To: Meegan Zickus Attorney From: S S Paralegal Re: Jane Doe Asylum Case
Date: April 21, 2013
CITATION
Gonzalez v. Reno, 86 F. Supp. 2d 1167 (S.D. Fla. 2000)
FACTS
The parties of this case are Elian Gonzalez with Lazaro Gonzalez and Attorney General Janet Reno. Six-year-old Cuban national Elian Gonzalez, on November 25, 1999, was rescued by two Miami anglers who found him floating on an inner tube several miles off Fort 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. Elian's 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 alternatively as interim temporary 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 INS's refusal to accept and adjudicate two asylum applications that Lazaro submitted with respect to Elian and an essentially identical application that bore Elian’s signature.
PROCEDUAL HISTORY
On January 27, 2000, the government filed a motion to dismiss or, in the alternative, for summary judgment. The district court heard oral argument on the government's motion on March 9, 2000. On March 21, 2000, the district court granted the government's motion to dismiss or for summary judgment and dismissed the case. Plaintiff appealed. On April 19, 2000, this Court issued an injunction pending appeal, barring Elian's removal from the United States during the pendency of this appeal.
ISSUE
1. Whether the district court was correct in holding that Elian Gonzalez has no due process rights concerning the manner in which the INS considered the asylum applications filed on his behalf.
2. Whether the INS's 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 child's sole surviving parent.
RULE
An un-admitted alien cannot challenge decisions by INS officials with regard to their applications for admission, asylum, or parole on constitutional grounds
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.
ANALYSIS
The 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 ruling 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", Jean 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 procedure, 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.
The 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 Reno’s 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 child’s 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 matter.
CONCLUSION
The 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 only 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 reverse the lower court decision therefore sending the child back 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.
BASED UPON the foregoing, it is hereby ORDERED AND ADJUDGED that the Motion to Dismiss or Alternative Motion for Summary Judgment is GRANTED. Accordingly, the above-captioned action is DISMISSED.
This case Lazaro Gonzalez lost the rights to Elian and was returned to his father’s custody where they returned to Cuba.
CASE FACTS
The parties of this case are 14-year-old Canadian Jane her father John and her Uncle Billy. Jane Doe is a minor and seeking asylum in the United States. She has lived with her father, John, in Quebec during the school term and with her mother, Anne, in New York during school breaks and holiday vacations. During her recent visit with her mother she called her father stating she wanted to come home. John is a high-level government minister whose department works toward the creation of an independent French Canadian State.
Jane refuses to return to Canada. Since Jane is a minor, her uncle Billy wants to file an asylum petition with U.S. Citizenship and Immigration Services on her behalf he is not her legal guardian her mother is deceased. He has contacted the law firm, 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 claims that other rebellious children and even adults who disagree with the goals of the government have been used for propaganda purposes.
QUESTIONS PRESENTED 1) Whether Jane, a minor, can petition for asylum in the United States on her own behalf. 2) Whether Jane Doe’s Uncle Billy, a non-custodial adult relative, can petition for asylum on Jane’s behalf. 3) Whether Jane has the right to be granted asylum because she has a fear of her legal guardian and a fear of being used as a propaganda tool. 4) Whether the accusation of abuse enough file to for asylum. 5) Whether Jane time limit for filing a petition for asylum.
SHORT ANSWERS 1) Yes. Under the law, if a minor refuses to return to their native land because of a well-founded fear of future persecution they may qualify as a refugee. 2) No. Under relevant case law, the proper person to file for asylum is Jane’s father. 3) No & Yes. Jane’s fear of her legal guardian does not give her the right to be granted asylum under the law. However, her fear of being used for propaganda purposes does. 4) No, the accusation of abuse is not enough file to for asylum. She will need to provide substantial proof of the possible impending threats or abuse. 5) Yes. Jane is not within the one year time limit to file for asylum. Jane has been in the United States for the past six years since her parents divorced.
APPLICABLE LAW 1) 8 CFR §1208.13(b) Establishing asylum eligibility. (b) Eligibility. The applicant may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution. 2) Gonzalez v. Reno, 212 F.3d 1338 (2000). Because preexisting law compelled no particular policy for plaintiffs' situation, Immigration and Naturalization Service was entitled to make policy decision: that plaintiff's father was proper person to apply for plaintiff's asylum. 3) 8 CFR § 1208.13 (2) Establishing asylum eligibility (2) Well-founded fear of persecution. (i) An applicant has a well-founded fear of persecution if:(A) The applicant has a fear of persecution in his or her country of nationality or, if stateless, in his or her country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion;(B) There is a reasonable possibility of suffering such persecution if he or she were to return to that country; and(C) He or she is unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such fear. 4) Gonzalez v. Reno, 212 F.3d 1338 (2000). Because preexisting law compelled no particular policy for plaintiffs' situation, Immigration and Naturalization Service was entitled to make policy decision. 5) 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
LEGAL ANALYSIS
In order for Jane to establish asylum eligibility she needs to meet all of the required elements under the relevant laws and case precedents. Based on the facts of this case, if Jane harbors a well-found fear of future persecution, Jane would qualify as a refugee as defined in 8 CFR 1208.13(b). Similarly, a refugee can be defined as, “Someone who has left her or his country or is unable to return to it owing to a well founded fear of persecution for reasons of race, religion, nationality, membership of particular social group or political opinion.” (Human Rights Education Associates: Refugees and Displaced Persons, visited April 22, 2013). Although persecution is not specifically defined within the INA, the courts have held that "a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution." Laipenieks, 18 I&N Dec. 433, 457 (BIA 1983). More specifically, in Laipenieks, Petitioner sought review of an order from the Board of Immigration Appeals (BIA) ordering him deportable under 8 U.S.C.S. § 1251(a)(19), for assisting the Nazi government in the persecution of Communists during World War II because of their political beliefs. The order finding petitioner deportable was reversed because there was insufficient evidence to show that any of petitioner's investigations resulted in the ultimate persecution of an individual because of his political beliefs. Laipenieks v. Immigration & Naturalization Service, 750 F.2d 1427 (1985). Moreover, refugee status or asylum may be granted to people who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion. U.S. Citizenship and Immigration Services: (Refugees and Asylum, visited April 21, 2013). Likewise, if Jane believes she will be persecuted if she is returned to Canada, she would fit this element of asylum eligibility.
Further, Jane claims that her father has physically abused her and that if she returns to Canada, she would be used for propaganda purposes. Jane’s fear of her father does not qualify her for asylum under the statute. Moreover, nowhere does it say under the statute that a fear of a legal guardian is grounds for granting asylum. 8 CFR §1208.13 Establishing Asylum Eligibility (2) Well-founded fear of persecution. (i) An applicant has a well-founded fear of persecution if: (A) The applicant has a fear of persecution in his or her country of nationality or, if stateless, in his or her country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion;(B) There is a reasonable possibility of suffering such persecution if he or she were to return to that country; and (C) He or she is unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such fear.
In Jane’s situation, her fear does not seem to be directly related to the fact that she will be persecuted due to her race, religion, nationality, membership to in a social group, nor her political opinions as is stated in Section 208(a) of the Immigration and Nationality Act (Act), 8 U.S.C.S. § 1158(a), authorizes the Attorney General, in his discretion, to grant asylum to an alien who is a "refugee" as defined in section 101(a)(42(A) of the Act, i. e., an alien who is unable or unwilling to return to his home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C.S. § 1101(a)(42)(A).
Additionally, Jane mentions that “she will be used as a propaganda tool for the separatist movement” and “that other rebellious children and adults who disagree with the goals of the government have been used for propaganda purposes.” She says nothing indicating that her political views are different from the separatists. Jane’s reasoning seemingly enough is that of a rebellious child and being a rebellious child does not grant one asylum. Notably, six months ago, Jane phoned her father and requested to return Toronto because she was not getting along with her mother.
Consequently, this only affirms that she acted of her own free will and disproves that she is in fear of any sort of persecution, past or future. Asylum applications are subject to stringent review procedures by adjudicators in the Department of Homeland Security and the Department of Justice and to rigorous background and security checks. Asylum decisions are discretionary, meaning the decision maker can weigh all the evidence and other factors and decide purely on the basis of his or her judgment. However, each decision is handed down within a framework of law and judicial opinions interpreting the law.
Unfortunately, Jane is not within the time limit to apply for asylum. The law is clear on the appropriate amount of time to apply for asylum. 8 USCS § 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. The Department of Justice (1998) reported, “As of April 1, 1997, immigration law requires asylum seekers to submit their asylum applications within one year of the date of their arrival in the United States. The law was amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which allowed asylum seekers already in the United States to file their asylum applications within one year of the April 1, 1997, effective date of the amendments. The one-year time limit applies to all asylum applications, including those filed by aliens in Immigration Court proceedings.” One Year Time Limit for Asylum for Asylum Applications Goes into Effect April 1st.
As previously stated, Jane has been in the United States for period of six years, since her parents divorced. She cannot establish by clear and convincing evidence that there is an existence of changed or extraordinary circumstances. She does not fit within the appropriate time frame and it is more than likely, that she will be time barred from applying for asylum.
CONCLUSION
In the present situation, based on the facts of this case, judicial decisions, statutes, and regulations, Jane has not established all of the eligibility requirements that are needed to be granted asylum. Billy Doe cannot file for asylum because he is not Jane’s legal guardian. Jane’s father is the proper person to file an asylum claim on her behalf. Jane has been in the United States well over the one year time frame allowed in applying for asylum. The court will not grant Jane asylum because she does not meet all of the required elements under an asylum claim. The burden of proof is on her to prove she qualifies for asylum. Jane does not meet this burden.
