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Genocide and Severe Past Persecution:

Child Survivors of Genocide
as Per Se Refugees

Hayley N. Evans*

ABSTRACT

The last century witnessed a number of horrific mass tragedies in which a large
number of people were targeted for annihilation due to their nationality, ethnicity,
race, or religion. For these tragedies’ survivors, the trauma can last a lifetime, and
through the eyes of a child, that trauma is all the worse. Both international and
domestic legal systems recognize that children should be treated differently than
adults—for example, in sentencing, criminal procedure, and civil protections. But
U.S. law and academia have been slower to apply international legal standards
about child protection to the domestic asylum context. This Note fills that gap by
arguing that child survivors of genocide should be treated as per se refugees.
Drawing on a review of legal approaches to genocide, the U.S. and international
bases for humanitarian grants of asylum arising out of the severity of past persecu-
tion, and the emerging body of U.S. case law applying child-centered approaches to
asylum claims, this Note is the first to comprehensively apply a child-centered legal
framework to the U.S. context of asylum claims for genocide victims. The Note iden-
tifies four reasons why child genocide survivors should be treated as per se refugees:
(1) the omnipresent nexus of the persecution suffered during a genocide to a statuto-
rily protected ground; (2) the ubiquitous “severity” and “atrociousness” of persecution
suffered during a genocide; (3) though not statutorily required, the lifelong harm of
the experience of genocide as a child; and (4) the exception to cessation for genocide
victims, notwithstanding changed country conditions. With U.S. courts adopting this
approach to asylum claims for children, U.S. child rights and international human
rights considerations can play a critical role in U.S. asylum claim adjudication.

I. INTRODUCTION

Seven-year-old Emma survived by lying against her sister’s already-life-

less body and silencing her breath.1 A group of Hutus had broken into her
family’s house and massacred her parents, her sister, and her with machetes,
* Hayley N. Evans is a J.D. graduate of Harvard Law School, 2019. I am grateful for conversations
with and comments from John Willshire Carrera, Nancy Kelly, Paras Shah, and Ash Stanley-Ryan.
1. Uwase v. Canada, [2007] F.C. 1332, ¶2 (Can.).
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190 Harvard Human Rights Journal / Vol. 32

clubs, rifles, and other weapons.2 President Habayarimana had died just
days before, in an event that catalyzed one of the darkest periods in human
history: the Rwandan genocide.3
Emma is not the only child whose life has been altered by genocide.
From 1933 to 1945, millions of children were targeted during the Holo-
caust; from 1975 to 1979, hundreds of thousands of children were targeted
during the Cambodian genocide; from 1981 to 1983, tens of thousands of
children were targeted in the Guatemalan genocide;4 from April to July
1994, hundreds of thousands of children were targeted during the Rwandan
genocide; from 2003 to the present, tens to hundreds of thousands of chil-
dren were targeted in the Darfur genocide.5 Yet in every genocide, children
have survived. In 2009, a Rwandan genocide survivor said this of his or her
time in Rwanda after the genocide:
Psychologically it is very difficult to deal with this idea that we
have to live with our killers. I passed a big part of my life after
genocide in Kigali, far from my native city and was always afraid.
I know that in the village, survivors are neighbors with the kill-
ers. It’s too much for survivors and for me this is a new way to
abandon survivors a second time in their solitude of genocide, in
their nightmare.6
What does the international community do when these children—or adults
whose childhoods were torn apart by unspeakable violence—leave their
country in search of a place where there is not widespread discriminatory
violence against the physical and moral integrity of a national, ethnic, ra-
cial, or religious group?7 What do states do when these children—or adults
whose childhoods were marred by genocide—knock at their doors searching
for refuge in a place with national mechanisms to deal with identity-based
conflict?8 In the U.S., unlike in sentencing,9 civil protections,10 and crimi-

2. Id.
3. Id.
4. Comm’n for Historical Clarification, GUATEMALA MEMORY OF SILENCE: REPORT OF THE COM-
MISSION FOR HISTORICAL CLARIFICATION, CONCLUSIONS AND RECOMMENDATIONS, ¶110 (1999), https:/
/hrdag.org/wp-content/uploads/2013/01/CEHreport-english.pdf [https://perma.cc/C64E-J8C5].
5. Past Genocides and Mass Atrocities, UNITED TO END GENOCIDE, http://endgenocide.org/learn/
past-genocides [https://perma.cc/GD5X-2SGR].
6. Noam Schimmel, A Safe Place to Call Home: Securing the Right of Rwandan Genocide Survivors to
Resettlement Outside Rwanda, J. OF HUMANITARIAN ASSISTANCE (2010), https://sites.tufts.edu/jha/
archives/688 [https://perma.cc/HZ66-NJZ6].
7. See Office on Genocide Prevention & The Responsibility to Protect, FRAMEWORK OF ANALYSIS
FOR ATROCITY CRIMES: A TOOL FOR PREVENTION, at 19 (Oct. 2014), http://www.un.org/en/genocide
prevention/documents/about-us/Doc.3_Framework%20of%20Analysis%20for%20Atrocity%20Crimes
_EN.pdf [https://perma.cc/S59G-4PBJ].
8. See id. at 18.
9. See, e.g., Miller v. Alabama, 567 U.S. 460 (2012); Roper v. Simmons, 543 U.S. 551 (2005).
10. See, e.g., Prince v. Massachusetts, 321 U.S. 158 (1944).
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2019 / Genocide and Severe Past Persecution 191

nal procedure11—wherein courts apply a particular adjudicatory approach

to children—it depends.
Even though the U.S. can grant asylum as a matter of discretion for
particularly severe past persecution alone,12 the way adjudicators utilize this
discretion can lead to vastly different results.13 It is for this reason that an
Afghan national whose family was believed to be assisting the mujahidin
and who was subsequently detained, interrogated, and tortured was granted
asylum,14 while a different Afghan national who was detained and beaten
due to his family’s likely support of a local mujahidin faction was not.15 This
discretion does not only lead to disparate results for adults, but also for
children. Removal to a place where an individual suffered a genocide as a
child is inhumane, and applying judicial discretion to do so shocks the
conscience. Child survivors of genocide should therefore be treated as per se
refugees.
This Note demonstrates that U.S. courts should treat child survivors of
genocide as per se refugees because of genocide’s severity, as exacerbated by
children’s immaturity, undeveloped coping mechanisms, and relative de-
pendency.16 This Note will first discuss the historical context of the concept
of genocide, as originally coined by Raphael Lemkin and as later solidified
in international law through instruments like United Nations Resolution
96(I) and the 1948 Convention on the Prevention and Punishment of the
Crime of Genocide (“Genocide Convention”). Second, the Note will explore
the legal underpinnings for a humanitarian grant of asylum arising out of
the severity of past persecution. Third, the Note will analyze the emerging
body of case law utilizing a child-centric approach to grants of asylum.
Fourth, the Note will explain that child survivors of genocide should be
treated as a per se refugees based on (1) the omnipresent nexus of the perse-
cution suffered during a genocide to a statutorily protected ground; (2) the
ubiquitous “severity” and “atrociousness” of persecution suffered during a
genocide; (3) though not statutorily required, the lifelong harm of the expe-
rience of genocide as a child; and (4) the exception to cessation for genocide
victims, notwithstanding changed country conditions. The U.S. court sys-
tem should consider taking this Note’s approach to asylum adjudication as

11. See, e.g., Juvenile Justice and Delinquency Prevention Act, 42 U.S.C. § 5601 (1974).
12. See Matter of Chen, 20 I.&N. Dec. 16, 18-19, 21 (BIA 1989). Here, “alone” means without a
“well-founded fear” of future persecution.
13. Kate Aschenbrenner, Discretionary (In)Justice: The Exercise of Discretion in Claims for Asylum, 45
U. MICH. J. L. REFORM 595, 623 (2012).
14. In re B-, Interim Dec. 3251 (BIA 1995) (cited in Aschenbrenner, supra note 13). Note, how- R
ever, that the Board did not describe its decision as a discretionary one in this case.
15. Matter of N-M-A-, 22 I.&N. Dec. 312, 325–26 (BIA 1998) (cited in Aschenbrenner, supra
note 13). R
16. UNHCR, GUIDELINES ON INTERNATIONAL PROTECTION: CHILD ASYLUM CLAIMS UNDER ARTI-
CLES 1(A)2 AND 1(F) OF THE 1951 CONVENTION AND/OR 1967 PROTOCOL RELATING TO THE STATUS OF
REFUGEES, ¶15, HCR/GIP/09/08 (Dec. 22, 2009) (“Immaturity, vulnerability, undeveloped coping
mechanisms and dependency as well as the differing stages of development and hindered capacities may
be directly related to how a child experiences or fears harm.”).
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192 Harvard Human Rights Journal / Vol. 32

a way to better protect and rehabilitate children whose rights were once
violated so acutely.

II. GENOCIDE

Speaking of the beginning of the mass murder of the Jewish people and
what he perceived would “follow in the bloody ruts of Hitler’s tanks,” Win-
ston Churchill called genocide “a crime without a name.”17 Polish-Jewish
lawyer Raphael Lemkin later coined this crime “genocide” in his 1944 work,
Axis Rule in Occupied Europe.18 By 1946, the United Nations (“UN”) had
adopted General Assembly resolution 96 (I), affirming that “genocide is a
crime under international law which the civilized world condemns.”19 Ac-
cording to Article II of the Convention on the Prevention and Punishment
of the Crime of Genocide (“Genocide Convention”),
genocide means any of the following acts committed with the
intent to destroy, in whole or in part, a national, ethnical, racial
or religious group, as such: (a) Killing Members of the group; (b)
Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calcu-
lated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the
group; (e) Forcibly transferring children of the group to another
group.20
As defined in the Genocide Convention,21 the 1949 Geneva Conventions22
and their 1977 Additional Protocols,23 and the 1998 Rome Statute of the
International Criminal Court,24 genocide is one of three “atrocity crimes.”
The atrocity crimes—genocide, crimes against humanity, and war crimes—
are considered the most serious crimes against humankind, as crimes that

17. Winston Churchill, Prime Minister, United Kingdom, Broadcast to the World About the
Meeting with President Roosevelt (Aug. 24, 1941).
18. RAPHAEL LEMKIN, AXIS RULE IN OCCUPIED EUROPE: LAWS OF OCCUPATION, ANALYSIS OF
INTERNMENT, PROPOSALS FOR REDRESS 79 (1944).
19. G.A. Res. 96 (I), at 188–89, U.N. Doc. A/64/Add. 1 (Jan. 31, 1947).
20. Convention on the Prevention and Punishment of the Crime of Genocide art. 2, Dec. 9, 1948,
102 Stat. 3045, 78 U.N.T.S. 277.
21. Id.
22. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Ame-
lioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug.
12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of
War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection
of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287.
23. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Pro-
tection of Victims of International Armed Conflicts (Protocol I), Jun. 8, 1977, 1125 U.N.T.S. 3; Proto-
col Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of Non-International Armed Conflicts (Protocol II), Jun. 8, 1977, 1125 U.N.T.S. 609.
24. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, art. 6.
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2019 / Genocide and Severe Past Persecution 193

are an affront to humanity.25 Under international law, genocide is commit-

ted against members of a national, ethnical, racial, or religious group.26
Although victims of genocide are individuals, “they are targeted because of
their membership, real or perceived, in one of these groups.”27
When the UN Special Advisers on the Prevention of Genocide and on
the Responsibility to Protect created the UN’s Framework of Analysis for
Atrocity Crimes: A Tool for Prevention in 2014, they set forth eight general
risk factors common to all atrocity crimes, as well as two risk factors spe-
cific to genocide.28 The general risk factors for atrocity crimes—including
genocide—are: situations of armed conflict or other forms of instability;
record of serious violations of international human rights and humanitarian
law; weakness of state structures; motives or incentives; capacity to commit
atrocity crimes; absence of mitigating factors; enabling circumstances or
preparatory action; and triggering factors.29 Similarly, the specific risk fac-
tors for genocide are intergroup tensions or patterns of discrimination
against protected groups and signs of intent to destroy in whole or in part a
protected group.30
The UN framework also includes a number of indicators to assist in de-
termining the degree to which an individual risk factor is present.31 For
genocide, these indicators comprise signs such as lack of national mecha-
nisms or initiatives to deal with identity-based tensions or conflict; history
of atrocity crimes committed with impunity against protected groups; and
attacks against or destruction of homes, farms, businesses or other liveli-
hoods of a protected group and/or of their cultural and religious symbols
and property.32 As will be shown later, these indicators can assist in deter-
mining whether a country has meaningfully changed such that a refugee
should no longer be considered deserving of international asylum.

III. HUMANITARIAN GRANT OF ASYLUM ARISING OUT OF SEVERITY

OF PAST PERSECUTION

In international law, as well as in many domestic jurisdictions, there is a

norm which allows for asylum to be granted not on the basis of a “well-
founded fear of being persecuted,”33 but on the basis of the severity of past

25. Office on Genocide Prevention & the Responsibility to Protect, supra note 7, at 1. R
26. Id.
27. Id.
28. Id.
29. Id. at 10–17.
30. Id. at 18–19.
31. Id. at 6.
32. Id. at 18–19.
33. Convention and Protocol Relating to the Status of Refugees, art. I(A)(2), July 28, 1951, 19
U.S.T. 6259, 189 U.N.T.S. 150 [hereinafter Refugee Convention].
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194 Harvard Human Rights Journal / Vol. 32

persecution alone.34 The United Nations High Commissioner for Refugees

(“UNHCR”) labels this concept “compelling reasons arising out of past per-
secution.” Articles 1C(5) and 1C(6) of the 1951 Convention Relating to the
Status of Refugees (“Refugee Convention”), also known as the “general cessa-
tion” clauses, provide for clearly defined conditions under which refugee
status ends, with certain exceptions to this cessation of status.35 Articles
1C(5) and 1C(6) provide that the Refugee Convention ceases to apply to a
refugee if:
(5) He can no longer, because the circumstances in connexion
with which he has been recognized as a refugee have ceased to
exist, continue to refuse to avail himself of the protection of the
country of his nationality;
Provided that this paragraph shall not apply to a refugee falling
under section A(1) of this Article who is able to invoke compelling
reasons arising out of previous persecution for refusing to avail himself
of the protection of the country of his nationality;
(6) Being a person who has no nationality he is, because the cir-
cumstances in connexion with which he has been recognized as a
refugee have ceased to exist, able to return to the country of his
former habitual residence;
Provided that this paragraph shall not apply to a refugee falling
under section A(1) of this Article who is able to invoke compelling
reasons arising out of previous persecution for refusing to return to the
country of his former habitual residence.36
In other words, even if a refugee would ordinarily be covered by a cessation
clause and cease to be awarded protection under the Refugee Convention, if
the refugee can demonstrate compelling reasons arising out of past persecu-
tion that he or she should continue to refuse to avail him or herself of the
protection of the country of his or her nationality, he or she will not be
required to repatriate. The UNHCR further clarifies this principle in its
Handbook on Procedures and Criteria for Determining Refugee Status,37 Guidelines

34. See, e.g., Matter of Chen, 20 I.&N. Dec. at 21 (holding that the applicant’s severe religious
persecution during the Chinese Cultural Revolution created a genuine subjective fear of returning to
China); Matter of S-A-K & H-A-H, 24 I.&N. Dec. 464 (BIA 2008) (finding severe past persecution
where the applicant continually suffered pain from female genital mutilation); Ghotra v. Gonzales, 179
F.App’x 989 (9th Cir. 2006) (finding intermittent torture via a heavy wood roller and electrical shocks
to the mouth constituted severe past persecution).
35. Refugee Convention, supra note 33, art. 1c(5)–(6). R
36. Id. (emphasis added).
37. UNHCR, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS
UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES
[hereinafter UNHCR, HANDBOOK], ¶136, HCR/IP/4/ENG/REV.1 (1979) (reedited Jan. 1992) (“The
second paragraph of this clause contains an exception to the cessation provision contained in the first
paragraph. It deals with the special situation where a person may have been subjected to very serious
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2019 / Genocide and Severe Past Persecution 195

on International Protection,38 Guidelines on Exemption Procedures in respect of Ces-

sation Declarations39 and Note on Cessation Clauses.40 The Guidelines on Interna-
tional Protection explain it most clearly:
[t]his exception is intended to cover cases where refugees, or their
family members, have suffered atrocious forms of persecution and
therefore cannot be expected to return to the country of origin or
former habitual residence. This might, for example, include “ex-
camp or prison detainees, survivors or witnesses of violence
against family members, including sexual violence, as well as se-
verely traumatised persons.”41

persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have
occurred in his country of origin. The reference to Article 1 A (1) indicates that the exception applies to
‘statutory refugees’. At the time when the 1951 Convention was elaborated, these ‘formed the majority
of refugees. The exception, however, reflects a more general humanitarian principle, which could also be
applied to refugees other than statutory refugees. It is frequently recognized that a person who—or
whose family—has suffered under atrocious forms of persecution should not be expected to repatriate.
Even though there may have been a change of regime in his country, this may not always produce a
complete change in the attitude of the population, nor, in view of his past experiences, in the mind of
the refugee.”).
38. UNHCR, GUIDELINES ON INTERNATIONAL PROTECTION: CESSATION OF REFUGEE STATUS
UNDER ARTICLE 1C(5) AND (6) OF THE 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES
(THE “CEASED CIRCUMSTANCES” CLAUSES [hereinafter UNHCR GUIDELINES]), ¶¶20–21, HCR/GIP/03/
03 (Feb. 10, 2003) (“Both Article 1C(5) and (6) contain an exception to the cessation provision, al-
lowing a refugee to invoke ‘compelling reasons arising out of previous persecution’ for refusing to re-
avail himself or herself of the protection of the country of origin. This exception is intended to cover
cases where refugees, or their family members, have suffered atrocious forms of persecution and therefore
cannot be expected to return to the country of origin or former habitual residence. This might, for
example, include ‘ex-camp or prison detainees, survivors or witnesses of violence against family mem-
bers, including sexual violence, as well as severely traumatised persons. It is presumed that such persons
have suffered grave persecution, including at the hands of elements of the local population, and cannot
reasonably be expected to return.’ Children should also be given special consideration in this regard, as
they may often be able to invoke ‘compelling reasons’ for refusing to return to their country of origin.
Application of the ‘compelling reasons’ exception is interpreted to extend beyond the actual words of
the provision to apply to Article 1A(2) refugees. This reflects a general humanitarian principle that is
now well-grounded in State practice.”).
39. UNHCR, GUIDELINES ON EXEMPTION PROCEDURES IN RESPECT OF CESSATION DECLARATIONS
(Dec. 2011), ¶25, http://www.refworld.org/pdfid/4eef5c3a2.pdf [https://perma.cc/97KC-DRYL] (“The
‘compelling reasons’ assessment concerns an exception to the decision that cessation is applicable and
reflects a general humanitarian principle. This exception is intended to cover refugees, or their family
members, who have suffered ‘very serious persecution in the past and will therefore not cease to be a
refugee, even if fundamental changes have occurred in his [or her] country of origin’. The fact that past
persecution was of a generalized character does not preclude the application of the ‘compelling reasons’
exception.”).
40. UNHCR, Note on Cessation Clauses, ¶24, UN doc. EC/47/SC/CRP.30 (May 30, 1997) (“The
‘ceased circumstances’ cessation clause contains a proviso which allows a refugee to invoke ‘compelling
reasons arising out of previous persecution’ for refusing to re-avail himself or herself of the protection of
the country of origin. This proviso is intended to cover cases where refugees or family members have
suffered atrocious forms of persecution and, due to the trauma, cannot be expected to associate again
with their country of origin. The proviso has also been interpreted to cover those refugees who had
suffered persecution at the hands of elements of the local population, who may not necessarily have
changed their attitude despite a change in the regime.”).
41. UNHCR, GUIDELINES, supra note 38, ¶20. R
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Because the U.S. grounded its asylum law in international law—tracking

the language of the Refugee Convention almost verbatim—it is unsurpris-
ing that the U.S. also has a similar exception for victims of severe past
persecution.42 In fact, when the U.S. brought its asylum law into conform-
ance with international law, it even added past persecution as a separate
basis for eligibility, instead of merely viewing it as evidence of a well-
founded fear of persecution.43 Under 8 C.F.R. § 208.13(b)(1)(iii) and 8
C.F.R. § 1208.13(b)(1)(iii), the Executive Office for Immigration Review
(“EOIR”) or the U.S. Citizenship and Immigration Services (“USCIS”) can
discretionarily grant asylum in the absence of a well-founded fear of perse-
cution if “[t]he applicant has demonstrated compelling reasons for being
unwilling or unable to return to the country arising out of the severity of
the past persecution” or “[t]he applicant has established that there is a rea-
sonable possibility that he or she may suffer other serious harm upon re-
moval to that country.”44 For the purposes of the humanitarian grants of
asylum discussed in this Note, the former discretionary grant is most
relevant.
The seminal U.S. case allowing for a grant of asylum based solely on the
severity of the applicant’s past persecution—even “where there is little
threat of future persecution”—is Matter of Chen.45 In Matter of Chen, respon-
dent Chen was the son of a Christian minister in China during the Cultural
Revolution.46 As a result of his father’s status, while in China the respon-
dent’s home was ransacked, he was not allowed to attend school, and he was
continually abused and humiliated, such that his hearing was irreparably
damaged.47 Chen “testified that he would kill himself if forced to return to
China.”48 Ultimately, the Board of Immigration Appeals (“BIA”)—the high-
est U.S. administrative body for interpreting and applying immigration
laws49—determined that asylum should be granted to Chen as a matter of
discretion, due to his having clearly established that he and his family had
suffered persecution, and notwithstanding the regime change since the Cul-
tural Revolution.50 In so holding, the BIA quoted the Handbook on Proce-
dures and Criteria for Determining Refugee Status: “It is frequently recognized

42. See I.N.A. § 101(a)(42)(A), 8 U.S.C.A. § 1101(a)(42)(A) (2006).

43. Anker et al., Mejilla-Romero: A New Era For Child Asylum, 12-09 IMMIGRATION BRIEFINGS 1, 2
(2012). Compare I.N.A. § 101(a)(42)(A), 8 U.S.C.A. § 1101(a)(42)(A) (2006) (“persecution or a well-
founded fear of persecution”) with Convention and Protocol Relating to the Status of Refugees, supra
note 33, art. 1(A)(2) (“well-founded fear of being persecuted”). R
44. 8 C.F.R. § 208.13(b)(1)(iii)(A)–(B).
45. Matter of Chen, 20 I.&N. Dec. 16, 19 (BIA 1989).
46. Id. at 19.
47. Id. at 20.
48. Id. at 20.
49. See Executive Office for Immigration Review: About the Office, THE UNITED STATES DEPART-
MENT OF JUSTICE, https://www.justice.gov/eoir/board-of-immigration-appeals [https://perma.cc/F96Y-
JQN9].
50. Id. at 21.
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that a person who—or whose family—has suffered under atrocious forms of

persecution should not be expected to repatriate.”51
After Matter of Chen, a number of other cases developed the contours of
the “past-persecution-only” exception in more detail. In Bucur v. I.N.S., the
Seventh Circuit read 8 C.F.R. § 2018.13(b)(1)(ii) “to be designed for the
case of the German Jews, the victims of the Chinese ‘Cultural Revolution’
. . . , survivors of the Cambodian genocide, and a few other such extreme
cases.”52 In Matter of N-M-A-, the BIA noted that “asylum is warranted for
‘humanitarian reasons’ only if [the applicant] demonstrates that in the past
[he] or his family has suffered under atrocious forms of persecution.”53 In
Lal v. I.N.S., the Ninth Circuit held that severe past persecution does not
require an ongoing disability,54 and in Ordonez-Quino v. Holder, the First
Circuit indicated that extraordinary suffering is required, and “[a] showing
of severe harm and the long-lasting effects of such harm are factors to con-
sider when evaluating the severity of past persecution.55
In sum, the U.S. law surrounding a grant of asylum based on severe past
persecution alone requires a showing of extraordinary past persecution re-
lated to one of the five protected grounds for asylum—race, religion, na-
tionality, membership in a particular social group, or political opinion.56
Even if the Department of Homeland Security (“DHS”) has successfully re-
butted that the applicant has a well-founded fear of persecution, the appli-
cant may still be granted asylum on a discretionary basis, for compelling
reasons.57 In determining whether the applicant has established “compelling
reasons for being unwilling or unable to return to the country [of origin]
arising out of the severity of the past persecution, decision-makers should
consider not only extreme physical persecution, but also mental, emotional,
and psychological suffering resulting in lasting effects.”58

IV. CHILD-CENTERED APPROACH TO ASYLUM CLAIMS

In recent years, courts have begun to apply a more child-centered ap-

proach to adjudication in general, and to asylum claims in particular. Do-
ing so accords with the general child protective principles advocated by the

51. Id. at 19 (quoting UNHCR, HANDBOOK, supra note 37, ¶136 (1979) (reedited Jan. 1992)). R
52. Bucur v. I.N.S., 109 F.3d 399, 405 (7th Cir. 1997).
53. Matter of N-M-A-, 22 I.&N. Dec. at 325 (quoting Kazlauskas v. INS, 46 F.3d 902 (9th Cir.
1995)) (internal citations omitted).
54. Lal v. I.N.S., 255 F.3d 998, 1003 (9th Cir. 2001), amended by 268 F.3d 1148 (9th Cir. 2001).
55. Ordonez-Quino v. Holder, 760 F.3d 80, 94 (1st Cir. 2014) (“To qualify for humanitarian asy-
lum based on the severity of past persecution, an applicant must prove that he or she experienced
‘extraordinary suffering’ in the past . . . A showing of severe harm and the long-lasting effects of such
harm, such as an ongoing or permanent disability, may support a discretionary grant of humanitarian
asylum.”).
56. I.N.A. § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (2006).
57. DEBORAH E. ANKER, LAW OF ASYLUM IN THE UNITED STATES 1068 (2017).
58. Id.
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UN, with Article 3(1) of the UN Convention on the Rights of the Child
(“CRC”) stating: “In all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a
primary consideration.”59 Similarly, in regard to the application of the “com-
pelling reasons” exception to cessation of refugee status, the UNHCR states:
“Children should also be given special consideration in this regard, as they
may often be able to invoke ‘compelling reasons’ for refusing to return to
their country of origin.”60
In the U.S., this child-centered approach has manifested itself not only in
statutory language and policy guidance,61 but also in case law. Mejilla-Ro-
mero v. Holder,62 the case of a Honduran child’s years-long fight for asylum
after brutal attacks in Honduras arising from his family’s land reform strug-
gles, represents “a major breakthrough for children asylum seekers.”63 At the
age of eleven, Mejilla-Romero illegally entered the U.S. after suffering ex-
treme violence at the hands of both a neighbor and a street gang.64 After
multiple reviews and re-hearings of the applicant’s case, as well as a scath-
ing dissent applying a child-sensitive approach to Mejilla-Romero’s claim,
the First Circuit finally instructed the BIA to remand the case to an immi-
gration judge (“IJ”) “in order that the IJ can evaluate the testimony and
supporting evidence in light of the Guidelines’ standards regarding child
asylum seekers.”65 In a similar manner, in Santos-Guaman v. Sessions,66 the
First Circuit remanded an indigenous Ecuadoran child’s claim, finding that
the BIA and IJ had failed to apply “the childhood standard” in analyzing the
mistreatment that Santos Guaman suffered as a child.67
In Hernandez-Ortiz v. Gonzales,68 applicants Guillermo and Florentino
were Guatemalan nationals of Mayan descent.69 At seven and nine years old,

59. Convention on the Rights of the Child art. 3(1), Sept. 2, 2009, 1577 U.N.T.S. 3.
60. UNHCR, GUIDELINES, supra note 38, ¶20. R
61. See, e.g., Memorandum from MaryBeth Keller, Chief Immigration Judge, EOIR Guidelines for
Immigration Court Cases Involving Juveniles, Including Unaccompanied Alien Children, 3 (Dec. 20,
2017), https://www.justice.gov/eoir/file/oppm17-03/download [https://perma.cc/92RV-Z3EY] (herein-
after EOIR Children’s Guidelines or DOJ Children’s Guidelines); see also U.S. Citizenship and Immigra-
tion Services, Asylum Officer Basic Training Course, Guidelines for Children’s Asylum Claims 16–17
(2009), https://cliniclegal.org/sites/default/files/AOBTC_Lesson_29_Guidelines_for_Childrens_Asylum
_Claims_0.pdf [https://perma.cc/CUZ2-KHAK].
62. Mejilla-Romero v. Holder, 600 F.3d 63 (1st Cir. 2010), vacated, 614 F.3d 572 (1st Cir. 2010).
63. Anker et al., supra note 43, at 1. R
64. Mejilla-Romero v. Holder, 600 F.3d 63, 65–66 (1st Cir. 2010), vacated, 614 F.3d 572 (1st Cir.
2010).
65. See Mejilla-Romero v. Holder, 614 F.3d 572, 573 (1st Cir. 2010) (remanding for consideration
“in light of the Guidelines’ [for Children’s Asylum Claims (1998) and Guidelines for Immigration
Court Cases Involving Unaccompanied Alien Children (2004)] standards regarding children asylum
seekers”).
66. See Santos-Guaman v. Sessions, 891 F.3d 12 (1st Cir. 2018).
67. Id. at 18.
68. Hernandez-Ortiz v. Gonzales, 496 F.3d 1042 (9th Cir. 2007).
69. Id. at 1043.
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the brothers suffered severe trauma at the hands of the Guatemalan army,
which killed their other brother and drove them out of their home.70 The
Ninth Circuit eventually vacated the IJ’s denial of asylum and its removal
order, in part because the IJ failed to “look at the events from [the chil-
dren’s] perspective” and “measure the degree of their [Guillermo and Floren-
tino’s] injuries by their impact on children of their ages.”71 Similarly, in
Jorge-Tzoc v. Gonzales,72 applicant Jorge-Tzoc and his family, all
Guatemalans of Mayan Indian descent, were “singled out by the govern-
ment of Guatemala for persecution.”73 When Jorge-Tzoc was only seven
years old, his sister, her husband, and her husband’s mother were slain by
soldiers.74 Ultimately, the court remanded the IJ’s denial of asylum and
withholding of removal because the IJ “failed to . . . address the harms
Jorge-Tzoc and his family incurred cumulatively and from the perspective
of a small child.”75
Finally, although the First Circuit denied the recent case, Olmos-Colaj v.
Sessions,76 for review, Circuit Judge Barron’s dissent captures the principle
illustrated above. Yolanda and Consuelo Olmos-Colaj, sisters from Guate-
mala, are members of the indigenous Maya Quiché group.77 During their
childhood, two of the Olmos-Colaj sisters’ relatives were raped and mur-
dered in the Guatemalan Civil War.78 While they were not personally in-
jured, the level of violence and threats against the applicants’ father led the
girls to move with their mother to Santa Cruz.79 In Santa Cruz, Consuelo
was attacked and harassed, which caused her to emigrate to the U.S.; Yo-
landa soon followed, lacking a support system in Guatemala.80 Though
their petition for review was ultimately denied, Judge Barron’s dissent con-
vincingly applies the child-centered approach that previous case law has
supported. Quoting the Ordonez-Quino Court’s citation of Hernandez-Ortiz,
Judge Barron states, “[W]here the events that form the basis of a persecu-
tion claim were perceived when the petitioner was a child, the fact-finder
must ‘look at the events from [the child’s] perspective, [and] measure the
degree of [his] injuries by their impact on [a child] of [his] age.”81 Further
drawing from the Ordonez-Quino Court, Judge Barron notes, “[T]he BIA
must take the ‘harms [a child’s] family suffered into account’ and consider

70. Id. at 1044.

71. Id. at 1046.
72. Jorge-Tzoc v. Gonzales, 435 F.3d 146 (2d Cir. 2006) (per curiam).
73. Id. at 147.
74. Id. at 147–48.
75. Id. at 150.
76. Olmos-Colaj v. Sessions, 886 F.3d 168 (1st Cir. 2018).
77. Id. at 171.
78. Id.
79. Id.
80. Id. at 171–72.
81. Olmos-Colaj v. Sessions, 886 F.3d at 178 (Barron, J., dissenting) (quoting Ordonez-Quino, 760
F.3d at 91).
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them ‘from the perspective of a child’ in determining whether those child-

hood experiences amounted to persecution.”82 This Note will next apply
this context-sensitive approach to explain why child survivors of genocide
should be treated as per se refugees.

V. CHILD SURVIVORS OF GENOCIDE AS PER SE REFUGEES

A. A survivor of genocide seeking asylum will always have a nexus to a

statutory ground based on the persecution suffered
during that genocide.
Based on genocide’s definition, the asylum claim of a child who has been
victimized by genocide will have a nexus to a protected ground. An indi-
vidual who has survived a genocide is one who has been targeted, with the
targeter intending to destroy that individual on account of his or her mem-
bership in a particular national, ethnical, racial, or religious group.83 As
nationality, ethnicity, race, and religion are all protected grounds for asy-
lum,84 that individual would, by default, have established one of the show-
ings necessary for a grant of past-persecution-only asylum.

B. The persecution suffered during a genocide is always “severe” and “atrocious.”

As outlined in Section III, supra, in order for an applicant to qualify for
the discretionary grant of asylum based on past persecution alone, the perse-
cution that the applicant has suffered must be sufficiently severe. Different
cases utilize various words like “atrocious,”85 “extreme,”86 and “extraordinary
suffering”87 to describe the type of persecution required for such a grant. In
its Basic Training Course, the USCIS Asylum Office lists several factors to be
considered in exercising discretion in past-persecution-only asylum cases.
These factors include:
i) duration of persecution; ii) intensity of persecution; iii) age at
the time of persecution; iv) persecution of family members; v)
conditions under which persecution was inflicted; vi) whether it
would be unduly frightening or painful for the applicant to re-
turn to the country of persecution; [and] vii) whether there are
continuing health or psychological problems or other negative
repercussions stemming from the harm inflicted.88

82. Id.
83. Convention on the Prevention and Punishment of the Crime of Genocide, supra note 20, art. 2. R
84. I.N.A. § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (2006).
85. Matter of N-M-A-, 22 I.&N. Dec. 312, 325 (BIA 1998).
86. Bucur v. I.N.S., 109 F.3d 399, 405 (7th Cir. 1997).
87. Zarouite v. Gonzales, 424 F.3d 60, 64 (1st Cir. 2005).
88. Asylum Officer Basic Training Course, Asylum Eligibility Part I: Definition of Refugee; Definition of
Persecution; Eligibility Based on Past Persecution, HANOVER LAW P.C., at 49 (Mar. 6, 2009), https://www
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2019 / Genocide and Severe Past Persecution 201

On balance, these factors weigh toward granting child survivors of genocide

asylum in all instances.
First, the duration of persecution during a genocide is protracted. Not
only are genocides themselves often long—with the shortest, the Rwandan
genocide, still lasting three months89—but also the genocide-related perse-
cution begins before, and continues after, the actual “genocidal acts.”90 Sec-
ond, the intensity of persecution during a genocide is unfathomable. For
example, relief workers found a ten-year-old boy who had been orphaned in
the Rwandan genocide sitting next to other children’s lifeless bodies; he
barely spoke and his extremities’ contractures prevented their use.91 Simi-
larly, a survivor of Pol Pot and the Khmer Rouge’s genocidal regime re-
counted fellow inmates being whipped raw, hogtied to wooden bars, and
having their fingernails yanked out.92 He recalls: “I thought that was the
end of my life . . . In my room people kept dying, one or two every day.”93
Third, the fact that an individual was a child at the time of a genocide
strengthens the claim that the persecution suffered was severe.94 Not only
do children actually suffer persecution differently than adults do based on a
number of innate physiological and relative differences,95 but the law also
reflects this fact. The Immigration and Naturalization Service’s Guidelines
for Children’s Asylum Claims explicitly state, “[t]he harm a child fears or
has suffered . . . may be relatively less than that of an adult and still qualify
as persecution.”96
Fourth, genocide survivors typically have seen their family members per-
secuted—and even killed. In a survey of sixty-eight Rwandan genocide sur-
vivors, 41 percent had witnessed the death of their own parents, and 77

.hanoverlawpc.com/wp-content/uploads/2018/01/Asylum-officers-Guide-to-Approving-Asylum-applica
tions.pdf [https://perma.cc/RU8T-78B5].
89. The Rwandan Genocide, UNITED TO END GENOCIDE, http://endgenocide.org/learn/past-geno
cides/the-rwandan-genocide/ [https://perma.cc/RLT5-9NR8].
90. Cf. Office on Genocide Prevention & The Responsibility to Protect, supra note 7, at 1. R
91. Paul Geltman & Eric Stover, Letter From Kigali: Genocide and the Plight of Children in Rwanda,
277 JAMA 289, 290 (1997).
92. Christiane Amanpour, Survivor recalls horrors of Cambodia genocide, CNN (Dec. 10, 2008), http://
www.cnn.com/2008/WORLD/asiapcf/04/07/amanpour.pol.pot/index.html [https://perma.cc/WU2F-F2
WM].
93. Id.
94. See Schimmel, supra note 6. See also UNHCR, GUIDELINES, supra note 38, ¶¶20–21 (“Children R
should also be given special consideration in this regard, as they may often be able to invoke ‘compel-
ling reasons’ for refusing to return to their country of origin. Application of the ‘compelling reasons’
exception is interpreted to extend beyond the actual words of the provision to apply to Article 1A(2)
refugees. This reflects a general humanitarian principle that is now well-grounded in State practice.”).
95. UNHCR, supra note 16, ¶15; Save the Children & UNICEF, The evolving capacities of the child R
(2005) at 31–41 https://www.unicef-irc.org/publications/pdf/evolving-eng.pdf [https://perma.cc/
C4WA-Y8R9].
96. Jeff Weiss, GUIDELINES FOR CHILDREN’S ASYLUM CLAIMS 19 (Dec. 10, 1998), https://www
.uscis.gov/sites/default/files/USCIS/Laws%20and%20Regulations/Memoranda/Ancient%20History/Chil
drensGuidelines121098.pdf [https://perma.cc/6KLX-ZZ7C].
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202 Harvard Human Rights Journal / Vol. 32

percent had witnessed at least one person being brutally killed.97 In another
survey, 90 percent of child survivors of the Rwandan genocide had exper-
ienced a death in the immediate family.98 Fifth, the conditions under which
persecution is inflicted during a genocide are unforgiving. One study notes:
The amount of violence exposure, loss, and threat that these chil-
dren experienced is difficult to comprehend. Their daily lives in-
clude intrusions, avoidance reactions, and other posttraumatic
problems, while they face the formidable task of trying to make
sense of incomprehensible events. Seeing their loved ones
macheted to death, hearing others screaming for help, hiding
under dead bodies to survive, and seeing trusted adults, and
sometimes children, participating in the killings have left strong
impressions on these children’s minds.99
Sixth, child survivors of genocide often find it unduly frightening or pain-
ful to return to their country of persecution. Finally, as will be shown in
Subsection C, infra, children who survive often have continuing psychologi-
cal problems stemming from the harm inflicted on them during a geno-
cide.100 Thus, the persecution suffered during a genocide is always “severe”
and “atrocious.”
Moreover, the UNHCR Guidelines on International Protection make clear
what sort of persecution is considered “grave” or “atrocious,”101 and genocide
plainly fits within the confines of its description:
This exception [to the cessation provision] is intended to cover
cases where refugees, or their family members, have suffered atro-
cious forms of persecution and therefore cannot be expected to
return to the country of origin or former habitual residence. This
might, for example, include “ex-camp or prison detainees, survi-
vors or witnesses of violence against family members, including
sexual violence, as well as severely traumatised persons. It is pre-
sumed that such persons have suffered grave persecution, includ-
ing at the hands of elements of the local population, and cannot
reasonably be expected to return.”102

97. Susanne Schaal & Thomas Elbert, Ten Years After the Genocide: Trauma Confrontation and Posttrau-
matic Stress in Rwandan Adolescents, 19 J. OF TRAUMATIC STRESS 95, 99 (2006).
98. Geltman & Stover, supra note 89, at 290, citing L. Gupta, Exposure to War Related Violence Among
Rwandan Children and Adolescents: A Brief Report on the National Baseline Trauma Survey, UNICEF
TRAUMA RECOVERY PROGRAM (1996).
99. Atle Dyregrov et al., Trauma Exposure and Psychological Reactions to Genocide Among Rwandan
Children, 13 J. OF TRAUMATIC STRESS 3, 13–14 (2000).
100. See, e.g., id. at 14–15.
101. UNHCR, GUIDELINES, supra note 38, ¶¶20–21. R
102. Id.
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C. Even though past-persecution-only asylum does not require a continuing

harm from that persecution, evidence shows that child survivors
of genocide experience harm for many years after.
As described in Section III, supra, a “showing of severe harm and the
long-lasting effects of such harm, such as an ongoing or permanent disabil-
ity, may support a discretionary grant of humanitarian asylum,”103 though
the requirement that an ongoing disability be demonstrated in order to
warrant asylum under the Matter of Chen exception “is an untenable inter-
pretation of the exception.”104 Thus, while a showing of severe harm and its
long-lasting effects can weigh in favor of a grant of past-persecution-only
asylum, it is not necessary for such a grant. Notwithstanding its superfluity
to the grant of asylum for severe past persecution, studies demonstrate that
child survivors of genocide suffer lasting psychological and emotional
effects.
Soon after a genocide, the post-traumatic effects have already set in for
children. Only three months after the Rwandan genocide, in late 1994, a
small-scale psychiatric morbidity survey of adolescents and adults in central
Rwanda found that 90 percent of those surveyed showed symptoms of psy-
chological trauma.105 Similarly, Dyregrov et al. interviewed 3,030 children
and adolescents thirteen months after the Rwandan genocide and concluded
that 79 percent of the survivors showed moderate to severe posttraumatic
stress reactions.106
It appears that the effects of genocidal trauma persist later on in adoles-
cence and into early adulthood. In a study examining the rate of traumatic
event exposure and PTSD in a sample of orphaned Rwandan adolescents
aged thirteen to twenty-three years, ten years after the genocide, findings
indicated that most orphans displayed high rates of PTSD and posttrau-
matic stress symptoms.107 While only 44 percent of the orphans met full
DSM-IV criteria for PTSD, all of the child genocide survivors reported no-
table levels of post-traumatic stress responses, with an approximate average
of nine symptoms present during the twelve months prior to the inter-
view.108 Sezibera and Philippot found similar results eleven years after the
Rwandan genocide, finding 71.6 percent of a large population of orphaned
Rwandan genocide survivors met the DSM-IV criteria for a PTSD
diagnosis.109

103. Ordonez-Quino, 760 F.3d at 94.

104. Lal v. I.N.S., 255 F.3d at 1003, amended by 268 F.3d 1148 (9th Cir. 2001).
105. Andrew Carney, Lack of care in Rwanda, 165 BRITISH J. OF PSYCHIATRY 556 (1994).
106. Dyregrov et al., supra note 99, at 3, 14.
107. Schaal and Elbert, supra note 97, at 101.
108. Id.
109. Vincent Sezibera et al., Intervening on Persistent Posttraumatic Stress Disorder: Rumination-Focused
Cognitive and Behavioral Therapy in a Population of Young Survivors of the 1994 Genocide in Rwanda, 23 J. OF
COGNITIVE PSYCHOTHERAPY 107, 108 (2009) (citing Vincent Sezibera & Pierre Philippot, PTSD preva-
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204 Harvard Human Rights Journal / Vol. 32

Symptoms of trauma experienced by child survivors of genocide endure

later in life, with Amir and Lev-Wiesel finding that “the Holocaust experi-
ence for a child might be a lifelong narrative.”110 In assessing PTSD symp-
toms, psychological distress, and subjective quality of life of a group of 43
child Holocaust survivors and a control sample of individuals who had not
experienced the Holocaust personally, Amir and Lev-Wiesel found that
child survivors had higher PTSD symptom scores, higher depression, anxi-
ety, somatization, and anger-hostility scores; as well as lower physical, psy-
chological, and social quality of life than did the control group.111

D. It is unlikely that child survivors of genocide will cease to be eligible for

asylum based on country conditions that have changed
in that survivor’s lifetime.
According to Amnesty International,
[t]he main international standards addressing cessation of refugee
status, including in particular decision-making and implementa-
tion processes, are set out in Executive Committee Conclusion
No. 69, UNHCR’s Guidelines on international protection: Ces-
sation of Refugee Status under Article 1C(5) and (6) of the 1951
Convention relating to the Status of Refugees (the “Ceased Cir-
cumstances” Clauses), Section B, and UN High Commissioner for
Refugees, Note on Cessation Clauses, 30 May 1997, EC/47/SC/
CRP.30.112
These sources, combined with U.S. case law, provide two basic rules regard-
ing cessation of refugee status and removal of said refugee. First, cosmetic
changes are insufficient to qualify for cessation of refugee status, as changed
country conditions must be fundamental, stable, and durable in nature.113
Second, even if a country has changed substantially, the individual’s percep-
tion of that country may not have changed.
The Executive Committee notes, in its Conclusion No. 69, that “an es-
sential element in [cessation] assessment by States is the fundamental, sta-
ble and durable character of the changes.”114 In its Note on Cessation Clauses,
the UNHCR further explains that “[a] situation which has changed, but

lence and prediction among Rwandan youth survivors of the 1994 genocide in Rwanda (2009) (Manuscript in
preparation).
110. Marianne Amir & Rachel Lev-Wiesel, Time Does Not Heal All Wounds: Quality of Life and
Psychological Distress of People Who Survived the Holocaust as Children 55 Years Later, 16 J. OF TRAUMATIC
STRESS 295, 298 (2003).
111. Id. at 297–98.
112. AMNESTY INTERNATIONAL, MEMORANDUM TO THE GOVERNMENT OF UGANDA ABOUT THE
CESSATION OF REFUGEE PROTECTION FOR RWANDANS (Dec. 2011), at 6, fn.6, https://www.amnesty.org
/download/Documents/28000/afr590212011en.pdf [https://perma.cc/4WES-HVZP].
113. UNHCR, Cessation of Status No. 69 (XLIII), ¶B, (Oct. 9, 1992), http://www.unhcr.org/en-us/
excom/exconc/3ae68c431c/cessation-status.html [https://perma.cc/Z8G5-XH4U].
114. Id.
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which also continues to change or show signs of volatility is not by defini-

tion stable, and cannot be described as durable . . . [u]ntil national reconcil-
iation takes root and political changes are stable and firmly in place, such
changes cannot be considered as durable.”115 As we saw earlier, indicators of
genocide range from past or present serious discriminatory, segregational,
restrictive or exclusionary practices,116 policies, or legislation against pro-
tected groups, to development of measures that seriously affect womens’
reproductive rights, or that contemplate the separation of children belong-
ing to protected groups.117 These conditions are systemic issues that take
years and years to change.
Changed country conditions are also discussed in Matter of Chen, where
the court notes that “the immigration judge or this Board may take admin-
istrative notice of changed conditions in appropriate cases, such as where
the government from which the threat of persecution arises has been re-
moved from power.”118 However, Matter of Chen goes on to quote the
UNHCR Handbook on Procedures for Determining Refugee Status in saying:
“Even though there may have been a change of regime in his country, this
may not always produce a complete change in the attitude of the popula-
tion, nor, in view of his past experiences, in the mind of the refugee.”119
With many of the indicators being systemic issues that go to a society’s
core, and a caveat that exists based on severe persecution, it is unlikely that
a country will change such that an individual survivor of genocide should
be removed to that country during his or her lifetime.

VI. CONCLUSION

As has been shown, genocide will always serve as a basis for asylum
granted on a humanitarian basis arising out of the severity of past persecu-
tion. This Note raises serious concerns about the discretion allowed to re-
move an individual to a place where that individual has suffered a genocide
as a child, due to a clear showing that such removal would be inhumane.
The persecution suffered during a genocide is abhorrent: survivors watch as
similarly-situated individuals around them are killed—often by neighbors,
people they know, or people in authority positions, like government figures
and soldiers—and subsequently feel guilty that they were the ones who
managed to survive. Individuals are targeted on the basis of immutable
characteristics, commonly stemming from local identity-based tensions that
have been building for years and with which national mechanisms are una-
ble to deal. After the conclusion of genocidal acts, the trauma suffered cre-

115. UNHCR, supra note 40, ¶¶21–22. R

116. Office on Genocide Prevention & The Responsibility to Protect, supra note 7, at 11. R
117. Id. at 19.
118. Matter of Chen, 20 I.&N. Dec. at 18.
119. Id. at 19. UNHCR, HANDBOOK, supra note 37, ¶136 (1979) (reedited Jan. 1992). R
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ates long-lasting psychological issues for survivors,120 and countries take

years and years to become stable enough that survivors might be able to
return.
In combining the courts’ recent child-centric approach to asylum claims
with international and domestic law on a humanitarian grant of asylum
based on the severity of past persecution alone, there is overwhelming evi-
dence that child survivors of genocide should be considered per se refugees.
The very reason that asylum systems exist is to prevent individuals from
additional suffering in their countries of nationality, either in the form of
current harm or through exacerbating prior harm. The U.S. should consider
distinguishing itself as a protector of the rights of asylum seekers by initiat-
ing a procedure for per se refugee recognition of child sufferers of genocide,
or individuals who suffered genocide while they were children.

120. See, e.g., Transcultural Psychosocial Organization Cambodia, JUSTICE & RELIEF FOR SURVIVORS
OF THE KHMER ROUGE (2015), http://tpocambodia.org/justice-and-relief-for-survivors-of-the-khmer-
rouge/ [https://perma.cc/59AC-UJ4S].