MSNBC. May 22, 2000
What is the law in the Elian Gonzalez case?
Questions & Answers [prepared by FAIR Staff Attorney Mike Hethmon]
FAIR is the Federation for American Immigration Reform and these answers do not necessarily reflect the views of NBC 6.
Question 1: What was the legal status of Elian when the fisherman found him floating off Florida in November 1999?
Answer: Elian was an alien who had not been admitted to the United States.
U.S. immigration law is found in the Immigration and Nationality Act (INA). The general rule is found in INA §212(a)(6)(A)(i): "Any alien present in the United States without being admitted or paroled, or who arrives in the United States without being admitted or paroled, or who
arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.
Under INA §235(a)(1), Elian was only an applicant for admission who was "brought to the United States after having been interdicted at sea in international or United States waters." (i.e. taken into custody by the Coast Guard from the fishermen who found him.)
Question 2: How do our immigration laws treat an "inadmissible alien" like Elian?
Answer: INA §236(a) gives the Attorney General the power to arrest and detain an inadmissible alien "pending a decision on whether the alien is to be removed from the United States." Except for certain criminal and terrorist aliens, the Attorney General has discretion to (1) "continue
to detain the arrested alien," (2)(A) release the alien on bond, or (2)(B) release the alien on conditional parole.
Parole is "an act of extraordinary sovereign generosity, since it grants temporary admission into our society to an alien who has no legal right to enter… " Jean v. Nelson, 727 F.2d 957, at 972 (11th Cir. 1984).
INA § 213(d)(5)(A) gives the Attorney General discretion to "parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United
States, but such parole... shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith... be returned to the custody from which he was paroled and thereafter his case shall continue
to be dealt with in the same manner as that of any other applicant for admission to the United States."
Question 3: What does "at the discretion of the Attorney General" mean?
Answer: Using its constitutional plenary power over immigration matters, Congress has made "sweeping ... delegations of authority over immigration matters to the Attorney General. Where Congress fails to provide specific standards, the Attorney General may rely on any reasonable
factors." U.S. v. Shaughnessy, 353 U.S. 72, at 78 (1957).
The Attorney General has exercised her discretionary powers at least three times in this case. First, when Elian was "paroled" for humanitarian reasons into the temporary care of his Miami relatives on November 26.
The second occasion was the return of the asylum application submitted by Lazaro Gonzales. In his March 2000 order, U.S. District Judge Moore found that, considering the November 27, 1999 letter from Juan Gonzalez requesting his son be returned to Cuba, and the subsequent interviews by the
INS in Havana in December 1999 to seek evidence that he might not be speaking freely, the Attorney General had "correctly exercised her discretionary authority" by determining that neither Elian Gonzalez nor Lazaro Gonzalez as guardian ad litem "could apply for asylum [on behalf of
Elian] in direct opposition to the expressed wishes of his father." Memorandum of INS General Counsel to INS Commissioner Meissner dated Jan. 3, 2000.
Finally, the Attorney General exercised her discretionary authority, as delegated to the INS District Director per INA §103, when she revoked Elian’s parole status on April 12, 2000.
Question 4: Was Lazaro Gonzalez and his family given legal custody of Elian?
Answer: No. Lazaro Gonzalez was given temporary custody by the INS not legal guardianship. No evidence has appeared that would indicate that Lazaro executed a required agreement of care. Elian’s father Juan Gonzalez never executed a sworn affidavit required to "parole" Elian
from the custody of the INS into the temporary care of the Miami relatives.
After Elian arrived in Miami, he was brought to a hospital by the Coast Guard, where he was taken into custody by the INS. After a medical inspection, Elian was granted a "temporary deferral of inspection," also called a "parole" on November 25, 1999, for humanitarian
reasons.
Federal regulations (8 CFR 236.3(b)(1)(i) allow for the release of a juvenile "... for whom parole has been authorized..." However, these regulations require that first preference for release of a juvenile is to "a parent."
The regulations (8 CFR 236.3(b)(3) specify that, "In cases where the parent or legal guardian is ...outside the United States, the juvenile may be released to such person as is designated by the parent or legal guardian in a sworn affidavit, executed before an immigration officer or
consular officer, as capable and willing to care for the juvenile’s well-being. Such person must execute an agreement to care for the juvenile and to ensure the juvenile’s presence at all future proceedings before the Service or an immigration judge." This provision did not apply to
Elian’s case for two reasons. First, Elian’s father made no such designation, and, second, Elian’s Miami relatives apparently executed no such agreement. Subsequent unsuccessful efforts by the INS to obtain such a commitment from Lazaro suggest that this procedural requirement that
governs temporary custody was absent.
In the midst of the publicity surrounding the discovery of Elian’s mother and the other adults who had drowned off the Florida coast, INS allowed Lazaro Gonzalez to assume care of Elian on November 26, but apparently without the written acknowledgement required by the regulation. On
November 27, Elian’s father Juan Gonzalez, who had been located in Cuba, requested in writing that Elian be returned to him in Cuba.
On January 7, 2000, Lazaro Gonzalez filed a petition in Florida Circuit Court, Miami-Dade County Family Division, seeking temporary custody of Elian. The state court granted Lazaro a Temporary Protective Order on January 10, on an emergency ex parte basis, pending service of process on Juan
Gonzalez and a hearing. A Final Order dismissing the petition for lack of subject matter jurisdiction was issued on April 13. Gonzalez v. Gonzalez, No. 00-0049-FC-28. (FL 11th Jud.Cir., 2000).
When the INS Miami District Director revoked Elian’s parole on April 12, he ended Elian’s temporary admission into the U.S. and also terminated any legal basis for Lazaro to claim custody of Elian.
Question 5: Why can’t Elian sue in court to stay in America with his Miami relatives?
Answer: Elian does not have the legal capacity to sue or take other legal actions because he is only six years old. Under almost all systems of justice, including the jurisdictions of Florida state and Cuba, only a parent can speak on behalf of a child, absent evidence of abuse or a proven
conflict of interests.
Federal Rule of Civil Procedure 17(b), Capacity to Sue, states, "The capacity of an individual, other than one acting in a representative capacity, to sue or be sued, shall be determined by the law of the individual’s domicile."
In the 11th Circuit Court of Appeals, which includes Florida, domicile is defined as the place where a person takes up residence with the intention to remain in that place. Melian v. INS 987 F.2d 1521 (1993). Under both Florida and Cuban law, the two possibilities for Elian’s domicile,
a six year old child lacks legal capacity to sue.
Under Cuban law, the Cuban Family Code provides that children "are under the patria potestas of their parents." Codigo de familia, Articulo 82, Ley de 14 Febrero 1975.
Parents have the right and duty of "representing their children in every judicial action ... in which they are involved..." Articulo 85(5). Children six years old lack the legal capacity to bring lawsuits. Articulos 29.1 and 31(a).
Under Florida law, a "minor" is any person under age eighteen. Fla. Stat. Ann. 1.01(13). By statute, minors are under a "disability of nonage." Fla. Stat. Ann. 743.07(1).
One consequence of this legal disability is an incapacity to sue. Kingsley v. Kingsley 623 So.2d 780 (Fla. 5th DCA 1993).
INS regulations generally assume that a child under the age of 14 will not make representations or other immigration decisions without the assistance of a parent or legal guardian. 8 CFR 103.2(a)(2).
Question 6: If Elian can’t sue, why can’t his Miami relatives apply for asylum on his behalf?
Answer: Elian cannot apply for asylum because he does not have the legal capacity to do so. The Attorney General has determined that Elian’s father Juan Gonzalez - not the Miami relatives – is the only proper person to apply on behalf of the child. His father has expressly declined
to do so.
On December 11, 1999, an asylum application signed by Lazaro Gonzalez was submitted to the INS. A second application, identical except that it was submitted with Elian’s printed name (in place of Lazaro’s signature), was filed shortly thereafter. On January 5, 2000 the INS returned
the applications to the attorneys representing
Lazaro Gonzalez as invalid. The attorneys then asked the Attorney General to determine whether the INS had properly followed its own procedures. On January 11, Lazaro filed a third identical asylum application, but in his own name as Elian’s "next friend." That term is used
for a person who appears in court to act for an incompetent or minor plaintiff, but is not a party himself, and does not have legal custody. The Attorney General responded on January 12 that Elian was not competent to demonstrate the required intention to apply for asylum, and that "under
universally recognized legal norms" Elian’s father was the proper "next friend."
Lazaro Gonzalez then sued the INS in federal court on January 26, challenging the Attorney General’s determination.
Another avenue to represent a minor who lacks "legal capacity" to speak on his own behalf in federal court would have been to be appointed a guardian ad litem by the court. Fed.R.Civ.Pro. 17(c). Unlike a "next friend," a guardian ad litem is appointed by the court and has
the highest legal duty of care for a minor or incapacitated person.
It is well-settled law that parents have a fundamental liberty and privacy interest in the care and custody of their children. Meyer v. Nebraska, 262 U.S. 390 (1923).
Personal choice in matters involving family life is also a fundamental liberty interest of a parent. Santosky v. Kramer 455 U.S. 745, at 753 (1981). That weighty parental interest does not disappear merely because parents have temporarily lost custody of their child. Polovchak v. Meese, 774
F.2d 731 (7th Cir. 1985).
After the removal of Elian from Lazaro’s Miami residence on April 22, Lazaro asked the 11th Circuit to recognize him as guardian ad litem, grant the Miami relatives visitation rights, and order medical and social evaluations of Elian. At the same time, Juan gonzalez formally intervened
in the 11th Circuit proceedings for the first time, asking the court to appoint his attorney, Gregory Craig, as "next friend." In a second temporary order, the court denied Lazaro’s motions. Juan Gonzalez was permitted to intervene in the proceedings as a named party. However, the
appellate judges have taken no action on the motion to substitute Craig for Lazaro Gonzalez as next friend.
To do so would terminate Lazaro’s standing to maintain the litigation.
The American common law rule is that the parent "stands in court as the real party in interest upon his natural right of parent." Lehmen v. Lycoming county Children’s Services Agency, 458 U.S.502, at 524 (1982). To successfully challenge Juan Gonzalez’ fundamental right
to the custody of his child, or to resist the motion to designate the father’s attorney as Elian’s "next friend," Lazaro Gonzalez must show the court that either that Juan is an abusive or violent parent, or that his interests are in conflict with Elian’s.
Question 7: Didn’t the Appeals Court in Atlanta rule that the "plain meaning" of the law allowed "any person" to apply for asylum?
Answer: The 11th Circuit U.S. Court of Appeals has granted a temporary injunction preventing Elian from departing the U.S. pending an appeal on May 11th. The court granted the injunction in part because Lazaro Gonzalez had presented a "substantial case on the merits" as to whether "any
person" could apply for asylum.
Gonzalez v. Gonzalez, No. 00-11424-D (11th Cir. April 19, 2000).
INA §208(a) states the general rule: "Any alien who is physically present in the U.S. or who arrives in the U.S. (… including an alien who is brought to the U.S. after having been interdicted in international or United States waters), irrespective of such alien’s status,
may apply for asylum in accordance with this section."
INA §208(b) states three exceptions to the general rule: Aliens who (1) may be removed by agreement to a safe third country, (2) have not filed an asylum application within one year after arrival in the United States, or (3) have previously applied and been denied, are ineligible to
apply for asylum.
A federal court must review the interpretation of a statute by an administrative agency using a two-part test created by the U.S. Supreme Court. Chevron U.S.A. Inc. v. National Resources Defense Council, 476 U.S. 837, at 842 (1984). If "Congress has directly spoken to the precise
question at issue," the court must "give effect to the unambiguously expressed intent of Congress." However, if the statute was "silent or ambiguous with respect to the specific issue," the court must defer to the federal agency’s "reasonable interpretation."
The court may not search for the "best possible construction of the statute", but must respect the policy-making responsibility of the agency (in this case, the INS).
The District Court decision held that the asylum provision at INA §208 was both silent and ambiguous. The class of aliens concerned - young children - were not mentioned. If Congress intended §208(a) to apply literally to any alien, it would not have enacted INA §242(b)(4)(D),
which makes "the Attorney General’s discretionary judgement whether to grant [asylum] under section 208(a) … conclusive unless manifestly contrary to the law and an abuse of discretion." The inclusion of the three exceptions in INA § 208(b) also makes it internally
contradictory to interpret the phrase "any person" literally. Gonzalez v. Reno, No. 00-206-CIV-MOORE (S.D. FL, March 2000).
Question 8: Doesn’t the government’s position that Elian lacks the capacity to apply for asylum deny the boy his constitutional rights to due process?
Answer: The right to procedural due process under the 5th Amendment only applies to constitutionally protected interests. Without proof of a deprivation of a protected interest, there can be no denial of due process. "A constitutionally protected interest cannot arise from relief that
the executive [branch] has unfettered discretion to award." Conn. Board of Pardons v. Dumshat, 452 U.S. 458 at 465 (1981).
"The parole of aliens seeking admission is simply a device through which needless confinement is avoided while administrative proceedings are conducted. It was never intended to affect an alien’s status." Leng May Ma v. Barber 357 U.S. 185 at 188 (1958). "An alien seeking
initial admission to the United States requests a privilege and has no constitutional rights regarding his application..." Landon v. Plascencia, 459 U.S. 21 at 32 (1982). Specifically, "the asylum provisions established by Congress do not create any constitutionally protected interests."
Jean v. Nelson, 727 F.2d 957, at 984 (11th Cir. 1984).
Some commentators have suggested that the extraordinary attention given to the legal and factural aspects of this case by the INS, the Department of Justice, and the department of State provided far greater de facto procedural protection and review of Elian’s substative claim for asylum
than has been accorded to almost any other non-admitted alien in recent memory.
Question 9: If Elian were allowed to apply, wouldn’t asylum probably be granted, since Cuba is a communist dictatorship?
Answer: Asylum can be granted if an applicant is physically present in the United States and meets the definition of "refugee." A refugee is defined as … "any person who is outside any country of such person’s nationality … and who is unable or unwilling to
return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race religion, nationality, membership in a particular social group, or political opinion." INA §101(a)(42).
To obtain asylum, the alien must show both a subjective fear of persecution, and a credible objective basis for that fear. The applicant must also demonstrate a "reasonable possibility that he will be persecuted." INS v. Cardoza-Fonseca, 480 U.S. 421, at 438 (1987).
"Any alien physically present in the United States ... irrespective of such alien’s status, may apply for asylum..." INA 208(a)(1). However, "the Attorney General’s discretionary judgment whether to grant relief under [INA 208] ... shall be conclusive unless
manifestly contrary to the law and an abuse of discretion." INA
242(b)(4)(D).
The Attorney General used the following reasoning to reject Elian’s application. Bo Cooper, INS General Counsel, Memorandum for Doris Meissner, 10-11 (Jan. 3, 2000):
Even though Elian lacks legal capacity to raise an asylum claim on his own behalf, the INS would be obliged to consider the claim if "objective information demonstrates that there is an independent basis for asylum."
The three asylum applications submitted on behalf of Elian were based on three grounds.
1.The application claimed that members of Elian’s family in Cuba had suffered persecution because of political opinion in the past, and cited detention of Elian’s stepfather, imprisonment of his great-uncle, and harassment of his mother by the Communist Party.
2.It was claimed that Elian has a well-founded fear of political exploitation, because of a political opinion that will be imputed to the boy by the Castro regime. The resulting exploitation, it was claimed, would result in severe mental anguish.
3.The severe mental anguish would, according to the asylum application, constitute torture, which would prohibit Elian’s return to Cuba under the Convention Against Torture, to which the U.S. recently became a party.
The Supreme Court has ruled that applicants for asylum based on political opinion must show that the persecutors were motivated by the applicant’s own opinions. INS v. Elias-Zacharias, 502 U.S. 478 (1992). The INS General Counsel concluded that there was no objective basis to claim –
even if Elian’s relatives in Cuba had been persecuted – that Elian himself would therefore be persecuted on account of any protected ground. The possibility of "political exploitation" did not create a valid asylum claim, because there was no objective evidence presented that the
Castro regime imputed any political opinion whatsoever to six-year old Elian. Finally, the General Counsel wrote that it was "purely speculative" to assert that "political exploitation" would be sufficiently severe to constitute intentionally inflicted torture, as defined in
federal regulation 8 CFR 208.18(a).
As to the subjective "well-founded fear" element of an asylum, INS General Counsel argued that Elian does not have "the capacity to form a subjective fear of persecution on account of a protected ground."
Question 10: Was removal of Elian from Lazaro’s house by force illegal?
Answer: No. The INS revoked Elian’s parole on April 12. Revocation of parole terminated Elian’s temporary admission to the United States. At this point, the boy was an illegal alien. On the same date, the INS District Director ordered Lazaro to turn over physical custody of Elian
to the INS at Opa Locka Airport on April 13 at 2:00 p.m. After Lazaro failed to do so, his continued control of Elian became unlawful. On April 14, the INS Executive Associate Commissioner for Field Operations sent a second letter to Lazaro, informing him that his actions were unlawful.
Upon the request of a federal law enforcement officer, a warrant may be issued by a federal magistrate judge to search for, and seize any person for whose arrest there is probable cause, or who is unlawfully restrained. Federal Rule of Criminal Procedure 41(b)(4). Where a child is being held
unlawfully, the situation is analogous to retention of custody by a parent when a court has ordered custody transferred to another individual. Here the courts have found probable cause to conduct a warrantless search, since the victim of an unlawful detention is not "seized" for 4th
Amendment purposes when removed from the premises by police action.
INS officers have the power without warrant to conduct a search or to "arrest any alien in the United States, if [there is] reason to believe that the alien … is in the United States in violation of any such law or regulation [regulating the admission of aliens].…" 8
U.S.C. 1357(a),(c). Border patrol officers, INS special agents and immigration inspectors are authorized to use non-deadly or deadly force "when the officer has reasonable grounds to believe that such force is necessary." 8 CFR 287.8(a)(1)-(2).
The INS specifically requested and was granted authority to execute the search and seizure during nighttime hours due "in order to meet the least amount of resistance from any crowd…, to ensure the safety of Elian Gonzalez, and to protect the officers executing the warrant."
Question 11: Doesn’t Elian qualify for special privileges because he is a Cuban?
Answer: Since 1966, Cubans have received preferential treatment not available to any other nationality, under the Cuban Adjustment Act, 8 USC 1255 note 2 (b) (CAA). According to the CAA, "...the status of any alien who is a native or citizen of Cuba and who has been inspected and
admitted or paroled into the United States subsequent to January 1, 1959, and has been physically present in the United States for at least one year, may be adjusted by the Attorney General, in his discretion... to that of an alien lawfully admitted for permanent residence, if the alien makes an
application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence."
However, §4 of the CAA reads, in relevant part, "Nothing contained in this Act shall be held to repeal, amend, alter modify, affect or restrict the powers, duties, functions, or authority of the Attorney General in the administration and enforcement of the Immigration and
Nationality Act, or any other law relating to immigration, nationality, or naturalization."
In other words, the opportunity for Cubans who arrive illegally in the United States to adjust their status to legal resident after one year’s residence is discretionary.
Illustrative of the discretionary nature of that provision, under a 1994 executive agreement with Cuba, President Clinton interpreted the Act to apply only to Cubans who reach dry land in U.S. territory, and that Cubans interdicted at sea would be considered inadmissible and returned to
Cuba, unless they showed a prima facie case for asylum.
Even if Elian were to remain in the United States in parole status until November 25, 2000, he would not be able to apply for a green card for the same reason that he cannot apply for asylum, i.e., he lacks the legal capacity to apply for permanent resident status unless the court strips his
father of his parental custodial rights.
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