Plaintiff (P) was a minor alien. He was the sole survivor of a tragedy at sea. He was rescued and placed under the custody of his great uncle who filed an asylum on his behalf. His father (Cuban) objected to the idea. The INS rejected the application as it was not legal. P appealed but the district court dismissed the case as his father was the only legal applicant for asylum. P appealed case dismissal as violation of the INA of 1996.
Appeal from the US District Court for the Southern District of Florida. Gonzalez v. Reno, 86 F. Supp. 2d 1167, 2000 US Dist. Fla. 2000
The issue here is whether a non-parent/custodial relative can file asylum application on behalf of a minor against his parent’s express wishes.
The right to apply for asylum for any person not physically present in the US can be done so in accordance with § 1158.
The vital legal question here is whether a minor has applied for asylum when a non-custodial relative does apply on his behalf but against the child’s parent(s).
It is worth noting that the statute is silent on such matters and Congress had left a gap in the statutory scheme. As such, it is up to the INS to fill the statute and not the work of the courts according to the law. This is because the authority to fill such a gap is left in the context of the immigration policy.
The case here is purely not between the child and his father but that of separation of powers; the limits of the judicial review of the exercise of executive decision and a statute enacted by Congress with a permissible scope of executive discretion. The INS was entitled to make policy decision as no preexisting law compelled any particular policy for P’s decision; that P’s father was the custodian and hence entitled to apply for P’s asylum. Policy did not contradict relevant statute and was not an abuse of discretion that resulted in rejection of asylum applications, was not arbitrary.
Judgment was affirmed