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  • Article: Asylum Officer Training Materials on "Children's Claims" Released by The USCIS in Response to a Freedom of Information Lawsuit By David L. Cleveland

    Asylum Officer Training Materials on "Children's Claims" Released by The USCIS in Response to a Freedom of Information Lawsuit

    by


    US-CIS recently released asylum officer training materials dealing with children’s claims. An 81-page Training Module, entitled “CHILDREN’S CLAIMS,” dated November 30, 2015, is available on the “Asylum Officer Materials” page of the Louise Trauma Center:

    www.louisetrauma.weebly.com . It is also on the AILA website as Doc. 1707 0732.

    The Training Module was released in settlement of a Freedom of Information Act lawsuit filed by Catholic Charities of Washington DC.

    A book written by Stuart L. Lustig, M.D. in 2003 is cited at pages 5 and 24 of the module. [Dr. Lustig wrote a declaration for the CGRS in 2017, related to PTSD in adults seeking asylum].

    “child” versus “unaccompanied alien child”

    For most purposes, including asylum, a “child” is “an unmarried person under twenty-one years of age.” INA section 101(b)(1). However, an “unaccompanied alien child” describes certain persons who have “not attained 18 years of age.” 6 U.S.C. section 279(g)(2). Pages 18-19 of the module. The one-year filing deadline does not apply to UACs. INA section 208(a)(2)(E).

    But, the one-year deadline does apply for “accompanied minor principal applicants.” Page 77.

    Page 24 of the module states” Children who witness their parents or other caretakers harmed or killed are themselves deeply harmed.” Page 25 states that some children may think “all governments are corrupt,” including the United States. Some children feel “guilty” for having fled, especially when family members are left behind; and some think there will be no confidentiality.

    How to interview a child

    Having a trusted adult present helps; but, it is also good to ask at the end of the interview if there is anything to add in private. Page 27. Girls may feel more comfortable discussing their experiences with female officers. Page 29. Build rapport first: talk about family, pets, hobbies, and sports. Page 30.

    Page 64 offers a a sample opening statement for children:

    “it’s Ok if you don’t know. No one can remember everything.

    This is confidential. Don’t worry if I take notes

    Any questions? If you think of something while we are talking let me know.”

    Some children have been taught that answering a question by saying “I don’t know” is discouraged. So, tell the child that is OK to say “I don’t know.” Pages 31-32.

    Officer: If I ask you, “how many windows are in this building?” and you don’t know, you should say “I don’t know.” Let’s practice: “how many windows are in this building?”

    Hopefully, the child will say, “I don’t know”

    Some children do not understand the permanence of death. A child may say, “He went away,” because the child thinks he may return. Page 33. 37: “Repeated questions are often interpreted [by adults as well as children] to mean the first answer was regarded as a lie or wasn’t the answer that was desired. Page 37.

    You should determine the child’s ability to count before asking how many times something happened.” Page 38.

    “Different cultures view expressions of emotion differently. An individual raised in the United State might question the credibility of a child, who, without crying or expressing emotion, is able to retell how his or her parents were killed in front of him. It could be, however, that the child was raised in a culture that deems improper any expression of emotion in front of an authority figure.” Page 40.

    Trauma affects all people, regardless of age. “A child may appear numb or show emotional passivity when recounting past events of mistreatment. A child may give matter-of-fact recitations of serious instances of mistreatment.” Page 40.

    “All children have been coached to some degree. Some children may have been coached by a human trafficker or an ill-informed adult to tell a particular story, which the child repeats at the interview in order not to anger the adult.” Such a child is not a liar; he just wants to avoid punishment. Page 41. Children can’t testify with the precision of an adult. So, give the child a “liberal benefit of the doubt.” page 42.

    “It is inappropriate to rely on adverse information that the applicant has not had an opportunity to address.” Page 43.

    “The harm a child fears or has suffered may still qualify as persecution despite

    appearing to be relatively less than that necessary for an adult to establish persecution.” Pages 44-45.

    An infant can be the victim of persecution, even if he can’t remember it [Page 45]

    Mendoza-Pablo v. Holder, 667 F.3d 1308, 1315 (9th Cir. 2012) was cited on page 45: people attacked mother’s village, when she was pregnant with M-P. They burned the village down, killing several relatives. Mother fled. M-P was born premature, early malnourishment and forced flight. The court cited with approval: Benyamin v. Holder, 579 F.3d 970, 972 (9th Cir. 2009) (the harm suffered as a result of enduring genital mutilation as a five-day-old infant constitutes persecution)

    Some cases cited on page 46: Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d Cir. 2006) (child who sees corpses suffers); Kholyavskiy v. Mukasey, 540 F.3d 555, 571 (7th Cir. 2008) (being mocked and urinated on is suffering); Hernandez -Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007) (trauma to a child is apt to be lasting).

    Cases cited on page 47: Ordonez-Quino v. Holder, 760 F.3d 80 (1st Cir. 2014(being bombed, suffering hearing loss at age 5 constitutes persecution); Kahssai v. INS, 16 F.3d 323, 329 (9thCir. 1994(Reinhardt, J., concurring opinion); Xue Yun Zhang v. Gonzales, 408 F.3d 1239 (9th Cir. 2005) (economic deprivation, lack of educational opportunities, and trauma resulting from witnessing father’s forcible removal from the home could be, perhaps, persecution).

    But not all harm is persecution: Liu v. Ashcroft, 380 F.3d 307,314 (7th Cir. 2004) (a 16-year-old was detained for two days, had her hair pulled, pushed to the ground. Expelled from school. One month later, police searched home and pushed mother to the floor)

    If the applicant “welcomed” FGM, then it is not persecution. Page 48.

    “Existing case law does not definitively address how to determine whether FGM imposed in the past on a young child, who did not have the capacity to welcome or reject the practice, constitutes past persecution.’ Page 48.

    Several cases were cited on Page 49 for the proposition that the applicant “need not always go to the police.”

    Page 50 cited: Abay v. Ashcroft, 368 F.3d 634, 640 (6th Cir. 2004): a nine-year-old may be incapable of articulating fear to the same degree as adults.

    At least one central reason

    “The persecutor may have several motives to harm the applicant, some of which may be unrelated to any protected ground.” Page 53.

    J-B-N-&S-M-, 24 I&N Dec. 208, 214 (BIA 2007) was cited twice on Page 53: applicant failed to prove at least one central reason was a protected ground.

    What is implausible: cases cited on Page 54:

    Civil v. INS, 140 F.3d 52 ,57(1st Cir. 1998) (applicant was denied asylum; but dissenting judge criticized the IJ who said, “It is almost inconceivable to believe that the Ton Ton Macoutes could be fearful of the conversations of 15-year-old children.”

    Salaam v. INS, 229 F,3d 1234 (9th Cir. 2000): court criticized BIA for finding it implausible that the petitioner had been vice president o of a branch of an opposition movement at the age of 18.

    Particular social groups

    One way to show a group has “social distinction” is to look at “press accounts.” Matter of M-E-V-G-, 26 I&N Dec. 227, 244 (BIA 2014). Page 55.

    At page 56:

    - a group of “formerly trafficked [nationality]” may be appropriate. Does the society in question distinguish formerly trafficked individuals from others? Lukwago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003);

    - “street children” could be a group, even though it was rejected in Escobar v. Gonzales, 417 F.3d 363 (3d Cir. 2005). If they are targeted for social cleansing by the police or are subject to specific laws, then they could be socially distinct.

    “Family alone can constitute a particular social group. If a person is targeted because of a family connection, then the particular social group of family is appropriate. This is true even if the original family member on whom the connection is based is not targeted due to a protected ground.” Aldana-Ramos v. Holder, 757 F.3d 9 (1st Cir. 2014)

    “In most societies, the nuclear or immediate family is socially distinct, while in some societies, more extended relationships may also be socially distinct.”

    Gangs: page 57

    “Persons resistant to gang membership” is not a particular social group, Matter of E-A-G-, 24 I&N Dec. 591 (BIA 2008), but, “individuals taking concrete steps to oppose gang membership and gang authority” might be a particular social group, if there is evidence of social distinction in the society. Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014).

    Former gang membership “generally” does not form the basis of a particular social group, but there may be exceptions. Page 58: the guerrilla group FARC, in Colombia, was likened to a gang. Note 153 cites Martinez-Buendia v. Holder, 616 F.3d 711 (7th Cir. 2010) (after a health worker refused to assist FARC, she was attacked. Perhaps FARC imputed an anti-FARC political opinion to her).

    FGM: page 58

    “Females [of the applicant’s tribe or nationality] who are subject to gender-related cultural traditions” may be an appropriate particular social group formulation when the claim is based on FGM.”

    When FGM is imposed on a young child, what is the applicant’s perception of it?

    Benyamin v. Holder, 579 F.3d 970, 972, (9th Cir. 2009) (enduring genital mutilation as a five-year-old infant constitutes persecution}. [Author’s note: The Court does not exactly say this. The father of the girl was the asylum applicant; a sister had not yet suffered FGM; the case was remanded].

    Matter of A-T-, 25 I&N Dec. 4,5 (BIA 2009) (“It is difficult to [see where FGM]” would not rise to the level of persecution.)

    Note 156: Kone v. Holder, 596 F.3d 141, 153 (2d Cir. 2010) (remanding a petitioner’s claim for the BIA to consider whether “a mother who was herself a victim of genital mutilation” experiences persecution when her daughter may “suffer the same fate.)

    Abay v. Ashcroft, 368 F.3d 634, 642 (6th Cir. 2004) (a mother can demonstrate direct persecution based on the harm of “being forced to witness the pain and suffering on her daughter.”).

    Matter of A-K-, 24 I&N Dec. 275 (BIA 2007) a father feared his two USC daughters would suffer FGM. “Note that there is no nexus unless the parent fears FGM to their child in order to target the parent for the parent’s protected ground. A-K- does not foreclose the possibility of FGM on a family member due to the applicant’s political opinion constituting persecuting to the applicant.”

    Note 157 on page 59 cites Gatimi v. Holder, 578 F.3d 611 (7 th Cir. 2009) (Threat of FGM to wife in order to harm husband could be persecution to husband).

    “Females [of the applicant’s tribe or nationality] who are subject to gender-related cultural traditions” may be appropriate group for forced marriage claims. Page 59.

    When considering a “serious non-political crime” determine if he acted under duress. Page 60.

    Harm to a child could be persecution, even if the same harm to an adult would not be. Page 61.

    A marriage invalid for failure to comply with formal registration requirements, may still be valid for immigration purposes, if they had to flee from persecution. Note 164 on page 66.

    “There is no age-based restriction to applying for asylum.’ Page 75. In Polovchak v. Meese, 774 F.2d 731, 736-37 (7th Cir. 1985), a 12-year-old boy was granted asylum, counter to his parents’ wishes to return to Russia. The Court held that the parents had important rights that had been ignored.

    Generally, the parents are notified when a child files for asylum “when the parent does not seem to be the one submitting the claim.” Page 75.


    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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