Jane Doe, Asylum / Gonzalez v. Reno

The plaintiff a minor alien who survived a tragedy at sea, was rescued and placed in the custody of his great uncle, a temporary legal custodian. His great uncle filed several asylum applications on his behalf against the wishes of the minor's father in Cuba.

The Immigration and Naturalization Service (INS) rejected the applications as void. The plaintiff appealed to the district court, which was dismissed because the father was the only one that could apply for his asylum case. The plaintiff appealed stating that the INS had violated §1158 of the Immigration and Nationality Act of 1996. The issue here was whether a non parental relative could apply or submit an application for asylum on behalf of the plaintiff against parental wishes. Issue:

1) Whether a temporary legal custodian, can file on behalf of a six (6) year old child, who lacks the capacity to file for himself, against the wishes of his father (sole survivor). Rule: 1) 8 USC § 1158 §1158 Asylum (a) Authority to apply for asylum (1) In general. 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. Analysis:

The issue here is whether a non-custodial parent could submit an application for asylum on a minors behalf against the wishes of the minor's father. The ruling of the court states that under §1158 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.

Because the statute was silent on this issue, it was not for the courts to decide but for the executive agency charged, in this case the INS, to make a discretionary policy choice. The duty of the court was to decide whether this policy was a reasonable one in light of the statutory scheme. See Chevron, 104 S.Ct. at 2782. After analyzing the INS policy, the court stated that the policy does not violate nor contradict section § 1158.

The court rendered that it neither approves or disproves the decision of the INS to reject the asylum application filed by the plaintiffs uncle. The court held that the INS did not contradict 8 U.S.C. § 1158, therefore, affirming its position. The Plaintiff was soon returned to his father in Cuba. Conclusion:

It is the duty of the judicial branch not to exercise political will, but only to render judicial judgment under the law. The Court neither approves nor disapproves the INS's decision to reject the asylum applications filed on Plaintiff's behalf, but the INS decision did not contradict 8 U.S.C. § 1158. The judgment of the District Court is AFFFIRMED.

The Plaintiff was soon returned to his father in Cuba.