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 2020 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.
The final grade will be based primarily on an in-class presentation and a final research paper.

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. Since 2009, the United States has recorded a dramatic increase in the number of child asylum seekers from the countries of El Salvador, Guatemala, and Honduras: 50,036 children were apprehended by Border Patrol in FY2018, compared with 3,304 in FY2009. This “surge” of children arriving in the United States is the result of complex issues, including race, gender, and the rise of powerful “maras,” or gangs, which focus much of their violence on young people, whom they seek to recruit into their ranks. The U.S. government’s response to the arrival of these children has been to institute a series of measures to undermine their access to protection.

Like all refugees, children’s claims to legal protection are first and foremost 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. The interpretation of the U.S’s procedural and substantive obligations under UN Refugee Convention and 1997 Protocol are guided by international instruments such as the International Covenant on Civil and Political Rights, the International Convenant on Economic, Social and Cultural Rights, and the UN Convention of the Rights of the Child. 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. As a result, children’s claims to refugee protection must be evaluated in light of their age and special circumstances. For example, the UNHCR and the U.S. asylum program recognize that the key term “persecution” in the definition of refugee requires differential interpretation in cases of children compared to those of adults. The Children’s Asylum Guidelines, issued by the U.S. government, specifically state that “the harm a child fears or has suffered… may be relatively less than that of an adult” and still qualify as persecution. 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 procedural protections, substantive rights, and related rights for children in asylum hearings, including drawing from comparative law cases and international sources. Course examples will include discussion of issues presented litigating child asylum claims in federal court, including the First Circuit cases, Meijilla-Romero v. Holder, and Ordonez Quino v. Holder, both of which were litigated by the Clinic. The course will also draw on the experiences of our clinical program in successfully preparing and presenting child asylum claims in administrative proceedings. We will also rely on international instruments, such as the UN Convention on the Rights of the Child, to interpret the U.S.’s obligations under international law and to define a child’s rights framework approach to these claims. The seminar will focus on the historical background to the current conflict in Central America to discuss questions related to credibility and corroboration in child asylum claims, including the use of country condition evidence and expert witnesses to support the testimony presented. The seminar will also consider comparative perspectives, studying other conflicts in which children have become particular targets. Students enrolled in the seminar will analyze treaties, regulations, and secondary sources, as well as the experiences of child migrants through their narratives and case affidavits. The seminar will also address current U.S. policies and practices directed at immigrant children.

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