The plight of refugees – those fleeing persecution, danger, and instability – has been all over the news lately, as people continue to flee Syria, Afghanistan, Eritrea and other countries to seek safety in Europe. Last year, the U.S. was focused on its own refugee crisis, as thousands of unaccompanied immigrant children from Central America sought refuge in the U.S. from persecution by powerful transnational gangs left unchecked by Central American governments. Fortunately, the U.S. already has law and procedure in place intended to maximize the efficient and appropriate processing of these unaccompanied immigrant children’s asylum claims.
Under U.S. law, there are two ways for someone fleeing persecution in her home country to seek protection in the U.S. The first is to apply from outside the U.S., by applying to be designated and brought to the U.S. as a refugee. The second is to apply from within the U.S. – or at a U.S. border – for asylum. For those seeking asylum, there are two procedural tracks. Which procedural track applies depends on whether the applicant is in removal proceedings. For applicants in removal proceedings, the only option is to apply for asylum from the immigration judge, while applicants not in removal proceedings may apply with their local Asylum Office. The difference between the two procedural tracks is critical, as one means a contested trial with a government prosecutor, while the other means an administrative interview by a specially-trained asylum officer.
Fortunately, Congress recognized this critical difference when it passed the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), which provides that unaccompanied alien children (UACs) in removal proceedings may first apply for asylum with their local Asylum Office. This ensures that children seeking protection from persecution and abuse in their home countries can do so in a one-on-one interview with an officer trained to adjudicate children’s asylum cases, rather than in a courtroom under cross-examination from a government prosecutor. Should the asylum officer determine that they cannot grant the child asylum, the child can renew their application in immigration court.
Unaccompanied immigrant children have an additional advantage in being exempted by the TVPRA from two of the bars to asylum that apply to all other asylum seekers. As a result, an unaccompanied alien child is not subject to the one-year filing deadline for asylum – the requirement that someone apply for asylum within one year of arriving in the U.S. Nor is an unaccompanied alien child barred from seeking asylum in Canada, as are other asylum applicants who come first to the U.S. under the “safe third country” rule. These exemptions recognize the special vulnerabilities of unaccompanied immigrant children, who lack the resources to access and understand the legal system and procedural rules on their own.
Such considerations of the special vulnerabilities of unaccompanied immigrant children extend from procedural protections to the adjudication of the asylum application itself. The United Nations High Commission on Refugees (UNHCR) and United States Citizenship and Immigration Services (USCIS) have recognized that although all asylum applications are considered in light of whether the applicant’s situation meets the definition of “refugee,” special consideration should be given to the circumstances of the child, including her stage of development and the possible limitations of her knowledge of circumstances in the home country. Some of the factors underlying these child-specific considerations include the child’s: age; maturity; ability to recall events; potentially limited knowledge of events underpinning asylum claim; and potentially limited knowledge of the asylum process.
How could some of these considerations affect an unaccompanied immigrant child’s asylum application? One way is how a child could show that she has been or would be persecuted. Depending on her age, maturity, ability to recall events, and the individual circumstances of the claim, she may not be able to articulate a subjective fear of something bad happening. Critically, this does not mean that she would not suffer persecution – just that she is too young, immature, and/or traumatized to clearly explain her fear to a government official.
Part of the work of the Detained Children’s Program at CAIR Coalition is helping unaccompanied immigrant children articulate their claims for asylum protection. We work with the children, their families, friends, psychologists, social workers, country conditions experts, and our own creativity to present the fullest possible picture of the serious harm threatening our client to the Asylum Officer. In this way, we also ensure that the child-specific protections and considerations created for unaccompanied immigrant children are fully and consistently applied, thus maximizing the most efficient processing of immigrant children’s claims for protection in the U.S.
