Only individuals who fear government persecution on account of race, religion, national origin, political opinion or membership in a particular social group are eligible for asylum.

An immigration judge (IJ) in Brentwood, New York granted asylum to three Hondoruan children, ages 15, 14 and 11, finding that the children were members of a particular social group of “children who have been abandoned by their parents.”

The government has thirty days to appeal the ruling to the Board of Immigration Appeals.

The children reacted with elation Friday. The oldest girl, who is 15, said she wants to be a doctor. Her 14-year-old sister said she wants to be a lawyer. And their 11-year-old brother said he wants to be a police officer

Mark Krikorian of the Center for Immigration Studies, criticized the ruling:

It’s unfortunately part of a trend where asylum is expanding to areas it was never meant for.

This seems to be the first case where asylum was granted to individuals claiming sexual abuse.

Apparently, the children were left with relatives when their father fled Honduras during Hurricane Mitch. The children claim, through their attorney, that the were abused by family members because of their lack of parental protection.

I have not read the IJ’s decision, but I can guarantee you that the United States government will appeal it.  I think it has good chance of prevailing, too.  Here’s why:

Persecution for Asylum Purposes Requires State Involvement or Acquiescence

Asylum only applies where the applicant seeking it has shown that he or she has a credible fear of persecution by the stateif forced to return home. From what I can tell from the few articles I have read, the children made no claim that it was the Honduran government that had abused them. The abuse came from private individuals, some of them family members. As horrifying as that is, it does not warrant a grant of asylum. There is simply no basis in law for an immigration judge to expand the definition of prior persecution to include abuse doled out by private individuals.

Now, I have to believe that the childrens’ attorney argued that the Honduran government acquiesced in the abuse by failing to enforce the law and protect the children from the repeated violent criminal acts being perpetrated against them. If proper nexus was shown to exist between the violent abuse of the kids and the government’s failure to do anything about it, the Judge may have properly found that there was past persecution justifying a credible fear of future persecution.

Membership in a Particular Social Group is not a Catch All Category

Persecution on account of “membership in a particular social group” is sometimes used by immigration lawyers as a catch all category that allows Immigration Judges to grant asylum to persecuted individuals who do not fit into one of the other four categories. But the category is limited and fairly well defined.

The UNHCR defines social group as,

[I]ncludes characteristics which are historical and therefore cannot be changed, and those which, though it is possible to change them, ought not to be required to be changed because they are so closely linked to the identity of the person or are an expression of fundamental human rights. It follows that sex can properly be within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently to men. (Emphasis Added)

Then points out that,

[A] particular social group 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. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights. (Emphasis Added)

Does the group “children abandoned by their parents” include characteristics that are historical and cannot change?  Children who have been abandoned by their parents don’t remain children.  Does their asylum status end when they reach the age of majority?  Consider the case of children in tribal cultures that undergo sometimes severe and painful rites of passage that would be considered abuse to us. The “abuse” stops when the passage to adulthood is complete.  Would these children now have meritorious asylum claims?

Potential Future Implications of Decision

The BIA will be concerned about precedent.

For instance, if the ruling is affirmed and thereby becomes law, will the ritual abuse of a person by a private person constitute persecution for asylum purposes?  Would a mere showing by an asylum applicant that the government of their country of origin is either incapable or unwilling to protect its citizens from crime warrant a grant of asylum?

Perhaps, instead of trying to fit “abandoned and abused children” into the paradigm of our current asylum law, Congress should add a new special category of relief that will enable abused children to escape from their abusers. And perhaps “deferral of removal” until the children reach adulthood (then the children will no longer be members of the social group on which their asylum was based) is a better, and more appropriate form or relief.

Those are my initial thoughts, as rambling as they may be.

I anticipate the BIA having real problems with the Judge’s ruling. I will go out on a fairly sturdy limb here and predict that the BIA either reverses the ruling or provides clear definitions of “particular social group” and “government persecution” and then remands the case to the IJ for further proceedings consistent with those definitions.

If I’m wrong and the BIA affirms the IJ’s ruling, I’m gonna have set up a day care agency in my office to house my little future clients. 

For more:

Newsday.com’s Judge Grants Asylum to 3 Children on Sex Abuse Claim

New York Daily News (Latino) New York Judge Cites Abuse, OKs Honduran Kids’ Asylum