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ELEVENTH CIRCUIT ISSUES DECISION IN ELIAN GONZALEZ CASE 
On Thursday the Eleventh Circuit issued the much-anticipated decision in the Elian Gonzalez case.  To the surprise of many, who believed that the language used by the court in the order keeping Elian in the US while this case was pending indicated that it would rule in favor of the Miami family, the court upheld the INS’ action in rejecting the asylum application. 
The plaintiff’s argued that the district court had made three errors:  first, dismissing the due process claim; second, not appointing a guardian ad litem; and third, upholding the INS decision to reject the asylum application.  The appeals court quickly dismissed the first two arguments.  An alien seeking admission to the US had no constitutional rights with regard to that admission, and therefore no due process claim.  Because Elian’s interests were well-represented by his uncle Lazaro, there was no need for an independent guardian to be appointed. 
As with many decisions dealing with the legitimacy of federal agency action, the court was guided by the principles announced by the Supreme Court in a case commonly known as Chevron.  This case holds that when a court is faced with an agency interpretation of a statute, it is to uphold that interpretation so long as it is not unreasonable.  
The starting point for the analysis is the asylum statute itself.  It says that “any alien . . . may apply for asylum.”  As the court wrote, the statute “plainly would permit Plaintiff to apply for asylum.”  However, the issue is not whether Elian could apply, but whether the applications submitted constituted a valid application.  The statute does not provide information on how an asylum application is made.  Instead, the procedures for applying for asylum are left for the INS to determine. 
There are extensive regulations dealing with asylum applications, but none that directly address the situation in this case.  Therefore, when this case arose, the INS developed a policy.  There were four key parts to the policy, first, that a six-year-old cannot apply for asylum on their own, second, that such a child must be represented by an adult in immigration matters, third, that in all but special circumstances, the adult that is to represent the child is a parent, and fourth, the fact that a parent is from a totalitarian state is not, in and of itself, a special circumstance.  The issue for the court was whether this policy is reasonable in light of the statute. 
The court examined each aspect of the policy and determined that each was reasonable.  While there may be some six year olds mentally capable of applying for asylum, it is not unreasonable to create a bright line test based on the age of the applicant.  Because a child cannot apply for asylum on their own, it is necessarily reasonable to require that they be represented by an adult.  The court also found the decision that only a parent can be the representing adult to be reasonable.  According to the court, the policy takes adequate notice of the possibility that the interests of a parent and child can diverge by allowing for representation by someone other than a parent in appropriate circumstances.  Finally, while expressing concern that Cuba is a totalitarian state where systematic human rights violations occur, the court found that the INS did not make an unreasonable decision in concluding that this factor was not a special circumstance.  The court also found support for this final aspect in the fact that such a determination is important to foreign policy, and in few areas does the executive branch have more deference that foreign policy.  
Having determined that the policy adopted by the INS was not unreasonable, the court then examined whether the policy was properly applied in this case.  So long as the INS did not act arbitrarily or capriciously, or did not abuse its discretion, its actions must be upheld.  Here the court analyzed separately the application filed with Elian’s signature and the one signed by Lazaro.  It affirmed the rejection of the application signed by Elian as appropriate under the policy not allowing six-year-old children to seek asylum on their own. 
The court then examined the handling of the application submitted by Lazaro.  The INS found that because Elian had a parent who could represent him, and because there were no special circumstances calling for someone other than the parent, Lazaro could not represent Elian before the INS.  The INS based this determination in part on its belief that Elian’s father was not under duress and was not being coerced by the Cuban government.  The court found that this decision, coming after interviews with the father, was not arbitrary or capricious.  The decision was also based on a preliminary review of the merits of the asylum application.  Though cursory, the INS determined that Elian would not suffer persecution on account of a protected ground if returned to Cuba.  The political conditions in Cuba are harsh, and civil liberties are not respected, but these are conditions experienced by the entire island.  According to the INS, even were Elian to be indoctrinated if returned, indoctrination alone is not persecution.  The court found the INS’ position on the merits of the application to be reasonable. 
Because the INS developed what the court found to be a reasonable policy and properly applied it, the court did not have any basis upon which to reverse it. 
Many on both sides of the issue have had negative reactions to the case, and almost as many feel the court misapplied several legal theories.  For example, while it was held in an old Supreme Court case that an alien seeking admission to the US has no constitutional right to enter, this principle has grown weaker over the years.  Therefore, the absence of a due process claim may not be as simple as the court makes it seem. 
Also, the court’s claim that the INS policy was not developed during litigation strikes many as far-fetched.  The documents constituting the policy consist of a January 3 memo from the INS General Counsel to the Commissioner, a January 5 letter from the INS Miami District Director to the Miami family and their attorneys, and a January 12 letter from the Attorney General to the family and attorneys.  First, the informality with which the policy was developed makes many hesitant to provide deference, concerns the court clearly shared.  Second, none of these documents, either alone or in combination, spell out the policy as clearly as it was presented to the court, leading many to believe that the policy was, if not entirely, as least to a large extent developed during the course of litigation.  
Many also believe the court improperly accepted the INS’ determination that Juan Miguel Gonzalez was not under duress.  The opinion says only that the INS took steps to ensure he could speak freely, and that based on observations of his demeanor he did not appear to be under duress.  There is no discussion of what steps the INS took, or of what his demeanor was like.  The superficiality of this part of the discussion, combined with the court’s stated concerns about the freedom a person has to express themselves in Cuba, makes many wonder whether the court’s opinion truly reflects its reasoned legal judgment or is more a matter of political expediency. 
Finally, in what strikes many as the most harsh aspect of the opinion is the court’s willingness to accept that its decision could mean that some viable asylum claims are not heard.  The court wrote “we recognize that, in some instances, the INS policy of deferring to parents – especially those resideing outside of this country – might hinder some six-year-olds with non-frivolous asylum claims and prevent them from invoking their statutory right to seek asylum.”  The court said this outcome was the inevitable result of the well-established principle of deference to agency decisions.  However, a decision of an agency that makes it difficult or impossible to access the statute is contrary to the spirit of the statute, and in such a situation it is appropriate for a count to not defer to the agency.  
The costs incurred by the government over the situation continue to rise.  Security for Elian, his father, and those staying with them is averaging about 0,000 a week.  The total bill is close to .5 million.  Private organizations are paying for the housing, and the Cuban government is paying for food.  The security team guarding the family consists of 50 US Marshals and 20 INS agents.  The Marshals additional cost, over base salaries, is about ,000 a week, while the INS agents cost ,000.