May 11, 2000
Lawyers for the government and Elian Gonzalez's Miami family argued in federal court today whether the 6-year-old boy has the right to file for asylum. After a report on the day's arguments, two lawyers discuss the asylum law at the heart of the case.
MARGARET WARNER: For more, we turn to two experts on asylum law and policy. Wend Young is Washington liaison and staff attorney for the Women's Commission for Refugee Women and Children, a nonprofit education and advocacy group. The commission filed an amicus brief with the court, arguing that the INS should grant the boy an asylum hearing. And Philip Schrag is a law professor at Georgetown University and director of the school's asylum law clinic. He is also the author of A Well-Founded Fear: The Congressional Battle to Save Political Asylum in America. Welcome to the two of you.
|Can Eilan ask for asylum?|
|Professor, in a nutshell, what's the nub of this case?
PHILIP SCHRAG, Georgetown University: Well, the important threshold question to understand is that to win asylum, a person who arrives in the United States must show a well-founded fear if that individual would be persecuted if returned to the country from which they came. It's not enough to show that there are many human rights violations in the country. It's not enough to show that the country treats its own citizens shabbily.
The person who gets asylum must show that there are good reasons to believe that that person individually-- in this case, Elian, individually -- would be persecuted. The question in this case then is, to what extent must the government evaluate Elian's claim that he would be so persecuted if he were to make such a claim? The boy is only 6 years old. He can't make the claim by himself. He can't understand at that age what persecution, human rights violations, and immigration law are all about, so he must speak through somebody.
Normally in the United States, we allow a father or mother, the surviving parent, if there is only one, to speak for a child. And so normally we have a very strong presumption that the parent here would ask the government to give the boy an asylum hearing, which means a thorough evaluation of his asylum claim. Because the parent here, Juan Miguel, said he didn't want an asylum hearing for the boy, but the boy's Uncle Lazaro said he did, the government looked at Lazaro's papers, his application and gave the boy some... gave the claim some consideration, but not a full asylum hearing, and determined that there wasn't enough there to make a judgment that there should be a full asylum hearing, which is a very long, drawn-out proceeding, and rightfully so.
MARGARET WARNER: So would you agree, that's the nub of it: Whether the INS had to consider Elian Gonzalez's claim despite the father's wishes?
WENDY YOUNG, Women's Commission for Refugee Women and Children: Yeah, I believe also, though, that an issue that is very fundamental and very critical is before the court as well, which is, does a child have the right to seek asylum? The statute is very plain in its language: Any alien may apply for asylum. If you look at international law and if you look at the INS's own internal guidelines, they acknowledge that that includes children, that regardless of age, an individual does have the right to seek asylum. This is an issue that I hope the 11th Circuit will state very clearly, and affirm that the child does have the right to do so.
MARGARET WARNER: And have there been cases when a child has been granted asylum over the wishes of the parent?
WENDY YOUNG: This is a highly unusual case. I think it's important to state that right up front. In the several years I've been doing this work, I've never seen a case quite like it. What is much more typical is you'll see that the parent is actually sending the child out of the country to protect that child from the abuses or conflict going on in that country, or the parent is missing in action, perhaps dead because of whatever problems are going on, or sadly in today's world, you also see cases where the child's been forced to flee the country to escape abuse from the parent him- or herself.
|Is Elian due a hearing?|
|MARGARET WARNER: Well, now the law does say that any alien
may apply for asylum. Why not give any child in this situation access
to the full process?
PHILIP SCHRAG: Well, we have a very unusual case here where the child is neither alone-- what we call an unaccompanied minor-- nor do we have the parent saying that he wants the child to be considered for asylum. We have a case where the parent says that the child should not be considered for asylum. And it could be quite disruptive of parental-child relationships, and of a parent's right to make decisions for a very small child, if a distant relative could come in and subject the family to a very long hearing. What I mean by a very long hearing is that if you say, well, why shouldn't the government give this boy a hearing -- it sounds like an afternoon's work. But it isn't that. If the government were to say, "yes, Elian gets a hearing," then because Juan Miguel is not going to speak for Elian, the first step will be to appoint a guardian for Elian. That will take some time. The guardian will have to research human rights conditions in Cuba, and Elian's risk of persecution. That will take some time. Finally there be an interview by a trained asylum officer of the government. That will take some time because Elian can't speak for himself. There will be witnesses and experts at that interview. If the government at that point decides that Elian is not qualified for asylum, the case doesn't end. The case, then, under the government's own regulation, goes on to a full-fledged trial before a neutral judge, which is a good thing in most cases, but that takes time, too. That can take up to a year. Then there are three appeals, which could add years to the time that this family's life is disrupted and Juan Miguel and Elian are forced to remain in the United States away from their own country. That's worth doing in a case where there's real reason to believe that the child would be injured and the parent agrees with that. For example, in a case where a woman brought her daughter here, and then wanted to return to her country where the daughter would be subjected to genital mutilation, it shouldn't be simply the case that the mother's wishes should control what happens to the daughter and whether she gets a hearing or not. But that's a clearer case than this one.
MARGARET WARNER: How do you feel about that? Under what circumstances would it be appropriate to... essentially for the INS to intervene between parent and child?
WENDY YOUNG: Well, certainly in a normal situation, a child belongs with their parents. But there are unfortunately cases where the parents' interests are in conflict with the child. I think what this case has done has actually to identify a procedural gap in our current system. We have no means in place currently to assess that parent- child relationship and to judge whether the parent is truly in a position where they are reflecting the best interest of the child. Our concern is also that the Immigration and Naturalization Service is not a child welfare agency, and for the courts to be saying that the INS has this discretion right up front to be screening out children's cases on these bases without any oversight, is troubling because they don't have that expertise to evaluate those kinds of relationships.
|A precedent-setting case?|
WARNER: So do you think this could be... You said it's an unusual case.
Could it be a precedent-setting case, and what kind of ruling would you
like to see?
WENDY YOUNG: I hope that it doesn't set a precedent that is going to impact negatively on the thousands of other unaccompanied children who arrive in the United States each year. Last year the INS had 4,600 children in its custody, so it's important that they not set a precedent that hurts those other children. To do that, I think that they do need to state very clearly that a child does have the right to seek asylum. There is a capacity issue here that this case raises, that we also need to deal with, which is when you're dealing with very young children, in particular, how do you get to the merits of their claim? How do you take testimony from a very young child? How do you evaluate that testimony? Interestingly, the INS issued guidelines to address many of those issues in 1998.
MARGARET WARNER: And how do you think this might or might not establish a precedent?
PHILIP SCHRAG: I think the case has already established a precedent of sorts. In the district court, the lower court, where Lazaro sued the government, the issue was simply whether a minor child could apply for asylum, or a child had a right to apply for asylum. And the district court said that the father simply spoke for the child. That's no longer the issue. The government has now conceded in its briefs that there are some conditions under which even over a parent's objection, the objective indications are such that the asylum should evaluated for the child.
MARGARET WARNER: Professor, thank you both very much. We'll have to leave it there. Thanks.