Delighted to welcome this guest post from Jessie Chappell, immigration lawyer in St Louis, USA, who recently completed her LLM in International Human Rights Law and Public Policy at U.C.C.
Why US protection law is too complicated for unaccompanied minors fleeing gangs
Central American gangs and the people fleeing them are dominating the news in the United States. As more and more people try to get out of the reach of these organizations, their children are increasingly more vulnerable. This year the number of Central American children arriving in the United States has climbed exponentially. A decade ago, unaccompanied minors from Central America numbered about 5,800 a year, last year they numbered 25,000, and this year they are estimated to rise above 60,000. The Department of Health and Human Services’ data shows that 95% of these unaccompanied minors come from Honduras, Guatemala, and El Salvador. The United Nations High Commissioner for Refugees (UNHCR) and U.S. Conference of Catholic Bishops issued separate reports connecting this influx of children to the increase of gang prevalence and breakdown in the rule of law across Central American governments.
Care of these children is rooted in former President George W. Bush’s 2008 law which was enacted to combat child trafficking. This law requires that unaccompanied Central American children in custody must be treated under the “best interest of the child” standard. While this is common legal language for the international community, the US’s lack of adoption of the CRC makes this standard more in line with international norms that most other child focused US law. This law also mentions that a child could have a legal advocate in forthcoming legal proceedings, but the state does not have to provide the advocate.
Once these children are present in the US, permanent legal protection and regularization rules mainly stem from national implementation of international sources. First, the national adoption of the 1951 UN Refugee Convention and the 1967 Protocol, offers protection for individuals who cannot return to their countries of origin because those countries cannot protect them from persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The unaccompanied child arguing for protection must convince the judge that his or her fears are credible, as determined under judicial discretion. This discretion considers the child’s recall of key events and overall attitude during the interview. Applying this protection mathematically, child must show evidence of part persecution or establish that there is more than a 10% chance of persecution in his or her home country. Even where such a chance of persecution exists, the child applicant must connect it to one of the protected grounds. Most often children in these circumstances apply for protection under “political opinion” or “particular social group” grounds.
This process is incredibly difficult, since the Board of Immigration Appeals, the appeals mechanism for asylum cases, has previously stated that a minor’s refusal to join a gang may not always be a political opinion, since gangs pursue minors in order to increase the size or influence of their gang. This effectively negates one whole category of protection for children facing gang recruitment or death. For children relying on particular social group, the Board of Immigration Appeals has stated that a group must “all share a common, immutable characteristic…such as sex, color, kinship ties… or past experiences…which cannot change or should not be required to change because it is fundamental to their individual identities or consciences.” As immigration advocates try to define their client’s group in a particular enough way, courts continue to narrow the qualifying memberships. For example, circuit courts are now requiring social visibility of a group even after the UNHCR questioned the need for such additional restrictions. In conflicting US case law, young women of a specific tribe resisting female genital mutilation were not required to meet the social visibility requirement, whereas the Board of Immigration Appeals, in the Matter of S-E-G– noted its requirement in a number recent of gang related cases.
Even where a child is able to show social visibility in a particular social ground, he or she can be denied protection. Because the Board of Immigration Appeals has not yet considered whether children with past gang affiliation are eligible for protection, circuit courts have been free to decide for themselves. Without discussion on the differences in culpability for adult and child former gang members, some courts have stated that the legislature did not intend to protect “violent street gangs who assault people” and that choosing to join a gang or receive an identifying tattoo forfeits legal protection by an assumption of risk. This presumption is inherently flawed, as research has shown that gang affiliated youth in El Salvador spent the majority of their time with peers engaging in non-criminal activities. Legal advocates cannot rely on such secondary sources, however, since few other circuits have adopted a more fact intensive analysis of protection eligibility.
The other main international standard which applied to children fleeing violence and recruitment by gangs is protection against torture. Under the UN Convention Against Torture, the US is prohibited from returning an individual if he or she fears torture at the instigation of or with the consent or acquiescence of a public authority. This protection should provide a safety net for targeted children who cannot overcome the nexus requirement of asylum law, but is rarely successful in practice due to the burden of proof being “more likely than not”, which is higher than the asylum burden.
Assuming a child is able to prove a well founded fear on account of a protected nexus group or a well founded fear of torture under CAT, he or she is still not entitled to protection. The child, in either category, must show that the child’s home country is unwilling or unable to protect them. The precise definition of this is unclear, as the US Supreme Court has yet to clarify what constitutes a “public authority’s willful awareness” of persecution or torture. Inconsistent precedent regarding this requirement adds to the unaccompanied child applicant’s challenge to remain safe in the US.
Given the trauma associated with children persecuted or forcibly recruited to join gangs, and the complicated legal hurdles discussed above, it is clear that unaccompanied children face a difficult path to legal protection. Notwithstanding language and cultural barriers, trauma and isolation in detention centers also greatly limit a child’s capacity to understand legal alternatives. Unaccompanied minors must be appointed legal advocates, in order to fully understand their legal options, in line with the international interpretation of “best interest of the child” standard. Without a trained advocate at each stage of the legal process, the laws meant to protect these vulnerable children are ineffective and inconsistent.