An Analysis of the Various Facets of Janes Asylum - Case Study Example

JANE’S ASYLUM of the of the Law Firm Jane is seeking asylum in the US. An analysis of the various facets of such an endeavor has been appended below. Summary There are a number of factors that have a bearing on the asylum being sought by Jane. It is the intention of the presenter of this work to scrutinize these issues, and a number of authoritative resources will be consulted to achieve this end. Description The parents of Jane, a 14 year old Canadian, have been divorced for the past six years. During the holidays, Jane stays with her mother, who lives in New York. The rest of the time, she resides with her father, a Canadian and a high level minister in the Canadian government. During one such sojourn with her mother, in New York, Jane’s mother expired. Jane’s uncle decided to apply for asylum in the US, on her behalf; as she was unwilling to return to her father, whom she accused of physically abusing her. She further alleged that her father was actively involved in a separatist movement, and that he would utilize her for the purpose of propaganda. The Board of Immigration Appeals is apparently guided by certain considerations. First, a government is well within its rights to pursue and punish citizens, who infringe national laws, and to oppose and execute individuals who employ force against it. Second, the individual seeking asylum should have been targeted for persecution. Third, it should be possible to classify the asylum seeker as a refugee1. The objective behind these restrictions is to restrict the grant of asylum and due to the fact that on many an occasion, the declarations of the asylum applicants, prove to be difficult to verify. Asylum Officers should grant asylum to applicants, who are in danger of being targeted for persecution on being returned home, provided there are no other serious disqualifying issues2. The authorities in the US, on account of their increasing interest in asylum seekers, who were children, felt the need for the issuance of guidelines in the context of children seeking asylum. As a consequence, the Immigration and Naturalization Service issued guidelines, in 1998, which deal with interview methods and the legal ramifications of the various issues that come to the forefront, in respect of children seeking asylum3. It is permissible for a minor applicant to seek asylum, and this can be done by the minor, even in the absence of a parent or trusted adult4. An application for asylum in the US has to be generally preferred, before the expiry of a year of arrival in the country. This condition is in general, mandatory, unless there are sufficiently serious mitigating circumstances. The formal procedure for seeking asylum commences with the submission of the Application for Asylum and Withholding of Removal5. The peculiarities associated with minor asylum seekers have prompted the Asylum Division to undertake interviewing techniques that are sensitive to the special needs of such claims. In the course of processing such asylum claims, the Asylum Officers adapt the interview process to suit the age, communication capacity, background and development of the applicant6. It is indisputable that children are susceptible to a large number of adverse issues. Therefore, substantial significance has been attached to providing asylum to them. The US has adopted a proactive approach, in this context, and issued several guidelines for assisting children seeking asylum7. Wherever, the minor is the principal applicant, the Asylum Officers have to assume additional responsibilities. For instance, in such cases, the Asylum Officers have to obtain information, regarding parental knowledge and consent for applying for asylum, and guardianship matters8. Guardianship in respect of minor asylum applicants, bring to the fore a number of important considerations. For instance, these officials have to consider, whether the minor applicant is accompanied by a legal guardian. Moreover, a decision regarding the grant of asylum is on occasion deferred. This enables the minor applicant to furnish additional information, regarding parental knowledge and guardianship arrangements. However, the failure of a minor applicant to exhibit parental knowledge and concurrence, and a guardianship arrangement does not have an adverse effect on the grant of asylum9. After procuring the consent of the minor applicant, the Asylum Officers could interview a trusted adult or parent, provided this was deemed to be appropriate. An interview conducted with a parent or trusted adult, could provide information regarding the claim preferred by the minor applicant. This transpires, wherever the minor applicant is too young to furnish all the details. Nevertheless, it is not mandatory for a trusted adult or parent to be present during the interview10. All the same there is a perception among the scholars that undue importance is being attached to isolating the explicit cause of persecution. It has been suggested that those who are entrusted with the task of granting or denying asylum, should focus on whether the applicant will be exposed to fatal or unacceptable danger, if compelled to return11. It is important for Jane to abstain from providing information that is false; because the Immigration and National Act12, mandates that an individual who willfully misrepresents material facts is to be denied entry into the US13. Refugees are individuals who are outside their country, or, outside the country in which those individuals had last habitually resided, if they do not have any nationality; and who are unable or unwilling to return to, and are unable or unwilling to avail themselves of the protection of, that 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 opinion14. However, Jane cannot be deemed to be a refugee since she is already residing in the US. Now, Jane harbors well founded fears that her father, who supports the separatist movement that seeks independence for the province of Québec, will utilize her for propaganda purposes. Jane is vehemently opposed to the separation of this province from the rest of Canada. This is known to her father, and it is the intention of the latter to compel her to join the movement for an independent Québec. Thus, Jane is at grave risk of being involved in a political movement that she is fundamentally opposed to. As a consequence, she is at grave risk of persecution, on account of her political convictions. The following case law reveals the court‘s attitude towards parental rights in respect of their children in various situations. The Supreme Court stated that parent – child relationship was one of the fundamental rights guaranteed by the Constitution to individuals. It held that the Due Process Clause required it be proved that the father was unfit, if the state was desirous of terminating the parent – children relationship. In the case of Stanley v. Illinois15, the US Supreme Court stated that the government was empowered to interfere with the parent – child relationship. However, it could do so only if as part of a powerful countervailing interest. The Supreme Court established that the government can interfere with or terminate the parent – child relationship. Under Illinois law, the custody of children born to an unwed mother reverts to the government, subsequent to her demise. This provision serves to automatically terminate the relationship between the father and his children. In Santosky v. Kramer, the US Supreme Court employed the same reasoning with regard to the termination of parent – child relationship. In this case, there was a constitutional challenge to New York’s law. Under the law, the state can terminate the rights of parents if the child has been permanently neglected by the parents. The decision in Santosky raised the question whether a preponderance of the evidence standard was sufficient to outweigh constitutional rights16. The Court opined that freedom of personal choice in family matters was a fundamental liberty under the Fourteenth Amendment. The Due Process Clause required the State to provide sufficient and convincing evidence in order to substantiate its allegations17. On the basis of this reasoning, the Court held that the New York statute was unconstitutional. As such, the Due Process Clause restricts the power of the government to terminate the parent-child relationship. Moreover, the Supreme Court upheld the concept of family autonomy, and recognised parents constitutional interests, like companionship, care, custody, and management of their children. A majority of the decisions made by the Supreme Court upheld these concepts in relation to family autonomy and their decision – making power in relation to child – rearing. In this case, the Supreme Court stated that the fundamental right of parents to supervise the education of their children, superseded had priority over the interests of the state. Thus, the state’s interests were superseded by the fundamental right of a parent to control a child’s education. In addition, in Meyer v. Nebraska, the US Supreme Court scrutinized some Nebraskan statutes that prohibited teaching of a foreign language to students who had not graduated from the eighth grade18. However, the court recognized the interests of the state in improving the quality of its citizens, and the specific interests of the states, in teaching English to its students. Conclusion Every father has a constitutional right, in respect of the custody of his child. In addition, parents have the right to enjoy the care and companionship, childrearing, and to take decisions that concern their children. The government should not interfere with these rights, unnecessarily. The Due Process Clauses of the Fifth and Fourteenth Amendments protect the rights of parents and family relationships. These clauses prevent the government from interfering with the rights of parents and relationships. The concept of liberty encompasses relationships between parents and children. It also provides parents a fundamental right to take decisions, with regard to their children. However, the government can assume the position of the parent, under certain circumstances. It can also assign responsibility of the children to a third party, if the situation warrants such action. Moreover, the government is empowered to take decisions, in respect of the manner, in which children must be raised and other similar issues. From the above discussion, it can be surmised that Jane can approach the US Immigration authorities, in order to seek asylum. She can file the asylum application on her own. She has to file the application within a year of her coming in to the US. She can expect a fair and sympathetic hearing. Her fears are genuine and serious. In case, she so desires, Jane’s uncle can accompany her, at the time of the interview. However, this is not mandatory, and does not have much significance for the process of granting asylum to Jane. Bibliography Cases Meyer v. Nebraska 262 U.S. 390 (1923) Stanley v. Illinois 405 U.S. 645, 651 (1972) Santosky v. Kramer 455 U.S. 745 (1982) Statutes/Legislation Immigration and Nationality Act Journal Articles T. Alexander Aleinikoff, (1991) The Meaning of ‘Persecution’ in United States Asylum Law, International Journal of Refugee Law, volume 3, issue 1, page 5 Electronic sources Guidelines for Children’s Asylum Claims, 21 March 2009, retrieved on 6 March 2010 from http://www.uscis.gov/files/article/AOBTC_Lesson_29_Guidelines_for_Childrens_Asylum_Claims.pdf Procedures for Minor Principal Applicant Claims for Asylum, U.S. Citizenship and Immigration Services, 26 August 2009, retrieved on 6 March 2010 from http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=21bf011522a9c110VgnVCM1000004718190aRCRD&vgnextchannel=828807b03d92b010VgnVCM10000045f3d6a1RCRD U.S. Citizenship and Immigration Services, Procedures for Minor Principal Applicant Claims for Asylum (2009) retrieved on 6 March 2010 from http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=21bf011522a9c110VgnVCM1000004718190aRCRD&vgnextchannel=828807b03d92b010VgnVCM10000045f3d6a1RCRD Homeland Security, Recommendations from the CIS Ombudsman to the Director, USCIS, available at http://www.dhs.gov/xlibrary/assets/CISOmbudsman_RR_24_Asylum_Status_03-20-06.pdf (last visited 7 March 2010). Criminal Waivers, US Immigration Waivers, 2008, retrieved from http://www.usimmigrationwaiver.com/criminal_waiver.php (last visited on 7 March 2010) USCIS Asylum Division, Guidelines for Children’s Asylum Claims (2009) retrieved 6 March 2010 from http://www.uscis.gov/files/article/AOBTC_Lesson_29_Guidelines_for_Childrens_Asylum_Claims.pdf Read More