Jane’s Asylum Memorandum and Elian Gonzalez Case Brief Essay

Question PresentedUnder the in-migration and naturalisation Service requirements for register a be give tongue to for psychical hospital in the U.S., lav a relative submit an activity on behalf of a tiddler? absolutely AnswerNo. Minors butt end submit a quest for origination in the coupled States, because the Supreme butterfly feels that application for erectation end non be make against the wishes of a p bent, if the barbarian privations the psychical readiness to request foundation. A triad whatsoeverbody can non speak on the behalf of a squirt because it is the remediate of the elevate to speak on behalf of his nipper in the salute.Statement of FactsJane is 14 years old. She has Canadian citizenship and has no duple citizenship with any other country. Her spawn is a Canadian citizen and her mother is an American citizen. Her get ups start been divorced for six years. Her father, John, has primary cathexis in Quebec. During the school breaks and holiday vacations, she lives with her mother, Anne, in New York. John is a superior government minister, working on creating an self-governing French Canadian State. Under Canadian law, both Anne and John retained serious custodial and enhanceal rights following the divorce. sise months ago, Jane was funding 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 hinderance the remainder of the break and try to situate along with her mother. Two days later, at 600pm, Anne returned from work to find a mess shape up on her answering simple machine from Jane, saying that she was going to live with her uncle, Billy, in California. He is 21 years old. Janes mess come along stated that she hated both of her p arents and believed that neither of them vexd about her at all. Her father received a similar mess mount up. Anne died on the way to the airport to catch up with Jane.Jane refuses to retur n to Canada. Billy wants to file an safety petition with U.S. Citizenship and Immigration Services on Janes behalf since she is a pincer. He calls that Jane is horror-stricken to return to Canada collectible to propaganda roll in the hays. Jane claims that other ill-affected chelaren and adults who disagree with the goals of the government have been use for propaganda purposesApplicationThe write out of mental home is not always easy and special notes are pickyly made for psychiatric hospital when it seekers get minors. The United Nations oecumenic Assembly recognize and accepted world-wide instruments and documents that contain nourishment specifically relating to children. They recognize and promote the convention that childrens rights are human rights, and that childrens rights are universal. See, Universal Declaration of valet de chambre Rights, (1948)(e.g., Article 14 provides for the right to book for asylum, Article 25(2) refers to the special bursting cha rge and attention required for children). Pursuant to 8 U.S.C 12 1158 (2004), any foreigner bodilyly in the United States, irrespective of such unknown quantitys status, may apply for asylum. The secretaire of Homeland Security or the attorney General may grant asylum to any who have filed for asylum and has entire 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 categorize as either a minor sensation or an isolated minor according to U.S. Citizenship and Immigration Services. The difference among the devil is a minor important is a person chthonic the come on of 18 when filing for asylum by ones own right, as opposed to as a derivative family member on a upgrades or spouses asylum application. An unaccompanied minor principal applicator for asylum who is under 18 years of long time and who has no parent or judicial guardian in the U.S. who is available to provide c are and physical hold. This definition encompasses scattered minors, e.g., those who are separated from their parents or guardians, but who are in the informal care and physical handgrip of other adults, including family members.See, Homeland Security diddle 6 U.S.C. 279 (2002). The latter is better accommodate in Janes case. Because she is under the age of 18, she left the care of her parent, has no vivacious parent in the United States, and in the physical care of an adult family member. The at long last part of issue one is the filing an application for asylum be a child. .In Gonzalez v. Reno, 86 F. Supp. 2d 1167 (S.D. Fla. 2000), affd, the judiciary undercoat that a child with out mental competency cannot file asylum against the wishes of parent. In Polovchak, the courtroom concluded the minimum age of 12 was the lowest for the age of volume needed to distinguish the childs asylum interests that different from those of their parents. Polovchak v. Meese, 774 F.2d 731 (7th Cir. 1985).Jane has a particular revere of being used, as propaganda, in a province policy-making issue will not affect her age to form a governmental mind. Matters pertaining to persecution of political intellections of a minor differing than those of a parent cannot be a rejection ascribable to age. See, obliging v. INS, 140 F.3d 52 (1st Cir 1998) Matter of S-P, Int. Dec. 3287 (BIA 1996)(stating that the ordinal Circuit has recognized imputed political opinion as a ground for refreshing the refugee definition). In 1994, The United Nations High Commissioner for Refugees (UNHCR) stated, that children and adolescents are entitled to special attention because their needs, and their legitimate and social status, can be significantly different from those of adults, and from each other as well, due to age-related developmental differences,ConclusionIn conclusion, Janes uncle, Billy, cannot file for a petition for asylum on Janes behalf. Jane can seek and file a petition f or asylum in the United States on her own. Since Jane is 14 years old, she has the mental capacity to file for asylum because the courts view mental capacity for petition of children asylum seekers be at the minimum age of 12. In addition, the claim of being used as propaganda excessivelyl to further her fathers legal actions to have the province become an autarkical from the Canadian government, allows Jane to have different political opinions of her father. Janes status would make her an unaccompanied minor. Her applicant status means that she is an applicant for asylum because she is under 18, has no parent or legal guardian in the U.S, has no legal parent living in the U.S., and is in the informal care and physical custody of an adult family member. It is my opinion that she would have successful results in seeking, filing, and receiving asylum in the U.S. CITATIONGonzalez v. Reno, 86 F. Supp. 2d 1167 (S.D. Fla. 2000)FACTSThe parties to this case are Elian Gonzalez with Lazar o Gonzalez and attorney General Janet Reno. Six-year-old Cuban national Elian Gonzalez became the focus of international attention five months ago, on November 25, 1999, when he was rescued by two Miami anglers who found him floating on an inner subway several miles off Fort Lauderdale. Elian was transferred to a United States Coast Guard vas so he could be transported to a nearby hospital for treatment for vapor and hypothermia. Elians 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 this action as next friend, or or else as interim temporary legal custodian, of Elian Gonzalez, a six-year-old child, against the lawyer General, the Commissioner of the Immigration and Naturalization Service (INS), and other federal defendants. The ill challenged the INSs refusal to accept and adjudicate two asylum applications that Lazaro sub mitted with respect to Elian and an essentially akin application that bore Elians signature. On January 27, 2000, the government filed a motion to give the sack or, in the alternative, for compendious judgment. The soil court heard oral argument on the governments motion on March 9, 2000. On March 21, 2000, the district court granted the governments motion to dismiss or for summary judgment and dismissed the case. Plaintiff appealed. On April 19, 2000, this Court issued an injunction pending appeal, bar Elians removal from the United States during the pendency of this appealISSUE1. Whether the district court was overcompensate 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 INSs thoroughly considered and crafted uprise to considering asylum applications submitted by a third society on behalf of a six-year-old child, against the deliver wishes of the childs s ole living parent.RULE1. An unadmitted alien cannot challenge decisions by INS officials with attachment to their applications for admission, asylum, or parole on constitutional grounds2. 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.ANALYSISThe Court entangle that the district court ruled right 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 histrionics to enforcing the statute, in this case the INS, to choose how to suffer such gaps. See Chevron, U.S.A., Inc. v. Natural Resources defense Council, Inc., 467 U.S. 837 (1984), 104 S. Ct. at 2793The second issue was who could really 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 Renos job to root 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 childs asylum interests that different from those of their parents. Lazaro Gonzalez application for cathexis was not a llowed because the matter was with immigration change it to be a federal matter. remainderThe 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 baksheesh 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 remove 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