Juan Miguel González is another step closer to taking his son Elián home to Cuba, thanks to yesterday's ruling by the Court of Appeals for the 11th Circuit, and Americans who have been caught up in the drama of a divided family may be feeling happy for him. But for those of us who
try to help refugees fleeing from oppression and mistreatment in their home countries, this case is not so easy to celebrate.
The decision did provide a victory for refugee children: the judges unambiguously affirmed that children have the right to apply for asylum in the United States. That is enormously significant, since as Elián's case dramatically illustrates, not every child who lands on our shores arrives
with an intact nuclear family able to speak for him in unison. The lower court ruling, which held that United States law was silent about the right of children to apply for asylum, had threatened to undermine the important principle that children, even on their own, have a right to ask for refuge
here.
But what good is that legal right if the rules by which it must be exercised restrict it out of existence? This is where yesterday's appeals court decision went down the same wrong path as the lower court, chiefly by putting too much faith in the Immigration and Naturalization Service.
The judges declined to intervene in the workings of the I.N.S. -- ceding its right under separation of powers to carry out immigration law -- even though much of the decision is devoted to outlining ways in which the I.N.S. policy "worries" the court: Elián was not interviewed,
and no consideration was given to the regime under which he would live in Cuba, or to his father's delay in appearing in the United States to retrieve his son.
Whether or not one agrees with the result in this case, clearly there will be other cases where the lack of fair procedures can harm children with genuine asylum claims.
What about a West African girl fleeing her father's command that she undergo genital mutilation? What about a 17-year-old Pakistani whose family wants her killed for wishing to marry out of her faith?
Will courts in the future, looking to this case as a precedent, leave it to the I.N.S. to decide whether to accept their applications if their parents object? The court made clear yesterday that children have a right to apply for asylum, but it offered no assurance that courts will step in to
protect refugees in future cases when I.N.S. policies are unfairly applied.
Elisa Massimino directs the Washington office of the Lawyers Committee for Human Rights.
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