1. ASYLUM APPLICATION: BILL & JANE - 1
To: F. Bossman
From: Lillith Leonard
Date: 14 April 2015
Re: Bill and Jane – Application for asylum
Dear Mr. Bossman:
You asked me to examine the law regarding legal issues in this case, based upon the
information we have gathered. Briefly, here are the facts.
Jane is a minor and a citizen of Canada; Bill, her uncle, is an American citizen. Jane’s
mother, Anne, whom she was visiting, died about six months ago. Jane’s father, John, is a
Canadian citizen. He is alive and could oppose this petition for asylum within the United States.
John and Anne shared full custodial and parental rights. Six months ago, just before Anne’s
death, John refused to allow Jane to return to Canada when she asked to. Jane’s uncle Bill
consented, prior to Anne’s death, to allow his niece to live with him. Jane has made claims of
physical abuse from her father, as well as claims that he will use her as a propaganda tool for the
separatist movement.
LEGAL ISSUES
1. Does Jane have a time limitation for filing of an application for asylum?
2. Can Bill petition for asylum on Jane’s behalf?
3. Do any bars exist to Bill’s right to petition on Jane’s behalf?
4. Bill is not a custodial relative. Will this hinder the success of Jane’s petition, in light of
the fact that she does have a surviving alien parent with custodial rights?

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5. Can Jane, as a minor, enter her own petition for asylum? Would it be more effective than
Bill filing for her?
6. Is it likely that the fact that John, a blood relative with custodial and parental rights, is
alive and well in Jane’s country of origin, can interfere with the application for political
asylum for Jane?
7. Do Jane’s claims of physical abuse and potential use in propaganda meet the burden of
non-refoulement (i.e., that an alien will not be forced to return to a country where his life
or freedom would be threatened) with credible and well-founded fear?
BRIEF ANSWERS
1. No. U.S.C. 8 § 1158(a)(2)(B) dictates that the alien applicant must apply within one year
of entering the U.S. Barring this, (D) provides that the application will be allowed if the
alien can prove changed circumstances that “materially affects the applicant’s eligibility
for asylum or extraordinary circumstances relating to the delay in filing an application
within the period specified in subparagraph (B).”
2. Yes. Bill can petition as guardian ad litem or next friend on Jane’s behalf. Gonzalez v.
Reno, 212 F. 3d 1338 (11th Cir. 2000).
3. Yes. Precedents show that if Jane’s father resists her decision to stay in the United States
and disproves her claims of physical abuse and manipulation for political purposes, this
can bar Bill from applying on her behalf. Gonzalez, 212 F. 3d 1338; Polovchak v. Meese,
774 F.2d 731 (7th Cir. June 1, 1985)
4. Yes. Gonzalez, 212 F. 3d. 1338. “Any alien…may apply for asylum…”

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5. No. Gonzalez, 212 F. 3d 1338; Polovchak, 774 F.2d 731. A minor needs a guardian ad
litem or next friend.
6. Yes. Precedents show that where a good relationship with the child can be demonstrated
and where claims of coercion are not found credible, the court sympathizes with the
parent. Gonzalez, 212 F. 3d 1338; Polovchak, 774 F.2d 731.
7. No. Simple physical abuse and fear of being used as a tool of propaganda are insufficient
to meet the burden of non-refoulement. Tobon-Marin v. Mukasy, 512 F.3d 28 (1st Cir.
2008)
ANALYSIS
We must ask first who can, and who should, apply for asylum in this case. The answer to
this is that either Bill or Jane can apply for asylum for Jane. U.S.C. 8 § 1158(a)(1) provides that
“Any alien…may apply for asylum…”. See Gonzalez. However, as seen in Polovchak, a minor
must be represented by a guardian ad litem or next friend. Taking into account the reasoning and
dispositions of Gonzalez and Polovchak, having Bill appointed as guardian ad litem before
applying for asylum on Jane’s behalf would be the best course.
We do not yet know whether John will try to block any application for asylum Jane files,
however we go about it. Gonzalez and Polovchak demonstrate that a parent with whom the child
has a good, loving, and safe relationship, and who does not wish the child to apply for asylum,
can interfere with such a petition. Furthermore, in Gonzalez, the minor was six years of age and
in Polovchak, the minor started his journey through our legal and immigration systems at the age
of twelve. This indicates that the presence of an objecting parent can interfere with the
application for asylum of any minor. In Polovchak, the issue at hand was that the objecting

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parents were not given notice of their son’s application for asylum. However, the court also
determined that the district court erred in removing the minor from the custody of his parents in
the first place, which action enabled the minor to apply for asylum against the wishes of his
parents.
The lesson of these examples dictates that we proceed with care, making certain all
notifications comply with statutory requirements in notifying John of steps intended, so that he
may represent his interest in his minor child’s well-being. Vigilance in this will help prevent any
appeal to a positive decision by the Immigration and Naturalization Service (INS).
We may have an argument against any objection John may raise in the fact that Jane
requested to go back to Canada, but her father refused to help her do so. However, the fact that
she did request to return could also be used against her argument of non-refoulement.
Finally, and possibly most importantly, we must consider the danger Jane claims and
whether it meets the burden of non-refoulement with credible and well-founded fear as required
for the status of refugee, which will grant her political asylum. For this answer, I looked to
Tobon-Marin. The brothers in this case applied for asylum under the same doctrine, claiming
fear of persecution on the basis of political beliefs. Their fear was based upon past threats,
murder, and proximate acts of violence they believed were based upon their refusal to join a
rebel militia. The court determined that the incidents reported were insufficient to indicate
persecution on the basis of political beliefs, and therefore, the brothers did not qualify as
refugees.
Jane has expressed fear that her father, an official in the Canadian government and a
separatist, will use her in that capacity as a propaganda tool for the separatist movement in which
he is involved. She has thus far offered no specific fears of the threat to life or liberty required to

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meet the burden of persecution and gain the status of refugee under refoulement. RUTH ELLEN
WASERN, CRS REPORT FORCONGRESS: U.S. IMMIGRATION POLICY ON ASYLUM
SEEKERS, CRS-4,5(2005). While she has claimed John physically abuses her, Jane’s former
request to return to Canada and to him argues against this claim. So does the fact that Jane
visited the U.S. often and never requested that her mother help her get away from her father.
CONCLUSION
Based upon the facts and analysis of related statutes and cases, I believe Jane can legally
apply for asylum. However, with the facts provided, I believe this fight would be uphill to the
point of being vertical. Such a case would be costly and the outcome desired by our client is
unlikely.
RECOMMENDATION
I recommend that we consult with the clients and see whether Jane can offer specific,
verifiable incidents of persecution on the basis of her political beliefs. If we find more and better
evidence pointing to abuse on the basis of political beliefs or to credible fear of death, we can
proceed with Jane’s application for asylum.
U.S.C. 8 § 1158(a)(1): 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 and 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.

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U.S.C. 8 § 1158(a)(B): Subject to subparagraph (D), paragraph (1) shall not apply to an alien
unless the alien demonstrates by clear and convincing evidence that the application has been
filed within one year after the date of the alien’s arrival in the United States.
U.S.C. 8 § 1158(a)(D): An application for asylum of an alien may be considered,
notwithstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the
Attorney General either the existence of changed circumstances which materially affect the
applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an
application within the period specified in subparagraph (B).