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Jane's Asylum Essay

1448 words - 6 pages

Jane’s Asylum
Legal Memorandum

PA401: Advanced Legal Writing
Professor: David Weigel
Kaplan University
Sandra Luckie
April 4, 2011
To: David Weigel
From: Sandra Luckie
Re: Jane’s Asylum
File # Unit 9 Final
Date: April 4, 2011
Statement of Facts:
Here are the facts concerning Jane’s Asylum and whether or not her Uncle can file this on her behalf. First off Jane is a minor who lives with her father full-time in Quebec, Canada and with her mother during school break and on special holidays. It was during one of these holidays that she had a falling out with her mother and wanted to go home to her father, whom told her she needed to work it out with her mother. ...view middle of the document...

According to U.S. Immigration Law, a 14 year old minor can indeed file for her own petition for asylum. The U.S.C. §1158 of the INA of 1996 states that “any alien who arrives or is present in the U.S. can file for asylum.” It goes on to say in §1101 (a) (3) “that an alien is anyone who is not a citizen or national origin of the U.S.” Jane is a minor and a Canadian citizen, which makes her an alien in the U.S. and eligible to file her own petition for asylum.
In the case of Polovchak v. Meese, 774 F.2d 731 (7th Cir. 1985) the court found that the Plaintiff at age twelve was mature enough under certain individual rights and override those wishes of his parents and that he may become more mature with age.” However in the case of Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000) the court found that he Plaintiff was not mature enough to render a decision to file for asylum and that he needed adult supervision( representation). Therefore Jane whom is 14 years old fits the criteria of age requirements and that she fears physical abuse by political propaganda gives her valid claims to file for asylum.
2. Under U.S. Immigration Law, a non-relative cannot file a petition for asylum for a minor child. Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000), in which the U.S. Circuit Court stated that even though the law was silent about the validity of the child Plaintiff’s purported asylum applications, it fell to the INS to make a discretionary policy choice. Therefore, the INS assumes that someone under the age of 14 will not make representation or other immigration decisions without the assistance of a parent or legal guardian. In the case the INS determined that (1) six-year-old children lack the capacity to sign and personally submit an application for asylum; (2) instead, they must be represented by an adult in immigration matters; (3) absent special circumstances, the only proper adult to represent a child is the child’s parent, even when the parent is not in this country; and (4) that the parent lives in a communist-totalitarian state, in and of itself, does not constitute a special circumstance requiring the selection of a non-parental representative.
The INS rejected the application for asylum that was filed by his great uncle saying it was void. It goes onto to state how there was no special circumstance to justify in considering a 6 year old claim for asylum.
Further, in the case of Polovchak v Meese, 774 F.2d 731 (7th Cir. 1985) that the “parents interest is the strongest our society knows” and that they take a risk of being excluded from proceedings in which is in the best interest of the child. Unless there is a special circumstance of abuse, neglect, etc. The courts won’t stray from parental consent when it comes to children. Therefore in this case the 21 year old uncle of Jane shouldn’t file a petition for asylum on her behalf, because she is old enough to file her own and it is possible...

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