A person’s eligibility for asylum turns upon whether the person fits within the conventional definition of a refugee. The 1951 Convention 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[7].”

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. 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[8].

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. Likewise, the United States has integrated the 1951 Convention’s definition of a “refugee” into its law[9].

CHILD-SPECIFIC APPROACH TO ASYLUM

The Convention on the Rights of the Child

1. International Rights of the Child

“Humankind owes the child ‘the best it has to give.”‘ Because children are the building blocks for a solid human rights culture, guaranteed human rights for today’s children are an investment in the future. Children often suffer the same human rights abuses as adults; however, they necessarily depend on the world of adults to protect them. Thus, the most vulnerable and disadvantaged children within a country’s borders, unaccompanied minors seeking asylum, should see their rights realized and protected by government[10].

“Any framework for the adjudication of child asylum claims must consider the provisions of international human rights instruments.” These instruments, as well as the obligations owed by host states toward individuals seeking asylum within their borders, are important in considering the states’ obligations toward their citizens.

Therefore, the provisions of the Convention on the Rights of the Child (CRC) should be of central importance in adjudicating child asylum claims. “The CRC provides a new child-centered perspective on questions of rights and establishes a near-universal set of internationally endorsed and validated standards for children.[11]”

The issue of refugee children and children seeking asylum is specifically addressed in Article 22 of the CRC. This provision mandates the signatories of the CRC to provide these children with appropriate protection and humanitarian assistance. Consequently, in cases of unaccompanied minors, they “shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason.”

2. Best Interests of the Child

Article 3 of the CRC states: “[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” As UNHCR correctly concludes, this rule also applies to lawmaking and government administration, Hence, Article 3 of the CRC is not only relevant when determining procedural questions, but also when considering substantive issues pertinent to child asylum claims, such as “defining the behavior that amounts to persecution of a child, the circumstances that give rise to a well-founded fear of persecution in a child, and the threshold that a child must meet to discharge his or her burden of proof.”

Similarly, determination of child asylum claims by an appropriate body, whether it is action of the court of law or an administrative authority falls within the scope of Article 3. Therefore, in making decisions that will have a long-term effect on the child, adjudicators of asylum claims should give primary considerations to the child-applicant’s best interests[12].

The only significant shortcoming of the best interest’s principle is its lack of well-defined criteria. The CRC does not list any factors to consider in determining what constitutes a child’s best interests, or whether the child-applicant’s or the interviewing adult’s values should be controlling. One cannot rule out the possibility that “the value judgments and impressions of those responsible for determining the … refugee status … of immigrant minors, can potentially interfere with the application of the best interests test,” which can become especially problematic in the asylum interview context where an adult interviewer must filter child experiences through the interviewer’s own value system.

Congressional Mandate

In the United States, the Constitution endows Congress with the plenary power to regulate immigration policy and rates. Accordingly, the U.S. federal court system is generally deferential to Congress and those departments and agencies within the executive branch entrusted with reviewing immigration law matters, partly because Congress appointed the former INS, now incorporated into DHS, as the agency responsible for implementing immigration law public policy. The Supreme Court has also consistently avoided involvement in immigration law matters adhering to the separation of powers doctrine, or political question doctrine.

Therefore, the U.S. Congress is the appropriate forum for consideration of any substantive changes in determining unaccompanied minors’ asylum claims. It is not only the body constitutionally charged with regulating immigration matters, but also the one that, through the legislative process, considers arguments on all sides of the issue. Both “Congress and the public [would] have the opportunity to consider the psychological and physical trauma unaccompanied minors experience in their home countries” if Congress were the forum for effecting changes in United States’ asylum law[13].

“Congress [would also] have the opportunity to consider the protection children are granted by other areas of law and determine if alien children will receive similar protection in America’s asylum law.” Bringing the issue of substantive asylum claims of unaccompanied minors before Congress would provide the perfect opportunity to “fully develop the depth of the issue in the context of international and domestic expectations on the treatment of children who have been traumatized through no fault of their own.[14]” Congress could then consider whether amending the Immigration and Nationality Act “would further the humanitarian policy reasons underpinning grant of asylum.”

Congressional and Agency Policy Changes

Both Congress and the former INS have demonstrated, through their policy decisions, the willingness and need for adjustment of the current approach to immigrant children. First, the former INS introduced the INS Guidelines, which constituted a policy response to the international changes in the procedures employed in dealing with unaccompanied children seeking asylum.

Second, unaccompanied children may overcome the filing restrictions that require all applicants to submit their applications within one year of entering the United States. The child applicant may show “extraordinary circumstances,” thus exempting this requirement, by demonstrating that the child applicant was an unaccompanied minor during his or her first year in the United States.

The federal regulations make yet another exception for unaccompanied minors. Namely, they provide unaccompanied minors an exemption from “expedited removal,” whereby an asylum-seeker can be immediately returned to his or her homeland before the asylee even enters the United States. Under expedited removal, immigration inspectors may remove individuals at their port of entry without the possibility of further hearing or review.

In the case of unaccompanied minors, however, “the INS instructed its field officers to place most unaccompanied minors in regular removal proceedings rather than expedited removal.” Immigration inspection officers are advised to only depart from this recommendation “if the minor commits an aggravated felony in the presence of the INS officer, has been convicted or adjudicated delinquent of an aggravated felony either within or outside the United States, or has previously been ordered removed from the United States.[15]”

Another protective mechanism built into the asylum system prevents an immigration judge from accepting admission of removability from an individual under eighteen years of age who is not accompanied by a legal representative, near relative, legal guardian, or friend. An immigration judge must exercise “particular care” in determining a minor’s removability and must take into account the minor’s age and status as an unaccompanied minor. If a child is under fourteen years of age, the government must personally serve the Notice to Appear on the person with whom the minor resides, and should attempt to also personally serve the near relative, guardian or friend.

In addition, recent Homeland Security legislation transferred the responsibility for the care and placement of unaccompanied children to the Office of Refugee Resettlement (ORR). ORR is charged with ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child, making and implementing placement determinations, implementing policies with respect to children’s care, encouraging the use of the refugee foster care system whenever possible, conducting inspections of facilities and other entities in which unaccompanied children reside, and compiling and updating lists of qualified professionals who provide guardian and attorney representation services for unaccompanied children. The aforementioned developments are indicative of a trend toward recognizing children’s rights and tailoring public policy and law to children’s best interests.

BIBLIOGRAPHY

(1.) Halvorsen, supra note 3, at 34.

(2) noting that the exact nature of the relationship to the adult should be assessed because child trafficking is a serious problem.

(3) UNITED NATIONS HIGH COMM’R FOR REFUGEES, TRENDS IN UNACCOMPANIED AND SEPARATED CHILDREN SEEKING ASYLUM IN EUROPE, 2000, at http://www.separatedchildren-europeprogramme.org/Global/Documents/Eng /Statistics]Trends.htm.

(4) Homeland Security Act of 2002, Pub. L. No. 107-296, [section] 462(g)(2)(A)-(C), 116 Stat. 2135, 2205 (2002) (to be codified in 6 U.S.C.A. [section] 279).

(5) UNITED NATIONS HIGH COMM’R FOR REFUGEES, SEPARATED CHILDREN SEEKING ASYLUM IN CANADA 7 (July 2001), available at http://www.web.net/~ccr/separated.PDF (adopted from an original report researched and written by Wendy Ayotte).

(6) ENDY AYOTTE, SEPARATED CHILDREN COMING TO WESTERN EUROPE: WHY THEY TRAVEL AND HOW THEY ARRIVE 9 (2000). For example, thirteen-year-old Edwin escaped from life with his cousin who had forced him to beg on the streets and beat him with car tools if he did not return home with enough money; two-year-old Got was sold by his mother to human smugglers and used by them as a decoy; seven-year-old Fega was abandoned in the United States by her mother, an illegal alien who was afraid to claim her. David Oliver Relin, Who Will Stand Up for Them?, PARADE MAGAZINE, Aug. 4, 2002, at 4-5

(7) Hailbronner, supra note 30, at 168.

(8) 1967 Protocol, supra note 29, art. 1. The 1967 Protocol was a response to the emergence of new refugee crises. It addressed the need to make the provisions of the 1951 Convention apply to such new refugees. UNHCR HANDBOOK, supra note 30, para. 2.

(9) Sabine Weidlich, Comment, First Instance Asylum Proceedings in Europe: Do Bona Fide Refugees Find Protection?, 14 GEO. IMMIGR. L.J. 643, 646 (2000).

(10) UNICEF, The Convention on the Rights of the Child, at http://www.unicef.org/Lisa Rodriguez Navarro, An Analysis of Treatment of Unaccompanied Immigrant and Refugee Children in INS Detention and Other Forms of lnstitutionalized Custody, 19

(11)  The Convention on the Rights of the Child has influenced the UNHCR guidelines and Canadian guidelines for managing refugee children.

(12) Lisa Rodriguez Navarro, An Analysis of Treatment of Unaccompanied Immigrant and Refugee Children in INS Detention and Other Forms of lnstitutionalized Custody, 19 CHICANO-LATINO L. REV. 589, 609 (1998).

(13) In other areas of U.S. jurisprudence, children are held to different standards than adults. See Id. at 14-17. In contract law, for example, the infancy doctrine and the lack of capacity doctrine make contracts entered into by minors voidable. Id. at 14. Likewise, under the tender years doctrine of tort law, children under a certain age are considered to lack capacity to incur responsibility for their tortious conduct, and the standard of care employed for children differs from that expected of adults. Id. at 15-17.

(14)  Nogosek, supra note 186, at 22

(15) YOUNG, supra note 1, at 7 (citing Memorandum fro the INS Office of Programs, Unaccompanied Minors Subject to Expedited Removal (Aug. 21, 1997)).

(16) Germain, supra note 50, at 40.

(17) Immigration and Nationality Act [section] 101(a)(42)(A), 8 U.S.C.A. [section] 1101(a)(42)(A)(2005).

(18) Immigration and Nationality Act [section] 208(d)(5)(A)(i), 8 U.S.C.A. [section] 1158(d)(5)(A)(i) (2005).

(19) PROTECTING THE RIGHTS OF CHILDREN, supra note 1, at 7.

(20) PRISON GUARD OR PARENT, supra note 5.

(21) HUMAN RIGHTS WATCH, DETAINED AND DEPRIVED OF RIGHTS: CHILDREN IN THE CUSTODY OF THE U.S. IMMIGRATION AND NATURALIZATION SERVICE, LEGAL STANDARDS [paragraph] 4 (1998), http://www.hrw.org/reports98/ins2/berks98d-01.htm#TopOfPage.

(22) ADMINISTRATION FOR FAMILIES & CHILDREN, OFFICE OF REFUGEE RESETTLEMENT, THE UNACCOMPANIED REFUGEE MINORS PROGRAM, at http://www.acf.hhs.gov/programs/orr/programs/urm.htm.

(23) Unaccompanied Alien Child Protection Act of 2005, S. 119, 109th Cong. [subsection] 101-304 (2005).

[1] Halvorsen, supra note 3, at 34

[2] noting that the exact nature of the relationship to the adult should be assessed because child trafficking is a serious problem.

[3] UNITED NATIONS HIGH COMM’R FOR REFUGEES, TRENDS IN UNACCOMPANIED AND SEPARATED CHILDREN SEEKING ASYLUM IN EUROPE, 2000

[4] Homeland Security Act of 2002, Pub. L. No. 107-296, [section] 462(g)(2)(A)-(C), 116 Stat. 2135, 2205 (2002) (to be codified in 6 U.S.C.A. [section] 279).

[5] UNITED NATIONS HIGH COMM’R FOR REFUGEES, SEPARATED CHILDREN SEEKING ASYLUM IN CANADA 7 (July 2001), available at http://www.web.net/~ccr/separated.PDF (adopted from an original report researched and written by Wendy Ayotte).

[6] WENDY AYOTTE, SEPARATED CHILDREN COMING TO WESTERN EUROPE: WHY THEY TRAVEL AND HOW THEY ARRIVE 9 (2000)). For example, thirteen-year-old Edwin escaped from life with his cousin who had forced him to beg on the streets and beat him with car tools if he did not return home with enough money; two-year-old Got was sold by his mother to human smugglers and used by them as a decoy; seven-year-old Fega was abandoned in the United States by her mother, an illegal alien who was afraid to claim her. David Oliver Relin, Who Will Stand Up for Them?, PARADE MAGAZINE, Aug. 4, 2002, at 4-5

[7] Hailbronner, supra note 30, at 168.

[8] 1967 Protocol, supra note 29, art. 1. The 1967 Protocol was a response to the emergence of new refugee crises. It addressed the need to make the provisions of the 1951 Convention apply to such new refugees. UNHCR HANDBOOK, supra note 30, para. 2.

[9] Sabine Weidlich, Comment, First Instance Asylum Proceedings in Europe: Do Bona Fide Refugees Find Protection?, 14 GEO. IMMIGR. L.J. 643, 646 (2000).

[10] UNICEF, The Convention on the Rights of the Child, at http://www.unicef.org/crc/convention.htm

[11] The Convention on the Rights of the Child has influenced the UNHCR guidelines and Canadian guidelines for managing refugee children.

[12] Lisa Rodriguez Navarro, An Analysis of Treatment of Unaccompanied Immigrant and Refugee Children in INS Detention and Other Forms of lnstitutionalized Custody, 19 CHICANO-LATINO L. REV. 589, 609 (1998).

[13] In other areas of U.S. jurisprudence, children are held to different standards than adults. See Id. at 14-17. In contract law, for example, the infancy doctrine and the lack of capacity doctrine make contracts entered into by minors voidable. Id. at 14. Likewise, under the tender years doctrine of tort law, children under a certain age are considered to lack capacity to incur responsibility for their tortious conduct, and the standard of care employed for children differs from that expected of adults. Id. at 15-17.

[14] Nogosek, supra note 186, at 22

[15] YOUNG, supra note 1, at 7 (citing Memorandum fro the INS Office of Programs, Unaccompanied Minors Subject to Expedited Removal (Aug. 21, 1997)).

[16] Germain, supra note 50, at 40. For example, in the past, courts recognized the following as valid bases for asylum:

       [A] family that plays a prominent role in a minority group that is

    the object of widespread hostile treatment; parents of Burmese

    student dissidents; Filipinos of Chinese ancestry; young women who

    are members of the Tchamba-Kunsuntu tribe who have not been

    subjected to female genital mutilation and who oppose the practice;

    members of a Somali clan; homosexuals; women who have been subjected

    to or face being subjected to the practice of Trokosi, a system of

    indentured sexual servitude to fetish shrines; young, Westernized,

    educated, Muslim women who voice their political opinion; persons

    who are HIV positive; students; members of a royal tribal family;

    members of a tribe, professionals, business people, and highly

    educated individuals; former members of the national police;

    government employees; and union members.

[17] Immigration and Nationality Act [section] 101(a)(42)(A), 8 U.S.C.A. [section] 1101(a)(42)(A)(2005).

[18] Immigration and Nationality Act [section] 208(d)(5)(A)(i), 8 U.S.C.A. [section] 1158(d)(5)(A)(i) (2005).

[19] PROTECTING THE RIGHTS OF CHILDREN, supra note 1, at 7.

[20] PRISON GUARD OR PARENT, supra note 5.

[21] HUMAN RIGHTS WATCH, DETAINED AND DEPRIVED OF RIGHTS: CHILDREN IN THE CUSTODY OF THE U.S. IMMIGRATION AND NATURALIZATION SERVICE, LEGAL STANDARDS [paragraph] 4 (1998), http://www.hrw.org/reports98/ins2/berks98d-01.htm#TopOfPage.

[22] ADMINISTRATION FOR FAMILIES & CHILDREN, OFFICE OF REFUGEE RESETTLEMENT, THE UNACCOMPANIED REFUGEE MINORS PROGRAM, at http://www.acf.hhs.gov/programs/orr/programs/urm.htm.

[23] Unaccompanied Alien Child Protection Act of 2005, S. 119, 109th Cong. [subsection] 101-304 (2005).