Proposed Brief of National Immigrant Women's Advocacy Project, Lutheran Immigration and Refugee Service, Dr. Giselle Hass, Tahirih Justice Center, and National Center on Domestic Violence, Trauma & Mental Health
Michael Carolan
Archi Pyati
Jessica Jones
Giselle Hass
Carole Warshaw
SummaryOriginal

Summary

Scientific research shows that children and adolescents' brains develop into their mid-20s, thus the Board of Immigration Appeals should define the term "minor" as any individual who has not yet reached the age of twenty-one.

2016

Proposed Brief of National Immigrant Women's Advocacy Project, Lutheran Immigration and Refugee Service, Dr. Giselle Hass, Tahirih Justice Center, and National Center on Domestic Violence, Trauma & Mental Health

Keywords adolescents; asylum; trauma; PTSD; brain development; executive functioning; immigration
37701383 FINAL-Amicus-Brief-NIWAP-et-al-STAMPED-c

Summary of Argument

Children and adolescents who arrive in the United States and seek asylum are a unique population. Such children and adolescents have been subject to persecution in their home countries on account of one or more immutable or social characteristics and have a well-founded fear of returning to their home country due to such persecution. For the overwhelming majority, the persecution suffered by the child or adolescent has taken the form of violence - either through physical violence the child or adolescent suffered themselves or through exposure to violence against family, friends, or others within their social group. When children experience either of these forms of traumatic events, the result is the traumatization of the child and the effects of such experience of or exposure to violence and trauma are far ranging.

Recent research into the development of the human brain demonstrates that certain aspects of cognitive function and psychosocial and emotional development continue past the traditional ages at which society recognizes "adulthood" in a person. Indeed, it is now acknowledged that certain aspects of human cognition continue development into the mid-20s. Thus, the baseline demarcation between "youth" and "adulthood" has grown much more nuanced. Indeed, the U.S. Supreme Court has recognized the social and neuroscience that illuminates the differences between adult and adolescent brains and federal policymakers and immigration authorities have acknowledged that individuals in their early 20s should be treated as "youth" and not as adults.

Even more significantly, a substantial body of psychological and physiological research shows that childhood or adolescent exposure to trauma and/or violence negatively impacts cognitive, social, and biological development. Moreover, neurobiological studies show that the impact of trauma is not just measured by diagnoses of post-traumatic stress disorder ("PTSD") or other psychiatric diagnoses; in fact, research indicates that the physical development of the human brain is negatively impacted when a child or adolescent faces maltreatment or violence, particularly when such trauma is long-term or continuing. The endogenous chemicals that stimulate the emotional centers of the brain and the "fight or flight" response have a counter effect on the frontal lobes, reducing activity in those lobes, which are the most important brain areas regarding executive functions. In essence, child trauma survivors' brain development and abilities will be developmentally behind children or adolescents of the same age without such a history of trauma, and these difficulties will have long-lasting impacts. Accordingly, asylum applicants who arrive in the United States as children or adolescents are much more likely to suffer from harms, both psychologically and physiologically, that result from the trauma they experienced, and therefore are more likely to be developmentally immature for their ages. This developmental immaturity may impact their ability to seek asylum and the amount of time they need to file asylum applications.

Child trauma victims' executive functioning has been found to suffer impairments in development. Child victims who escape trauma-producing homes and environments, as they attain safety and grow, will need the space and time to heal from their delays and impairments. But filing for asylum requires children and all other asylum applicants to go through a process that requires the victim to re-experience trauma by retelling the history of the abuse they suffered at least twice - in the written application for asylum and in their asylum interview. Child victims whose cases end up before an immigration judge must retell the history of the abuse suffered a third time. This process is painful even for adult victims and is much more difficult, emotionally harmful, and traumatic for child victims, compounding the negative effects already suffered. In fact, one of the hallmark symptoms of PTSD is avoidance of reminders of past traumas. These children, with immature and impaired executive functioning, are being asked to do what goes against their instincts. Mature adults with good executive functioning might recognize that in the long run, it is better to go through this unpleasant experience. But such deferral of reward requires a properly functioning, mature frontal lobe.

The question of who should be treated as a "minor" for purposes of adjudication of asylum claims is important. For those who arrived in the United States as a child or adolescent, the difference between being treated as a "minor" or an "adult" can mean the difference between - based on identical facts - a child being provided a full and fair opportunity to pursue and win asylum at an appropriate age versus facing re-traumatization and a diminished likelihood of success. In recognition of the recent scientific research showing that children and adolescents continue to biologically and psychologically develop into their mid-20s, and in light of the unique nature of the population at issue with respect to asylum applications who have suffered trauma in their childhood or adolescence, the undersigned amici propose that the Board define the term "minor" in 8 C.F.R. § 1208.4(a)(5)(ii), at a minimum, as any individual who has not yet reached the age of twenty-one (21).

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Summary of Argument

Asylum-seeking children and adolescents represent a distinct group due to their experiences of persecution based on immutable or social traits, coupled with a well-founded apprehension of returning to their home countries. The majority of these individuals have endured violence, either directly or through exposure to it against loved ones or social group members. Exposure to such traumatic events profoundly impacts the child's psychological and physiological well-being.

Recent advancements in brain development research reveal that cognitive, psychosocial, and emotional maturation continues beyond traditional societal definitions of adulthood, extending into the mid-twenties. This nuanced understanding challenges the rigid boundary between youth and adulthood, as recognized by the U.S. Supreme Court and immigration authorities.

Trauma experienced during childhood or adolescence significantly hinders cognitive, social, and biological development. Neurobiological studies demonstrate that trauma exposure not only manifests in psychiatric diagnoses such as PTSD but also alters brain structure, particularly when the trauma is prolonged or ongoing. Stress hormones associated with the "fight or flight" response negatively affect the frontal lobes, responsible for executive functions. Consequently, child trauma survivors exhibit developmental delays and impairments that persist over time.

Asylum applicants who arrive in the United States as children or adolescents are particularly vulnerable to the harmful effects of trauma, resulting in developmental immaturity. This may hinder their ability to effectively pursue asylum and adhere to filing deadlines. The asylum application process, which requires multiple retellings of traumatic experiences, is inherently challenging for child trauma victims. Avoidance of trauma reminders is a hallmark of PTSD, and the process exacerbates their difficulties.

Child victims' executive functioning impairments hinder their ability to defer gratification and navigate the asylum process. Mature adults may recognize the long-term benefits of enduring the unpleasant experience, but such foresight requires well-developed frontal lobes.

The definition of "minor" for asylum adjudication purposes is crucial. The distinction between "minor" and "adult" status can determine whether a child with a valid asylum claim is afforded a fair opportunity to succeed at an appropriate age or faces re-traumatization and diminished chances of success. Recognizing the scientific evidence of continued development into the mid-twenties and the unique circumstances of asylum-seeking children and adolescents who have experienced trauma, it is proposed that the term "minor" be defined as individuals under the age of 21.

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Summary of Argument

Children and teenagers who seek asylum in the United States face unique challenges. They have often endured persecution due to their race, religion, or other personal characteristics. Many have experienced violence, either directly or through witnessing it against loved ones. These traumatic experiences can profoundly impact their development.

Recent research shows that the human brain continues to develop well into young adulthood. The prefrontal cortex, responsible for decision-making and impulse control, matures around age 25. This extended developmental period is significant for asylum-seeking children.

Exposure to trauma in childhood can negatively affect brain development. It can impair cognitive function, social skills, and emotional regulation. Studies have shown that the brains of children who experience trauma develop differently than those who do not.

Filing for asylum requires applicants to recount their experiences of persecution, which can be extremely painful and re-traumatizing for children. The process demands strong executive functioning, which may be lacking in child trauma victims.

Given the ongoing brain development and trauma-related challenges faced by asylum-seeking children, it is proposed that the definition of "minor" for asylum adjudication purposes be extended to include individuals under the age of 21. This would provide these vulnerable individuals with a more appropriate timeline and process to seek protection.

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Summary of Argument

Kids and teens who come to the US seeking safety have often been through a lot. They may have been hurt or threatened because of who they are or where they come from. They're afraid to go back home because they think they'll be hurt again.

Most of these kids have been through violence, either against themselves or someone close to them. This can really mess with their brains and emotions. Research shows that kids' brains keep developing into their early 20s. So even though they might be 18 or 19, their brains are still growing and changing.

Trauma and violence can slow down this development. Kids who have been through these things might have trouble with their thinking, emotions, and even their physical health. Their brains might not be as developed as other kids their age, making it harder for them to deal with the stress of applying for safety.

Applying for safety requires kids to talk about the horrible things they've been through, which can be really painful and bring back bad memories. For kids with trauma, this can be especially hard because their brains are wired to avoid reminders of what happened.

Because of all these challenges, it's important to give kids who have been through trauma more time to apply for safety. They should be considered "minors" until they're at least 21, so they have a fair chance to tell their stories and get the protection they need.

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Summary of Argument

Some kids and teens who come to the United States have been through really bad things in their home countries. They might have been hurt or seen their family and friends get hurt. These kids are scared to go back home because they're afraid the bad things will happen again.

When kids go through these bad experiences, it can make it hard for them to think clearly, make good decisions, and control their emotions. It can even change the way their brains grow. The parts of their brains that help them think and make decisions might not grow as well as they should.

Kids who have been through these bad experiences need time to heal. But when they apply for safety in the United States, they have to talk about the bad things that happened to them over and over again. This can be really hard and make them feel bad all over again.

These kids have been through a lot, and they need our help. They deserve a chance to live a safe and happy life. We should make it easier for them to get the safety they need by giving them more time to apply and making it less stressful for them to talk about what happened. By doing this, we can help them heal and have a better future.

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Footnotes and Citation

Cite

Proposed Brief of National Immigrant Women’s Advocacy Project, Lutheran Immigration and Refugee Service, Dr. Giselle Hass, Tahirih Justice Center, and National Center on Domestic Violence, Trauma & Mental Health, In the Matter of Amicus Invitation No. 16-06-09, U.S. Dep’t of Justice Exec. Office for Immigration Review Bd. of Immigration Appeals (Sept. 1, 2016).

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