By Jay Weaver . jweaver@herald.com. Published Friday, June 16, 2000, in the Miami Herald
Lawyers for the Miami relatives of Elián González urged a federal court Thursday to consider another appeal to force the government to give a political asylum hearing to the 6-year-old, but admitted they face an ``uphill'' challenge.
In their latest filing, they asked all 12 judges on the 11th Circuit Court of Appeals in Atlanta to review a June 1 decision by the court's three-judge panel that sided with the federal government. The trio of judges ruled that the Immigration and Naturalization Service acted within its
authority in denying the boy a hearing on grounds that only his Cuban father can speak for him in this bitter immigration dispute.
The INS has to respond to the relatives' 16-page appeal by Tuesday, the earliest possible day that the judges could decide whether to hear arguments again.
The relatives' appeal, which met Thursday's filing deadline, makes two basic claims: The appellate court should order the INS to hear Elián's asylum application because the agency exceeded its authority under immigration law. And the court also should recognize that the child has a
constitutional right to apply for asylum.
If the entire 11th Circuit rejects their appeal right away without another hearing, Elián and his father, Juan Miguel González, would be able to return to Cuba seven days after such a decision. The only recourse for the Miami relatives' lawyers would be to obtain an injunction from
the U.S. Supreme Court to prevent the boy's departure.
The Miami relatives' lawyers now argue that a recent Supreme Court decision regarding another federal agency and longtime judicial disputes over an alien's due-process rights might compel the 12 judges to rehear Elián's case.
``While things are obviously uphill . . . there are significant new developments that I think give cause for possible hope in the future legal proceedings on behalf of Elián,'' said Kendall Coffey, the lead lawyer on the Miami relatives' legal team.
In Washington, D.C., U.S. Attorney General Janet Reno said: ``I would hope that the matter could be considered and ruled upon promptly and that we can go forward. But again, the processes should take their course.''
The appeal is filed on behalf of Elián's great-uncle Lazáro González. He took care of the boy for five months after his Thanksgiving Day rescue off the South Florida coast until federal agents raided his Little Havana home so Elián could be reunited with his father,
who is now staying with his son in Washington, D.C.
The great-uncle has lost two major legal battles to the INS, first in Miami federal court and then in the Atlanta appellate court.
In the appeal, his lawyers argue that the 1980 Refugee Act passed by Congress allows any alien to apply for asylum -- regardless of age. They say that includes Elián, who they allege would face political persecution if he returns to his communist homeland.
And in a new argument, they challenge the legal underpinning of the Atlanta panel's decision: Federal courts have only limited authority over executive branch agencies like INS because of the principle of ``judicial deference.''
The lawyers say a recent Supreme Court decision determined that the courts could review the decisions of federal agencies if they were based only on informal policies, not formal regulations.
The May 1 decision said state and local governments can require their employees to use their accumulated compensatory time by taking paid time off, even if the employees don't want to do that.
In this instance, Harris County, Texas, wanted to require its deputy sheriffs to use up their accumulated comp time rather than save it. The U.S. Department of Labor joined forces with the sheriffs in the dispute.
Justice Clarence Thomas, writing for the majority, said there was nothing in the Fair Labor Standards Act to prohibit employers from adopting the comp time policy. He said the Labor Department's position was not a formal regulation and therefore the agency did not deserve the court's deference.
The Miami relatives' legal team attacked the INS with this high-court ruling. It contends that the INS decision that only Elián's father could speak for him on immigration matters was based on informal policymaking.
``An agency opinion letter should not be given deference by the court,'' said Roger Bernstein, one of the relatives' attorneys. ``The INS created a parental-consent provision where none was provided by the statute.''
INS officials say they developed policy in Elián's case that followed immigration law, and conducted extensive research here and in Cuba -- including interviews with Elián's father to ensure he genuinely wanted his son returned home. They did not think interviews with the boy were
necessary because his father asked that his asylum applications be withdrawn.
Some legal scholars agreed with the INS, questioning the core argument in the latest appeal.
``The INS's interpretation of the statute seems correct, even without the benefit of deference from the court,'' said Stephen Legomsky, professor of law at Washington University in St. Louis. ``Therefore, the decision in the Harris County case is irrelevant here.''
The Miami relatives' legal team also argues that the entire 11th Circuit Court of Appeals needs to review the question of whether an alien has an implicit constitutional right to apply for asylum under the 1980 Refugee Act.
The lawyers note that the entire 11th Circuit found in 1984 that ``aliens seeking admission to the United States . . . have no constitutional rights with regard to their applications.''
But they also say that decision, involving the detention of Haitian refugees, was upheld by the Supreme Court on nonconstitutional grounds. The court did not answer that question.
The relatives' lawyers also cited a 1982 case, in which the Haitian Refugee Center in Miami sued the INS over the constitutional right to apply for asylum. In that instance, the Fifth Circuit Court of Appeals upheld that right.
Staff writer Frank Davies also contributed to this report.
Copyright 2000 Miami Herald |