Chicago Tribune, April 20, 2000. James C. Hathaway. James C. Hathaway is the author of "The Law of Refugee Status" and a professor of law.
A federal appeals court in Atlanta ruled Wednesday that Elian Gonzalez should not be removed from the United States, at least until his case is considered by the court on May 11. This decision was a critical victory for the rights of children and for the integrity of our refugee system.
The central issue in the appeal is whether U.S. Atty. Gen. Janet Reno had the right to deny Elian an asylum hearing. While Elian probably will be safe in Cuba, the way the U.S. Justice Department handled his case sets a dangerous precedent for thousands of other unaccompanied children who arrive
in the U.S. each year. The government has argued--and convinced the judge whose decision is under appeal--that there is no need for a hearing into the protection needs of children before they are deported.
Arguing the importance of family reunification, the commissioner of the Immigration and Naturalization Service concluded Elian should be sent back to Cuba. The commissioner's decision failed to mention another fundamental principle of immigration law--namely, the duty never to send back an
illegal immigrant to face the risk of persecution. Backed by Reno, the INS has refused to allow an asylum adjudicator to even hear the facts of Elian's case.
In the court challenge launched by Elian's Miami relatives, Judge Michael Moore ruled that because Elian, like other young children, cannot articulate his desire to be protected, there is no obligation to hold an asylum hearing. This decision portrays refugee status as something akin to
membership in a club. Because Elian cannot "apply" for asylum, we must defer to the wishes of the party responsible for the boy's contractual obligations--namely, his father.
But refugee status is not something one applies for. A person who is outside his or her own state, and who is genuinely at risk of persecution there by reason of who they are or what they believe, is a refugee. An asylum hearing in the U.S. or elsewhere does not "make" a person a
refugee. As the UN high commissioner for refugees insists, an individual "does not become a refugee because of recognition, but is recognized because he is a refugee."
Thus, Elian Gonzalez already either is--or is not--a refugee. Nothing the U.S. does or fails to do will change that. And if we send him back to Cuba without inquiring into his status, we breach U.S. and international law.
The most widely accepted human-rights treaty in the world--the Convention on the Rights of the Child--requires governments to protect the rights of refugee children, whether or not accompanied by their parents. It recognizes that the frequent inability of child refugees to express their need for
protection calls for intensified efforts by states to inquire into their circumstances before deportation.
Of course, Elian's father, Juan Miguel Gonzalez, also has rights. It normally makes good sense for parents and children to be reunited. But not always. In the domestic arena, for example, we would not hesitate to remove a child from an abusive parent. Nor would we leave a child with a parent who
is unwilling or unable to protect a child from serious harm by others {ndash} for example, if the child's mother were unwilling to leave a relationship with a man who poses a risk to her child's safety. Why should the same logic not apply in refugee cases? If Juan Gonzalez simply cannot protect his
son from serious forms of harm in Cuba--even though he would want to do so--then why should his wishes prevent us from adjudicating Elian's need for protection?
My point is not that Elian would be at risk in Cuba, nor that we should separate him from his father. Given his newfound fame, chances are that life in Cuba would present few problems for him. But the willingness of the U.S. attorney general to short-circuit the usual rules of asylum law because
of Elian's age is profoundly disturbing. If Judge Moore's decision is allowed to stand, we can expect to see many young children summarily deported from the U.S. with no questions asked, as was the case for two Haitian boat children, aged 8 and 9, who were immediately removed upon arrival in the
U.S. on Jan. 1.
The principled answer to Elian's case is for him, and other unaccompanied children, to benefit from disinterested legal advice and representation in our usual asylum procedure. Parental rights should be respected, not treated as absolute. Children can be refugees and are entitled to the law's
full protection. |