Jay Lefkowitz. Published Tuesday, June 6, 2000, in the Miami Herald
The court displayed some of the same naivete as did the INS about life in communist Cuba.
Thursday's decision by the 11th U.S. Circuit Court of Appeals was a bitter disappointment to those of us who wished for freedom for Elián González. Yet when Elián is finally dragged back to communist Cuba, as now seems inevitable, it won't be the fault of the three judges
who handed down the ruling. Rather, as their opinion makes clear, the blame lies with President Clinton and his administration.
The court's unanimous decision to defer to an executive-branch agency -- even one whose policies and procedures that court clearly was skeptical of -- shows that judicial restraint is alive and well, even after nearly eight years of liberal judicial appointments. And despite the tragic
consequences for Elián, in the long run Americans will be better served by a judiciary that generally defers to the decisions of the political branches and the specialized agencies that, unlike federal judges, politically are accountable.
The issue on appeal boiled down to whether the Immigration and Naturalization Service abused its discretion in establishing its policy for assessing an asylum application filed on behalf of a minor. The agency made four basic findings: (1) that a 6-year-old child lacks the capacity to seek
asylum on his own behalf; (2) that a child as young as Elián must be represented by an adult in immigration matters; (3) that absent special circumstances, the only proper adult to represent such a child is the child's parent, even if the parent lives outside the United States; and (4) the
fact that the parent lives in a totalitarian country doesn't, in and of itself, constitute a special circumstance.
Applying the legal principle known as the Chevron doctrine -- in which agency determinations are afforded great deference -- the 11th Circuit concluded that the INS's actions were not so unreasonable as to warrant reversal. Moreover, deference in this matter particularly was warranted, the court
said, because the INS's decision implicated foreign affairs, an area of policy making that is most uniquely the province of the executive branch. Despicable as Mr. Clinton's coddling of Fidel Castro may be, the court correctly applied judicial precedent in deferring to the international-relations
aspect of the INS policy.
At the same time, the court made hash of Mr. Clinton's and Attorney General Janet Reno's repeated claims that the ``rule of law'' forced them to order Elián's deportation to Cuba. Referring to the relevant provision of immigration law, Judge J.L. Edmondson wrote: ``We are obliged to
accept that the INS policy, on its face, does not contradict and does not violate section 1158, although section 1158 does not require the approach that the INS has chosen to take.''(emphasis added).
Judge Edmondson and his colleagues noted their disapproval of much of the INS's conduct in the Elián case. The court observed that while INS agents interviewed Elián's father, Juan Miguel, on two occasions, the agency never once sought to interview Elián -- a fact the court
said ``has worried us.'' Indeed. How could the INS possibly evaluate whether Elián had a ``well-founded fear of persecution'' in Cuba -- the key factual issue for the INS to decide -- without even bothering to speak with him?
The court also noted that Lazaro González, Elián's great-uncle, had told INS officials that before Elián was discovered at sea, Juan Miguel had phoned Lazaro and asked him to take care of Elián if the boy made it to the United States. Notably, there is no indication
from the court's opinion that the INS ever deemed Lazaro's account inaccurate.
In reviewing the record of the case, the court displayed some of the same naivete as did the INS about life in communist Cuba. In deferring to the INS, the judges noted that after meeting twice with Juan Miguel in Cuba to investigate whether his demand for Elián's return was coerced, the
INS official determined, ``taking Juan Miguel's demeanor into account'' -- that he ``genuinely desired his son's return to Cuba.''
The essence of a totalitarian regime is that coercion is ubiquitous. Neither the INS nor the court should have taken Juan Miguel's statements -- particularly those made during interviews when he as well as members of his family were still in Cuba -- at face value. By denying Elián an
asylum hearing, the INS also missed an opportunity to educate Americans about life in a totalitarian society.
Judging by public-opinion polls, most Americans think of communist Cuba as simply a poor country. An asylum hearing would have made clear that a dismal economy is only one of the many oppressive features of Cuban society. Many Americans, not to mention the INS, have ignored Fidel Castro's
40-year history of imprisoning political dissidents and condemning them to regular state-sanctioned torture.
Without the prospect of an asylum hearing, Elián will very likely lose his only chance at freedom.
But let us be clear about who is condemning this child to life under a brutal dictatorship. It is not Judge Edmondson and his colleagues, who reasonably deferred to an elected branch of government, but President Clinton and his administration -- the same administration that sent men with guns to
arrest little Elián barely a month ago.
Jay Lefkowitz is a Washington lawyer specializing in appellate law. This column is reprinted with permission from The Wall Street Journal.
©2000 Dow Jones & Company.
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