Who Speaks For Rising Number Of Young Emigres?
April 21, 2000. Chicago Tribune. By Mike Dorning and Laurie Goering, Tribune Staff Writers. Mike Dorning reported from Washington and Laurie Goering...
WASHINGTON - The latest twist in the saga of Elian Gonzalez raises an issue that has percolated quietly in legal circles for several years: how to handle the immigration claims of the growing number of foreign children who make their way to the United States, in many cases unaccompanied by
parents.
A federal appeals court panel Wednesday barred Elian from leaving this country until appeals on his asylum request are resolved.
In its opinion, the court suggested that it is at least considering how to weigh the interests and wishes of a young child in the momentous decision of where he should live--in the U.S. with relatives or in communist Cuba with his father.
The story of the 6-year-old boy who was rescued in November from the sea off the Florida coast has been highly publicized. But Elian is only one of a growing number of children asking for asylum, ranging from African girls fleeing genital mutilation to Chinese youths smuggled in container ships.
The Immigration and Naturalization Service, supported by a U.S. District Court, had rejected an asylum application for Elian on the grounds that only his father could make such a decision for him.
But the 11th Circuit Court of Appeals in Atlanta raised questions about INS refusal to consider the asylum petition Elian signed simply because the boy presumably is too young to speak for himself. The three-judge panel also noted that the department never interviewed the child about his wishes.
The court asserted that the "plain language" of immigration law suggests a child of any age ought to be able to apply for asylum. A critical issue in Elian's case will be just how to determine a child's distinct interests in such matters.
"It's an issue that is unresolved and a very important issue: Who speaks for the child?" said Jacqueline Bhabha, a specialist in refugee law and the director of the Human Rights Program at the University of Chicago Law School.
On Thursday, Elian's father made a passionate plea to the American public that his wishes to be reunited with his son be respected.
"Please, anyone who has feelings, anyone who knows a father's love for his son, help me," said Juan Miguel Gonzalez, speaking outside the Maryland home where he has waited two weeks to claim his child.
Soon afterward, President Clinton made his strongest statement on the case, saying that he knows of "no conceivable argument" for preventing Gonzalez from taking custody.
"That is the law," Clinton said. "And the main argument of the family in Miami for not doing so has now been removed. Their main argument was that, if we let him go back to his father before the court rules, he might go back to Cuba. The court has now said he shouldn't go back to
Cuba."
Atty. Gen. Janet Reno spent Thursday discussing the case with Justice Department aides, but there was no word on her next move.
In the Gonzalez case, INS investigators concluded that, although Elian's mother and father were divorced, there was a strong and positive family relationship between father and son. As the boy's parent, Juan Miguel Gonzalez therefore speaks for Elian, the INS said, and the father has requested
his son be returned to him.
But the Miami relatives who have had custody of Elian since he arrived in the U.S. believe the father's wish to return him to Cuba is against the child's best interests.
Whatever the merits of the case, refugee advocates said the legal ramifications are wide-reaching. A district court decision last month that upheld the INS "sets a dangerous precedent for other children who might need to be protected," said Cheryl Little, executive director of the
Florida Immigrant Advocacy Center.
Since 1997, the number of unaccompanied minors arriving in the United States has almost doubled, with nearly 5,000 making their way to the country in the last federal fiscal year, according to the INS. Although most of the children are quickly returned home, asylum applications also have risen
precipitously: So far this fiscal year, applications involving children are running at twice the rate of last year.
Simultaneously, greater international attention has been focused on the rights of children, most dramatically those facing genital mutilation and child prostitution and those being smuggled across borders as indentured labor and forced into military service in areas of civil conflict.
Under U.S. law and under the INS' regulations, children have an independent right to apply for asylum if they have a "well-founded fear" of persecution on the basis of race, religion, nationality, social group or political opinion. The INS recognized that children, including those as
young as Elian, may need to apply through specific guidelines it issued in December 1998.
"The difficulty is balancing the rights of the child against the rights of the parent," said Little. "Unfortunately, there's not a lot of guidance with respect to how to do that. This case is shedding light on how to do that."
The issue surfaced in the U.S. during the 1980s in the case of Walter Polovchak, a 12-year-old living in the Chicago area who refused to return to then-communist Ukraine with his parents. A judge allowed him to stay but indicated his age put him at the "lower end" of the maturity level
needed to independently seek asylum.
In Phoenix, court administrators now are negotiating with private attorneys to set up a national pilot program that would provide for appointed guardians trained in social work to represent the interests of young immigrants, just as is done in juvenile court proceedings. In the past five years,
Canada and Britain also have moved to give greater weight to the interests of children through the use of appointed guardians to represent them. |