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JUDGE DISMISSES ELIAN GONZALEZ LAWSUIT
This week a decision was finally reached in the lawsuit over Elian Gonzalez’ asylum application.  In his opinion, Judge K. Michael Moore reached the conclusion that the INS did not violate any of Elian’s constitutional or statutory rights when it ruled that it would not accept an asylum application filed for him.  As a result of this decision, plans are again underway to reunite Elian with his father in Cuba. 
Whether Elian is returned to Cuba still remains to be seen.  The Miami family has filed an appeal, and continues to look into other ways to keep him in the US. 
Judge Moore’s opinion was lengthy – 50 pages – but very thorough.  He began with a summary of the facts of the case, from Elian’s rescue at sea to the temporary custody order issued by a Florida family court to the filing of asylum applications to the INS decision that only Elian’s father could speak for him on immigration issues to the filing of this lawsuit.  
It is important to remember what was at issue in this case.  The plaintiffs claimed that by rejecting Elian’s asylum applications, the INS violated his due process rights.  They were not claiming that Elian should have been granted asylum, but rather that the INS erred in refusing to even consider the applications.  They sought the judge to order the INS to accept the asylum application and render a decision on it. 
After stating the facts, the judge addressed jurisdictional issues.  The INS argued that the federal court did not have the authority to hear this case.  The agency cited numerous statutes to support this position, but the court found none persuasive.  According to the court, there was no clear indication that Congress intended to deprive the federal courts of jurisdiction over this type of case, so jurisdiction still existed. 
The opinion next addressed the question of whether Elian had standing to sue.  Standing requires three elements – an actual and concrete injury, caused by the defendant, that can be remedied by judicial action.  The court found that there was an injury in having the asylum application rejected, and that this injury was clearly caused by the INS.  The court further found that this injury could be remedied by judicial action.  
Closely related to the question of standing was whether Elian had the capacity to sue.  Capacity it determined by the law of a person’s residence, and both Cuba and Florida deny minors the capacity to sue.  In such situations, a suit may be brought by a person, legally known as a “next friend,” on behalf of the minor.  In this case, Lazaro Gonzalez, Elian’s great-uncle, filed the suit on Elian’s behalf.  To be a “next friend” the person must be “truly dedicated” to the interests of the person who cannot sue for themselves.  Traditionally next friends of minors are their parents; here the interest asserted in court was diametrically opposed to the wishes of Elian’s father.  Nonetheless, the judge found that Lazaro Gonzalez did have Elian’s interests at heart, and found him an appropriate next friend through whom the suit could be brought.  
Having disposed of the threshold issues, the court went on to examine the heart of the claim – that the rejection of the asylum application violated Elian’s due process rights.  The suit claimed due process violations on the constitutional, statutory and regulatory levels.  
The court first addressed the constitutional claim and found that, because Elian is an alien who has not been officially admitted into the US, there was no due process violation.  When he entered the US, Elian was “paroled,” a sort of legal fiction by which a person enters the US but is not considered to have been admitted for immigration purposes.  It has long been held that aliens who have not been admitted do not receive constitutional due process protections. 
The suit also claimed that the INS failed to follow the statutes dealing with asylum applications and that that failure constituted a due process violation.  This argument hinged on the provision that allows “any alien who is physically present in the US” to apply for asylum.  According to the plaintiffs, the Attorney General’s decision that Elian was not competent to file an asylum application violated this statute.  The court disagreed, finding that the Attorney General’s decision was purely a question of law.  Under the Immigration and Nationality Act determinations by the Attorney General on questions of law are accorded great deference, and that the decision reached was not contrary to law or an abuse of discretion.  
The court also found another basis for this conclusion.  When administrative agencies such as the INS interpret the statute that they are charged with administering, courts are to defer to the agency interpretation unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  This is especially so when the agency is interpreting a statute that is ambiguous.  The court found that the asylum statute was ambiguous.  First, unlike other parts of the INA, it did not make specific provisions for juveniles.  Second, although the statute allows “any alien” to apply for asylum, other parts of the statute make clear that this does not mean all aliens can apply.  Among the aliens who cannot seek asylum are those who can be safely located to a third country, those who have not filed for asylum within one year of arriving in the US, and those who have had a previous asylum claim denied.  Given this ambiguity, the court found it should defer to the agency’s reasonable interpretation of the statute.  Since the Attorney General may determine who may seek asylum, there was no regulatory violation.  
Because the Attorney General properly exercised her discretion in determining that only Elian’s father can speak for him on immigration matters and reached a decision that was not contrary to law, her determination must be allowed to stand.