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Jane’s Asylum Memorandum and Elian Gonzalez Case Brief

Advanced Legal Writing
Professor M. Hamilton
Kaplan University
September 1, 2009

Memorandum

To:Attorney Justine Case

CC:Professor Mindy Hamilton
Date:8/17/09
Re:Jane’s Asylum Case

Question Presented

Under the Immigration and Naturalization Service requirements for filing a petition for asylum in the U.S., can a relative submit an application on behalf of a minor?

Short Answer

No. Minors can submit a petition for asylum in the United States, because the Supreme Court feels that application for asylum cannot be made against the wishes of a parent, if the child lacks the mental capacity to request asylum. 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.

Statement of Facts

Jane is 14 years old. She has Canadian citizenship and has no dual citizenship with any other country. Her father is a Canadian citizen and her mother is an American citizen. Her parents have been divorced for six years. Her father, John, has primary guardianship in Quebec. During the school breaks and holiday vacations, she lives with her mother, Anne, in New York. John is a high-level government minister, working on creating an independent French Canadian State. Under Canadian law, both Anne and John retained full custodial and parental rights following the divorce.

Six months ago, Jane was living in New York during a school break. During the break, Jane telephoned her father asking to be allowed to return to Quebec. John advised her to stay the remainder of the break and try to get along with her mother. Two days later, at 6:00pm, Anne returned from work to find a message on her answering machine from Jane, saying that she was going to live with her uncle, Billy, in California. He is 21 years old. Jane’s message stated that she hated both of her parents and believed that neither of them cared about her at all. Her father received a similar message. Anne died on the way to the airport to catch up with Jane.

Jane refuses to return to Canada. Billy wants to file an asylum petition with U.S. Citizenship and Immigration Services on Jane’s behalf since she is a minor. He claims that Jane is afraid to return to Canada due to propaganda issues. Jane claims that other rebellious children and adults who disagree with the goals of the government have been used for propaganda purposes

Application

The issue of asylum is not always easy and special notes are particularly made for asylum when it seekers involve minors. The United Nations General Assembly recognized and accepted international instruments and documents that contain provisions specifically relating to children. They recognize and promote the principle that children's rights are human rights, and that children's 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). Pursuant to 8 U.S.C 12 §1158 (2004), any foreigner physically in the United States, irrespective of such alien’s status, may apply for asylum. The Secretary of Homeland Security or the Attorney General may grant asylum to any who have filed for asylum and has completed the requirements and followed the required procedures, Id. § 1158(b) (1) (a). The next 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 under the age of 18 when filing for asylum by one’s own right, as opposed to as a derivative family member on a parent’s or spouse’s asylum...
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