Ruling may have dramatic effect on asylum decisions
Decision may change way INS treats applications by kids
BY JAY WEAVER
The federal appeals court decision in the Elian Gonzalez case
struck like a
thunderbolt Wednesday, with attorneys saying the ruling signaled a
potential
shift in immigration law that could force the U.S. government to accept
asylum
applications from thousands of unaccompanied children.
The actual legal effect of the 11th Circuit Court of Appeals'
decision is limited
only to barring Elian's removal from this country until after the court
has a chance
to consider his appeal. It pivots on whether he has the right to apply
for asylum,
with oral arguments scheduled for May 11.
But the three-judge appellate panel strongly implied in its decision
that the court
might be prepared to rule that the Immigration and Naturalization
Service erred
when it decided that Elian, at the age of 6, was too young to
be capable of
applying for asylum.
The INS had said that only Elian's Cuban father could speak for
Elian because the
boy is so young, and his father wants him back in Cuba. The boy's
Miami
relatives challenged that decision with a lawsuit.
If the appellate court rules that the law means what it literally
says -- ``any alien
. . . may apply for asylum'' -- it could have a dramatic impact
on the agency's
handling of innumerable cases. The INS routinely sends back thousands
of
immigrant children to their homelands every year.
U.S. Rep. Alcee Hastings, a lawyer and former federal judge, said
the court's tacit
acceptance that ``any alien'' has a right to an asylum hearing
may have set an
unintended precedent.
``What they just got through doing, if this is to become the law,
is to open the
flood gates -- and I don't think they intended to do that,''
Hastings said.
His advice to Attorney General Janet Reno: ``Appeal this to the Supreme Court.''
Some legal experts in the immigration field agreed with Hastings'
analysis, though
they applauded the court's decision to bar the boy's removal
from the country until
his appeal is over.
``If the court is saying a child that tender of age can make that
determination, it
would have significant ramifications,'' said Ira Kurzban. In
the early 1980s,
Kurzban won the right for refugees to seek asylum on constitutional
grounds of
due process.
In their decision, Circuit Judges Joel F. Dubina, James L. Edmondson
and
Charles R. Wilson cited the federal statute in dispute -- ``any
alien . . .
irrespective of such alien's status, may apply for asylum.''
``[Elian] appears to come within the meaning of `any alien,' ''
the judges wrote in
their 16-page opinion. ``We, therefore, question the proposition
that, as a matter
of law, [Elian] cannot exercise the statutory right to apply
for asylum.''
The judges went on to write: ``If Congress had meant to include
only some aliens,
perhaps Congress would not have used the words `any alien.' ''
They noted that it ``may seem a strange or even foolish policy''
to let a little boy
apply for asylum against the wishes of his father. But they stressed
that if
Congress intended by the plain language of its law to allow a
``school-age child to
apply personally for asylum,'' then ``this court and the INS
are bound to honor'' it.
A CONTRAST
The appellate court's decision contrasts with U.S. District Judge
K. Michael
Moore's ruling last month. He upheld Reno's broad powers to interpret
the
question of who may apply for asylum on a case-by-case basis.
In Elian's case,
she backed the INS decision that only the boy's father can speak
for him.
Some lawyers were taken aback by the appellate court's decision.
Peter Schuck, a Yale University law professor who specializes
in immigration
matters, said the appellate court is venturing into a legal area
that previously had
been considered the province of Congress, the attorney general
and president.
He used the word ``preposterous'' in reference to the court's
literal interpretation of
what Congress meant by ``any alien.''
The Miami relatives' legal team said they did not agree that the
appeals court's
decision could lead to a major change in asylum procedures. The
team said the
judges simply recognized the right of the little boy to speak
his mind.
``This is a fully cognitive child who states his fear of going
back to Cuba,'' attorney
Kendall Coffey said. ``If you have a child with a cognitive capacity
of an
11-year-old and psychological evaluations that say he can capably
speak for
himself, that is a completely different scenario from a 2-year-old
[seeking
asylum].''
Another of the family's attorneys, Roger Bernstein, said: ``What
the judges are
saying is that in evaluating the wishes of Elian, the INS only
evaluated the wishes
of the father, not Elian's. What they're saying is, his voice
needs to be
considered.''
MANY CASES
Immigration law is replete with cases in which parents and children
have differed
over whether the children could apply for asylum.
In 1980, Kurzban represented the Cuban parents of a teenage girl,
Odalys
Valdes, who came to the United States in a hijacked boat with
her boyfriend.
After a two-year legal fight, the parents and the Cuban government
dropped their
lawsuit seeking her return.
Another unusual custody case -- which sparked an international
incident during
the Cold War and has drawn comparisons to Elian's dispute --
unfolded in 1980
when Ukrainians Michael and Anna Polovchak decided to return
to their homeland
after just six months in Chicago.
Their children, Walter, 12, and Natalie, 17, refused to go. Walter,
who ran away,
was granted asylum. His parents challenged Walter's decision
in federal court --
and lost.
His sister's decision to stay behind was uncontested because of her age.
In 1985, a federal appeals court ruled the parents' rights had
been violated by the
U.S. government. But by that time, Walter Polovchak was nearly
18. He became
a U.S. citizen after celebrating that birthday.
Herald staff writer Sandra Marquez Garcia contributed to this report.