Case Brief Memorandum Essay

1194 WordsSep 16, 20135 Pages
kaplan university- pa401 advanced legal writing | Case Brief Draft | Unit 3 Assignment | | Vicky Hunter | 1/21/2013 | | memorandum to: victoria corbo, esq. from: vICKY hUNTER- pARALEGAL Subject: Case Brief date: 3/2/2013 ------------------------------------------------- CC: Tony T. Smith Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000) Procedural History: Plaintiff, Elian Gonzalez, a six year old minor, through his “next of friend”, Lazaro Gonzalez, filed an asylum application with the INS (Immigration & Naturalization Service), which was denied. The plaintiff’s then filed a claim in the federal district court which stated the Plaintiff’s due process rights were violated and the INS had overstepped…show more content…
Issue: Whether a minor child can file for asylum without the consent of a parent or legal guardian? Rule: 8 U.S.C.A. § 1158 (West 2012) states 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 main issues before the Court were two-fold. First, could a six year old child apply for asylum without a parent or legal guardian and secondly, did the INS overstep their authority in denying the application for asylum. Statute 8 USC § 1158 states that “any” alien could apply for asylum, however, the INS rejected that a six year old child had the mental capacity to make that decision for himself. The INS interviewed both the Uncle Lazaro Gonzalez and the father Juan Gonzalez and determined that the father was the legal guardian, therefore had the right to speak for Elian Gonzalez. Elian’s reasons for seeking asylum were “fear of persecution”. According to the uncle, if Elian, were returned to Cuba,
Open Document