Jane’s Asylum Memorandum and Elian Gonzalez Case Brief Essay

Question PresentedUnder the immigration and Naturalization Service requirements for register a petition for mental institution in the U.S., can a comparative submit an coating on behalf of a venial?Short resolventNo. Minors can submit a petition for introduction in the join States, because the Supreme Court feels that application for founding cannot be made against the wishes of a arouse, if the minor lacks the mental capacity to request asylum. A third mortal cannot discourse on the behalf of a tiddler because it is the right field(a) of the p arent to speak on behalf of his baby in the fire.Statement of FactsJane is 14 years old. She has Canadian citizenship and has no dual citizenship with any early(a) country. Her fuss is a Canadian citizen and her m other(a) is an American citizen. Her parents have been divorced for sise years. Her suffer, John, has primary guardianship in Quebec. During the school breaks and holiday vacations, she lives with her mother, Anne, in in the buff York. John is a high-level government minister, working on creating an freelance French Canadian State. Under Canadian law, both Anne and John hold rise custodial and parental rights following the divorce.Six months ago, Jane was living in New York during a school break. During the break, Jane teleph onenessd her father asking to be allowed to slip away to Quebec. John advised her to stay the remainder of the break and try to stick around along with her mother. Two days later, at 600pm, Anne cedeed from work to respect a center on her answering machine from Jane, saying that she was exhalation to live with her uncle, Billy, in California. He is 21 years old. Janes mess suppurate stated that she hated both of her parents and believed that neither of them carry offd about her at all. Her father received a similar mess senesce. Anne died on the way to the airport to hear up with Jane.Jane refuses to return to Canada. Billy wants to show an asylum peti tion with U.S. Citizenship and Immigration Services on Janes behalf since she is a electric shaver. He claims that Jane is afraid to return to Canada delinquent to propaganda issues. Jane claims that other rebellious children and adults who disagree with the goals of the government have been apply for propaganda purposesApplicationThe issue of asylum is not always easy and spare notes are particularly made for asylum when it judgeers involve minors. The United Nations usual Assembly recognise and accepted international instruments and documents that contain provisions specifically relating to children. They recognize and promote the principle that childrens rights are human rights, and that childrens rights are universal. See, Universal Declaration of Human Rights, (1948)(e.g., Article 14 provides for the right to apply for asylum, Article 25(2) refers to the special care and assistance required for children). consistent to 8 U.S.C 12 1158 (2004), any foreigner bodilyly in the United States, irrespective of such foreigns status, whitethorn apply for asylum. The writing table of Homeland Security or the Attorney General may relent asylum to any who have filed for asylum and has completed the requirements and followed the required procedures, Id. 1158(b) (1) (a).The abutting part of the issue is who can file for the minor. Jane would be classified as either a minor principal or an unaccompanied minor according to U.S. Citizenship and Immigration Services. The difference between the two is a minor principal is a person chthonian the age of 18 when file for asylum by ones own right, as contradictory to as a derivative family member on a parents or spouses asylum application. An unaccompanied minor principal applicant for asylum who is under 18 years of age and who has no parent or level-headed guardian in the U.S. who is uncommitted to provide care and physical custody. This definition encompasses stranded minors, e.g., those who are separated fr om their parents or guardians, but who are in the informal care and physical custody of other adults, including family members.See, Homeland Security Act 6 U.S.C. 279 (2002). The last mentioned is better fitting in Janes display case. Because she is under the age of 18, she left field the care of her parent, has no living parent in the United States, and in the physical care of an adult family member. The last part of issue one is the filing an application for asylum be a child. .In Gonzalez v. Reno, 86 F. Supp. 2d 1167 (S.D. Fla. 2000), affd, the royal move prime that a child with out mental capacity cannot file asylum against the wishes of parent. In Polovchak, the court concluded the stripped age of 12 was the lowest for the age of absolute majority needed to distinguish the childs asylum interests that different from those of their parents. Polovchak v. Meese, 774 F.2d 731 (7th Cir. 1985).Jane has a particular revere of creation used, as propaganda, in a province polic y-making issue leave not affect her age to form a political opinion. Matters pertaining to persecution of political opinions of a minor differing than those of a parent cannot be a rejection receivable to age. See, Civil v. INS, 140 F.3d 52 (1st Cir 1998) Matter of S-P, Int. Dec. 3287 (BIA 1996)(stating that the Ninth Circuit has recognized imputed political opinion as a ground for satisfying the refugee definition). In 1994, The United Nations High Commissioner for Refugees (UNHCR) stated, that children and adolescents are entitled to special watchfulness because their needs, and their legal and social status, can be significantly different from those of adults, and from each other as well, due to age-related developmental differences,ConclusionIn conclusion, Janes uncle, Billy, cannot file for a petition for asylum on Janes behalf. Jane can seek and file a petition for asylum in the United States on her own. Since Jane is 14 years old, she has the mental capacity to file for as ylum because the courts descry mental capacity for petition of children asylum seekers be at the minimum age of 12. In addition, the claim of being used as propaganda wight to further her fathers go throughs to have the province become an self-governing from the Canadian government, allows Jane to have different political opinions of her father. Janes status would extend to her an unaccompanied minor. Her applicant status means that she is an applicant for asylum because she is under 18, has no parent or legal guardian in the U.S, has no legal parent living in the U.S., and is in the informal care and physical custody of an adult family member. It is my opinion that she would have successful results in want, filing, and receiving asylum in the U.S. CITATIONGonzalez v. Reno, 86 F. Supp. 2d 1167 (S.D. Fla. 2000)FACTSThe parties to this case are Elian Gonzalez with Lazaro Gonzalez and Attorney General Janet Reno. Six-year-old Cuban national Elian Gonzalez became the focus of inte rnational attention five months ago, on November 25, 1999, when he was rescued by two Miami anglers who found him floating on an inner tube several miles off spike Lauderdale. Elian was transferred to a United States Coast Guard vessel so he could be transported to a nearby hospital for treatment for dehydration and hypothermia. Elians mother, Elisabeth Brotons, drowned during the voyage from Cuba. The INS temporarily paroled him into the care of Lazaro Gonzalez, his great uncle, in Miami.On January 19, 2000, Lazaro Gonzalez, instituted this action as next friend, or alternatively as interim jury-rigged legal custodian, of Elian Gonzalez, a six-year-old child, against the Attorney General, the Commissioner of the Immigration and Naturalization Service (INS), and other federal defendants. The complaint challenged the INSs refusal to accept and adjudicate two asylum applications that Lazaro submitted with respect to Elian and an essentially identical application that bore Elians sig nature. On January 27, 2000, the government filed a motion to dismiss or, in the alternative, for abbreviation judgment. The order court heard oral argument on the governments motion on March 9, 2000. On March 21, 2000, the dominion court granted the governments motion to dismiss or for summary judgment and dismissed the case. Plaintiff appealed. On April 19, 2000, this Court issued an injunction unfinished appeal, barring Elians removal from the United States during the pendency of this appealISSUE1. Whether the district court was correct in holding that Elian Gonzalez has no due mathematical operation rights concerning the manner in which the INS considered the asylum applications filed on his behalf.2. Whether the INSs thoroughly considered and crafted approach to considering asylum applications submitted by a third party on behalf of a six-year-old child, against the express wishes of the childs sole surviving parent.RULE1. An unadmitted alien cannot challenge termination s by INS officials with regard to their applications for admission, asylum, or parole on organic grounds2. An application for asylum cannot be made against the wishes of a parent, if the child lacks the mental capacity to request asylum and a third person cannot speak on the behalf of a minor because it is the right of the parent to speak on behalf of his child in the court.ANALYSISThe Court felt that the district court ruled correctly on its holding that Elian Gonzalez had no due process rights in the way the Attorney General considered the asylum applications submitted for him. The judgment on due process was found to lack merit because aliens seeking admission to the United States . . . have no constitutional rights with regard to their applications, dungaree v. Nelson, 727 F.2d 957, 968 (11th Cir. 1984). Although the statute requires the existence of some application procedure so that aliens may apply for asylum, section 1158 says nothing about the particulars of that procedur e, 8 U.S.C. 1158. The matter for decision is not up for the courts to decide but for the agency to enforcing the statute, in this case the INS, to choose how to fill such gaps. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), 104 S. Ct. at 2793The second issue was who could actually speak for Elian Gonzalez. The INS Commissioner reached a decision that a six year old is too young to file an asylum claim on his own. It was therefore the job of the Attorney General Renos job to determine who should speak for the child, and she found that the father, Juan Miguel, should speak for the child. In Polovchak v. Meese, 774 F.2d 731 (7th Cir. 1985, the court concluded the minimum age of 12 was the lowest for the age of majority needed to distinguish the childs asylum interests that different from those of their parents. Lazaro Gonzalez application for guardianship was not allowed because the matter was with immigration lending it to be a federal matt er.CONCLUSIONThe courts ruled that an alien seeking asylum has no constitutional right to do so, thus removing the power to assert a right to due process under the law. Since Elian was an alien, the Attorney General had full custody over his status. On the second point was could Elian through a third party bring an application for asylum on his behalf. Because Elian was lone(prenominal) six years old, he lacked the legal capacity to file for himself. The court felt that only the father could speak for his child. Since the application for asylum was in direct conflict with his wishes, the court saw no reason to wrench the lower court decision therefore sending the child back down to his homeland. Had Elian been at least 12 years of age and could articulate the reasons for his fear of being returned to Cuba