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What Little Elian Taught US
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The prolonged effort to keep Elian Gonzalez in the United States has many lessons for all of us. Most of the articles about the little Cuban boy have so far focused on the political aspects of the case: i.e., U.S.-Cuba relations and the political clout of Cuban exiles in Miami. This article focuses on two issues raised by the litigation involving Elian: (1) the need to provide legal assistance to asylum seekers; and (2) the role of courts in reviewing agency decisions. Case Background The Elian Gonzalez saga began in November 1999, when Elian, then six years old, his mother, and 12 other Cubans all headed for Florida on a flimsy vessel. The boat capsized, and Elian’s mother and all but two of the others drowned. Elian survived. Two fishermen found him and turned him over to the U.S. Coast Guard, who in turn handed Elian over to the Immigration and Naturalization Service (INS). The INS released him to the temporary custody of Elian’s great-uncle, Lazaro, who was living in Miami. Lazaro and Elian’s other Miami relatives tried to keep Elian from being returned to his father, Juan Miguel, who originally remained in Cuba and insisted on Elian’s return. For the next few months, the legal battles raged in two parallel cases: an asylum application and a custody battle. Lazaro’s lawyers first completed and filed three asylum application for Elian, but the INS refused to accept them. Lazaro’s lawyers also tried to gain custody of Elian in Florida state court, which initially ordered that Elian not be removed from the court’s jurisdiction. In re Gonzalez, No. 00–00479 FC29, 2000 WL 419688 (Fla. Cir. Ct. Jan. 10, 2000). Meanwhile, on the asylum claim, a federal district court in Miami upheld the INS’s determination that a six-year-old was too young to file for asylum against his father’s wishes. Gonzalez v. Reno, 86 F. Supp. 2d 1167 (S.D. Fla. 2000). A few weeks later, the Florida state court dismissed Lazaro’s custody petition for lack of jurisdiction, reasoning that the case was a federal matter, and that state law did not permit a great-uncle to sue for temporary custody. In re Gonzalez, No. 00-00479–FC–28, 2000 WL 492102 (Fla. Cir. Ct. Apr. 13, 2000). Lazaro’s lawyers next appealed the federal district court’s asylum ruling to the Eleventh Circuit Court of Appeals in Atlanta. The Eleventh Circuit granted a temporary restraining order requiring Elian to remain in the United States pending resolution of the merits. Gonzalez v. Reno, No. 00–11424–D, 2000 U.S. App. LEXIS 7025 (11th Cir. Apr. 19, 2000) In the meantime, Elian’s father flew to the United States in an effort to regain custody of his son. In April 2000 the INS raided Lazaro’s house in Miami, seized Elian, and reunited him with his father. On June 1 the Eleventh Circuit held that the INS did not act arbitrarily in refusing to accept the asylum applications filed on Elian’s behalf. Gonzalez v. Reno, 212 F.3d 1338 (11th Cir. 2000). On June 23 the Eleventh Circuit denied the Miami relative’s petition for rehearing. Gonzalez v. Reno, 215 F.3d 1243 (11th Cir. 2000). Elian’s Miami relatives petitioned the Supreme Court to hear an appeal, but the Court refused. Gonzalez v. Reno, 147 L. Ed. 2d 1001, 2000 U.S. LEXIS 4490 (U.S. June 28, 2000). Elian returned to Cuba the same day, ending the courtroom drama but leaving behind many interesting issues to ponder. Representatives for Asylum Seekers First, the Elian Gonzalez case has exposed a general problem in the U.S. immigration system: how we treat asylum seekers. Elian’s high-profile case contrasts sharply with most children’s asylum claims. Many undocumented children in the United States do not know their legal rights. They have no one to explain the complicated immigration process to them, or to find them temporary homes. They have no one to help them during an emotionally complicated time. If the INS finds them, most are detained and ultimately sent back to their home countries. All that may change for some non-citizen children in Arizona. A pilot program beginning this summer will assign trained volunteers to unaccompanied minors held in a detention facility near Phoenix. The volunteers will assist the children with immigration questions and represent them in immigration court. Raju Chebium, Refugee Children Could Get Advocates Under Pilot Program, CNN.com, June 30, 2000. Immigration advocates hope that this pilot "friend of the child" program will spur the INS to adopt the program nationwide. See generally Siobhan Morrissey, The Next Gideon? Elian Rulings Could Usher in Free Legal Aid for Juvenile Asylum Seekers, ABA J., Aug. 2000, at 26. Such a change is needed, according to immigration advocates. The current system contains an inherent conflict of interest. "INS is first and foremost a law enforcement agency, not a child welfare agency," says Wendy Young, staff attorney for the New York-based Women’s Commission for Refugee Women and Children. " The same agency that is charged with caring for the child is seeking to remove the child from this country." Amy Driscoll, A Conflict of Interest? Advocates Decry INS’ Role as Captor, Counselor of Refugee Children, Miami Herald, July 30, 2000. Examples of this conflict abound. A 15-year-old Chinese girl smuggled into the United States won asylum in Portland, Oregon last year. But first the girl was made to appear in immigration court with her hands chained to her waist. In Illinois a mother and child from Kosovo were forcibly separated from each other and taken into detention. They were allowed to speak to each other only occasionally by phone. The mother and child were eventually granted asylum, but their long separation was traumatic and unnecessary. According to the INS, about 4,600 unaccompanied children entered the United States illegally last year. Immigration advocates say that figure represents just the number of children who were apprehended by the INS. Thousands more could be living here illegally. Members of Congress have introduced legislation to address the problem. One bill (H.R. 4590) would require a guardian ad litem to be appointed to advocate on a child’s behalf in immigration proceedings. It would also block the INS from housing minors with adult detainees or holding them temporarily in county jails when INS facilities become overcrowded. A Senate bill (S. 2383) would grant temporary protected status to certain unaccompanied children and allow others to get green cards so that they could remain in the United States. Both bills are unlikely to pass this year, but they show Congress’ new-found interest in this subject, thanks to Elian Gonzalez. But why stop there? If children asylum seekers deserve representation, why not all asylum seekers? Asylum law is one of the most complicated corners of U.S. immigration law. One study has found that immigrants are four to six times more likely to be granted asylum when they are represented by a lawyer. If that is the case, shouldn’t every asylum applicant be represented? After all, we do that for criminal defendants. As Justice Brandeis pointed out in Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), deportation may result "in loss of both property and life; or of all that makes life worth living." True, the Immigration and Nationality Act (INA) states that representation in immigration proceedings shall be "at no expense to the Government." INA § 292, 8 U.S.C. § 1362. Courts have confirmed that non-citizens do not have a constitutional right to appointed counsel in immigration proceedings. See, e.g., Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir.. 1976). Still, doesn't the asylum context make a compelling case for counsel, given that the person forced home may be persecuted or killed? Chevron Deference to Agencies Second, the Elian Gonzalez litigation could also affect the role of courts in immigration law. For years courts have been highly deferential to the government on immigration issues, often applying the Supreme Court decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Among other things, Chevron defines the role of agencies and courts in implementing regulatory statutes. Under Chevron, a court must first see if Congress has directly spoken to the precise question at issue—did the statute have a plain meaning? If so, the court must give effect to that intent. If Congress has not directly addressed the question, the court must defer to any reasonable interpretation by the agency. 467 U.S. at 842-44. Chevron generally makes it hard to challenge the government’s reading of statutes. This is particularly true in immigration, where the courts also defer on the basis of plenary power. Under that doctrine, courts consider immigration to involve U.S. foreign affairs and sovereignty considerations, and thus defer more heavily than usual to executive branch determinations. The issue in the Gonzalez case could have been framed as whether Elian was eligible to apply for asylum. If that were the issue, the Eleventh Circuit held, the statute was clear: "the statute means exactly what it says: ‘any alien . . . may apply for asylum.’" Gonzalez v. Reno, 212 F.3d at 1347 (quoting INA § 208(a)(1), 8 U.S.C. § 1158(a)(1); citations omitted). But the appeals court recast the issue as whether Elian had in fact applied for asylum. On that issue, the court held, the statute was silent: "the statute does not set out procedures for the proper filing of an asylum application." Id. at 1348. Because the statute left a gap, the court turned to the agency’s interpretation to see if it was reasonable. Exercising its gap-filling discretion, the INS made four determinations: "(1) six-year-old children lack the capacity to sign and to submit personally an application for asylum; (2) instead, six-year-old children must be represented by an adult in immigration matters; (3) absent special circumstances, the only proper adult to represent a six-year-old child is the child’s parent, even when the parent is not in this country; and, (4) that the parent lives in a communist-totalitarian state (such as Cuba), in and of itself, does not constitute a special circumstance requiring the selection of a non-parental representative." Id. at 1349-50 (footnote omitted). The court ultimately held that although it was troubled by the INS’s position, it was obliged to defer because the agency’s decision "was within the outside border of reasonable choices." Id. at 1356. The Eleventh Circuit’s opinion arguably undercuts Chevron. The word "apply" in "apply for asylum" is a commonly understood term. Webster’s Ninth New Collegiate Dictionary defines "apply" as "to make an appeal or request esp. in the form of a written application." Considering both the plain language of the statute and the first part of the Chevron test, the appeals court could have easily held that Elian in fact had applied for asylum. In fact, the court intimated that it might take that approach in its April 19 injunction requiring Elian to stay in the country pending a decision on the merits. 2000 U.S. App. LEXIS 7025, slip op at 10-11. The appeals court may have compounded its error in the next stage of its Chevron analysis by deferring to the INS’s interpretation of who could apply for asylum. INS regulations contemplate that in some circumstances a minor may seek asylum against the express wishes of his parents.. See 8 C.F.R. § 236.3(f) ("If a juvenile seeks...any form of relief from removal, where it appears that the grant of such relief may effectively terminate some interest inherent in the parent-child relationship and/or the juvenile's rights and interests are adverse with those of the parent, . . . the parent shall be given notice of the juvenile's application for relief"). See also Polovchak v. Meese, 774 F.2d 731 (7th Cir. 1985) (12-year-old boy could apply for asylum against his parents’ wishes). Moreover, in late 1998, the INS published guidelines for children’s asylum claims. Those guidelines state that "Asylum Officers should not assume that a child cannot have an asylum claim independent of the parents." INS Guidelines for Children's Asylum Claims 15 (1998). Despite that background, the INS claimed that Elian could not apply for asylum without his father’s consent. That view was based primarily on a January 3, 2000 memorandum by the INS General Counsel. The memo could be interpreted as part of a litigation strategy, not a deliberative agency policy implementing congressional delegation. See Randolph J. May, Ignoring Law, Losing Elian, Legal Times, Aug. 7, 2000, at 60. Even the Eleventh Circuit acknowledged that the "policy announced by the INS [in the Gonzalez case] may not harmonize perfectly with earlier INS interpretative guidelines" concerning children’s asylum claims. 212 F.3d at 1350. Moreover, one month before the Eleventh Circuit’s opinion in Gonzalez, the Supreme Court refused to grant Chevron deference to an informal agency interpretation. In Christensen v. Harris County, 120 S. Ct. 1655, 1662 (2000), the Court held that "[i]nterpretations such as those in opinion letters -- like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law -- do not warrant Chevron-style deference." (citations omitted). Elian’s Miami relatives pointed out Christensen to the Eleventh Circuit in their petition for rehearing, but the court distinguished the case on the facts. The court noted that while Christensen involved a Labor Department opinion letter giving advice to Harris County, Texas, in the Gonzalez case the INS acted in the context of an "actual and concrete dispute" and its decision was "final and binding" unless the plaintiff appealed it to a court. Gonzalez v. Reno, 215 F.3d 1243, 1245 (11th Cir. 2000) (per curiam). The confusion generated by the Eleventh Circuit in Gonzalez and the Supreme Court’s decision in Christensen could lead to a reinterpretation of Chevron. See generally Hiroshi Motomura, The Year is 2020: Looking Back on the Elian Gonzalez Case (A Fantasy), 77 Interpreter Releases 853 (June 30, 2000); Randolph J. May, Ignoring Law, Losing Elian, Legal Times, Aug. 7, 2000, at 60. In sum, little Elian Gonzalez may have left a greater legal legacy than political pundits have realized. ________ Bio info: * Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by Matthew Bender and Company, Inc. (http://www.bender.com). Mr. Mailman (mailto:smailman@compuserve.com) is counsel to Satterlee Stephens Burke & Burke (http://www.ssbb.com) in New York City. Mr. Yale-Loehr (mailto:syl@millermayer.com) is of counsel at Miller Mayer (http://www.millermayer.com) in Ithaca, New York, and teaches immigration law at Cornell Law School. This article originally appeared in the August 28, 2000 issue of the New York Law Journal. Copyright © 2000 the New York Law Publishing Company. All rights reserved. The authors thank the Journal for permission to reprint this article.
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