< back
EDITORIAL: THE LAW AND ELIAN GONZALEZ
Over and over again, since the seizure of Elian Gonzalez, we have heard the assertions of the President, the Attorney General and the INS Commissioner that they could no longer allow the Miami relatives to take the law into their own hands and the raid was a sad necessity. But as the crisis has progressed, the question legitimately can be asked – who has really ignored the law? The Miami family of the boy? Or the government itself? 
Immigration lawyers like myself have viewed the Elian saga from a perspective that seems to have escaped most in this crisis – what the law actually contemplates. Not what is “morally correct.” Not what is in our foreign policy interests. We are a nation of laws and if we, as a nation, decide that our laws are incorrect, then we have a system for making such a change. And if the priority is to carry out the law, then the Clinton Administration is certainly being dishonest with the American public and has ignored its responsibilities. 
This is not to say that Republicans chiding Clinton and Reno are being any more honest. Suddenly, conservatives are concerned with due process rights for asylum seekers and in protecting Americans’ Fourth Amendment rights against unreasonable searches and seizures. Their track record in both areas is hardly inspiring and one suspects that if Elian’s relatives did not live in a Republican precinct and Castro was not the last of the big Commies, then we would not be having hearings. 
The only ones that have seemed to placed a priority on what the law actually says is the 11th Circuit Court that recently offered a decision that largely favors Elian’s American relatives. The 11th Circuit enjoined the INS from removing the child from the US since it appeared that a credible argument can be made that Elian’s asylum case should have at least been accepted for adjudication. Arguments to the court on this issue is due on May 11th. 
The INS initially placed Elian Gonzalez with his American relatives and, if the Cuban government had not taken a special interest in the case, it is likely that Elian would have been granted permanent residency under the Cuban Adjustment Act of 1966, a law that allows any Cuban who reaches US shores, regardless of how he or she got here, to receive a green card if they remain in the US for a year. The INS has historically granted this status to both adults and unaccompanied minors. Most Cubans never need to apply for asylum if they reach US shores because the INS would not seek to remove them. 
Even if the INS takes the unusual step of seeking to remove a Cuban who has managed to get to the US, one still has the option of applying for asylum. The INS has taken the position in Elian’s case that he is too young to apply for asylum by himself and that only the child’s father has the right to speak for him. The law on this point squarely states the opposite, however. Section 208 of the Immigration and Nationality Act states that “any alien who is physically present in the United States” may apply for asylum. The law carves out only three exceptions to this sweeping rule – criminals, terrorists and those already settled in a third country. The 11th Circuit supported this notion and even cited the INS’ own recently published Guidelines for Children’s Asylum Claims in supporting the notion that a child can apply on his or her own. 
The INS Guidelines make it clear that children, even children as young as infants, may have legitimate claims to asylum. If one looks back to recent history, particularly to the murder of 1.5 million children in the Nazi Holocaust, this does not seem that hard to understand. Even if the child does not have an understanding of what dangers they may face if they return to their country, a claim can still proceed and INS asylum officers are instructed to view what is in the best interests of the child. 
But what if the child’s parents are against the asylum claim? The INS Guidelines make it clear not only that a child can have a claim for asylum that conflicts with the wishes of the parent, but that the child’s asylum claim should actually be favored over the wishes of the parent: 
If “it appears that the will of the parents and that of the child are in conflict, the adjudicator will have to come to a decision as to the well-foundedness of the minor’s fear on the basis of all the known circumstances, which may call for a liberal application of the benefit of the doubt.” 
This language mirrors similar wording in the United Nations High Commission on Refugees’ document on the subject of treating asylum claims for children. 
The Guidelines also make it clear that the place to decide the credibility of a child’s claim for asylum is in the course of asylum proceedings. In Elian’s case, the INS would not even accept the application, much less look at the merits of the claim. And the INS has admitted that the sole basis for rejecting the claim is because of Juan Miguel Gonzalez objected. There is nothing in the law that would allow this to be the basis for not accepting an asylum application. Indeed, the INS’ own internal rules say quite the opposite. 
It is rather ironic that most of the people in politics arguing for the return to Elian are the same people who have pushed for a liberal asylum policy. These are the same people who voted against rules in 1996 that made it much tougher to apply for asylum. And aren’t these the same people who regularly rail against overzealous police officers terrorizing the public.? 
And it is just as easy to point the finger of hypocrisy at the Republicans. They clamored for laws in recent years that dramatically curtailed the rights of immigrants to have access to the courts and gave the INS carte blanche powers to deport whoever they wished. Suddenly they are upset that an immigrant is not getting his day in court? One suspects that if Elian was, for example, a young African girl fleeing genital mutilation, they would not be as busy on the talk show circuit. 
And does it not strike observers of the political system as somewhat odd that Republicans are so perturbed about whether the absolute letter of the law was followed in executing a warrant to raid the Miami home when they have howled with outrage over criminals being released on these kinds of “technicalities.” 
Thank goodness we have laws and courts to protect us from the political whims of our legislators. Hopefully, the rule of law will carry the day here.