Are unaccompanied alien children really getting a fair trial? An overview of asylum law and children.

• Author: Gordon, Christine M.

INTRODUCTION

Sudha is an 11-year old girl from India. (1) Her parents abused her, placed her in a home for unwanted children, and then gave her to a male stranger who accompanied her to the United States. (2) During immigration proceedings, her attorney argued that Sudha was a victim of child trafficking; her parents had sold her for child labor. (3) Each year approximately 7,000 unaccompanied alien children, like Sudha, are detained by United States immigration officials. (4)

Alien children are classified as "unaccompanied children" when they arrive or are found in the United States alone and are under the age of 18. (5) The average age of unaccompanied children held in immigration detention facilities is 15 years old, with some as young as 18 months old. (6) A majority of the unaccompanied children in detention come from Latin America and are caught trying to cross the United States/Mexico border illegally. (7) Many of these children are victims of poverty, abusive child labor practices, human trafficking, rape, forced prostitution, or armed conflict in their home countries and travel long distances to reach the United States in the hope that they can fend a better life for themselves. (8) In other instances, children are unaccompanied because they have been separated from their families during travel or have been abandoned by their parents. (9) Upon arriving in the United States, parents are sometimes afraid of coming forward to "claim" their children, because they fear being deported. (10) These unclaimed children are left to face United States immigration officials alone. (11)

Currently in the United States, child asylum applicants face the same immigration procedures as adult asylum applicants. (12) United States immigration law does not afford child asylum seekers special treatment in determining their claims, does not appoint legal representation, and does not provide appropriate care for these children as they await determination of their claims. (13) Age, level of education, and language skills affect not only a child's ability to communicate with immigration officials, but also his or her understanding of the United States' immigration process. (14) International law has taken into account the special status of child asylum seekers. For example, the Office of the High Commissioner for Refugees has promulgated guidelines for dealing with unaccompanied alien children which state that the "best interests of the child" is the standard under which child asylum claims should be determined, has provided procedures for appointing guardians and counsel, and has asserted that the detention of such children should be prohibited. (15) Despite such international guidance, the United States had not yet implemented legislation which takes these concerns into account. Without proper standards and safeguards, unaccompanied alien children in the United States face being deported to a country where their parents may no longer reside or do not want them and where their human rights will be violated.

This article focuses on issues related to the custody and detention of unaccompanied alien children seeking asylum and is broken into four sections: international refugee law, United States immigration law and the asylum process, current conditions of unaccompanied alien children, and developments in the United States law regarding unaccompanied alien children.

1. INTERNATIONAL REFUGEE LAW

   1. Background--Role of the United Nations

      Because United States law is influenced by international law, it is important to first review international refugee law and how it relates to children. This section will describe the role of the United Nations, the legal effects of international law, and the specific international laws that pertain to unaccompanied alien children seeking asylum.

      On October 24, 1945, 50 countries, including the United States, created the United Nations through ratification of its Charter. (16) As set forth in the Charter, the purpose of the United Nations is to "maintain international peace and security; to develop friendly relations among nations; to cooperate in solving international economic, social, cultural and humanitarian problems and in promoting respect for human rights and fundamental freedoms; and to be a centre for harmonizing the actions of nations in attaining these ends" (17) (emphasis added).

      In promoting respect for human rights and fundamental freedoms, the United Nations has worked toward creating a comprehensive body of human rights law. (18) The United Nations Charter and the Universal Declaration of Human Rights, adopted by the General Assembly in 1948, are the foundations of this body of law. (19) General Assembly decisions have gradually established United Nations human rights laws as universal, indivisible and interrelated with the development and democracy of all nations. (20) Today human rights law encompasses specific standards for "women, children, disabled persons, minorities, migrant workers and other vulnerable groups." (21)

   2. Duties of Member States--Customary International Law

      The United Nations, according to its charter, is charged with the codification and development of international law. (22) The United Nations has developed a framework for promoting international peace, security, and economic and social development through over 500 conventions, treaties and standards. (23) The General Assembly is the main deliberative organ of the United Nations, which votes on those conventions, treaties, and standards. (24) Each member state to the United Nations has a representative, with one vote in the General Assembly. (25)

      "Any form of intentional agreement that formally creates legal obligations for the parties thereto is considered a treaty." (26) Treaties are legally bindings Several different terms are used to refer to treaties: conventions, covenants, protocols, charters, and statutes. (28) However, "convention" is the most commonly used term for treaties in the human rights arena. (29) The importance of identifying a treaty is that some forms of international law are not legally binding. (30) For example, declarations only represent a moral commitment and therefore are not legally binding. (31)

      Though member states do not have to adopt all of the necessary legislation foreseen by a convention prior to its ratifcation, member states are expected to be in compliance with a convention within a reasonable time after ratification. (32) If a member state has not ratified or acceded to a convention, the convention is not formally binding upon that country. (33) However, the provisions of all conventions have an effect on all countries as they are part of international customary law and represent an international consensus on a certain topic. (34)

      If a member state signs a convention after it has been adopted by the General Assembly, this is treated as a "preliminary or general endorsement of the convention" and is not legally binding. (35) The signature is treated as "an indication that the country intends to undertake a careful examination of the treaty in good faith" prior to its ratification of the convention. (36) Though not legally binding, the signature does bind the member state "to refrain from acts that would defeat the objectives of the convention, or to take measures to undermine it." (37)

   3. International Law on the Rights of Unaccompanied Children

      1. 1948 Universal Declaration of Human Rights

         In 1948, the Universal Declaration of Human Rights set the stage for creating international standards of human rights and asylum law. (38) The Preamble of the declaration states that a world where "human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people" (39) (emphasis added). The Preamble further states that the member states pledge to achieve "the promotion of universal respect for and observance of human rights and fundamental freedoms." (40) According to Article 2 of the declaration, "everyone is entitled to all the rights and freedoms set forth in [the] Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." (41)

         Several articles contained in the Universal Declaration of Human Rights pertain to asylum law. For example, Article 14 guarantees "everyone the right to seek and to enjoy in other countries asylum from persecution." (42) Article 3 establishes the right to life, liberty, and security of person. (43) Article 5 prohibits any person from be subjected to torture or cruel, inhuman, or degrading treatment or punishment. (44) Articles 18 and 19 guarantee the right to freedom of thought (conscience and religious) and the freedom of opinion and expression. (45)

         Of most importance to unaccompanied children, Article 25 proposes the concept that "motherhood and childhood are entitled to special care and assistance." (46) The Universal Declaration of Human Rights demonstrates to the international community that as early as 1948, children were deemed to deserve special treatment. Furthermore, this international document that proposes special treatment for children, guarantees that all human beings have the right to seek asylum from persecution. As one of the founding members of the United Nations, the United States is morally bound to uphold the ideals of this declaration and protect the human rights of all individuals within its boundaries. This should include affording child asylum seekers special treatment.

      2. 1951 Convention Relating to the Status of Refugees

         The 1951 Convention Relating to the Status of Refugees affirms the Universal Declaration of Human Rights' principle "that human beings shall enjoy fundamental rights and freedoms without discrimination." (47) The 1951 convention went further to "assure refugees the widest possible exercise of these...