Asylum in the United States for Unaccompanied Children

The views and analyses expressed in this article are the author's and do not represent the positions of the United States Attorney General, the United States Department of Justice, the Civil Division, the Office of Immigration Litigation, or any other Government entity or the American Bar Association. Additionally, this article does not contain arguments to be relied upon in presenting a claim within the parameters of the subject matter discussed.

Introduction

Child migration— it is a phenomenon of old times; it is a phenomenon of our time. Child migration is not only Joseph of the Old Testament and Claude Franklin, a 13-year-old boxcar boy of the Great Depression. Child migration is also Aylan Kurdi, a three-year-old Kurdish boy, who was found dead on a Turkish beach in 2015 and 10,000 unaccompanied refugee children in Europe, who were declared missing in 2016.

Child migration leaves us wondering—what is our modern society, particularly our United States of America, doing to address the age-old phenomenon of child migration? This article attempts—in a limited fashion—to answer this question. This article focuses only on children who migrate to the United States from other countries unaccompanied by parents or guardians. The article, moreover, concentrates only on asylum, looking at ways in which United States asylum law and the processes for pursuing asylum are tailored to address the needs of these children and the needs of the country at large.1

Unaccompanied Children

The term I will use to identify the subject children of this article is "unaccompanied children." The controlling statute refers to the children as "unaccompanied alien children." These terms first found their way into United States law in the Homeland Security Act of 2002 (HSA). The HSA defines an unaccompanied alien child as a person who:

• does not have lawful immigration status in the United States;
• is under the age of 18 years; and
• is without a parent or legal guardian in the United States.2

The age determination is generally linked to the time at which the child submits an application for asylum and withholding of removal. 3

Of course, unaccompanied children—whether arriving to the United States individually or en masse—predate the term coined in the 2002 HSA. From December 1960 to October 1962, for example, 14,000 Cuban children came to the United States without parents or guardians, in what is now known as Operation Pedro Pan.4 While the Pedro Pan rate of what we now call unaccompanied child arrivals to the United States seems high, the rate pales in comparison to the current mass unaccompanied child arrivals to our country.

In fiscal year 2014 (October 1, 2013-September 30, 2014), unaccompanied child arrivals to the United States surged to over 60,000 (reported at 68,541 by the Secretary of the Department of Homeland Security—up from a tenth that number in fiscal year 2011).5 While "only" 39,970 unaccompanied children arrived in the United States in 2015, 10,000 of these unaccompanied children arrived in the last two months of that year, and 59,692 arrived in 2016.6 According to the Pew Research Center, "[t]he number of apprehensions of unaccompanied children shot up by 78 percent" during the first six months of fiscal year 2016.