April 20, 2000


Posted 9:50 a.m. Thursday, April 20, 2000 in Elian's Saga, Miami Herald

Elian Must Stay In U.S.. Miami relatives willing to meet with father

From Herald Staff And Wire Reports.

Lawyers for Elian Gonzalez's Miami relatives said this morning they're willing to bring the boy to a meeting with his father, but the father's attorney says any such meeting must start with the boy being handed over to his father.

The meeting could be anywhere in the country, the Miami relatives' lawyers said.

"It's time that the family got together to deal with this as a family - no preconditions, no government, no lawyers,'' Miami family attorney Kendall Coffey told ABC's "Good Morning America.''

But he also said the family still prefers to meet within close driving distance of Miami because Elian is frightened about being returned to Cuba.

Gregory Craig, an attorney for Elian's father, Juan Miguel Gonzalez, said any meeting must begin with Juan Miguel being given custody of the boy. "It is long past time for this boy to be reunited with his father,'' Craig told NBC's "Today'' show.

"The only meeting that we really care about is the reunion with the son.'' After that occurs, the family can talk, he said.

The boy's great-uncle, Lazaro Gonzalez, decided to offer to bring the boy to a meeting with his father after being assured by an appellate court ruling that the boy could stay in the country, attorney Linda Osberg-Braun said Wednesday. Previously, the Miami relatives had said they would meet the father only if it was without the boy.

A federal appeals court handed Elian Gonzalez's Miami relatives a victory of unexpected scope Wednesday, when it not only barred the boy's immediate return to Cuba, but also appeared to embrace the family's argument that the 6-year-old can apply for political asylum against his father's wishes.

In a 16-page decision that surprised experts and even the Miami relatives' lawyers, a three-judge panel of the 11th Circuit Court of Appeals in Atlanta ordered in unusually pointed language that Elian remain in the United States while his relatives pursue a pending federal court appeal on the asylum question.

The order does not prevent the government from reuniting Elian with his father, who is in Washington, D.C., to reclaim custody of his son. The judges explicitly left that decision to U.S. Attorney Janet Reno, who has ordered the Miami relatives to turn over the boy. Reno said late Wednesday she would study her options, but declined to elaborate.

But Reno pointed out that the government and Elian's father had already agreed to keep the boy in the United States while the appeal was concluded, and maintained that Wednesday's ruling changed little in her view.

``I believe Elian should be reunited with his father, and I've said that all along,'' Reno said at a press conference. ``The court's order does not preclude me from placing Elian in his father's care while he is in the United States.''

Elian's father, through his Washington attorney, Gregory Craig, late Wednesday reiterated his demand for an immediate transfer of custody.

``We call upon the United States government to take immediate action,'' Craig said in angry tones. ``It is unconscionable to wait one day longer.''

But the court decision set off a joyful celebration among the Miami relatives and dozens of demonstrators outside their Little Havana home, where many called it ``a miracle'' that bodes well for their fight to keep Elian in the United States.

``As you all can see, the Gonzalez family still believes in the laws of the United States and we will continue to pray so all of this will come true for Elian and he'll be able to remain where his mother wanted him to be -- in a life of liberty,'' said the boy's great-uncle, Lazaro Gonzalez, who has spearheaded the battle to take custody of Elian from his father in Cuba. Elian survived a November tragedy in which his mother drowned while fleeing Cuba.

Until Wednesday's ruling, Reno seemed to be moving closer to a decisive move to reunite Elian and his father. Earlier in the day, she said she still intended to do so, by force if necessary.


Though only an intermediate step, however, Wednesday's ruling may make it harder for Reno -- who clearly hoped the court would endorse her decision to reunite Elian and his father -- to justify the use of force.

The judges did not address a request by the government to order Lazaro Gonzalez to turn over the boy. Government sources who have been involved in the case, while stressing they were speaking speculatively, said they believe Reno is unlikely now to attempt to move the child.

A Justice Department official, however, said a forcible removal remains under active consideration.

In effect, Wednesday's ruling said that even if Elian has no case for political asylum, he may have the legal right to apply for it, regardless of his age.

The appellate court must still decide those questions, but the tenor of Wednesday's ruling suggests the judges believe the law may in fact allow even small children to apply for asylum, and even over the objections of their parents.

The ruling challenged the government's handling of the case as well as its legal posture -- that because a 6-year-old boy lacks the intellectual capacity to apply for asylum on his own, only his father can speak for him on immigration matters. A federal judge in Miami earlier had upheld Reno's reading of the law.


Legal experts said the appeals court's argument, if it survives into the final ruling, would upset established immigration policies and procedures and set new precedents for the rights of minors under immigration law. The INS routinely returns unaccompanied minors who have entered the country illegally on the presumption that they are too young to apply for asylum.

Some experts were agog at the court's reasoning, saying they were baffled by its suggestion that children as young as 6 could understand the import of a political asylum application.

The court was careful to say, however, that it was not passing final judgment.

``This order sets out more questions than answers,'' the panel wrote. ``No one should feel confident in predicting the eventual result in this case . . . We need to think more and hard about this case for which no sure and clear answers shine out today.''

The three judges on the panel are Joel Dubina, appointed in 1990 by President Bush; Charles Wilson, appointed by President Clinton in 1999, and James Edmondson, appointed in 1986 by President Reagan.


Their decision questioned the basis for the government's legal position, which hinges on its interpretation of a statute that permits ``any alien'' to apply for asylum. U.S. District Court Judge K. Michael Moore, in his decision backing Reno, said immigration law effectively gives the attorney general discretion in deciding whether a minor can do so.

But the appeals court noted the statute mentions no age limit, and that two applications on Elian's behalf were filed, with the boy signing one himself. The INS rejected both, saying Elian's father did not want them filed.

The appeals judges suggested that the INS' rejection might have been improper for another reason: The law requires the agency to consider all complete applications, and both applications filed on Elian's behalf were complete.

If Congress had intended to exclude aliens from the right to file for asylum, the judges said, it would have written the exception into the law.

``To some people, the idea that a 6-year-old child may file for asylum in the United States, contrary to the express wishes of his parents, may seem a strange or even foolish policy,'' they wrote. ``But this Court does not make immigration policy and we cannot review the wisdom of statutes duly enacted by Congress.''

The court also raised the possibility that Elian's interests and his father's may not be the same. The judges seemed to give considerable weight, moreover, to statements from a relative and a psychologist that Elian had expressed a wish not to return to Cuba, even as they said such a desire may not be relevant in an asylum case.

`It appears that never have INS officials attempted to interview plaintiff about his own wishes,'' the judges wrote.


Miami Commissioner Tomas Regalado said the Gonzalez family considered the ruling decisive.

``The family really believes that they have a victory,'' Regalado said. ``I was talking to Lazaro, right after the decision, and he told me, `I always had faith. I always had faith. I know that we are on the right side of God.' ''

Other supporters were more cautious, noting that even a victory at the appeals court would mean further appeals by the government, and that even if Elian wins an asylum hearing, there is no guarantee he could persuade an immigration judge that he merits it. To win asylum, an applicant must show he will likely suffer persecution on account of race, religion, national origin, membership in social group or political opinion.

One leading expert, Miami immigration lawyer Ira Kurzban, said he believes an asylum claim by Elian would be tenuous at best.

``Given the situation, it would be the opposite with this child. He will be a hero in Cuba,'' said Kurzban, whose litigation on behalf of Haitian refugees in the 1980s established the right of aliens to apply for U.S. political asylum.

But it now appears that, barring a move by the government to remove Elian from the house or a successful challenge of Wednesday's order, it could be weeks, if not months, before the boy's fate is decided.

``We feel good. The family feels good. But the war is not over,'' said Armando Gutierrez, the Miami family's spokesman.

Said Jorge Mas Santos, chairman of the Cuban American National Foundation, ``I would hope and I would implore the Justice Department and this administration to not come in and raid this home and remove that boy now.''

Herald staff writers Andres Viglucci, Jay Weaver, Manny Garcia, Ana Acle, Karen Branch, Tyler Bridges, Paul Brinkley-Rogers, Frank Davies, Marika Lynch, Sandra Marquez Garcia and Frances Robles, Herald translator Renato Perez, Herald writer Mireidy Fernandez, Online News Reporter Madeline Baro Diaz and wire services contributed to this report.

Ruling may have dramatic effect on asylum decisions

Decision may change way INS treats applications by kids

By Jay Weaver.

The federal appeals court decision in the Elian Gonzalez case struck like a thunderbolt Wednesday, with attorneys saying the ruling signaled a potential shift in immigration law that could force the U.S. government to accept asylum applications from thousands of unaccompanied children.

The actual legal effect of the 11th Circuit Court of Appeals' decision is limited only to barring Elian's removal from this country until after the court has a chance to consider his appeal. It pivots on whether he has the right to apply for asylum, with oral arguments scheduled for May 11.

But the three-judge appellate panel strongly implied in its decision that the court might be prepared to rule that the Immigration and Naturalization Service erred when it decided that Elian, at the age of 6, was too young to be capable of applying for asylum.

The INS had said that only Elian's Cuban father could speak for Elian because the boy is so young, and his father wants him back in Cuba. The boy's Miami relatives challenged that decision with a lawsuit.

If the appellate court rules that the law means what it literally says -- ``any alien . . . may apply for asylum'' -- it could have a dramatic impact on the agency's handling of innumerable cases. The INS routinely sends back thousands of immigrant children to their homelands every year.

U.S. Rep. Alcee Hastings, a lawyer and former federal judge, said the court's tacit acceptance that ``any alien'' has a right to an asylum hearing may have set an unintended precedent.

``What they just got through doing, if this is to become the law, is to open the flood gates -- and I don't think they intended to do that,'' Hastings said.

His advice to Attorney General Janet Reno: ``Appeal this to the Supreme Court.''

Some legal experts in the immigration field agreed with Hastings' analysis, though they applauded the court's decision to bar the boy's removal from the country until his appeal is over.

``If the court is saying a child that tender of age can make that determination, it would have significant ramifications,'' said Ira Kurzban. In the early 1980s, Kurzban won the right for refugees to seek asylum on constitutional grounds of due process.

In their decision, Circuit Judges Joel F. Dubina, James L. Edmondson and Charles R. Wilson cited the federal statute in dispute -- ``any alien . . . irrespective of such alien's status, may apply for asylum.''

``[Elian] appears to come within the meaning of `any alien,' '' the judges wrote in their 16-page opinion. ``We, therefore, question the proposition that, as a matter of law, [Elian] cannot exercise the statutory right to apply for asylum.''

The judges went on to write: ``If Congress had meant to include only some aliens, perhaps Congress would not have used the words `any alien.' ''

They noted that it ``may seem a strange or even foolish policy'' to let a little boy apply for asylum against the wishes of his father. But they stressed that if Congress intended by the plain language of its law to allow a ``school-age child to apply personally for asylum,'' then ``this court and the INS are bound to honor'' it.


The appellate court's decision contrasts with U.S. District Judge K. Michael Moore's ruling last month. He upheld Reno's broad powers to interpret the question of who may apply for asylum on a case-by-case basis. In Elian's case, she backed the INS decision that only the boy's father can speak for him.

Some lawyers were taken aback by the appellate court's decision.

Peter Schuck, a Yale University law professor who specializes in immigration matters, said the appellate court is venturing into a legal area that previously had been considered the province of Congress, the attorney general and president.

He used the word ``preposterous'' in reference to the court's literal interpretation of what Congress meant by ``any alien.''

The Miami relatives' legal team said they did not agree that the appeals court's decision could lead to a major change in asylum procedures. The team said the judges simply recognized the right of the little boy to speak his mind.

``This is a fully cognitive child who states his fear of going back to Cuba,'' attorney Kendall Coffey said. ``If you have a child with a cognitive capacity of an 11-year-old and psychological evaluations that say he can capably speak for himself, that is a completely different scenario from a 2-year-old [seeking asylum].''

Another of the family's attorneys, Roger Bernstein, said: ``What the judges are saying is that in evaluating the wishes of Elian, the INS only evaluated the wishes of the father, not Elian's. What they're saying is, his voice needs to be considered.''


Immigration law is replete with cases in which parents and children have differed over whether the children could apply for asylum.

In 1980, Kurzban represented the Cuban parents of a teenage girl, Odalys Valdes, who came to the United States in a hijacked boat with her boyfriend. After a two-year legal fight, the parents and the Cuban government dropped their lawsuit seeking her return.

Another unusual custody case -- which sparked an international incident during the Cold War and has drawn comparisons to Elian's dispute -- unfolded in 1980 when Ukrainians Michael and Anna Polovchak decided to return to their homeland after just six months in Chicago.

Their children, Walter, 12, and Natalie, 17, refused to go. Walter, who ran away, was granted asylum. His parents challenged Walter's decision in federal court -- and lost.

His sister's decision to stay behind was uncontested because of her age.

In 1985, a federal appeals court ruled the parents' rights had been violated by the U.S. government. But by that time, Walter Polovchak was nearly 18. He became a U.S. citizen after celebrating that birthday.

Herald staff writer Sandra Marquez Garcia contributed to this report.

Crowd celebrates victory

Court's ruling turns vigil into street party

By Manny Garcia, Ana Acle And Paul Brinkley-Rogers.

A day of apprehension turned into a joyous street party outside Elian Gonzalez's Miami home when news arrived that he can stay in the United States for now.

Many people jumped joyfully into the air. Others knelt in silent prayer. Neighbors walked out their front doors and pumped their fists into the air.

As night fell, the crowds grew. Entire families arrived. A group of 300 happy, laughing celebrants broke into spontaneous renditions of Guantanamera -- led by a man with a guitar and another blowing a saxophone.

About 8:30 p.m., Elian came outside. Looking startled and dazzled by the bright lights focused on the house by TV crews, he quickly went back inside.

The Rev. Francisco Santana was with Elian and his Miami relatives in their Little Havana home in the afternoon when the court's decision became public. He described the scene:

He was holding hands with Elian's great-uncles, Lazaro and Delfin Gonzalez, saying the prayer, ``Our Father.'' The phone rang -- and the tears began.

``Everyone in the house began to cry,'' Santana said. ``I told Elian: `Eliancito. We have to thank God.' He got on his knees and said, `Thank you, God.' ''

Elian's great-uncle Lazaro, who has steadfastly refused to hand the boy over to federal authorities, said he had always thought he would win.

``I always had faith,'' he told Miami City Commissioner Tomas Regalado. ``I know that we are on the right side of God.' ''

When Lazaro's daughter, Marisleysis, arrived at the house, she, Elian and Lazaro jumped onto the sofa in the dining room, and rolled around, hugging and crying.

``I had come here expecting to console them. But God is almighty,'' said Santana.

In the barricaded street outside, a 48-year-old man, Jorge Luis Leon of Miami, went skipping down the street like a little boy, shouting, ``He's staying! He's staying!''

Perspiring men embraced. Women cried. Uniformed teenagers, just freed from school, squealed with joy. A lone dissenting note -- a banner reading ``Send Elian to Cuba: the Taxpayers'' -- was dragged across the sky by a plane.

``I came here for Elian! I didn't expect him to stay!'' yelled Yoselyn Mendez, 17, a Miami High student.

The announcement -- relayed by cellular phone, by radio, by word-of-mouth -- inspired moments of giddy madness.

Milly Collado, 36, was picking up her children -- Melissa, 10, and Alfredo, 12 -- from school. ``We said, `This is victory, so let's come out and join this victorious day,' '' said Collado, who came from Cuba when she was 2.

``The first thing we did was buy a Cuban flag,'' she said. ``We're going to pick up Daddy and come back out here. This has brought the community together . . . just one big family.''

Mauro Suazo, 44, brought his daughter, Carolina, 10.

``We're happy to know we've won a little bit of time for Elian,'' said Suazo. ``I'm here so my daughters know you should fight for your rights.''

Gustavo Reina, 65, said he cried. ``We're here to be on the side of justice and today we've seen justice in the United States,'' said the former political prisoner. ``The emotion of it makes my eyes fill with tears.''

When Miguel Saavedra, leader of the exile group Vigilia Mambisa, arrived with a bottle of champagne, it was a sign that the celebration would get louder.

The crowd chanted in Spanish, ``Long Live Christ the King!''


There were some familiar faces at the party.

Armando Gutierrez, spokesman for the Gonzalez family, ran into activist Ramon Saul Sanchez near the house. The two men stood in the middle of the street, hugging and crying.

``It's a small victory,'' Gutierrez said. ``We have a fighting chance.''

Sanchez said, ``I love this child.''

Miami Mayor Joe Carollo also was swept up in the emotion. Black-clad Mothers Against Repression, who have joined hands in daily prayer circles in front of Elian's house, embraced him.

Carollo declared, ``We are a country of laws, unlike Cuba, an outlaw country.''

Miami-Dade County Mayor Alex Penelas, who also joined the celebration, said of the ruling, ``I think it recognizes what a lot of people have been saying for a while now -- that this boy has certain due process rights that should be respected.

Herald staff writers Karen Branch, Tyler Bridges, Don Finefrock and Herald writer Mireidy Fernandez also contributed to this report.

Journalists gripped by passionate issues, too

Terry Jackson.

CNN on Wednesday turned its cameras on four South Florida television journalists covering the Elian Gonzalez saga and asked them to dissect their coverage.

What resulted was an hourlong round table discussion that showed news people are grappling with the same passionate issues that have divided the rest of South Florida. The session will likely be distilled into a 7-10-minute segment to air on CNN's Newsstand program tonight at 10, although it could get bumped by breaking news to Monday night.

``You bring to the table your values and beliefs,'' Rick Sanchez, WSVN-Fox 7's news anchor, told CNN's John Zarella.

Sanchez said that as a Cuban American, he can't help but identify with the issues surrounding custody of Elian. ``It's an insight you have to take advantage of to make sure the Cuban perspective is appropriately covered,'' he said.

WTVJ-NBC 6 Senior Correspondent Ike Seamans, who has done network duty in Israel and the former Soviet Union, said, ``It's the most polarizing story I have ever covered.''

Seamans and Sanchez were joined in the discussion by WFOR-CBS 4 anchor Eliott Rodriguez and WPLG-ABC 10 political reporter Michael Putney. CNN said that Univision and Telemundo's Miami stations declined to participate in the show, which was taped in Club Tropigala at the Fontainebleau Hilton in Miami Beach.

The group took exception to the depth and tone of some national reports out of Miami.

``For us locally this is a much more complex story than simply a child custody case,'' Putney said.

Rodriguez said he sees a bias in some network reports: ``Cuban Americans are not getting a fair shake in the national media. We're looked upon as a bunch of wild-eyed fanatics.''

Reno rejects comparisons with Waco, 1980 riots

BY FRANK DAVIES Herald Washington Bureau

WASHINGTON -- For Janet Reno, efforts to force the unification of Elian Gonzalez and his father got tougher Wednesday. Ironically, it happened April 19, the anniversary of her most harrowing days as attorney general.

Although the 11th U.S. Circuit Court of Appeals in Atlanta didn't order that the 6-year-old be handed over to his father, Juan Miguel, as the government had asked, Reno noted that the decision dealt solely with an asylum claim, not with who has custody of the boy.

``We are going to take and consider all our options, and take the course of action that we deem appropriate under the circumstances,'' said Reno upon arrival in Oklahoma City for a memorial service marking the fifth anniversary of the terrorist bombing.

Earlier, during a briefing before the ruling, she responded to criticism that she has been indecisive or moved too slowly:

``If the criticism of me is that Im trying to avoid violence, if the criticism of me is that Im trying to avoid that little boy being hurt or being snatched in a way that can scar him further, I plead guilty.''

Wednesday was also the anniversary of the 1993 use of force at Waco she approved during her first month on the job. Reno dismissed any facile parallels: The Elian standoff was not Waco, and it wasnt the Miami riots of 1980.

The Elian custody dispute is unique, she said, and she is determined to ``minimize the chances for violence.''

``There may come a time when there is no alternative'' to using force to retrieve the boy, she said, ``but weve got to do it in a thoughtful, careful way.''

Reno was asked about the impact of Waco, the Montana Freemen case -- a standoff with militia members that ended peacefully -- and the riots in Miami 20 years ago.

``In all these situations you try to draw from experience, but each case is different,'' she said.

She rejected a comparison between the Elian saga and Waco, the standoff with the Branch Davidians.

``In Waco, you had people who not only defied the law but killed people in the process. Theres a lot of difference.''

As for the Miami riots that followed her offices failure to win a conviction in a police brutality case, she said curtly: ``Ive never felt responsible for riots.''

While Reno has avoided a confrontation over Elian, she also spoke forcefully about the need to reunite father and son -- and do it soon.

Reno also said the videotape of Elian released by the Miami relatives ``made me very sad. It is so important that all of us turn off the TV lights, stop writing in your papers, start thinking about a little boy and getting his life to some permanent resolution.''

Ruling of the U.S. Court of Appeals, 11th Circuit

Elian Gonzalez (``Plaintiff''), a 6-year-old child from Cuba, has made his way to the United States. Plaintiff, as an alien, submitted an application for asylum . . . to the Immigration and Naturalization Service (``INS''). His father asked, in effect, that the application be withdrawn. After an investigation, the INS -- deciding that Plaintiff could not apply for asylum himself and that, under the circumstances, only his father could seek asylum on Plaintiff's behalf -- concluded that there was no reason not to honor the father's request and, accordingly, refused to consider Plaintiff's application. Plaintiff then brought suit in federal district court challenging on several grounds the INS's refusal to consider his application. The district court rejected Plaintiff's claims.

Plaintiff has appealed the district court's decision to this Court. His appeal is scheduled to be argued orally next month. Plaintiff, however, now moves for an injunction ``to preclude [Plaintiff's] physical removal from the jurisdiction of the United States during the pendency of this appeal.'' We conclude that Plaintiff is entitled to such an injunction and grant the motion.

In considering a motion for injunction pending appeal, we examine four factors: (1) whether the movant is likely to prevail on the merits of his appeal; (2) whether, if we do not issue an injunction, the movant will suffer irreparable harm; (3) whether, if we issue an injunction, any other party will suffer substantial harm; and (4) whether an injunction would serve the public interest, See In re. Grand Jury Proceedings (11th Cir. 1992). Although the first factor is generally the most important, the movant need not always show that he probably will succeed on the merits of his appeal. Garcia-Mir v. Meese (11th Cir. 1986). Instead, where the ``balance of the equities weighs heavily in favor of granting the [injunction],'' the movant need only show a ``substantial case on the merits.''

In this case, the balance of the equities weighs heavily in favor of enjoining the removal of Plaintiff from the U.S. pending appeal. And Plaintiff has made a ``substantial case on the merits'' of his appeal.


The equities, in this case, weigh heavily in favor of issuing an injunction pending appeal. Apart from concerns about what might happen to this child if he is returned to Cuba (which we do not address), if Plaintiff leaves the United States during the pendency of his appeal, his case will likely become moot. Our failure to issue an injunction pending appeal, therefore, could strip the Court of jurisdiction over this case and deprive Plaintiff forever of something of great value: his day in a court of law. That circumstance alone presents a significant risk of irreparable harm to Plaintiff.

In addition, we doubt that an injunction would harm the INS. Plaintiff has been in the United States for nearly five months. The INS refused to consider Plaintiff's application for asylum more than three months ago. The INS, however, has not sought to remove Plaintiff in the meantime from the United States. The suggestion that an injunction pending appeal, prohibiting the removal of Plaintiff from the United States until Plaintiff's expedited appeal is decided on the merits, will harm the INS is not compelling.

Nor do we believe that an injunction pending appeal in this case would offend the public interest. The INS, in opposition to Plaintiff's motion, invokes the well-established authority of the political branches of government in immigration affairs. We fully recognize the plenary power of Congress over immigration matters. See Jean v. Nelson (11th Cir. 1984). But we fail to see how an injunction in this case infringes upon the congressional power; after all, the heart of Plaintiff's appeal is that the INS by refusing to consider Plaintiff's asylum application has disregarded the command of Congress. And we doubt that protecting a party's day in court, when he has an appeal of arguable merit, is contrary to the public interest. We therefore, conclude that the equities weigh heavily in favor of granting an injunction pending appeal.


This case is mainly about statutory construction and the proper exercise of executive discretion. Among other things, we must ultimately decide what Congress meant when it said:

Any alien who is physically present in the United States or who arrives in the United States . . . irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

Plaintiff argues that the INS's refusal even to consider his application violates 8 U.S.C. 1158(a). The INS contends that, because Plaintiff is a 6-year-old child, he is incompetent to submit an application on his own behalf and that, on the facts of this case, he must have his father submit the application for him. Because his father did not do so, the INS contends that Plaintiff never actually applied for asylum and that, therefore no application exists for its consideration. Even accepting as we do the principles of deference set out in Chevron v. Natural-Resources Defense Council Inc. (1984), we at this time have doubt, in the light of the record and Plaintiff's arguments on appeal, about the correctness of the INS's interpretation of section 1158.

In considering an agency's interpretation of a statute, we first must examine the plain meaning of the pertinent statutory language: ``If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.'' Chevron (1984). The statute in this case seems pretty clear. Section 1158(a)(1) provides that ``any alien irrespective of such alien's status, may apply for asylum.'' Plaintiff appears to come within the meaning of ``any alien.'' And the statute plainly says that such an alien ``may apply for asylum.'' We, therefore, question the proposition that, as a matter of law, Plaintiff (unless his father consents) cannot exercise the statutory right to apply for asylum.

Congress's provision for ``any alien'' is not uncertain in meaning just because it is broad. See Pennsylvania Dept. of Corrections v. Yeskey, (1998). If Congress had meant to include only some aliens, perhaps Congress would not have used the words ``any alien.'' In addition, although the INS has the authority to issue regulations and procedures governing the submission of asylum applications, the INS cannot properly infringe on the plain language of the statute or the clear congressional purpose underlying it. See Shoemaker v. Bowen (11th Cir. 1988). Nor can the INS properly narrow the scope of a statute through regulation. See Ellis v. General Motors Acceptance Corp. (11th Cir. 1998). At this time, we cannot say that ``any alien'' excludes Plaintiff: given the plain language of the statute, he might be entitled to apply personally for asylum. Furthermore, it seems unclear that an INS decision to treat Plaintiff's application as a nullity without an adjudication on the merits is a ``procedure for the consideration of [Plaintiff's] asylum application.''

Not only does the plain language of the statute seem to support Plaintiff's argument that he, despite his age, is entitled to apply personally for asylum, the present regulatory scheme created by the INS also seems to strengthen Plaintiff's position. The existing INS regulations do envision situations where a minor may act on his own behalf in immigration matters. Moreover, the regulations contemplate that a minor, under some circumstances, may seek asylum against the express wishes of his parents. Also, the INS Guidelines for Children's Asylum Claims envision that young children will be active and independent participants in the asylum adjudication process.

The INS has not pointed to (nor have we found) statutory, regulatory or guideline provisions which place an age-based restriction on an alien's ability to apply for asylum. And we have found no preexisting requirement that a minor, in submitting an asylum application, must act through the representative selected by the INS.

Not only does it appear that Plaintiff might be entitled to apply personally for asylum, it appears that he did so. According to the record, Plaintiff -- although a young child -- has expressed a wish that he not be returned to Cuba. He personally signed an application for asylum.

Plaintiff's cousin, Marisleysis Gonzalez, notified the INS that Plaintiff said he did not want to go back to Cuba. And it appears that never have INS officials attempted to interview Plaintiff about his own wishes.

Even if the INS is correct that Plaintiff needs an adult, legal representative for his asylum application, it is not clear that the INS, in finding Plaintiff's father to be the only proper representative, considered all of the relevant factors -- particularly the child's separate and independent interests in seeking asylum. . . . It does not appear that the INS ever spoke to or interviewed Plaintiff before making this determination. And Lazaro Gonzalez, Plaintiff's great uncle, is no stranger to Plaintiff. The INS placed Plaintiff in Lazaro's care upon Plaintiff's arrival in this country, and Lazaro is a blood relative. When Lazaro submitted applications for asylum on Plaintiff's behalf, Lazaro was the INS's designated representative to take care of Plaintiff and to ensure his well-being. Lazaro's interests, to say the least, are not obviously hostile to Plaintiff's interests. So, for now, we remain unconvinced that the asylum application submitted by Lazaro on behalf of Plaintiff necessarily was ineffectual under the law.

For these reasons and in these circumstances, we believe that Plaintiff has presented a substantial case on the merits.


By its nature, this Order sets out more questions than answers. We have not attempted to address every point advanced by both sides, but we have attempted to explain our decision to grant the injunction. No one should feel confident in predicting the eventual result in this case.

The true legal merits of this case will be finally decided in the future. More briefing is expected. We intend to hear oral argument. We need to think more and hard about this case for which no sure and clear answers shine out today. Still, because of the arguments presented as well as the potential inconsistencies of the INS's present position with the plain language of the statute and with the INS's own earlier interpretations of the statute in INS regulations and guidelines, and because of the equities in this case, we conclude that Plaintiff is entitled to an injunction pending appeal.

Therefore, it is ordered that:

(1) Plaintiff, Elian Gonzalez, is enjoined from departing or attempting to depart from the United States;

(2) Any and all persons acting for, on behalf of, or in concert with Plaintiff, Elian Gonzalez, are enjoined from aiding or assisting, or attempting to aid or assist, in the removal of Plaintiff from the United States;

(3) All officers, agents, and employees of the United States, including but not limited to officers, agents, and employees of the United States Department of Justice, are enjoined to take such reasonable and lawful measures as necessary to prevent the removal of Plaintiff, Elian Gonzalez, from the United States.



U.S. Court of Appeals Eleventh Circuit decision: Complete documents

Perilous choices confront Reno after court loss

By David Kidwell And Frank Davie.

Attorney General Janet Reno's tough choices got even tougher on Wednesday, Justice Department insiders say.

Elian Gonzalez's Miami relatives have no reason to negotiate after a favorable court ruling, they said. Any effort now to keep Reno's promise of a speedy reunion with the boy's father could be perceived as heavy handed, in light of a court ruling Wednesday that cast doubt on the final outcome of the high-profile custody case.

The ruling ordered that Elian remain in the United States until court appeals of the political asylum bid on his behalf are exhausted, but the court skirted the issue of who should have custody of the boy.

That decision belongs to Janet Reno.

She can either wait and keep trying for a negotiated end that likely will never come, or she can send U.S. marshals to take the boy and carry him through a crowd of emotional protesters whose hopes for Elian's life of freedom in the United States have once again been buoyed.


For Reno, this case has become more risky and more volatile. Even those close to her disagree on what she might do.

Some involved in the case speculate she will keep her promise to the father and move to take the child.

Others say there is more reason now for Reno to continue her ``measured and thoughtful'' approach. The stakes are too high in Miami, they say, for Reno to be perceived as thumbing her nose now.

Four Justice Department sources involved in the case -- all couching their comments as speculation -- have widely different views on how the case may play out in the next few days.

``This [court decision] just took the wind out of our sails for those of us who wanted prompt enforcement,'' said one high-level Justice Department source.

Said another: ``The negotiations are over, and she knows it. And she has said all along she intends to enforce the law. I don't think she can back down now just because of incorrect perceptions of people in Miami.''

Here's the case being made within the Justice Department for promptly removing Elian from the custody of his Miami relatives:

Negotiations with the Miami family have stalled, and Wednesday's court ruling is likely to prompt them to dig in even deeper.

Reno still sincerely believes Elian belongs with his father. She has promised Juan Miguel Gonzalez, and she believes the law is behind her.

Wednesday's court ruling does not preclude the reunion but orders only that the child remain in the United States -- an order his father has agreed to honor.

If Elian's wishes are to be considered at a future asylum hearing, a few weeks with his father in Washington could help reestablish their emotional ties.

Here's the case within the Justice Department for waiting and trying to reopen negotiations:

For months, Reno has taken a ``measured and thoughtful'' approach to avoid a confrontation. Why change course now?

With the court's ruling, Reno's position is weakened. It is now more conceivable Elian's Miami relatives will prevail. Reno does not want to be perceived as being at cross purposes with the courts.

Champagne corks are popping in Miami after a short-term victory. To take the boy through that crowd now would be perceived as more of an affront than a week ago when the family seemed almost resigned to defeat.

Reno has canceled a trip to Montana on Thursday for a ceremony with Cheyenne Indians, and intends to use that time in a strategy session with top advisors.

``I think it is very premature to speculate either way,'' said one high-level federal source involved in the case. ``The wording of that ruling was a bit surprising to all of us, but she remains committed to enforcing the law.''

Copyright 2000 Miami Herald


© 2000 Mobile Register. Used with permission.


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