Children's Eligibility for Asylum in the United States

CAN THE UNITED STATES OFFER POLITICAL ASYLUM TO A CHILD WHO IS A RESIDENT OF A DEVELOPED COUNTRY?

This was the question that we researched and addressed in our final project for ADVANCED LEGAL WRITING AND LEGAL RESEARCH. The facts of the case were as follows:

Jane Doe is the fourteen year old daughter of John and Anne Doe, and was a citizen of Canada. Her father, John, lived in Quebec City, Canada, but he and his wife are divorced. He was a high level government minister whose department works toward the creation of an independent French Canadian State. His ex-wife moved to New York. Jane stayed with her father the majority of the time, and visited her Mother during vacations and school holidays. Historically Jane has had a good relationship with both of her parents. However, over the past two years she became become emotionally distant from both parents.

Six months ago, Jane was living in New York during a school break. she called her father in Toronto and asked if she could return to Quebec, because she was not getting along with her Mother. Her Father told her that she was to remain in New York until the end of her school break. 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.

On the message, Jane stated that she hated her parents and did not believe that either one of them cared for her. Anne dropped what she was doing and rushed to Kennedy International Airport to stop her from leaving. In her haste to get to the airport, she was involved in a traffic accident and killed. Jane arrived in California three days later. Since arriving, she has lived with her Uncle Billy Smith in California and she has refused to return to Canada.

Her Uncle Billy requested an attorney to file an asylum petition with U.S. Citizenship and Immigration Services on her behalf. He claimed that Jane was afraid to return to Canada because John had physically abused her. She also feared that she would be used as a propaganda tool for the separatist movement. Jane claimed that other rebellious children and even adults who had disagreed with the goals of the government had been used for propaganda purposes.

In researching this case, there were three questions that had to be answered. They were:

1). If a child enters the united states with his/her family can they apply for asylum without their parent’s permission?

2). If a child enters the united states with his/her family can they apply for asylum without their parent’s permission?

3). Is Jane Doe qualified for asylum because she fears she will be used as a propaganda tool for the Canadian separatist movement?

BRIEF ANSWERS

1. Yes. Under 8 USCS § 1158[1] of the Immigration and Nationality Act any person who comes to the United States is eligible to apply for Asylum under the provisions of the act.

2. Yes. Under 8 CFR 208.30[2] after she applies for asylum, she can request an interview with an Asylum Officer, and explain that she has been abused by her Father in Canada, and that she fears the abuse and persecution will continue if she is forced to return home. After hearing the position of the applicant, the Asylum Officer can send a recommendation to an Asylum judge and leave it up to them to decide if applicant is entitled to be granted Asylum.

3. Yes. To make a meritorious asylum claim, an asylum applicant must show that he has a well-founded fear of persecution in his native land. 8 U.S.C.S. § 1101(a)(42). Political conditions which affect the populace as a whole or in large part are generally insufficient to establish persecution. (Gonzales v. Reno 212 F.3d 1138 (11th Cir. 2000 at H. N. 23). Under law outlined in 8 CFR 208.30 the child would have to have a Credible Fear Interview with an Asylum Officer.

OUTCOME

ISSUE ONE: Jane Doe is a minor child, a citizen of Canada. Canada is a nation that welcomes refugees and grants them asylum. Yet to Jane Doe it is a nightmare, because of the fact that her parents treat her as a servant to do their bidding. Like Walter Polovchak and Elian Gonzales who came before her, she has a right to file for asylum under 8 U.S.C.S. § 1101(a)(42) Jane Doe has the right to apply for asylum in the United States.

ISSUE TWO: Jane Doe claims that she has been abused by her parents, who demand that she become a spokes person for the Canadian separatist Movement. She is trying to get away from that entire situation and live her own life. Code of Federal Regulations 208.30 gives her the right to request a hearing from an Asylum Officer so that she can explain why she fears going home to Canada. She claims that she is not the only child who has been abused by their parents into supporting the separatist cause. She wants asylum because she wants to live her own life.

ISSUE THREE: In order to make a meritorious asylum claim, she must show that she has a well founded fear of persecution if she is forced to return to Canada and live with her Father. She must meet the objective and subjective measurements that make up the test for the well-founded fear of persecution. The subjective component requires that the fear be genuine, while the objective component requires a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces persecution.

After writing that paper, I became extremely interested in Asylum and Immigration Law. I decided that I wanted to work in the field of Immigration Law when I graduated from Kaplan University.

International Child Abduction

One of the most interesting topics we studied in my course on Family Law and Divorce Mediation is: INTERNATIONAL CHILD ABDUCTION.

John Dietrich is a thirteen year old male child, who was born in Berlin, Germany. He resided in Berlin until he was five years old. His parents were divorced at that time. After the divorce, he and his Mother, Maria, moved from Germany to the United States and established a residence in New York City. When he turned thirteen, his Father, Gunther, came to the United States and abducted him. He was taken back to Germany. His mother was very upset, and contacted an attorney to find out how to get him back. He originally lived in Germany, but he had lived in the United States for eight years. She wants to know what she can do.

Both the United States and Germany are signers of the Hague Convention on the International Aspects of Child Abduction. Maria must act quickly to contact an attorney, who can file a lawsuit in court and try to get John returned to the United States. The Convention applies in cases where:

1. Both the country of the child's habitual residence and the country to which the child was taken have acceded to the Convention;
2. The child in question is younger than 16 years of age; and
3. The child has been "wrongfully removed or retained" in breach of rights of custody under the law of the State of the child's habitual residence.

The current standard for determining habitual residence was not clearly defined in the treaty. There are at least three standards that have been applied to the question of habitual residence. The clearest, and most recent one is the Delvoye Standard. The reason that it works better is that it allows the court to determine the habitual residence of infants and neonates.

The Delvoye Standard is the standard that is needed to determine the habitual residence of neonates under the HCCAICA. For the first time, the Delvoye Standard worked in determining habitual residence because it proposed that physical presence does not have to be present to determine the habitual residence of a newborn child. In order to prove habitual residence for a neonate the only element that has to be shown to the court is the mutual assent of the parents. It must be present and proved before the child has been removed from the home. The standard is needed for neonates because they are unable to have preferences and establish ties and connections to the environment.

The Delvoye Standard works for infants as well. These are children who are aged from six months to four years of age. In the infant stage, the requirements to be evaluated are physical presence, the passage of time, and the mutual assent of the parents. It incorporates the requirements of the Settled Purpose Standard. Again the mutual assent of the parents must be established prior to the time the child is removed from the home. As the child grows older, the child’s ties to the place of physical residence grow stronger and it becomes more likely that the place of physical residence is in fact the child habitual residence.

Finally, for children between the ages of four years and sixteen years of age the Delvoye Standard evaluates the elements of physical presence, the passage of time, the child’s intent, and the past actions of the child to determine the habitual residence of the child. An older child will be able to express their intentions to the court, and state what they want and where they want to live. As the child grows older, the value of parental intent weakens. The court will determine on a case by case basis whether the child is old enough to acclimate to the environment and form intentions as to their preferred habitual residence. Using a strict physical presence standard for older children will lead to fair results.

For more information on International Child Abduction and International Child Custody follow this link to the website of International Family Law Attorney, Jeremy Morley. It has lots of information on this problem. Cases that involve kidnapping and abduction of children from their homes are very emotional, and heart wrenching cases. After all, a child is involved, whose life has been disrupted and irreparably altered. It is very, very wrong that anything like this ever happens, but nevertheless, it does.

http://www.international-divorce.com/hague-convention.htm