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Asylum Relief for Unaccompanied Minors: An Emerging Theory of Relief

Not everybody coming to the United States can claim asylum and have a chance of prevailing. To have a good asylum claim you have to have been persecuted on a "protected ground" under asylum law. There are five of them: race, religion, nationality, political opinion, and "membership in a particular social group." ("PSG")

The first four are pretty well defined. The term "membership in a particular social group" is not. However, case law fills the gaps. Two legally recognized PSGs are LGBT members, and women in countries where there is no protection from domestic violence are two. Even membership in a family can qualify.

All these particular social group cases require that the applicant for asylum demonstrate that the government of the home country was either unable or unwilling to protect the applicant on account of his or her membership in their group. In contrast, it has long been the law that being "a mere crime victim" isn't enough.

Two cases I handled with the able assistance of my colleague Robin Bernstein show that children fleeing harm or risk in Central America may now also be eligible for asylum as PSG members.

In the first case a young man from Honduras had been abandoned at birth by his father. When he was barely in his teens, his mother died. He then began living with relatives who eventually decided that they had "their own lives to lead" and told him he had to leave. He sought refuge here in the United States.

I was delighted when this young man was granted asylum by the Newark Asylum Office, part of the Dept. of Homeland Security. Honduras has a terrible record of safeguarding vulnerable children, and this teenager was very much at risk. He literally had no one to protect him, and was ripe for recruitment by gangs who could easily have killed him for resisting membership.

The second case also involved Honduras. Here a pre-teen girl was living with her grandmother and an "uncle" (her grandmother's son) who was was actually just a couple of years older than she was. Both her parents were here in the United States (undocumented), and sending money home to the grandmother. Things seemed to be working out. However, my young client's life changed radically when her grandfather returned to Honduras from the United States. He was a violent alcoholic and came home one evening drunk and enraged waving a pistol around and threatening to "kill everybody." That was the last straw after much prior abuse. My client's grandmother took her own son and my client to the United States to claim asylum. I'm happy to report that this young lady was granted asylum too.

What these cases tell me is that minors who lack parental or other family protection in the home country, where there is also an absence of government police protection, may qualify for asylum on the grounds that these children are PSG members too.

These are great decisions, and similar to ones my colleagues are reporting. I'm always happy to see that the law is flexible enough to grant asylum relief to vulnerable people who really deserve its protection.

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