A Tepid Endorsement of Government's Actions
By William Glaberson. The New York Times. June 2, 2000
The Federal appeals court ruling yesterday in the Elián González case reaffirmed legal principles that give Federal agencies -- and particularly immigration officials -- wide authority.
The decision by a panel of the United States Court of Appeals for the 11th Circuit was a clear but somewhat lukewarm endorsement of the Immigration and Naturalization Service's position that only Elián's father -- not the 6-year-old boy himself or his Miami relatives -- could decide
whether the boy would seek asylum.
"Although the courts should not be unquestioning, we should respect the other branches' policy-making powers," the decision said. "The judicial power is a limited power."
To experts on family law, the ruling was an endorsement of legal rules that generally declare that, unless they are abusive, parents speak for their children in deciding where and with whom the children live.
But some immigration lawyers said they were troubled that the court's decision gave the immigration service such wide latitude.
"Our concern is, this is setting a dangerous precedent for other children" who might need to seek asylum in this country, said Wendy Young, a lawyer and the director for government relations of the Women's Commission for Refugee Women and Children. The group works to increase refugees'
asylum and immigration rights internationally.
"The court," Ms. Young said, "is placing in the hands of the I.N.S. the total discretion of deciding which of those claims it will hear, and which of those claims it won't hear, based on the child's age."
The judges suggested that if it had been up to them, they might have made a different decision and considered whether Elián needed asylum from the Marxist Cuban government. But they said they were not permitted to second-guess a decision by immigration officials that fit "within the
range of reasonable choices," even if that decision "worries us some."
The three judges who ruled yesterday -- J. L. Edmondson, Joel F. Dubina and Charles R. Wilson -- were the same judges who ruled in April that Elián had to remain in this country while his case was decided.
Although the decision did little to change existing law, some of the immigration lawyers said, the judges' hands-off position in such a high-profile case was likely to be taken by immigration officials as a signal that the courts would seldom intervene.
"The ruling is worrying as a precedent in the sense that there are many cases in which minors -- mostly unaccompanied -- need to claim protection from persecution," said Arthur C. Helton, an immigration law expert and a senior fellow at the Council on Foreign Relations.
The Women's Commission for Refugee Women and Children said 4,600 unaccompanied children were detained for possible deportation by immigration officials last year.
An applicant is eligible for asylum under the law if he or she has a "well-founded fear of persecution" based on political beliefs or membership in racial, religious, national or social groups.
In its opinion yesterday the court itself noted that the decision could hurt some children. "We recognize, that, in some instances, the I.N.S. policy of deferring to parents -- especially those residing outside of this country -- might hinder some 6-year-olds with nonfrivolous asylum
claims," the opinion said. But, the judges concluded, "we cannot disturb the I.N.S. policy in this case just because it might be imperfect."
Elián's claim for asylum began with an application filed by his great-uncle and later an application filed in the boy's own name. His father subsequently told the immigration officials that he did not want an application for asylum to be considered.
The boy's Miami relatives argued that it was by definition abusive for his father to insist on returning Elián to Cuba.
Courts generally defer to the expertise of administrative agencies. But in the area of immigration law, courts have held that the authority of judges is even more limited, because immigration policy is part of foreign relations, where the executive branch is given wide authority.
Some experts on immigration law said yesterday that they did not share the concerns expressed by the immigration lawyers who worried that the decision yesterday could harm other children.
David A. Martin, a former general counsel of the immigration service, said it was standard practice for the courts to recognize that immigration officials, not judges, are experts in making decisions about such issues.
Mr. Martin, who is a law professor at the University of Virginia, said the opinion yesterday was of limited reach because the immigration service conceded that some children could seek asylum even if their parents objected, like when they were threatened with imminent harm.
"In this case," he said, "it became a question of line drawing: When do you consider the wishes of the parent and when do you consider the child's case independently?"
Some other immigration law experts said that given the facts of Elián's case, it would have been extraordinary for a court to require immigration officials to consider an application filed against his father's wishes. They cited, among other factors, the boy's young age and his close
relationship with his father.
There are cases in which courts have gone too far in refusing to review the decision of immigration officials, said Stephen H. Legomsky, a professor of immigration law at the Washington University School of Law in St. Louis.
But, Mr. Legomsky said, "any court would come out this way in terms of the father having the right to decide for this 6-year old child."
Court Upholds I.N.S.'s Rejection of Asylum Effort for Cuban Boy
Relatives From Miami Are Given Time to Appeal
By Rick Bragg.
MIAMI, June 1 -- A federal appellate panel today upheld the right of immigration officials to let Elián González's father take the boy back to Cuba.
A three-judge panel of the United States Court of Appeals for the 11th Circuit, in Atlanta, ruled unanimously that the Immigration and Naturalization Service had the power to decide that only a parent can act for such a young child in immigration proceedings.
The decision let Juan Miguel González move a step closer to taking his son home, though the panel barred Elián from leaving the United States for at least 21 days to give his Miami relatives, who had sought asylum for the boy, time to appeal the decision.
The ruling is seen as a solid defeat for the relatives who took him in after a failed crossing from Cuba drowned his mother and 10 others and left the boy floating on an inner tube off the Florida coast on Thanksgiving Day. They remained angry and defiant. In Miami's Little Havana section, where
Elián had become an icon, there was anger, but the city was quiet.
Elián's father was elated.
"I want to thank the American people," Mr. González told reporters in Washington, where he and his son are staying.
"I hope we can finally go home."
The judges said that while they might make the opposite decision, the law gave wide discretion to the immigration service in such cases and the powers of the executive branch should be respected.
"This case, at first sight, seems to be about little more than a child and his father," the panel wrote in their decision. "But, for this court, the case is mainly about the separation of powers under our constitutional system of government."
That plain language, some legal experts said, would make a successful appeal difficult.
"This is a very important step in achieving the goal we have sought from the very beginning: to give Juan Miguel and his family the opportunity to return to a life together," Attorney General Janet Reno said.
But the Elián case has involved more than a family. It has drawn international attention -- not all of it good -- to Miami and its powerful Cuban-American community, stirring resentment among the city's other ethnic groups and leading to turmoil in city hall. It also put Ms. Reno under
intense criticism for her personal involvement in the handling of the case in her hometown, Miami.
The ruling upheld a decision by a Federal District Court judge in March that Elián was too young to comprehend a complicated asylum application, and that his father's rights to take him home outweighed the desires of the boy's Miami relatives to keep him here.
The decision was written by Judge J. L. Edmondson, who was appointed by President Ronald Reagan, and was joined by Judge Joel F. Dubina, an appointee of President George Bush, and Judge Charles R. Wilson, an appointee of President Clinton.
The three-judge panel found that the immigration service was "within the outside border of reasonable choices" in denying the child's asylum application, which he had signed in a scrawl, "ELIAN."
David Abraham, a professor of immigration law at the University of Miami, said the panel recognized "the conservative traditions of respecting the separation of powers and recognizing that Congress has delegated the authority to make the calls in tough cases" to the immigration
service.
"The court found that I.N.S. was not arbitrary in what it did," Mr. Abraham said.
The family was, as of this evening, weighing its options. Some form of appeal seems likely. It can ask for a rehearing by the same panel, or appeal the decision to the full 11-judge 11th Circuit Court of Appeals, or appeal to the Supreme Court.
"We have not concluded; we're going to keep fighting for Elián's freedom," said Lázaro González, Elián's great-uncle and the man who defied federal orders to give up the boy.
Mr. González's defiance led to a raid on April 22 in which federal agents removed the boy from the uncle's home and took him to Maryland, where he was reunited with his father. Father and son are now staying in Washington in a home owned by an international youth organization.
As for whether there are grounds for an appeal, Kendall Coffey, a lawyer for the family, said the ruling "did not constitute a resounding endorsement of the way I.N.S. handled this matter."
The appellate panel did, in fact, write that "the court neither approves nor disapproves the I.N.S. decision to reject the asylum application filed on plaintiff's behalf." But, the judges wrote, the immigration service did not contradict federal law.
Gregory B. Craig, the lawyer representing Elián's father, said it was time for the Miami relatives to give up their battle to keep Elián. "It is now time to end this chapter of Elián's life and to let this family go in peace," Mr. Craig said.
Outside the house in Little Havana where Elián lived for almost five months, news of the ruling drove several women to their knees on the narrow asphalt street. Men wept outside the house, a shrine of sorts here in the Cuban section of Miami, even though Elián's Miami relatives are
no longer staying there.
"I'm hurt," said Bienvenido Comas, 27, an engineer. "I cried today. But I have no more tears."
Like many others here in a city dominated politically, economically and culturally by Cuban-Americans, Mr. Comas said he had been disappointed again and again in this emotionally charged case that led to protests and angry divisions between the city's ethnic groups.
But there were no violent outbreaks in the city, even in the heart of Little Havana, where protesters had burned trash bins and tires and clashed with the police after the raid. The police made more than 300 arrests then.
This time, there was only sadness and disillusionment on Southwest Eighth Street, Flagler Street and outside the tiny walkup cafes that usually buzz with political talk.
"Today's a gloomy day," said José Portonado, an artist who lives in Little Havana. "But I knew it was going to happen."
But the return of Elián to Cuba is still, more than likely, at least a few weeks away, and perhaps longer. The precise timing remains uncertain, depending on what appeal the Miami relatives seek.
The appeals panel said that a previous injunction they issued to keep Elián in this country during appeals remained in force until the panel issued a mandate to enforce today's ruling. Such a mandate would not be issued until seven days after the case was effectively closed under federal
appellate rules. The panel shortened the usual 45-day period to formally close the case to 14 days.
That means the Miami relatives have just 14 days to appeal the case.
If the family wants to appeal the case directly to the Supreme Court, its lawyers must seek a separate order staying Elián's departure from a Supreme Court justice or the entire court.
If the family does not appeal, which is unlikely, the mandate to enforce the order will be filed in 21 days.
In Miami, political and legal experts said the Elián affair would not do Miami any good if it was prolonged even more.
"The case demonstrated that the overwhelming majority of Americans were not prepared to have distant relatives kidnap a child from his relatives as a way of continuing a 40-year-old struggle that means less and less to them every day," Mr. Abraham said.
But here, where hatred of Fidel Castro is still fresh, Cuban-Americans cannot stand the thought of returning the child to a Communist government.
In Germany, President Clinton said he was pleased with the court's decision.
"As I have said before, this is a case about the importance of family and the bond between a father and son," Mr. Clinton said in a written statement from Berlin, the second stop on his European tour. "I have supported the Justice Department's conclusion that Elián's
father, Juan Miguel González, is the one best suited to speak for his child."
And in Atlanta, Vice President Al Gore said he continued to believe that a family court should decide Elián's case. Gov. George W. Bush, campaigning in Nevada, said Mr. Gore should urge Mr. Clinton to allow such a family court hearing.
Lázaro González said his family had no choice but to keep fighting any way it could. "We are going to keep searching for the laws that Elián is entitled to," he said. "So that Elián González remains in a free country, as his mom wished."
Much of Miami Despairs Once Again but This Time Remains Peaceful
By David Gonzalez.
MIAMI, June 1 -- The hopes that many Cuban-Americans had harbored for Elián González were overtaken by fears once again today when they learned that a federal appeals court had rejected his Miami relatives' effort to win him an asylum hearing.
From the streets of Calle Ocho to the empty, shrinelike house in Little Havana where Elián had lived with his great-uncle Lázaro and other kin, people were subdued but disappointed, quietly grieving over the latest setback in a story that has mirrored many of their own personal
tragedies of families divided by 90 miles and the roiling waters of conflicting ideologies.
Outside the house today, a small crowd gathered around a portable radio. Hearing news reports of the court's ruling, people screamed, "No, no!" Others sobbed, and some collapsed in anguish on the sidewalk.
"What is the Statue of Liberty for?" said one man.
"It's a joke," someone nearby responded.
Despite the disappointment, the community was peaceful, in contrast to the demonstrations and sporadic unrest that ensued when federal agents took Elián from the house in April and returned him to his father. Those protests tied up traffic and led to some arrests.
Today, exile leaders repeatedly called for calm, urging people to stay home and not engage in protest. They vowed that the battle would be taken to the Supreme Court and, if necessary, to Cuba.
The leader of the Democracy Movement, Ramon Saul Sanchez, a main organizer of the vast demonstrations that took place outside the Little Havana house before the federal raid, said he was organizing a protest flotilla of hundreds of boats that would sail to Cuba soon.
"Our approach is to channel our energies into other ways now," he said. "We are going to be taking risks, but it is the same risk that Rosa Parks took with the civil rights movement. Castro has killed so many people, and he has divided a nation."
After Elián was taken from Little Havana to be reunited with his father, Lázaro González moved away, to West Miami.
"As soon as the raid took place, the family did not feel comfortable living in that house, where they had memories of Elián," said one of the family's lawyers, Spencer Eig.
In front of the former González home now, many have left flowers, balloons and posters in tribute to the boy.
Elián's swing set, known as El Parque de Elián, has been taken down and moved to the new González residence. The lawn has not been mowed. Yellow ribbons are tied to electric poles on the street. Pictures of Elián's mother, who died on the ill-fated crossing in which
he was rescued, are accompanied by a message that reads in Spanish, "Let my son live in liberty."
By the gate that was knocked down by the agents who raided the house are posters. One says simply, "Why?"
While Conservatives and Liberals React, Gore and Bush Hedge on Ruling
By Adam Clymer.
WASHINGTON, June 1 -- Conservatives condemned and liberals applauded the court decision today denying Elián González an asylum hearing, while the two politicians most prominently seeking support in the political center -- Vice President Al Gore and Gov. George W. Bush of Texas --
temporized.
Senator Robert C. Smith, Republican of New Hampshire, called it "a sad judgment and a tragedy for this little boy."
Robert W. Edgar, general secretary of the National Council of Churches, said, "Our only disappointment is that it didn't happen earlier."
But neither Mr. Bush nor Mr. Gore would say whether they thought the decision was good or bad. Mr. Gore said that it should be "respected," but that he had always believed a Florida family court should have dealt with the case. Mr. Bush said that he believed the same thing, and that
Mr. Gore should now persuade Attorney General Janet Reno to send the case there.
Ms. Reno made it clear that she had no such plans, saying, "I think justice has been done."
Each presidential hopeful had reasons for hedging. Conservative Republicans who had demanded an investigation and hearings when Elián, the 6-year-old Cuban boy, was forceably taken from the house of his great-uncle on April 22 quickly retreated when it was clear the public supported the
government action.
And Mr. Gore's split with the administration was widely condemned in his own party as pandering to Cuban-American voters in Florida.
But there is another level at which the decision defies ideological pigeonholing. While the result disappoints conservatives like Mr. Smith and Representative Tom DeLay of Texas, the majority whip, it is a statement of judicial restraint, a staple conservative principle.
At least 11 times, the opinion by Judge J. L. Edmondson of the United States Court of Appeals for the 11th Circuit suggested that the Immigration and Naturalization Service might have made wrong decisions in the case. But, Judge Edmondson wrote, it was not the job of judges to overturn the
policy "selected by the I.N.S. merely because we personally might have chosen another."
The opinion, in language that could come from any Republican platform of the last 20 years, concluded: "It is the duty of the Congress and of the executive branch to exercise political will. Although courts should not be unquestioning, we should respect the other branches' policy making
powers. The judicial power is a limited power. It is the duty of the judicial branch not to exercise political will, but only to render judgment under the law."
Liberals' pleasure at the result was tempered by just that element of deference, because many important immigration cases challenge deportations, and seek to require courts to oversee I.N.S. decisions to a degree this opinion clearly bars.
Howard Simon, executive director of the American Civil Liberties Union of Florida, said the decision was not surprising. "This," Mr. Simon said, "is the consequence of Congress giving so much discretion to the immigration service and the Department of Justice," a degree of
discretion the A.C.L.U. found excessive when the 1996 immigration act denied judicial review to aliens the I.N.S. found deportable.
T. Alexander Aleinikoff, professor of law at the Georgetown University Law School, praised the decision for reaching a proper standard of judicial review of administrative decisions by the executive branch. But Professor Aleinikoff said, "We seem to always go further in immigration cases
where there is an extra dose of deference that is given."
He said the court probably went further than this case demanded in emphasizing how immigration policy affected "the president's conduct of our nation's international affairs," and in brushing off the complaint that the I.N.S. denied Elián and his Miami relatives due process.
While most of the political reaction today focused on the result of the decision, and not its legal logic, Mr. DeLay cited due process.
"Elián González should, at a minimum, have his case for asylum fully heard and objectively considered," he said.
Senator Patrick J. Leahy, Democrat of Vermont, said, "The court correctly found that the I.N.S. acted within its discretion in deciding that it is the role of parents to care for and make decisions for their young children in all but the rarest circumstances."
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