Elian case renewed attention on children's asylum claims

The Miami Herald
May 5, 2000

Elian case renewed attention on children's asylum claims

BY FRANK DAVIES

WASHINGTON -- Much of the media coverage of the Elian Gonzalez saga has stressed the melodrama, but the ``silver lining'' in the case has been a renewed focus on asylum claims and how immigration officials deal with children, said two former U.S. officials, a family law expert and a refugee advocate Thursday.

``This is bringing some much-needed attention to the bigger picture of how children are treated,'' said Wendy Young, staff attorney for the Womens Commission for Refugee Women and Children.

``Thousands of kids enter the country each year, many are unaccompanied and most are much worse off than Elian.''

Young participated in a forum sponsored by the Carnegie Endowment for International Peace, a nonpartisan group active in immigration issues, to examine some of the legal and policy issues stemming from the Elian case.

Two other panelists, David Martin and Alexander Aleinikoff, served stints as general counsel for the Immigration and Naturalization Service. One week before the 11th Circuit Court of Appeals hears arguments on asylum issues in the case, they critiqued the INS handling of the Elian controversy, recent court rulings and the impact on evolving asylum law.

SOME HOPE

Aleinikoff, now a Georgetown University law professor, said the 11th Circuit ruling last month that the boy must stay in the United States offered some hope to the Miami relatives, who are pressing an asylum claim for the boy against the wishes of his father, Juan Miguel Gonzalez, who wants to return to Cuba.

``The three judges went much farther than most legal observers thought they would -- that this may be a close case on its merits,'' Aleinikoff said.

Aleinikoff and Young both noted that the Justice Department had shifted its legal strategy away from a blanket assertion that young children can never make asylum claims to a much tighter focus that its not appropriate in this case.

``We think that eligibility [to make an asylum claim] is sacrosanct, that young children should be allowed to challenge the system,'' Young said.

``Were learning that the INS is not a child welfare agency and has difficulty with these cases, though I give them credit for learning.''

DECISION `MISREAD'

Martin, a University of Virginia professor, said the 11th Circuit decision in April was ``widely misread in the press'' as a major victory for the Miami relatives, when it dealt with the narrow issue of keeping the boy in the United States during the legal process.

But he said he would not be surprised if the 11th Circuit issued another narrow decision -- that INS must consider the asylum claims advanced by the relatives. If that happens, an asylum officer would have to look at some of the issues -- conditions in Cuba, whether the father was coerced -- that the relatives made.

If the 11th Circuit rules against the relatives, expect the Supreme Court to turn down any appeal, Aleinikoff predicted.

Another panelist, Mitt Regan, a family law professor at Georgetown, defended the INS handling of the case, saying the agency did not make a mistake by not interviewing the boy.

``Through all the talk of best interests of the child, judges have held that a 6-year-old is not able to express preferences in any meaningful sort of way,'' Regan said.