Obtaining Asylum for an Unaccompanied Minor

One of the most daunting challenges for an immigration attorney is representing an unaccompanied child (“UAC”) in an affirmative asylum case. Although logically most would assume that obtaining a positive decision for a child would be one of the easiest tasks at the asylum office, as children are inarguably the most vulnerable in any population, anyone who has worked within the immigration system understands that the laws that govern are not always straight-forward.

A short history of the UAC crisis shows that unaccompanied children have been arriving at the border in unprecedented numbers. In 2014, when this problem grew too big to ignore, Congress and DHS passed a series of haphazard policies in order to “protect” unaccompanied children at the border. Two of these policies are of particular importance. First, whether or not a minor actually has family in the United States is irrelevant when determining their “UAC status.” If they are alone at the border and an ICE agent designates them as such, they will be treated with special “UAC” status throughout the immigration process. Second, all unaccompanied children, unless they specifically waive this right, are automatically given an asylum interview with priority scheduling.

These privileges sound like they would be an advantage in the immigration system, but this is not always the case. The immigration court system has specifically rejected any asylum seekers fleeing gang violence, and the vast majority of UACs fall into this category. As a result, most UACs will not receive affirmative asylum, even if the persecution they fear is far worse than most can imagine. As a former asylum officer, I understand that the heightened number of rejections is not due to a lack of sympathy but an actual inability to grant based on the laws in place.

Attorneys representing these cases are therefore charged with finding an alternative basis for fear by asking a series of in-depth questions to find an appropriate particular social group. A particular social group (“PSG”)  is “a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society.” Most clients who seek asylum will have to fit into a particular social group, previously defined by immigration courts or asylum officers. As an immigration attorney, I often find that I have to probe a little deeper than most of my clients anticipate in order to find a basis for a particular social group. This is most likely due to the fact that trauma victims have a difficult time perceiving persecution. After a child witnesses an execution, understandably they might grow numb to other dangers in their life.

One of the most common alternative particular social groups that can be used in a UAC case is domestic violence, or “children unable to leave because of their position in society.” This is a particularly compelling case because children often do not have the financial or emotional capacity to relocate from dangerous home. Similarly, a female who has been approached by a gang member and forced into a relationship falls under the category of a domestic violence victim if she is unable to “break-up” with her abuser.  Another common particular social group that could fit this group would be “sexual minorities,” or LGBT claims. Also, former witnesses who have cooperated or reported gang incidents to local police fall into a qualifying PSG category if they have been threatened because of their cooperation.

Finally, and most importantly, being connected to a family member who has been persecuted by a gang is the most important particular social group for UACs. Although it might seem counterintuitive that being directly persecuted does not qualify but being related to someone who is persecuted does, this is a legal reality that can be very useful in representing an unaccompanied minor. The most common example I’ve seen is when the head of a household refuses to pay “rent” or “ransom” to the local gang. If the gang members start targeting the family members of a client for revenge or extortion, that client would qualify for asylum in the United States.

Although these are only a few examples of qualifying PSGs for unaccompanied minors, many more exist and should be explored before representing a minor in an asylum claim. Visit this resource for additional particular social groups and read this manual for specific tips on building a case. For more information about asylum claims or immigration issues generally, please visit ssimmigrationlaw.com or call 202-333-2100 for more information.