Asylum Claims for Unaccompanied Children Lisa Frydman, Associate Director, Managing Attorney Center for Gender & Refugee Studies NOVEMBER 20, 2014
Overview of Migration Surge In FY 2012, the Department of Homeland Security (DHS) apprehended more than 24,000 unaccompanied children. In FY 2014 DHS apprehended over 60,000 unaccompanied children, mostly from the Northern Triangle (El Salvadoran, Guatemala, and Honduras) Increase in numbers of UAC girls and children under 13 Surge includes not only children but entire families (especially mothers with children)
Overview of Migration Surge
Country Conditions & Root Causes Child abuse cultural norms treat children as the property of their parents, resulting in: Extreme corporal punishment Forced labor & reduced educational opportunities Sexual abuse/incest, trafficking Abandonment Domestic violence entrenched patriarchal norms permit subjugation and control of female partners, resulting in: Physical, emotional & sexual violence Economic abuse Isolation, intimidation, coercion, and threats Gang violence inter-gang violence and violence against specific populations, such as young males, street children, specific neighborhoods, etc. Examples: Forced recruitment Retaliation (threats, violence, death) for refusal to join or other forms of opposition to gangs Extortion Sexual violence Cartel violence inter-cartel violence and violence against local communities Similar forms of harm as gang violence
Jurisdiction Over UAC Asylum Claims Section 235(d)(7) of the TVPRA states that: "[a]n asylum officer... shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child... Includes UACs in removal proceedings Definition of UAC: (6 U.S.C. 279(g)) (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
Jurisdiction Over UAC Asylum Claims Effective June 10, 2013, USCIS will not make independent factual inquiries to determine UAC status, but will adopt the prior status determination made by HHS, CBP or ICE Unless another agency has affirmatively acted to terminate UAC status See Handout: USCIS Memo Update Procedures for Determination of Initial Jurisdiction... Dated 5/28/2013 Evidence of Prior Determination: Form I-213 Form 93 (CBP UAC Screening Form) ORR Initial Placement Form ORR Verification of Release Form USCIS will take initial jurisdiction in cases where applicant has turned 18 or been reunited with a parent
Process for UACs in Removal Proceedings Following implementation of the TVPRA, UACs are served in court with the UAC Instruction Sheet (Included as Handout) UAC is then given continuance from court in order to pursue asylum directly with USCIS Asylum Office Extremely important that UAC continue to attend all immigration court hearings while AO process is conducted At next MCH following filing with USCIS, UAC should bring a receipt notice from USCIS to file with immigration court and serve on ICE In some cases, UAC s removal proceedings may be administratively closed while USCIS adjudicates case (See sample Motion To Administratively Close)
Common Children s Asylum Claims Gang-based threats or violence Harm suffered on account of family Victim of domestic violence by partner or caregiver Child targeted based on sexual orientation Child forced into prostitution, or marriage Exploitation of child labor. Street child
Persecution Standard for Children Harm that does not constitute persecution of an adult can be persecution of a child, UNHCR guidelines, AOBTC materials View the harm from the perspective of the child Consider the child s age, maturity, developmental stage, mental health Obtain a mental health assessment to help establish the effects of the harm on the child
Types of Persecution and Children Child abuse is persecution. Matter of S-A-, 22 I.& N. Dec. 1328 (BIA 2000) (child abuse as persecution) Gang recruitment: Resistance to recruitment leads to death threats, beating, rape, all of which should rise to the level of persecution Forced recruitment itself should also constitute persecution Forced/coerced labor or exploitative labor conditions should constitute persecution of a child Distinguish between reasonable work to help the family and forced, exploitative, or harmful labor Forced or exploitative labor of children is commonly coupled with deprivation of education. Can involve long hours, dangerous conditions, threats and/or abuse if a child is sick or doesn t work enough. Is the labor harmful to the child? Is the labor in violation of country s laws on child labor? Of international laws on child labor?
Types of Persecution and Children In the case of a child threats alone should often be enough to establish persecution children tend to believe threats more than adults and to be more negatively impacted by threats than adults (UNHCR) consider: was the source of the threat someone in a position of power as compared to the child? Did the child believe the threat? Was the child scared? How did the threat affect the child ongoing fear, nightmares, anxiety? Mental health assessment can help establish threats as persecution to a child
Types of Persecution and Children Forced and early marriage: Distinguish arranged marriage from forced marriage: marriage requires full and free consent of both parties. Marriage involving duress or coercion is forced. Qu v. Holder, 618 F.3d 602 (6th Cir. 2010) Marriage involving girls under the age of majority should be considered forced: a child cannot consent to marriage. Early marriage harms girls health and education. International laws/norms protect against forced and early marriage. Forced marriage involves a range of attendant harms that should constitute persecution, but the marriage itself should be considered persecution
Types of Persecution and Children Children are greatly affected by harm to their parents, siblings, other close family/caregivers, Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir. 2007) Rape of parent in child s presence: leads to immediate and long term harm of child, as well as immediate and long term harm of parent in ways that affect the child and family Witnessing murder or finding dead body of family member Mental health professional s evaluation can help establish how harm to the family member has impacted the child Female genital cutting, Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005) Domestic violence intimate partner, Matter of A-R-C-G-, 26 I.&N Dec. 388 (BIA 2014)
Hypothetical Lourdes is a 13 year old from Guatemala. Her parents migrated to the U.S. when she was 6 years old and left her in the care of her paternal aunt and the aunt s husband in rural Guatemala. Her aunt was a habitual drunk and her uncle a drug addict. Her parents in the U.S. regularly sent money for her care, but her aunt and uncle used that money to support their drug and alcohol habits. Her aunt and uncle did not send her to school; they claimed they had no money for school and that they needed her help to care for their animals and to grow vegetables and sell them at the market. Lourdes worked about 10 hours/day so she couldn t realistically attend school anyhow. Sometimes her aunt, uncle, or both would disappear for days at a time, leaving her alone. When she was 13 she learned that her 16 year old neighbor was going to the U.S. and decided to join her. Eventually she was reunited with her parents in the U.S. She arrived underweight and with intestinal worms. Persecution? Not? What else would you want to know?
Children s Asylum Claims: Protected Grounds All relevant grounds should be argued: race, religion, nationality, political opinion, and membership in a particular social group Most common in children s cases: particular social group and political opinion Political opinion
Children s Asylum Claims: Protected Ground Religion Gangs and religion: Recruitment of children active in churches and viewed as influential by the gang. Recruitment of children involved in churches that proselytize, e.g. Evangelical Church. Viewed as direct competition by the gang. Gender roles and religion: resisting religion assigned gender roles or norms can be viewed as rejecting the religion itself, and lead to persecution. Matter of S-A-, 22 I.&N. Dec. 1328 (BIA 2000)
Children s Asylum Claims: Political Opinion Gang claims: a range of actual or imputed political opinions might apply belief in the rule of law, pro government, anti-corruption UNHCR gang note gangs as political entities, quasi government; resistance is viewed as resisting government Gender claims: feminism, women s rights, the right to bodily autonomy, opposition to FGC can all be said to be political. UNHCR gender guidelines; Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993)
Children s Asylum Claims: Political Opinion *Frequent type of claim, importance of questioning children about their parents and other family members. Examples: parents violation of one child policy in China, parents pro democracy views in Albania, family member s resistance to gangs, Haitian cases. Silaya v. Mukasey, 524 F.3d 1066 (9th Cir. 2008)
Children s Asylum Claims: Particular Social Group Precedent in Children's Cases Positive Former child soldiers who escaped the Lord s Resistance Army, Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003 ) Negative Street Children, Escobar v. Gonzales, 417 F.3d 363 (3d Cir. 2005) Children Resisting Gang Recruitment, Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008), previously rejected by several CTAs But see Matter of M-E-V-G, 26 I.&N. Dec. 227 (BIA 2014)-social group is a case-by-case, record-by-record determination Age/youth is immutable at any given point in time. See Matter of S-E-Gat 583; UNHCR guidelines. Show social distinction through expert testimony and lay testimony. The group is perceived as a group in societies with high rates of gang violence. Show particularity through expert and lay testimony, or through any policy or program designed to support or protect gang resisters.
Children s Asylum Claims: Particular Social Group Family as a PSG: well established in caselaw, 4th Cir. Case, Crespin- Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) recognized family of a prosecution witness against gangs as a PSG focusing on the family part of the group Range of family-based claims approved in the gang context: family of an individual who is a current or former member of a gang; family of an individual who is a known opponent of gangs, family of current or former police officers in gang/organized crime units, family of individual who harmed gang or family of gang, family of witness to gang violence, etc. All of these decisions focus on the family characteristic Gang threats often spread from one family member to the entire family Be sure the family relationship is clearly defined in a way that has meaning in the relevant society
Child Abuse Claims Consider the PSG of nationality + children in families (e.g. Mexican children in families) country conditions evidence regarding the lower status of children in society, and that that status is replicated in families shows social distinction evidence that the state fails to respond to this group and/or of policies directed at this group or laws on child abuse can help prove particularity Children without parental protection or without effective parental protection social distinction and particularity can be shown through articles, reports, on children left behind by migrant parents, laws on kinship care, programs to support families taking in children Avoid PSG of abused children
Child Abuse Claims Child abuse with gender component: girls may be targeted for sexual abuse + physical abuse girls may be the only children in the family targeted for abuse or for repressive rules consider social group defined by gender + childhood + status in the family, such as: nationality + girls in the family, nationality + girl children in the family, nationality + stepdaughters articles or reports on different roles and expectations for girls and boys in the family (including higher rates of education for boys) would all be relevant to social distinction and particularity. Evidence from an expert about especially high rates of violence against girls in families and the status of girls in families would also be relevant.
Intimate Partner Violence Claims Matter of A-R-C-G-, 26 I.&N. Dec. 388 (BIA 2014), married Guatemalan women unable to leave the relationship is a PSG Gender is immutable, marital status can be when laws, society, other constraints make it impossible to leave Social distinction was established based on country conditions evidence showing that married women were subject to high rates of abuse and discrimination and police refused them protection Particularity was established based on the response of police to the applicant s requests for protection police would not help married women Gender defined PSGs in the 10th Circuit: Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005) recognizes a social group defined by gender + nationality + tribal membership
Street Child Claims Street children: Escobar v. Gonzales, 417 F.3d 363 (3d Cir. 2005) rejected homeless children in Honduras who lived on the streets after finding the group too vague and all encompassing. Other CTAs have not ruled. Immutability Social distinction: lots of evidence exists on mistreatment, exploitation, low status, especially in Honduras Particularity: despite Escobar s ruling that the group was too vague community members could testify as to the ways they determine who is/is not a street child, programs exist to serve children and some non-profits are dedicated to working with street children
Hypothetical Emilia is a 15-year old Guatemalan Mayan girl. She lives in a mining town populated by many foreign workers with her aunt. Emilia s father died when she was very young and her mother migrated to the U.S. when Emilia was 10. Her mother regularly sends money for her aunt to care for her and send her to school. Her school is in another town and she must walk 1 hour to get there. On her way to school Emilia regularly encounters foreign workers who she says give her scary looks and sometimes ask her to date them. Gangs have proliferated in the town where her school is located. Emilia fears them but tries to ignore them as she goes to and from school. One day on her way home from school 3 gang members approach her and start talking about her fancy shoes. They ask her if her mother in the U.S. bought them for her and whether she would like to buy them some fancy shoes too. Emilia feels very afraid. She responds to them and returns home as quickly as possible. What social group or groups might Emilia be a member of?
Nexus and Children Limited understanding or information Relevance of objective evidence Status of children in society, family Levels of certain type of harm against children, subgroups children Testimony of knowing adults Importance of country conditions experts
Nexus and Children Gang recruitment: establish that gangs are particular about who they target and are motivated by their characteristics rather than a general desire to grow their ranks. E.g. gangs seek out students and youth group leaders because of perceived benefit to the gang. Expert, former gang members can establish Resistance: the challenge is to show that gangs are motivated by the protected ground (political opinion/social group) rather than just the desire to grow or as retribution. A country conditions expert can be especially useful to establish how gangs understand resistance and view resisters, and why they are motivated to suppress resistance.
Nexus and Children Gender-based claims: Direct evidence of gender as a central motivating factor: a persecutor s words calling a woman a bitch, whore, saying she s just a woman, he is the man and he decides Circumstantial evidence showing that the state and society accept violence against women. E.g. country conditions showing the prevalence of VAW, failure of state to respond to VAW. Discriminatory laws e.g. no recognition of marital rape, allowing for marriage of girls under the age of 18? Sarhan v. Holder, 658 F.3d 649 (7th Cir. 2011): recognizing the relevance of societal attitudes and gender norms to establishing nexus
Nexus and Children Family-based Claims Direct evidence: comments by persecutor about the family member, or warnings about or to the family member Circumstantial evidence of targeting of the entire family or of other family members in addition to the applicant Aquino-Cordova v. Holder, 759 F.3d 332 (4th Cir. 2014) the Court held that Aquino found that the evidence established persecution on account of family membership, in particular relationship to his cousin who was a gang member. Aquino suffered several attacks by the gang rival to his cousin s. Recognized that motive can change over time
Hypothetical Part 1 Yesenia is a 17 year old from El Salvador. Her family are members of an Evangelical Church. When she turned 15 a gang member in her neighborhood asked her to be his girlfriend. She refused and said she does not believe in what gangs do. Soon after she found out that she was on the gang s death list, and that they had killed another girl on their list who had refused to date a gang member. Yesenia s brother was approached by a different gang member. The gang member said that because he was such a good religious boy the gang wanted him to deliver drugs for them, since no one would suspect him. He also refused. Yesenia and her brother are very active in the church s youth group. They regularly proselytize to youth in the community. Their father drives youth to church and provides meals for those youth who agree to come to church. The family also talks to gang members to see if they can persuade them to leave the gang and join the church.
Hypothetical Part 2 When Yesenia was 14 her father saw a gang member steal money from an individual in the community and he reported the incident to the police, who ended up questioning the gang member. On one occasion gang members came into the family s church and attacked their pastor. Some gang members have made passing reference to Yesenia and her brother s religion. One day the family received a series of phone calls in which the gang demanded money from them and told them that if the money was not paid all of the children would be killed. The gang named all of the children in the home by name and said where they went to school. The family promised to pay, but fled instead. For what reasons was the family targeted in the past? For what reasons might they have a well-founded fear of persecution in the future?
State Unable/Unwilling to Protect and Children Children depend on adults to protect and to access protection (AOBTC, UNHCR)
State Unable/Unwilling to Protect and Children Child does not report persecution non-reporting leaves a gap in proof evidence that can fill the gap: evidence of high levels of impunity, lack of laws to protect, failure to implement laws designed to protect, belief that authorities should not intervene in discipline of children or family matters, low prosecution rates, low conviction rates, etc. Honduras and El Salvador, for example, have progressive laws on children s rights and protection, but they both fail to implement the laws. Child reports persecution and state responds Sometimes a child or the child s family reports persecution and police take some action. Consider: Did the police take a report? Start an investigation? Complete the investigation? Make an arrest? If an arrest was made was the persecutor quickly released? Did police refer the case for prosecution? Is any corruption involved does the persecutor have a relationship to police or other state officials? Even if a persecutor is in jail for a long time a child may be able to prove that the state is unable/unwilling to protect. E.g., persecution continuing even from jail (DV example), persecutor in jail for something unrelated to the persecution and country conditions show the failure of the state to respond to the type of harm at issue in the case.
Hypothetical Amalia is a sixteen year old indigenous Guatemalan girl who was raised mainly by her grandmother. She never knew her father. Her mother survived by washing laundry, but the family was struggling and often there was not enough food in the home. When Amalia was five years old, her mother left for the U.S. so she could earn more money and give Amalia a better life, leaving Amalia in the care of her maternal grandmother. Amalia s uncle also lived in the home. Amalia s grandmother was physically abusive. She beat Amalia with shoes, electric cables - anything she could get her hands on. She forced Amalia to start working at the age of six and told Amalia that she was good for nothing. By the time Amalia was ten years old, her uncle started giving her what she considered funny looks that made her feel uncomfortable. Soon after, he began sneaking into her room at night and touching her. Amalia was suicidal and desperate to leave her situation, but she dared not tell her mother about the abuse because she was ashamed and felt it must have been her fault. In fact, she told no one about the abuse. She desperately wanted to leave, but she has no other family in Guatemala and had nowhere else to go. At age 15 ½, she was able to sneak away and begin her journey to the U.S. with another young woman who was also fleeing abuse. She traveled by foot and train through Mexico. Amalia was apprehended at the border and placed in removal proceedings.
Hypothetical Armando, a 16-year old boy from Honduras, grew up in a poor community outside Tegucigalpa. When he was 13 years old, the gang MS-13 came to his school and asked him to join their gang. When he first refused to participate, they tried to lure him in with promises of money and girls. However, Armando did not want to join the gangs because he didn t like the way they treated people and thought they were bad for the country. When he continued to refuse, they threatened to harm him and those most dear to him - his parents and sister. Eventually, the gangs members would also make threats to his parents, leaving threatening voice messages, and his sister also noticed that she was being followed on the streets. Sadly, his sister was raped on one of these occasions as she was coming home from school. She believes the perpetrator was a gang member because he said, tell your brother he s next. The next time Armando ran into an MS-13 gang member, he was beaten; they kicked and punched him all over his body, leaving him bloody and almost unconscious. They said that next time he would not be so lucky. Terrified for his life, Armando decided to leave for the U.S. even though he knew the journey would be difficult. He traveled through Guatemala and Mexico alone. The first time he was caught by border patrol, he told them he was from Mexico because he was terrified of being sent back to Honduras, and he did not mention the gang s threats. Once sent back to Mexico, he attempted to enter the U.S. again, this time telling the truth that he is Honduran. He was given a Notice to Appear and is in removal proceedings before an immigration judge.
CGRS Expert Consultation CGRS provides free expert consultation to attorneys and organizations representing asylum seekers in California, across the United States, and internationally including legal technical assistance, country conditions evidence, and expert witness affidavits. To request assistance from CGRS, go to http://cgrs.uchastings.edu/assistance.