Memorandum of Law
Date: January 14, 2014
Re: Jane’s Asylum case
A 14 year old Canadian citizen by the name Jane lives with her father, John, in Quebec, Canada during school year and with her mother, Anne, in New York, US during school holidays and school breaks. Jane has some difficulties with her parents and decides to move to California to live with her uncle, Billy. Jane sends her parents a message informing them of her decision and her mother decides to follow her but is killed in an automobile accident on her way to the airport. As a result, Jane declines to Canada to live with the dad because she claims he is abusive and also thinks that she will be sued as a propaganda tool for the separatist movement in Canada as her father woks with the French-Canadian state.
Issue #1: whether Jane’s claims of her father’s physical abuse and the claim of a political tool can be grounds for her petition asylum.
Issue #2: whether Jane who is a minor can file for an asylum
Issue #3: whether Jane’s uncle, Billy, who is a non-custodian adult, can file a petition on Jane’s behalf.
This case is a classic example of the Immigration and Nationality Act of 1996, 8 USCS 1101 which includes the definition and provisions regarding immigrants to the US as well as the Refugee Act of 1980, USCS 1158 which consists of the procedures and policies regarding petitions for asylums that are allowed by the US. The statute outlines that any alien can apply for US asylum, but the Secretary of Homeland Security is required by the Immigration & Naturalization Services (INS) to consider merits of such an application.
Jane is a minor, whose divorced parents live in different countries but with legal custodial and parental rights. Upon the death of her mother, custodian shifts to her father and therefore Jane will be required to live with her father in Canada. However, Jane claims that her father is physically abusive and that she may be used as a propaganda tool for the government where his father works and wants to remain in the US. Jane is not a US resident but used to live with her mother. In order to continue staying in the US, Jane is considering applying for asylum and wants her uncle, Billy, to help her file for the same on her behalf.
Issue #1: whether Jane’s merit for asylum is sufficient for the INS to approve her request for asylum. The AG and the Secretary of Homeland Security will review petitions for asylum. All relevant factors, totality of circumstances will base a credibility determination on the candor, responsiveness or demeanor of the applicant. Jane may be required to provide of her claims of an abusive father and the claim of being used as a propaganda tool. Possible witnesses may also be interviewed and research on Jane’s claims.
Issue #2: whether Jane can petition for her own asylum. The Refugee Act of 1980 states that any alien who is present in the US or arrives in the US may apply for asylum. However, in the Gonzalez v. Reno case implies that a minor cannot petition for asylum without consent of a natural parent (215 F.d 1243).
Issue #3: whether Billy, Jane’s uncle, may apply for asylum on her behalf. The statute states that asylum may be granted to people residing in the US and are unwilling or unable to return to their home country because there is a well founded fear of persecution because of race, political, religion, or subscribes to membership to a particular group. In the Gonzalez v. Reno case, the court found that neither plaintiff minor child, plaintiff’s temporary legal custodian can file for on plaintiff minor child’s behalf over her father’s objections (215 F.d 1243). This simply means that non-custodial adults cannot apply for asylum of a minor without her father’s consent.
This means that Jane will have difficulties applying US asylum due to objections by her father. However, Jane could try to prove that she is legitimate refugee because staying with hr abusive father will risk her safety. This is because refugees differ from immigrants as they do not have a choice to remain in their countries because of a fear for their lives. Jaen can also try to become emancipated from her separatist father due to his French-Canada separatist movement may endanger her. She can then try to apply for US citizenship.
It is unlikely that Jane’s petition will be granted due to legal issues presented upon viewing her case especially that her father continues to insist that she lives with her in Canada. It is also not recommended that Billy applies for her asylum even if he is the guardian. However, Jane has a ray of hope to live in the US including applying for refugee status or applying for a visa.
8 USCS 1101 (2010)
8 USCS 1521 (2010)
Gonzalez v. Reno. Find law. Retrieved from http://caselaw.findlaw.com/us-11th-circuit/1418748.html