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NOTES
STREET CHILDREN AS
UNACCOMPANIED MINORS WITH
SPECIALIZED NEEDS: DESERVING
RECOGNITION AS A PARTICULAR
SOCIAL GROUP

Martha Drane
Abstract: In December 2008, President Bush signed the William
Wilberforce Trafficking Victims Protection Reauthorization Act, which
requires the examination of the specialized needs of an unaccompanied
minor during an asylum proceeding. When examining the specialized needs
of street children who enter the United States as unaccompanied minors
children who face brutality and endure physical, mental, and emotional
vulnerabilitiescourts should now find that such children constitute a
particular social group for asylum purposes.
INTRODUCTION ..........................................................................................910
I. Street Children.......................................................................................914
II. U.S. Immigration Law and Forms of Relief ........................................917
A. Applicants Burden of Proof....................................................918
1. Asylum...............................................................................918
2. Withholding of Removal ...................................................919
3. Protection Under the Convention Against Torture ............919
B. A Particular Social Group and Street Children........................921
C. Children, Specialized Needs, and Application for Asylum .....922
III. Street Children as Unaccompanied Minors and an Examination of
Their Specialized Needs......................................................................923
A. Street Childrens Specialized Needs: Resulting from Their
Environment and Age..............................................................925

Candidate for Juris Doctor, New England School of Law (2010). B.A., Sociology, summa
cum laude, Ithaca College (2007). I would like to thank Jonathan Laskowitz, Professor of
Sociology at Ithaca College, for his creative and analytical perspectives; my family for their
support and encouragement; and the staff of the New England Law Review for their work
and dedication.
909
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910 NEW ENGLAND LAW REVIEW [Vol. 44:909

B. The Acosta Formula: Childhood as an Immutable

Characteristic ...........................................................................927
C. Street Childrens Specialized Needs Derive from Immutable
Characteristics, Thus Mandating Recognition as a Particular
Social Group for Purposes of Asylum. ....................................928
1. Age-Based Asylum Claims................................................929
2. Blocking the Floodgate......................................................931
CONCLUSION ..............................................................................................932
[The children] are cold, hungry, and helpless. They are hunted
like animals by corrupt police, bandits, and gang members . . . .
[M]ost are robbed, beaten, or raped, usually several times. Some
are killed.

They set out with little or no money. Thousands . . . make

their way through Mexico clinging to the sides and tops of
freight trains. . . . To evade . . . authorities, the children jump
onto and off the moving train cars. Sometimes they fall, and the
wheels tear them apart.1

INTRODUCTION
More than one hundred million children call a city street their home.2
This number will increase dramatically as the plight of parentless children
in countries throughout the world is extreme.3 There are various reasons for
why children end up on the street including poverty, high birth rates,
government repression, urbanization, lack of education, lack of economic
opportunity and dysfunctional families.4 Once life on the street begins, the
very reasons for initially leaving a family are exacerbated;5 the abuse and
neglect worsen from both the poverty-stricken and violent conditions of the
street.6 It is estimated that 50,000 [human beings] die daily as a result of
poor shelter, water, or sanitation,7 and street children are particularly

1. SONIA NAZARIO, ENRIQUES JOURNEY: THE STORY OF A BOYS DANGEROUS ODYSSEY

TO REUNITE WITH HIS MOTHER 5-6 (2006).
2. See Casa Alianza, Exploitation of Children A Worldwide Outrage, http://www.
childtrafficking.com/Docs/casa_allianca_statistics_7.pdf (last visited May 1, 2010).
3. See id.
4. Marc D. Seitles, Note, Effect of the Convention on the Rights of the Child upon
Street Children in Latin America: A Study of Brazil, Colombia, and Guatemala, 16 IN PUB.
INTEREST 159, 161 (1998).
5. See id. at 161-64.
6. See id. at 162-63 (discussing police death squads and the government-supported
policy of social cleansing of street children).
7. Janet Ellen Stearns, Urban Growth: A Global Challenge, 8 J. AFFORDABLE HOUSING
& COMMUNITY DEV. L. 140, 141 (1999).
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2010] STREET CHILDREN AS A PARTICULAR SOCIAL GROUP 911

vulnerable because of the violence and disease to which they are exposed.8
The alarming number of street children throughout the world, which is
increasing on a daily basis,9 and the horrific conditions in which they must
live, is further demonstrated by the influx of such children who flee to the
United States;10 they abandon their country of origin in order to begin a life
free of violence, torture, and neglect.11 Once in the United States, however,
it is likely that a child will be apprehended by immigration authorities.12 If
this occurs, a child will find him or herself before an immigration judge at a
removal hearing.13
The Immigration and Nationality Act offers two forms of relief:
asylum14 and withholding of removal.15 These are two separate forms of
relief16 that are sought simultaneously.17 An asylum seeker must prove he is
a refugee and is unwilling to return to his home country because of a well-
founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.18 A grant of
withholding of removal requires an applicant to demonstrate that his or her
life or freedom would be threatened on account of the same five statutory
grounds as an asylum seeker.19 Finally, pursuant to the Convention Against
Torture (CAT),20 the individual must demonstrate that it would be more

8. See generally Protecting Street Children: Vigilantes or the Rule of Law?: Hearing
Before the Subcomm. on Africa, Global Human Rights and Intl Operations of the H. Comm.
on Intl Relations, 109th Cong. 91-92 (2005), available at http://www.global
security.org/military/library/congress/2005_hr/050913-transcript.pdf (Street children are
always hungry. They leave home hungry and beg on the street where they are vulnerable to
sexual exploitation, disease, malnutrition, illiteracy, abuse and trafficking for sexual
exploitation.).
9. See id. at 2 ([T]he problems of street children have reached epidemic proportions
because good people will not confront this evil or do enough to deal with it.).
10. See Laura P. Wexler, Note, Street Children and U.S. Immigration Law: What Should
Be Done?, 41 CORNELL INTL L.J. 545, 546 (2008).
11. See Linda A. Piwowarczyk, Our Responsibility to Unaccompanied and Separated
Children in the United States: A Helping Hand, 15 B.U. PUB. INT. L.J. 263, 266, 274 (2006).
12. See Logan Bobo, Note, Wedlock, Blood Relationship, and Citizenship, 14 CARDOZO
J.L. & GENDER 351, 361-62 (2008).
13. See Immigration and Nationality Act (INA) 237(a)(1), 8 U.S.C. 1227(a)(1)
(2006).
14. INA 208, 8 U.S.C. 1158.
15. INA 241(b)(3), 8 U.S.C. 1231(b)(3).
16. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 428 n.6 (1987).
17. 8 C.F.R. 1208.3(b) (2009).
18. INA 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i).
19. Compare id., with INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A) (2006).
20. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, S. TREATY DOC. NO. 100-20 (1988), 1465 U.N.T.S. 85
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912 NEW ENGLAND LAW REVIEW [Vol. 44:909

likely than not that they would be tortured if returned to their country.21
The benefits granted by each relief vary,22 with asylum affording the most
protection.23
For the street children who find themselves on U.S. territory as
unaccompanied minors,24 a grant of asylum25 will provide the greatest
amount of safety as the benefits accompanying a successful claim permit an
individual to become a U.S. permanent resident.26 Street children will most
likely apply based on membership in a particular social groupwhich
involves demonstrating an immutable characteristic27but problems

[hereinafter Convention Against Torture]. CAT is an international treaty that prohibits the
return of a non-citizen to a country where there are substantial grounds for believing that he
or she would be subject to torture. Id. art. 3, S. TREATY DOC. NO. 100-20 at 6, 1465
U.N.T.S. at 114.
21. 8 C.F.R 208.16(c)(2).
22. See U.S. CITIZENSHIP AND IMMIGRATION SERVICES, I AM A REFUGEE OR ASYLEE:
HOW DO I . . . BECOME A U.S. PERMANENT RESIDENT? (2008), http://www.uscis.gov/files/
article/D3eng.pdf. The granting of asylum permits an individual to apply for permanent
resident status. Id. A lawful permanent resident (LPR) possesses the status of having
been lawfully accorded the privilege of residing permanently in the United States as an
immigrant in accordance with the immigration laws, such status not having changed. INA
101(a)(20), 8 U.S.C. 1101(a)(20). This status additionally permits family reunification
and work authorization. See INA 208(b)(3)(A), (c)(1)(B), 8 U.S.C. 1158(b)(3)(A),
(c)(1)(B). A successful withholding of removal claim, however, only affords an individual
the right to remain in the United States and the opportunity to obtain work authorization. See
Immigration Equality, Issues: Withholding of Removal and CAT, http://www.
immigrationequality.org/template.php?pageid=168 (last visited May 1, 2010).
23. See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 428 n.6 (1987). Although asylum is
granted on a discretionary basis, once granted, it provides broader benefits than does
withholding of removal. Id.
24. An unaccompanied minor is one who:
(A) has no lawful immigration status in the United States; (B) has not
attained [eighteen] years of age; and (C) with respect to whom(i)
there is no parent or legal guardian in the United States; or (ii) no parent
or legal guardian in the United States is available to provide care and
physical custody.
6 U.S.C. 279(g)(2) (2006).
25. For many asylum seekers, their most difficult challenges arise on their journey to the
United States. See DAVID WEISSBRODT, THE HUMAN RIGHTS OF NON-CITIZENS 131 (2008)
(Receiving countries often provide limited social services for asylum seekers, and countries
such as the United States provide no assistance whatsoever to the asylum seeker during the
period of application.) (quoting Susan F. Martin & Andrew I. Schoenholtz, Asylum in
Practice: Successes, Failures, and the Challenges Ahead, 14 GEO. IMMIGR. L.J. 589, 614
(2000)).
26. See sources cited supra notes 22-23.
27. In re Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985) ([P]ersecution on account of
membership in a particular social group [refers] to . . . persecution that is directed toward
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2010] STREET CHILDREN AS A PARTICULAR SOCIAL GROUP 913

instantly arise because street children generally fail to constitute a

particular social group for purposes of asylum claims.28
This Note will argue that due to the recent passing of the William
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008,29
which requires the recognition and consideration of the specialized needs
of an unaccompanied minor during an asylum proceeding,30 a street childs
age must be recognized as an important element; the childs young age31 is
the underlying reason why he or she lives on the street, why he or she faces
brutal violence from such a life, and why he or she flees to the United
States.32 Part I of this Note will explain who street children are and why
they live on the streets. Part II will provide a detailed overview of current
U.S. immigration law and the remedies available to children involved in a
removal proceeding. Part II will further explain why past courts have failed
to recognize street children as a particular social group for purposes of
asylum. Part III of this Note details the mental and physical vulnerabilities
street children experience and how such vulnerabilities correlate with living
on the street. This Note argues that under the recent Reauthorization Act,
which now focuses on the specialized needs of unaccompanied minors,
courts should find that street children in fact constitute a particular social
group for purposes of asylum.33

an individual who is a member of a group of persons all of whom share a common,

immutable characteristic.).
28. See Escobar v. Gonzales, 417 F.3d 363, 367 (3d Cir. 2005) (holding that Honduran
street children failed to constitute a particular social group).
29. Pub. L. No. 110-457, 122 Stat. 5044 (to be codified in scattered sections of 8 and 22
U.S.C.).
30. 235, 122 Stat. at 5081 (to be codified as 8 U.S.C. 1232).
31. The average age of a child living on the streets within Latin America is nine.
Wexler, supra note 10, at 549.
32. See Piwowarczyk, supra note 11, at 266 (discussing the increase of homeless,
unaccompanied youth who travel to the United States alone, and often the circumstances
from which they are fleeing are dangerous, some report wishing to improve their own
circumstances without regard to other family). Juvenile immigrants to the United States
are generally vulnerable youths seeking safety, reunification, or opportunity. Id. at 274.
33. See infra Part III.C.
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914 NEW ENGLAND LAW REVIEW [Vol. 44:909

I. Street Children
There is not a uniform definition of street children,34 but generally,
street children are recognized as minors who lack a permanent home,35
commit acts of violence, and steal in order to survive.36 Such children join
gangs to create a sense of security that is often lacking because of an absent
family.37 These children have been mistreated, imprisoned, and are often
forgotten or ignored by society38they are the [c]hildren nobody smiles
to, nobody cuddles, nobody protects, nobody comforts.39
The number of street children increases on a daily basis, and although
it is difficult to provide a precise number, there are tens of millions of

34. See, e.g., Wexler, supra note 10, at 547-48. Street children may be seen as those
who survive by expedients, by theft, and by violence. Children who coalesce into gangs
and re-invent a family; a structure they have never known; a security that always eluded
them. Children who are used unscrupulously by others; mistreated, imprisoned, even
eliminated. Id. (internal quotations omitted) (quoting SUSANNA AGNELLI, STREET
CHILDREN, A GROWING URBAN TRAGEDY: REPORT FOR THE INDEPENDENT COMMISSION ON
INTERNATIONAL HUMANITARIAN ISSUES 11 (1986)).
35. Id. (The Save the Children Fund adds that a street child is any minor who is
without a permanent home or adequate protection.) (quoting Catherine Panter-Brick,
Street Children, Human Rights, and Public Health: A Critique and Future Directions, 31
ANN. REV. OF ANTHROPOLOGY 147, 149 (2002)).
36. See, e.g., Aransiola J. Oyeniyi & Agunbiade O. Melvin, Coping Strategies of Street
Children in Nigeria, 2 J. SOC. & PSYCHOL. SCI. 13, 15, 31 (2009) (researching the coping
mechanisms of street children in Nigeria and finding that street children in Nigeria just like
any other part of the world, do engage in illegal activities such as stealing, pick-pocketing,
violence and even robbery among others).
37. In their study on street children, Oyeniyi and Melvin interviewed and administered
questionnaires through Focus Group Discussions. Id. at 13. In one discussion, one adult
male reported [y]ou will see them on the street with rubber plates with which they beg for
food and they always wear rags. It is evident all over them that there are no traces of care for
them by any adult. Id. at 24. Another male explained, [s]treet children form gangs to
protect themselves against external enemy and to assist one another in times of trouble.
They form their own artificial family on the streets. Id. at 25. Similar conditions exist in
varying countries, street children in Colombia may find, for example, that [t]heir families
neglect them, the gangs dont. . . . Family and school maltreat them, the gang doesnt.
Family and school give them no love, the gang does. DUNCAN GREEN, HIDDEN LIVES:
VOICES OF CHILDREN IN LATIN AMERICA AND THE CARIBBEAN 90-91 (1998). See also Seitles,
supra note 4 (arguing that the street, rather than the childs family serves as the childs
home where there is no protection, supervision, or direction from responsible adults).
38. A fourteen-year-old boy, Dolgion, who lives in a sewage pit in Mongolia explained,
[w]e have nothing. Were just like human garbage. Nobody needs us. Dolgion: Life Is
Given Only Once, NEW INTERNATIONALIST, April 2005, available at
http://www.newint.org/issue377/dolgion.htm.
39. Wexler, supra note 10, at 547 (internal quotations omitted) (quoting AGNELLI, supra
note 34).
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2010] STREET CHILDREN AS A PARTICULAR SOCIAL GROUP 915

children living on the streets throughout the world.40 These children are
young41 and must survive on their own42 despite the harsh and problematic
street environment.43 An impoverished life contaminated by the filth of the
streets causes many children to develop severe physical and mental health
problems,44 and the children cope with such stressful lives by resorting to
drugs and alcohol.45 The surrounding community lacks compassion for
street children,46 and this view further adds stress to the childrens lives
because they are treated like social deviants within their country of origin.47
Many times street children are unable to gain help from the police,48 and in

40. See UNICEF, THE STATE OF THE WORLDS CHILDREN 2006: EXCLUDED AND
INVISIBLE 40-41 (2005), available at http://www.unicef.org/sowc06/pdfs/sowc06_
fullreport.pdf [hereinafter STATE OF THE WORLDS CHILDREN] (Indeed, every city in the
world has some street children, including the biggest and richest cities of the industrialized
world.).
41. See Joyce Koo Dalrymple, Note, Seeking Asylum Alone: Using the Best Interests of
the Child Principle to Protect Unaccompanied Minors, 26 B.C. THIRD WORLD L.J. 131,
131-33 (2006) (Children under eighteen make up about half of the worlds refugee
population.); Wexler, supra note 10, at 549 ([T]he average age of a Latin American street
child is reported as nine years old.).
42. Most street children are without families. See GREEN, supra note 37, at 90 (noting
that street children flee broken homes).
43. See Gabriel Julien, Street Children in Trinidad and Tobago: Understanding Their
Lives and Experiences, 11 COMMUNITY WORK & FAM. 475, 485 (2008) (reporting street
childrens response to interviews about their life experience on the street).
44. CHILD WELFARE COMMITTEE, THE NATIONAL CHILD TRAUMATIC STRESS NETWORK
& NATIONAL CHILDRENS ALLIANCE, CAC DIRECTORS GUIDE TO MENTAL HEALTH SERVICES
FOR ABUSED CHILDREN 13-45 (2008) [hereinafter CHILD WELFARE COMMITTEE] (discussing
the possible reactions to trauma experienced by a child).
45. In order to relieve mental, emotional, and physical pain, children may resort to a
variety of substances including the use of alcohol, nicotine, opioids, stimulants,
hypnosedatives, hallucinogens and inhalants. See WORLD HEALTH ORGANIZATION,
WORKING WITH STREET CHILDREN, MODULE 3: UNDERSTANDING SUBSTANCE USE AMONG
STREET CHILDREN 15, 28 (2000), available at http://www.unodc.org/pdf/youthnet/who_
street_children_module3.PDF.
46. See Julien, supra note 43, at 484 ([One street vendor] placed street children at the
very end of the ladder, claiming they were the worst.); Carolyn J. Seugling, Note, Toward
a Comprehensive Response to the Transnational Migration of Unaccompanied Minors in
the United States, 37 VAND. J. TRANSNATL L. 861, 886 (2004) (Branded as anti-social or
demonstrating anti-social behavior, street children are viewed with suspicion and fear by
many who would simply like to see street children disappear.).
47. See Caroline McHale, Note, The Impact of U.N. Human Rights Commission Reform
on the Ground: Investigating Extrajudicial Executions of Honduran Street Children, 29
FORDHAM INTL L.J. 812, 812-16 (2006) (noting that Honduran police inflict arbitrary acts
of violence upon street children, including assaulting, murdering, and stealing from the
children).
48. In a study conducted in Brazil, it was found that street children viewed the police as
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916 NEW ENGLAND LAW REVIEW [Vol. 44:909

Latin America, the judiciary and police view street children as delinquents
unable to rehabilitate.49 Latin American countries are especially notorious
for their vicious and sadistic practices against street children. Death squads
and armed police forces regularly comb the city streets to perform savage
social cleansings.50 Such a view persists through varying countries.51
As one child explains:
Many policemen there, youre not doing anything, they book
you, they beat you, they humiliate you. They humiliate you, they
call you a thief in front of everyone . . . they throw you to the
ground . . . they take you . . . (he sighed) they take you to the
rear . . . they take you to the darkness, they beat you, they give
you black eyes, they leave you beaten up, with legs and back full
of marks.52
Increasing numbers of street children flee their countries of origin in
search of protection from the harsh human rights abuses they have been
subjected to53 including rape, human trafficking, female genital mutilation,

a fearful figure. See M.O. Ribeiro, Street Children and Their Relationship with the Police,
55 INTL NURSING REV. 89, 92 (2008) ([I]nstead of playing the role of protector, the police
subjected the [street] children . . . to violence.).
49. Wexler, supra note 10, at 550; see McHale, supra note 47, at 813-16.
50. EVGENIA BEREZINA, VICTIMIZATION AND ABUSE OF STREET CHILDREN WORLDWIDE 2
(2004), available at http://www.yapi.org/rpstreetchildren.pdf (Unspeakable police brutality
reflects the governments perception of street children as parasites to be exterminated . . .
.); see James Brooke, Gunmen Said to Be Police Kill 7 Street Children in Rio, N.Y. TIMES,
July 24, 1993, http://www.nytimes.com/1993/07/24/world/gunmen-said-to-be-police-kill-7-
street-children-in-rio.html?pagewanted=1 (reporting the Candelaria Church Massacre,
where military police officers murdered street children sleeping at the Church, and the
alarming statistics of similar incidents); Guatemala: Allegations of Police Killings Must Be
Investigated-New Report, AMNESTY INTL, Dec. 15, 2009, http://www.amnesty.
org.uk/news_details.asp?NewsID=18548 (explaining that Guatemalan officials fail to
investigate the police involvement in reoccurring social cleansing of young children
[t]he bodies of victims, some as young as [thirteen], have been discovered in vacant lots or
on rubbish tipswith their hands tied behind their backs, strangled or with multiple gun
shot wounds inflicted at close range).
51. Seugling, supra note 46, at 885-86.
52. Ribeiro, supra note 48.
53. For example:
Fifteen-year-old Isau fled his home in Honduras to escape extreme
physical abuse by his stepfather, persecution by government death
squads, and torment by youth gangs. Isaus stepfather beat Isau with
rods, pieces of wood, and a machete handle, and burned him with
numerous hot objects. After running away from his stepfathers home,
Isau lived on the streets where he faced harassment from authorities and
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2010] STREET CHILDREN AS A PARTICULAR SOCIAL GROUP 917

recruitment as a child soldier, and abuses on the street.54 These vulnerable

youths55 flee their country of origin in hopes of establishing safety and
stability within their lives.56

II. U.S. Immigration Law and Forms of Relief

Street children who flee to the United States without family are seen
as unaccompanied alien child[ren] for purposes of U.S. immigration
law.57 This title attaches because such children are generally less than
eighteen years of age, undocumented, and without a legal guardian or
parent in the United States.58 For an unaccompanied alien child, just like
adults, there are three legal remedies available for pursuing relief in the
United States: asylum,59 withholding of removal,60 and withholding of
removal under the CAT.61 Asylum is the more generous and desirable form
of protection, but it is a discretionary remedy,62 while withholding of

gangs. He fled to the United States and was apprehended by the

Immigration and Naturalization Service (INS).
Areti Georgopoulos, Note, Beyond the Reach of Juvenile Justice: The Crisis of
Unaccompanied Immigrant Children Detained by the United States, 23 LAW & INEQ. 117,
117 (2005).
54. See In re Kasinga, 21 I. & N. Dec. 357, 358 (B.I.A. 1996) (agreeing that female
genital mutilation qualified as a basis for asylum); JONATHAN TODRES ET AL., THE U.N.
CONVENTION ON THE RIGHTS OF THE CHILD: AN ANALYSIS OF TREATY PROVISIONS AND
IMPLICATIONS OF U.S. RATIFICATION 303 (2006) (The seminal study by the United Nations
on children in armed conflict estimates that approximately 300,000 children globally are
engaged in military conflict in over [thirty] countries.); Dalrymple, supra note 41, at 131-
32 (narrating the fears of a sixteen-year-old boy constantly threatened and battered by a
local street gang); Justina Uram, Comment, Les Enfants de Mauvais Souvenir: Conceived
Through Violence, Born as Outcasts, Living in Danger. Why Parentless and Orphaned
Children of Rape Should Receive Refugee or Asylum Status, 26 PENN ST. INTL L. REV. 935,
937 (2008) (Without an accepting family or community to raise and protect them, children
of rape have a significant likelihood of becoming street children, who are routinely
physically, emotionally and sexually abused and forcibly recruited into militia groups and
political demonstrations.).
55. See, e.g., Jonathan Todres, Rights Relationships and the Experience of Children
Orphaned by AIDS, 41 U.C. DAVIS L. REV. 417, 429 (2007) ([S]treet children are
vulnerable to a host of abuses, including violence at the hands of the police.).
56. See Piwowarczyk, supra note 11.
57. 6 U.S.C. 279(g)(2) (2006). This Note will use the term unaccompanied minor
when referring to an unaccompanied alien child.
58. Id.
59. INA 208, 8 U.S.C. 1158 (2006).
60. INA 241(b)(3), 8 U.S.C. 1231(b)(3).
61. See Convention Against Torture, supra note 20, at art. 3, S. TREATY DOC. NO. 100-
20 at 6, 1465 U.N.T.S. at 114.
62. See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 428 nn.5 & 6 (1987).
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918 NEW ENGLAND LAW REVIEW [Vol. 44:909

removal requires the applicant to satisfy a higher standard of proof.63

Withholding of removal is a mandatory form of relief despite the fact that it
affords fewer benefits when compared to asylum.64

A. Applicants Burden of Proof

1. Asylum
An asylum applicant holds the burden of demonstrating he or she
satisfies the definition of refugee.65 This requires establishing either an
experience of past persecution66 or a well-founded fear of future
persecution, on account of the individuals race, religion, nationality,
membership in a particular social group, or political opinion,67 if returned
to his or her prior country of residence.68 The Attorney General possesses
discretion in granting asylum,69 and utilizes both subjective and objective

63. Compare I.N.S. v. Stevic, 467 U.S. 407, 413 (1984) (stating that an alien seeking
relief through withholding of removal must demonstrate a clear probability of persecution
to avoid deportation), with 8 U.S.C. 1158(b)(1)(B)(i) (The burden of proof is on the
applicant to establish that the applicant is a refugee, within the meaning of section
1101(a)(42)(A) of this title.). Under 1101(a)(42)(A), a refugee must establish a well-
founded fear of persecution. 8 U.S.C. 1101(a)(42)(A).
64. See Cardoza-Fonseca, 480 U.S. at 423-24.
65. See INA 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i). Refugee is defined as:
[A]ny person who is outside any country of such persons nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion.
8 U.S.C. 1101(a)(42)(A).
66. See 8 U.S.C. 1101(a)(42)(A). Persecution includes threats to life, confinement,
torture, and economic restrictions so severe that they constitute a real threat to life or
freedom. Lin v. I.N.S., 238 F.3d 239, 243-44 (3d Cir. 2001); see also De Souza v. I.N.S.,
999 F.2d 1156, 1158 (7th Cir. 1993) (defining persecution as the punishment or the
infliction of harm for political, religious, or other reasons that this country does not
recognize as legitimate); Kovac v. I.N.S., 407 F.2d 102, 107 (9th Cir. 1969) (defining
persecution as the infliction of suffering or harm upon those who differ (in race, religion,
or political opinion) in a way regarded as offensive).
67. 8 U.S.C. 1101(a)(42)(A); see INA 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i).
68. See Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003).
69. Cardoza-Fonseca, 480 U.S. at 427 & n.5.
It is important to note that the Attorney General is not required to grant
asylum to everyone who meets the definition of refugee. Instead, a
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2010] STREET CHILDREN AS A PARTICULAR SOCIAL GROUP 919

inquiries.70 The subjective component is satisfied by proof that the fear is

genuine.71 The objective component is satisfied by proof that the aliens
subjective fear is reasonable in light of all of the recorded evidence.72

2. Withholding of Removal
Withholding of removal prohibits the removal of an individual when
there is a clear probability of persecution if returned to his or her home
country.73 An applicant must demonstrate that his or her life or freedom
would be threatened due to the individuals race, religion, nationality,
membership in a particular social group, or political opinion.74 Although
these are the same five grounds required for a refugee seeking protection
through asylum,75 an applicant seeking withholding of removal must satisfy
a higher burden than an asylum applicant.76

3. Protection Under the Convention Against Torture

The burden of proof for a CAT claim requires the applicant to
establish that it is more likely than not that he or she would be tortured if
removed to the proposed country of removal. The testimony of the

finding that an alien is a refugee does no more than establish that the
alien may be granted asylum in the discretion of the Attorney General.
Id. at 428 n.5 (internal quotations omitted).
70. See id. at 450 (Blackmun, J., concurring) (Thus, as the Court observes, . . . the very
language of the term well-founded fear demands a particular type of analysisan
examination of the subjective feelings of an applicant for asylum coupled with an inquiry
into the objective nature of the articulated reasons for the fear. (internal citation omitted)).
71. This element is satisfied if an applicant presents candid, credible, and sincere
testimony demonstrating a genuine fear of persecution. Chen v. I.N.S., 195 F.3d 198, 201-
02 (4th Cir. 1999) (quoting Berroteran-Melendez v. I.N.S., 955 F.2d 1251, 1256 (9th Cir.
1992)).
72. In order to satisfy this element, the applicant must establish specific, concrete facts,
that a reasonable person in like circumstances would fear persecution. Id. at 202. See also
Guo v. Ashcroft, 386 F.3d 556, 564-65 (3d Cir. 2004) (finding applicants testimony
credible and thus demonstrating a subjective fear when applicant stated, [i]f I was sent
back to China, I will be forcibly aborted. If I was sent back after I delivered the second
child, either my husband or I will be sterilized by [the] Chinese government because we
violated [its] family planning policy).
73. See Cardoza-Fonseca, 480 U.S. at 430 (relying on I.N.S. v. Stevic, 467 U.S. 407,
428 (1984)).
74. INA 241(b)(3)(A), 8 U.S.C. 1231(b)(3)(A) (2006).
75. Compare id., with INA 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i).
76. See Stevic, 467 U.S. at 428 (rejecting the notion that every alien who qualifies as a
refugee is entitled to withholding of removal as well as asylum); Cardoza-Fonseca, 480
U.S. at 449 (rejecting the view that the clear evidence of persecution necessary to show
entitlement to withholding of removal also governs asylum applications).
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920 NEW ENGLAND LAW REVIEW [Vol. 44:909

applicant, if credible, may be sufficient to sustain the burden of proof

without corroboration.77 The more likely than not standard of proof has
no subjective component, but instead requires the alien to establish, by
objective evidence, that it is more likely than not that he or she will be
subject to torture upon removal.78 In determining whether it is more likely
than not that the individual would be tortured, the factors and evidence
related to the possibility of future torture that must be considered include:
(i) Evidence of past torture inflicted upon the applicant; (ii)
Evidence that the applicant could relocate to a part of the country
of removal where he or she is not likely to be tortured; (iii)
Evidence of gross, flagrant or mass violations of human rights
within the country of removal, where applicable; and (iv) Other
relevant information regarding conditions in the country of
removal.79
To qualify for CAT relief, however, the applicant must show that the harm
feared meets the definition of torture.80 Additionally, an applicant must
further demonstrate that each link in the events that would result in torture
must be more likely than not.81 The likelihood of being tortured is
determined in a future analysis,82 and once the burden is met, the applicant
is automatically granted CAT relief.83

77. 8 C.F.R. 208.16(c)(2) (2009).

78. See Cardoza-Fonseca, 480 U.S. at 430 (stating that when evaluating the well
founded fear in an asylum claim, the Court performed a subjective inquiry but failed to do
so when assessing the eligibility for withholding of removal).
79. 8 C.F.R. 208.16(c)(3)(i-iv).
80. Id. 208.16(c)(2). Torture is:
[A]ny act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining from
him or her or a third person information or a confession, punishing him
or her for an act he or she or a third person has committed or is
suspected of having committed, or intimidating or coercing him or her
or a third person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in
an official capacity. . . . Torture does not include pain or suffering
arising only from, inherent in or incidental to lawful sanctions.
Id. 208.18(a)(1), (3).
81. See id. 208.16(c)(2).
82. Id.
83. See id. 208.16(c)(4).
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2010] STREET CHILDREN AS A PARTICULAR SOCIAL GROUP 921

B. A Particular Social Group and Street Children

Although benefits associated with asylum have the greatest appeal,
street children often have a difficult time presenting a successful asylum
claim.84 With regard to the five groups an asylum claim can be based on, a
street child will most likely attempt to argue that street children
constitute a particular social group. Problems with such a claim quickly
develop, however, because courts have struggled with defining particular
social group.85
The term was first defined in In re Acosta as a group of persons all
of whom share a common, immutable characteristic.86 Such shared
characteristics are usually innate such as sex, race, familial ties, or a shared
past experience.87 The common characteristics that define the group must
either be so fundamental to the members identity or be ones that the
members have no ability to change.88 Additionally, the social group must
be highly visible and well known in the country of origin.89
Courts have recognized women under the threat of genital
mutilation,90 gays and lesbians,91 and children with serious and long-lasting
disabilities being cared for by parents, as individuals who are members of a
particular social group.92 Conversely, courts have failed to recognize young
males of military age who did not serve in the military,93 minors with gang-
related tattoos,94 and adult women who were raped and abused when
children, as members of a particular social group.95 Although there are an
alarming number of children living on the streets throughout the world, all

84. See, e.g., Escobar v. Gonzales, 417 F.3d 363, 365-67 (3d Cir. 2005) (failing to
recognize street children as a particular social group).
85. See Monica Fanesi, Note, Relief Pursuant to the Convention Against Torture: A
Framework for Central American Gang Recruits and Former Gang Members to Fulfill the
Consent or Acquiescence Requirement, 13 ROGER WILLIAMS U. L. REV. 308, 316 (2008).
86. 19 I. & N. Dec. 211, 233 (B.I.A. 1985).
87. See id.
88. See id.
89. See Fanesi, supra note 85, at 316-17.
90. See, e.g., In re Kasinga, 21 I. & N. Dec. 357, 365 (B.I.A. 1996) (finding that young
women from the Tchamba-Kunsuntu Tribe who had not had female genital mutilation and
opposed it were members of a particular social group).
91. See, e.g., Toboso-Alfonso, 20 I. & N. Dec. 819, 822 (B.I.A. 1990).
92. See, e.g., Tchoukhrova v. Gonzales, 404 F.3d 1181, 1188-89 (9th Cir. 2005).
93. See, e.g., Sanchez-Trujillo v. I.N.S., 801 F.2d 1571, 1575-77 (9th Cir. 1986).
94. See, e.g., Castellano-Chacon v. I.N.S., 341 F.3d 533, 549 (6th Cir. 2003) (rejecting
tatooed youth as constituting a social group).
95. See, e.g., Gomez v. I.N.S., 947 F.2d 660, 664 (2d Cir. 1991).
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922 NEW ENGLAND LAW REVIEW [Vol. 44:909

of whom face similar struggles due to their similar situations, courts have
failed to recognize such children as members of a particular social group.96
For example, in Escobar v. Gonzalez, Escobar was a nine-year-old
boy when he ran away from his family and began his life on the streets of
Honduras.97 He was physically abused by gangs, and the police refused to
protect him.98 He fled to Mexico and then to the United States.99 He was
taken into custody, and an immigration judge refused to grant Escobars
claim for asylum or withholding of removal.100 Upon appeal, the Third
Circuit recognized that Escobars claim rested on issues of poverty,
homelessness, and youth.101 These issues and conditions exist beyond
Honduras, however, and the court reasoned that because impoverished
children live in every country throughout the world, it was impossible to
distinguish Escobar from children living in similar depressing conditions
in, for example, Guatemala;102 the presence of such universal conditions
were insufficient to satisfy Escobars claim, and the court failed to
recognize street children as members of a particular social group.103

C. Children, Specialized Needs, and Application for Asylum

Asylum law has generally taken an adult-centered approach where a
child and adult were viewed under the same standards, as there was no
distinction within the statutory language.104 Many have argued that [b]y
not distinguishing unaccompanied minors from adults, the law gives no
consideration to childrens unique difficulties in satisfying the same legal
standards.105 On December 23, 2008, however, President Bush signed the
William Wilberforce Trafficking Victims Protection Reauthorization Act of
2008.106 This Act amends Title 8, 1158 of the United States Code and

96. See, e.g., Escobar v. Gonzales, 417 F.3d 363, 368 (3d Cir. 2005).
97. Id. at 364.
98. Id.
99. Id.
100. See id. at 365.
101. Id. at 367.
102. See Escobar, 417 F.3d at 367.
103. See id. at 367-68.
104. See INA 208, 8 U.S.C. 1158 (2006) (failing to distinguish between minors and
adults); Dalrymple, supra note 41, at 139.
105. See, e.g., Dalrymple, supra note 41, at 139; see also Danuta Villarreal, Comment,
To Protect the Defenseless: The Need for Child-Specific Substantive Standards for
Unaccompanied Minor Asylum-Seekers, 26 HOUS. J. INTL. L. 743, 763 (2004) (criticizing
the fact that child asylum claims are examined under the same standards as adults).
106. Pub. L. No. 110-457, 122 Stat. 5044 (to be codified as amended in scattered sections
of 8 and 22 U.S.C.); see United States Senate Committee on the Judiciary, 110th Congress:
Bills Considered by the Senate Judiciary Committee, http://judiciary.senate.gov/
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2010] STREET CHILDREN AS A PARTICULAR SOCIAL GROUP 923

establishes a distinction between child and adult asylum applicants.107 This

Act was first developed in 2000, and was subsequently reauthorized in
2003, 2005, and again in 2008.108 This legislation aims at combating human
trafficking through the use of law enforcement.109 The 2008 reauthorization
aims to help victims of trafficking, and also provides [p]ermanent
[p]rotection for [c]ertain [a]t-[r]isk [c]hildren.110 In order to achieve such
goals, the Act calls for a change in the access to asylum protections and
specifically, the amendment states:
Applications for asylum and other forms of relief from removal
in which an unaccompanied alien child is the principal applicant
shall be governed by regulations which take into account the
specialized needs of unaccompanied alien children and which
address both procedural and substantive aspects of handling
unaccompanied alien childrens cases.111

III. Street Children as Unaccompanied Minors and an Examination of

Their Specialized Needs112
Poverty and familial breakdown are consistently responsible for the
plight of a majority of street children,113 who may be as young as nine.114

legislation/110thCongress.cfm? (last visited May 1, 2010).

107. Compare 8 U.S.C. 1158, with 235, 122 Stat. at 5081 (to be codified at 8 U.S.C.
1232).
108. See Victims of Trafficking and Violence Protection Act of 2000, Pub. L. No. 106-
386, 114 Stat. 1464; Trafficking Victims Protection Reauthorization Act of 2003, Pub. L.
No. 108-193, 117 Stat. 2875; Trafficking Victims Protection Reauthorization Act of 2005,
Pub. L. No. 109-164, 19 Stat. 3558; William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044.
109. See generally William Wilberforce Trafficking Victims Protection Reauthorization
Act of 2008, 122 Stat. 5044.
110. See 235, 122 Stat. at 5079.
111. 235, 122 Stat. at 5081. There have not been any cases or further information
interpreting this Act, and thus there are little resources available to further explain such a
reauthorization.
112. When reading the following analysis, it is important to remember that asylum is a
discretionary remedy. [T]he Attorney General is not required to grant asylum to everyone
who meets the definition of refugee. Instead, a finding that an alien is a refugee does no
more than establish that the alien may be granted asylum in the discretion of the Attorney
General. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987). With the William
Wilberforce Trafficking Victims Protection Reauthorization Act, which requires an
immigration judge to consider the specialized needs of an unaccompanied minor, the scope
of this Note therefore focuses on the specialized needs associated with street children who
arrive in the United States as unaccompanied minors.
113. See, e.g., Georgopoulos, supra note 53 (describing how a fifteen-year-old boy from
Honduras fled in order to escape the abuse inflicted upon him by his step-father and gangs);
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924 NEW ENGLAND LAW REVIEW [Vol. 44:909

With children under eighteen years old constituting nearly half of the
refugee population throughout the world,115 there are large numbers of
street children who, under the age of eighteen, abandon their homes and
family and travel to the United States.116 When they arrive in the United
States they are found without legal status,117 and because they are under the
age of eighteen and without a parent or legal guardian, they are classified
as unaccompanied minors for immigration purposes.118 If seeking relief on
asylum grounds, such a child will have his or her specialized needs
accounted for under the William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008.119 An examination of a street
childs specialized needs will reveal that the persecution he or she faces
within the country of origin is a direct result of the street environment and
such needs are further exacerbated by the childs age;120 because childhood

Piwowarczyk, supra note 11, at 263-64 (detailing the story of a young boy who was
abandoned by his mother when he was five because she became pregnant, was poor, and
could no longer care for him).
114. See Wexler, supra note 10, at 549.
115. Dalrymple, supra note 41, at 133; Hillary Mayell, Refugee Children, Victims of War
and Want, NATL GEOGRAPHIC NEWS, June 19, 2003, http://news.national
geographic.com/news/pf/30908037.html (Of the 35 million people who have had to flee
their homes in the face of persecution and armed conflict, more than 17 million are
children.).
116. Dalrymple, supra note 41, at 133 (Each year about five thousand children under the
age of eighteen enter the United States without legal guardians . . . .).
117. See Huyen Pham, The Private Enforcement of Immigration Laws, 96 GEO. L.J. 777,
782 (2008) ([T]here are those who initially arrive without legal status (like applicants for
political asylum) but then, as allowed by U.S. law, take steps to legalize their presence.).
118. 6 U.S.C. 279(g)(2) (2006) (defining unaccompanied alien child). Children
entering the United States from Mexico and Central America constitute the largest group of
unaccompanied children. Piwowarczyk, supra note 11, at 266. It is difficult to estimate the
prevalence of unaccompanied minors throughout the United States. See OLGA BYRNE,
UNACCOMPANIED CHILDREN IN THE UNITED STATES: A LITERATURE REVIEW iii (Vera Inst. of
Justice ed., 2008) (articulating that there is indeed a lack of any systematic research
performed on unaccompanied children and their migration to the Unites States). In 1990, out
of the 8500 children arrested by the INS, seventy percent were unaccompanied. See Reno v.
Flores, 507 U.S. 292, 295 (1993). In 2001, the INS detained 5385 unaccompanied
immigrant children in the United States. Georgopoulos, supra note 53, at 118 (explaining
that this number has near doubled since 1997, which at the time was 2375).
119. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008,
Pub. L. No. 110-457, 235, 122 Stat. 5044, 5081 (to be codified at 8 U.S.C. 1232).
120. See Piwowarczyk, supra note 11, at 278-83 (detailing the trauma and violence to
which street children are exposed, which disrupts the childs emotional and developmental
maturity); see also Devon A. Corneal, On the Way to Grandmothers House: Is U.S.
Immigration Policy More Dangerous Than the Big Bad Wolf for Unaccompanied Juvenile
Aliens?, 109 PENN ST. L. REV. 609, 615 (2004) ([C]hildren are increasingly becoming the
targets of abuses directed at them because of their age . . . .) (quoting WOMENS
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2010] STREET CHILDREN AS A PARTICULAR SOCIAL GROUP 925

is an immutable characteristic, a street child arriving unaccompanied in the

United States may now constitute a particular social group for asylum
purposes.121

A. Street Childrens Specialized Needs: Resulting from Their

Environment and Age
Living in an environment dominated by violence and stricken by
poverty, street children experience severe physical and mental health
problems.122 An impoverished lifestyle, for example, leads to infection and
poor nutrition, which then physically deteriorates a childs health and well-
being.123 Health risks are heightened for these children when their physical
safety is jeopardized while police and gangs lurk and inflict brutal acts of
violence upon the children.124 Police target street children and view them as
deviants specifically because they are physically worn down and mentally
undeveloped;125 they are vulnerable.126

COMMISSION FOR REFUGEE WOMEN AND CHILDREN, PRISON GUARD OR PARENT?: INS
TREATMENT OF UNACCOMPANIED REFUGEE CHILDREN 4 (2002)).
121. Although Escobar v. Gonzalez held that street children failed to constitute a
particular social group, this Note is distinguishable. Escobar was not an unaccompanied
minor, he was protected by a legal guardian and was accompanied, and therefore the
William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 would not
mandate an immigration judge to consider his specialized needs resulting from living as a
street child.
122. Street life is associated with stress and children witness and endure traumatic events.
See National Child Traumatic Stress Network, Understanding Child Traumatic Stress,
http://www.nctsnet.org/nccts/nav.do?pid=ctr_aud_prnt_under (last visited May 1, 2010)
[hereinafter Understanding Child Traumatic Stress] (summarizing the effects children face,
developmentally and emotionally, after they experience trauma).
123. See STATE OF THE WORLDS CHILDREN, supra note 40, at 5-6. Malnutrition not only
weakens children physically, it also impairs their ability to learn. Id. at 6.
124. See id. at 41.
Street children often find themselves in conflict with the police and
other authorities and have been harassed or beaten by them. They have
been rounded up, driven outside city limits and left there. And they have
been murdered by vigilantes in the name of cleaning up the city, often
with the complicity or disregard of local authorities.
Id.
125. See Wexler, supra note 10, at 550 (The most frightening manifestation of this view
is the emergence of death squads: self proclaimed vigilantes, many of whom are involved
with security firms and the police and seek to solve the problem [of street children] by
elimination.) (quoting Thomas J. Scanlon et al., Street Children in Latin America, 316
BRIT. MED. J. 1596, 1598 (1998)).
126. STATE OF THE WORLDS CHILDREN, supra note 40, at 40.
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926 NEW ENGLAND LAW REVIEW [Vol. 44:909

Such exposure to violence and trauma causes severe adverse

developmental impacts on a child.127 Many children experience and exhibit
symptoms of posttraumatic stress disorder and depression.128 Witnessing
and experiencing the extreme violence on the streets impairs a childs brain
development and delays a childs ability to cope and respond to future
dangers like those changes found among combat veterans.129 Reactions to
trauma and its impact on the childs mental health drastically alter the level
of stress hormones within the child.130 The hormonal imbalance then
negatively impacts a childs ability to function appropriately in future
stressful situations.131 Street children are thus left extremely vulnerable
both mentally and physically as a result of the impoverished living
situations and exposure to violence: Those who are neglected or abused in
the first years of life suffer damage from which they may never fully
recover and that may prevent them from reaching their full potential as
older children, adolescents and eventually as adults.132
Children are subjected to these health problems because of the
conditions of the streets and are left in a vulnerable state both physically
and mentally.133 These children are targeted by the police and specifically
recruited by gangs because they are young and thus vulnerable.134 The
most vulnerable children are those who are poor, separated from their
families, displaced from their homes, orphaned, living in or near a combat
zone, or with limited access to education.135 Similar to incidents of other
human rights violations, like sex trafficking and recruitment of child

127. The age of the child experiencing abuse affects the development issues that follow.
See CHILD WELFARE COMMITTEE, supra note 44, at 10-13. See generally Videotape:
Children of War: Video for Educators (National Child Traumatic Stress Network 2005).
128. See Understanding Child Traumatic Stress, supra note 122. Posttraumatic Stress
Disorder (PTSD) is used when posttraumatic stress reactions are serious, continue, and
interfere with the daily functioning of children and adolescents. Id.
129. See id.; CHILD WELFARE COMMITTEE, supra note 44, at 14-15 (noting that trauma
affects a childs ability to learn and hinders brain development).
130. Understanding Child Traumatic Stress, supra note 122.
131. See id.
132. STATE OF THE WORLDS CHILDREN, supra note 40, at 5-6.
133. See id.
134. See Corneal, supra note 120.
135. TODRES ET AL., supra note 54, at 304; see also Matthew D. Muller et al.,
Practitioners Section on Representing Undocumented Minors in U.S. Courts: Escobar v.
Gonzales: A Backwards Step for Child Asylum Seekers and the Rule of Law in Particular
Social Group Asylum Claims, 10 U.C. DAVIS J. JUV. L. & POLY 243, 243-44 (2006). A
Honduran expert testified that street children there are marginalized by the general
population, blamedoften unjustlyfor committing crimes, and targeted for vigilante
justice. Homeless children are at a high risk of gang violence . . . are forced to commit
crimes for gangs and the police, and are exploited financially and sexually. Id.
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2010] STREET CHILDREN AS A PARTICULAR SOCIAL GROUP 927

soldiers, a childs fragile physical and mental state combined with their
level of immaturity makes them favored targets as they are easy to direct,
control, and manipulate.136 A street childs specialized needs are therefore a
direct result of the streets environment coupled with the developmental
stagesemotional and physicalof childhood.137

B. The Acosta Formula: Childhood as an Immutable Characteristic

Under Acosta, the Board of Immigration Appeals (B.I.A.) defined
particular social group as a group of persons all of whom share a common,
immutable characteristic. . . . that the members of the group either cannot
change, or should not be required to change because it is fundamental to
their individual identities or consciences.138 A street childs specialized
needssevere physical and mental weaknesses accompanied with
developmental delayssurface after living on the streets and from
exposure to extreme acts of violence.139 Children are at a stage in which

136. TODRES ET AL., supra note 54, at 304. Street children are one example of a group of
children who experience violence because of their age, but this incident of abuse is on the
rise as children are increasingly becoming the targets of abuses directed at them because
of their age, including bonded labor, child trafficking, child prostitution, sexual servitude,
child pornography, child marriages, life as street children, and female genital mutilation.
See Corneal, supra note 120, at 615 (quoting WOMENS COMMISSION FOR REFUGEE WOMEN
AND CHILDREN, PRISON GUARD OR PARENT?: INS TREATMENT OF UNACCOMPANIED REFUGEE
CHILDREN 4 (2002)).
137. See Understanding Child Traumatic Stress, supra note 122 (In early childhood, the
brain is growing. During these early years, neglect, physical, sexual, and emotional abuse
can affect the normal development of the brain . . . .).
138. In re Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985) (emphasis added). This
definition has been adopted by several circuits. Niang v. Gonzales, 422 F.3d 1187, 1199
(10th Cir. 2005) (We agree that the term social group is ambiguous and find the [Acosta
formula] to be reasonable. . . . [and] is therefore a permissible construction of the statute to
which we must defer.); Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir. 1993) (We have no
doubt that [the Acosta formula] is a permissible construction of the relevant statutes, and we
are consequently bound to accept it.). See also Tapiero De Orejuela v. Gonzales, 423 F.3d
666, 673 (7th Cir. 2005) (holding an educated, landowning class of cattle farmers satisfied
the definition of particular social group); Mohammed v. Gonzales, 400 F.3d 785, 798 (9th
Cir. 2005) (concluding that an applicants claim of persecution due to her membership in a
particular social group existed, whether it be defined as the social group comprised of
Somalian females, or a more narrowly circumscribed group, such as young girls in the
Benadiri clan . . . reflects a plausible construction of our asylum law).
139. See generally EVGENIA BEREZINA, VICTIMIZATION AND ABUSE OF STREET CHILDREN
WORLDWIDE 2 (2004), available at http://www.yapi.org/rpstreetchildren.pdf (explaining that
police in Latin American countries are notorious for their vicious behavior toward street
children); see Understanding Child Traumatic Stress, supra note 122 (detailing the type of
mental and physical responses children experience after traumatic and violent events).
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928 NEW ENGLAND LAW REVIEW [Vol. 44:909

they are not developmentally mature.140 The streets environment exposes

the childs vulnerabilities and intensifies the childs specialized needs; the
child faces further mental and physical weaknesses and developmental
delays.141 A street childs specialized needs therefore originate from their
youth, health, and vulnerability all of which are caused by the
developmental stages of childhood and which are then exacerbated by the
extreme conditions of the streets upon which they live;142 these are
immutable characteristics which satisfy the Acosta formula143 and permit an
unaccompanied street child to seek asylum-based relief.144

C. Street Childrens Specialized Needs Derive from Immutable

Characteristics, Thus Mandating Recognition as a Particular
Social Group for Purposes of Asylum.
An asylum applicant must demonstrate that she or he was persecuted
in the past or possesses a well-founded fear of persecution in the future due
to the individuals race, religion, nationality, membership in a particular
social group, or political opinion.145 For those street children who are
unaccompanied minors, the B.I.A. must now consider the minors
specialized needs when determining whether to grant relief.146 The childs
specialized needs stem from the fact that the child resides in filth, is
malnourished, and poorly educated. Such children are then targeted and
recruited by gangs and abused by the police.147 The violence inflicted upon
them adversely affects their mental, physical, and emotional well-being,
which is already in a vulnerable state due to the natural developments

140. See Understanding Child Traumatic Stress, supra note 122 (explaining the physical,
mental, and emotional development changes of children).
141. The traumatic stress resulting from living on the street can lead to extreme changes
concerning brain development. See id.
142. See supra notes 139-141 and accompanying text.
143. See In re Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985).
144. See INA 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i) (2006); William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 235,
112 Stat. 5044, 5081 (amending 8 U.S.C. 1158 by requiring consideration of an
unaccompanied minors specialized needs for asylum purposes).
145. INA 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i).
146. See 235, 122 Stat. at 5081.
147. See Jennifer Bol, Using International Law to Fight Child Labor: A Case Study of
Guatemala and the Inter-American System, 13 AM. U. INT L L. REV. 1135, 1169-70 (1998)
(Casa Alianza, an organization that works with street children in Guatemala City, estimates
that most street children eat less than one meal per day. Health problems include skin,
dental, gastro-intestinal and respiratory problems, trauma, and sexually transmitted diseases.
In addition, street children constantly face the threat of violence at the hands of both non-
state and state agents, including the police and the army.).
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2010] STREET CHILDREN AS A PARTICULAR SOCIAL GROUP 929

associated with childhood.148 All street children are young and thus
experience similar vulnerabilitiesthis is something they cannot change
nor should they be required to.149 Such factors constitute immutable
characteristics150 and serve as the underlying reason for why street children
will continually fear persecution within the borders of their home
countries.151 Street children hold immutable characteristics and therefore
satisfy the definition of particular social group for asylum purposes.152 An
unaccompanied street child seeking asylum should therefore apply on the
ground that if returned home, he or she will face persecution due to the
childs membership in a particular social groupliving as a street child.153

1. Age-Based Asylum Claims

An individuals age constituting a basis for asylum relief is not a
novel concept, but instead has been previously recognized by several
courts.154 There are forms of persecution that apply only to children, and
thus the fact that an individual is a childa focus on ones agecan serve
as a basis for an asylum claim.155 For example, youth was recognized and

148. See Maria Bucci, Note, Young, Alone, and Fleeing Terror: The Human Rights
Emergency of Unaccompanied Immigrant Children Seeking Asylum in the United States, 30
NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 275, 280-86 (2004) (discussing vulnerabilities
implicit in the early childhood years). Juvenile immigrants to the United States are
generally vulnerable youths seeking safety, reunification, or opportunity. Piwowarczyk,
supra note 11, at 274. Children fleeing persecution, for example, are often faced with many
distressing hurdles, especially if they are unaccompanied by an adult. Id. at 280.
149. See Uram, supra note 54, at 938 ([U]naccompanied refugee children seeking
asylum are some of the most vulnerable people in the world.).
150. See Muller et al., supra note 135, at 246 (Street children . . . will eventually grow
older, but for the duration of childhood their status as youths is fundamental and
immutable.).
151. The police, after all, target these children and view them as deviants. See McHale,
supra note 47, at 813-16.
152. See Muller et al., supra note 135, at 246 (agreeing that childhood and youth are
fundamentally immutable); In re Acosta, 19 I. & N. Dec. 211, 233 (B.I.A. 1985) (requiring
immutable characteristics to bring an asylum claim as a member of a particular social
group).
153. See INA 208(b)(1)(B)(i), 8 U.S.C. 1158(b)(1)(B)(i) (2006); In re Acosta, 19 I. &
N. Dec. at 233; Muller et al., supra note 135, at 246 ([T]he duration of childhood [and]
their status as youths [are] fundamental and immutable.).
154. Asylum is based on fear of persecution, and there are specific circumstances that
qualify as child persecution. See Michelle Bran & Christiana Lundholm, Human Rights
Behind Bars: Advancing the Rights of Immigration Detainees in the United States Through
Human Rights Frameworks, 22 GEO. IMMIGR. L.J. 147, 154 (2008).
155. See Jacqueline Bhabha & Wendy A. Young, Through a Childs Eyes: Protecting the
Most Vulnerable Asylum Seekers, 75 INTERPRETER RELEASES 757, 762-66 (1998)
(explaining that child-specific persecution includes infanticide, recruitment as a child
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930 NEW ENGLAND LAW REVIEW [Vol. 44:909

served as a major component for defining a particular social group in In re

Kasinga.156 The B.I.A. granted asylum to a young woman due to her fear of
persecution on the basis that she was a young woman and a member of the
Tchamba-Kunsuntu Tribe.157 This specific tribe practiced female genital
mutilation and, as a young woman, she strongly opposed such practice.158
She did not want to return to her home country for her fear of undergoing
such an invasive act if she returned.159 Existing as a young woman and a
member of the tribe, the B.I.A. held, were immutable characteristics she
could not change, and therefore qualified for membership within a
particular social group:160 Although the asylum applicant in Kasinga
would eventually age out of her youth status, the BIA found youth to be
an integral component in defining her particular social group.161
Other youth-based asylum claims have been granted. For example,
children recruited as soldiers have been recognized as constituting a
particular social group for asylum purposes.162 Involvement in a war
negatively impairs a childs physical, mental, and emotional well being; it
violates their innocence, exploits their particular vulnerability, and
destroys their future.163 Similar to street children, child soldiers are
exposed to disease and abuse, and as one girl explained, I found out that
girls were obliged to have sexual relations to alleviate the sadness of the
combatants. And who alleviated our sadness after going with someone we
hardly knew? There is a great pain in my being when I recall all these
things[,] they trampled my human dignity.164 Just as street children are
targeted by gangs and the police, children are recruited to serve as obedient

soldier, child abuse, incest, female genital mutilation, child labor, and finally child
marriage).
156. See 21 I. & N. Dec. 357, 365 (B.I.A. 1996).
157. Id.
158. See id. at 359.
159. Id.
160. Id. at 365.
161. Wexler, supra note 10, at 563.
162. See, e.g., Lukwago v. Ashcroft, 329 F.3d 157, 178-79 (3d Cir. 2003). In Lukwago,
the court found that a former child soldier satisfied the refugee definition due to a shared
past experience of abduction, torture, and escape with other former child soldiers. His
status as a former child solider is a characteristic he cannot change and one that is now,
unfortunately, fundamental to his identity. Id.
163. Amy Beth Abbott, Note, Child SoldiersThe Use of Children as Instruments of War,
23 SUFFOLK TRANSNATL L. REV. 499, 518 (2000) (internal quotations omitted) (internal
citations omitted).
164. Jennifer R. Silva, Note, Child Soldiers: A Call to the International Community to
Protect Children from War, 31 SUFFOLK TRANSNATL L. REV. 681, 689 (2008) (alterations
omitted) (internal quotations omitted).
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2010] STREET CHILDREN AS A PARTICULAR SOCIAL GROUP 931

soldiers because they can be manipulated and taught to follow

instructions.165
Child soldiers are afforded protection because it is well documented
and accepted that the behavior and violence they are exposed to establishes
a well-founded fear of persecution from a childs viewpoint;166 exposure to
and participation in armed conflict causes posttraumatic stress disorder,
high levels of stress and anxiety, and a mental and psychological
deterioration that negatively interferes with a childs ability to learn and
cope with future stressful situations.167 Similarly, for street children,
separation from ones family, a lack of education, trauma associated with
civil upheaval, living on the street, and prostitution, if experienced by a
child, establishes a well-founded fear of persecution.168 A street child faces
the same emotional, physical, and mental damage as other youth-based
protected groups169 and now, under the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008an Act designed to
protect vulnerable childrenmay seek asylum protection.170

2. Blocking the Floodgate

The statutorily recognized asylum-based groundsrace, religion,
nationality, and political opinionfail to exist as a narrow classification.171
There are, for example, close to twenty-two major religions throughout the
world, many with at least 1,000,000 members.172 Acknowledging the
youth-based asylum claim associated with female genital mutilation in
Kasinga, also encompassing a huge group of individuals, was therefore not
unusual. Due to the fact that each year over 100,000,000 women are

165. Compare id. at 688 (stating that children are vulnerable and are obedient soldiers
because they are taught to follow instructions), with TODRES ET AL., supra note 54, at 304
(stating that children are vulnerable because their physical and mental immaturity allows
them to be manipulated into participating in war/conflict).
166. See Bhabha & Young, supra note 155; see also Annette Lopez, Comment, Creating
Hope for Child Victims of Domestic Violence in Political Asylum Law, 35 U. MIAMI INTER-
AM. L. REV. 603, 610 (2004) (A childs increased dependence may also give rise to
persecution in cases where adults would not be deemed persecuted. This is due in part
because children have distinct needs for support and protection.).
167. See Bucci, supra note 148, at 280-85.
168. See Bhabha & Young, supra note 155, at 762-66.
169. See generally Piwowarczyk, supra note 11, at 278-86.
170. Pub. L. No. 110-457, 235, 122 Stat. 5044, 5079 (creating an amendment to Title 8,
1158 under the section entitled Permanent Protection for Certain At-Risk Children).
171. See, e.g., Major Religions of the World Ranked by Number of Adherents,
http://www.adherents.com/Religions_By_Adherents.html (last visited May 1, 2010).
172. See id.
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932 NEW ENGLAND LAW REVIEW [Vol. 44:909

subjected to and threatened with female genital mutilation,173 many feared

that recognizing such a ground for asylum purposes would create an
immense increase in the number of women seeking asylum protection in
the United States.174 After Kasinga, however, it was reported by the
Immigration and Naturalization Service (INS) that [a]lthough genital
mutilation is practiced on many women around the world, INS has not seen
an appreciable increase in the number of claims based on F[emale]
G[enital] M[utilation].175 Furthermore, the INS announced it did not
expect to see a large number of claims if the U.S. recognized domestic
violence as a basis of asylum.176
Clearly, there are millions of people who may satisfy the asylum
requirements in the United States, yet in 2008 the United States received
[only] 49,000 asylum requests.177 There are varying reasons for why the
number of those who may be eligible for asylum protections fail to venture
to the United States, and for those who do apply, asylum remains a
discretionary form of relief; every application is not automatically
granted.178 Similarly, classifying street children as a particular social group
will not open a flood gate; comparable to other recognized groups who
qualify for asylum protection under U.S. Immigration Law, there are
millions of street children throughout the world who deeply fear
persecution in a home country.179

CONCLUSION
Like the worldwide plague of trafficking in women, men and
children, the problems of street children have reached epidemic
proportions . . . .180 The increasing number of street children throughout
the world can be traced to extreme poverty, lack of employment
opportunities, high birth rates, unfit parents, overcrowding and

173. It is estimated that between 100 million and 140 million girls and women
worldwide have been subjected to [female genital mutilation] procedures, and that about
three million girls and women are at risk of undergoing a [female genital mutilation]
procedure[] every year in Africa. World Health Organization, Report by the Secretariat,
Female Genital Mutilation, EB 122/15 (Jan. 10, 2008), available at http://apps.who.int/gb/
ebwha/pdf_files/EB122/B122_15-en.pdf.
174. See Karen Musalo, Protecting Victims of Gendered Persecution: Fear of Floodgates
or Call to (Principled) Action?, 14 VA. J. SOC. POLY & L. 119, 132 (2007).
175. Id. at 132-33.
176. Id. at 133.
177. Caroline Brothers, Asylum Seekers Increase for 2nd Straight Year, INTL HERALD
TRIB., Mar. 24, 2009.
178. See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 427-28 (1987).
179. Compare Casa Alianza, supra note 2, with Musalo, supra note 174, at 132-33.
180. Protecting Street Children, supra note 8, at 2.
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2010] STREET CHILDREN AS A PARTICULAR SOCIAL GROUP 933

urbanization.181 There has been an influx of street children who flee to the
United States,182 but once in the United States, it is likely that a child will
be apprehended by immigration authorities.183
Although being a street child in the past has failed to satisfy the
definition of particular social group for asylum purposes, the William
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008,
now requires an immigration judge to consider the specialized needs of
an unaccompanied minor during an asylum proceeding.184 For those street
children who flee to the United States without a legal guardian and are
under the age of eighteen, the vulnerabilities and mental, physical, and
emotional developments that are adversely affected from life on the street
must now be examined as specialized needs.185
A street childs age becomes a crucial element for an asylum claim
because the vulnerabilities associated with childhood demonstrate the
specialized needs to which the Act calls attention.186 These vulnerabilities
serve as the underlying reason for why a child lives on the street, why the
child faces brutal violence from the police, and why the child flees to the
United States. They are immutable characteristics that a child cannot
change,187 and [c]hildren, by their inherently vulnerable character, need
special protection.188 When looking at a street childs specialized needs, it
is evident that an unaccompanied street child shall now satisfy the
definition of a particular social group for asylum purposes.189

181. Seitles, supra note 4 (deeming social and economic factors as contributing to the
plight of street children).
182. See Wexler, supra note 10.
183. See Bobo, supra note 12, at 361.
184. Pub. L. No. 110-457, 235, 122 Stat. 5044, 5081.
185. See id.
186. See STATE OF THE WORLDS CHILDREN, supra note 40; Understanding Child
Traumatic Stress, supra note 122.
187. Muller et al., supra note 135, at 246.
188. Bucci, supra note 148, at 284.
189.
While it is apparent that the definition of a social group is a flexible
one, which encompasses a wide variety of groups who do not otherwise
fall within the other categories of race, nationality, religion, or political
opinion, it is also apparent that the term cannot be without some outer
limit . . . .
Castellano-Chacon v. I.N.S., 341 F.3d 533, 549 (6th Cir. 2003). This Note only
extends to those children under eighteen, without a parent or guardian and lack legal status,
and even then, the granting of asylum remains discretionary.