Seeking Asylum for Former Child Soldiers and Victims of Human Trafficking

Abstract

This Comment explains that under the current case law, “victims of human trafficking” and “former child soldiers” are unlikely to be found as particular social groups because their persecutors created the groups. This Comment argues that “women from (a given country)” and “children from (a given country)” are valid social groups under which victims of human trafficking and child soldiers, respectively, may claim asylum. There are circuit splits, as well as conflicting holdings within circuits, as to whether gender and youth can define social groups. In addition to the social group obstacle, this Comment explains how child soldiers face the unique barrier of the persecutor’s bar. The persecutor’s bar states that an applicant may not be granted asylum if the applicant has persecuted others. Until recently, judges have applied the persecutor’s bar in denying asylum, regardless of whether an applicant’s persecutory acts were made under coercion. A recent case, Negusie v. Holder, may change the direction of this law in holding that involuntary persecution may be exempt from the persecutor’s bar. This Comment argues for a middle ground between pre-Negusie and post-Negusie law: that coerced persecution is still subject to the persecutor’s bar, except as applied towards children.

Part II of this Comment summarizes the background of asylum and refugee law, the elements required to qualify for asylum, as well as the alternatives to asylum. Part III details how to determine if a group qualifies as a social group. Part IV discusses the conditions for victims of human trafficking and child soldiers in different countries. Part V describes the current state of the law in granting asylum to victims of human trafficking and former child soldiers and explains the persecutor’s bar. Part VI analyzes options for granting asylum to victims of human trafficking and child soldiers. It dissects the discrepancies in granting asylum to such groups, explains circuit splits, discusses which lines of thought are most sound, and explains the impact that Negusie has had on the application of the persecutor’s bar towards former child soldiers. It also sets out three proposals: for courts to acknowledge “women” as a social group, for courts to allow “youth” to define a social group, and for the Board of Immigration Appeals (BIA), upon hearing Negusie on remand, to find that voluntariness should not be relevant to the persecutor’s bar as applied to adults, but should be a factor when applied to children. Part VII considers the impact of the proposals that this Comment sets forth and possible repercussions for maintaining the status quo. Part VIII concludes the Comment.