MEMORANDUM OF LAW
Jane Doe’s Asylum Case
August 16, 2000
1. Whether Jane, a minor, would be able to file a petition for asylum on her own behalf? 2. Whether Billy, the minors uncle and non-custodial adult, would be able to file a petition for asylum on behalf of Jane, if being a minor is an issue? 3. Whether Jane can use claims of physical abuse and being used as a governmental propaganda tool as grounds for filing a petition for asylum under United States law? Short Answers
1. No. Although Jane satisfies most of the requirements to filing for asylum, Jane would have problems with getting asylum due to her mother and father having guardianship agreement in regards to Jane, which conflicts with one of the requirements. Also, it interferes with Jane’s father’s rights to be a parent.
2. No. Billy would not be able to file for asylum on behalf of Jane against the wishes of Jane’s father, in which, he is still present and has custody of Jane.
3. Yes. Jane would be able to use the claims of physical abuse and being used as a governmental propaganda tool to file for asylum. However, Jane may need to provide proof of the abuse. It is kind of hard to prove that Jane is afraid to go back to Canada if for six years Jane has been going back and forth from Canada to New York willingly.
8 U.S.C. § 1158
(a) Authority to apply for asylum
(1) In general.
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225 (b) of this title. Statement of Facts
Jane Doe, a 14-year-old Canadian, has been living with her father, John, in Quebec during the school year and her mother, Anne, in New York during school breaks and holidays after her mother and father had divorced six years ago. Six months ago, while Jane was living in New York with her mother during her school break, Jane and her mother got into an argument, in which, Jane had called her father and asked to go back to Quebec, but declined. Couple of days later, Anne and John gets a message from Jane saying that she was going to go and live with her 21-year-old uncle, Billy, in California because she felt that they didn’t care about her. Anne, on her way to airport, was killed in an automobile accident trying to intercept Jane. Jane, after her mother’s accident, refuses to go back to Canada. Since Jane is a minor, her uncle, Billy, wants to file an asylum petition on Jane’s behalf claiming that Jane is afraid to return to Canada because John has physically abused her and that she will be used as a propaganda tool for the separatist movement. Jane also claims that other children and adults who disagree with the goals of the government have been used for propaganda purposes. Law and Analysis
After Jane’s mother and father divorced six years ago they had retained full custodial and parental rights under Canadian law. With that being said, upon death of a parent, custody would be transferred to the surviving parent. In this case, since Jane’s father has custody of Jane and is still alive, custody would be transferred onto him. However, Jane refuses to go back to Canada and live with her father due to allegations that her father, John, physically abuses her and will use her as a propaganda tool for the government. Jane’s uncle, Billy, is willing to take her in, however, she is not a United States citizen. Because Jane want’s to stay here she wants to file a petition for asylum along with her uncle on her behalf.
The first issue at hand is whether Jane would be able to file for an asylum petition. Under the United...
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