By: Christie Arnold

          International asylum law is centered on respecting and defending human rights while providing a safe space for citizens whose ability to live in their home countries was severely violated.  In the U.S. context, the legal relief of asylum grants persecuted people the right to live and work here, and be put on the path towards obtaining permanent legal resident status and citizenship.  However, the protection afforded to asylum seekers by international law today is exceedingly narrow.  The 1951 Refugee Convention Related to the Status of Refugees first laid out the definition of a “refugee,”[1] which the U.S. adopted into its 1980 Refugee Act.[2]  This definition limits legal protection to people for very limited grounds.[3]  Consequently, nations that follow the Convention’s definition have a shockingly low capacity to give refugee status.  Specifically, most of the unaccompanied children from Central America seeking safety in the U.S. will be unprotected.

A child below the age of 18 from another country who enters and remains in the United States without both lawful immigration status and a legal adult parent or guardian is designated as an ‘unaccompanied alien child’ (“UAC”).[4]  From roughly 2012 until the end of 2014, U.S. officials have encountered significantly more unaccompanied minors entering than ever before.[5]  These children primarily come from three gang-ridden countries of Central America; Honduras, Guatemala, and El Salvador.[6]  In 2009, around 19,400 UACs from those countries entered, while in 2014, about 52,000 children came.[7]  The summer of 2014 in particular saw an incredible increase in the amount of children entering the U.S..[8]

The majority of UACs in this massive influx are seeking safety from generalized gang violence.[9]  The prevalence of crimes such as extortion, extra-judicial killings, abductions, rapes, torture, forced conscription, and murder committed by gang members in that region has only increased in the past five years.[10]  These three nations have some of the highest murder rates in the world.[11]  Violent drug gangs dominate communities in the region and, as a result, many families feel that the only option to ensure their children’s futures is to send them North.

A large number of these children who been interviewed by U.S. border officials described terrible crimes that motivated their flight.  Stories of threats, beheadings, brutal sexual assaults, murder of citizens, and everyday extortion were common.[12]  Kids are recruited forcibly from school into gangs, and are often threatened and killed if they refuse.[13]  The gangs and the pervasive culture of violence they perpetuate have created what President Obama has termed a ‘humanitarian crisis’ in the region.[14]

For those reasons, the vast majority of recently-entered UACs seek asylum.  The Office of Refugee Resettlement (“ORR”) Division of Children’s Services operates under a legal mandate to provide for these children’s care and custody while they remain in the U.S.[15]  ORR guides the children through the process that begins once they cross the U.S.-Mexico border, step foot onto U.S. soil, and are intercepted by U.S. Customs and Border Patrol agents.[16]  If the UACs assert a “credible fear of persecution” were they to be deported home, their claims are evaluated while ORR transfers them either to the temporary care of adult sponsors consisting of relatives, family friends, or to appropriate state-licensed shelters.[17]  They then eventually enter immigration proceedings where the law guarantees them a hearing in immigration court.[18] However, most of their claims will likely fail because their experiences do not conform with the government’s definition of persecution.

“Persecution” is harm or suffering inflicted upon an individual to punish him for possessing a characteristic that a persecutor seeks to overcome.[19]  A persecutor can be either a state government or a person or group the government is unable or unwilling to control.[20]  Forms of persecution include physical violence, beatings, threats, sexual assault, psychological harm, and kidnapping.[21]  To count as persecution, the harm befalling an individual must occur because of at least one of five statutorily protected grounds – the individual’s race, nationality, religion, political opinion, or particular social group.[22]  So in order to obtain asylum, a migrant must show that a central reason for the harm he suffered or fears suffering is one of the grounds.[23]  For example, if a terrorist group threatened a child because of his/her faith, for instance, that would qualify as persecution.  Iraqi Yazhidis and Christians fleeing ISIS, then, will almost certainly gain asylum given their political situation.  However, the reality for children from Central America is much different from a legal perspective.

The violence facing UACs is arguably just as harmful and pervasive as that encountered by populations in ISIS-controlled territory.  Many of the crimes perpetuated against them are essentially the same, but the motivation behind the harm is different.  Honduras, Guatemala and El Salvador are in complete chaos, but not due to religious beliefs.  The criminals harassing the population are motivated by general greed and control.  Gang members compete with rival gangs to obtain territory for drug trafficking and they commonly intimidate, harass, and harm ordinary citizens in their path.  The sexual assault of a teenage girl may occur, for instance, because she refused a gang member’s proposal to become his “girlfriend,” or, sex slave.  The threats and extortion of a young boy may happen because he desired to keep attending school instead of joining the gang.  A child’s father may be shot and murdered because he wouldn’t succumb to a gang’s extortion demands.

Although awful, this generalized gang violence does not meet the criteria needed to show persecution.  If a gang member targeted a person because of his political opinion, that may be a different story.  If gangs killed people because they comprised a certain race or nationality, that could count.  But most UACs face severe harm that has absolutely nothing to do with their religious or political beliefs or their personal characteristics.  The groups who regularly torment the population target people indiscriminately simply as a means to obtain and maintain power.  Since the law does not recognize these situations as forms of persecution, it will be impossible for the majority of the UACs to get asylum in the United States.

Thousands of unaccompanied children have undergone tremendous hardship, facing situations equally as grave as those in war zones. Although the minors arguably deserve protection as ‘de facto’ refugees they will not receive it.  This gap in international and U.S. law has been noted by the United Nations High Commission on Refugees, which proposes that ‘safe haven’ be given to de facto refugees who don’t meet the official refugee definition.[24]  That would hypothetically allow the children a form of temporary protected status in the U.S.  It could also serve as a formal governmental recognition of the severe limitations of international refugee and asylum law in the modern context.

For now, if the children’s asylum claims fail and no other form of immigration relief applies, removal orders will lead to their deportations back to the violence that forced them to leave.  Some children will choose to again make the long journey back to the U.S.  Hopefully, the lucky ones who manage to obtain asylum will eventually apply for family reunification and help others join them.


[1] Convention relating to the Status of Refugees, 189 U.N.T.S. 137 (1951).

[2] Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102

[3] Convention relating to the Status of Refugees, 189 U.N.T.S. 137 (1951).

[4] See 6 U.S.C. § 279(g)(2).

[5] Tom Dart, “Undocumented Children in Texas,” The Guardian (July 9, 2014), http://www.theguardian.com/world/2014/jul/09/us-immigration-undocumented-children-texas.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Dart, supra note 5.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Dart, supra note 5.

[16] See 8 U.S.C. § 1232(b)(2).

[17] See 8 U.S.C. § 1232(a)(5)(D).

[18] Id.

[19] See Matter of Laipenieks, 18 I&N Dec. 433, 457 (BIA 1983).

[20] See Montoya-Ulloa v. INS, 79 F.3d 930, 931 (9th Cir. 1996).

[21] See Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir. 2004).

[22] See INA § 241(b)(3)(B).

[23] See Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985).

[24] Alice Jackson Smith, “Temporary Safe Haven for De Facto Refugees from War, Violence, and Disasters.” 28 Va. J. Int’l L. 509, 550 (1987-1988).


Edited by William Tipton

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