Not Adults in Miniature: Unaccompanied Child Asylum Seekers and the New U.S. Guidelines

International Journal of Refugee Law

Volumn 11, Issue 1, 1999, Pages 84-123

  Bhabha, Jacqueline ^a   Young, Wendy ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ASYLUM SEEKER; CHILD WELFARE; IMMIGRATION POLICY;

UNITED STATES;

EID: 0033398512     PISSN: 09538186     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijrl/11.1.84     Document Type: Article

References (193)

1. Child Refugee Claimants: Procedural and Evidentiary Issues (Ottawa, September 1996) (hereafter Canadian Guidelines).
2. Child Refugee Claimants: Procedural and Evidentiary Issues (Ottawa, September 1996) (hereafter Canadian Guidelines).
3. U.S. Department of Justice, Immigration and Naturalization Service, Guidelines for Children's Asylum Claims, December 10, 1998 (hereafter Children's Guidelines).
4. U.S. Department of Justice, Immigration and Naturalization Service, Guidelines for Children's Asylum Claims, December 10, 1998 (hereafter Children's Guidelines).
5. Eliahu Frank Abram, 'The Child's right to Family Unity in International Immigration Law', (1995) 17(4) Law & Policy 397-439, 398, hereafter 'Family Unity'.
6. UN High Commissioner for Refugees (UNHCR), The State of the World's Refugees, 28 (1995). It is important to keep in mind that these statistical estimates vary, dependent in part on the fact that agreement on the definition of 'unaccompanied' or the age of majority does not exist. See also P. Stromberg, 'Going Home . . . But to an Uncertain Future,' Refugees 19-21 (UNHCR Winter 1997) (describing Rwandan situation in which UNHCR reunited 51,000 unaccompanied minors with their families).
7. UN High Commissioner for Refugees (UNHCR), The State of the World's Refugees, 28 (1995). It is important to keep in mind that these statistical estimates vary, dependent in part on the fact that agreement on the definition of 'unaccompanied' or the age of majority does not exist. See also P. Stromberg, 'Going Home . . . But to an Uncertain Future,' Refugees 19-21 (UNHCR Winter 1997) (describing Rwandan situation in which UNHCR reunited 51,000 unaccompanied minors with their families).
8. Human Rights Watch has reported that in 1990, the INS apprehended 8,500 undocumented children, 70% of whom were unaccompanied. Some, but not all, of these were children seeking asylum. 'Slipping Through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service', Human Rights Watch (1997) (hereafter Slipping through the Cracks). In the UK approximately 5% of asylum applications (excluding dependents) received in 1997 were from applicants under 18, Madeleine Watson and Philip Danzelman, Home Office Statistical Bulletin, Asylum Statistics United Kingdom 1997, Issue 14/98 (21 May 1998. London: Research and Statistics Directorate) Table 6.1. According to official statistics (which may under-report) 1105 unaccompanied minors (671 at ports and 434 in country) applied for asylum in the UK during 1997, Table 2.3; for the first six months of 1998, 1199 unaccompanied minors applied (444 at ports and 755 in country), letter from Philip Danzelman, Immigration Research and Statistics Service to Mr B. Stoyle, Refugee Legal Centre, 16 Jul. 1998 - this dramatic increase is largely explained by the arrival of young Kosovars escaping civil war in Kosovo, see The Refugee Council, Panel of Advisers Unaccompanied Refugee Children: Budget and Statistical Report April 1 1997 - March 31 1998. Also interview with Terry Smith, Director, Panel of Advisers Unaccompanied Refugee Children, 24 Jul. 1998. In Germany, figures for unaccompanied undocumented children under 16 registered at German airports are 198 for 1994, 835 for 1995, 2015 for 1996 and 563 for January to May 1997, see Wendy Ayotte, Report : Information on Separated Children Arriving in West European Countries, unpublished report prepared for Save the Children UK, Central and Eastern Europe Section, September 1997, on file with the author, 11 (hereafter Separated Children). Though precise data regarding asylum applications by minors is not available for many asylum states, the trend suggests an increase in such cases, see ECRE, Country Reports 1997: Synthesis (1997) Chart 8, 8.
9. Human Rights Watch has reported that in 1990, the INS apprehended 8,500 undocumented children, 70% of whom were unaccompanied. Some, but not all, of these were children seeking asylum. 'Slipping Through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service', Human Rights Watch (1997) (hereafter Slipping through the Cracks). In the UK approximately 5% of asylum applications (excluding dependents) received in 1997 were from applicants under 18, Madeleine Watson and Philip Danzelman, Home Office Statistical Bulletin, Asylum Statistics United Kingdom 1997, Issue 14/98 (21 May 1998. London: Research and Statistics Directorate) Table 6.1. According to official statistics (which may under-report) 1105 unaccompanied minors (671 at ports and 434 in country) applied for asylum in the UK during 1997, Table 2.3; for the first six months of 1998, 1199 unaccompanied minors applied (444 at ports and 755 in country), letter from Philip Danzelman, Immigration Research and Statistics Service to Mr B. Stoyle, Refugee Legal Centre, 16 Jul. 1998 - this dramatic increase is largely explained by the arrival of young Kosovars escaping civil war in Kosovo, see The Refugee Council, Panel of Advisers Unaccompanied Refugee Children: Budget and Statistical Report April 1 1997 - March 31 1998. Also interview with Terry Smith, Director, Panel of Advisers Unaccompanied Refugee Children, 24 Jul. 1998. In Germany, figures for unaccompanied undocumented children under 16 registered at German airports are 198 for 1994, 835 for 1995, 2015 for 1996 and 563 for January to May 1997, see Wendy Ayotte, Report : Information on Separated Children Arriving in West European Countries, unpublished report prepared for Save the Children UK, Central and Eastern Europe Section, September 1997, on file with the author, 11 (hereafter Separated Children). Though precise data regarding asylum applications by minors is not available for many asylum states, the trend suggests an increase in such cases, see ECRE, Country Reports 1997: Synthesis (1997) Chart 8, 8.
10. Human Rights Watch has reported that in 1990, the INS apprehended 8,500 undocumented children, 70% of whom were unaccompanied. Some, but not all, of these were children seeking asylum. 'Slipping Through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service', Human Rights Watch (1997) (hereafter Slipping through the Cracks). In the UK approximately 5% of asylum applications (excluding dependents) received in 1997 were from applicants under 18, Madeleine Watson and Philip Danzelman, Home Office Statistical Bulletin, Asylum Statistics United Kingdom 1997, Issue 14/98 (21 May 1998. London: Research and Statistics Directorate) Table 6.1. According to official statistics (which may under-report) 1105 unaccompanied minors (671 at ports and 434 in country) applied for asylum in the UK during 1997, Table 2.3; for the first six months of 1998, 1199 unaccompanied minors applied (444 at ports and 755 in country), letter from Philip Danzelman, Immigration Research and Statistics Service to Mr B. Stoyle, Refugee Legal Centre, 16 Jul. 1998 - this dramatic increase is largely explained by the arrival of young Kosovars escaping civil war in Kosovo, see The Refugee Council, Panel of Advisers Unaccompanied Refugee Children: Budget and Statistical Report April 1 1997 - March 31 1998. Also interview with Terry Smith, Director, Panel of Advisers Unaccompanied Refugee Children, 24 Jul. 1998. In Germany, figures for unaccompanied undocumented children under 16 registered at German airports are 198 for 1994, 835 for 1995, 2015 for 1996 and 563 for January to May 1997, see Wendy Ayotte, Report : Information on Separated Children Arriving in West European Countries, unpublished report prepared for Save the Children UK, Central and Eastern Europe Section, September 1997, on file with the author, 11 (hereafter Separated Children). Though precise data regarding asylum applications by minors is not available for many asylum states, the trend suggests an increase in such cases, see ECRE, Country Reports 1997: Synthesis (1997) Chart 8, 8.
11. Human Rights Watch has reported that in 1990, the INS apprehended 8,500 undocumented children, 70% of whom were unaccompanied. Some, but not all, of these were children seeking asylum. 'Slipping Through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service', Human Rights Watch (1997) (hereafter Slipping through the Cracks). In the UK approximately 5% of asylum applications (excluding dependents) received in 1997 were from applicants under 18, Madeleine Watson and Philip Danzelman, Home Office Statistical Bulletin, Asylum Statistics United Kingdom 1997, Issue 14/98 (21 May 1998. London: Research and Statistics Directorate) Table 6.1. According to official statistics (which may under-report) 1105 unaccompanied minors (671 at ports and 434 in country) applied for asylum in the UK during 1997, Table 2.3; for the first six months of 1998, 1199 unaccompanied minors applied (444 at ports and 755 in country), letter from Philip Danzelman, Immigration Research and Statistics Service to Mr B. Stoyle, Refugee Legal Centre, 16 Jul. 1998 - this dramatic increase is largely explained by the arrival of young Kosovars escaping civil war in Kosovo, see The Refugee Council, Panel of Advisers Unaccompanied Refugee Children: Budget and Statistical Report April 1 1997 - March 31 1998. Also interview with Terry Smith, Director, Panel of Advisers Unaccompanied Refugee Children, 24 Jul. 1998. In Germany, figures for unaccompanied undocumented children under 16 registered at German airports are 198 for 1994, 835 for 1995, 2015 for 1996 and 563 for January to May 1997, see Wendy Ayotte, Report : Information on Separated Children Arriving in West European Countries, unpublished report prepared for Save the Children UK, Central and Eastern Europe Section, September 1997, on file with the author, 11 (hereafter Separated Children). Though precise data regarding asylum applications by minors is not available for many asylum states, the trend suggests an increase in such cases, see ECRE, Country Reports 1997: Synthesis (1997) Chart 8, 8.
12. Human Rights Watch has reported that in 1990, the INS apprehended 8,500 undocumented children, 70% of whom were unaccompanied. Some, but not all, of these were children seeking asylum. 'Slipping Through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service', Human Rights Watch (1997) (hereafter Slipping through the Cracks). In the UK approximately 5% of asylum applications (excluding dependents) received in 1997 were from applicants under 18, Madeleine Watson and Philip Danzelman, Home Office Statistical Bulletin, Asylum Statistics United Kingdom 1997, Issue 14/98 (21 May 1998. London: Research and Statistics Directorate) Table 6.1. According to official statistics (which may under-report) 1105 unaccompanied minors (671 at ports and 434 in country) applied for asylum in the UK during 1997, Table 2.3; for the first six months of 1998, 1199 unaccompanied minors applied (444 at ports and 755 in country), letter from Philip Danzelman, Immigration Research and Statistics Service to Mr B. Stoyle, Refugee Legal Centre, 16 Jul. 1998 - this dramatic increase is largely explained by the arrival of young Kosovars escaping civil war in Kosovo, see The Refugee Council, Panel of Advisers Unaccompanied Refugee Children: Budget and Statistical Report April 1 1997 - March 31 1998. Also interview with Terry Smith, Director, Panel of Advisers Unaccompanied Refugee Children, 24 Jul. 1998. In Germany, figures for unaccompanied undocumented children under 16 registered at German airports are 198 for 1994, 835 for 1995, 2015 for 1996 and 563 for January to May 1997, see Wendy Ayotte, Report : Information on Separated Children Arriving in West European Countries, unpublished report prepared for Save the Children UK, Central and Eastern Europe Section, September 1997, on file with the author, 11 (hereafter Separated Children). Though precise data regarding asylum applications by minors is not available for many asylum states, the trend suggests an increase in such cases, see ECRE, Country Reports 1997: Synthesis (1997) Chart 8, 8.
13. Human Rights Watch has reported that in 1990, the INS apprehended 8,500 undocumented children, 70% of whom were unaccompanied. Some, but not all, of these were children seeking asylum. 'Slipping Through the Cracks: Unaccompanied Children Detained by the U.S. Immigration and Naturalization Service', Human Rights Watch (1997) (hereafter Slipping through the Cracks). In the UK approximately 5% of asylum applications (excluding dependents) received in 1997 were from applicants under 18, Madeleine Watson and Philip Danzelman, Home Office Statistical Bulletin, Asylum Statistics United Kingdom 1997, Issue 14/98 (21 May 1998. London: Research and Statistics Directorate) Table 6.1. According to official statistics (which may under-report) 1105 unaccompanied minors (671 at ports and 434 in country) applied for asylum in the UK during 1997, Table 2.3; for the first six months of 1998, 1199 unaccompanied minors applied (444 at ports and 755 in country), letter from Philip Danzelman, Immigration Research and Statistics Service to Mr B. Stoyle, Refugee Legal Centre, 16 Jul. 1998 - this dramatic increase is largely explained by the arrival of young Kosovars escaping civil war in Kosovo, see The Refugee Council, Panel of Advisers Unaccompanied Refugee Children: Budget and Statistical Report April 1 1997 - March 31 1998. Also interview with Terry Smith, Director, Panel of Advisers Unaccompanied Refugee Children, 24 Jul. 1998. In Germany, figures for unaccompanied undocumented children under 16 registered at German airports are 198 for 1994, 835 for 1995, 2015 for 1996 and 563 for January to May 1997, see Wendy Ayotte, Report : Information on Separated Children Arriving in West European Countries, unpublished report prepared for Save the Children UK, Central and Eastern Europe Section, September 1997, on file with the author, 11 (hereafter Separated Children). Though precise data regarding asylum applications by minors is not available for many asylum states, the trend suggests an increase in such cases, see ECRE, Country Reports 1997: Synthesis (1997) Chart 8, 8.
14. 'The Impact of Armed Conflict on Children,' United Nations (Nov. 1996). See also Geraldine van Bueren, 'Opening Pandora's Box: Protecting Children Against Torture or Cruel, Inhuman or Degrading Treatment or Punishment,' 17 Law and Policy 377, 389 (1995) (hereinafter 'Pandora's Box').
15. See The State of the World's Refugees, 28 above note 4.
16. S. Melzak, 'Thinking about the Internal and External world of Refugee Children in Exile in Europe: Conflict and Treatment', published in Proceedings of Conference October 1992 - Children, War and Persecution, Hamburg, Germany, available from University Child Psychiatry Department, Hamburg University, (1992), 2-6.
17. Guy S. Goodwin-Gill, 'Unaccompanied Refugee Minors: The Role and Place of International Law in the Pursuit of Durable Solutions', 3 International Journal of Children's Rights 405-6, 413 (1995).
18. L. Holborn, 'The United Nations and the Refugee Problem', The Year Book of World Affairs, vol. 6, 1952, London: Stevens and Sons, pp. 130-1. The UNHCR Handbook, published in 1979, devoted paras. 213-19 specifically to a consideration of the special problems facing unaccompanied minors; and since 1986 the situation of refugee children has been given special attention by UNHCR's Executive Committee (EXCOM) and by the General Assembly, see EXCOM General Conclusion, No. 41(XXXVII) 1986, para, (m), Conclusions, 91 and EXCOM Conclusion No. 47 (XXXVIII) 1987 (Refugee Children) Conclusions, p. 105. By contrast, the first official consideration of the special situation of refugee women occurred in 1985, in EXCOM Conclusion No. 39 (XXXVI) 1985 (Refugee Women and International Protection).
19. For details of international law measures which do address the right to family reunification, in the context of war and foreign occupation, see 'Family Unity', 413-15, above note 3.
20. Human Rights Watch, United States - Detained and Deprived of Rights: Children in the Custody of the U.S. Immigration and Naturalization Service, December 1998, vol. 10, No._4 (G).
21. There are also, however, situations, where children fare better than adults. For example most unaccompanied minors seeking asylum in the US are not subjected to the expedited removal process. See Memorandum, 'Unaccompanied Minors Subject to Expedited Removal' (INS Office of Programs), 2 Aug. 1997. In some cases unaccompanied minors seeking refuge have been given clearly preferential treatment over other refugees, see for example the policies in respect of admissions and services after entry given to unaccompanied Vietnamese minors in 1978 and 1979, Everett M. Ressler, Neil Boothby and Daniel J. Steinbock, Unaccompanied Children: Care and Protection in Wars, Natural Disasters, and Refugee Movements (New York, Oxford: Oxford University Press, 1988) (hereafter Unaccompanied Children) 81. In the UK, if their status as minors is uncontested, children seeking asylum generally are not detained, though heated controversy currently surrounds the extent of exceptions to this general policy. See Under-Secretary of State for the Home Department, Michael O'Brien, statement dated 16 Dec. 1997: 'it is our policy not to detain unaccompanied minors save only in very exceptional circumstances', Hansard Official Report, Written Answers to Questions col. 87. This statement conflicted with a more generous policy outlined by the then Under-Secretary, Charles Wardle, five years earlier: 'unaccompanied children are only ever detained by the immigration service if they arrive out of working hours and it is impossible to contact immediately the local social services until the following morning. . . . the protection of children is paramount in such arrangements', Hansard Official Report, Standing Committee on the Asylum and Immigration Appeals Bill, December 3, 1992, 14th Sitting, col. 545. Widespread publicity and public concern over the detention of minors - the British Refugee Council documented 76 such cases between 1 Jan. 1997-2 Jun. 1998 (letter from Amnesty International to Evan Harris MP dated 2 Jun. 1998, on file with the author) and three minors were among the detainees involved in a serious riot in the Campsfield Detention Centre which resulted in criminal charges - led Michael O'Brien to modify his position within less than 4 months: 'it is our policy not to detain persons under the age of 18 save only in exceptional circumstances, such as when an unaccompanied minor arrives at a port of entry late at night. The normal procedure is to grant temporary admission/release wherever possible, either into the care of a close relative or friend, or into the care of social services', Hansard Official Report, 1 Apr. 1998, col. 538. Moreover, unaccompanied minors are not generally removed to their country or origin or returned to safe third countries through which they have transited. Interview with David Rhys-Jones, Immigration Law Adviser, Glazer Delmar Solicitors, on 16 Jul. 1998.
22. There are also, however, situations, where children fare better than adults. For example most unaccompanied minors seeking asylum in the US are not subjected to the expedited removal process. See Memorandum, 'Unaccompanied Minors Subject to Expedited Removal' (INS Office of Programs), 2 Aug. 1997. In some cases unaccompanied minors seeking refuge have been given clearly preferential treatment over other refugees, see for example the policies in respect of admissions and services after entry given to unaccompanied Vietnamese minors in 1978 and 1979, Everett M. Ressler, Neil Boothby and Daniel J. Steinbock, Unaccompanied Children: Care and Protection in Wars, Natural Disasters, and Refugee Movements (New York, Oxford: Oxford University Press, 1988) (hereafter Unaccompanied Children) 81. In the UK, if their status as minors is uncontested, children seeking asylum generally are not detained, though heated controversy currently surrounds the extent of exceptions to this general policy. See Under-Secretary of State for the Home Department, Michael O'Brien, statement dated 16 Dec. 1997: 'it is our policy not to detain unaccompanied minors save only in very exceptional circumstances', Hansard Official Report, Written Answers to Questions col. 87. This statement conflicted with a more generous policy outlined by the then Under-Secretary, Charles Wardle, five years earlier: 'unaccompanied children are only ever detained by the immigration service if they arrive out of working hours and it is impossible to contact immediately the local social services until the following morning. . . . the protection of children is paramount in such arrangements', Hansard Official Report, Standing Committee on the Asylum and Immigration Appeals Bill, December 3, 1992, 14th Sitting, col. 545. Widespread publicity and public concern over the detention of minors - the British Refugee Council documented 76 such cases between 1 Jan. 1997-2 Jun. 1998 (letter from Amnesty International to Evan Harris MP dated 2 Jun. 1998, on file with the author) and three minors were among the detainees involved in a serious riot in the Campsfield Detention Centre which resulted in criminal charges - led Michael O'Brien to modify his position within less than 4 months: 'it is our policy not to detain persons under the age of 18 save only in exceptional circumstances, such as when an unaccompanied minor arrives at a port of entry late at night. The normal procedure is to grant temporary admission/release wherever possible, either into the care of a close relative or friend, or into the care of social services', Hansard Official Report, 1 Apr. 1998, col. 538. Moreover, unaccompanied minors are not generally removed to their country or origin or returned to safe third countries through which they have transited. Interview with David Rhys-Jones, Immigration Law Adviser, Glazer Delmar Solicitors, on 16 Jul. 1998.
23. According to Amnesty International, unaccompanied refugee children in the UK are discriminated against compared with adult refugees: "[They] are seven times less likely to receive refugee status than someone aged 25-29", Amnesty International, Most Vulnerable of All: The Treatment of Unaccompanied Children in the UK (London: Amnesty International, 1999) 5. According to the British Refugee Council's Panel of Advisers for Unaccompanied Refugee Children, 5% of unaccompanied asylum-seeking minors in the UK are detained, compared with 1% of asylum-seeking adults, see Minutes of Meeting on 'Children in Detention and the Issue of Age Assessments', 29 May 1998. These are all cases where the Home Office disputes age. Describing the situation of undocumented children (including asylum seekers) in the US detained by the INS, Human Rights Watch's Children's Rights Project states: 'Unlike adults detained by the INS, unaccompanied children are not eligible for release after posting bond, and many of them remain in detention for months on end, bewildered and frightened, denied meaningful access to attorneys and to their relatives', Slipping Through the Cracks, 1, above note 5. There is also evidence of disparity in the treatment accorded to accompanied and unaccompanied children, with the latter group faring considerably worse, see G. Van Bueren, The International Law on the Rights of the Child, 372.
24. According to Amnesty International, unaccompanied refugee children in the UK are discriminated against compared with adult refugees: "[They] are seven times less likely to receive refugee status than someone aged 25-29", Amnesty International, Most Vulnerable of All: The Treatment of Unaccompanied Children in the UK (London: Amnesty International, 1999) 5. According to the British Refugee Council's Panel of Advisers for Unaccompanied Refugee Children, 5% of unaccompanied asylum-seeking minors in the UK are detained, compared with 1% of asylum-seeking adults, see Minutes of Meeting on 'Children in Detention and the Issue of Age Assessments', 29 May 1998. These are all cases where the Home Office disputes age. Describing the situation of undocumented children (including asylum seekers) in the US detained by the INS, Human Rights Watch's Children's Rights Project states: 'Unlike adults detained by the INS, unaccompanied children are not eligible for release after posting bond, and many of them remain in detention for months on end, bewildered and frightened, denied meaningful access to attorneys and to their relatives', Slipping Through the Cracks, 1, above note 5. There is also evidence of disparity in the treatment accorded to accompanied and unaccompanied children, with the latter group faring considerably worse, see G. Van Bueren, The International Law on the Rights of the Child, 372.
25. According to Amnesty International, unaccompanied refugee children in the UK are discriminated against compared with adult refugees: "[They] are seven times less likely to receive refugee status than someone aged 25-29", Amnesty International, Most Vulnerable of All: The Treatment of Unaccompanied Children in the UK (London: Amnesty International, 1999) 5. According to the British Refugee Council's Panel of Advisers for Unaccompanied Refugee Children, 5% of unaccompanied asylum-seeking minors in the UK are detained, compared with 1% of asylum-seeking adults, see Minutes of Meeting on 'Children in Detention and the Issue of Age Assessments', 29 May 1998. These are all cases where the Home Office disputes age. Describing the situation of undocumented children (including asylum seekers) in the US detained by the INS, Human Rights Watch's Children's Rights Project states: 'Unlike adults detained by the INS, unaccompanied children are not eligible for release after posting bond, and many of them remain in detention for months on end, bewildered and frightened, denied meaningful access to attorneys and to their relatives', Slipping Through the Cracks, 1, above note 5. There is also evidence of disparity in the treatment accorded to accompanied and unaccompanied children, with the latter group faring considerably worse, see G. Van Bueren, The International Law on the Rights of the Child, 372.
26. According to Amnesty International, unaccompanied refugee children in the UK are discriminated against compared with adult refugees: "[They] are seven times less likely to receive refugee status than someone aged 25-29", Amnesty International, Most Vulnerable of All: The Treatment of Unaccompanied Children in the UK (London: Amnesty International, 1999) 5. According to the British Refugee Council's Panel of Advisers for Unaccompanied Refugee Children, 5% of unaccompanied asylum-seeking minors in the UK are detained, compared with 1% of asylum-seeking adults, see Minutes of Meeting on 'Children in Detention and the Issue of Age Assessments', 29 May 1998. These are all cases where the Home Office disputes age. Describing the situation of undocumented children (including asylum seekers) in the US detained by the INS, Human Rights Watch's Children's Rights Project states: 'Unlike adults detained by the INS, unaccompanied children are not eligible for release after posting bond, and many of them remain in detention for months on end, bewildered and frightened, denied meaningful access to attorneys and to their relatives', Slipping Through the Cracks, 1, above note 5. There is also evidence of disparity in the treatment accorded to accompanied and unaccompanied children, with the latter group faring considerably worse, see G. Van Bueren, The International Law on the Rights of the Child, 372.
27. Sheila Melzak, 'The Emotional Impact of Violence on Children', in Ved Varma, ed., Violence in Children and Adolescents (1996, London: Jessica Kingsley Publishers) 1-21, 4.
28. The Convention on the Rights of the Child, Adopted by the United Nations General Assembly, November 20, 1989, Entered into Force on September 2, 1990.
29. Unfortunately, the United States is one of only two countries which have not ratified the treaty. The other country is Somalia, which lacks an internationally recognized government capable of executing ratification. See http://www.unicef.org/crc/status.htm
30. This point appears to be accepted by the INS, see Children's Guidelines, 2.
31. See Ben Vermeulen, Thomas Spijkerboer, Karin Zwaan and Roel Fernhout, Persecution by Third Parties, 1998. Nijmegen: University of Nijmegen, Centre for Migration Law.
32. 'Women Refugee Claimants: Fearing Gender-Related Persecution, Guidelines Issued by the Chair Pursuant to Section 65(3) of the Immigration Act', Ottawa, Canada, 9 Mar. 1993; published also in 5 IJRL 278 (1993).
33. 'Women Refugee Claimants: Fearing Gender-Related Persecution, Guidelines Issued by the Chair Pursuant to Section 65(3) of the Immigration Act', Ottawa, Canada, 9 Mar. 1993; published also in 5 IJRL 278 (1993).
34. 'Considerations for Asylum Officers Adjudicating Asylum Claims from Women, INS Memorandum from the Office of International Affairs', 26 May 1995; see 72 Interpreter Releases 771 (5 Jun. 1995). Australia has also adopted gender guidelines for asylum cases and a concerted NGO effort is underway in the UK to persuade the government to follow suit, see Refugee Women's legal Group, Gender Guidelines for the Determination of Asylum Claims in the UK (1998, London: Refugee Women's Legal Group).
35. See, for example, In re Kasinga, Int. Dec. 3278 (BIA, 13 Jun. 1996) (granting asylum to Togolese woman with a well-founded fear of female genital mutilation); published also in IJRL Special Issue on Gender-Based Persecution 213 (1997). For a recent US decision which contradicts recent advances in gender jurisprudence see In Re R-A, Interim Decision (BIA)3402, 1999 WL 424364 (BIA).
36. See, for example, In re Kasinga, Int. Dec. 3278 (BIA, 13 Jun. 1996) (granting asylum to Togolese woman with a well-founded fear of female genital mutilation); published also in IJRL Special Issue on Gender-Based Persecution 213 (1997). For a recent US decision which contradicts recent advances in gender jurisprudence see In Re R-A, Interim Decision (BIA)3402, 1999 WL 424364 (BIA).
37. Statement by Nurjehan Mawani, Chair, Immigration and Refugee Board, at Canadian Bar Association Annual Meeting/Commonwealth Law Conference (Vancouver, B.C., 26 Aug. 1996), 4.
38. UNHCR, 'Guidelines on Policies and Procedures in dealing with Unaccompanied Minors Seeking Asylum', (Feb. 1997) (hereafter UNHCR Guidelines).
39. UNHCR, Refugee Children: Guidelines on Protection and Care (1994).
40. CRG89, Art. 1.
41. According to the UK Asylum Directorate Instructions a child is defined as a person under 18 years of age or who, in the absence of documentary evidence, appears to be under that age. Home Office, Asylum Directorate Instructions, Chapter 2, Section 5, Para 1.1. Clarifying this policy, the responsible minister explained that 'immigration officers identify unaccompanied minors by appearance and demeanour in making an initial assessment. . . the Immigration Service errs on the side of caution when age is in dispute'. Michael O'Brien MP, Under-Secretary for the Home Department, Written Answer to question by Ms Julia Drown MP on May 5, 1998, Hansard Official Report, col. 357. Other European countries operate with different age limits; thus, for example, in Austria the age of majority is 19, and unaccompanied children aged 14-18 can apply for asylum and are appointed a legal representative, see Ayotte, Separated Children 4, above note 5; in France, by contrast, persons under 18 cannot take independent legal action and - though 'legal representatives' are appointed as guardians for unaccompanied minors, only veiy few such cases have their asylum applications registered by the authorities. Though children under 18 cannot be expelled from France, they can - under an expedited process - once they reach 18, Ayotte, Separated Children 10, above note 5. In practice the best course of action in cases where an unaccompanied minor is provided with 'social assistance' by the state, is to make use of the entitlement to French nationality, thus ensuring the child's future right to remain in France; personal communication, Helene Gacon, lawyer, board member of GISTI, Paris.
42. According to the UK Asylum Directorate Instructions a child is defined as a person under 18 years of age or who, in the absence of documentary evidence, appears to be under that age. Home Office, Asylum Directorate Instructions, Chapter 2, Section 5, Para 1.1. Clarifying this policy, the responsible minister explained that 'immigration officers identify unaccompanied minors by appearance and demeanour in making an initial assessment. . . the Immigration Service errs on the side of caution when age is in dispute'. Michael O'Brien MP, Under-Secretary for the Home Department, Written Answer to question by Ms Julia Drown MP on May 5, 1998, Hansard Official Report, col. 357. Other European countries operate with different age limits; thus, for example, in Austria the age of majority is 19, and unaccompanied children aged 14-18 can apply for asylum and are appointed a legal representative, see Ayotte, Separated Children 4, above note 5; in France, by contrast, persons under 18 cannot take independent legal action and - though 'legal representatives' are appointed as guardians for unaccompanied minors, only veiy few such cases have their asylum applications registered by the authorities. Though children under 18 cannot be expelled from France, they can - under an expedited process - once they reach 18, Ayotte, Separated Children 10, above note 5. In practice the best course of action in cases where an unaccompanied minor is provided with 'social assistance' by the state, is to make use of the entitlement to French nationality, thus ensuring the child's future right to remain in France; personal communication, Helene Gacon, lawyer, board member of GISTI, Paris.
43. The United States recognizes in other aspects of its migration policy that young people frequendy remain dependent on their care giver past the age of 18; for example, a parent or guardian can petition for a family-based immigration visa for a child up to age 21, as long as the child remains unmarried.
44. 'We have sought the views of the [British Medical] Association's Board of Science and Paediatric Sub-Committee on assessment of age and have also undertaken a literature search. From the search and correspondence it is clear that bone age and emergence of teeth are the two strongest indicators of age, with a preference in most studies of bone age being the most precise. However, the considerable variations both within and across racial groups make any assessment of age unreliable. The Chairman of the Paediatric Sub-Committee has emphasized that there is no method of assessing the age of children which can give a certain estimate. This therefore makes a stronger case for the asylum and immigration services giving the benefit of doubt in contentious cases'. Letter dated 22 Jul. 1998 from Dr Michael Wilks, Chairman, Medical Ethics Committee, British Medical Association to Dr Suke Wolton, on file with the authors. 'From the tables it can clearly be seen that there is a great variation in age in eruption patterns [of teeth]'. Letter dated 21 Jul. 1997 from Neill Serman, Professor and Head, Division of Oral Radiology, Columbia University to Rachel Brown, Women's Commission for Refugee Women and Children, on file with the authors [emphasis added].
45. UNHCR Guidelines, para. 5.11.c.
46. There is also concern in the US that faulty age determination procedures may result in unaccompanied minors being placed in expedited removal proceedings contrary to policy generally exempting minors from this process. The lack of oversight at US ports of entry raises grave concerns about the possibility of children being caught up in expedited removal and returned to persecution in their homelands.
47. 'The Refugee Council revealed that 51 children, as young as 13, had been locked up since the beginning of last year. Immigration staff are often reluctant to release the children who arrive unaccompanied by parents, even when paediatric reports show them to be under 18', Ian Burrell, 'Child Refugees "illegally held" in UK', The Independent, 6 Apr. 1998. See also Amnesty International, Most Vulnerable of All, 77-86.
48. 'The Refugee Council revealed that 51 children, as young as 13, had been locked up since the beginning of last year. Immigration staff are often reluctant to release the children who arrive unaccompanied by parents, even when paediatric reports show them to be under 18', Ian Burrell, 'Child Refugees "illegally held" in UK', The Independent, 6 Apr. 1998. See also Amnesty International, Most Vulnerable of All, 77-86.
49. Controversy over what counts as 'unaccompanied' in the context of refugee children is not a recent development. For example, one of the most problematic issues concerning the processing of Vietnamese refugee children was 'varying interpretations of what "unaccompaniedness" meant in the Vietnamese cultural context, for there were some children who were not related to those accompanying them, but were without question a part of the family, and others who had arrived with the extended family that did not, however, have a long term commitment to the child'. Unaccompanied Children, 79, above note 13.
50. In practice refugee children may frequently be 'psychologically unaccompanied' because their parents are incapable of nurturing or caring for them, due to depression or other psychological disturbances following the trauma of exile: 'A frequent story emerges of [refugee] children living with severely disturbed or depressed parents . . . Other children have to put a great deal of energy into meeting their parents' needs and wishes and only at school can be free to be themselves . . . I see all these children as unaccompanied during long periods of their development'. S. Melzak, 'What happens to children when their parents are not there?'in Ouder-en kindzorg voor migranten en vluchtelingen (1995: Van Gorcum Assen) 109-121, 114 [hereafter What happens to children?].
51. U.S Guidelines at 5, note 11.
52. Home Office Asylum Directorate Instructions, ch. 2, Sect. 5, para. 2.1.
53. Basic Law Manual Second Edition, 11-12. See also U.S. Guidelines, 2.
54. Basic Law Manual Second Edition, 11-12. See also U.S. Guidelines, 2.
55. See INS, Basic Law Manual, Nov. 1994, 12-13, 24.
56. The Convention on the Rights of the Child. Adopted by the United Nations General Assembly on November 20, 1989. Entered into force on 2 September 1990. Preamble.
57. Guy S. Goodwin-Gill, 'Unaccompanied refugee minors: the role and place of international law in the pursuit of durable solutions', 3 Int. J Children's R. (1995) 404-16, 410.
58. The acknowledgement of the CRC89 contained in the U.S. Guidelines is similar to the approach of the Gender Guidelines, which embrace the articulation of women's rights contained in the Convention on the Elimination of all forms of Discrimination against Women (CEDAW), a treaty which the U.S. has also failed to ratify.
59. Art. 2 (1).
60. See Abram, 'Family Unity', 416-17, who argues that this unrestricted jurisdictional scope, which was challenged but sustained during the CRC89's drafting, has potentially radical consequences for domestic immigration law where family reunification for alien and refugee children is concerned. Some states have expressly sought to limit CRC89's impact on immigration control: the UK has entered a reservation and Germany has made a declaration reserving the right to control the entry of aliens as they deem necessary.
61. According to Van Bueren, the protection extends to rejected child asylum seekers too, see Geraldine Van Bueren, The International Law on the Rights of the Child (1995. Dordrecht, Boston, London: Martinus Nijhoff) 362 (hereafter Rights of the Child).
62. The 'best interests of the child' principle has long been recognized in U.S. child welfare law and practices. See, for example, The Adoption and Safe Families Act of 1997, Public Law 105-89, 111 Stat. 2115 (19 Nov. 1997).
63. CRC89, art. 3(1).
64. Art. 9(1): 'State Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities . . . determine . . . that such separation is necessary for the best interests of the child'.
65. See the interesting discussion advocating substitution of the 'in-the-best-interests-of-the-child' standard, with a standard based on 'the least detrimental available alternative for safeguarding the child's growth and development', in Goldstein, Freud and Solnit, Beyond the Best Interests of the Child, 53-67.
66. Van Bueren, Rights of the Child, 47, quoting Mnookin, In the Interests of Children (1985), 18. For a discussion of the history and controversies surrounding the best interests principle, see ibid., 45-9.
67. Van Bueren, Rights of the Child, 47, quoting Mnookin, In the Interests of Children (1985), 18. For a discussion of the history and controversies surrounding the best interests principle, see ibid., 45-9.
68. Van Bueren, Rights of the Child, 47, quoting Mnookin, In the Interests of Children (1985), 18. For a discussion of the history and controversies surrounding the best interests principle, see ibid., 45-9.
69. CRC89 art. 12(1).
70. The difference between a rebuttable presumption of incompetency and a presumption of competency is that the former places the burden of proof on children and their allies, while the latter shifts it to the opponents of changing children's status', H. Rodham, 'Children Under the Law', 43(4) Harvard Educational Review (1973) 487-514, 508.
71. This approach was initially accepted by those drafting the U.S. Child Guidelines - 'The need for sensitive treatment of child asylum-seekers extends not only to interviewing techniques but also to the legal analysis of a child's claim' (Draft Guidelines 14). However the final guidelines retract from this position and limit the relevance of the best interests principle to procedural and evidentiary questions, asserting without explanation that the 'best interests of the child' '. . . does not play a role in determining substantive eligibility under the U.S. refugee definition', U.S. Guidelines, 3. This position directly contradicts the obligation in article 22 CRC89 to 'protect and assist'. UNHCR has acknowledged the impact of the applicant's age and stage of development on the decision to accord refugee status: 'Although the same definition of a refugee applies to all individuals regardless of their age, in the examination of the factual elements of the claim of an unaccompanied child, particular regard should be given to circumstances such as the child's stage of development, his/her possibly limited knowledge of conditions in the country of origin, and their significance to the legal concept of refugee status, as well as his/her special vulnerability', UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997) 10.
72. Only if the case concerns family reunion is the best interests principle a 'paramount' consideration. So where an unaccompanied minor is seeking asylum and the parents are in the host country, the best interests principle should trump other considerations, including the maintenance of effective immigration control. Similarly if a child has been granted asylum and his or her parents seek to effect family reunion, the best interests of the child should be the paramount consideration affecting the state's decision.
73. CRC89, art. 6(2).
74. CRC89, art. 11.
75. CRC89, art. 19.
76. CRC89, art. 20.
77. CRC89, art. 24.
78. CRC89, art. 28.
79. CRC89, art. 32.
80. CRC89, art. 37.
81. CRC89, art. 38.
82. CRC89, art. 9(1), emphasis supplied.
83. Abram, 'Family Unity', 417-18.
84. Describing the difference between art. 3's general principle of the best interests of the child as a primary consideration and art. 9's mandatory standard, Abram states at 419: '[Article 3's] flexible and relativistic formula is transformed by article 9 into a standard that makes the child's best interests the single overriding factor determining whether a child may be separated from parents against their will'.
85. See Abram at 417-26 for a full development of this argument.
86. See Ayotte, Separated Children. States have not permitted unaccompanied refugee children to bring parents or other adult carers still abroad into the host state exercising the principle of family unity. There seems no justification for this asymmetrical policy. The position is different as regards relatives already in the host state, where many host States have facilitated reunification. However delays in reunification, burdensome bureaucratic requirements and, most serious, immigration checks on relatives which can have a deterrent effect violate this mandatory provision of CRC89.
87. Art. 1A(2) as amended defines a refugee as a person who 'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence [as a result of such events] is unable or owing to such fear, is unwilling to return to it'.
88. Codified in U.S. law at INA § 101(a)(42).
89. Sheila Starkey, 8. Note that this derivative status is available to children of refugees and asylees up to the age of 21.
90. Although the UNHCR Handbook of its own force is not legally binding, the Supreme Court has characterized it as a source of useful guidance in adjudicating asylum claims (INS v. Cardoza-Fonseca, 480 U.S.421, 439 n.22 (1987) and federal courts and the Board of Immigration Appeals cite its provisions frequently; the INS Basic Manual endorses its citation by asylum adjudicators, Basic Manual 13.
91. In the Matter of Aristides Luna-Lorenzano C3/31/98 (where a 16-year-old Guatemalan, forcibly abducted and tortured by the military, was granted asylum as a member of the social group of 'underage males forcibly recruited and illegally conscripted into the military who have been subjected to physical, social, and emotive abuse'), Press Release, Children and Family Justice Center of Northwestern University Legal Clinic.
92. For an example of such targeting see German Case UNHCR Catalogue Signature CAS/ DEU/108, 11 May 1992 (grant of asylum to Romanian woman and minor son, where both applicants had received death threats because of woman's political activity, and as threat to woman son was pushed in front of moving car but survived) URL: http://www.unhcr.ch/refworld/legal/refcas/ hrc0391.htm.
93. Civil v. INS, 140 F.3d 52 (1st Cir. 1998) (affirming denial of asylum by immigration judge to Haitian minor overheard publicly supporting Aristide, threatened and whose house was stoned and ransacked, and whose pet dog was stoned to death; the immigration judge concluded 'it is almost inconceivable to believe that the Ton Ton Macoutes could be fearful of the conversation of 15-year old children'). Although the Court affirmed the decision as a whole, it criticized this statement in particular at 56; (many thanks to Deborah Anker for pointing out this case to us). See also case of Chilean child turned down by Canadian Refugee Status Advisory Committee because the decision-makers did not consider that a 12-13 year old could be perceived as a threat by the Chilean regime, quoted in Sadoway, 110. In addition, the applicant's behaviour while a child might found a valid asylum claim as she grows up and 'reaches an age that renders her suspect', (Ramirex Rivas v. INS, 899 F.2d 864 (9th Cir. 1990) (reversing BIA denial of asylum to El Salvadorean woman, emphasizing that while in El Salvador the woman was a young teenager but was now a young adult).
94. Kahssai v. INS, 16 F.3d 323 (9th Cir. 1994) (granting review of BIA's denial of asylum application by 16-year-old Ethiopian girl, where the BIA had adopted the immigration judge's finding that credibility could not be determined because of the applicant's young age (3) at the time, where the applicant was recalling traumatic events such as her father and brother's death and her mother's disappearance. Accordingly the BIA had rejected the claim even assuming the facts as true. But, as Circuit J Reinhardt commented: 'Even at age three, one is likely to remember the traumatic loss of one's family'. At 326)
95. 'Condemned to Die - For Being a Girl,' Daily Mail, London, 20 Dec. 1993, cited in Human Rights Watch/Asia, 'Death by Default: A Policy of Fatal Neglect in China's State Orphanages' (1996) 76.
96. 'Condemned to Die - For Being a Girl,' Daily Mail, London, 20 Dec. 1993, cited in Human Rights Watch/Asia, 'Death by Default: A Policy of Fatal Neglect in China's State Orphanages' (1996) 76.
97. Betsey Pisik, 'Child Soldiers,' Washington Times, 20 Apr. 1998, A12, noting that 'On any given day there are more than a quarter-million children under the age of 18 involved in armed conflict around the world, according to UNICEF.' See also Jo Becker, 'Too Young to Make War,' Washington Post, 8 Jan. 1998, Op-Ed, A21; Human Rights Watch/Africa, Human Rights Watch Children's Rights Project, 'Slaves, Street Children and Child Soldiers' (1995), 54-71.
98. Betsey Pisik, 'Child Soldiers,' Washington Times, 20 Apr. 1998, A12, noting that 'On any given day there are more than a quarter-million children under the age of 18 involved in armed conflict around the world, according to UNICEF.' See also Jo Becker, 'Too Young to Make War,' Washington Post, 8 Jan. 1998, Op-Ed, A21; Human Rights Watch/Africa, Human Rights Watch Children's Rights Project, 'Slaves, Street Children and Child Soldiers' (1995), 54-71.
99. Betsey Pisik, 'Child Soldiers,' Washington Times, 20 Apr. 1998, A12, noting that 'On any given day there are more than a quarter-million children under the age of 18 involved in armed conflict around the world, according to UNICEF.' See also Jo Becker, 'Too Young to Make War,' Washington Post, 8 Jan. 1998, Op-Ed, A21; Human Rights Watch/Africa, Human Rights Watch Children's Rights Project, 'Slaves, Street Children and Child Soldiers' (1995), 54-71.
100. In the Matter of A and Z, A 72-190-893; A 72-793-219, 20 Dec. 1994, at 11-13. See also BIA decision in Martinez Mejia, Juan Carlos A# 76-312-250, 20 Jan. 1999.
101. Canadian case T.C.V.(Re) [1997] C.R.D.D. no. 5, Nos. U95-00646,U95-00647; U95-00648, decided 15 Jan. 1997 (Canadian IRB finding that a 12-year-old 'young child victim of incest' had established grounds for asylum, subsequently overturned on appeal, MCI v. Smith, Doe and Doe, IMM-3068-97, Federal Court, trial division).
102. Case of M.K.; Case of AC; See also In Re Kasinga.
103. See Human Rights Watch, 'The Small Hands of Slavery: Bonded Child Labor in India' (1996); Human Rights Watch/Asia, 'Contemporary Forms of Slavery in Pakistan' (1995); Bureau of International Labor Affairs, U.S. Department of Labor, 'By the Sweat and Toil of Children: The Use of Child Labor in American Imports,' 15 Jul. 1974; International Labor Organization, IPEC Fact Sheet, January 1997, 'Child Slavery and Forced Labour,' (estimating the number of child slaves in tens of millions), http://www.ilo.org/public/english/90ipec/factsheet/fs96_9.htm
104. See Human Rights Watch, 'The Small Hands of Slavery: Bonded Child Labor in India' (1996); Human Rights Watch/Asia, 'Contemporary Forms of Slavery in Pakistan' (1995); Bureau of International Labor Affairs, U.S. Department of Labor, 'By the Sweat and Toil of Children: The Use of Child Labor in American Imports,' 15 Jul. 1974; International Labor Organization, IPEC Fact Sheet, January 1997, 'Child Slavery and Forced Labour,' (estimating the number of child slaves in tens of millions), http://www.ilo.org/public/english/90ipec/factsheet/fs96_9.htm
105. See Human Rights Watch, 'The Small Hands of Slavery: Bonded Child Labor in India' (1996); Human Rights Watch/Asia, 'Contemporary Forms of Slavery in Pakistan' (1995); Bureau of International Labor Affairs, U.S. Department of Labor, 'By the Sweat and Toil of Children: The Use of Child Labor in American Imports,' 15 Jul. 1974; International Labor Organization, IPEC Fact Sheet, January 1997, 'Child Slavery and Forced Labour,' (estimating the number of child slaves in tens of millions), http://www.ilo.org/public/english/90ipec/factsheet/fs96_9.htm
106. See Human Rights Watch, 'The Small Hands of Slavery: Bonded Child Labor in India' (1996); Human Rights Watch/Asia, 'Contemporary Forms of Slavery in Pakistan' (1995); Bureau of International Labor Affairs, U.S. Department of Labor, 'By the Sweat and Toil of Children: The Use of Child Labor in American Imports,' 15 Jul. 1974; International Labor Organization, IPEC Fact Sheet, January 1997, 'Child Slavery and Forced Labour,' (estimating the number of child slaves in tens of millions), http://www.ilo.org/public/english/90ipec/factsheet/fs96_9.htm
107. Patralekha Chatterjee, 'Children for Sale,' Chicago Tribune, 27 Apr. 1997, Section 13, 1.
108. A Canadian court has recognized that a forced polygamous marriage of a 14-year-old girl in accordance with the customary laws of kuzvarira and lobola in Zimbabwe could constitute persecution. See In W. (Z.D.) (Re) Convention Refugee Determination Decision (C.R.D.D. No. 3, No. U92-06668 (19 Feb. 1993), cited in F. Newman and D. Weissbrodt, International Human Rights: Law, Policy and Process, Second Edition, Anderson, at 665, note 7.
109. Customary religious practices that could constitute persecution include trokosi, the Ghanaian religious custom in which girls as young as 10 are handed over to temples where they work as servants until they menstruate and then become the exclusive concubines of priests until they are discarded in middle age, only to be replaced by another young virgin from the same family (see Philadelphia Inquirer, 16 Mar. 1997 at A8) and the Devadasi system in India in which at least 1,000 young girls each year are dedicated to the service of a Hindu goddess in secret ceremonies and then sold to the highest bidder (see Baltimore Sun, 22 Jan. 1997 at 9A).
110. Customary religious practices that could constitute persecution include trokosi, the Ghanaian religious custom in which girls as young as 10 are handed over to temples where they work as servants until they menstruate and then become the exclusive concubines of priests until they are discarded in middle age, only to be replaced by another young virgin from the same family (see Philadelphia Inquirer, 16 Mar. 1997 at A8) and the Devadasi system in India in which at least 1,000 young girls each year are dedicated to the service of a Hindu goddess in secret ceremonies and then sold to the highest bidder (see Baltimore Sun, 22 Jan. 1997 at 9A).
111. For example, when young children are separated from their parents during detention. See Ireland v. U.K., 25 Eur. Ct. H.R. (scr. A) 1978 (where a nursing infant was separated from the mother).
112. Three relevant Canadian cases are described by Sadoway: Sahota v. Canada (Minister of Employment and Immigration) the case of a 16-year-old Sikh boy, remitted for rehearing by a judge who considered the Refugee Board's acceptance of an 'internal flight alternative' might be unreasonable given the applicant's age, (1994) 80 F.T.R. 241, see Sadoway 109, note 12; Nadesalingam v. Canada (Minister of Citizenship and Immigration) (13 Sept. 1994) Doc IMM-5711-93, Muldoon J (Fatted); where a judge remitted for rehearing a case involving four children of an adult claimant because the Board had neglected 'their probable vulnerability to any untoward act of racism or discrimination or harassment or persecution', Sadoway 109, note 13; Irathayathas v. Canada (Minister of
113. Case of _, where the immigration judge found a street child from Honduras eligible for asylum, because of a 'pattern and practice' of police persecution of street children. Notes Regarding the Merits Hearing of _, by Steven Lang, Coordinator, Pro Bar South Texas Pro Bono Asylum Representation Project (14 Nov. 1997); see also Human Rights Watch Children's Rights Project and Human Rights Watch/America, 'Guatemala's Forgotten Children: Police Violence and Abuses in Detention', (1997); Human Rights Watch Children's Rights Project and Human Rights Watch/ Asia, 'Police Abuse and Killings of Street Children in India', (1996); Human Rights Watch/America, Human Rights Watch Children's Rights Project, 'Generation Under Fire: Children and Violence in Colombia', (1994).
114. Case of _, where the immigration judge found a street child from Honduras eligible for asylum, because of a 'pattern and practice' of police persecution of street children. Notes Regarding the Merits Hearing of _, by Steven Lang, Coordinator, Pro Bar South Texas Pro Bono Asylum Representation Project (14 Nov. 1997); see also Human Rights Watch Children's Rights Project and Human Rights Watch/America, 'Guatemala's Forgotten Children: Police Violence and Abuses in Detention', (1997); Human Rights Watch Children's Rights Project and Human Rights Watch/ Asia, 'Police Abuse and Killings of Street Children in India', (1996); Human Rights Watch/America, Human Rights Watch Children's Rights Project, 'Generation Under Fire: Children and Violence in Colombia', (1994).
115. Case of _, where the immigration judge found a street child from Honduras eligible for asylum, because of a 'pattern and practice' of police persecution of street children. Notes Regarding the Merits Hearing of _, by Steven Lang, Coordinator, Pro Bar South Texas Pro Bono Asylum Representation Project (14 Nov. 1997); see also Human Rights Watch Children's Rights Project and Human Rights Watch/America, 'Guatemala's Forgotten Children: Police Violence and Abuses in Detention', (1997); Human Rights Watch Children's Rights Project and Human Rights Watch/ Asia, 'Police Abuse and Killings of Street Children in India', (1996); Human Rights Watch/America, Human Rights Watch Children's Rights Project, 'Generation Under Fire: Children and Violence in Colombia', (1994).
116. U.S. Department of Labor, Bureau of International Labor Affairs, 'Forced Labor: The Prostitution of Children' (1996). See also Roger J.R. Levesque, 'Sexual Use, Abuse, and Exploitation of Children: Challenges in Implementing Children's Human Rights,' 60 Brook. L. Rev. 959 (1994) (describing the escalation of child prostitution) (hereinafter 'Implementing Children's Human Rights').
117. U.S. Department of Labor, Bureau of International Labor Affairs, 'Forced Labor: The Prostitution of Children' (1996). See also Roger J.R. Levesque, 'Sexual Use, Abuse, and Exploitation of Children: Challenges in Implementing Children's Human Rights,' 60 Brook. L. Rev. 959 (1994) (describing the escalation of child prostitution) (hereinafter 'Implementing Children's Human Rights').
118. Matter of _, Office of the Immigration Judge, 13 Mar. 1997, currently under appeal (case concerning 12-year-old Indian girl physically abused by parents and sold to child smuggler). See also Patrick O'Donoghue, 'Child trafficking Ring Uncovered: Ecuatorian Children Made to Work 12-14 Hours a Day,' Vheadline, VENews (reporting on international child trafficking ring with branches in several Latin American countries), News.Desk@Headline.com.ve.
119. Handbook, para. 51.
120. T. Alexander AleinikofT, 'The Meaning of "Persecution" in United States Asylum Law,' 3 Int. J. of Ref. Law 5, 11 (1991); Guy S. Goodwin-Gill, The Refugee in International Law, (2nd ed., 1996), 77. For a thorough discussion of the concept of persecution and its treatment under US law, see generally Deborah E. Anker, 'The Law of Asylum in the United States' (hereinafter Anker).
121. T. Alexander AleinikofT, 'The Meaning of "Persecution" in United States Asylum Law,' 3 Int. J. of Ref. Law 5, 11 (1991); Guy S. Goodwin-Gill, The Refugee in International Law, (2nd ed., 1996), 77. For a thorough discussion of the concept of persecution and its treatment under US law, see generally Deborah E. Anker, 'The Law of Asylum in the United States' (hereinafter Anker).
122. T. Alexander AleinikofT, 'The Meaning of "Persecution" in United States Asylum Law,' 3 Int. J. of Ref. Law 5, 11 (1991); Guy S. Goodwin-Gill, The Refugee in International Law, (2nd ed., 1996), 77. For a thorough discussion of the concept of persecution and its treatment under US law, see generally Deborah E. Anker, 'The Law of Asylum in the United States' (hereinafter Anker).
123. Basic Law Manual, 24 quoted in Anker.
124. Handbook, para. 54.
125. UNHCR Handbook, para. 52.
126. The U.S. Guidelines reflect this understanding: 'For child asylum-seekers, however, the balance between subjective fear and objective circumstances is more difficult for an adjudicator to assess', 19.
127. 'Pandora's Box,' 379.
128. For example, Lopez-Galarzo v. INS, 99 F 3d 954 (9th Cir. 1996) cited in Anger at 21.
129. '[W]hen a young girl loses her father, mother and brother - sees her family effectively destroyed - she plainly suffers severe emotional and developmental injury': Kahssai v. INS at 329.
130. As the dissenting judge argued in Civil v. INS: 'The question, in any event, is not what an administrative law judge sitting in the safety of the United States Can choose to believe; the question is what a young person, who has been forced to hide under the bed in the middle of the night, in terror of being killed, would think about her safety if she were to return home', at note 17.
131. 'Pandora's Box,' 385.
132. See Kahssai v. INS 16 F. 3d 323 (9th Cir. 1994) holding that BIA's contention that a 16-year-old Ethiopian had not established past persecution despite experiencing at age 3 and remembering the deaths of her father and brother and the detention and disappearance of her mother was inconsistent with established case-law).
133. 'Persecution of a child's family may also be sufficient to establish persecution of the child', INS Draft Guidelines, 17, but this wording was dropped from the final U.S. Guidelines.
134. CRC89 art. 7: 'The child shall . . . as far as possible, have the right to . . . be cared for by their parents.'
135. Martinez Mejia, Juan Carlos BIA A 76-312-250.
136. Merits Hearing, Elmer Garcia Medina, ProBar.
137. Matter of McMullen, 19 I&N Dec. 90, 96 (BIA 1984); Matter of Pierre, 15 I&N Dec.461, 462 (BIA 1975). For an analysis of the approach of 8 other Western countries to this doctrine see 'Persecution by Third Parties'.
138. Matter of McMullen, 19 I&N Dec. 90, 96 (BIA 1984); Matter of Pierre, 15 I&N Dec.461, 462 (BIA 1975). For an analysis of the approach of 8 other Western countries to this doctrine see 'Persecution by Third Parties'.
139. In Re Kasinga.
140. This is recognized in art 19 CRC89, which directs States parties to 'protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.' Female children may be particularly vulnerable because of societal gender discrimination which privileges the male child as heir and bearer of the family tradition (as in India and China, for example), but also because of a heightened vulnerability to sexual abuse within the family. For an example of an asylum claim by a minor based on domestic violence, and denied by the Board of Immigration Appeals despite acceptance that the child had been subjected to long-term parental abuse, see In Re [name withheld], BIA, Los Angeles, June 17 1999, and see also 'Asylum Denied for Abused Girl', Washington Post, July 4 1999, A3.
141. The quantification of child abuse is notoriously problematic, given significant under-reporting and difficulties in substantiation. However, the scale of the problem is astounding according to the evidence available. For example, current annual reports of child maltreatment in the United States approach three million cases. See R. Levesque, 'Implementing Children's Human Rights,' especially notes 151-4.
142. In the Matter of A and Z.
143. Martinez Meija, Juan Carlos, (BIA decision that a Honduran child, who had been persistently tortured by his step-father from the age of 3, and faced becoming a street child if returned to Honduras had a well-founded fear of persecution because of the fate of street children in Honduras, citing U.S. State department reports that 'the police are responsible for torturing street children and a number of cxtrajudicial killings', 3).
144. Such an argument was successful in In Re Kasinga, where the BIA concluded that despite widespread awareness of the practice of FGM, the Togolese government has failed to take even minimal steps to protect women: See Kasinga, Interim Dec. 3278 at 15 (BIA 1996).
145. We are indebted to Audrey Macklin for this point.
146. An analogous point was made in Kahssai v. INS, see note 75 above, at 327, where the 9th Circuit, in rejecting the use of evidence of 'firm resettlement' to challenge credibility held 'it would be unreasonable to hold an adolescent responsible for arranging or failing to arrange permanent resettlement.'
147. The jurisprudence of the European Convention for the Protection of Human Rights and Fundamental Freedoms is a useful guide. Several cases have considered whether punishment of children violated art. 3 ('No one shall be subjected to torture or to inhuman or degrading treatment or punishment'), a provision analogous to art. 5 UDHR48, art. 7 ICCPR66, and art. 37 CRC89. See Tyrer v. U.K., 26 Eur. Ct. H.R. (ser. A) (1978) (holding that the practice of 'birching' inflicted on a 15-year-old boy violated art. 3. The court conceded that every punishment is somewhat degrading, but based its standard on the degree of humiliation endured. The court emphasized that punishment contrary to art. 3 is never permissible, whatever its deterrent effect); Campbell and Cosans v. U.K., 60 Eur. Ct. H.R. (ser. A) (1982) (holding that the right to education had been violated when two children were suspended from public schools for refusing to accept the use of leather straps as punishment); Costello-Roberts v. U.K., 247-C Eur. Ct. H.R. (1993) (holding that there had been no violation in the case of a 7-year-old boy attending private school who had been hit three times on the buttocks with a rubber-soled shoe). The Committee on the Rights of the Child disagreed with the European Court of Human Rights in its report on the implementation of the CRC89 by the United Kingdom, finding that corporal punishment in school is a violation of the CRC89. See 'Pandora's Box,' p. 381.
148. This is accepted by the U.S. Guidelines: 'the fact that a child did not specifically seek protection does not necessarily undermine their case, but instead the adjudicator must explore what, if any, means the child had of seeking protection, 26.
149. 'The Commission's research shows that it was the youth, those between 15 and 25 years, who bore the brunt of gross human rights violations'. Pamela Reynolds, 'Truth and Youth: Pain and Blame', evidence presented to the Truth and Reconciliation Commission Focus on Children and Youth, May 1997, on file with author.
150. A recent US case raises related issues. A Nigerian woman who overstayed her student visa in the US is resisting deportation because her 10-year-old U.S. citizen daughter would, she claims, face female genital mutilation if forced to return to Nigeria. Since the child's father died and no other relatives live in the US the choice is a stark one, between permanent separation or FGM. See Sylvia Moreno, 'For her Daughter's Protection', Washington Post, 27 May 1998.
151. See Dissent of J. Bownes in Civil v. INS, above note 74, citing documentary evidence of the major role played by children and youth in Aristide's election campaign, and of political persecution of elementary and secondary school students by the Haitian armed forces, at note 11.
152. See Conjura-Flores v. INS, 784 F.2d 885 (9th Cir.1985) (in which a Salvadoran asylum-seeker who fled his homeland at age 16 testified that young people were likely to be targeted for persecution in his home town, and offered supporting evidence from Amnesty International).
153. See Nassar and Heacock, eds., Intifada: Palestine at the Crossroads, 66, 129 (Birzeit University and Prager Publishers, 1991).
154. See 'Working Children's Movements of Africa, Latin America and Asia: Activities and Discussions' at cwcc@pobox.com.
155. Edmonds and Fernekes, 'Biographical Sketches: Iqbal Mnasih' Children's Rights: A Reference Handbook, 65-66 (ABC-CLIO, 1996).
156. See case quoted in G. Sadoway, 'Refugee Children before the Immigration and Refugee Board', 35 Immigration Law Reporter 106, at 110.
157. See U.S. Guidelines, 22.
158. See Ward a Canada (S.Ct. Canada) (1993) (finding that a social group can be defined by the historical permanence of the persecution).
159. See U.S. Guidelines, 25. For a recent case suggesting gender could constitute a particular social group see Islam (A. P.) v. Secretary of State for the Home Department Regina v. Immigration Appeal Tribunal and Another ex parle Shah (A. P.) [1999] 2 All ER 545 (House of Lords). See also Deborah Anker et al., "Defining 'Particular Social Group' in terms of Gender; The Shah Decision and U.S. Law", 76 Interpreter Releases 1005 (July 2 1999).
160. In Gebremichael v. INS the court concluded: 'There can in fact be no plainer example of a social group based on common, identifiable and immutable characteristics than that of a nuclear family': 10 F.3d 28, 36 (1st Cir. 1993).
161. In one case, a Salvadorean asylum seeker based her claim on the past persecution she suffered at age 10 when her whole village was the subject of the infamous El Mozote massacre. She lost both parents, all five siblings, and her entire extended family. The BIA did not find persecution on the basis of membership in the social group of 'the children of El Mozote'. The Fourth Circuit denied her petition for review, upholding the BIVs finding that the claimant's absence from the village at the time of the massacre and her uneventful 10-year residence in El Salvador after the massacre were significant. Regrettably, neither the BIA nor the Fourth Circuit acknowledged that being a child survivor of a massacre constitutes an immutable characteristic of a particular social group, Argueta-Rodriquez v. INS 129 F.3d 116 (4th Cir. 1997).
162. Sadoway reports that the Canadian IRB has found in some child asylum cases that 'persecution' of an adult member of the family only constitutes 'indirect persecution' of the child, and that this indirect harm is inadequate to establish a successful claim to asylum and would broaden the Convention refugee definition unduly, see Sadoway 112-13.
163. See Cheung v. Canada, Court File No. A-785-91; 102 D.L.R. 4th 214 (Apr. 1, 1993) (granting asylum to a Chinese woman and her yonder daughter, the latter's social group being that of second children born in contravention of China's one-child policy, who would not receive food subsidies, would receive a low-grade education, and might not be allowed to register for school).
164. In the Canadian case, T.C.V.(Re) noted above, in which the child held dual UK/US citizenship, the IRB defined the particular social group as 'young children who are victims of incest' with respect to the claim of persecution against the UK for failing to effectively enforce child protection laws and as 'Victims of sexual abuse who have had their supportive environment destabilized' with respect to the claim of persecution against the U.S. which had deported the child applicant's stepfather.
165. In one recent case, the court in awarding asylum to a victim of child abuse and child trafficking following sale, distinguished between the social group of 'indian children sold or abandoned by their parents,' where the group encompasses children sold out of necessity, and the narrower and more vulnerable group of 'unwanted, abused and sold children'. As the court argued, the latter group are unprotected not only by the state but by their parents, Matter of [Name Withheld] at 11, (IJ, Chicago, 13 Mar. 1998) 13 Mar. 1998.
166. UNHCR Handbook, para. 213.
167. CRC89 art. 3 (1).
168. CRC89 art. 12.
169. Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). Assessing the child's subjective response requires special expertise and sensitivity. One immigration judge has found that a 12-year-old child's fear was subjectively genuine by relying on the testimony of a court-appointed guardian ad litem who credibly testified that 'in twenty five years working with abused children she only once saw a child so afraid to return home.' Moreover the court found the applicant's subjectively genuine fear established because she 'desperately seeks to stay in the United States, a strange place where she has little idea who will take care of her, rather than return to her parents'. Above n. 133, Matter of [Name Withheld].
170. In one recent case an immigration judge found a 12-year-old child's fear was subjectively genuine by relying on the testimony of a court appointed guardian ad litem who credibly testified that 'in twenty five years working with abused children she only once saw a child so afraid to return home'. Above n. 133, Matter of [Name Withheld].
171. See Martinez Meija, Juan Carlos: 'While the Honduran constitution prohibits torture, the police continue to abuse street children. The streets of Honduras would offer the respondent no protection from the abusive home of his mother and stepfather,' 3.
172. In Matter of Chen, Int. Dec. 3102 (BIA 1989) (where a Chinese Christian was beaten, harassed and deprived of food and medical attention from the age of 8).
173. The appointment of a legal representative for unaccompanied minor asylum seekers is provided for in Austria (s. 13, 1992 Asylum Act; see Ayotte, 4); in Finland all unaccompanied children have a trustee appointed to 'take care of the child's legal affairs and other important matters': Ayotte, 8; in France children under 18 cannot take independent legal action so a guardian is appointed by the court where a child seeks to register an asylum claim: Ayotte, 10, but see the disturbing case of a Senegalese teenager in France reported in Amnesty International, Most Vulnerable of All, 12-13; in Germany children under 16 must have a guardian to apply for asylum; in the Netherlands a special organization - De Opbouw - exists to act as a guardian for unaccompanied children without other adults to represent them: Ayotte, 20; in Spain a district attorney is appointed to represent a child in asylum proceedings: Ayotte, 24; most Swiss cantons will institute protection proceedings under the Swiss Civil Code that provide for the appointment of a guardian or a trustee for unaccompanied minors: Ayotte, 27.
174. INS Guidelines, pp. 5-6.
175. 'In many cases, the child's parent or other relative is a logical and appropriate support person. When the child arrives at an interview without a relative, however the Asylum Officer in their discretion may allow another trusted adult to serve as the support person, INS Guidelines, 6.
176. Section 69(4), Immigration Act, as enacted by R.S.G. 1985 (4th Supp.), c. 28, s. 18. ('Where a person who is the subject of proceedings before the Refugee Division is under eighteen years of age . . . the Division shall designate another person to represent that person in the proceedings.')
177. Canadian Guidelines.
178. Id.
179. Interview with Geraldine Sadoway, Parkdale Legal Services (Toronto, Ontario, Canada, 28 May 1998). In fact the Canadian Guidelines state: 'There may be situations where the person who was designated to be the representative ceases to be an appropriate representative of the child. For example, the person may prove unwilling or unable to make themselves available for pre-hearing conferences. In these situations, the CRDD should remove the person as the designated representative and designate another representative.' (emphasis added), Canadian Guidelines, 5.
180. UNHCR Guidelines, i.
181. Connelly, 'A Report to the Refugee Council on the Panel of Advisers for Unaccompanied Refugee Children', para. 1.1 (National Institute for Social Work, Apr. 1995).
182. Though this system has much to commend itself there are still several serious limitations in terms of children's protection. First, the system should have statutory force, to ensure that no unaccompanied minors fall through the referral net; second neither the panel adviser nor the legal representative have parental responsibility in law for the child; this absence of clear legal responsibility is a recurring problem in most of the countries surveyed above. See Amnesty International, Most Vulnerable of All, 44-45; 63-67.
183. Interview with Terry Smith, Director, Panel of Advisers for Unaccompanied Refugee Children, 24 Jul. 1998. For a description of the limitations of The Panel advisers' note see Amnesty International, Most Vulnerable of All, 67.
184. D. Kerwin, 'Throwing away the Key: Lifers in INS Custody', 75 Interpreter Releases 649 (11 May 1998).
185. For an excellent overview of the demand for legal services from charitable immigration service providers and the need for government funding, see Donald Kerwin, 'Charitable Legal Immigration Programs: Can they Survive?', 74 Interpreter Releases 813 (19 May 1997).
186. INS Office of General Counsel, 'Funding of a Pilot Project for the representation of Aliens in Immigration Proceedings,' 21 Dec. 1995.
187. 'Former "Child Soldier" Tells of Nightmarish Life,' 15 LIRS Bulletin 1 (Spring 1998).
188. The Adoption and Safe Families Act of 1997, Pub.L. No. 105-89, 111 Stat. 2115 (19 Nov. 1997).
189. INS Guidelines, 10.
190. Lutheran Immigration and Refugee Service, 'Working with Refugee and Immigrant Children: Issues of Culture, Law and Development' (1998).
191. On 10 Nov. 1997, the Women's Commission for Refugee Women and Children monitored two hearings before the Canadian Immigration and Refugee Board involving three child refugee claimants. The names of the applicants are withheld to protect their privacy.
192. Interview with Roy Petty, Executive Director, American Immigration Law Foundation, 1 Jun. 1998.
193. Interim Dec. 3028, 19 I & N Dec. 439 (1987).