Child Soldiers and Their Refugee Problems

Birdsong has only lately come to learn that there have been about 300,000 child soldiers who have fought in wars and rebellions across the world since the 1990’s.  Birdsong’s student, Shelya Nieves, has researched the problems of child soldiers and the problems they present in the context of refugee law.  She has written an outstanding paper on the subject that she has allowed me to post on the blog.  You will find this information very enlighting.


What to do with a never-ending pool of soldiers? 

Shelya Nieves


            About 300,000 children fought as combatants in armed conflicts in more than 30 countries during the late 1990s.[1]  Government and non-government forces conscripted these children voluntarily or by force.[2]  Children operated as spies, laborers, or sexual slaves, but an increase in their use specifically for combat purposes was particularly noticed by international organizations.[3]  Oftentimes, the children were forced into service by threats, and sometimes drugged in order for them to carry out their combat duties.[4]  Some children committed human rights abuses after being conscripted as fighters.[5]

            In response to these occurrences, the international community responded in part by creating criminal measures designed to penalize and prevent the conscription of children in armed conflict.  The Rome Statute made it a war crime to use children under the age of 15 in hostilities.[6]  The United Nations added the Optional Protocol on the involvement of children in armed conflict (Child Soldiers Protocol) to the Convention on the Rights of the Child.  The Child Soldiers Protocol created guidelines for voluntary conscription of children under the age of 18 and the means to denounce violators who conscript children younger than the age of 15.[7]  More than 100 states have ratified the Child Soldiers Protocol since its inception.[8]  As a result, several leaders of organizations that recruited children have been charged and convicted of war crimes.[9]  In 2008, the U.S. enacted the Child Soldiers Accountability Act which corresponds with the standards laid out in the Rome Statute.[10] 

            Despite these advances in international law and a decrease in armed conflicts, children continue to be used in hostilities.  Current estimates place the range from 200,000 to 300,000 in 17 armed conflicts worldwide.[11]  This estimate remains relatively unchanged from that of more than a decade ago.  The decrease in children used in hostilities suggests that the drop is more a result of armed conflicts ending then a decrease in recruitment or conscription.[12]  The roles of children in hostilities has also shifted and shown increased involvement in terrorist activities.[13]  This trend is one that should be of particular interest to the United States given the position terrorism has claimed in the discourse of national security.

            In the refugee and asylum law context, the combination of the persecutor bar and terrorism related legislation has the potential to bar children from receiving protection.[14]  Children are not always treated as victims of armed conflicts when applying for asylum.  Instead, some nations do not recognize former child soldiers as victims who themselves may have suffered persecution.[15]  In other circumstances, government authorities’ detained children solely on suspicions that they belonged to armed groups, or treated in an adversarial manners.[16]

            The continued use of children as combatants suggests the pattern is unlikely to end despite multi-faceted efforts to criminalize recruiters, arrange peace settlements, and demobilize and reintegrate children into their communities.  In addition, scores of other children exist as available replacements when other children demobilize or when armed conflicts reignite.[17]  The question arises how will the U.S. address claims for asylum or withholding of removal from children who may have fought against the U.S. as minors.

             Part I of this paper will examine how asylum and withholding of removal claims of former child soldiers has been addressed up to the present, and the application of the “persecutor bar”.  Negusie v. Mukasey, under review by the Supreme Court, will also be examined and its implications to former child soldiers assessed.  Part II will address terrorism related legislation, its impact on asylum and withholding of removal claims, and its potential affect on former child soldier claims.  Part III discusses the need for duress and infancy to function as mitigating factors in claims by former child soldiers — regardless of whether the child volunteered or was forced into combat.


I.  Protection Available to Former Child Soldiers & their Applications

            A.  Protection Available under Immigration Law

            An applicant seeking asylum in the United States must establish that he or she is a refugee.[18]  A refugee is a person outside his or her country of origin, or country of habitual residence if the person has no nationality.[19]  The person must be unable or unwilling to return to the country, and is unable or unwilling to avail himself or herself of that country’s protection because of persecution or a well-founded fear of persecution.[20]  The persecution must be based on one of five protected grounds: (1) race; (2) religion; (3) nationality; (4) membership in a particular social group; (5) or political opinion.[21]  An applicant’s testimony alone can satisfy the burden of proof if the trier of fact deems the person’s testimony credible.[22]

            A person who does not meet the definition of refugee or is denied asylum may nonetheless receive an alternate form of relief via withholding of removal.[23]  Withholding of removal is granted when a person’s life or freedom would be threatened if returned to the destination country.[24]  The person’s claim must be based on the applicant’s race, religion, nationality, membership in a particular social group, or political opinion.[25]  As with an asylum claim, an applicant’s testimony alone can satisfy the burden of proof if it is credible.[26]

            Withholding of removal may also be granted under CAT.  However, the standard is different under CAT.  A person seeking protection under CAT must establish that it is more probable than not that he or she will be tortured if returned to the proposed country of removal.[27]  The immigration judge may choose to grant withholding of removal or deferral of removal.[28] 

            The applicant must meet the standards of torture as defined by CAT.  The act defines torture as any act that causes severe pain or suffering.[29]  The actor must inflict the pain with the intent to acquire information, punish, or intimidate the subject or a third person.[30]  The actor must also act with the instigation, consent, or acquiescence of a public official or a person acting in official capacity[31].  The pain can be mental or physical.[32]  Mental pain, however, must be prolonged.[33]  The mental pain must also be the result of at least one of the following:  (1) severe physical pain inflicted intentionally; (2) use or threatened use of mind-altering substances or procedures; (3) threats of imminent death; (4) or threats to do any of the aforementioned to another person.[34]

            Provisions exist that bar relief outright.  Asylum is not granted if the applicant was firmly resettled in a country prior to arriving to the U.S.[35]  The remaining exclusions to relief apply to asylum and withholding of removal, but not CAT claims.  A person is ineligible for relief if he or she has committed any one of the following:  (1) ordered, incited, assisted or otherwise participated in persecution; (2) convicted of a serious crime while in the U.S.; (3) convicted of a serious nonpolitical crime outside the U.S.;

(4) or reasonable grounds exist to believe the person would be a danger to the security of the United States.[36]  Persons ineligible for asylum or withholding of removal because of one of the mandatory bars may only receive deferral of removal under CAT.[37]

            B.  Grounds for Establishing Asylum or Withholding of Removal

            As previously discussed, a grant of asylum or withholding of removal under title 8, section 1231 must be based on one of the five protected grounds.  At first glance, former child soldiers do not fit into one of these categories neatly.  A minor is not by itself a protected class.  Nor is it always found that child soldiers fight because of the same reasons as adults.[38]  Thus, it is not apparent if a child soldier suffered persecution because of political opinion simply because he or she was a member of a rebel group.  However, some courts have successfully devised a classification that makes relief for former child soldiers more accessible.

            In Lukwago v. Ashcroft, the Third Circuit held that a former child soldier could qualify as a member of a particular social group.[39]  Lukwago, a Ugandan, was 15-year-when the Lord’s Resistance Army (LRA) forcibly conscripted him in 1997.[40]  Lukwago was kidnapped by the LRA after the rebels attacked his home and killed his parents.[41]  The LRA initially made him perform manual labor like collecting firewood and water.[42]  He was trained to shoot a gun and made to fight against government soldiers about 10 times.[43]  He also witnessed the LRA attack villages where rebels would injure civilians by cutting their lips and fingers.[44]  Rebels threatened to shoot him for performing poorly in combat or if he tried to escape.[45]

            The rebels’ threats proved to be true.  Lukwago saw the LRA kill two children who had tried, but failed to escape.[46]  At another point, Lukwago and a child he befriended were carrying guns and weapons they had stripped off of dead government soldiers.[47]  Lukwago’s friend became tired.[48]  LRA rebels beat the boy.[49]  Then, they made Lukwago place a rock on the boy’s chest and sit on it until the boy stopped breathing from the pressure.[50]  Lukwago escaped after being held by the LRA for about four months.[51]

            The immigration judge (IJ) denied Lukwago’s asylum and withholding of removal claims.[52]  However, the IJ granted withholding of removal under CAT based on evidence that the Ugandan government tortured former child soldiers.[53]  Lukwago and the government appealed.[54]

            The Board of Immigration Appeals (BIA) denied Lukwago protection under any provision.  The BIA determined that Lukwago failed to establish he had suffered past persecution, or had a well-founded fear of future persecution by either the LRA or the Ugandan government.[55]  It also reversed the IJ’s prior grant of protection under CAT.  The BIA determined Lukwago failed to establish that he would suffer torture by the Ugandan government in light of an amnesty agreement it developed for former rebels, and he provided no evidence that the LRA tortured former rebels or captives who escaped from the group.[56]

            On review, the Third Circuit determined Lukwago could indeed qualify for asylum.[57]  As a former child soldier, Lukwago had a shared past experience with other former child soldiers of forced recruitment, torture and escape.[58]  This shared experience equated to a common immutable characteristic that was sufficient to establish membership in a particular social group.[59]  It stated the experience of abduction and being a former soldier was not a characteristic he could change, but one that became fundamental to his identity.”[60]  Thus, the Court remanded Lukwago’s asylum and withholding of removal claims.  As for the CAT claim, the Court determined that the BIA’s denial of protection was reasonable given the amnesty policy established by the Ugandan government.[61]

            Under Lukwago, former child soldiers may receive asylum using the protected ground of membership in a particular social group.  However, the definition of a “particular social group” varies as noted by the Third Circuit.[62]  As such, an IJ may conclude that former child soldiers are not to a social group and deny asylum.  The difference in definitional standards of what constitutes a particular social group leaves some former child soldiers with a higher burden and a greater probability that asylum will not be granted.[63]

            C.  The Persecutor Bar

            Asylum or withholding of removal is denied under the persecutor bar if the alien ordered, incited, assisted, or otherwise participated in the persecution of another person on account of any of the protected classes.  The persecution bar has particular implications for claims by former child soldiers.[64]  Children used as combatants are just as likely as their adult counterparts to have committed acts that could be construed as the persecution of others.  The circuits have differed on how to apply the bar in the context of former child soldiers.

            Sackie requested withholding of removal under CAT after the government sought his deportation for his criminal convictions.[65]  Sackie, a Liberian, was forcibly recruited in 1990 at the age of 14.[66]  The group that took Sackie, the National Patriotic Front of Liberia (NPFL), gave him cocaine regularly and made him kill others under threat of death.[67]  In 1990, the NPFL split and a faction fought against its former leader.[68]  The faction, Independent National Patriotic Front of Liberia (INPFA), continued the practice of making Sackie consume drugs.[69]  He was also branded with the group’s markings.[70]  He saw others killed who did not comply with the rebels’ orders.[71]  He killed women and children two or three times.[72]

            Despite these occurrences, the initial immigration judge did not conclude that Sackie was barred for assisting in the persecution of others and granted him asylum.[73]  The BIA disagreed with the IJ.  It concluded that Sackie did not meet his burden of establishing past persecution or a well-founded fear of future persecution.[74]  The BIA also concluded that Sackie’s convictions required the IJ to deny asylum.[75]  The IJ’s grant of asylum was vacated, and the BIA remanded for relief to be evaluated under CAT.[76]

            A different IJ reviewed Sackie’s CAT claim and denied protection.[77]  The BIA affirmed the decision.[78]  On appeal, the district court affirmed the denial of asylum, but concluded that the BIA and the second IJ erred in denying Sackie relief under CAT.[79]  The district court concluded that sufficient evidence in the record existed to show that Sackie had suffered torture as a former child soldier in the form of prolonged mental suffering.[80]  Sackie’s markings identifying him as a former member of INPFL also increased the probability that he would be tortured if returned to Liberia.[81]  Thus, the district court granted Sackie withholding of removal under CAT.[82]

            Lukwago and Sackie demonstrate that former child soldiers are capable of receiving protection despite past conduct that might be considered as persecution of others.  Other circuits have been less favorable in assessing child soldiers conduct when granting relief.

            In Bah v. Ashcroft, the Fifth Circuit held that the subjective motivations of an applicant who sought asylum were irrelevant when assessing whether the person’s actions amounted to the persecution of others.[83]  Bah lived in Sierra Leone with his father and sister.[84]  The Revolutionary United Front (RUF) attacked his town and made Bah and his family march 10 miles.[85]  The RUF then set his father on fire, and raped and killed his sister.[86]  Bah was kept alive.[87]  Bah joined the group after a RUF member told him the group would kill him otherwise.[88]

            Like Lukwago, Bah was given cocaine by the rebel leaders.[89]  Bah shot a prisoner and cut off the limbs of civilians when ordered to do so.[90]  He tried to escape several times but was unsuccessful.  Government forces caught him during his first escape attempt, but he was subsequently freed by RUF forces that fought the government troops.[91]  Bah escaped a second time but was captured by Nigerian peacekeepers who tortured him during his captivity[92]  Again, RUF forces overtook those holding Bah.[93]  He succeeded in his third escape fleeing to Guinea and eventually to the U.S.[94]

            The IJ determined that Bah’s actions made him ineligible for asylum and withholding of removal because his conduct amounted to participation in the persecution of others.[95]  Bah also could not receive protection under CAT because he failed to establish that he would more likely than not be tortured if removed to Sierra Leone.[96]  The BIA affirmed the decision.[97] 

            The Fifth Circuit supported the BIA’s and IJ’s assessments.  The court rejected Bah’s argument that he did not share RUF’s intent in persecuting others, but was forced to join the group against his will.[98]  The court reasoned that the language of the statute implied a person’s motivations were irrelevant.[99]  An objective standard was to be used when assessing whether the alien’s conduct resulted in the persecution of others.[100]

            The Fifth Circuit also upheld the denial of protection under CAT because Bah failed to meet his burden.  Evidence of disarmament, demobilization and reintegration of RUF members in Sierra Leone existed.[101]  The court believed it enough to counter Bah’s evidence that RUF members were maimed and murdered, and that Bah’s own desertion was published in a newspaper advertising a reward for his capture.[102]  Thus, there was insufficient evidence to determine that Bah would more likely than not be tortured if removed to Sierra Leone.[103]

            The divergent approaches taken by the circuits in addressing claims highlights the dilemma these applicants face.  The result in Bah indicates that a disparity between circuits will develop given the already existing different standards for membership in a social group and duress.  Applicant’s ability to establish their case will be eroded since a claim’s success will be partly dependent upon which circuit a claim is filed.

            D.  Possible Duress Exception to Persecutor Bar

            A possibility exists that former child soldiers may have their actions construed through the filter of duress.  Negusie v. Mukasey, under Supreme Court review, questions whether asylum or withholding of removal can be granted to a person forced against their will and under threat of death or torture to engage in persecution.[104]  The determination of this case would no doubt have a direct impact on the ability of former child soldiers to receive protection.

            Negusie v. Keisler revolves around the decades’ long conflict between Eritrea and Ethiopia.  The Eritrean government was known to commit abuses against its own people during the conflicts.[105]  The Eritrean government conscripted minors.[106]  Resisters or deserters of national service were imprisoned, sometimes along with family members, and tortured.[107]  The Eritrean government also banned all but four religions that were government approved.[108]  The government was also suspected of particularly disfavoring Protestants.[109]

            Negusie lived in Eritrea in 1994.[110]  The Eritrean government forcibly conscripted him in 1994 via an arrest.[111]  Negusie performed hard labor and received military training for about a month.[112]  In 1998, Negusie was conscripted for the second time into the Eritrean army after the country renewed fighting with Ethiopia.[113]

            Negusie resisted orders deploying him to the front.[114]  He was subsequently imprisoned for six months in solitary confinement.[115]  After his release from solitary confinement, prison officials made Negusie perform hard labor.[116]  He converted to Protestantism while imprisoned.[117]  Negusie alleges prison personnel beat him and threatened him with death if he practiced his religion.[118]

            Negusie eventually became a guard at the same facility.[119]  Despite this change from prisoner to guard, he was not allowed to leave the building.[120]  He complied with orders not to give water to prisoners and to prevent them from taking showers.[121]  He also saw prisoners tortured by other guards who applied palm oil to the prisoners and left them exposed to the sun.[122]  Negusie managed to escape after having spent two years as a guard at the facility.[123]

            The IJ denied Negusie’s asylum and withholding of removal claims because of he was ineligible under the persecution bar.[124]  The IJ’s decision was based on Negusie’s action of keeping prisoners imprisoned when he knew that persecution occurred in the facility.[125]  Thus, the IJ used the same objective standard enunciated by the Fifth Circuit in Bah.  The IJ did grant deferral of removal under CAT for Negusie.[126]  The IJ determined that as a deserter Negusie would be more likely than not be tortured if removed to Eritrea.[127]  Negusie appealed to the BIA.[128]

            The BIA dismissed Negusie’s appeal.[129]  The BIA reasserted that an objective standard was to be used when examining whether an alien assisted in persecution.

It stated that “[t]he fact that [Negusie] was compelled to participate as a prison guard, and may not have actively tortured or mistreated anyone, is immaterial. . . . [A]n alien’s motivation and intent are irrelevant to the issue of whether he ‘assisted’ in persecution … [I]t is the objective effect of an alien’s actions which is controlling.”[130]  The BIA affirmed the IJ’s CAT decision for deferral of removal.  Negusie appealed.[131]  The Fifth Circuit reiterated its objective analysis enunciated in Bah that whether the applicant shared the persecutor’s intentions was irrelevant.[132] 

            The Supreme Court granted certiorari.[133]  The government’s main argument focuses on the plain-language of the persecutor bar.[134]  Congress wrote the statute without words referring to motive, intent, or acquiescence.[135]  Rather, the statute is comprised of verbs indicating that the mere completion of the act establishes persecution.[136]

            Such a standard would be harsh – particularly if applied to children.  A child is simply not as capable of resisting an adult– especially if that adult is armed or has threatened the child.  Negusie does not differ greatly in facts from what former child soldiers who have received protection experienced during their time as soldiers.  Excluding duress as a defense or as a mitigating factor for the IJ to consider would effectively erode the advancements made by former child soldiers who have received relief.

            Such a rigid position regarding the persecution bar is unnecessary.  The Supreme Court should follow the lead of other nations that recognize duress as a defense in immigration law.[137]  Additionally, it would run counter to decisions by the Department of Homeland Security that allows for a duress defense when an alien is charged with aiding a terrorist organization with material support.[138]  The Supreme Court should implement a reading of the persecution bar that assesses whether the person acted under coercion or duress.




II. Terrorism-Related Legislation and Its Possible Affect on Child Soldiers

            Terrorism has taken center stage in the discourse of national security and in the international realm.  Children have encountered first-hand the effect of terrorism related legislation.  Authorities have arrested minors suspected of terrorist involvement over seemingly minor offenses.[139]  Some detentions were triggered by stone throwing or for participation in demonstrations.[140]  In some instances, children were held in custody for extended periods and reportedly beaten.[141]

            The United States has already encountered this conundrum with some its detainees held in Guantanamo Bay.  Three prisoners in Guantanamo were teenagers when detained in Afghanistan.[142]  One of these former teenagers, Mohammed Jawad, claims he was drugged to make him sleepy and disorientated the day he allegedly threw a grenade that injured two U.S. soldiers.[143]  This allegation makes his categorization as volunteer in an armed group less believable.  Jawad’s situation illustrates the difficulty in labeling a child’s decision to join an armed as voluntary.

            Even for those children who are not physically coerced by force or drugs to engage in combat, the manner in which modern armed conflicts occurs casts doubt on children labeled as volunteers in any armed group.  Wars once waged away from civilians have transferred to populated or urban areas.[144]  In this scenario, war undoubtedly has a direct impact on a child’s life influencing their perspectives on armed groups or government forces.[145]  Children may not volunteer to further an armed group’s goals, but feel it to be a necessity for protection, food, or as a mechanism to avenge abuses committed against them and their families.[146]

            A.  Terrorism-Related Legislation

            Former child soldiers also may be barred from asylum or withholding of removal if they are deemed a danger to the country.[147]  This bar was not applied to Lukwago, Sackie or Bah.  However, none of these men volunteered in the rebel groups or fought against the United States.

            Anti-terrorism legislation enacted made persons ineligible for asylum or withholding of removal if they fell within the definition of terrorist activities.[148]  Most noticeably, terrorism enacted legislation has been criticized for being overly broad and causing the denial of asylum or withholding of removal claims on minor issues.[149]  These laws are likely to impinge asylum claims from former child soldiers considering the type of activities the armed groups carried out while using children.[150]

            Terrorist activities have been defined in the statutes beyond generally recognized methods such as hijacking, kidnapping, or assassinations.[151]  The definition is broadened for the modern context of terrorist groups by including the use of biological, chemical, or nuclear materials.[152]  Some of the other provisions include activities that are not usually associated with terrorism.  The use of explosives, firearms, or other dangerous weapons is declared a terrorist activity when done with the intent to endanger people or to cause substantial damage to property.[153]  Damage to property or possession of a weapon are broad concepts that can be applied to large amounts of people.[154]

            Another anti-terrorism related measure that is criticized for its effect on immigration law is the material support bar.  Under the material support bar, an alien is ineligible for asylum or withholding of removal if he or she provided material support to an individual or group which the alien knew or should have known was a terrorist.[155]  Material support has been provided if a person offers a “safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training.”[156] The concerns over the material support bar is that it can be construed and enforced against those who provided de minimis support in the form of food or shelter.[157]

            Aliens facing the material support have but one defense—that the person did not know or should not have reasonably known that the organization was a terrorist group.[158]  The person must establish this burden with clear and convincing evidence.[159]  A person may seek a waiver but the process requires the Attorney General to first consult with the Secretaries of State and Homeland Security, which can be burdensome process.[160]

            B.  Current Application of Terrorism Legislation

            In Matter of S- K-, the applicant was a native of Burma.[161]  The Burmese military has been suspected of conscripting children under the age of 15 and using them in combat against militant ethnic groups for many years.[162]  The applicant in Matter of S-K– was an ethnic Chin and a Christian.[163]  Both statuses made her a minority.[164]  Burmese authorities detained her brother and her fiancé.[165]  The fiancé was eventually killed by the Burmese military.[166]

            The applicant became a supporter of the Chin National Front (CNF), which sought independence for ethnic Chins.  According to the applicant, the Burmese government was known to torture CNF members and sympathizers.[167]  The applicant worked in Singapore and gave $1000 Singapore dollars in one year to CNF.[168]  She also tried to supply the CNF with binoculars and a camera.  A CNF member told the applicant that the Burmese government knew of her monetary contributions to CNF, and warned her not to return to Burma when her Singapore visa expired.[169]  She instead fled to the U.S.[170]

            The IJ determined that the applicant had established a well-founded fear of persecution if returned to Burma.[171]  However, her asylum claim was barred because she knew or had reason to know that CNF used firearms and explosives, and thus endangered the safety of others or helped CNF acquire the ability to cause substantial property damage.[172]

            On appeal, the BIA rejected the applicant’s argument that the IJ had erred in concluding that the CNF was a terrorist organization.[173]  Once the government raises the applicability of the material support bar, the burden shifts to the applicant to establish by preponderance of the evidence that the bar does not apply.[174]  Thus, the BIA specifically noted the broad wording and implications of intended by the legislation.

[T]he fact that Congress included exceptions elsewhere in the Act for serious nonpolitical offenses and aliens who have persecuted others, even where persecuted themselves, and that it has not done so in section 212(a)(3)(B), indicates that the omission of an exception for justifiable force was intentional. . . . [W]e find that Congress intentionally drafted the terrorist bars to relief very broadly, to include even those people described as “freedom fighters,” and it did not intend to give us discretion to create exceptions for members of organizations to which our Government might be sympathetic.[175]


The BIA also rejected the applicant’s argument that her financial support was not material.[176]  Her contribution was sufficient to help CNF acquire materials and supplies.[177]  The BIA affirmed the denial of asylum and withholding of removal.[178]   

            Another case involving the material support bar is Singh-Kaur v. Ashcroft.[179]  Some of criticisms of the material support and the concern over the application to seemingly de minimis support were raised in Singh-Kaur.

            Singh entered the United States in 1989.[180]  He filed for asylum upon his arrival.[181]  However, no immigration proceeding occurred for almost four years, and then government sought Singh’s removal.[182]  Singh applied for an adjustment of status based on his skill worker visa.[183]

            Singh disclosed his membership in the Babbar Khalsa (BK) group, which he described as an organization promoting and protecting the Sikh religion.[184]  He also had belonged to the Sant Jarnail Sing Bhindrawala (SJ), which Singh described an organization that fought for Sikh religious and political goals.[185]  BK was the militant arm of SJ.[186]  Singh demonstrated with both groups.[187]  He aided BK further after a bombing occurred at a Sikh holy site.[188]  Singh helped transport weapons through his village by providing shelter to those who were transporting the weapons.[189]

            He argued to the IJ that he never supported nor was involved in violent acts against the Indian government.[190]  Singh also disclosed in his asylum application that he was on an Indian military and government watch list.[191]  However, Singh argued that the Indian police believed he opposed the government solely because he was a Sikh.[192]  The IJ granted his asylum claim.[193]

            The government appealed, and the BIA vacated the IJ’s grant of asylum and ordered Singh removed from the country.[194]  The BIA determined that Singh was ineligible for adjustment of status because of the material support bar.[195]  The BIA stated that Singh knew BK and SJ fought against the Indian government.[196]  This knowledge along with his support barred him from the adjustment of status.[197]

            On appeal, the Third Circuit affirmed the BIA’s decisions.  It stated that setting up tents and providing food fell within the definition of material support and the objective of the legislation.[198]  Singh’s belief that his involvement was minimal was irrelevant under the material support bar.[199]

            C.  Material Support Bar and Its Implications for Former Child Soldiers

            It appears that the “material support” provisions will continue to be strictly read without further input from Congress or intervention from the Attorney General.  It is highly unlikely former child soldiers would qualify for asylum or withholding of removal if challenged with the material support bar.  The statue’s strict interpretations provide no wiggle room for a subjective analysis of duress or an actor’s age.  Thus, the trier of fact will not consider these factors when determining if the person’s conduct constituted material support.

            A possible opportunity may exist in that children of a certain age may not have the required mental ability to know or reasonably know if they are providing material support to a terrorist organization.  The child may not even understand the concept or definition of a terrorist group.  Here, a former child soldier may be able to assert a defense.  However, the defense would also be dependent upon the child not being classified as a terrorist based on his or her conduct.

            Again the broad wording of the statute is felt.  Any group with a weapon for non-monetary purposes can be labeled a terrorist group under the language of the statute.[200]  Armed street gangs could meet this definition.  An organization’s motives for resistance to a government or the inability of political change also become irrelevant under the material support bar.[201]  The government undoubtedly has an interest in preventing former enemies from entering the country.  However, this interest should become less rigid when the threat comes in the form of a child.


III.  Why “Duress” and “Infancy” are Needed as Defenses or Mitigating Factors

            A.  Mental & Physical Vulnerability

            Children are targeted precisely because their minds are moldable.[202]  Adults who recruited children in the 1990s did so on the belief that children did not question orders, were more obedient and easier to manipulate than adults.[203]  Unstable environments create a situation where children are at a higher risk of “joining” an armed group.  Children who are internally displaced, living in refugee camps, in poverty, or lack adult protection are particularly vulnerable.[204]  Armed groups that can supply meals and shelter become an attractive option to a hungry child. 

            Regions that suffer continuous armed conflict also create strains on society that lead to the recruitment of children in hostilities.[205]  This scenario played out in Afghanistan in the 1990s during which it was estimated that child participation as combatants rose from 30 percent to 45 percent.[206]  A decrease in the age of recruitment as a conflict continues is also a noted trend.[207]  Civil wars in certain regions have lasted decades exposing generation after generations of children to violence.  These children may join groups not to further the armed groups’ goals, but in response to the negative experiences they or their families encountered with the government or other armed groups.[208]

            Children face cultural, economic, political and societal pressures that they cannot assess on the same level as an adult.[209]  Ideology can be a particularly strong influence in a child’s decision to join an armed group.  Children in early adolescence undergo mental development that includes the formation of personal identity and their roles within society.[210]  Armed groups have used this critical time in a child’s mental development to espouse political and religious beliefs that encourage children to join armed groups voluntarily.  For example, the Machel Report stated that ideological indoctrination resulted in the large number of children in the Rwandan conflict and the use of minors in suicide bombings in Sri Lanka and Lebanon in the 1990s.[211]

            The practice of using minors as suicide bombers has not disappeared.  Instead, it appears to be an increasingly favored tactic used by terrorist groups.[212]  Children appear less suspicious than adults making them a more favorable choice for suicide bombings.[213]  Unfortunately, education has been a conduit through which children have been encouraged to commit suicide bombings.  A lack of an educational system is a recognized risk that radical groups exploit.[214]  Armed groups are known to use madrasas (Islamic religious schools) and summer camps to recruit children.[215]  Some schools encouraged the children to “volunteer” in militant groups and while other schools emphasized martyrdom.[216]  Underage suicide bombers have been used by the Taliban in Afghanistan and by militants in Pakistan.[217]  Various militant groups in Iraq have used children, and there are reports that a terrorist cell comprised exclusively of children existed or was being formed in late 2008.[218]

            Mohammed Jawad, one of the Guantanamo detainees who was a teenager when caught, was exposed to many of elements characterized as risk factors.  His father died when he was young during the civil war in Afghanistan against the Soviet Union.[219]  His family moved to a refugee camp in Pakistan.[220]  His stepfather kicked him out at the age of 13.[221]  About a year later, Jawad met a man at a mosque who offered him employment by clearing landmines in Afghanistan.[222]  According to Jawad’s version, he did not join an Islamic militant group to fight against the U.S. troops in Afghanistan.  Rather, adults lulled him to the camps with offers of employment.  Such an offer to a child can easily equate to food and shelter.

            The circumstances under which children “join” an armed group differ greatly than that of adults.  Clearly, children are mostly not seeking to overthrow the government.  Instead, their decisions stem from a combination of factors that are reactions to events in their lives.  Some may label the child’s decision as voluntary.  However, this is somewhat of a hasty conclusion.  Children and pre-teens are not as capable as adults of analyzing the consequences of fighting in an armed conflict.[223]  The facts and motives behind the recruitment of children illustrate why their age and circumstance regarding conscription should be a factor in any claim for protection.

            B.  Applicable Criminal and Policy Principles

            Principles regarding the criminal responsibility of children can be a basis on which to advocate for duress and infancy in the context of child soldiers.[224]  Children should not per se receive automatic relief because of their age.  However, international standards suggest that children should not be held criminally responsible when at the time of the offense they were unable to understand the consequences.[225]  The setting of an international standard for child participation in hostilities at the age 15 suggests that children below that age are incapable of making such a decision.[226]  It seems counter-intuitive that recruiting children under the age of 15 is considered a war crime, yet the very child would be denied protection for an act they could not assent to.[227]  For instance, children may not have the requisite mens rea of a war crime if they were forced to consume drugs prior to any attacks.[228]  Therefore, a child’s age and manner of recruitment should factor into the analysis and remain an individualized process.[229]  Otherwise, children would be barred from asylum or withholding of removal because of conduct for which they had no ultimate understanding of its consequences.

            Age may simply not be a pragmatic standard to use when determining whether to grant asylum or withholding of removal for former “voluntary” child soldiers.  Nor should the child automatically be denied relief because he or she meets the age of criminal responsibility in the U.S.[230]  Any set standard or analysis for protection should consider that children mature at different times in different cultures.[231]  Some cultures do not recognize maturity on the basis of age but instead focus on certain skill sets, financial independence or gender.[232]

            Another conflict in setting a concrete age standard would be that it ignores the reality of conflict.  Many children participate in armed groups as young children or teenagers but reach the age of 18 as members of the armed group.[233]  If a certain age were set for an infancy defense or as mitigating factor, these former children would be exempt from protection simply based on the timing of when they escaped or the conflict ended.  Again, such a rigid standard is unnecessary.



            About 200,000 to 300,000 children under the age of 18 are believed to be participating in armed conflicts throughout the world in 2008.[234]  Despite the decrease of use of child soldiers from a decade ago, these figures are partially due to a drop in armed conflicts rather than avoidance of using children as soldiers.[235]  The changing nature of armed conflict throughout the world suggests that immigration judges will encounter with greater frequency claims colliding with the persecutor or material support bar.

            Without adequate development in demobilization and reintegration efforts for former child soldiers, these former combatants will no doubt spread outside their countries and may end up on the shores of the U.S. [236]  Even more troublesome is evidence that suggests former child soldiers in past decades have re-engaged in combat after demobilization or upon returning to their communities.[237]  Immigration law must assess how to treat these applicants who may have been indoctrinated into fighting for an armed group as a child, but have since become repentant.  Children who participated with terrorist or armed groups may face harm if returned to their country of origin.[238]  For instance, adults may believe the child aided the U.S. and seek retribution  believing the child is a U.S. spy.[239] 

            Solutions balancing the interest of the applicant and those of the nation must be reached.  For those applicants who specifically fought against the U.S., asylum may still be granted via a safe third country.[240]  Such a solution seems feasible and advancing within the international community.  Portugal offered to resettle some of the Guantanamo detainees and encouraged other European Union nations to do the same.[241]

            Duress and infancy principles provide the best means for assessing a child’s circumstances and the pressures he or she faced as a child soldier.  Children encounter greater emotional, physical and mental pressures than adults during times of war.[242]  Their protection claims should address this critical and distinguishing factor.  Duress and infancy principles are measures already familiar within the legal community.  Standards can be borrowed from criminal law making it easier and quicker to apply then relying upon a Congressional mandate.  Duress and infancy provide the most efficient mechanism to provide former child soldiers a truly equitable evaluation of their claims for protection.



[1]  Coalition to Stop the Use of Child Soldiers, Child Soldiers Global Report 2001, at 10 (2001) (follow “Child Soldiers Global Report 2001” hyperlink; then follow “Child Soldiers Global Report 2001” PDF hyperlink) [hereinafter Global Report 2001].  Six non-governmental organizations, including Amnesty International and Human Rights Watch, founded the Coalition to Stop the Use of Child Soldiers in 1998 to end the use of persons under the age of 18 in armed conflict.

[2] Report of the Expert of the Secretary-General, Graça Machel, Impact of Armed Conflict on Children, at 16, delivered to the General Assembly, U.N. Doc. A/51/306 (Aug. 26, 1996) [hereinafter Machel Report].

[3]  Id. at 18.  See also Global Report 2001, supra note 1, at 10.

[4]  Machel Report, supra note 2, at 19.  See also Global Report 2001, supra note 1, at 10.

[5]  Global Report 2001, supra note 1, at 15.

[6]  Rome Statute of the International Criminal Court, art. 8. ¶ 2(b)(xxvi), U.N. Doc. A/CONF. 183/9* (July 17, 1998) [hereinafter Rome Statute].

[7]  Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, G.A. Res. 54/263, U.N. Doc. A/RES/54/263 (Feb. 12, 2002) [hereinafter Child Soldiers Protocol].

[8]  Coalition to Stop the Use of Children, Child Soldiers Global Report 2008, at 2 (2008), (follow “Child Soldiers Global Report 2008” hyperlink; then follow “COMPLETE REPORT (PDF) hyperlink) [hereinafter Global Report 2008]. 

[9]  Id. at 22 (citing charges by the International Criminal Court against Ugandan and Congolese rebel leaders, and convictions by the Special Court for Sierra Leone against leaders of armed groups and Charles Taylor, the former Liberian president).

[10]  18 U.S.C.S. § 2442 (LexisNexis 2006) (effective Oct. 3, 2008) (criminalizing the recruitment of children under the age 15, barring entry into the U.S., and making the crime a deportable offense).

[11]  Id.  ¶ 1.

[12]  See Global Report 2008, supra note 8, at 12.

[13]  Id. at 22 (using children as suicide bombers in Afghanistan, Iraq, Occupied Palestinian Territory, and Pakistan); See also Report of the Special Representative of the Secretary-General for Children and Armed Conflict, at 8-9, delivered to the Human Rights Council and the General Assembly, U.N. Doc. A/63/227 (Aug. 6, 2008) [hereinafter Children and Armed Conflict Report] (describing anti-terrorism measures that resulted in arrests of children, extended detention and physical abuse).

[14]  Benjamin Ruesch, Comment, Open the Golden Door:  Practical Solutions for Child-Soldiers Seeking Asylum in the United States, 29 U. La Verne L. Rev. 184, 198-204, (2008).

[15]  Global Report 2008, supra note 8, at 21.

[16]  Id. at 18 (citing the Philippines for detaining children beyond government time limits and Burma for charging and imprisoning children for desertion).

[17]  Cris R. Revaz & Jonathan Todres, The Optional Protocols to the Convention on the Rights of the Child and the Impact of U.S. Ratification, in The U.N. Convention on the Rights of the Child:  An Analysis of Treaty Provisions and Implications of U.S. Ratification, 293 -309, at 303, Jonathon Todres, Mark E. Wojcik, & Cris R. Revaz eds., 2006).

[18]  8 U.S.C. § 1158(b)(1)(A) (2006).

[19]  8 U.S.C. § 1101(A)(42)(A) (2006).

[20]  Id.

[21]  Id.

[22]  8 U.S.C. § 1158 (b)(1)(B)(i)-(iii).

[23]  8 U.S.C. § 1231 (b)(3) (2006).

[24]  Id. § 1231 (b)(3)(A).

[25]  Id.

[26]  Id. § 1231(b)(3)(C).

[27]  8 C.F.R. § 208.16(c)(4) (2007).

[28]  Id.

[29]  8 C.F.R. § 208.18 (a)(1) (2007).

[30]  Id.

[31]  Id.

[32]  Id.

[33]  Id. § 208.18 (a)(4).

[34]  Id.  § 208.18 (a)(4)(i)-(iv).

[35]  8 U.S.C. § 1158(b)(2)(vi).

[36]  Id. § 1158(b)(2)(A).  See § 1231(b)(3); see also 8 C.F.R. § 208.16(d)(2).

[37]  8 C.F.R. § 208.17 (2007).

[38]  Machel Report, supra note 2, at 17 (describing reasons child soldiers “join” armed groups including family poverty, hunger, or safety concerns).

[39]  Lukwago v. Ashcroft, 329 F.3d 157, 178 (3d Cir. 2003).

[40]  Id.

[41]  Id.

[42]  Id.

[43]  Id.

[44]  Id.

[45]  Id.

[46]  Id.

[47]  Id.

[48]  Id.

[49]  Id.

[50]  Id.

[51]  Id.

[52]  Id. at 165 (deciding Lukwago’s testimony was not credible because of inconsistencies in his testimony and mannerisms).

[53]  Id.

[54]  Id.

[55]  Id. at 166.

[56]  Id.

[57]  Id. at 178.

[58]  Id.

[59]  Id. (citing Matter of Acosta, 19 I & N Dec. 211, 233 (1985)).

[60]   Id. at 178.

[61]   Id. at 183.

[62]   Id. at170 (citing the Ninth Circuit’s use of “a voluntary associational relationship” under Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986), and the Second Circuit’s definition of individuals who possess a fundamental characteristic that distinguishes them in the eyes of the persecutor under Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991)).

[63]  Ruesch, supra note 14, at 197-98 (advocating Third Circuit standard to protect children from being denied relief under Second or Ninth Circuit standards).

[64]   8 U.S.C. § 1158(b)(2)(A)(i).

[65]  Sackie v. Ashcroft, 270 F. Supp. 2d 596, 597 (E.D. Penn. 2003).  The government argued for Sackie’s deportation based on his convictions of providing false information to police, receiving stolen property, and access device fraud stating were crimes of moral turpitude and the crimes amounted to aggravated felony.

[66]  Id. at 601.

[67]  Id. at 597-98.

[68]  Id.  at 598

[69]  Id.

[70]  Id. at 601.

[71]  Id.

[72]  Id.

[73]  Id. at 600.

[74]  Id.

[75]  Id.

[76]  Id. at 600-01.

[77]  Id.

[78]  Id. at 601.

[79]  Id.

[80]  Id. at 601-02.

[81]  Id. at 602.

[82]  Id. at 602-03.

[83]  Bah v. Ashcroft, 341 F.3d 348, 351 (5th Cir. 2003) (per curiam).

[84]  Id. at 349.

[85]  Id.

[86]  Id.

[87]  Id.

[88]  Id.

[89]  Id. at,350.

[90]  Id.

[91]  Id.

[92]  Id.

[93]  Id

[94]  Id.

[95]  Id.

[96]  Id.

[97]  Id.

[98]  Id. at 351.

[99]  Id.

[100]  Id.

[101]  Id. at  352.

[102]  Id.

[103]  Id.

[104]  Negusie v. Keisler, 2007 WL 3022792, at *6 (Oct. 15, 2007) (Pet’r’s Br.), cert. granted, 128 S. Ct.1695 (2007).

[105]  Id.

[106]  Id.

[107]  Id.

[108]  Id. at *7

[109]  Id.

[110]  Id.

[111]  Id.

[112]  Id.

[113]  Id.

[114]  Id.

[115]  Id. at *7-*8.

[116]  Id.

[117]  Id. at *8.

[118]  Id.

[119]  Id.

[120]  Id.

[121]  Id.

[122]  Id.

[123]  Id.

[124]  Id. at *9.

[125]  Id.

[126]  Id.

[127]  Id.

[128]  Id.

[129]  Id. at *9.

[130]  Id. at *9-*10 (citing the unreported BIA opinion).

[131]  Id. at *10.

[132]  Id. (citing Negusie v. Gonzales, 231 Fed. App’x 325, 326 (5th Cir. 2007)).

[133]  Negusie v. Mukasey, 128 S. Ct. 1695 (2008).

[134]  Negusie v. Mukasey, 2008 WL 3851621, at *11-*13 (Aug. 15, 2008) (Resp’t’s Br.).

[135]  Id.

[136]  Id.

[137]  Mary-Hunter Morris, Note, Babies and Bathwater:  Seeking an Appropriate Standard of Review for Asylum Applications of Former Child Soldiers, 21 Harv. Hum. Rts. J. 281, 293 (Summer 2008) (citing Australia, Canada, the United Kingdom and the European Union as states that explicitly or impliedly allow a duress defense).

[138]  Id. at 294-95 (citing Exercise of Authority under Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act, 72 Fed. Reg. 9958 (Mar. 6, 2007)).

[139]  Children and Armed Conflict Report, supra note 13, at 9.

[140]  Id.

[141]  Id.

[142]  Amnesty International, Omar Khadr is ‘salvageable’, military commissions are not, at 1(June 5, 2008)  See also Amnesty International, From ill-treatment to unfair trial: The case of Mohammed Jawad, child ‘enemy combatant’, at 55-56 (Aug. 13, 2008) [hereinafter Jawad].

[143]  Jawad, supra note 138, at 55-56.

[144]  Wendy Perlmutter, An Application of Refugee Law to Child Soldiers, 6 Geo. Pub. Pol’y Rev. 137, 140 (Spring 2001).

[145]  Id.

[146]  Id. at 145-46.

[147]  8 U.S.C. § 1158(b)(2)(A); see also 8 U.S.C.  § 1231(b)(3).

[148]  § 1158 (b)(2)(A)(v)(adding as a mandatory bar aliens who meet the statutory definition of terrorist or terrorist-related activities).  See also 8 U.S.C. § 1231(b)(3) (defining persons engaged in terrorist activities as a danger to the country).

[149]  Morris, supra note 137, 289.  See also Ruesch, supra note 14, 201-02.

[150]  Morris, supra note 137, 287-291.

[151]  8 U.S.C. § 1182 (a)(3)(B)(iii) (2007).

[152]  Id. § 1182 (a)(3)(B)(iii)(a).

[153]  Id. § 1182 (a)(3)(B)(iii)(b).

[154]  See Matter of S- K-, 23 I & N Dec. 936, 947 (2006) (Osuna, acting vice chairman, concurring).

[155]  § 1182 (a)(3)(B)(iv)(VI)(aa)-(dd).

[156]  § 1182(a)(3)(B)(iv)(VI) (aa)-(dd).

[157]  Morris, supra note 137, at 289.

[158]  § 1182(a)(3)(B)(iv)(VI)(dd).

[159]  Id.

[160]  Morris, supra note 137, at 290.

[161]  Matter of S- K-, 23 I & N Dec. at 936.

[162]  Global Report 2008, at 15 (stating that Burmese military was believed to contain thousands of children and use them in counter-insurgency operations).

[163]  Id.

[164]  Id. at 937.

[165]  Id.

[166]  Id.

[167]  Id.

[168]  Id.

[169]  Id.

[170]  Id.

[171]  Id. at 938.

[172]  Id.

[173]  Id. at 941-42.

[174]  Id. at 939.

[175]  Id. at 941.

[176]  Id. at 942.

[177]  Id. at 945-46. The court also stated in footnote 13 that the applicant’s donation was almost three times the annual income in Burma.

[178]  Id.

[179]  385 F.3d 293 (3d. 2004).

[180]  Id. at 294.

[181]  Id.

[182]  Id. at 295.

[183]  Id.

[184]  Id. at 294.

[185]  Id.

[186]  Id. at 295.

[187]  Id. at 294.

[188]  Id .at 294-95.

[189]  Id. at 295.

[190]  Id. at 294.

[191]  Id.

[192]  Id. at 295.

[193]  Id. at 296.

[194]  Id.

[195]  Id.

[196]  Id.

[197]  Id.

[198]  Id. at 299.

[199]  Id. at 300.

[200]  Matter of S- K-, 23 I & N Dec. at 948 (Osuna, acting vice chairman, concurring).

[201]  Id. (explaining groups that share U.S. goals would fall under the definition of a terrorist organization despite the government making no similar declaration).

[202] Children and Armed Conflict Report, supra note 13, at 11.

[203]  Machel Report, supra note 2, at 13.

[204]  Global Report 2008, supra note 8, at 26.

[205]  Machel Report, supra note 2, at 13.

[206]  Id.

[207]  Id.

[208]  Perlmutter, supra note 144, at 145-46.

[209]  Machel Report, supra note 2, at 17 (stating that voluntary military service is influenced by factors such as a family’s need for money or abuse suffered by an ethnic group).

[210]  Id.

[211]  Id.

[212]  Children and Armed Conflict Report, supra note 13, at 9.

[213]  Id.  See also Martin Chulov, Raid Uncovers al-Qaida Network of Child Suicide Bombers in Iraq, The guardian, Dec. 4, 2008, at 30.  A 10-year-old boy followed a sheikh for three days posing as a flower seller before committing the suicide bombing.

[214]  Global Report 2008, supra note 8, at 26-27.

[215]  Id. at 26 (mentioning Afghanistan, Bangladesh and Pakistan).

[216]  Id. (discussing schools in Thailand that encourage minors to volunteer).  See also Machel Report, supra note 2, at 17 (blaming ideology for underage suicide bombers Sri Lanka and Lebanon).

[217]  Global Report 2008, supra note 8, at 26.

[218]  Chulov, supra note 213 (detailing how an Al-Qaeda leader was found dead with a computer memory stick containing training and recruitment methods for children).

[219]  Jawad, supra note 138, at 55-56.

[220]   Id. at 55.

[221]  Id.

[222]  Id. at 55-56.

[223]  Nienke Grossman, Rehabilitation or Revenge:  Prosecuting Child Soldiers for Human Rights Violations, 38 Geo. J. Int’l L. 323, 341. (Winter 2007) (arguing that because children lack the ability to consent to combat under the age of 15 , it is implied that they lack the mental capacity to make the decision).

[224]  Id. at 339-343.

[225]  Id. at 340-42. (arguing that the Rome Statute and Child Soldiers Protocol children from ages 15 to 18 should also be protected from criminal responsibility).

[226]  Id. at 341-42.

[227]  Matthew Happold, Excluding Children from Refugee Status:  Child Soldiers and Article 1F of the Refugee Convention, 17 Am. U. Int’l L. Rev. 1131, 1171-72 (2002).

[228]  Grossman, supra note 223, at 344-345.

[229]  Ruesch, supra note 14, at 191.

[230]  Happold, supra note 227, at 1155-56.

[231]  Angela Veale, The Criminal Responsibility of Former Child Soldiers:  Contributions from Psychology, in International Criminal Accountability and The Rights of Children 97-108, 104 (Karin Arts & Vesselin Popovski eds., 2006).

[232]  Id. at 97.

[233]  Id.

[234]  U.S. Department of State, supra note 11, ¶ 1.

[235]  Global Report 2008, supra note 8, at12.

[236]  Children and Armed Conflict Report, supra note 13, at 12 (reporting that 67% percent of United Nations donor nations stated in a survey reluctance in funding reintegration programs for former child soldiers that focus on the development of communities).

[237]  Morris, supra note 137, at 298.

[238]  Melissa A. Jamison, Detention of Juvenile Enemy Combatants at Guantanamo Bay:  The Special Concerns of Children, 9 U.C. Davis J. Juv. L. & Pol’y 127, 166-67 (Winter 2005) (noting U.S. officials refusal to release name of boys held in Guantanamo Bay for fear of attacks from al-Qaeda and Taliban against the youths).

[239]  Ruesch, supra note 14, at 184 (citing, Taliban hang teen for having dollars, Newsday, Oct. 2, 2007 at A08; A. Barton Hinkle, Fight Against Darkness Takes U.S. Into Gray Territory, Richmond-Times Dispatch, Oct. 5, 2007 at A13) (boy’s killers claimed the teen was a spy because he had U.S. money).

[240]  Jamison, supra note 238, at 166-67.

[241]  William Glaberson, Move May Help Shut Guantanamo Camp, N.Y. Times, Dec. 12, 2008, at A10.

[242]  Jamison, supra note 238, at 153-155.

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