NO WAY OUT REPRESENTING CHILD SOLDIERS IN ASYLUM …2001, there have been an estimated 21 conflicts...

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© Copyright 2009 Center for Victim and Human Rights. No copies or reproductions may be distributed without written authorization by the Executive Director or author of this article.

NO WAY OUT: REPRESENTING CHILD SOLDIERS IN ASYLUM CASES AND ALTERNATE

SOLUTIONS TO THE STRICT LIABILITY EXCLUSION UNDER THE “PERSECUTION OF OTHERS”

CLAUSE

RAIO G. KRISHNAYYA1

“When they came to my village, they asked my older brother whether he was ready to join the

militia. He was just 17 and he said no; they shot him in the head. Then they asked me if I was

ready to sign, so what could I do - I didn't want to die.”

2

I. INTRODUCTION

The recruitment of child soldiers is a problem that encompasses a myriad of global problems

culminating in armed conflict. It raises questions of economic, social, cultural, ethnic, and

educational disparities, and it is linked to some of the most horrendous crimes that the world has

seen: war crimes, genocide, and crimes against humanity.3 As a practical matter, the exact

numbers are unclear, but Human Rights Watch estimates that there are hundreds of thousands of

children under the age of 18 who are serving in either a government or rebel force.4 Those who

would exploit children for armed conflict do not differentiate between boys and girls.5

1 LL.M. candidate 2010, Indiana University – Indianapolis, Indiana, J.D., 2000, DePaul University College of Law, Chicago, Illinois, Executive Director for the Center for Victim and Human Rights, Indianapolis, Indiana.

Since

2001, there have been an estimated 21 conflicts in the world that employ child soldiers, including

places like Nepal, Sri Lanka, Uganda, Chad, Burundi, Liberia, Sierra Leone, Colombia, and

2 Statement of a child soldier from the Democratic Republic of Congo. Coalition to Stop the Use of Child Soldiers at http://www.child-soldiers.org/childsoldiers/voices-of-young-soldiers (last visited Dec. 1, 2007). 3 For example, consider the case of Lubanga Diylo who has been charged with war crimes in the International Criminal Court, specifically, violations of Article 25 (3) of the Rome Statute with regard to the enlisting of children under the age of fifteen. Warrant of Arrest at 2, Situation in the Democratic Republic of Congo in the Case of the Prosecutor v. Thomas Lubanga Diylo, No. ICC-01/04-01/06 (Feb. 10, 2006), http://www.icc-cpi.int/library/cases/ICC-01-04-01-06-2_tEnglish.pdf (last visited Nov. 30, 2007). 4 Human Rights Watch, Facts About Child Soldiers, (2007), http://hrw.org/campaigns/crp/fact_sheet.html (last visited Nov. 30, 2007). 5 Supra, note 3.

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Angola.6

This paper begins by examining States’ obligations regarding child soldiers under

international law. Some non-governmental organizations have determined that the issue of child

soldiers raises questions of international human rights law, international criminal law,

international humanitarian law, and international labor law.

This is only a partial list. Although, there is no question about whether this is a

problem that must be addressed, the question is how to address it.

7

With regard to the issue of children (defined as a person under the age of 18)

Each of these bodies of

international law reflect a State’s specific responsibilities as related to the unique characteristics

of child soldiers as children, participants in armed conflict, as well as perpetrators of crimes

related to the persecution of others. 8 generally, a

State’s responsibilities are defined by the Convention on the Rights of the Child (CRC) and its

relevant protocols. The CRC mandates that “State Parties shall take all feasible measures to

ensure that members of their armed forces who have not attained the age of 18 years do not take

a direct part in hostilities.”9

1. Armed groups, distinct from the armed forces of a State, should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.

Article 4 of the Optional Protocol imposes the responsibilities on

both military bodies as well as non-State militias:

2. State Parties shall take all feasible measures to prevent such recruitment and

use, including the adoption of legal measures necessary to prohibit and criminalize such practices.10

However, the fact that there are hundreds of thousands of child soldiers indicates that the

success of meeting these obligations is limited. Furthermore, as a practical matter, as will be

6Human Rights Watch, Child Soldiers, (2007), http://hrw.org/campaigns/crp/index.htm (last visited Nov. 30, 2007). 7 Human Rights Watch, International Legal Standards Governing Child Soldiers, (2007), http://www.humanrightswatch.org/campaigns/crp/int-law.htm (last visited Nov. 30, 2007). 8 Convention on the Rights of the Child, art. 1, Sept. 2, 1990. 9 Convention on the Rights of the Child, supra note 7, at art. 38. 10 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, art. 4, Feb. 2, 2002.




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later described, children recruited into military units or militias face powerful and devastating

conditions that leave them only with the choice of joining and pledging their allegiance to their

warlord, risking imminent death or serious injury, or trying to flee.

This article will examine the ramifications of a child soldier who has decided to escape by

seeking asylum, specifically under U.S. law.11

The first part will lay the foundation of States’

obligations to asylum seekers through international law. The second part of this article will

provide the statutory requirements for seeking asylum and will present the problems specifically

faced by child soldiers as asylum seekers. The third part will propose that the prohibition against

granting asylum on the basis of participation in the persecution of others should include an intent

requirement. Also, the fourth section will propose the inclusion of an affirmative defense. Such

defense would grant asylum on the basis that the acts in question would be covered under the

Geneva Conventions and therefore could not be considered persecution. Both of these are

considered in light of the fact that child soldiers may not have the requisite intent to commit the

acts of persecution in light of their age and the specific conditions under which they are

recruited. This paper will conclude by calling for amendment to the INA to include these

provisions such that children who are utilized in armed conflict can still be granted asylum.

II. INTERNATIONAL OBLIGATIONS

The most pertinent international treaty related to the asylum status of child soldiers would be

the Convention Relating to the Status of Refugees (Refugee Convention). The Refugee

Convention, entered into force in 1954, was an attempt to balance the burden on States that

accept refugees versus the needs of the refugees to seek a safe haven. “Refugee” under the

Refugee Convention is defined as follows:

11 The term refugee is not used here because this article presumes that the child soldier would either be present in the United States and either applying for asylum or would be asserting asylum as a defense in a removal proceeding. However, this article presumes that some of the same concepts would be equally applicable for a refugee seeking to enter the U.S.




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Any person who…has well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.12

Article 33 of the Refugee Convention imposes upon States the burden that they may not

“expel or return a refugee in any manner…where his life or freedom would be threatened….”13

It might be argued that these obligations stem from broader concepts embodied in the Universal

Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political

Rights (ICCPR). Specifically, Article 2 of the UDHR states that “everyone is entitled to all the

rights and freedoms set forth in this declaration, without discrimination of any kind, such as race,

colour, sex, language, religion, political, or other opinion, national, or social origin, property,

birth or other status.”14 The UDHR delineates other rights, which could be construed as negative

rights, consistent with those same rights as articulated under the U.S. Constitution. However, the

UDHR is widely considered aspirational and therefore unenforceable, in that it creates no private

right under domestic law.15 Subsequently, one would turn to the language of Article 12 of the

ICCPR, which grants an individual the right to “choose his residence.”16

12 Convention relating to the Status of Refugees, art 1, April 22, 1954 [hereinafter Refugee Convention]. Note that article 1 originally stated that “[a]s a result of the events occurring before 1 January 1951….” However, this was amended by the Protocol Relating to the Status of Refugees, in which the phrase was removed, thus making the Convention applicable without any temporal limitations.

Therefore, an argument

exists that international law creates an individual right for a person to be free from persecution in

his or her State of residence, and where the State has failed to uphold this obligation, the

individual may seek asylum elsewhere. Thus, although arguably international law creates an

13 Refugee Convention, supra note 11, art. 33. 14 Universal Declaration of Human Rights, art. 2, Dec. 10, 1948. 15 JEFFREY L. DUNOFF, STEVEN R. RATNER, & DAVID WIPPMAN, INTERNATIONAL LAW NORMS, ACTORS, PROCESS 447 (2006) [hereinafter Dunoff, International Law]. 16 International Covenant on Civil and Political Rights, art. 12, March 26, 1976.




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enforceable individual right, that right is only enforceable through domestic legal regimes,

especially in the context of individual rights.17

Furthermore, international law recognizes the difficulty in balancing these interests as

articulated in the preamble to the Refugee Convention:

The result is that States create laws seeking to

balance their international obligations with national interests.

[c]onsidering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation.18

In that spirit, the Refugee Convention allows States to prohibit granting asylum to those

who represent a threat to national security or to those who have committed serious crimes.19 It

also allows States to preclude individuals from obtaining asylum if they are able to avail

themselves of the protections of another State or if the individual decides to retain their

citizenship in the country they were originally seeking to flee.20

However, the Refugee Convention and its relevant protocols allow a State-party to

balance its obligations to admit refugees with other interests, such as national security, resource

considerations, etc.

21 With regard to the ICCPR, the U.S. is a party to this body of law; however,

the reservations, understandings, and declarations filed by the U.S. indicate ratification of the

ICCPR was not intended to provide an enforceable right of action under domestic law.22

17 DUNOFF, INTERNATIONAL LAW, supra note 14, at 267.

Thus,

although these treaties exist, important to realize is that although the rights of an asylum seeker

18 Refugee Convention, supra note 11. 19 Refugee Convention, supra note 11, at art. 1. 20 Refugee Convention, supra note 11. 21 See generally, Refugee Convention, supra note 11. It is worthy of note that the U.S. has not ratified but has signed the Refugee Convention. However, the U.S. is a signatory and the question of whether the obligations imposed by the Refugee Convention are binding upon the U.S. under customary international law is still open for debate. However, this is not an issue that will be addressed in this article. 22 See, Senate Committee on Foreign Relations, Report on the International Covenant on Civil and Political Rights, Senate Exec. Rep. 102-103 (102d Cong. 2d Sess. 1992).




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may seem broad, international law recognizes that the rights are still subject to limitations vis-à-

vis a State’s national interest as enforced through its sovereignty.

Also, because this article addresses the concerns of child soldiers, the implications of the

Geneva Conventions should be considered.23 The nature of a child’s participation in armed

conflict as a soldier, whether in a conflict of an international or non-international nature, creates

a prima facie case that protections under the Geneva Conventions are implied.24 The threshold

question in this context is whether the conflict in which the child was a participant could be

characterized as an “armed conflict” pursuant to common Article 2 or an “armed conflict not of

an international character” pursuant to common Article 3.25 The implication of the Geneva

Conventions with respect to child soldiers and asylum is two-fold. First, the Geneva

Conventions create a de minimus requirement that covered persons are afforded “all the judicial

guarantees which are recognized as indispensable by civilized peoples.”26 Therefore, its

relevancy is that international law creates an obligation to conduct judicial hearings in a context

where certain fundamental rights are protected, arguably the same rights as delineated in the

UDHR, the ICCPR, and the Refugee Convention. Clearly, however, this is limited in the context

where the child soldier is seeking asylum or refuge in a State also engaged in the conflict.

Second, the Geneva Conventions delineate military practices that are considered legal.27

Thus, if

under international law, certain actions taken by a child soldier would be sanctioned under the

Geneva Conventions, the question arises whether those acts should be considered “persecution.”

23 There are four Conventions that comprise the treaty collection known as the Geneva Conventions: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, of August 12, 1949; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, of August 12, 1949; Geneva Convention relative to the Treatment of Prisoners of War, of August 12, 1949; Geneva Convention relative to the Protection of Civilian Persons in Time of War, of August 12, 1949 [hereinafter Geneva Conventions]. Note that each of the Geneva Conventions shares the same language for articles 2 and 3. 24 Geneva Conventions, supra note 21, at art 3. 25 Geneva Conventions, supra note 21 at art 2, art 3. 26 Geneva Conventions, supra note 21, at art. 3(I)(d). 27 See generally, Geneva Conventions, supra note 21.




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III. ASYLUM LAW

The U.S. has assumed its obligations with regard to refugees and asylum seekers through

the Immigration and Nationality Act (INA).28

any person who is outside any country of such person's 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….

Specifically, section 101(a)(42), the asylum

provision of the INA states:

29

However, section 101 also states that a person may not qualify as a “refugee” or receive

asylum where the person, “ordered, incited, assisted, or otherwise participated in the persecution

of any person on account of race, religion, nationality, membership in a particular social group,

or political opinion.”30

This second provision creates a problem in the representation of child soldiers for asylum

purposes, because the acts committed by the child as part of an armed conflict may be viewed as

having “assisted, or otherwise participated in the persecution” of another group. Representation

of child soldiers who are seeking asylum then becomes a two-step process. In the first step, the

practitioner would be required to show that a child soldier is both a member of a protected class

under the INA and that as a result of being a member in that class, the child held a well-founded

fear of persecution or was actually persecuted. The second step would be to rebut any assertions

that by participating as a soldier the child had assisted or participated in the persecution of

another.

28 Immigration and Nationality Act, ch. 477, 66 Stat. 166 (1952) (codified as amended at 8 U.S.C. §§ 1101-1105a (2005)) [hereinafter INA]. 29 INA § 101(a)(42) (codified at 8 U.S.C. § 1101 (2005)). 30 Id.




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A. Persecution or well-founded fear of persecution

Worthy of note is that the INA itself does not provide a clear definition of “persecution”

or a “well-founded fear of persecution.” As such, this ambiguity has led to disparity in how

asylum cases are decided generally.31

Begin with Matter of Acosta.

However, there are seminal cases that attempt to establish

parameters for both persecution and a well-founded fear. 32 The importance of Acosta is that it is often referenced

with regard to the definition of ‘well-founded fear’ and ‘persecution.’33 In Acosta, the

respondent, a 36-year old citizen of El Salvador, had sought asylum in response to deportation

proceedings being initiated against him.34 Acosta had started a cooperative partnership in El

Salvador with several taxi drivers in order to pool resources and help defray costs of running a

taxi service.35 Acosta and his colleagues faced death threats, damage to their property, and

physical assault; in several cases, Acosta’s colleagues had been executed.36 Although the

immigration judge did not question Acosta’s credibility, he denied granting Acosta asylum on

the grounds that his testimony was “self-serving.”37 The Board of Immigration Appeals (BIA)

dismissed Acosta’s appeal, finding that Acosta was unable to show that he could not avail

himself of the protections of neighboring city governments, by moving to another part of the

country where cooperative taxi partnerships were not subject to persecution.38

Initially, the BIA noted that international instruments exist to assist States establish

standards for defining these terms pursuant to the Refugee Convention and its subsequent

31 Julia Preston, Big Disparities in Judging Asylum Cases, N.Y. Times, (May 31, 2007), at A1. Also available at http://www.nytimes.com/2007/05/31/washington/31asylum.html?adxnnl=1&adxnnlx=1196525835-1xE/dQFm5UBNkJZQeGUlsA (last visited Dec. 1, 2007). 32 19 I.&N. Dec. 211, Interim Dec. (BIA) 2986, 1985 WL 56042 (BIA) (1985). 33 See e.g., Sanchez-Trujillo v. I.N.S., 801 F.2d 1571 (9th Cir. Oct. 15, 1986)(analyzing the standard of review for well-founded fear). See also, Gormley v. Ashcroft, 364 F.3d 1172 (9th Cir. Apr. 22, 2004)(discussing whether economic persecution rises to the level contemplated by the INA for the grant of asylum). 34 Acosta, 19 I.&N. Dec. 211 at 213. 35 Id. 36 Id. 37 Id. at 218. 38 Id. at 235-36.




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protocols.39 However, the BIA also noted that these documents are merely persuasive and not

necessarily binding upon a State to adopt a particular definition.40 Acosta provides that the term

persecution means, “harm or suffering must be inflicted upon an individual in order to punish

him for possessing a belief or characteristic a persecutor seeks to overcome. The word does not

embrace harm arising out of civil strife or anarchy.” 41

to mean that an individual's fear of persecution must have its basis in external, or objective, facts that show there is a realistic likelihood he will be persecuted upon his return to a particular country. As has always been the case, our construction of the well-founded-fear standard reflects two fundamental concepts. The first is that in order to be ‘well-founded,’ an alien's fear of persecution cannot be purely subjective or conjectural-it must have a solid basis in objective facts or events. This concept, after all, is consistent with the generally understood meaning of the term ‘well-founded,’ which refers to something that has a firm foundation in fact or is based on excellent reasoning, information, judgment, or grounds.

The BIA went on to define “well-

founded fear” as:

The second fundamental concept that is, and always has been, reflected in our construction of ‘a well-founded fear of persecution’ is that in order to warrant the protection afforded by a grant of refuge, an alien must show it is likely he will become the victim of persecution. (citations omitted)42

As applied to the issue of the child soldier, Acosta creates two problems. First, the BIA

expressly stated that it does not read the granting of asylum to arise out of “civil strife or

anarchy.”43

39 Acosta, 19 I.&N. Dec. 211 at 220.

An argument would be made that in regard to the recruitment of child soldiers, it is

precisely because of the civil strife or anarchy in the particular country that the child soldier

faces the dilemma of either joining an army or rebel group or face persecution. Consider, for

40 Id. at 222-23 (stating “[w]e conclude that the pre-Refugee Act construction of ‘persecution’ should be applied to the term as it appears in section 101 41 Id. at 223. 42 Id. at 226. 43 Id. at 222 (citing Matter of Diaz, 10 I.&N. Dec. 429, 434 (BIA 1973)).




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example, that Sierra Leone has only recently ended a decade-long civil war.44

[t]he problems of poverty, tribal rivalry and official corruption that caused the war are far from over. The 70,000 former combatants who were disarmed and rehabilitated after the war have swollen the ranks of the many young people seeking employment. Sierra Leone is rich in diamonds. The trade in illicit gems, known as "blood diamonds" for their role in funding conflicts, perpetuated the civil war.

However, as

recently reported by the BBC:

45

The problems seen in Sierra Leone are only an example of a worldwide problem arguably

leading to the civil strife or anarchy that results in the recruitment of child soldiers.

The second problem is that Acosta establishes a ‘probability’ standard for defining well-

founded fear.46 The BIA had determined that the standard for a well-founded fear of

persecution, for purposes of petitioning for asylum “converges” with the standard for

withholding of deportation.47

The problem with this standard is that it requires child soldiers, who are often young,

uneducated, traumatized, and incapable of expressing themselves, to articulate the “clear

probability” that if they fail to engage in the conduct that made them child soldiers that the likely

ramification is persecution.

As such, the BIA in Acosta transposed the “clear probability”

standard for withholding of deportation onto the standard for granting asylum.

48

44 BBC News, Country Profile: Sierra Leone, at http://news.bbc.co.uk/2/hi/world/africa/country_profiles/1061561.stm#overview (last visited Dec. 1, 2007) [hereinafter BBC News Country Profile].

This is a problem because it raises the question about how a child

soldier, who must overcome the hurdles previously mentioned, can articulate the factors that

establish a likelihood that he or she will face future persecution, if returned.

45 BBC News Country Profile, supra note 43. 46 See generally, Acosta, 19 I.&N. Dec. 211 at 213. 47 Id. at 214. 48 Id.




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With regard to the second problem, the Acosta standard has been replaced by the standard

articulated in I.N.S. v. Cardoza-Fonseca.49 In Cardoza, the U.S. Supreme Court held that the

standard applied in Acosta was the improper standard.50 The Cardoza Court expressly rejected

the “clear probability” standard implied in Acosta, rejecting the Acosta Court’s holding that the

standard for the defense against deportability could be merged and applied as the same standard

for asylum petitions.51

Important to realize is that in both the Cardoza and Acosta cases, there are two standards

in operation. First, there is the standard as applied as to whether an affirmative petition for

asylum should be granted; second, there is a separate standard for a respondent seeking asylum

as a defense to deportability. According to the Court in Cardoza, the fundamental problem with

Acosta was that it sought to impose the same standard for both defense to deportability and

asylum.

52 Subsequently, the court in Cardoza recognizes that the INA expressly contains two

different standards, and that although they may seem facially similar, the underlying purpose in

crafting two different standards was to make the burden of proof lower for the asylum seeker

than the standard for defense to deportability.53 Of course, the Cardoza Court declined to further

define what the standard should be, deferring to future BIA determinations.54

Although Cardoza may lower the threshold for establishing a well-founded fear, two

problems with representing child soldiers still remain. First, the bar against asylum on the basis

of civil strife and anarchy, as articulated in Acosta, still exists. Second, as a practical and

evidentiary matter, even under the lower threshold requirement, a child soldier might not still be

able to articulate a well-founded fear of persecution.

49 480 U.S. 421 (1987). 50 Id. at 431. 51 Id. 52 Id. at 447-48. 53 Id. 54 Cardoza-Fonseca, 480 U.S. at 1222 (stating “[w]e do not attempt to set forth a detailed description of how the ‘well-founded fear’ test should be applied. Instead, we merely hold that the Immigration Judge and the BIA were incorrect in holding that the two standards are identical.”).




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There is potentially a third problem in the determination of a well-founded fear as related

to child soldiers. It is their military service. Conscription into an army is generally not to be

considered a basis for persecution. Consider the case of Matter of Izatula.55 In Izatula, the

asylum seeker, a citizen of Afghanistan, escaped his country on the basis that his brother was a

supplier to the mujahedin resistance and that the KHAD (the Soviet-supported Afghan secret

police) were seeking to forcibly enlist him into the KHAD and have him provide information

against his brother.56

Izatula established that an unwillingness to participate in mandatory military service and

the fear of punishment for such refusal are not grounds for asylum.

57 However, the BIA found

that support of the mujahedin was sufficient to establish that Izatula, the asylum seeker,

maintained a well-founded fear of persecution from a Soviet-backed Afghani government.58

Any fear that Izatula would be persecuted could be classified as persecution on the basis of

political opinion.59 At the heart of the BIA’s holding is that the government of Afghanistan was

found to be incapable or unwilling to uphold basic fair trial standards or that any constitutional or

political options existed for the population to change its government.60

However, Izatula has to be reconciled in light of the Supreme Court’s decision in I.N.S. v.

Elias-Zacarias.

Thus, the BIA found that

absent these protections or options, rebellion was the only option available for overthrow of the

government of Afghanistan, and as such would open supporters of the mujahedin to persecution.

61 In Elias-Zacarias, the then-I.N.S. sought to deport respondent back to

Guatemala, who in turn sought asylum as a basis for withholding deportation.62

55 20 I.&N. Dec. 149, Interim Dec. (BIA) 3127, 1990 WL 385750 (1990).

Respondent and

asylum seeker, Elias-Zacarias, a citizen of Guatemala, left on account that a rebel group sought

56 Matter of Izatula, 20 I.&N. Dec. at 152-53. 57 Id. at 152. 58 Id. at 154. 59 Id. at 152. 60 Id. 61 502 U.S. 478 (1992). 62 Elias-Zacarias, 502 U.S. at 480.




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repeatedly to recruit him in order to fight against the seated-government.63 Elias-Zacarias stated

that his refusal to join the rebels, even under threat of violence, was that if the government of

Guatemala learned of his alliance with the rebels, then violent reprisals would be visited upon

him and his family.64

Elias-Zacarias’ petition for asylum had been denied at both the immigration judge level

and the BIA level.

65 However, on appeal the U.S. Court of Appeals for the Ninth Circuit

reversed, holding he was able to show a well-founded fear of persecution based on his political

opinion to not support either side of the conflict.66 The U.S. Supreme Court disagreed.67

Writing for the majority and reversing the judgment of the Ninth Circuit, Justice Scalia held that

any persecution Elias-Zacarias would face would not be on account of his political beliefs.68 The

fact that Elias-Zacarias had refused to join either the rebels or the government in taking up arms

in the conflict was not considered a political view.69

There are two interesting facets to Elias-Zacarias. First, the majority opinion seems to

require affirmative evidence that the asylum seeker show that he or she have a political opinion

that is different from the alleged persecutor and that the persecution is on account of this political

difference.

70 Justice Stevens, who wrote the dissenting opinion, asserts that political opinions

can be expressed in the negative such that a refusal to join any party to a conflict can be read as a

political view.71

63 Id. at 479.

Second, unlike Izatula, which took country conditions into consideration, Elias-

Zacarias did not. One might wonder that if Elias-Zacarias were able to show that the country

conditions in Guatemala were analogous to Afghanistan, would that have warranted a different

outcome.

64 Id. 65 Id. at 480. 66 Id. at 481. 67 Elias-Zacarias, 502 U.S. at 484. 68 Id. at 481. 69 Id. at 483. 70 Id. at 483-84. 71 Id. at 486.




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With regard to child soldiers, the Izatula standard is preferable because it allows a child

soldier to demonstrate that the country conditions were such that the government was essentially

ineffective at preventing recruitment of the child. Also, the problem under Elias-Zacarias is that

from an evidentiary perspective, a child soldier would have to describe the political situation in

that country and would then be required to show that the decision to seek asylum is not simply

based on a decision to leave the conflict. Elias-Zacarias requires that the child soldier would

have to show that his or her political beliefs differ from those seeking to recruit them. In

conflicts based on socioeconomic factors rather than purely political factors, well known is that

Acosta only allows asylum on the basis of economic persecution if probability of death is

involved.72

This would presumably be more complicated for younger children who may not

even have a concept of politics generally.

B. Persecution of others

This article now turns to the exclusion against asylum seekers who are charged with

persecuting others. Prior to addressing grounds for exclusion, however, the INA requires that the

basis for an asylum seeker’s well-founded fear of persecution must be based on “account of race,

religion, nationality, membership in a particular social group, or political opinion….”73

72 Acosta, 19 I.&N. Dec. 211 at 222-23 (stating “[w]e conclude that the pre-Refugee Act construction of ‘persecution’ should be applied to the term as it appears in section 101(a)(42)(A) of the Act.”). The Acosta made this statement in light of prior cases that held that economic persecution can be substantiate a well-founded fear if that fear threatened life or freedom.

The

preceding sections touched on the problems of categorizing a person’s fear of persecution in the

context of military recruitment as a political opinion. However, in the context of child soldiers,

asylum seekers may petition that by virtue of their being children and therefore vulnerable, they

fall into one of the enumerated classes of protected people under the INA, specifically members

of a social group vis-à-vis children. Or alternately, depending on the nature of the conflict, the

rationale behind the persecution may be based on racial, ethnic, political or other grounds also

covered under the INA. For sake of this article, an assumption will be made that the child

73 INA § 101(a)(42).




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soldier, if able to establish a well-founded fear of persecution, would clearly meet one of the

enumerated grounds under INA section 101(a)(42).

In contrast, the greater problem is the unique situation from which a child soldier comes.

The fact that the child was conscripted into military or paramilitary service opens him or her to

being viewed as having persecuted others and therefore unable to obtain asylum.74

The case of Sackie v. Ashcroft, decided in 2003, demonstrates that with regard to child

soldiers, the issue of whether the asylum-seeker engaged in the persecution of others is a matter

that must be addressed in the filing of the petition.

75 Sackie, a citizen of Liberia sought habeas

corpus relief from removal on the basis that he was a child soldier employed in the forces

fighting against Charles Taylor.76 The immigration judge who addressed Sackie’s asylum

petition found that he had not engaged in the persecution of others.77 However because of his

participation in the conflict against then-President Charles Taylor, Sackie was able to show that

if returned to Liberia he would be subject to torture and was granted withholding from removal

pursuant to the Convention Against Torture.78

Sackie provides an excellent window into the recruitment of child soldiers engaged in

armed conflict. For example, we learn that Sackie, at the age of 14, was kidnapped at gunpoint

and recruited into the rebel army, fighting then-President Charles Taylor.

79 Furthermore, the

case points out that those who resisted recruitment were summarily executed.80 As an initiation

rite, the child soldiers recruited were cut with the insignias of the rebel armies they represented

and were frequently drugged to maintain control over them.81

74 Sackie v. Ashcroft, 270 F.Supp.2d 596 (E.D. Pa., 2003) is one of the few child-soldier cases. .

Most telling, however, is that

75 See generally, 270 F.Supp.2d 596 (E.D. Pa., 2003) 76 Id. at 598. 77 Id. at 600. 78 Id. at 602. 79 Id. at 601. 80 Sackie, 270 F.Supp.2d at 601. 81 Id.




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Sackie was ordered to “commit torture and do very evil stuff” and if he refused to engage in that

conduct, both he and the victim would be executed.82

Although the case describes Sackie’s activities in detail, missing from the discussion are

the specifics with regard to why Sackie’s activities did not constitute persecution of others.

83

The focus of the Court’s ruling turns on whether the BIA had properly interpreted the definition

of torture pursuant to the Convention Against Torture.84

The INA states that the term “refugee” does not include any person who ordered, incited,

assisted, or otherwise participated in the persecution of any person on account of race, religion,

nationality, membership in a particular social group, or political opinion.”

One might insinuate, however, that

because of the severe duress which Sackie faced in his recruitment, and with regard to the

execution of his duties in the rebel army, that the immigration judge could not find that Sackie

had not intentionally engaged in the persecution of others. However, without specific discussion,

one cannot be certain that this is why Sackie’s actions were not considered acts constituting the

persecution of others.

85

The cases that address the issue of participation in persecution range from direct act to

indirect support of persecution. For example, consider the case of Matter of McMullen.

86

McMullen was a former member of the Provisional Irish Republic Army (PIRA). As a high-

ranking member of PIRA, McMullen assisted in many of the PIRAs special operations.87

However, his refusal to assist in a kidnapping plot made him fear violent reprisal by the PIRA.88

He fled Northern Ireland soon thereafter and eventually arrived in the U.S, where he requested

asylum.89

82 Id.

The BIA held that McMullen’s basis for asylum was not on account of his fear of

83 See generally, Id. 84 Id. at 602. 85 INA § 101(a)(42) (codified at 8 U.S.C. § 1101 (2005)). 86 19 I.&N. Dec. 90, Interim Dec. 2967, 1984 WL 48589 (BIA) (1984). 87 Id. at 92. 88 Id. at 93. 89 Id. at 91.




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persecution based on political opinion.90 Instead he sought asylum on the grounds that his

separation from PIRA was for personal safety reasons.91

directly provided, in part, the instrumentalities with which the PIRA perpetrated its acts of persecution and violence. We have no difficulty in concluding that these arms were directly involved in the murder, torture, and maiming of innocent civilians who publicly opposed the PIRA, and are unwilling to isolate these arm shipments from their ultimate use by the PIRA in conducting its campaign of terror. Thus, we find clear evidence that the respondent aided and assisted in the persecution of others within the meaning of the Act.

Moreover, the BIA found that

McMullen’s arms trading activities with the PIRA were enough to show that he:

92

McMullen can be read for two main propositions. First, an asylum seeker need not have

engaged in a specific act of persecution in order to be excluded.93 Participation in an

organization that engages in persecution is enough.94 Second, a nexus to the act of persecution

must be established in order to find the person excludable from being granted asylum.95

Shirvanyan v. Gonzales attempts to define the nexus requirement of McMullen. The U.S.

Court of Appeals for the Ninth Circuit held that although petitioner had not directly engaged in

the conduct related to the persecution, his affiliation with an Armenian police agency responsible

for the persecution of Jehovah’s Witnesses made him a persecutor.

However, the extent of that nexus is not clear.

96 In Shirvanyan, the Ninth

Circuit held that although petitioner had not actually engaged in physical battery against

Jehovah’s Witnesses, the fact that he would drive the raiding parties to the sites and would

participate in the raids was sufficient to find that he had engaged in the persecution of others.97

90 Id. at 95.

91 McMullen, 19 I.&N. Dec. 90 at 95. 92 Id. at 96-97. 93 See Id. at 98. 94 Id. 95 Id. 96 See Shirvanyan v. Gonzalez, 130 Fed.Appx. 196 (9th Cir. May 10, 2005), 2005 WL 1085787. 97 Id. at 197.




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Interestingly, the Ninth Circuit indicated that petitioner’s knowledge of the purpose of the raiding

parties was also a factor in finding that he was responsible in the persecution of others.98 “He

knew that he and fellow officers were going to the homes of Jehovah's Witnesses and that the

officers would beat Jehovah's Witnesses.”99

IV. INTENT

Although not discussed in detail, Shirvanyan raises an important issue of intent with

regard to the exclusion ground for past persecution. Note that the language of section 101(a)(42)

of the INA does not impute any mens rea requirement. Given the case analysis discussed above,

one could consider ‘participation in the persecution of others’ provision as a strict liability

provision. That is, whether the asylum seeker had intent to engage in the persecution of others is

irrelevant. So long as the immigration judge can find a nexus between the specific conduct of

the asylum seeker and the persecution, the individual will be denied asylum.

Note that asylum law also provides for exclusion on the grounds of prior criminal

conduct. The language of that exclusion provision states, “[a]ny alien convicted of, or who

admits having committed, or who admits committing acts which….”100 Implied in this exclusion

is the fact that a judicial finding of guilt under a criminal statute or admission of guilt is

required.101

98 Id.

The language “convicted or who admits” implies a judicial finding based on a

proceeding in which the accused is charged and tried and where the trier-of-fact imposes guilt.

In the U.S., assumed would be that the person was found guilty beyond a reasonable doubt of

intending and committing an act that is a crime of moral turpitude. Therefore, one may assume

that some evidence of intent associated with the criminal act is required by incorporation through

proof of criminal history. Section 101(a)(42), however, requires no such judicial finding with

99 Id. 100 INA § 212(a)(2)(A) (codified at 8 U.S.C. § 1182 (2005)). 101 Consider that the language of the section 212(a)(2)(A) states “any alien convicted of or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude…or a violation of any law or regulation of a State, the United States…is inadmissible.”




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regard to an asylum seeker engaged in the persecution of others, and therefore, would not seem

to require any proof that the individual intended the act. Yet, a brief review of court holdings

demonstrates that courts, at the very least, feel compelled to address whether intent is a

requirement into making determinations as to whether petitioner engaged in past persecution.102

With regard to child soldiers, the issue is highly relevant. Consider the motives for children

joining armed factions in armed conflict:

Children are forcibly recruited into armed groups in many conflicts but the vast majority of child soldiers are adolescents between the age of 14 and 18 who "volunteer" to join up. However, research has shown that a number of factors may be involved in making the decision to actually join an armed conflict and in reality many such adolescents see few alternatives to enlisting. War itself is a major determinant. Economic, social, community and family structures are frequently ravaged by armed conflict and joining the ranks of the fighters is often the only means of survival. Many youths have reported that desire to avenge the killing of relatives or other violence arising from war is an important motive.

Poverty and lack of access to educational or work opportunities are additional factors - with joining up often holding out either the promise or the reality of an income or a means of getting one. Coupled with this may be a desire for power, status or social recognition. Family and peer pressure to join up for ideological or political reasons or to honour family tradition may also be motivating factors. Girl soldiers have reported joining up to escape domestic servitude or enforced marriage or get away from domestic violence, exploitation and abuse.103

102 See Xie v. I.N.S., 434 F.3d 136, 142 (2nd Cir. Jan 5, 2006) where the court states, “[a]s in Fedorenko, we deemed irrelevant Maikovswki’s personal motivation or intent in carrying out his orders.” Cf with Zheng v. BIA, 119 Fed. Appx. 321, 2005 WL 18006 (2nd Cir., Jan. 4, 2005). In Zheng, the court relied on the asylum seeker’s testimony that he “knew” that when he was driving individuals to local Chinese-run hospitals that he was driving them to the locations for the purposes of forced-sterilization. See also, Higuit v. Gonzalez, 433 F.3d 417, 421 (4th Cir., Jan. 3, 2006). In Higuit, the court determined that asylum seeker’s intelligence gathering operations made him “aware” that the information he provided to government agencies led to the “torture, imprisonment, and death of [New People’s Army] NPA members and other political opponents…” 103 Coalition to Stop the Use of Child Soldiers, Why Children Join, at http://www.child-soldiers.org/childsoldiers/why-children-join (last visited Dec. 1, 2007).




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Thus, the contrast between the cases surveyed thus far and the issue of child soldiers is

two-fold. First, each of the cases cited refers to an adult asylum seeker. As a general

presumption, absent extreme coercion, torture, mental illness, or some other inhibiting factor

preventing the adult from creating an intent to engage in the otherwise unlawful act, an adult is

presumed to have the capacity to create the intent that establishes responsibility for his or her

acts. Second, without an express intent requirement in section 101(a)(42), courts cannot engage

in an examination of whether superseding factors prevent the individual from intending the acts

that are characterized as persecution. This is germane to child soldiers, because in U.S. domestic

law, the mental competency of a child to engage in a criminal act has been a critical component

in the evolution of juvenile criminal justice.104

Thompson v. Oklahoma is one of the landmark cases regarding the standard for

establishing a juvenile’s capacity to commit crime.

105 Thompson involved a 15-year old child

who was charged, convicted and sentenced to death for murder.106 The Supreme Court found

that the inexperience, lower educational level and lower intellectual capacity of a child made that

child more susceptible to pressures that an adult could rationalize against and as such lowered

the child’s competency to formulate the same mens rea as an adult for a serious crime such as

murder.107

Given this lesser culpability, as well as the teenager's capacity for growth and society's fiduciary obligations to its children, the retributive purpose underlying the death penalty is simply inapplicable to the execution of a 15-year-old offender. Moreover, the deterrence rationale for the penalty is equally unacceptable with respect to such offenders, since statistics demonstrate that the vast majority of persons arrested for willful homicide are over 16 at the time of the offense, since the likelihood that the teenage offender has made the kind of cold-blooded, cost-benefit analysis

Consider the Court’s rationale:

104 See Jon-Michael Foxworth, An Unjust Act: The Schizophrenic State of Maturity and Culpability in Juvenile Justice and Minor Abortion Rights Law; Recent Trends in Virginia and Nationally, 9 WM. & MARY J. WOMEN & L. 495, 497-98 (2003)[hereinafter Foxworth, An Unjust Act]. 105 487 U.S. 815 (1988). 106 Id. at 819. 107 Id. at 835.




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that attaches any weight to the possibility of execution is virtually nonexistent, and since it is fanciful to believe that a 15-year-old would be deterred by the knowledge that a small number of persons his age have been executed during the 20th century.108

Consider, in contrast, the strongest argument against imposing an intent requirement into

the language of section 101(a)(42). Asylum law is not concerned with issues of retribution or

deterrence as articulated in Thompson. Instead, asylum law is generally concerned with the

balance between international obligations of granting refuge to those who are unable to find it in

a third State and a State’s own sovereign interests.109

However, even with regard to the ‘balance of interests’ argument, in the context of

children as asylum seekers, an argument may be made that the obligation to provide refuge to

children is greater than for adults, and therefore, greater than a State’s sovereign interests. In

general, the CRC requires States to protect a child’s safety and health without any form of

discrimination.

Therefore, one might argue that in the

context of child soldiers as asylum seekers, an intent requirement is irrelevant to this purpose.

110

An alternate argument might be that pursuant to a State’s sovereignty, a State may protect

its national interests by limiting entries to those who may have committed criminal acts or who

are deemed to be dangerous to the security interests of a State. In the case of the U.S., juvenile

jurisprudence is moving toward expanding the use of the adult criminal justice system in trying,

convicting and punishing criminal offenders.

111

Yet, in domestic jurisprudence, even if a child is transferred to adult court to stand trial

for a crime, the burden of proof remains with the prosecution to prove that the child both had the

108 Id. at 816. 109 Refugee Convention, supra note 11, preamble. 110 Convention on the Rights of the Child, art. 2, Sept. 2, 1990. 111 Foxworth, An Unjust Act, supra note 78 at 505 (citing the increased use of waivers to transfer juveniles, who would have, in the past, been tried in juvenile court for criminal behavior but are increasingly being transferred to adult criminal courts).




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mens rea and committed the actus rea beyond a reasonable doubt.112 Therefore, even if

procedurally the protections may appear lower by allowing transfer, the burden to show that the

child had the requisite mental capacity to commit the crime remains with the state or

government. In situations where that burden is not met, the stigma of having been wrongly

accused still remains. Furthermore, even under the INA, where criminal conviction grounds

exist for exclusion, the INA section 212(a)(2)(A) allows for exceptions and the possibility of

waiver. However, section 208(b)(B)(2)(A) allows sole discretion for determining whether the

asylum seeker participated in the persecution of others with the Secretary for the Department of

Homeland Security.113 Furthermore, subsection (D) prohibits judicial review.114

This is inconsistent with the excludability factors on the basis of criminal grounds, which

require some proof of intent vis-à-vis evidence of a conviction. Furthermore, in the context of

the child soldier, as was previously described, numerous factors are involved in the recruitment

of the child soldier and his or her participation in the persecution of others. These factors should

be considered in deciding whether the person seeking asylum had actually engaged in the

persecution of others because they may negate a child’s intent to commit the acts of persecution

that would exclude him or her from the protections of being in the U.S.

Therefore, an

argument may be made that due process protections are greater for those who have been proven

to have committed a crime than for those who fall under INA section 101(a)(42) – participated in

the persecution of others.

V. ALTERNATIVE APPROACHES

If the language of INA sections 101(a)(42) and 208(b)(B)(2)(A) are read to impose strict

liability for participation in the persecution of others and also are seen as an obstacle for granting

112 Foxworth, An Unjust Act, supra note 78 at 500 (citing, In re Winship, 397 U.S. 359, 361-68 (1970), which held that the burden of proof in juvenile criminal cases should be the same as in adult criminal cases, beyond a reasonable doubt.). 113 INA § 208(b)(B)(2)(A) (codified at 8 U.S.C. § 1158 (2005)). 114 INA § 208(b)(B)(2)(D) (codified at 8 U.S.C. § 1158 (2005)).




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asylum for those who would otherwise be eligible, namely child soldiers, then there are two

possible remedies for the problem. First, a mens rea requirement could be added. By including

a mens rea requirement, an asylum seeker could assert the defense that he or she had no intention

of engaging in the act of persecution because of mental duress, coercion, etc. Second, a waiver

of excludability could be granted in situations where the conduct of the person involved fell

within the scope of the Geneva Conventions.

A. Intent revisited

In adding a mens rea requirement, the language of the INA could be changed to read that

‘any person who intended to order, incite, assist, or otherwise participate in the persecution of

any person….’ The result of including this element is that it creates a specific intent exclusion.

Critics of including this element would suggest that intent might be too high a standard for

purposes of asylum. They might argue that by including this element, asylum cases become

transformed into criminal courts where the government bears the burden of proving each of the

elements. However, the burden of showing that the asylum seeker participated in the persecution

of others already resides with the government. And where the evidentiary standards are not as

strict as in a criminal trial, the government would be allowed to introduce hearsay evidence.

Furthermore, the testimony of the asylum seeker would be particularly relevant and would be a

good indicator of whether the person’s past conduct was intended to engage in persecution or

whether some superseding reason resulted in the person engaging in such conduct. Also,

because deportation is not considered a deprivation of a constitutional right, the due process

safeguards need not be as stringent. In the case of child soldiers, this would draw in those factors

that negate an intent to persecute, despite the fact that the child engaged in the act of persecution

or assisting in the persecution. It would, however, exclude even those child soldiers who

intended to engage in the violent conduct and who had no superseding reason for engaging in

such conduct.




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B. Armed conflict as a defense

This article also previously raised implications of Geneva Conventions protection. An

exception could be included that so long as the person’s conduct fell within the proscriptions of

the Geneva Conventions, an immigration judge could not find that the person engaged in

persecution. The Geneva Conventions recognize two classes of armed conflict, conflict between

State-members to the Geneva Conventions and conflicts “not of an international character.”115

An exhaustive review of the obligations and prohibitions under the Geneva Conventions is

unnecessary. Universally recognized is that the Geneva Conventions do proscribe appropriate

conduct for military personnel in an armed conflict.116

Such a concept is not new. Courts have adopted a similar notion. Consider the case of

Matter of Rodriguez-Majano.

Thus, if such an exception existed, it

would prevent individuals who were engaged in legitimate conflicts from being viewed as

having persecuted others, so long as their individual conduct was found to be legal within the

context of the Geneva Conventions.

117 Rodriguez-Majano was a citizen of El Salvador caught in the

middle of a conflict between the El Salvador government and guerillas seeking to overthrow the

government.118 Forcibly recruited by the guerillas, Rodriguez-Majano found himself driving

guerillas to battle sites as well as transporting supplies.119 Later he was drafted as a guerilla and

taught in a military camp how to fight.120 At one point, he would act as a lookout, during which

the guerillas would engage in “propaganda runs.”121 Eventually, he was caught by government

forces and severely beaten for his involvement.122 He was prosecuted in an El Salvador court

but was released as a result of “his lawyer’s influence” with the court.123

115 Geneva Conventions, supra, note 21, at art 3.

He soon fled El

116 See generally, supra, note 21. 117 19 I.&N. Dec. 811, Interim Decision (BIA) 3088, 1988 WL 235466 (1988). 118 Rodriguez-Majano, 19 I.&N. Dec. at 812. 119 Id. at 813. 120 Id. at 813-14. 121 Id. 122 Id. at 814. 123 Rodriguez-Majano, 19 I.&N. Dec. at 814.




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Salvador and came to the U.S. 124 The immigration judge found that Rodriguez-Majano was

excluded from being granted asylum because he had engaged in the persecution of others under

the INA.125

However, on appeal, the BIA found that the actions of Rodriguez-Majano, while joined with

the guerillas, were not persecution.

126

Thus, the drafting of youths as soldiers, the unofficial recruiting of soldiers, by force, the disciplining of members of a rebel group, or the prosecution of draft dodgers are necessary means of achieving a political goal, but they are not forms of persecution directed at someone on account of one of the five categories enumerated in section 101(a)(42)(A) of the Act. We have already determined that forcible recruiting by dissident groups engaged in a civil war is not persecution because it is not motivated by a desire to harm one the guerrillas find offensive or who has characteristics they wish to overcome.

Instead, his actions were consistent with soldiers engaged

in a civil war. Here, the BIA expressly looked at the motivations of the group alleged to have

engaged in the persecution and specifically articulated that the intent of the asylum seeker must

be considered. The BIA stated:

127

However, Rodriguez-Majano must be read with caution. The purpose of including the

language of exclusion on the basis of participation in persecution was historically meant to deny

Nazi members, and by extrapolation, those who engage in international crimes such as crimes

against humanity, war crimes, and genocide, from obtaining protection in the U.S.128

124 Id.

By

incorporating specific reference to Geneva Conventions, however, this can be averted and child

125 Id. at 815. 126 Id. Here the BIA found that “the immigration judge in this case gave too expansive a definition of the statutory term ‘persecution.’ The evidence of record does not indicate that the guerillas here referred to engaged in persecution.” 127 Id. at 815-16. 128 Higuit, 433 F.3d 417, 421 (4th Cir., Jan. 3, 2006). The Higuit court found that persecution need not be limited to physical harm. However, more importantly, the court determined that the language of the INA with regard to the issue of persecution mirrored that of the Holtzman Amendment, designed to deny relief to Nazis who ordered, incited, assisted, or otherwise participated in” the persecution of others. Id.




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soldiers can still be granted refuge, because the burden would be on the asylum seeker to show

that his or her conduct fell within the proscriptions of the Geneva Conventions. Furthermore, it

is presumed that conduct that fits within the parameters of the Geneva Conventions would not

create international crimes such as aggression or war crimes that would, as their by-product, be

susceptible to being interpreted as being a plan of persecution against others.

VI. CONCLUSION

The practice of asylum law can be particularly heart-wrenching. Obvious to all involved is

the risk that the person will be deported and will face persecution upon return to their country.

As this article has briefly illustrated, persecution can range from harassment to serious bodily

injury and death. Therefore, recognizing that with the myriad of world conflicts, whatever their

bases, international law has imposed upon States a responsibility to provide refuge to those who

can no longer rely on the protections of the law in their residence States.129 International law,

however, does not require States to presume the burden of accepting every refugee or asylum

seeker.130

With child soldiers, however, finding this balance is particularly difficult, especially under

U.S. asylum law, because, as was described above, the INA bars granting asylum to those who

engaged in the persecution of others.

Thus, a balance must be struck between the interests of the State and the obligations

of providing refuge. This balance is created through the implementation of domestic laws.

131

129 Refugee Convention, supra note 11at art. 1.

By virtue of having engaged in any conflict, child

soldiers seeking asylum in the U.S. face the question of whether they engaged in the persecution

of others. Unfortunately, INA section 101(a)(42) can be read to impose strict liability. There is

no express provision that the individual had intended to engage in the acts of persecution nor are

there any defense provisions for engaging in conduct, which pursuant to international treaties be

considered appropriate conduct for one engaged in armed conflict. Without the inclusion of

these provisions, immigration judges are statutorily bound to deny asylum to an entire class of

130 See Refugee Convention, supra note 11 at preamble. 131 INA § 101(a)(42) (codified at 8 U.S.C. § 1101 (2005)).




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asylum seekers, who irrefutably require the greatest amount of protection, children. Therefore,

the premise of this article has been to advocate for the amendment to section 101(a)(42), to

include both an intent requirement as well as a defense that would preclude exclusion on the

grounds of participation in persecution under the Geneva Conventions. Without such

amendments we leave those who need the protection with an impossible choice best illustrated

by a tale told to children in Sierra Leone:

Pa Sesay, one of my friend’s grandfather, had told us many stories that night, but before he began the last story, he repeatedly said, “This is a very important story.” He then cleared his throat and began: “There was a hunter who went into the bush to kill a monkey. He had looked for only a few minutes when he saw a monkey sitting comfortably in the branch of a low tree. The monkey didn’t pay him any attention, not even when his footsteps on the dried leaves rose and fell as he neared. When he was close enough and behind a tree where he could clearly see the monkey, he raised his rifle and aimed. Just when he was about to pull the trigger, the monkey spoke: ‘if you shoot me, your mother will die and if you don’t, your father will die.”132

132 ISHMAEL BEAH, A LONG WAY GONE 217 (2007).



NO WAY OUT REPRESENTING CHILD SOLDIERS IN ASYLUM …2001, there have been an estimated 21 conflicts...

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