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).