Children, Parents, and Asylum

Posted: 15 Nov 2002

See all articles by Peter Margulies

Peter Margulies

Roger Williams University School of Law


The sad spectacle of the Elian Gonzalez case submerged a significant legal issue: under what circumstances should American law recognize a claim for asylum asserted by a young child against the wishes of a parent. This Article is an attempt to distill values from asylum and family law that will enhance both the substance and process of future decisions. In synthesizing family and refugee law, this Article develops a conception of protective asylum. Protective asylum emerges from the interplay of two values that also drive child protective proceedings in family law: connection and projection. Connection refers to the ties between children and parents that family and constitutional law seek to preserve and promote. Projection refers to society's interest in preserving a child's options for the future.

Taking its cue from cases in which parents have refused medical care for their children, the concept of protective asylum would vindicate both connective and projective values. Protective asylum would allow the Immigration and Naturalization Service (INS) to appoint a guardian to pursue a child's asylum claim when acceding to the parent's wishes creates a clear and convincing risk of severe and irreversible harm to the child. As in the medical care cases, the harm to be prevented would typically be physical in nature. By requiring a prima facie showing of such harm prior to appointment of a guardian, protective asylum doctrine would also preserve familial connections and promote expeditious asylum adjudication.

To aid in factfinding regarding the necessity for appointing a guardian, immigration officials must interview the child. If the child receives a grant of asylum, state courts should have jurisdiction to consider a modification or transfer of custody, treating the asylum determination as presumptive evidence of the need to take such action. A parent could regain custody upon a showing that custody would be consistent with the grant of protective asylum, or upon a showing of changed conditions. Protective asylum's standard of clear and convincing evidence of persecution recognizes that a parent, consistent with settled principles of American law, should have the right to raise her child to conform to a particular set of values, even if those values conflict with widely shared convictions about human rights. The Atrue believer parent, such as Juan Miguel Gonzalez, the father of Elian, should receive deference in children's asylum cases, just as she receives deference under American constitutional law. The touchstone, here as in the medical care cases, should be not the propriety of the parents' beliefs, but the possibility of severe and irreversible harm to the child. Protective asylum, if conceptualized and implemented in this modest way, can be a bridge between family and asylum law. The wrenching images of the Gonzalez case inspire the hope that few future cases will trigger consideration of such a remedy. However, a responsible legal system should have a procedure in place to cope with such challenges. Protective asylum is one resource for meeting that challenge.

Suggested Citation

Margulies, Peter, Children, Parents, and Asylum. Available at SSRN:

Peter Margulies (Contact Author)

Roger Williams University School of Law ( email )

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Bristol, RI 02809
United States

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