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| ASYLUM ARGUMENTS | |
 May 11, 2000  |
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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.
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| 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.
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?
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. |
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| 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?
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 |
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| A precedent-setting case? | ||||||||||||||||||||
 MARGARET
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. |
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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.
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.
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.
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. 
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.