Damione Verdusco
PA 401 – Unit 7
Internal Legal Memorandum: Draft
December 31, 2010
Memorandum
TO: J. Jones, Senior Partner
FROM: D. Verdusco, Paralegal
DATE: December 31, 2010
RE: Jane Doe Asylum Case
SUBJECT: Filing a petition for asylum by a non-parental relative on behalf of a minor if the minor can establish asylum eligibility.
Case Facts:
Jane is a 14-year-old Canadian. She is not a dual citizen of any countries. She is not a United States Citizen. Her parents have been divorced for six years; since the divorce, 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. John is a high-level government minister whose department works toward the creation of an independent French Canadian State.
Under Canadian law, both Anne and John retained full custodial and parental rights following the divorce. Jane has historically had a good relationship with both of her parents; however, over the past two years she has become argumentative with and emotionally distant from both parents. Anne and John have always made important decisions regarding Jane together. Six months ago, Jane was living in New York during a school break. Halfway through the break, Jane telephoned her father in Toronto, asking to be allowed to return to Quebec early because she and Anne were not getting along. Her father told her she was to try to get along with her mother and remain in New York until the end of her school break as usual.
Two days later, Jane left home in the early morning with friends for the day, her usual routine. At 6:00 that evening, Anne returned from work to find a message on her answering machine from Jane, saying that she was going to live with her 21-year-old uncle Billy in California. In the message, Jane said that she hated both of her parents and believed that neither of them cared about her at all. John received a similar message. Anne was killed in an automobile accident rushing to the airport to intercept Jane.
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 has contacted your 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. Does a minor who refuses to return their native land qualify as a refugee if they have a well-founded fear of future persecution?
Short Answer
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.
(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. Does Jane have 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?
Short Answer
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.
Applicable Statute
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.
(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.
3. Can Billy Doe file a petition for asylum on Jane’s behalf?
Short Answer
No. Under relevant case law, the proper person to file for asylum is Jane’s father.
Applicable Statute
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.
4. Is Jane time barred from filing a petition for asylum?
Short Answer
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 Statute
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.
5. Has Jane established all of the required elements needed to prove asylum eligibility?
Short Answer
No. The burden of proof is on Jane to show that she has a valid asylum claim. Jane may qualify as a refugee and have a fear of being of being used for propaganda purposes should she return to her native land, but, she has not met all of the required elements that are needed to establish asylum eligibility.
Applicable Statute
8 CFR § 1208.13 (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.
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, http://www.hrea.org/index.php?doc_id=418 (last visited January 7, 2011).
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." See Matter of 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, http://www.uscis.gov (last visited January 6, 2010). 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 §1208.13Establishing 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 Chen, Petitioner aliens, a husband and wife who were Chinese nationals, sought review of a decision of the Board of Immigration Appeals, affirming the immigration judge's (IJ) order, that country because of such fear denying their request for asylum, withholding of removal, and protection under the Convention Against Torture, claiming that they feared persecution for resisting the government's one-child policy if forced to return to China. The court denied the aliens petition for review. Chen v. Gonzales, 457 F.3d 670 (2006). Expanding on Chen , with attention to the wife’s status, the court noted, “An asylum applicant cannot prevail unless she can show both that she subjectively fears persecution and that there is an objectively reasonable possibility she will be persecuted. 8 C.F.R. § 208.13(b)(2). She must show either that she will be "singled out" for persecution or that she is a member of a group against whom there has been a demonstrated pattern or practice of persecution.” 457 F.3d 670 (2006).
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).
In the case of INS v. Elias-Zacarias, the court explained,…“The ordinary meaning of the phrase persecution on account of political opinion in § 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C.S. § 1101(a)(42), is persecution on account of the victim's political opinion, not the persecutor's.” INS v. Elias-Zacarias, 502 U.S. 478 (1992). In this case, Petitioner Immigration and Naturalization Service challenged a decision of the United States Court of Appeals for the Ninth Circuit, which held that respondent alien was entitled to asylum because a guerilla organization's attempt to coerce him into performing military service constituted persecution on account of political opinion under § 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C.S. § 1101(a)(42). The court of appeals' determination that respondent was entitled to asylum was reversed, since a guerilla organization's attempt to coerce respondent into performing military service did not necessarily constitute persecution on account of respondent's political opinion as required by the Immigration and Naturalization Act. 502 U.S. 478 (1992).
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. Namely, according to Trac Immigration Reports ...“To win legal protection from being deported asylum seekers must:
1. Be outside their country of nationality. Asylees are by definition in the United States and thus necessarily outside their country of nationality. 2. Be afraid of persecution. Torture and imprisonment are persecution - recognized under the law, but harassment or discrimination usually are not. Where these lines are drawn is different in each case.
3. Be harmed or fear harm by the government or others. Harm by the police or the army counts. Harm by right-wing or left-wing political groups or religious zealots that the government is "unable or unwilling to control" also counts.
4. Be affected by at least one of several defined conditions. As suggested above, these conditions are: political opinion, race, religion, nationality, and social group. The last category, social group, usually refers to people with certain characteristics that a particular society might lump together and have generally unfavorable attitudes about, such as homosexuals. The law generally does not include people who fled their homes due to civil wars, generalized violence, and criminal prosecution. However, even these reasons may suffice if they can be connected to one of the five listed reasons.
5. Not be a dangerous person. Finally,international law recognizes that countries have the right to exclude asylum seekers who may be a danger to society. These include those who have committed serious crimes, pose threats to national security, or who have committed war crimes or "crimes against humanity".” Trac Immigration, Asylum Law, Asylum Seekers and Refugees: A Primer, http://trac.syr.edu/immigration/reports/161/ (last visited January 7, 2011).
On the other hand, Jane may file for asylum according to 8 U.S.C. § 1158 (a) (1) which is defined as:
a) Authority to apply for asylum
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’s status, may apply for asylum in accordance with this section or, where applicable, section 1225 (b) of this title.
Nonetheless, while “any alien” may apply for asylum, it is unlikely that the court will grant Jane asylum based on her fear of her legal guardian. However, a fear of being used for propaganda purposes does give someone the right to be granted asylum. Comparably, Jane’s Uncle, Billy Doe wants to file for asylum on Jane’s behalf. The issue here is, can he? See Gonzalez v. Reno, 212 F.3d 1338 (2000). In analyzing Gonzalez, the court explained… “The important legal question in this case, therefore, is not whether Plaintiff may apply for asylum; that a child is eligible to apply for asylum is clear. The ultimate inquiry, instead, is whether a child has applied for asylum within the meaning of the statute when he, or a non-parental relative on his behalf, signs and submits a purported application against the express wishes of the child's parent.
Because the statute is silent on the issue, Congress has left a gap in the statutory scheme. From that gap springs executive discretion. As a matter of law, it is not for the courts, but for the executive agency charged with enforcing the statute (here, the INS), to choose how to fill such gaps. See Chevron, 104 S. Ct. at 2793. That Congress left a gap in the statutory scheme does mean Congress has done something wrong. Whether Congress could or should legislate with sufficient detail to address every conceivable set of circumstances that may arise is highly debatable. Moreover, the authority of the executive branch to fill gaps is especially great in the context of immigration policy. See Aguirre-Aguirre, 119 S.Ct. at 1445. Proper review of the exercise by the executive branch of its discretion to fill gaps, therefore, must be very limited. See Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 111 S.Ct. 2524, 2534, 115 L.Ed.2d 604 (1991). The court affirmed the district court's judgment; the policy decision made was reasonable. The INS did not abuse its discretion or act arbitrarily in applying the policy in rejecting plaintiffs' asylum application… “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. Policy was not abuse of discretion; its application, resulting in rejection of asylum applications, was not arbitrary. Policy also did not contradict relevant statute.” Gonzalez v. Reno, 212 F.2d 1338 (2000).
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 1, http://www.justice.gov/eoir/press/98/asylnote.html (last visited January, 7, 2011).
In Diop, the court stated, “An alien may not apply for asylum unless he demonstrates by clear and convincing evidence that the application has been filed within one year of his arrival in the United States. Immigration and Nationality Act § 208(a)(2)(B); 8 U.S.C.S. § 1158(a)(2)(B). A late application for asylum may be considered in the existence of changed circumstances which materially affect the alien's eligibility for asylum or extraordinary circumstances relating to the delay in filing the application.” 8 U.S.C.S. § 1158(a)(2)(B), (D). Diop v. United States AG, 159 Fed. Appx. 103 (2005). Elaborating on Diop, Petitioner alien sought review of two orders of the Board of Immigration Appeals (BIA), which affirmed an immigration judge's (IJ) denial of the alien's motion for continuance to obtain counsel and denial of the alien's motion to reopen his removal proceedings based on the ineffectiveness of the alien's appellate counsel. The motion to reopen was also properly denied. No court could review the Attorney General's decision regarding whether an alien complied with the one-year time limit of 8 U.S.C.S. § 1158 or had established extraordinary circumstances. The court affirmed the BIA's orders and denied the alien's petition. 159 Fed. Appx. 103 (2005). 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.
Moreover, Jane’s biggest obstacle in this case is meeting the required elements for granting asylum. The burden of proof is on Jane to establish that she is a refugee as defined in Section 101)a)(2) of the Act. Further, Jane’s credibility is major factor should she decide to testify. The burden of proof is a substantial element under 8 CFR §1208.13(a). Jane does not meet this element under establishing asylum eligibility.
In Barry the court contended that under § 208 of the Immigration and Nationality Act (INA), 8 U.S.C.S. § 1158(b), the U.S. Attorney General has discretion to grant asylum to a refugee. The disposition of an application for asylum involves a two-step inquiry: (1) whether the applicant qualifies as a refugee as defined in 8 U.S.C.S. § 1101(a)(42)(A), and (2) whether the applicant merits a favorable exercise of discretion by the Attorney General. Section 101 of the INA defines a refugee as an alien who is unable or unwilling to return to his or her 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). An applicant may therefore establish eligibility for asylum by showing that he or she (1) has suffered past persecution, or (2) has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b). The burden is on the applicant to establish that he or she qualifies as a refugee. 8 C.F.R. § 1208.13(a). Notably, an applicant must present more than a plausible explanation to overcome an adverse credibility determination. If the immigration judge's contrary interpretation is not unreasonable, it supports an adverse credibility finding. The alien claimed political persecution in Guinea based on his participation and membership in an opposition political party. The alien's sole argument on appeal was that the IJ erred in rejecting the supporting evidence that the alien provided. Specifically, he contended that the IJ never ruled that he was not credible, and thus should have credited the alien's testimony, relied on his supporting evidence, and found that the alien satisfied his burden of proof. Contrary to the alien's contention, the IJ did make an adverse credibility finding regarding the alien's testimony about his supporting evidence. This credibility finding undercut the alien's argument that the instant court should credit his testimony regarding such evidence. Furthermore, this adverse credibility finding was supported by substantial evidence. The remaining issue was whether the IJ's determination that the alien failed to meet his burden of proof was supported by substantial evidence and the alien was unable to refute the IJ's conclusion that he failed to provide reasonably available corroborating evidence. In rendering its decision, the court denied the alien’s petition for review. Barry v. Holder, 2010 FED App. 0539N (6th Cir. 2009).
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.
What grade did you get for this paper at KU? I am curious!
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