Emerging Issues in Refugee Protection: The Representation of Child Asylum Seekers

Emerging Issues in Refugee Protection: The Representation of Child Asylum Seekers

Ms. Nancy Kelly, Mr. John Willshire
Spring 2018 seminar
M 5:00pm - 7:00pm
2 classroom credits

Prerequisites: Prior exposure to asylum or immigration law is helpful but not required.

Exam Type: No Exam

According to the United Nations High Commissioner for Refugees (UNHCR), children, including those who are unaccompanied by an adult, comprise 51% of the total global refugee population. In recent years, the U.S. government has recorded a dramatic rise in apprehensions of children fleeing from the Northern Triangle (Guatemala, Honduras, and El Salvador) to the United States: 46,893 in FY 2016, compared with 3,933 in FY 2011. Most recent reports show a 17% increase in apprehensions of this population in the first five months of 2017 over the comparable period in 2016. A central reason for this flight is the rise of powerful “maras” or gangs, which focus much of their violence on young people whom they seek to recruit into their ranks.

Like all refugees, children’s claims to legal protection are primarily governed by the 1951 UN Refugee Convention and the 1967 Protocol Relating to the Status of Refugees to which the United States is a party, as well as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Right. The Convention on the Rights of the Child is particularly salient, interpreted as creating a ‘child’s rights framework’ in approaching these claims.

Children flee violence and persecution for reasons similar to adults, but also for other reasons that are unique to their status and experiences as children. Children’s claims to refugee protection must be evaluated in light of their age and special circumstances. UNHCR and U.S. asylum guidelines recognize that the key term “persecution” in the definition of refugee may be interpreted differently in the case of children, with heightened consideration of trauma, emotional harm and the vicarious experience of harm to family members. Children have unique emotional vulnerabilities as well as cognitive and developmental differences from adults that must be considered in evaluating their testimony. Such testimony is the key evidence presented in any asylum claim.

This seminar will focus on the growing body of domestic and international law governing the rights of children to special consideration in the refugee determination process. It will focus especially on the innovative ways in which children’s claims have been structured to meet the Refugee Convention’s criteria. It will draw from cases decided by U.S. administrative bodies and courts, and will also reference the jurisprudence of other states parties to the Refugee Convention and international tribunals. The course will draw upon case work of the Harvard Immigration and Refugee Clinical Program (HIRC) , including key U.S. precedents established by the Clinic. Special attention will be paid to HIRC’s experiences in successfully preparing and presenting child asylum claims in administrative proceedings – including through videos and in-person interviews of children and caretakers, case narratives and affidavits.

The seminar will examine the historical background to the current conflict in Central America. It will also explore issues of credibility and corroboration particular to child asylum claims, including the use of documentation and expert testimony regarding conditions in the country of origin. The seminar will consider comparative perspectives, including other conflicts in which children have been especially targeted for violence and persecution.

The final grade for the course will be based primarily on a final research paper.

Subject Areas: Family, Gender & Children's Law, Constitutional Law & Civil Rights, International, Comparative & Foreign Law, Human Rights, Regulatory Law