Legal Issues for Jane Asylum Case
Kelisha Marshall
Kaplan University
PA401: Advanced Legal Writing

MEMORANDUM
To: Linda Ashar, Esq
From: Kelisha Marshall, Paralegal
Date: November 13, 2012
RE: Jane’s Asylum Petition |
Statement of Facts
Jane is only 14 years-old, she is neither a citizen of the United States nor a dual citizen of any other country. For six years Jane’s parents have shared full custody and parental rights. Jane would spend the school term with her father, John, in Quebec and school breaks and holidays with her mother, Anne, in New York. Halfway through the school break in New York, Jane telephoned her father stating she wanted to come home early. Her father encouraged her to get along with the mother until break was over. Two days after this incident, Jane left her mother’s home and never returned. Upon Anne’s arrival to her home that evening she listened to a message left by Jane stating she hated them both and was going to live with her Uncle Billy in California. John also received the same message. Rushing to the airport in effort to stop Jane, Anne was killed in a car accident. Now Jane is in California with her uncle and refuses to return to Quebec with her father.
Issues
Does Uncle Billy have the authority to apply for petition of asylum on behalf of Jane?
Does Jane herself have the authority or right to apply for a petition of asylum in regards to the alleged exposure of being a propaganda tool?
Has time elapsed for the processing of an asylum petition due to Jane being back and forth for so many years?

Rules of Law In trying to address these issues we must first determine the rights of the clients and what Jane’s classification will fall under.
According to Universal Declaration of Human Rights:
Article 14. * (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. * (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
This rule as read does not seem to discriminate against age.
Article 25. * (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. * (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Pursuant to the 8 USC § 1158 - 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 status, may apply for asylum in accordance with this section or where applicable 1225(b) of this title.
Due to Jane being a minor it should be established if she is an unaccompanied minor or minor principal. A minor principal is an applicant under the age of 18 at the time of filing. An unaccompanied minor is an applicant under the age of 18 and who has no parent or legal guardian in the United States who is available to provide and physical custody. This definition encompasses separated minors, e.g., those who are separated from their parents or guardians, but who are in the informal care and physical custody of other adults, including family members. Note that a child who entered the U.S. with a parent or other adult guardian but who subsequently left the parent’s or guardian’s care would be considered an unaccompanied minor. For purposes of the unaccompanied minor definition, guardianship refers to a formal (legal/judicial) arrangement. If the parent is deceased and there is no legal guardianship arrangement, the child would be considered unaccompanied.
If all the terms of the custodial agreement are correct in saying that Jane has been between Quebec and the United States for the last 6 years, then it is possible that her time limit has been reached to file a petition for asylum. Per the following: 8 USCS 1158 § Asylum (2)(B) Time limit. Subject to subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States. On the other side of this law, the next section may lend a helping hand to the fear of future persecution.
In determining Jane’s fear of potentially returning home to her father the following is stated:
CFR § 1208.13 Establishing asylum eligibility.
(a) Burden of proof. The burden of proof is on the applicant for asylum to establish that he or she is a refugee as defined in section 101(a) (42) of the Act. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration. The fact that the applicant previously established a credible fear of persecution for purposes of section 235(b) (1) (B) of the Act does not relieve the alien of the additional burden of establishing eligibility for asylum. (B) The applicant could avoid future persecution by relocating to another part of the applicant's country of nationality or, if stateless, another part of the applicant's country of last habitual residence, and under all the circumstances, it would be reasonable to expect the applicant to do so.

Analysis
In order for it to be deemed suitable and lawful to file a petition of asylum, many requirements have to be met especially with a child. Although Jane is stated she fears going back to Quebec, you can’t rule out the information of knowing, she actually asked to go back days before her departure of New York. With regards to Uncle Billy, the law will possibly hold him at no regards, because Jane still has a legal parent that is capable of caring for her. In Chen v. Gonzales 439 F.3d 109, 111 (2d Cir. 2006), the courts became aware of the BIA’s failure to respond to the reports Chen made available in order to corroborate his story. In Jane’s case, some type of proof besides her word of mouth would have to be established, to corroborate her story of future persecution. Just noting her father’s affiliations in Canada, does not warrant the alleged allegations of physical abuse and usage of her being a separatist tool.

Conclusion
Based on the facts supplied, I do believe Jane can file a petition for asylum. As an unaccompanied minor, she will have to bear the burden of proof for all the alleged allegations, unless the Attorney General finds to need to corroborate. Also seeing that she does have a living relative in the United States, she can possibly be granted a stay in California until the petition is either approved or denied, depending on the evidence required. I think it’s important to understand that everyone has the right to file for an asylum petition, if the eligibility requirements are met. The more in-depth process of this filing comes after that, which is looking into the history of claims, time frame and proving persecution. Jane is a teenager, so things can be interpreted differently when in a rebellious state of mind. Proving her fear is true and genuine and not just rebellion is going to be difficult considering all the facts.