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Elian Gonzalez: Rule of Law

April 20, 2000 at 12:00 AM EDT
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MARGARET WARNER: The crowd was calm today outside the Miami home of Lazaro Gonzalez, where six-year-old Elian has lived since his rescue from sea five months ago. (Chanting in Spanish)

The mood was far different yesterday, after an appeals court in Atlanta ruled in favor of Elian’s Miami relatives, who don’t want the boy returned to Cuba. The 11th District Court of Appeals ordered Elian kept in the United States until a May 11 hearing on the appeal of his request for asylum. It declined to rule on who should have custody in the meantime.

In addition, the court said Elian and his Miami relatives had “presented a substantial case on the merits” of the boy’s asylum claim, and it sharply criticized the way government officials had handled his request. Noting that the boy had signed the asylum application himself, it disputed the government’s contention that only Elian’s Cuban father could speak for him, and that the boy had no independent standing to request asylum for himself.

“The statute in this case seems pretty clear,” the court said. “Section 1158 (a) (1) provides that ‘any alien … irrespective of such alien’s status, may apply for asylum.’ Plaintiff appears to come within the meaning of ‘any alien’ (and) given the plain language of the statute, he might be entitled to apply personally for asylum.”

The court went on to note that the INS’s own published guidelines: “… envision situations where a minor may act on his own behalf in immigration matters … (and) … under some circumstances, may seek asylum against the express wishes of his parents.” It quoted from the INS’s guidelines for children’s asylum claims: “Asylum officers should not assume that a child cannot have an asylum claim independent of the parents.”

The court further noted that INS training guidelines: “…discuss the three age-based developmental stages of children (0-5, 6-12, 13-18) and provide guidance for asylum officers in dealing with children in each category.” In fact, the court noted, the guidelines actually use a six- year-old’s statement as a training example.

In light of all this, the court said, the INS should have spoken to Elian directly before determining that only his father could speak for him. The court also said Elian’s Uncle Lazaro Gonzalez had standing to apply for asylum on the boy’s behalf, noting that he is a blood relative, and had been designated by the INS to take care of the boy. Lazaro Gonzalez and his attorneys were clearly encouraged by the ruling’s apparent sympathy for their case.

KENDALL COFFEY, Lawyer for Elian’s Miami Relatives: We think it is plain that this is a very serious appeal. In the meantime, no one should make predictions on the ultimate outcome based on this order. It was an extensive order. The family is very grateful for the obvious serious concern and study that is being received, but this is a preliminary order. It is not a final decision.

MARGARET WARNER: The lawyer for Elian’s father said his client should have custody in the meantime.

GREGORY CRAIG, Lawyer for Elian’s Father: Nothing in the order issued today by the 11th Circuit undermines or weakens this father’s legal and moral claim that he be given immediate custody of his son. In fact, the 11th Circuit’s opinion places the obligation to act squarely on the shoulders of the attorney general.

MARGARET WARNER: The court concluded with the following admonition: “No one should feel confident in predicting the eventual outcome of this case. The true legal merits of this case will be finally decided in the future…we need to think more and hard about this case, for which no sure and clear answers shine out today.”

MARGARET WARNER: For more on yesterday’s decision, we turn to two former general counsels of the INS: Alexander Aleinikoff, a professor at Georgetown University Law Center, who was General Counsel during President Clinton’s first term; and Grover Joseph Rees, staff director and Chief Counsel for a House International Relations Subcommittee, who was INS General Counsel during the Bush administration.

MARGARET WARNER: Welcome, gentlemen. I might also report that just minutes ago, it was reported the President just said there is, quote, no conceivable argument for Elian Gonzalez not to be reunited with his son. Let me ask you how you read the court’s decision yesterday. It appears the Miami family got more than even they might have expected.

ALEX ALEINIKOFF, Former General Counsel, INS: It’s an actual result of the case – it was I think what most people expected: The court enjoined his removal from the country while the appeals are going on. It also rejected the Department of Justice request that the court order the boy to be-turned over to the father, which I think also most people thought would be the result. The result is not surprising, but the lengthy discussion about the merits here I think surprised most observers. It seemed to give a little bit more credence to the Miami family’s case than one would have thought.

MARGARET WARNER: Did you find it unusual?

GROVER JOSEPH REES, Former General Counsel, INS: Well, I don’t know how unusual it is. Sometimes courts do telegraph strong feelings on the merits. I think that in this case, the court was saying to the Justice Department, “If you’re going to talk relentlessly about the rule of law, you’ve got to walk the walk as well. You’ve got to follow the law.”

MARGARET WARNER: They did point, I mean, what is the applicable statute that says any alien irrespective of his or her status may apply for asylum, that there is nothing in the law that has an age limitation on this.

GROVER JOSEPH REES: That’s true. They talked as well about regulations and guidelines of the INS itself that clearly contemplate situations in which minors, including young ones, might have different interests from their parents. And this might be one of those cases.

ALEX ALEINIKOFF: But Margaret, there are many, many federal statutes and so far as I know, none of them have an age limit for when people can apply for benefits. The Social Security statute, the federal crop insurance statute, none of these say you must be of a certain age so there has to be a little bit of reason applied here. Normally you would refer to agency decision-makers to apply a rule of season as to what is sensible to allow a person of certain years to apply for a benefit.

MARGARET WARNER: So, for instance, what is the usual practice with minor children? I don’t know how often it happens but for minor children who make asylum claims or come to this country unescorted.

ALEX ALEINIKOFF: There will be cases where children above the age of reason perhaps 12, 13, 14, 15 years old will be allowed to press an asylum claim. I think the attorney general here decided that six-year-olds are simply not old enough to make that kind of decision for themselves. She then had to decide who can make that decision and had a lengthy interview, two interviews, with the father, determined that was a loving and bona fide relationship, gave the family in Miami a chance to come in and present evidence as to why the father shouldn’t speak. They presented no credible evidence. And so she made the decision that under the usual course of the law parents speak for their children particularly six-year-olds.

GROVER JOSEPH REES: Well, I think the family would disagree that they had an opportunity to present evidence. There are two very, very different views of whether the father is really the right person in this situation to speak for the child. The family thinks they have evidence that he really isn’t allowed to speak freely, even now that he’s in the United States, that he’s still pretty much under the thumb of the Cuban government. They’d like… they’d like the chance to present that evidence in other than an informal context of having the attorney general say, “tell us what you’ve got” and we don’t feel any particular responsibility to address that evidence.

MARGARET WARNER: In other words they want a full court hearing, which is what they wanted in the first place.

GROVER JOSEPH REES: Well they’d like an administrative hearing, either on the merits. Certainly they’d like an administrative hearing….

MARGARET WARNER: Let me just interrupt you to make sure I understand it. Still within the INS process but it is more formal than what happened.

GROVER JOSEPH REES: Then it would be appealable to court. Although there would be a strong presumption of deference to the administrative fact-finding, you’d at least have a record. You’d have a record of what evidence the…both sides presented, and at that point the courts would be able to deal with it in the usual way.

MARGARET WARNER: The court did fault the INS for not talking to the boy directly. They pointed out all of these guidelines. We’ve quoted some of them — they have all these age groups. They train people how you talk to even really young children. I mean, I know you don’t work at the INS anymore, but what would be the precedent? Why would you not talk to the boy if he’s right in this country?

ALEX ALEINIKOFF: The Immigration Service could have talked to the boy here. It wouldn’t have been a crazy thing to do. Let’s remember the situation. This kid has faced two days on the sea. He had watched his mother drown. He was in a situation most psychologists believe is post traumatic stress disorder. He had been feted in Miami and treated to all sorts of demonstrations. Exactly what one would have learned from talking to him at that point is an open question, as the court itself concedes in footnotes here, it’s not clear he would have had anything to contribute to that.

GROVER JOSEPH REES: Well, on the other hand, it’s not clear that he wouldn’t; we just don’t know. On the other hand there’s nothing to say he couldn’t. They sent three medical experts, a psychologist, a psychiatrist and a pediatrician. They were actually in the house and they didn’t interview the boy. The family, which the Miami family who everybody says is… Has been, whether you agree the child should stay there or not, they’ve been loving caregivers. They were desperate to have these government experts examine the child in a professional way, not in a way that would increase any trauma that he might have, and draw their own conclusions about what was best for the child. That didn’t happen.

ALEX ALEINIKOFF: But the issue here is not what’s best for the child. It’s not the best interest of the child test.

MARGARET WARNER: That’s not the legal standard.

ALEX ALEINIKOFF: The question facing the attorney general was who speaks for this child.

MARGARET WARNER: All right. But in what cases, for instance, we quoted from some guidelines that suggest there are Times where the parent and child may have different views. I mean, I know I’m asking you to remember way back when, when you were at the agency, but does that come up often?

ALEX ALEINIKOFF: The case doesn’t come up with six-year-olds as far as I can ever recall. I’ve checked with the agency recently on this. They can’t recall a single situation. It may arise with older children but not with six-year-olds.

MARGARET WARNER: Would you say this is uncharted?

GROVER JOSEPH REES: This may be a case of first impression. There have been cases in which six-year-olds and older children have been returned to their parents in foreign countries without any proceedings. There have also been cases in which children of very young age have been left with relatives in this country without any need to apply for asylum. Maybe this is a case of first impression. What the court says is you’ve got to follow the same procedures as you would follow in a case involving an older child. Maybe in the end it comes out that because the child is so young, maybe the INS would conclude– having followed the law and having followed the regulations– that the child doesn’t have any interest that is cognizable, that’s separate than his father’s.

ALEX ALEINIKOFF: The court didn’t say that. They haven’t reached the conclusion on any of these legal issues and the guidelines that they cite are not binding, legal guidelines, they are internal guidelines the INS may or may not follow.

MARGARET WARNER: Like the training -

ALEX ALEINIKOFF: Right. So we don’t have any legal conclusion. The court says they’ve got to think more about it. But their reading of the statute that any alien means any alien cannot be right as a matter of law because all the other federal statutes don’t allow children to go in and seek benefits.

GROVER JOSEPH REES: First it can be right. Any alien can mean any alien. When Congress wants to limit something, when they want to limit, for instance, the right to bring in your children, you can only bring in your children automatically up until the age of 21. They say that. Your 22-year-old might be very much loved but you can’t bring him in.

MARGARET WARNER: Let’s jump ahead to what will happen May 11. This injunction keeps the boy from being taken out of the country until May 11. That’s the hearing in Atlanta on the merits. What is that about?

ALEX ALEINIKOFF: They will then address the question they left open here: Was the attorney general proper in not entertaining the asylum application filed by Elian? And that should be an abuse of discretion test that the court applies here, not a wooden reading of the statute that any alien means any alien.

GROVER JOSEPH REES: There are two parts of the test. One is did she abuse her discretion? You’re right, Alex, I misspoke. It’s true that this is a preliminary injunction and the courts comments on the merits do not amount to their final decision, but the court clearly states here– and they’re right– that there are two prongs to the test.

One, did she simply misinterpret the statute? And second, if she didn’t do that, did she nevertheless abuse her discretion? And they don’t only rely on the language of the statute. It’s not just that any alien means any alien. There are regulations — not just non-binding guidelines — but binding regulations that clearly contemplate that children including children under the age of 14 – we don’t know how young — will be able to take actions that may be different from the interests of their parents.

MARGARET WARNER: Would you say– I know this isn’t binding. Would you say as a lawyer reading this ruling, if you were at a lawyer at the INS, would you be saying, oh, oh, this court is inclined to look favorably on Elian Gonzalez and his Miami relatives?

ALEX ALEINIKOFF: I’m not sure I would say inclined but if I were the Department of Justice I think there’s cause for worry here that if they could lose this case in a case that I think they thought was a pretty clear winner.

MARGARET WARNER: All right. Now, if they lose it, explain procedurally what happens.

ALEX ALEINIKOFF: If they lose it, it goes back to the Immigration Service. The asylum case is entertained. There will be a full-scale hearing and on to courts and we’re talking about years of proceedings potentially.

MARGARET WARNER: If it went against the government though, could the government try to appeal this to the Supreme Court?

GROVER JOSEPH REES: Yes, the government can appeal cases… — not the asylum hearing going against the government but this ruling here? Yes, it could appeal to the Supreme Court.

MARGARET WARNER: In other words, if the May 11 ruling went in favor of the Miami relatives, government could say, whoa, before we start this process let’s let the Supreme Court review it.

ALEX ALEINIKOFF: Yes.

GROVER JOSEPH REES: Yes.

MARGARET WARNER: Now that the father is back in this country, at any point if he wanted to become a party to this, does he have the legal standing to do that?

GROVER JOSEPH REES: I’m sure that the court would allow that. In fact under the regulation I cited, which says that if a child asks for relief which might have the tendency to terminate an interest of the parent or where the child’s interests are adverse to the parent, the parent shall be notified — implicitly the parent has a right to enter. I’m sure the courts would recognize that.

MARGARET WARNER: So if you were the lawyer for the… if you were the lawyer for the father, would you say that would be something he should do?

ALEX ALEINIKOFF: I think it would be sensible for him to assert his rights. The lower district court had permitted the case to go forward when the father wasn’t here, finding that the great uncle was an appropriate person to represent the child. I think at this point the father has the potential claim that he’s the only one who can represent the child and that they shouldn’t entertain an application filed by the great uncle when he is now in the country.

GROVER JOSEPH REES: If the father were to do that, the Miami family would be getting exactly what they asked for, which is a hearing on the merits of who should represent the child.

ALEX ALEINIKOFF: I think not. I think they’d be getting a decision as to whether or not it was an abuse of discretion for the AG to rule in favor of the father.

MARGARET WARNER: Do you think this is potentially a precedent-setting case or is it such an odd set of circumstances that it probably hasn’t… It hasn’t happened much before and it probably won’t again.

ALEX ALEINIKOFF: I think it’s probably not a significant precedent because of the tortured relations, the immigration relations between Cuba and the United States.

GROVER JOSEPH REES: Also because in this case, the attorney general switched gears. First, she said we’re going to bring him into the United States, let him be with the Miami relatives. They were appointed as the custodians, and then a few weeks later, changed her mind. That’s what allowed the asylum application to be filed. Those facts aren’t likely to be replicated very often.

MARGARET WARNER: So maybe a big deal politically but not necessarily legally.

ALEX ALEINIKOFF: I think not.

MARGARET WARNER: All right. Thank you, gentlemen, very much.