Jason Pobjoy’s newly released book, The Child in International Refugee Law, represents a major contribution not only to the advancement of protection claims of children, but to refugee law more broadly, taking its place among such seminal works as J. Hathaway and M. Foster’s, The Law of Refugee Status (2d Edition 2014) and G.Goodwin-Gill and J.McAdam’s The Refugee in International Law (3d Edition, 2007).
The publication of Pobjoy’s treatise comes at an opportune time, when there is increasing sophistication among practitioners and scholars about the complex issues involved in conceptualizing children’s claims and providing effective representation to children refugees accounting for their unique needs and vulnerabilities as children. The body of law regarding children’s claims builds on earlier work regarding in particular refugee law’s treatment of women claimants that challenges refugee law’s dominant male paradigm. Similarly, the body of children’s refugee law challenges the dominant adult paradigm: As Pobjoy advocates and presents so comprehensively, in the case of children every criteria in the refugee definition must be interpreted in a child-centered manner, grounded in the specific structure of rights and obligations of the Convention on the Rights of the Child (CRC). This review focuses on Chapter 4 of Pobjoy’s book, “A Child-Rights Framework for Identifying Persecutory Harm.”
The publication of Pobjoy’s treatise also comes at a precipitous moment in the development of U.S. refugee law. There is growing sophistication among the American refugee bar and scholarly communities, especially evident over the past decade. Although in the past the U.S. has been, in some respects, an outlier, doggedly parochial and resistant to acknowledging the role that international human rights law should play in the interpretation of its domestic asylum provisions, there has been a shift: American lawyers have been urging a more internationalist approach; they have been including arguments about international human rights law in their advocacy; and, presenting the jurisprudence of other states parties to the UN Refugee Convention in support of their clients claims to protection. The U.S. Supreme Court has recognized the roots of U.S. law in the UN Refugee Convention and Protocol, has referenced the jurisprudence of other states parties, and federal courts have suggested at least implicitly a human rights standard. See Deborah E. Anker, Law of Asylum in the United States, Ch. 1 (2017). And as the American non-profit Opportunity Agenda points out, in other areas of law, the U.S. Supreme Court “has increasingly cited human rights law as persuasive authority for important constitutional decisions.” The Opportunity Agenda, Legal and Policy Analysis: Human Rights in State Courts: 2011, at 2. It may be unclear at this challenging moment in U.S. politics what long-term effect this new advocacy in refugee law will have, but the orientation is changing in an internationalist direction.
Over the past 3-5 years, the U.S. has experienced a surge of asylum claims involving children, including unaccompanied children, fleeing the Northern Triangle countries of Honduras, El Salvador and Guatemala, where they face such human rights violations as forced recruitment, killing, rape and other sexual violence by trans-national gangs that have taken effective control over significant parts of these countries. In short, a far larger proportion of claims to U.S. refugee protection are being made by children (and at a time when U.S. advocacy has become more consciously human rights oriented), so the framework and analysis Pobjoy presents may have a significant impact, not only for children seeking protection, but on the development of U.S. refugee law more generally.
In Chapter 4, Pobjoy addresses the term “being persecuted,” presenting a child-rights framework for identifying persecutory harm. He discusses the applicability of the established human rights framework for analyzing persecution in children cases, and argues for a formulation that more fully embraces the rich specificity of rights contained in the CRC and that opens the door for a more principled and less ad hoc jurisprudence in children’s cases. Commentators also ground the concept in human rights. As Goodwin-Gill and McAdam note, “Specific decisions by national authorities are some evidence of the content of the concept, as understood by States, but comprehensive analysis requires the general notion of persecution to be related to developments within the broad field of human rights.” G. Goodwin-Gil and J. McAdams, supra at 91.
The human rights framework for understanding persecution (or the term “being persecuted” in the UN Refugee Convention, Article 1), starts from the premise that the Convention drafters wished to, as Hathaway and Foster argue, “identify forms of harm demonstrative of a failure of state protection” and that human rights law, in particular the International Bill of Rights (IBR) (the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights), provides the appropriate standard for assessing the minimum duties owed by a state to its citizens. J. Hathaway and M. Foster, supra at 185.
Pobjoy argues that this framework requires elaboration beyond the formative IRB instruments. In the case of children, the CRC strengthens these core IBR rights, and introduces distinct rights more “specifically tailored to the needs and vulnerabilities of children.” Most fundamentally. Pobjoy argues that, in the case of children, the term “being persecuted” (“persecution” in the U.S. definition) must be interpreted in a child-centered age-appropriate manner. Pobjoy describes a typology of harms that children applying for refugee status may present – i.e., harms that are the same as those adults face (e.g., torture, kidnapping, sexual assault), harms that are unique to children (e.g., infanticide, forced child labor), and harms where “the underlying risk is similar or identical for an adult and a child but by reason of a child’s heightened sensitivity and developmental needs the child will suffer a greater degree of harm.” J.Pobjoy at 118. In these cases, the same standard of “being persecuted” will be applied, but a child may more easily be able to satisfy it.
As Pobjoy notes, the U.S. has a particularly rich body of law embracing this age-sensitive approach. The U.S. has issued guidelines (going back to 1998) and more recently training materials for asylum officers (2009) addressing the determination of children’s claims generally, and on age-sensitive assessments of harm, in particular. The 1998 guidelines provide that “[t]he harm a child fears or has suffered . . . may be relatively less than that of an adult and still qualify as persecution.” Immigration and Naturalization Service, Guidelines for Children’s Asylum Claims (Dec. 10, 1998), at 19. On the effect of trauma, the U.S. Citizenship and Immigration Service’s Asylum Officer training manual explains that a child- and age- sensitive approach is necessary “because children, dependent on others for their care, are prone to be more severely and potentially permanently affected by trauma than adults, particularly when their caretaker is harmed.” USCIS, Asylum Officer Basic Training Course, Guidelines for Children’s Asylum Claims 16-17 (2009).
In the seminal First Circuit 2010 decision, Mejilla-Romero v. Holder, 600 F.3d 63 (1st Cir. 2010), 614 F.3d 572 (1st Cir. 2010), (the asylum seeker was represented by Harvard’s clinical program at Greater Boston Legal Services), the court initially upheld and then reversed the agency decision denying asylum, remanding to the agency to apply its own directives regarding interviewing and assessing persecution in children’s cases. In the dissent in the first decision, (which resulted in the court’s reconsidering and then reversing itself), Judge Stahl applied an age and child-centered approach in determining that the harms faced by Celvyn Mejilla-Romera constituted persecution: machete attacks on a young, elementary school child in retaliation for his parents involvement in a land reform movement, where his only protection was from his elderly grandmother, and who became a virtual prisoner in his own home, unable to go to out, even to go to school, as a result of these attacks. See Deborah Anker, Nancy Kelly, John Willshire Carrera, and Sabrineh Ardalan, Mejilla-Romero, A New Era for Child Asylum, (Imm. Briefings, September 2012).
In the February 2012 case of Mendoza-Pablo v. Holder, 667 F. 3d 1308 (9th Cir. 2013), the Ninth Circuit found that the harm to an infant born during the Guatemalan Civil War, including the impact of exposure to ongoing violence, premature birth, severe malnutrition, and continuous fear, constituted persecution. The court referenced its prior decision in Hernandez-Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007) which noted, “[t]hree sister circuits have now vindicated a principle that is surely a matter of common sense: a child’s reaction to injuries to his family is different from an adult’s. … [T]he trauma [is] apt to be lasting.” 667 F.3d at1304.
In Ordonez-Quino v. Holder, 760 F.3d 80, 90 (1st Cir. 2014), another case arising out of the Guatemalan civil war and genocide (and also represented by our clinical program at GBLS), the court found that the combination of circumstances—bombing attacks, permanent injury, the loss of a home, the razing of lands, and internal displacement lasting years—“could certainly support a finding of past persecution for an adult. Such a string of events even more strongly supports a finding of past persecution for a small child, whose formative years were spent in terror and pain.”
In children’s cases, trauma or psychological harm may not only be an aspect of persecution, or indicative of it, but an independent source of persecutory harm. Children’s cases have raised awareness of the role of trauma, and the severity of emotional harm; this has advanced the understanding of trauma and psychological harm as independent bases for a finding of persecution in other cases as well. See Sabrineh Ardalan and Palmer Lawrence, The Importance of Nonphysical Harm: Psychological Harm and Violations of Economic, Social and Cultural rights in U.S. Asylum Law, 14 Immigr. Briefings 1 (September 2014).
Although Pobjoy celebrates these advancements in the understanding of persecution in children’s cases, he notes “a general reluctance” on the part of adjudicators and reviewing courts, to engage with a human rights framework for assessing persecution (at 116). The jurisprudence has developed without benchmarks and with “limited recourse to objective indicators.” Pobjoy argues that adoption of the CRC framework for analyzing persecution is critical if children’s refugee jurisprudence is to develop beyond the current ad hoc approach, which, as rich as it is, in important respects lacks coherency and may provide little guidance in the adjudication of subsequent cases. Pobjoy’s fundamental premise is that the CRC provides the most appropriate focal point for consideration of whether a child is at risk of a form of harm that can be considered persecutory, contexualizing and providing a specificity to a body of rights that while founded in the IRB, has taken on a new life in the CRC. As noted, especially coming at the time it does, Pobjoy’s book may have a particular impact on American advocacy and jurisprudence, as the U.S. increasingly moves (however haltingly) towards a generally internationalist, and more specifically human rights, approach to the interpretation of refugee law.