A chance for redemption: revising the "persecutor bar" and "material support bar" in the case of child soldiers.

• Author: White, Kathryn

ABSTRACT

Armed groups in conflicts around the world frequently exploit child soldiers. Despite the unique experience of child soldiers, who are frequently recruited by means of force and deceit, immigration law as it is currently applied may bar former child soldiers from receiving asylum in the United States. In particular, the prevailing agency interpretation of the "persecutor bar" and the "material support bar" equates child soldiers with adults who have committed serious atrocities. This Note argues that the application of these asylum bars to former child soldiers runs against social values and standards of moral culpability in the United States. Child soldiers are perceived as victims in popular culture and international law rather than perpetrators. Drawing upon U.S. criminal law, this Note reasons that the common law principles of infancy and duress favor a reinterpretation of the immigration laws as they apply to child soldiers.

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. Bars to Asylum 1. The Persecutor Bar a. Fedorenko and its Progeny b. Opening the Door: Negusie v. Holder c. Application of the Persecutor Bar to Child Soldiers 2. The Material Support Bar a. The Negligence Standard b. Defining "Material Support" c. Defining "Terrorist Organization" d. Limited Defenses to the Material Support Bar e. Application of the Material Support Bar to Child Soldiers B. Child Soldiers: Causes, Recruitment, and Experience III. ANALYSIS A. Defenses 1. Infancy: The Need for Special Treatment of Children 2. Heightened Duress Concerns for Child Soldiers B. Practical Considerations: Asylum as the Best Solution IV. SOLUTION A. Leave it to the BIA: A New Agency Interpretation of the Persecutor Bar B. Special Rules: The Legislative Option V. CONCLUSION I. INTRODUCTION

Armed groups currently exploit approximately 300,000 child soldiers in more than thirty conflicts worldwide. (1) These groups recruit children to serve as soldiers through the use of force or manipulation, often abducting them from the streets, their schools, or even directly from their homes. (2) Once recruited, children serve both as servants and combatants. (3) Often, armed groups give children drugs and alcohol as a means to manipulate them into committing atrocities. (4) Moreover, child soldiers are themselves victimized by their leaders who beat, rape, and kill their recruits. (5) The experience leaves former child soldiers physically and psychologically damaged. (6)

Although there are a large number of former child soldiers in the world, a relatively small number are either candidates for resettlement in the United States or have escaped to the United States and have attempted to petition for asylum. (7) U.S. immigration law, as it is currently interpreted and applied by agencies and courts, inconsistently addresses the problems of child soldiers. In an attempt to take a moral stand against the practice of recruiting child soldiers, those individuals who use and recruit child soldiers are barred from receiving asylum. (8) However, the mandatory bars to asylum may also exclude former child soldiers from attaining legal status in the United States. (9)

Two statutory bars to asylum--the "persecutor bar" and the "material support bar"--stand between former child soldiers and the opportunity to receive asylum in the United States. (10) First, the persecutor bar excludes aliens who have committed certain acts of persecution from the definition of a refugee. (11) The broad definition of persecution, as both the Board of Immigration Appeals (BIA) and federal courts have historically interpreted it, encompasses the types of acts that child soldiers are often forced to perform. (12) Second, the material support bar excludes applicants for engaging in terrorist activities. (13) As applied, the material support bar has an expansive definition of terrorist activity that includes acts child soldiers are frequently forced to commit and includes no explicit exception for duress that could exclude child soldiers from its sweeping definition. (14) Because many of the groups that recruit and use child soldiers are either defined as terrorist groups or engage in activities deemed to be terroristic in nature, child soldiers may be excluded under this bar. (15) These asylum bars are in tension with the broader view of child soldiers as victims rather than persecutors. (16) Moreover, this particular area of law does not take into consideration the general approach of U.S. law towards children, which allows both infancy and duress as defenses. (17)

This Note advocates changing the approach of the Immigration and Nationality Act (INA) towards child soldiers. The law should take into account the special circumstances of child soldiers, namely their youth and the heightened form of duress that led to their involvement in conflict. Part II of this Note examines the statutory background of the persecutor bar and the material support bar, as well as the current administrative and judicial interpretations of the bars and the impact of these bars upon child soldiers. Part III analyzes the current framework's theoretical shortfalls by drawing upon principles of U.S. criminal law, as well as its practical shortfalls in terms of the health and safety of the child soldiers and international security. Part IV advocates for a revised approach, either through agency interpretation or legislation, to the asylum bars in order to facilitate the admission of former child soldiers into the United States.

2. BACKGROUND

   1. Bars to Asylum

      Under the INA, in order for an alien to be eligible for asylum, the alien must meet the definition of a refugee under [section] 101(a)(42). (18) The INA defines a refugee as a person who is "unable or unwilling to return to ... [a] 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." (19) However, not all aliens who meet this threshold definition are eligible for asylum. (20) This Part addresses the two statutory bars to asylum most often applied to child soldiers--the persecutor bar and the material support bar.

      1. The Persecutor Bar

         The definition of "refugee" explicitly excludes "any person 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." (21) This exclusion, commonly referred to as the "persecutor bar," gives the Secretary of Homeland Security authority to deny certain forms of relief, such as asylum and withholding of removal, to any alien who has engaged in the enumerated conduct. (22)

         The language of the persecutor bar has its origins in the Displaced Persons Act of 1948 (DPA). (23) The DPA was enacted in an effort to facilitate European immigration after World War II. (24) In defining the scope of those eligible for relief, the DPA restricted its benefits to those aliens who met the definition of a displaced person under the International Refugee Organization's Constitution (IRO Constitution). (25) In turn, the IRO Constitution explicitly excluded individuals who "voluntarily assisted the enemy forces since the outbreak of the [S]econd [W]orld [W]ar in their operations against the United Nations." (26) A 1950 amendment to the DPA moved the exclusion under the IRO Constitution into the text of the DPA itself and further refined its language to exclude persons who "advocated or assisted in the persecution of any person because of race, religion, or national origin." (27) The Holtzman Amendment of 1978 expanded the application of the persecutor exclusion beyond the visa program under the DPA to all individuals seeking admission to the United States who engaged in Nazi acts. (28) However, it was not until 1980 that the United States enacted comprehensive legislation to deal with refugees, which included a broad bar to asylum for any immigrant who engaged in persecution. (29)

         The legislative history of the persecutor bar is significant because the term "persecution" is not defined in the INA. (30) The ambiguity of the term stemmed in part from Congress's (mistaken) belief at the time the Refugee Act of 1980 was adopted that the term persecution had already been defined. (31) As a result, cases interpreting persecution under the DPA, most significantly Fedorenko v. United States, have historically exerted substantial influence over the interpretation of the term under the INA by immigration judges, the Board of Immigration Appeals, and federal courts. (32)

         1. Fedorenko and its Progeny

            Fedorenko v. United States addressed the immigration status of Feodor Fedorenko, who initially served in the Russian Army but was conscripted to serve in several concentration camps during World War II after being captured by the Germans in 1941. (33) Fedorenko claimed that he served as a guard against his will and was not personally involved in any of the atrocities committed at the concentration camps. (34) After the war, Fedorenko applied for and received a visa under the DPA by claiming to have spent the war years first as a farmer and then as a factory worker. (35)

            The Supreme Court held that because Fedorenko misrepresented his activities during the war on his visa application, he became ineligible for a visa upon entry and as a result the Court revoked his citizenship. (36) The Court analyzed the language in [section] 2(a) of the IRO Constitution (as incorporated by the DPA) in order to determine that Fedorenko's misrepresentation did in fact render him ineligible for a visa. (37) In reaching this conclusion, the Court explained that it would not imply a voluntariness requirement based on the plain language of the statute. (38) The Court found support for this interpretation in comparing the language of [section] 2(a) to the language in [section] 2(b) of the IRO Constitution. (39)...