Protection for the vulnerable: how unaccompanied minors from El Salvador, Guatemala, and Honduras can qualify for asylum in the United States.

• Author: Weiss, Melissa

Jorge, (1) an eleven-year-old boy, is sitting in a classroom in an impoverished El Salvadorian town. The teacher is talking about activities that will be done during the day when, all of a sudden, a group of young men appears at the door and begins dragging Jorge's classmates outside. The teacher tries to stop them, but they shoot her in the head. Before Jorge has a chance to run away, one of them grabs him and takes him outside. They tell him they are part of a gang and that he will be joining them. He tells them no, and they say he has no choice. Jorge tells them no again. While holding a gun to his head, the gang members point to a pile containing the corpses of some of his former classmates. They explain that Jorge will join his classmates if he refuses to join their gang. Jorge says nothing. They lead him away from the school, along with a couple of other young boys.

Along the road, a rival gang appears, and fighting immediately ensues. During the fighting, Jorge manages to escape. He runs home and tells his mother what happened. His mother knows the danger of these gangs because Jorge's father and older brother were killed a year earlier when they both refused to join a gang. His father and older brother received death threats from the gang, but they ignored them until the day the gang members murdered them. Jorge's mother makes him hide inside the home that night while she scavenges up a substantial amount of money. The next day, she sends Jorge off with a stranger who will take him to the United States to start a new, safer life. She promises that she will join him in the United States when she saves enough money to make the trip.

Jorge makes the journey to the United States through Mexico with the stranger. The stranger is very mean and often does not let him eat or sleep. Once Jorge makes it across the border, the stranger leaves him stranded in the desert. Jorge has no idea where he is or where he is supposed to go. He is also lacking food and water. He manages to find a home where a family feeds him. Unbeknownst to Jorge, they also call Border Patrol, which sends agents to the home. They take Jorge from the home to another location full of other children. There are not enough beds, bathrooms, or food in this new location to accomodate all of the children being held there. Consequently, Jorge spends his nights sleeping on a mat on the floor, waiting for someone to tell him whether he can stay in the United States or if he will be sent back to the dangerous life he was trying to escape in El Salvador.

Jorge's story is similar to that of thousands of children fleeing violence in their home countries of El Salvador, Guatemala, and Honduras. These children make long, often dangerous journeys from their home countries, either alone or with smugglers, in hopes of reuniting with family members who already live in the United States or living in safety in the United States. Recently, there has been a surge of these unaccompanied children arriving in the United States. (2) There has been pressure on the federal government to respond to the increasing numbers of unaccompanied children arriving and much discussion about what should be done with the children. (3) Some argue that these children should be sent back to their home countries, returning them to the violence and poverty that forced them to leave. (4) Others argue that they would qualify for asylum status and that the US government should allow them to stay and spend valuable resources educating and caring for them. (5)

This Note focuses on the latter argument--that these children could qualify for asylum status. Specifically, it focuses on whether unaccompanied minors who flee their home countries of El Salvador, Guatemala, and Honduras due to poverty and violence should be granted protection under the "particular social group" category. (6) Part I focuses on the particular social group category of the refugee definition. It considers the Board of Immigration Appeals ("BIA") definition of particular social group and looks at recent BIA decisions relating to gang violence, as well as domestic violence, as a way of further defining particular social group. Part II discusses the current situation of unaccompanied minor children arriving in the United States. It considers the factors fueling the increase in the number of these children arriving in the United States. Part III provides a proposal for how these children could be afforded protection as asylees by falling into the particular social group category and analyzes the proposed particular social group. I argue that children from these countries could fall under the particular social group category if they claim asylum under the proposed particular social group of "impoverished children under fourteen years of age who have been threatened with recruitment and attacked by gangs." (7) Although I argue these unaccompanied minors could receive asylum protection, Part IV considers alternative options for protecting the unaccompanied minors who have fled, or are likely to flee, their home countries. Specifically, it considers the in-country processing program recently announced by President Obama, as well as the possibility of broadening the definition of refugee without changing the particular social group definition. This second solution will look to international conventions that have been adopted in other parts of the world, such as Africa and Latin America.

Before further discussing the options for protecting these children, it is important to mention that, in order to be eligible for asylum in the United States, a person must be a refugee. (8) The term "refugee" is defined as:

[A]ny person who is outside any country of such person's nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. (9) The definition explicitly excludes individuals who "ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion," even if they suffered persecution as well. (10) This Note focuses specifically on the particular social group ground for asylum status.

1. HISTORY OF THE PARTICULAR SOCIAL GROUP CATEGORY IN THE UNITED STATES

   The particular social group category is the most vague and ambiguous of the asylum categories. (11) For an individual to be afforded protection as a member of a particular social group, he must "demonstrate] the existence of a cognizable particular social group, his membership in that particular social group, and a risk of persecution on account of his membership in the specified particular social group." (12) Some examples of social groups that have been recognized include: "Filipino[s] of mixed Filipino-Chinese ancestry"; (13) "young women of the Tchamba-Kunsuntu Tribe who have not had FGM [female genital mutilation], as practiced by that tribe, and who oppose the practice"; (14) membership in "the Marehan subclan" in Somalia"; (15) "former memberfs] of the national police"; (16) and "homosexuals in Cuba." (17) The particular social group category was first defined in Matter of Acosta. (18) The definition has been refined over time, and two recent cases, Matter of W-G-R- (19) and Matter of M-E-V-G-, (20) have helped to clarify the definition. (21)

   1. Matter of Acosta

      Beginning with Matter of Acosta f courts have been trying to provide a clear definition of the particular social group category. In that case, the respondent claimed asylum under the particular social group category and argued that his particular social group was a cooperative organization of taxi drivers and persons engaged in the transportation industry of El Salvador. (23) The court found the particular social group was not based on an immutable characteristic and, therefore, rejected the respondent's claim. (24) In explaining the decision, the BIA stated that to be afforded protection, an individual must be part of a group that shares a "common, immutable characteristic." (25) A common, immutable characteristic is defined as "a characteristic that either is beyond the power of [the] individual [members of the group] to change or is so fundamental to [their individual identities] or conscience[s] that it ought not be required to be changed." (26) In terms of the persecution, the BIA stated that it is not necessary that the government is the persecutor, but if the persecution is not by the government, it must be "by persons or an organization that the government was unable or unwilling to control." (27) While Matter of Acosta set out the importance of having a common, immutable characteristic, the BIA still sought greater definition of and limitations on the particular social group category.

   2. Matter of E-A-G- and Matter of S-E-G Following Matter of Acosta's common, immutable characteristic requirement for the particular social group category, the gang-related cases of Matter of E-A-G- (28) and Matter of S-E-G- (29) set out the requirements of "particularity" and "social visibility." (30) In Matter of E-A-G-, the Immigration Judge found the respondent was being persecuted by gang members due to his "youth and affiliation or perceived affiliation with gangs" and therefore should be granted asylum. (31) In Matter of S-E-G-, the respondents sought asylum by claiming they were "Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership in the gang based on their own personal, moral, and religious opposition to the gang's values and activities." (32) Respondents were denied protection in both of these cases because both groups lacked "particularity" and "social...