Every year, thousands of immigrant children arrive in the United States seeking asylum.[1] Many of these children arrive unaccompanied, having fled from threats such as forced participation in armed conflict, trafficking networks, and gang recruitment.[2] However, upon arrival to the United States, these children encounter a legal system that makes no distinction between their experiences and those of adults.[3] The Immigration and Nationality Act (“INA”) does not differentiate between children and adults in defining “refugee.”^[4] This has created a gap between what the law actually requires and what courts are starting to deem as necessary, an age-sensitive approach to asylum law. While some courts and agencies have recognized the need to evaluate asylum from a child’s perspective, inconsistent application undermines uniform protection for child asylum seekers. Since this standard remains at the discretion of individual judges, it results in uneven application and uncertainty for vulnerable children.

The 1951 Refugee Convention created a definition of “refugee” interpreted primarily through adult experiences.^[5] The United States adopted this through the 1980 Refugee Act in creating INA § 101(a)(42), which defines a refugee as a person outside their country who has a “well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.”^[6] This definition contains no reference to the applicant’s age.^[7] Further, applicants bear the burden of proving refugee status, which is a challenge in and of itself for adults, let alone for children.^[8]

This definition reflects an outdated interpretation of children as rights holders. The traditional approach, and the approach the United States still takes, is one where the term refugee is interpreted in light of an adult experience.[9] This results in child cases being assessed incorrectly.^[10] In 1989, the modern understanding of children and individual rights holders emerged.^[11] This established that a child’s best interests must be a primary consideration in any judicial action that affects them.^[12] Many countries have ratified this understanding and adopted special frameworks for children seeking asylum.[13] However, the United States has not adopted this reasoning in child asylum-seeking cases.

As a result of the lack of guidance by immigration statutes, some federal courts have adopted their own child-centered approaches in immigration cases. The Ninth Circuit has acknowledged that children experience threats differently than adults; therefore, harm that might not be considered persecution for an adult could be for a child.^[14] The First Circuit has also adopted this acknowledgment in finding that persecution must be evaluated from the child’s perspective through an age-sensitive framework.^[15]

These decisions reflect the understanding that children experience unique forms of persecution. Gang recruitment targets children specifically because of their vulnerability.^[16] Trafficking networks take advantage of a child’s inability to escape or resist.^[17] Children forced into armed conflict or criminal activity may still experience persecution while also being labeled as perpetrators.^[18] Still, this is not reflected in federal statutory law. As a result, immigration judges continue in their discretion on whether or not to apply the child-centered framework. This results in a child’s chance of protection depending less on the merits and more on which judge decides their case.

To combat this uneven application, Congress could codify developing judicial decisions and amend INA § 101(a)(42) to require a child-centered analysis. Congress could also mandate regulations requiring a child-centered approach to all cases involving children seeking refuge. This would also be in line with the framework in the Flores Settlement Agreement,^[19] which already mandates a child-centered approach for immigrant children in detention. This would address the unique vulnerabilities of a refugee child, create uniform judicial interpretation, and reflect the modern understanding of children as rights holders. The current asylum framework fails to recognize that children experience persecution differently than adults. Without statutory guidance, judicial interpretations remain inconsistent, leaving children’s safety dependent on which judge hears their case rather than the merits of their claims.

[1] Asylum in the United States, Am. Immig. Council (May 9, 2025), https://www.americanimmigrationcouncil.org/fact-sheet/asylum-united-states/.

[2] Id.

[3] 8 U.S.C. § 1101(a)(42).

^[4] Id.

^[5] Convention Relating to the Status of Refugees art. 1(A)(2), July 28, 1951, 189 U.N.T.S. 150.

^[6] Refugee Act of 1980, Pub. L. No. 96-212, § 201(a), 94 Stat. 102 (codified at 8 U.S.C. § 1101(a)(42)).

^[7] 8 U.S.C. § 1101(a)(42)

^[8] 8 C.F.R. § 208.13(a)

[9] Id.

^[10] U.N. High Comm’r for Refugees, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees ¶ 1, U.N. Doc. HCR/GIP/09/08 (Dec. 22, 2009).

^[11] Convention on the Rights of the Child art. 3(1), Nov. 20, 1989, 1577 U.N.T.S. 3.

^[12] Id.

[13] Id.

^[14] Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1046 (9th Cir. 2007).

^[15] Mejilla-Romero v. Holder, 614 F.3d 572, 580–81 (1st Cir. 2010), Santos-Guaman v. Sessions, 891 F.3d 12, 18 (1st Cir. 2018).

^[16] Frank Paz, Children Seek Refuge from Gang-Forced Recruitment: How Asylum Law Can Protect the Defenseless, 42 Fordham Urb. L.J. 1063 (2015).

^[17] C. M. Rizen, Are Juvenile Gang Members Victims of Labor Trafficking?, 43 Loy. Chi. L.J. 1087 (2015).

^[18] Katherine Kaufka Walts, Meghan Scholnick & Joanne Curley, Perpetrators or Victims? The U.S. Response to the Forced Criminality of Children, 25 Child. Rts. Litig. 1 (2023).

^[19] Flores v. Reno, Stipulated Settlement Agreement, No. CV 85-4544-RJK (C.D. Cal. Jan. 17, 1997).