U.S Asylum

Elian Gonzalez, a six-year-old boy, boarded a boat with his mother to leave Cuba and sail to the United States. During the passage, the boat capsized. Elian’s mother died, along with ten other passengers. Elian’s father was still in Cuba. After being admitted to a local hospital, Elian’s great-uncle Lazaro Gonzalez contacted the Immigration and Naturalization Service (“INS”).

A few days later, Lazaro petitioned for asylum on Elian’s behalf. Not long after, another petition for asylum was filed, signed by Elian. A third request for asylum was then filed by Lazaro on Elian’s behalf after he was awarded temporary custody in a state court action. The three petitions were similar, citing that Elian was afraid to return to Cuba alleging persecution and the potential of being used as a propaganda tool for the Cuban government. Elian’s father, Juan Miguel Gonzalez, had sent a letter to Cuban officials requesting that Elian be returned to Cuba. This letter was subsequently forwarded to the INS.

The Commissioner of the INS rejected all of the petitions for asylum on January 5, 2000. He determined that a six-year-old child does not have the capacity to petition for his own asylum against his parent’s wishes. The plaintiffs requested that the Attorney General overrule this decision, but the Attorney General decided not to do so. Plaintiff then filed a complaint in district court, but the claims were rejected and the complaint was dismissed. Plaintiff then appealed to the Florida Court of Appeals.

ISSUE: 1. Whether, Elian, as a minor, can petition for asylum on his own behalf. 2. Whether Lazaro, as a non-custodial adult relative, can petition for asylum on Elian’s behalf. 3. Whether Elian’s allegations of potential persecution are sufficient to petition for asylum. RULE:

The Court reviewed 8 U.S.C. § 1158, and its interpretation. This section sets forth that an alien that is physically in the United States can petition for asylum. When defining the term “alien,” the court referenced 8 U.S.C. § 1101, which defines an alien as anyone that is not a citizen of the United States.

The Court referred to Chevron, U.S.A., Inc. v. Natural Resources Defense Counsel, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) when determining how to interpret the statute’s ambiguity. In Chevron, the court determined that if a statute is vague and/or ambiguous and an executive agency has been created that pertains to that statute, it is the agency’s interpretation that rules. Further interpreting the asylum statute, the Court referred to Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968).

In Ginsberg, the Court held that parents’ rights to determine how they wish to rear their children must be considered at a high priority. The Court then referred to Kurzban’s Immigration Law Sourcebook to clarify their interpretation of the word persecution, finding that “mere harassment does not amount to persecution.” Using this definition, the Court relied upon Mitev v. INS, 67 F.3d 1325 (7th Cir. 1995), which held that political circumstances “which affect the populace as a whole or in large part are generally insufficient to establish [persecution].” ANALYSIS:

The first issue is whether Elian, as a minor, can petition for asylum on his own behalf. The Court examined the statutes related to asylum to determine if the INS had acted within their authority. Although Elian did qualify under the definition of alien, he did not have the capacity to petition for asylum on his own behalf. The Court held that the INS’s findings were reasonable and within its discretion. Elian, having a parent to make his decisions for him, could not request asylum against his parent’s wishes.

The second issue is whether Lazaro, as a non-custodial adult relative, can petition for asylum on Elian’s behalf. The Court first examined the statutes relating to asylum to decide if the INS had acted within their scope of authority. Elian did qualify as an alien under the definitions. Lazaro did not have the capacity to act in Elian’s behalf, however. Having a live parent to make decisions for him, Elian could not go against his father’s wishes and must not obtain asylum in the United States. The Court held that the INS findings were within its scope of discretion.

The final issue is whether Elian’s allegations of potential persecution are sufficient to petition for asylum. The Court needed to determine if the INS findings were reasonable. They interpreted “persecution” as having to be more than harassment. Using this interpretation, they found that political circumstances that affect the public at large are not sufficient to establish a persecution claim. By these determinations, the Court again held that the INS findings were reasonable and within their discretion. CONCLUSION:

The Court held that the INS’s findings and decisions were reasonable by interpreting the asylum statutes. Although Elian met the definition of the term alien, he did not have the capacity, nor did his uncle, to petition for asylum on Elian’s behalf against his father’s wishes. The father’s wishes should be considered at the highest priority. The Court also found that the INS’s findings regarding the allegations of political persecution being insufficient to obtain asylum were reasonable and within their discretion. The district court’s decision was affirmed.

REFERENCES Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). 8 U.S.C.A. § 1158 (2009). Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). 8 U.S.C.A. § 1101 (2012). Mitev v. INS, 67 F.3d 1325 (7th Cir. 1995). Kurzban, I. J. (1998). Immigration Law Sourcebook, Washington, DC: Amer Immigration Lawyers Assn.

400-Level and Graduate Grading Rubric Template | Weighting| Possible Points| Points Earned| Grammar and Spelling| * Proper use of grammar and punctuation * Proper spelling| 5%| 6| | Style and Coherence| * Sentences are complete in thought * Sentences are concise, eliminating unnecessary words or phrases

* Sentences vary in structure * Sentence transitions are present * Words used are precise, unambiguous and used properly * There is an appropriate tone for the assignment| 10%| 12| | Organization| * There is clear structure to the paper * There is a central theme or thesis * It is written for the appropriate audience * Logical flow of ideas * Appropriate introduction to the paper or topics being covered * Logical conclusion that results from the thesis | 10%| 12| | Format|

* Orderly presentation of materials, following general format requirements (Margins, header, footer, font size, general amount of work) * Use of headings, italics, and other aids (e.g., appendices, tables of contents, when appropriate) to improve the flow of the paper | 10%| 12| | | * Proper citations and references to resources, following APA or Bluebook format.| 15%| 18| |

Content| * Purpose of the paper is clear * All questions/requirements of the assignment are answered in a substantive manner * Major topics/theories are stated clearly and are supported by details and analysis * Content is comprehensive, accurate, and/or persuasive * Supports generalizations/theories with appropriate evidence, detail, and analysis * Research is adequate and up-to-date| 50%| 60| | | Total: 100%| [120] Points Possible | 120 Points Earned|