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  • Article: Asylum Officer Training Materials On “Unaccompanied Alien Children” Released By The USCIS In Response To a Freedom Of Information Lawsuit By David L. Cleveland

    Asylum Officer Training Materials On “Unaccompanied Alien Children” Released By The USCIS In Response To a Freedom Of Information Lawsuit

    by


    US-CIS recently released asylum officer training materials and power points dealing with Unaccompanied Alien Children [UACs]. 60 pages, dated “March 2017” and also “4/20/17” are available at the “Gang-Based Asylum” page of the Louise Trauma Center: www.louisetrauma.weebly.com

    The materials were released in settlement of a Freedom of Information Act lawsuit filed by Catholic Charities of Washington DC. They are also published in the Electronic Reading Room on the US-CIS website.

    Some excerpts: “UACs are not subject to the one-year deadline.” See Materials at page 166.

    “The AO determines if the applicant was a UAC on the date of the initial filing of the asylum application.” Page 180

    “USCIS accepts the previous CBP or ICE determination of an asylum applicant’s UAC status and takes jurisdiction over the asylum case.” Page 188

    Page 197 gives some interviewing tips: “Determine the relationships to the applicant of those present. Does the relationship seem bona fide?”

    Page 201-202: a child who has been raped ‘likely will dread talking about it… Build rapport first…. without touching on harm…when you are going to ask about harm, try to state something that provides an indicator about the fact that you will be discussing the harm. For instance, ‘I’m now going to talk about the hard part.’…. when you finish speaking about the harm, let the minor know. Make your best effort to limit the time spent focused on harm…”

    Page 206: “After discussing the harm and persecutor, ask at least a few other questions so that the applicant can leave the office feeling calm and not upset because he or she recently disclosed the harm experienced.”

    Comments of the author

    Absent from the materials is any citation to authorities for the proposition that “harm that does not rise to the level of persecution for an adult nevertheless may rise to that level for a child.”

    Merely testifying in court can cause harm to some children. See In re M.L., R.Y., 28 A.2d 520, 529 (D.C. App. 2011) (Court acted within its discretion in precluding father from calling child as a witness in a neglect proceeding, because experts opined that it would cause “substantial harm” to the child.)

    The U.S. Supreme Court has recognized that “children [are] constitutionally different than adults.” Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012). “Developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.” Graham v. Florida, 560 U.S. 48, 68 (2010). “Youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and psychological damage. “ Roper v. Simmons, 543 U.S. 551, 569 (2005)

    Many cases have noted the tender sensibilities of a child:

    In Matter of Mendoza-Osorio, 26 I&N Dec. 703, 710-11 (BIA 2016), respondent stabbed his wife in the presence of their child, in the State of New York. Construing “endangering the welfare of child” under NY penal law, § 260.10, and holding it was a “crime of child abuse” under INA § 237(a)(2)(E), the BIA noted:

    “Witnessing such acts of domestic violence is likely to cause serious psychological and developmental damage to children, even if they are not themselves subjected to physical abuse.”

    In Rusak v. Holder, 734 F.3d 894, 897 (9th Cir. 2013), the court stated:

    “Indeed, additional evidence is not necessary to establish that an eleven or twelve-year-old girl would be traumatized when her father is beaten and killed and her mother arrested and raped by the police. No other conclusion seems possible….”

    The case Ordonez-Quino v. Holder ,760 F.3d 80, 91 (1st Cir. 2014) involved harm
    suffered by a six-year-old child. Reversing the BIA, the Court noted that where “the events that form the basis of a past persecution claim were perceived when the petitioner was a child, the fact-finder must “look at the events from [the child's] perspective, [and] measure the degree of [his] injuries by their impact on [a child] of [his] age [].” {citation omitted]

    The First Circuit further noted that what a child “fears or has suffered ... may be relatively less than that of an adult and still qualify as persecution.’” Liu v. Ashcroft, 380 F.3d 307, 314 (1st Cir. 2004)(quoting Jeff Weiss, U.S. Dep't of Justice, Guidelines for Children's Asylum Claims, 1998 WL 34032561, at *14 (Dec. 10, 1998)).”

    Other cases are in accord:

    Mendoza-Pablo v. Holder, 667 F.3d 1308, 1313 (9th Cir. 2012) (It is “clear from our case law that an infant can be the victim of persecution, even though he has no present recollection of the events that constituted his persecution.” The court granted relief, even though the applicant had no expert evidence to support his claims. The court noted that the applicant was born prematurely, and that he “suffered intensely during his first three months of life…it would fly in the face of common experience not to recognize that these deprivations would have some deleterious and long-lasting effects.” Id. at 1314-15).

    Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045-46 (9th Cir. 2007):

    Two brothers, [aged nine and seven, when they were forced to leave
    their village in Guatemala], testified inconsistently in Immigration Court, and asylum was denied. Nonetheless, the case was remanded.

    The Immigration Judge must consider the events “from the perspective of a small child.” Id. at 1045-46. A child’s “reaction to injuries to his family is different from an adult’s. ...the trauma is apt to be lasting.”

    The Immigration Judge must “measure the degree of their injuries by their impact on children of their ages.” Id.

    Still more cases in accord:

    Liu v. Ashcroft, 380 F.3d 307, 314 (7th Cir. 2004) (“Age can be a critical factor, and may bear heavily on whether an applicant was persecuted. The Guidelines for Children’s Asylum Claims, published in 1998, advises that ‘harm a child fears or has suffered... may be relatively less than that of an adult and still qualify as persecution.’ “ )

    Abay v. Ashcroft, 368 F.3d 634, 640 (9th Cir. 2004) (“[W]e note that [the INS guidelines for children’s asylum claims] advises adjudicators to assess an asylum claim keeping in mind that very young children may be incapable of expressing fear with the same level of detail as an adult, …Further, the Guidelines suggest that “children’s testimony should be given liberal ‘benefit of the doubt’ with respect to evaluating a child’s alleged fear of persecution.’” )

    Camara v. Att’y Gen., 580 F.3d 196, 204 (3d Cir. 2009) (A daughter watched as a group of men entered her home, and seized her father and took him away. It would be “reasonable to conclude that watching her father’s abduction caused [daughter] actual suffering and harm….”


    About The Author

    David L. Cleveland. David L. Cleveland, a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 46 countries.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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