Academic journal article Refuge

Children Asylum Seekers Face Challenges in the United States

Academic journal article Refuge

Children Asylum Seekers Face Challenges in the United States

Article excerpt

Abstract

This article outlines U.S. policy toward children asylum seekers. It highlights the gaps in U.S. detention and asylum policy which jeopardize the protection of children. It also discusses advances made in recent years, such as issuance of the U.S. "Guidelines for Children's Asylum Claims" which establish evidentiary, procedural, and legal standards for asylum adjudicators dealing with children's claims. Finally, it suggests reforms that are necessary to bring the United States into compliance with international law and to ensure that children are provided the refuge they deserve.

Introduction

Carlos (a pseudonym) fled his home country of Honduras in search of refuge in the United States. Instead, he found jail. The United States Immigration and Naturalization Service ("INS" or the "Service") apprehended Carlos in south Texas, where he was first held in a children's detention center. The agency later transferred him to a juvenile jail in Liberty County, Texas, several hours away from the legal services program which was planning to represent Carlos after he expressed a fear of returning to Honduras. While he was locked up in the Liberty County jail, the INS instead persuaded Carlos to voluntarily depart the United States. Carlos was deported before an immigration judge had even considered his asylum claim.

Carlos is just one of thousands of unaccompanied children who arrive in the United States each year. In 2000 alone, the INS took nearly five thousand children into its custody, some as young as eighteen months old. Increasingly, among these numbers are children fleeing abuses such as forced military recruitment, female genital mutilation, forced marriages, child labour, and life as street children. Others may enter the United States because they have been abused, abandoned, or neglected by their parents or other caregivers, while some are seeking to reunify with family members who already have entered the United States. These children range in age from toddlers to teenagers, and an untold number are asylum-eligible. The INS does not track the types of relief from deportation sought by children in its custody, and therefore many children are not necessarily even aware that they may pursue refugee protection. (1)

U.S. policy toward children asylum seekers reflects a certain ambivalence. In recent years, the U.S. asylum system has progressed in terms of its recognition of the unique forms of persecution that children face around the world and the need to offer children a full opportunity to articulate their claims to asylum. On the other hand, the system falls short of providing the resources children need to assist them in their claims in the form of legal representation and the appointment of a guardian ad litem. Moreover, children asylum seekers are often detained for long periods of time, often in secure facilities, with little regard for their best interests.

Detention of Unaccompanied Alien Children

Unaccompanied alien children are those who arrive in the Unites States with no lawful immigration status and have no parent or legal guardian available to provide for their care and legal custody. Under United States immigration law, an alien child is defined as a foreign national under the age of eighteen, who either is the subject of a removal or exclusion proceeding under the Immigration and Nationality Act ("INA" or the "Act"), (2) the central source of American immigration law, or has an asylum application pending before the INS. Although the INA does not actually define the term "unaccompanied minor," the Act does define the term "child" as an unmarried and unemancipated person under the age of twenty-one, (3) although an alien child is treated as an adult for detention purposes upon attaining the age of eighteen.

Being unaccompanied by a parent or other legal guardian who is capable of providing for their care and custody, these children are subject to detention by the INS. …

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