Jane’s Asylum Memorandum and Elian Gonzalez Case Brief Essay

Question Presented

Under the Immigration and Naturalization Service requirements for filing a petition for asylum in the U.S., can a relative submit an application on behalf of a minor?

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Jane’s Asylum Memorandum and Elian Gonzalez Case Brief Essay
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Short Answer

No. Minors can submit a petition for asylum in the United States, because the Supreme Court feels that application for asylum cannot be made against the wishes of a parent, if the child lacks the mental capacity to request asylum. 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.

Statement of Facts

Jane is 14 years old. She has Canadian citizenship and has no dual citizenship with any other country. Her father is a Canadian citizen and her mother is an American citizen. Her parents have been divorced for six years. Her father, John, has primary guardianship in Quebec. During the school breaks and holiday vacations, she lives with her mother, Anne, in New York.

John is a high-level government minister, working on creating an independent French Canadian State. Under Canadian law, both Anne and John retained full custodial and parental rights following the divorce.

Six months ago, Jane was living 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 stay the remainder of the break and try to get along with her mother. Two days later, at 6:00pm, Anne returned from work to find a message on her answering machine from Jane, saying that she was going to live with her uncle, Billy, in California. He is 21 years old. Jane’s message stated that she hated both of her parents and believed that neither of them cared about her at all. Her father received a similar message. Anne died on the way to the airport to catch up with Jane.

Jane refuses to return to Canada. Billy wants to file an asylum petition with U.S. Citizenship and Immigration Services on Jane’s behalf since she is a minor. He claims that Jane is afraid to return to Canada due to propaganda issues. Jane claims that other rebellious children and adults who disagree with the goals of the government have been used for propaganda purposes


The issue of asylum is not always easy and special notes are particularly made for asylum when it seekers involve minors. The United Nations General Assembly recognized and accepted international instruments and documents that contain provisions specifically relating to children. They recognize and promote the principle that children’s rights are human rights, and that children’s rights are universal. See, Universal Declaration of Human Rights, (1948)(e.g., Article 14 provides for the right to apply for asylum, Article 25(2) refers to the special care and assistance required for children). Pursuant to 8 U.S.C 12 §1158 (2004), any foreigner physically in the United States, irrespective of such alien’s status, may apply for asylum. The Secretary of Homeland Security or the Attorney General may grant asylum to any who have filed for asylum and has completed 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 classified as either a minor principal or an unaccompanied minor according to U.S. Citizenship and Immigration Services. The difference between the two is a minor principal is a person under the age of 18 when filing for asylum by one’s own right, as opposed to as a derivative family member on a parent’s or spouse’s asylum application. An unaccompanied minor principal applicant for asylum who is under 18 years of age and who has no parent or legal guardian in the U.S. who is available to provide care 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.

See, Homeland Security Act 6 U.S.C. §279 (2002). The latter is better fitting in Jane’s case. Because she is under the age of 18, she left the care of her parent, has no living parent in the United States, and in the physical care of an adult family member. The 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), aff’d, the court found that a child with out mental capacity cannot file asylum against the wishes of parent. In Polovchak, 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. Polovchak v. Meese, 774 F.2d 731 (7th Cir. 1985).

Jane has a particular fear of being used, as propaganda, in a province political issue will not affect her age to form a political opinion. Matters pertaining to persecution of political opinions of a minor differing than those of a parent cannot be a rejection due to age. See, Civil v. INS, 140 F.3d 52 (1st Cir 1998); Matter of S-P, Int. Dec. 3287 (BIA 1996)(stating that the Ninth Circuit has recognized imputed political opinion as a ground for satisfying 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 legal and social status, can be significantly different from those of adults, and from each other as well, due to age-related developmental differences”,


In conclusion, Jane’s uncle, Billy, cannot file for a petition for asylum on Jane’s behalf. Jane can seek and file a petition for 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 tool to further her father’s actions to have the province become an independent from the Canadian government, allows Jane to have different political opinions of her father. Jane’s 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. CITATION:

Gonzalez v. Reno, 86 F. Supp. 2d 1167 (S.D. Fla. 2000)


The parties to this case are Elian Gonzalez with Lazaro 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 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 this action as next friend, or 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. 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


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.


1. An unadmitted alien cannot challenge decisions by INS officials with regard to their applications for admission, asylum, or parole on constitutional grounds

2. 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.


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. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), 104 S. Ct. at 2793

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.


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

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