Birdsong’s student Mara Snyder did some interesting research last semester in the Refugee Law seminar and wrote a wonderful paper on refugee children. It is very informative and well written. The paper includes all you ever wanted to know about refugee children in the U.S., but were afraid to ask. Take a gander at it below.
Unaccompanied Minor Refugee Children in the United States:
Their Difficult Search for Legal Identity, Safety, and Family
by: Mara Snyder
“Unaccompanied refugee and migrant children are among the most vulnerable people on earth.”
By the time children become refugees, they have often experienced the devastating effects of war and extreme violence, and are suffering severe emotional, physical and psychological trauma. Upon entry into the United States, that devastation is further compounded by the aggressive approach the Immigration and Customs Enforcement agency (ICE) often takes to resolving their legal status; they are often detained with children who are actual criminals, in a setting for criminals. This is an example of one young girl’s difficult journey through the United States’ juvenile system; her only ‘crime’ was being an unaccompanied refugee child, alone and unrepresented:
She was detained at age 15. Though charged with no crime, she was sent to a secure detention facility in Pennsylvania, where she was housed with children accused of murder, rape, and drug trafficking. She was assigned to a small concrete cell, bare except for bedding and a Bible in a language she could not read. She was forbidden to wear her own clothes or keep any personal possessions – jewelry, hair tires, perfume, deodorant – in her cell. She was forbidden to laugh or speak in her native language.
This child’s experience with ICE was, unfortunately, not unique. It serves to highlight the procedural flaws in the resettlement procedures found in the United States for this very vulnerable population – unaccompanied refugee children. This paper will address the legal obstacles unaccompanied and separated minor refugee children must overcome to obtain an identity in the United States, divided into three segments. Part I will provide an abbreviated history of the multiple international crises that have created millions of refugee children worldwide, and the international policies that govern resettlement. Part II will be an in-depth discussion of the process itself; most specifically its conformance to international human rights (the Convention on the Rights of the Child is the guidepost), and the government and nongovernment agencies that are crucial to the US Resettlement Program. Part III will present recommendations for changing U.S. policy from a ‘government first’ perception to a ‘best interests’ determination, the latter being the basic premise behind the Convention on the Rights of the Child.
Part I: History of Children Seeking U.S. Asylum, an Overview of the International Policies that Govern Resettlement, and the Legislation Supporting those Policies.
Brief History of Refugee Children Entering the United States to Seek Asylum
The United Nations, in its 1951 Convention Relating to the Status of Refugees defined a refugee as:
Any person who, as a result of events occurring before 1 January 1951 and 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, 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.
(This definition was amended in the 1967 Protocol to include persons who became refugees after 1 January 1951). As of January 1, 2007, the United Nations High Commissioner for Refugees (UNHCR) reported a total of 9,877,710 refugees, asylum-seekers, internally displaced persons, returnees, stateless persons, and other persons of concern around the world. Of these, approximately forty-four percent are children under the age of eighteen, and of that forty-four percent, twelve percent are children under the age of five. This means that there are approximately one million, one hundred eighty-five thousand children under the age of five, and approximately three million children between the ages of six and eighteen seeking refuge somewhere in the world. Only a small percentage will seek asylum in the United States, and an even smaller percentage will find it. The picture painted by the thought of more than four million orphaned refugee children seeking, and so rarely finding, asylum is a grim picture indeed.
Global Crises Creating Refugees, Generally
In the first half of 2008 the top ten asylum-seeking countries, listed from highest number to lowest, with the recorded number of applications from January to June of 2008, included Iraq (19,500), the Russian Federation (9,400), China (8,700), Somalia (7,400), Pakistan (6,300), Afghanistan (6,300), Serbia (6,200), Mexico (5,200), Nigeria (4,800) and Iran (4,600). Most of the refugees fleeing these countries were in disastrous environments created by a few very broad, very general categories: (1) civil war, (2) internal governmental corruption and lack of infrastructure, (3) inter-country war, and (4) country-wide human rights violations. Please note that several countries may fall into more than one category at any given time.
(1) Bosnia and Somalia are both appropriate examples of civil wars that created hundreds of thousands of refugees. In 1991, Bosnians began the process of “ethnic cleansing” in an effort to eradicate any non-Serbian minorities, leading to systematic mass murder, rape, and country-wide devastation. The civil war – or, probably more aptly, genocide – that raged from 1991 – 1995 left 200,000 people dead, of which close to 50,000 were children, and created almost two million refugees.
Somalia experienced its own civil war, in addition to an attack by the adjacent country of Ethiopia, in late 2006. Bleeding over into 2007, the war with the Transitional Federal Government (TFG) of Ethiopia moved into Mogadishu where the TFG began to indiscriminately kill Somalis. In addition to attacks from the Ethiopian troops, Somalis in Mogadishu were also killed by their own countrymen, who were engaging in a large-scale military effort in response to the presence of the Ethiopian soldiers. Between Somali troops and Ethiopian troops, tens of thousands Somalis were raped, robbed, assaulted, and for several thousands more – murdered. The violence in Mogadishu has resulted in almost 500,000 refugees seeking asylum from countries around the world.
(2) The current state of affairs in both Mexico and Nigeria speaks to the utter disregard for the economic, physical, and psychological welfare of a country’s own citizens that occurs when every level of government has been penetrated by corruption and greed. Mexico has virtually no system for effectively prosecuting criminals that perpetrate violent crime, while the torture of political activists is both practiced and accepted (many courts of law allow evidence obtained through torture), and domestic and gender-based violence infiltrate all levels of criminal and social life. In 2007, there were an estimated eleven million Mexicans living in the United States, of which almost half immigrated illegally; their desperation is evidenced by the extreme measures they take as they escape the despotic, corrupt, greed-laden government currently in place.
In Nigeria, “widespread government corruption, political and intercommunal violence, police
torture and other abuses continue to deny ordinary Nigerians their basic human rights.” In addition to the cracked infrastructure, fraudulent ‘elections,’ political persecution, and rampant sexual violence perpetrated by the military, Nigerians also suffer from a lack of the most basic human rights – access to clean water, safe and sufficient nutrition, education. The number of Nigerians seeking refuge from the United States alone, in just the first half of 2008, is four thousand, eight hundred.
(3) Iran, Iraq, Afghanistan and Pakistan are all suffering the unfortunate and devastating effects of the Iraq War. Iraq is, and has been for the last five years, the top asylum-seeking country in the world. With 19,500 new applications in just the first half of 2008, Iraq has more than twice the number of applications than the Russian Federation, a country that has historically produced the highest number of new refugees annually. When the United States invaded Iraq in March of 2003, it began a singularly costly and destructive war that has since displaced over four million people. In addition to the refugees caused by a war with the United States, the systematic and widespread violence against women as well as the long-standing Sunni-Shiite conflict has created numerous refugees who seek asylum in any country willing to accept them.
Afghanistan and Pakistan are also suffering the effects of a long-standing war with an industrialized nation, and together they comprised 12,600 new asylum applications in just the first half of 2008.
The Russian Federation, the country producing the second-highest number of new applicants for asylum each year has seen a dramatic increase in refugees in 2008 due to the aggression of Georgia against South Ossetia. As of August, 12, 2008, over 100,000 refugees were created by the attack on Ossetia, pushing their already high number of refugees (250,000 before the attacks) to over a quarter of a million people.
(4) China produced 8,700 refugees in just the first half of 2008, as people fled the forced abortion and sterilization policies currently in force throughout even the most remote Chinese provinces. Domestic violence, oppression of speech and religion, and the forced labor of children all contribute to the thousands of refugees that seek asylum around the world.
The countries described above are only ten of the hundreds of countries that currently have refugees crossing borders in an effort to seek religious, political, and social freedoms. Please keep in mind that for every ten refugees, four are children. For every one hundred, forty-four are children. For every one thousand, four HUNDRED, forty-four are children. Each statistic is inclusive of all refugees – gender and age are grouped together for the purpose of providing a general understanding of the extent to which international crises have created millions upon millions of people seeking relief. But do not forget, you must not forget, that over forty percent of those people are children.
International Policies that Govern Refugee Resettlement, and the Legislation that Supports Them
The first global acknowledgment that refugee children require special treatment and protection is found in the 1924 League of Nations Declaration on the Rights of the Child. Since this international policy declaration eighty-four years ago, human rights groups around the world have adopted and implemented numerous additional policies meant to address the ever-growing number of refugees created around the world. In 1959, the United Nations General Assembly adopted the Declaration on the Rights of the Child, but it was another thirty years before the most widely ratified treaty on the issue of refugee children – the Convention on the Rights of the Child (CRC) – was adopted and implemented. This is the primary human rights instrument that guides international policy-makers in their choice of social and legal policies that affect unaccompanied and separated refugee minor children (for the purposes of this paper, unaccompanied and separated children will be treated as one class, because ultimately the policy recommendations will affect both).
At the heart of the CRC is a very simple principle, “the best interests of the child,” which is seen in virtually every significant human rights organization’s publication on the protection and treatment of refugee children. Article 3, Section 1 of the CRC provides the textual support for this principle: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” It is this principle that guides the international community; and it should also guide the United States in its policies for refugee children. However, as seen in the very first example cited in this paper, unaccompanied children in the U.S. do not always receive the treatment they should. Medical attention, legal representation, and foster care placement should all be of the highest priority when dealing with unaccompanied minors. Sending these children to secure facilities, often with children who have committed crimes, who do not necessarily speak a common language, and without any expectation of being integrated into a family unit is an extremely unnecessary and traumatic method for handling already-distressed children. “Children seeking asylum, particularly if they are unaccompanied, are entitled to special care and protection.” As is evidenced by their Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, the UNHCR has long since adopted policies that recognize the vulnerability of children, and incorporate ‘best interest’ determinations (BIDs) into all of their humanitarian aid involving children.
The UNHCR follows a standardized procedure – adopted in 1997 in its Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum – that sets the tone for how children should be treated when they are being processed for an asylum claim:
One: children should be immediately identified as separated, and as an asylum seeker; two: once a child has been identified as separated, his claim should be both expedited (to mitigate any pre-existing trauma) and child-appropriate (legal process can be intimidating for any adult; children, who are additionally vulnerable, may suffer irreparable harm if they are not communicated with in a manner that both informs them of what is happening, and comforts and reassures them that they are safe); three: best interests provisions of Article 3 of the CRC should be integral in determining placement for the child; and four: in an effort to ensure a ‘best interests’ approach, the child should be thoroughly but compassionately interviewed so as to learn his social and familial history – this will assist the placement agency in finding the most suitable position for the child.
The UNHCR’s Guidelines also emphasizes the importance of providing access to quality health care and education as part of a successful integration – not after, but during the resettlement process. Because children in this process have already suffered extreme stress and grief, it is sensible to place them in a healthy, nurturing environment – such as a classroom – where they may regain a sense of safety, normalcy and productivity. Holding children in detention rather than placing them immediately in school is highly detrimental to their well-being and counter-productive to any permanent resettlement strategy. The Guidelines stresses the dangers of detention, stating:
Unaccompanied children have all experienced separation from family members and they have also in varying degrees experienced loss, trauma, disruption, and violence. The pervasive violence and stress of a country afflicted by war may create deep-rooted feelings of helplessness and undermine a child’s trust in others. Reports constantly reflect the existence of profound trauma in many children, which calls for special sensitivity and attention in their care and rehabilitation.
The Guidelines recommends using an independent and formally accredited organization specifically for children, one with staff to appoint guardians who will speak for them, help them find legal representation, and ensure that their best interests are being served. This type of independent organization would be extremely useful in the U.S. as well; with the two major American, nongovernmental organizations handling refugee children being voluntary, there is ample room (and much less bureaucracy to encumber the process) for adding a committee specifically for granting these children independent representation.
In 1998, Dennis McNamara, the then-Assistant High Commissioner for Protection and Director of the Division of International Protection Services of the UNHCR, spoke at the London School of Economics about a humanitarian approach to the protection of refugee children. The premise for his statement was grounded in the CRC, and its rights-based approach to handling child refugees:
Refugee children suffer a form a double jeopardy. A denial of their human rights made them refugees in the first place; and as child refugees they are also frequently abused, as the most vulnerable category of an already vulnerable population. When they cross a border to flee persecution or conflict, refugee children often lose whatever social or familial protection they enjoyed at home. Established support systems, such as schools, break down and traditional family structures often collapse with flight.
Mr. McNamara’s remedy was a rights-based approach that preserves each child’s individual dignity, while protecting them from further harm. He also mentioned several other refugee resettlement organizations/programs that use a rights-based, ‘children first’ philosophy as its core premise and successfully advocated for important humanitarian aid desperately needed by refugee children. The first, the Liberian Children Initiative, was founded in Liberia as a collaborative effort between UNHCR, UNICEF, and several nongovernmental agencies (NGOs) to address the nearly 250,000 children refugees living in homelessness, violence, forced military recruitment, and as victims of sexual trafficking. Liberia’s rights-based approach has led to the success of a massive project: the re-establishment of the education system. After seven years of war, the system was virtually nonexistent, but the compassionate and dedicated efforts of the Liberian Children Initiative, UNHCR, UNICEF, and several NGOs saw its determined re-growth.
The second program Mr. McNamara mentioned that uses a rights-based approach to handling refugee children is found in Canada’s refugee resettlement program; it uses a CRC-based perspective in its Guidelines on Child Refugee Claimants, which places an increased emphasis on the rights children have to care, compassion, and special protections. The last program mentioned is Europe’s Separated Children in Europe Programme, a joint effort between UNHCR and International Save the Children Alliance. In its Programme, UNHCR makes special mention of its concern about detaining minor refugees, noting that it should only be ever used as a “last resort.” The rights-based approach in the Programme only serves to enforce Mr. McNamara’s claim that all children, but most especially refugee children, are deserving of special protection and recognition of their individual dignity.
A human rights approach to the protection of refugee children speaks in broad terms about the fundamental entitlement of all human beings to live in dignity, and in conditions of social justice. This approach justifies legitimate claims, not because the realisation of rights is a means to another end, but because the realisation of their rights is an important goal in itself. Concerns, including those of refugees, when conceived of as claims of human rights, are elevated from the realm of State and international good faith, to a level of legal entitlement requiring specific national and international response.
This idea, this beautiful concept that the right of every person to dignity and social justice should ‘pull’ a refugee claim out of any petty concerns over State sovereignty and into the international forum of human rights speaks volumes to the progressive philosophy behind the UNHCR. This is the type of perspective U.S. policymakers should have when deliberating and legislating refugee reform.
One other significant suggestion that Mr. McNamara made during his statement addressed the ‘Big Five’ groups of refugees, as listed in the 1957 Protocol: those persecuted on the grounds of (1) race, (2) religion, (3) nationality, (4) membership of a particular social group, or (5) political opinion. Mr. McNamara suggesting adding children to that list, as they are often a group targeted solely because they are children, and as such, extremely vulnerable to violence, sexual trafficking, military recruitment, abuse, negligence, and violations of their humans rights in general. A 2007 report by the UNHCR’s Executive Committee of the High Commissioner’s Programme reiterated the concept of children being extremely vulnerable to abuse and exploitation to multiple classes of evil: sexual abuse and exploitation, trade for labor, arbitrary detention, irregular adoption, and child-specific disease and malnutrition. These types of harms cannot always be addressed through the use of the ‘Big Five’ classifications set forth in the 1951 Convention, but adding another category – specifically that of exploited or neglected children – will emphasize U.S. commitment to humanitarian aid. In my recommendations sections, you will find that there are many other officials involved in the resettlement of refugees who would gladly amend U.S. adherence to the ‘Big Five’ to include other categories of refugees.
A philosophical viewpoint steeped in humanitarian principles, and general principles of human equality, can only serve to improve the entire resettlement process, and this is evidenced by the highly effective programs the UNHCR has initiated and implemented worldwide since its inception. The UNHCR right-based approach should be the model for the US Refugee Resettlement Program, and its ‘best interest’ determinations, when used as a benchmark (and not merely as a point of reference), will only serve to further aid these children in their search for safety and stability.
Part II – In-depth Discussion of US Resettlement Policy, and its Conformance to International Human Rights Law
U.S. Resettlement Program and its Procedure
Brief Background on the INS
In March 2003 the Immigration and Naturalization Service was disbanded and replaced by three interconnected agencies within the Department of Homeland Security (DHS): the Bureau of Citizenship and Immigration Services (USCIS), the Bureau of Customs and Border Protection (CBP), and the Bureau of Immigration and Customs Enforcement (ICE). USCIS took over services and adjudication functions previously managed by INS, and CBP and ICE took over enforcement functions, with CBP heading border enforcement, and ICE heading interior enforcement.
Obtaining Admission into the Refugee Resettlement Program
Prior to entering the U.S., a refugee child must face a myriad of legal obstacles while still reeling from recent and often quite traumatic separation from and/or complete loss of family. The first stop for a child seeking admission to into the U.S. Refugee Resettlement Program is with an Overseas Processing Entity (OPE), where the child will be identified, interviewed, and his electronic record initiated through the Worldwide Refugee Admissions Processing System (WRAPS). The OPE will establish the prima facie case for asylum, and determine which category the child belongs in: individual, group-based, or family-based. Each category has different requirements, different referrals, and different verification processes. The first, the individual file, is generally a referral from UNHCR, or possibly from an NGO or an Embassy, and comes with a lengthy file and a Refugee Status Determination already prepared from extensive interviews. They will have a P-1 status that indicates top priority and a ‘compelling’ reason to immediately relocate the applicant.
The second category is the group-based, P-2 status, and applicants come with a UNHCR referral indicating a special humanitarian interest (generally based on regional hostility that has warranted international humanitarian intervention). The third category is the family-based P-3 through P-5, used to identify applicants hoping to gain admission to join family already located in the United States. In these cases, an Affidavit of Relationship (AOR) is mandated, in part to reduce fraudulent claims and in part to assist in future efforts to reunite future members of the same family. USCIS manages a Refugee Access Verification Unit (RAVU) to run background checks, intersystem checks, and international identity checks to verify that the person applying for asylum is not using fraudulent means (such as claiming to be someone who has been recorded by a previous entrant as certainly deceased). The RAVU is a post-9/11 mechanism that serves an important function, but also significantly slows down the entire application and interviewing process, further delaying needy refugees from gaining admission to much-needed sanctuary.
There are three stages in the OPE process to establish each applicant’s category: first, the initial intake. This involves photographing the applicant, performing a generalized interview to gain a sense of the reason for the application, and gathering basic data needed to form a complete file. The second stage is the form-filling stage, where the interviewer collects as detailed a family genealogy as possible (this is often difficult in cultures that do not record important dates – such as birth or death dates). The third stage is the most labor-intensive, and is called the casework stage. Usually performed by a second interviewer, this stage provides the most detailed information found in an applicant’s file (very detailed information relating to the claim, the reason the applicant is seeking asylum, the history of discrimination and/or violence; every relevant point that will be used in the applicant’s later legal request for asylum can be found in the information collected at this stage). UNHCR mandates that each child that is processed at an OPE be interviewed under a BID – ‘best interest’ determination.
The last step between being processed by an OPE and being accepted by the U.S. Department of Health and Human Services (DHHS) is a background check by the State Department’s Consular Lookout and Support System (CLASS). (This is another post 9/11 security measure that further serves to slow down the already-cumbersome admissions process, and in my recommendations you will see that I suggest eliminating this step in all but certain circumstances). Once the CLASS check reveals that an applicant is safe for admissions, the refugee will begin his long journey through the American legal system.
Navigating the American Legal System
To navigate the U.S. Refugee Program, an unaccompanied refugee minor (URM) is placed with the U.S. Department of Health and Human Services (USDHHS), which oversees the Administration of Children & Families (ACF), which in turn directs the Office of Refugee Resettlement (ORR), where the most crucial work for these children is accomplished. The ORR will send the URM to one of its fourteen sites throughout the country: Boston, MA; Tacoma and Seattle, WA; Fargo, ND; Philadelphia, PA; Rochester and Syracuse, NY; Jackson, MS; Richmond, VA; Newark, NJ; Washington, D.C.; Lansing and Grand Rapids, MI; or Phoenix, AZ.  These ORR sites work closely with two non-governmental (NGO), gospel-based humanitarian agencies to facilitate the resettlement process: the Lutheran Immigration and Refugee Services (LIRS), and the U.S. Conference of Catholic Bishops (USCCB). Working with various state agencies, these two organizations work together to find appropriate foster case placement, even if that placement needs to take place outside the original state that accepted responsibility for the child.
Once LIRS or USCCB has found the proper home for the child, they are required to notify the State Refugee Coordinator to request that the child be reclassified from alien status to unaccompanied minor status. Once the ORR has received the request for reclassification, it must process the requests as expeditiously as possible, on a case-by-case basis. 
An unfortunate and significant component of the U.S. resettlement policy is the detention of unaccompanied refugee minors. Sometimes detained in sterile, prison-like environments, these children – who have already suffered enormous physical, emotional and psychological loss – are subjected to treatment that is punitive and demeaning. Every major human rights organization in the world addresses the issue of detention as action that should only be taken as the last possible resort: Nathalie Lummert, speaking at the U.S. Catholic Conference, hosted by BRYCS (Bridging Refugee Youth and Children’s Services) in 2000 said that “detention is an inappropriate measure;” Dennis McNamara, Director of the Division of International Protection, UNHCR, stated that detention should only be used as a “last resort”, and that the use of detention facilities only serves to further the harm these children have already suffered;  a report for the UNHCR in February, 2007 listed arbitrary detention as one of the many harms that URMs are vulnerable to as they attempt to work their way through the legal maze of the asylum country;  and a publication by the UNHCR on applicable guidelines for URMs stated that “Children seeking asylum should not be kept in detention. This is particularly important in the case of unaccompanied children.” The emphasis, when dealing with this very vulnerable population of children, should be on preserving their rights, dignity, and tenuous mental state. Detention in centers for juvenile criminals, or in other detention-like settings serves no purpose other than ease and convenience for the resettlement agency.
Textual support from the CRC makes it abundantly clear that the purpose of the Convention was to preserve not only the individual dignity and spirit of refugee children, but also their legal status as members of the international community. In its Preamble, citing to the Declaration on the Rights of the Child, the CRC states that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection.” The language is unmistakable: children are a special class of persons in need of heightened protection. The U.S. policy of using detention as an integral part of its resettlement program does not adhere to this mandate. Because the U.S. has never ratified the CRC, it is not violating any human rights laws; this is cold comfort, however, to the thousands of refugee children each year who make it to the shores of the U.S. seeking solace, and finding instead more another encroachment on their liberty. One of my recommendations will be immediate ratification of the CRC, and appropriate commensurate amendments to our current policies and procedures to guarantee compliance.
Once out of the hands of DHHS and into the custody of a family providing permanent residency (usually with foster families, or families looking to permanently adopt), these children begin the process of starting their lives anew. The resources LIRS and USCCB try to provide each of these children with include indirect financial assistance (generally in the form of housing, clothing, items of a personal nature), access to medical care (usually through state-sponsored programs), a case worker to monitor their entry in a new home, access to public education, and where necessary job skills training, mental health services, and legal assistance. The few children who do manage to navigate the exhaustive, confusing, and obstacle-laden system will often find placement with a suitable family. What this paper addresses is not the end result for the happy few who manage to find placement, but rather the process involved in that placement, and the added pain and stress suffered by these already-vulnerable children. It is my goal to reduce the bureaucracy, discrimination, and government-oriented policies that currently prevent the U.S. from meeting its annual Presidential Determination admissions ceiling.
Part III – Recommendations for Bringing U.S. Policy into Conformity with the “Best Interests of the Child”
Ratification of the Convention on the Rights of the Child
My first recommendation is the immediate ratification of the Convention on the Rights of the Child. This landmark piece of legislation does for children what the Nineteenth Amendment did for women – it reinstates their liberty and personal dignity, and preserves their legal rights. The U.S.’s staunch refusal to sign such an important piece of legislation has no basis in valid foreign or domestic policy, and serves only to prevent the U.S. from being held accountable for its actions within its own borders. The ‘best interest’ determination that is key to multiple UNHCR policies and programs should also be the lynchpin of U.S. policies and programs. If we used the UNHCR as a model for our own refugee resettlement program, we might find that our priorities naturally shift from a big-government, security-first approach to a humanitarian approach that emphasizes medical care, educational access and legal protection. One of the most profound statements in David A. Martin’s The United States Refugee Admissions Program: Reforms for a New Era of Refugee Resettlement was in his reflection on the degradation that results from long-term placement in refugee camps: These camps “betoken a lingering and profound waste of human potential…particularly for the children forced to grow up under such conditions.” Though he was speaking of children languishing in refugee camps, I believe a very simple analogy may be drawn between the forced harshness of a camp and the legal abyss these children fall into – for indeterminate periods of time – when they reach the United States. Both circumstances deny these children basic medical care, education, legal representation, and productive activity – in essence, they deny them life.
Textual support for changes in American policy may be found in Articles 19, 37, and 39 of the CRC, which provide for the level of protection and treatment that children should be afforded. Article 19 addresses policies that ratifying States must adhere to in their care of refugee children:
(1)States Parties shall take all appropriate legislative, administrative, social and educational measures 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. (2)Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
Article 37 mandates legal representation:
States Parties shall ensure that: (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
And Article 39 of the CRC addresses the well-being of the child:
States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.
As is evidenced from the unmistakable language of the CRC, U.S. policies are in flagrant violation of the basic tenets of the CRC; the enormous quantity and quality of work that would need to be performed to bring our policies in compliance with this legislation is daunting, but that cannot be our excuse. A failure to protect children can no longer simply be viewed as “American policy,” but must be seen for what it is: human rights violations on a massive scale against a vulnerable and defenseless population. The irony of these circumstances is that the U.S. is held out to be a global beacon for fairness, equality, and justice. We would not tolerate such inhuman treatment of children abroad – in fact, we provide humanitarian assistance to countries with children in these very same circumstances – yet our very own policy lacks deference for basic human rights.
Presidential Determinations: Ceilings or Targets?
Another policy change that needs immediate attention is that of the treatment of the annual Presidential Determination; it is currently treated as the absolute limit on annual immigration of refugees, but an alternative, and more humanitarian construction could be to use it as an annual target for refugee admissions. From 1980 to 2004, the total number of admissions allotted by the President totaled 2,646,700.The actual admissions only totaled 2,234,374, which indicates that the presiding President and Congress both found good reason to admit more than 2.5 million refugees, but DHS allowed less than 2.2 million. This presents lost admission to 412,326 refugees. This is absurd! How is it possible, when there is an average of nine million refugees worldwide at any given time, that the U.S. Department of Homeland Security can fail to find 412,326 ‘worthy’ applicants? How is it possible that DHS believes it knows better than its President and Congress? There are civil wars, environmental disasters, crumbling infrastructures, genocides, wars, and collapsing communities all over the world – all the time. Out of all these people, letting more than 400,000 admission slots go unused seems a gross abuse of discretion. If we were to change our entire perception of the Presidential Determination, and lay claim to it as a right of the refugees who seek our shores, then we could claim to be a humanitarian country.
In addition to using the Presidential Determination as a target rather than a ceiling, we should also advocate for a more humane number. In 1980 our target was 231,700 refugees. By 1982, that number was almost cut in half to 140,000, and it continued on a steady decline until it rested at 70,000 in 2002, where it held steady through 2004. 70,000 refugees out of an estimated 9 million seems almost obscene, given the general wealth of the U.S., especially in comparison to other host countries. Our policies should aim for a steady annual percentage of the overall number of refugees, and we should make sure we fill every single available admission slot.
Amending the ‘Big Five’ to Include Broader Categories of Refugees; Reducing Evidentiary Requirements
The 1951 Convention Relating to the Status of Refugees currently only allows admissions based on a “well-founded fear of persecution on the grounds of race, religion, national origin, membership of a particular social group, or political opinion.” These categories leave out two traditionally persecuted groups of people: women and children (my paper has not addressed harms specific to women, so I will only focus on children). Because children are often targeted specifically because they are children, and hence weak, defenseless and unrepresented, rather than because they belong to one of the ‘Big Five’ classifications, they are often denied asylum because the evidentiary requirements for showing persecution cannot be met. The gross unfairness of such a policy is facially evident, but easily resolved. Adding the category of exploited or neglected children to the Convention will allow us to get closer to meeting our annual target, and will eliminate many of the evidentiary problems associated with not being one of the ‘Big Five.’ For critics who fear ‘opening the floodgates,’ I would say simply – look to our annual admissions records, and tell me at what point in the last ten years we have ever opened the floodgates? Have we even met our annual target? In 2001, our annual admissions target was 80,000, but we only admitted 69,304, which represents lost admission slots of 10,696. Post 9/11, our annual target was 70,000, but in 2002 we only admitted 27,110 refugees! That means that more than 42,000 Presidentially-approved admissions seats were lost. The ‘floodgate’ argument, in light of these statistics, is meaningless.
A secondary issue to the ‘Big Five’ approach is the problem with evidentiary proof. U.S. policy gives the judge hearing the application for asylum complete discretion in determining if an applicant has met the required show of persecution on one of the ‘Big Five.’ There must be a nexus between the persecutor, the victim, and the reason for the persecution. (INA Sect. 208 is the U.S equivalent of the 1951 Convention, and provides the same ‘Big Five,’ and is our textual source of authority for asylum claims; it was repealed and replaced with the Refuge Act of 1980, which is the current source of legislative authority for immigration applications and admissions). Many valid claims for asylum have been denied because there was insufficient proof of persecution on one of the five allowed grounds. One of the more famous instances of a refugee applying for asylum, presenting extensive evidence of persecution based on one of the Five (in this case, political opinion), and being denied asylum for lack of evidence is Matter of A-G-. In this case, the petitioner presented ample evidence that upon his deportation back to El Salvador he would be forced to participate in the compulsory military, which he likened to a terrorist organization (his evidence included reports establishing human rights violations perpetrated by the military organization, and first-person accounts of multiple people who were murdered when they opposed the organization). The Board of Immigration Appeals ultimately dismissed his appeal on the grounds that compulsory military service did not comprise persecution based on political opinion. This case was not resolved in favor of the applicant until it was presented to the 4th Circuit as M.A. A 26851062 v. INS.
Another brief example of the stringent evidentiary requirement can be seen in the Matter of Acosta, where an applicant presented ample evidence that his life was in danger because of his refusal to join an anti-government guerrilla organization. He ultimately fled San Salvador after having been assaulted and having received several threatening letters, but the Board of Immigration Appeals did not find that he had demonstrated a well-founded fear of persecution based on his political opinion. With standards this rigid, it should not be surprising that we are unable to meet our annual Presidential Determinations.
David A. Martin suggests requiring less exacting proof, and allowing for contextual evidence (for example: if the U.S. has responded to the crisis in Ossetia after it has suffered invasion by Georgia, when Ossetian citizens present before an immigration judge requesting admission, the court should be able to take into consideration the well-known facts of the invasion, and request a lesser standard of proof). The common counter-argument to this is the fear of ‘opening the floodgates,’ but as I mentioned previously, it should be quite obvious that we are currently unable to meet the annual target as set forth by the President; the possibility that we could get ‘carried away’ and let inappropriate applicants into the U.S. is not reasonable or supported by our current admissions statistics.
Another suggestion for amending the five categories of persecution is to include people who have been hurt by “external aggression, occupation, foreign domination, and serious disturbance to public disorder.” Categories that may be established by well-known facts, published events, or even by confirmation of U.S. aid will reduce the need for such exacting proof and allow greater numbers of deserving applicants the opportunity to find asylum in the U.S. Again, because the U.S. has systematically fallen dramatically below the Presidential Determination, I do not believe that widening the channels of admission will create a ‘floodgate’ issue. By definition, the Presidential Determination allows only so many refugees admission annually; a more comprehensive definition will not likely increase applications – they are already coming in! – but rather guarantee that deserving people are finally allowed into the U.S.
Setting Aside an Annual Percentage of the Presidential Determination for Refugee Children
In addition to broadening categories of protection, I believe that the annual Presidential Determination could easily be split into two percentages – adults, and unaccompanied children (this means that children arriving in the U.S. with family would be counted as ‘adults’ only for purposes of implementing the intent of the amendment). Because almost forty-four percent of the refugees worldwide are children, it only makes sense to set a pre-determined portion of our annual admissions aside for this most vulnerable group – and to treat it as a target, a number to be reached every year. Statistical studies could be compiled to determine a more exact percentage of unaccompanied children, and that percentage could be our annual goal. It only makes sense to set our percentages commensurate with what is actually happening globally. If we see a dramatic decrease in unaccompanied refugee children, then it will make sense to adjust our annual target percentage according; the same would hold true in reverse.
A Human-rights Based Approach to Administering our Refugee Resettlement Program
Though there should be no doubt that children are entitled to heightened sensitivity and legal protection, because of their age, inexperience, and obvious handicap as minors, there is an unfortunate tendency within the U.S. resettlement infrastructure to treat children as suspect, rather than as warranting compassion and tolerance. The use of detention facilities – which no other asylum country uses – is but one aspect of our failure to acknowledge refugee children as a special class of persons. The lengthy delays in processing their applications, the lack of educational access during the transitional period from being processed as a potential admission to the actual date of admission, and the lack of mental health that this particular group of people most desperately need all leave me to believe that the U.S. policy on refugee children is more a labor of obligation than one of humanitarian assistance. If we truly intended to provide these children the resources and tolerant environment they need, we would implement a program that put the child’s interests over the country’s interest. Some suggestions would include a formal process with in-place safeguards to prevent these children from being ‘lost’ in the legal maze that is the admissions process, and from being detained for indeterminate periods of time without representation of any kind. Each step of the process would have its own specific documentation requirements to reinforce consistency and fairness; it would also provide a comprehensive record for the child as he prepares for his transition from refugee to legal alien. Another recommendation would be to use professionals with relevant, age-specific training to assist each child with is application. For example, a counselor with extensive experience with adolescents would not necessarily be the best choice to assisting a five-year old, and vice versa. Children’s needs vary drastically from year to year, and formal, specialized training in the child’s representative will provide greater assurance that the child’s needs are truly represented (it must also be noted that children, particularly those that have been subjected to great violence or loss, are very reluctant to trust others, and as a consequence, will often fail to speak for themselves even when necessary; it is this reluctance or inability to speak that makes a representative so very necessary to the success of this process). Finally, when the child is actually prepared for the transition into a home, the professional should be able to, at that point, provide a comprehensive report to enable the foster or adoptive family to best assist their new family member during his transitional period.
To summarize, this paper was meant to highlight U.S. policy as it pertains to refugee children seeking asylum, unassisted, without family or friends, in the United States. I recognize that security has always been and will always be a major concern when admitting refugees into our country, but I believe that a policy that emphasizes security over humanitarian aid where children are concerned is a policy that serves no one. Mr. McNamara’s eloquent statement before the London School of Economics in 1998 is the very essence of what I believe American refugee policy should be where children are concerned: “refugee children are first and foremost childre
 Id. at 11.
 Id. at 11. (An excerpt from an article in the Miami Herald by Jo Becker; original article unavailable).
 The United Nations High Commissioner for Refugees, Convention and Protocol Relating to the Status of Refugees 16 (1966) http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf. (Emphasis added).
 United Human Rights Council, Bosnian Genocide, http://www.unitedhumanrights.org/Genocide/bosnia_genocide.htm.
 Human Rights Watch, 2008 World Report (Events of 2007) 155 (2008), http://www.hrw.org/legacy/wr2k8/pdfs/wr2k8_web.pdf.
 Id. at 155-56.
 Id. at 156.
 Id. at 155.
 Id. at 219-21.
 Human Rights Watch, 2008 World Report (Events of 2007) 137 (2008) http://www.hrw.org/legacy/wr2k8/pdfs/wr2k8_web.pdf.
 Human Rights Watch, 2008 World Report (Events of 2007) 478-83 (2008) http://www.hrw.org/legacy/wr2k8/pdfs/wr2k8_web.pdf.
 The UNHCR, Asylum Levels and Trends in Industrialized Countries in the First Half of 2008 6 (2008) http:/www.unhcr.org/statistics/48f742792.pdf.
 Forced Abortion & Sterilization in China: A View from the Inside: Hearing on H.R. Before the Subcomm. on International Operations and Human Rights of the Comm. on International Relations, 105th Cong. (1998) (statement of Christopher H. Smith, Rep.).
 Human Rights Watch, 2008 World Report (Events of 2007) 266 (2008), http://www.hrw.org/legacy/wr2k8/pdfs/wr2k8_web.pdf.
 Id. at 261, 267.
 Id. at 266.
 Human Rights Watch, 2008 World Report (Events of 2007) (2008), http://www.hrw.org/legacy/wr2k8/pdfs/wr2k8_web.pdf.
 Dennis McNamara, Dir. Div. of Int’l Protection, UNHCR, Address at the London School of Economics (Nov. 14, 1998), in http://www.unhcr.org/admin/ADMIN/42a00a6c2.html; Executive Committee of the High Commissioner’s Programme, Children at Risk (2007); BRYCS, Guardian Fact Sheet for Staff Assisting Refugee Families (2003) in http://www.brycs.org/documents/GSHPFACT.pdf; Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum Feb. 20, 2003, http://www.unhcr.org/refworld/docid/3ae6b3360.html; These are only a few examples of the policies that espouse the “best interests of the child” principle.
 ; Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum Feb. 20, 2003, http://www.unhcr.org/refworld/docid/3ae6b3360.html
 Id. at 2, 5.
 Id. at 6.
 Id. at 2, 6
 Id. at 6-7.
 Id. at 11.
 Id. at 11.
 Id. at 11.
 Id. at 7.
 The two largest nongovernmental, voluntary organizations for refugee migration in the United States are the Lutheran Immigration and Refugee Services (LIRS), and the United States Conference of Catholic Bishops (USCCB).
 Id. (Emphasis added).
 The United Nations High Commissioner for Refugees, Convention and Protocol Relating to the Status of Refugees 16 (1966) http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf.
 Executive Committee of the High Commissioner’s Programme, Children at Risk (2007), citing Proposals for an Executive Committee Conclusion on Children at Risk, Jan 16, 2007, Conclusion Nos. 47(c); and 84.
 Id. at 3.
 Id., citing Conclusion No. 59(h).
 Id., citing Conclusion No. 59(e).
 David A. Martin, The United States Refugee Admissions Program: Reforms for a New Era of Refugee Resettlement 59 (2005).
 Id. at 70.
 David A. Martin, The United States Refugee Admissions Program: Reforms for a New Era of Refugee Resettlement 67 (2005).
 Id. at 25, 67.
 Id. at 26, 67.
 Id. at 26, 69.
 Id. at 70.
 David A. Martin, The United States Refugee Admissions Program: Reforms for a New Era of Refugee Resettlement 71 (2005).
 Id. at 70.
 Id. at 70.
 Id. at 70-71.
 David A. Martin, The United States Refugee Admissions Program: Reforms for a New Era of Refugee Resettlement 70-71 (2005).
 Id. at 71.
 Id. at 72.
 Letter; State Letter No. 02-07, by Nguyen Van Hanh (Director of the office of Refugee Resettlement) (publication date unknown) http://www.acf.hhs.gov/programs/orr/policy/sl02-07.htm; accessed Oct. 18, 2008, pg 1
 Nathalie Lummert, Children on the Move: The Plight of Immigrant and Refugee Children 4 (2000), http://http://www.brycs.org/documents/COTM.pdf; Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum Feb. 20, 2003, http://www.unhcr.org/refworld/docid/3ae6b3360.html.
 Executive Committee of the High Commissioner’s Programme, Children at Risk (2007).
 Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum Feb. 20, 2003, http://www.unhcr.org/refworld/docid/3ae6b3360.html.
 BRYCS, Susan Schmidt, Separated Refugee Children in the United States: Challenges and Opportunities (2004).
 David A. Martin, The United States Refugee Admissions Program: Reforms for a New Era of Refugee Resettlement 15 (2005). (Chapter 1 thoroughly addresses the use of the Presidential Determination – the annual number of refugees to be admitted in a given fiscal year, determined by the President with the aid of Congress – as a target rather than a ceiling.)
 Id. at 10-11.
 David A. Martin, The United States Refugee Admissions Program: Reforms for a New Era of Refugee Resettlement 25 (2005).
 Id. at 17, (Table I-1).
 The United Nations High Commissioner for Refugees, Convention and Protocol Relating to the Status of Refugees http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf.
 David A. Martin, The United States Refugee Admissions Program: Reforms for a New Era of Refugee Resettlement 17 (Table I-1) (2005).
 David A. Martin et al., Forced Migration: Law and Policy 107 (2007).
 8 U.S.C.A.§ 1158 (1952).
 8 U.S.C.A. § 1521 (1980).
 Matter of A-G-, 19 I&N Dec. 502 (BIA 1987).
 M.A. A26851062 v. INS, 858 F.2d 210 (4th Cir. 1988).
 Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).
 David A. Martin, The United States Refugee Admissions Program: Reforms for a New Era of Refugee Resettlement 6 (Table I-1) (2005).
 Id. at 7, citing the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, art. I, entered into force June 20, 1974, 1001 U.N.T.S. 45.