Elian Gonzalez' Asylum Claim

May 4, 2000

This meeting examined a number of issues surrounding the arguments before the 11^th Circuit Court of Appeals on May 11, 2000. At issue were a number of important questions: under what circumstances can a small child pursue an independent asylum claim? Who can legitimately speak for such a child? Does Elián’s case belong in a family court rather than an immigration proceeding? What kind of persecution must be threatened to support such a claim? What precedents may be set in this case that might affect future asylum claimants? Kathleen Newland, senior associate and Co-Director of the International Migration Policy Program moderated the question and answer format discussion. The transcript of the meeting follows.

Kathleen Newland: Good morning. I’m the Co-Director of the International Migration Policy Program here at the Carnegie Endowment. It’s a real pleasure to welcome you and to welcome our panelists this morning to talk about the asylum case of Elián Gonzalez which will be heard in the Eleventh Circuit Court of Appeals next week.

There was, as all of you know, a great deal of heat surrounding the Elián Gonzalez case. This morning’s panel is an attempt to shed light on the case, though you may notice we don’t have anyone representing the parties to the case on the panel this morning. What we do have are four extremely distinguished legal experts. We will use a question and answer format this morning.

Let me introduce our panelists. I think you are well acquainted with most of them. Alex Aleinikoff is a senior associate here in the International Migration Policy Program, as well as a law professor at Georgetown University. He was also, formerly, General Counsel at the INS, and an Associate Executive Commissioner at the INS. We have another former General Counsel of the INS with us today on the panel, David Martin, who is now the Henry and Grace Doherty Professor of Law at the University of Virginia. Mit Regan on my left is a family law expert and a professor at Georgetown Law. Wendy Young is the staff attorney for the Women’s Commission for Refugee Women and Children and the Washington liaison for the Women’s Commission.

We’re going to be really focusing on the Eleventh Circuit Court case. I wanted to ask Alex first if he could give us a quick legal history of the case in layman’s terms. What exactly is the case that the Eleventh Circuit Court is going to hear next week and where has it arrived in this whole process of appeal and counter appeal?

Alex Aleinikoff: As you see from the stack of papers in front of me, that lawyers have been doing their jobs in terms of filing papers. To remind you of the kaleidoscope of events here, starting with the Thanksgiving Day discovery of Elián several miles off Ft. Lauderdale. He was brought to the United States by a Coast Guard cutter, which actually is an interesting and important fact that we will talk about probably later in the hour. He was brought and put in the hospital and then temporarily paroled to the custody of Lázaro Gonzalez, the great uncle. It was two days later that the father, Juan Miguel, asked for Elián’s return.

The issue in the Court of Appeals concerns the asylum claims filed by the great uncle on behalf of Elián and whether or not the Attorney General should have accepted them. The Miami family filed an asylum claim on December 10 and later that month filed a claim with Elián’s name in block letters printed on the bottom that you may have seen printed in the paper. I don’t think the actual asylum claims have been released, although that signature has been released. At the same time, the INS was interviewing Juan Miguel Gonzalez in Cuba.

On January 5, the Commissioner reached a decision that a six year old is too young to file an asylum claim on his own. It was therefore her job to determine who should speak for the child, and she found that the father, Juan Miguel, should speak for the child. Technically, what Juan Miguel Gonzalez did was to "withdraw Elián’s application for admission," an odd legal term. Elián actually never applied for admission, but that’s the phrase that’s used if you arrive at the port of entry with no papers and you decide not to go through an immigration proceeding. You’re deemed to be an "applicant for admission," so you withdraw your application for admission. That’s what the father said. "I’m withdrawing his application for admission and I don’t want an asylum claim filed." Based on that, the Commissioner rejected the two asylum claims that had been filed by the Miami family. That’s what brought about the lawsuit.

Also in early January, the Miami family went into state court and asked for an order of temporary custody of Elián. At the same time, they asked the Attorney General to reverse the decision of the Commissioner. On January 10 the state court issued an interim temporary award of custody, which barred Elián’s removal from the jurisdiction and authorized Lázaro to take steps to retain counsel to file an asylum claim. On January 11 pursuant to that order, Lázaro filed his third asylum claim, now as temporary custodian of Elián. The next day, the Attorney General affirmed the Commissioner’s decision and stated that as the matter was one of federal law, she was not bound by the state court’s decision. In effect, the Attorney General said, "Don’t sue in state court. If you want to sue me, come to federal court. That’s the proper place to argue about these issues." The family complied. It filed suit shortly thereafter in federal court, which is the case now before the Eleventh Circuit. The lawsuit, again, challenged the Attorney General’s refusal to accept the now three asylum claims that the Miami family had filed. It is reported in the court papers that all three of these claims are exactly the same, just filed at different times. In fact, the one that Elián purportedly signed in English is the same as the one submitted by the great uncle.

The district court on March 21 reached a decision. It found that Elián had standing to sue the Attorney General, and that Lázaro was an appropriate "next friend," meaning legally that he was entitled to speak for the child in this litigation. Although the District Court concluded that it had jurisdiction to hear the case and had the proper parties before it, it nonetheless upheld the INS decision that the father should speak for the child. It concluded that the Attorney General had discretion under the law to reach that decision and that that discretion had not been abused.

This was the posture of the case at that point: the INS had won the case, and the family could obviously appeal to the Court of Appeals. Because the INS wanted a quick resolution, it went to the family and said, "if you agree to turn Elián over at the end of any Court of Appeals review of this case, we agree not to move against him prior to the Court of Appeals issuing this decision. We would also agree to an expedited review schedule." The family said this was coercive, and they refused to sign an agreement. They went ahead and filed their own appeal asking for expedited review, which the Court of Appeals granted and scheduled argument for May 11.

This all happened before Juan Miguel arrived. On April 6 of this year, Juan Miguel arrived in the United States accompanied by his attorney, Greg Craig. On April 12, the INS ordered the family to bring Elián to Opalaka airport and turn over custody at that point to the Attorney General and eventually to Juan Miguel. The family did not comply. The next day the INS officially revoked the parole that had been granted to the family.

On the same day, and this was not reported much in the press, the state court dismissed the state litigation that had been filed. You may remember when the state case was first filed, there were questions raised about the judge to whom it was assigned regarding campaign finance issues. She was later removed from the case very quietly. Another judge was put in place. That judge issued a decision on April 13 saying, "state courts don’t belong here. This is preempted by federal law. Don’t come back. Don’t bother asking for re-argument." I want to read one paragraph out of the state court decision because it’s really quite remarkable. It’s a wrenching decision for the judge, who recognizes that she’s an elected official in Miami ruling in a very hot case. She says the following:

"Judges watch television, too. I’ve watched Elián Gonzalez day after day. This is a beautiful child. He survived a heart-wrenching loss of a mother and is enmeshed in the terror of a custody fight no matter how well-intentioned everyone in this case is. His days are filled with uncertainty. It’s axiomatic that in Family Court a six year old is too young to make life-altering decisions. What a lonely place for a six year old. This is so hard for him. This is so hard for us all."

On April 19 the Court of Appeals granted a temporary injunction at the request of the Miami relatives, prohibiting the removal of Elián from the United States pending the appeal. The court did not grant another motion the family had asked for which would have compelled mediation in the case. It also rejected, importantly, a counter-motion from the U.S. government saying, "we agree to keep Elián in the United States pending the appeal, but please order the family to turn him over to Juan Miguel." The court did not rule on that issue.

In reaching it’s decision to grant the temporary injunction, the court had to conclude that there were "substantial merits" to the Miami relatives’ claim. In doing so, the court went quite far, and I think farther than most legal observers thought it would go- saying that the INS had violated it’s own regulations, and that the statute allowed "any alien" to apply. The court seemed to lean in the direction of ruling against the INS. In doing so, they said, "We’re not reaching a decision on the merits. We need to hear more argument. We haven’t decided this case yet." It made clear its view that it might be a close case on the merits.

The INS interpreted the opinion as not dealing with who should have custody of Elián, but as simply prohibiting Elián’s departure from the U.S. As you know, after further negotiations, proved fruitless, on April 22 the INS entered the home, took the boy out, and handed him over to his father in Washington.

There have been additional motions before the Court of Appeals. The family sought the appointment of a guardian ad litem, which would be an independent person who would think about the best interests of the child in the litigation. They also demanded a right to visit the child and have him evaluated by their psychologist. The Court of Appeals, and here I’ll express an opinion, wisely denied that motion. They did grant a motion that prohibited Elián from being moved to any place where there is diplomatic immunity, (any place, not just the Cuban Interests section.) At the same time, Greg Craig filed a motion on behalf of Juan Miguel and said, "now that I’m here and I’ve got custody of the boy, substitute me as ‘next friend’ in this case. Let me represent the boy." The obvious idea was that if Juan Miguel substitutes as "next friend," with Lázaro out of the case; then the next friend would say, I do not want this asylum claim filed, and it would end the case. The Court of Appeals held Juan Miguel could intervene as a party in the litigation, but would not be substituted as next friend. The Court said it would, "carry that motion with the case." I think they’ll fold it into the merits ultimately. To make Juan Miguel the only one who can speak for the boy in this case would end the case because Lázaro would be out of the case.

The briefs on the merits were filed on Monday this week. Emotional briefs were filed by both the family and the father. Let me just end by reading a sentence from each. The family’s brief says the following:

"The notion that an agency can, without preexisting criteria, opt to avoid it’s mandatory duty to duly consider an individual’s entitlement by prejudging the merits in a cursory fashion in advance of the required adjudication profoundly offends any principle of fairness or due process."

That is, the family is saying that the fact that the INS didn’t hear the asylum claims was essentially a prejudgment of the validity of the claims and that was putting the cart before the horse.

The father answered by noting that if the INS were required to entertain the asylum claims filed by Elián and by Lázaro, the case could take years to adjudicate. This would in effect, require Juan Miguel to choose between his country and his son. The brief states:

"There’s so much evidence demonstrating that Juan Miguel is not just a good father, but a wonderful father. In the absence of any credible evidence that Elián would be persecuted, this outcome would be a travesty. The asylum law should not be interpreted to impose an automatic and lengthy restriction on a parent’s freedom to raise a family even if that parent is a Cuban… Lázaro has used this nation’s legal system in an attempt to destroy Juan Miguel’s family."

So the emotions that we see on the streets have continued into the courts. The oral arguments are scheduled for May 11, and trail reply briefs are due after that. It may easily be another month or so before the court reaches a final decision. It could be quicker. It could be longer. So we may well be talking about sometime in June before we have a decision from the Court of Appeals. Beyond that, appeal to the Supreme Court is likely, if the government loses the case in the Eleventh Circuit, I think it’s quite likely the Supreme Court would take the case and reverse the Eleventh Circuit.

Let me end with just a couple of points about what all this means. First of all, Elián Gonzalez is not in immigration proceedings, which is important. He’s never been before an immigration judge. There was no notice to appear issued. Proceedings were never begun. When he was paroled into the country, technically under the immigration laws his inspection was deferred. Secondly, the issue before the Court of Appeals is not the merits of the asylum claim. It is whether or not the three asylum applications filed by the family should be accepted by the INS and adjudicated by the INS. So, it’s not a typical kind of immigration case in which the Court of Appeals is reviewing a removal order or looking at an appeal of an asylum claim. It’s looking simply at whether the Attorney General abused her discretion under the law in refusing to accept the asylum claim. Thirdly, both court decisions are vulnerable for different reasons, which we can talk about later. Fourthly, I just want to note a shift in the family’s approach here and a shift in the government’s approach. The family really wanted a state court decision here on the "best interests" of the child. That was their strategy all along. They got bounced out of the state court, and they’re now in federal court pressing an asylum claim. But they must know that their asylum claim is rather weak. But they now have all their eggs in that Eleventh Circuit basket. The Justice Department has shifted its emphasis in legal arguments. The district court brief was full of assertions about "plenary power" and unreviewable Attorney General discretion. The Solicitor General’s brief in the Court of Appeals is much more measured. In effect, it says "we recognize that sometime it may be appropriate for a child to assert an asylum claim irrespective of the wishes of the parent. But in this case the Attorney General did the right thing."

Kathleen Newland: Thank you for laying that out so clearly. I think that’s about as clear as it can get for those of us who are not lawyers. Thanks also for putting a lot of issues on the table that we can now get into in more depth. Let me ask David to tell us a little bit more about what the reasoning of the INS was behind this. Why did the INS take the position that the asylum claim shouldn’t be heard?

David Martin: I should start by pointing out that both the statute and the convention are essentially silent on these issues involving young children.

Kathleen Newland: Which statute and convention do you mean?

David Martin: The Convention relating to the Status of Refugees. The 1951 Refugee Convention and the asylum statute don’t directly address these particular questions. Clearly, the definition of "refugee" is broad enough to encompass anyone of any age who has the requisite well-founded fear of persecution. But it’s also the case that asylum is essentially a right and not a duty. There are people who have a well-founded fear of persecution, who do go back to their home countries and never claim political asylum. And actually the world is much better off for that. Brave people like that have brought about major changes in their home country because they were willing to incur that kind of risk. But that doesn’t translate too well when you’ve got the situation of a child.

I want to put it in that context. It might have been possible for INS to take the position that children’s asylum claims, at least when there’s a parent or legal guardian around in the picture, can only be filed by that parent or legal guardian -- that the parents’ wishes should prevail in those circumstances. That is not, however, the position the INS has taken, and I think it’s a good thing. There’s been a lot of development in international discussions of guidelines for such claims – some adopted by other countries, as well as guidelines developed by the the U.N. High Commissioner for Refugees and the Executive Committee of the High Commissioner’s program. INS actually issued guidelines in December of 1998 on asylum claims filed by children. Much of that document addresses circumstances where the child is unaccompanied, where a parent or guardian cannot be located. It also contains some very useful tips about how to conduct interviews of young children. In the guidelines, there’s a brief reflection that there may be cases where a child’s asylum application could be considered separately from the parents, independently from the parents.

Kathleen Newland: Is that what you think was the basis of the INS reasoning? Is that what they were working from?

David Martin: There are brief references in a couple of places in the guidelines which acknowledge that there could be such circumstances. There’s a reference to the notion that if there’s a conflict in the interests or the wills of the parent and the child, then it may be appropriate to go ahead and consider the claim. It’s not a statement that one always does so. This basic issue was focused on very clearly in the January decision of the Commissioner, based on a lengthy memo from the General Counsel’s Office. Let me quote from that memo:

"[I]t must be taken as a given that under some circumstances even a very young child may be considered for a grant of asylum. The INS need not, however, process such applications if they’re reflect that the purported applicants are so young that they necessarily lack the capacity to understand what they are applying for or, failing that, that the applications do not present an objective basis for ignoring the parents’ wishes."

So, it’s possible to hear children’s claims independently. The standard is essentially whether a conflict of interests exists. The approach might be a bit different if the child is in the position to, and is confident enough to express his or her own will. The initial analysis in the Commissioner’s decision is that a six year old is essentially too young. It forswears looking further into the child’s wishes, casting doubt as to the child’s understanding or ability to understand what went into the application that was filed in Elián’s name. I have to say that’s reinforced by what the family court said in Florida. Alex read the language; let me just repeat it: "It is axiomatic in family court that six years old is too young to make life-altering decisions." The family has complained for a long time that nobody ever talked to Elián. I think, given his very young age, this is really a side issue. Six year olds tend to be very focused on the moment. But others can address that better than I can.

That was the first issue: can we take the child’s own will as being expressed here? INS said no. Is there a conflict with the parent? INS looked carefully at the information that they had received from the two interviews with the father in Cuba and also from interviews with the great uncle, Lázaro, and the attorneys who were filing one of the asylum applications on behalf of Elián. They looked at the information there. There was, in that sense, a hearing. There was a chance for the people to make their views known. The views were considered, the factual allegations were looked at. INS decided, on the basis of all that, that this was a loving and close parent-child relationship.

And the third factor, probably the most important one, was the issue of other objective circumstances that might show some kind of risk to the child, such that the asylum application should be considered. INS went through that issue in light of the specific allegations that were made in the case. Although acknowledging that there are human rights problems in Cuba, INS concluded that there was not enough of a showing of objective risk there to justify considering this asylum claim on its merits.

So there was not an official asylum hearing, but there was a hearing where many of the interested parties had a chance to make their views known. Those were taken into account when INS reached its decision. The District Court then looked at it. I’ll just mention briefly that the part of the District Court’s decision dealing with a claimed statutory obligation to consider any and all asylum claims was probably the weakest part of the District Court’s decision. In contrast, the District Court has been very surefooted finding its way through a number of complicated jurisdictional questions that arose under the 1996 amendments, for which there is not a lot of case law yet. It then came to the section of the opinion that looked at the language that the relatives have relied on. They relied on the provision in Section 208 of the Immigration and Nationality Act, the asylum provision. It says: "any alien irrespective of status" may apply for asylum. There are specific exceptions that don’t cover Elián.

The District Court’s decision could be read to say that the Attorney General may add on additional exceptions. That would be a ruling of law, and the District Court said we have to defer to her ruling of law. I think that language in the District Court opinion, as much as anything, is what has caused some human rights groups concern, because it seems to give a very sweeping power to the Attorney General. INS, however, has not taken that position. They’re not saying that there is an exception that applies. They’ve made it much clearer in their briefs in the Eleventh Circuit that the argument is not whether Elián may apply for asylum, it’s whether he has applied. And to decide that, you have to apply the conflict standard to decide whether or not to honor the parent’s wishes.

Let me just say one more thing. People have overread the Eleventh Circuit’s ruling on the preliminary motion. It’s an asylum case. Obviously that creates substantial weight in the balance of the equities in favor of keeping the person in the country until the legal battle is over. On that basis the court essentially said it would apply a lower burden in evaluating the plaintiffs’ likelihood of success on the merits. It’s not a requirement to show that they are then likely to prevail, but rather that there is some substance to the claims that the family is making in asserting that the asylum application filed in Elián’s name must be heard. If you go back and look at the Court’s language, you will see that it was widely overread in the press. The Court does not say INS was wrong in its approach. The opinion says things like "it is not clear that INS’s position was correct," or is "it questionable whether this will ultimately be sustained." That’s much softer language than what came through in most of the reporting. So I think there’s ample room for the Court to rethink those conclusions from this point on.

Kathleen Newland: OK. Thanks a lot, David. I’m glad you mentioned the guidelines that had been issued both by the first the UN High Commissioner for Refugees and then echoed by the INS, echoed and adapted. And I know, Wendy, you were very involved in the process of getting the UNHCR guideline adapted for application in U.S. cases. I wonder if you could talk a little bit about that. How do those guidelines on children asylum seekers apply generally? And, in your view, have they been applied in this case? Have they been applied properly and has due consideration been given to the rights of the child to be considered as an asylum seeker?

Wendy Young: I should say that the Women’s Commission has been doing a project for several years looking at the treatment of both women and children in the US asylum system. We actually did file a brief before the Eleventh Circuit joining with the Lawyers Committee for Human Rights and the Florida Immigrant Advocacy Center. That brief explicitly did not take a position on the particular facts of this case, but rather instead tried to draw the court’s attention to the broader considerations of children seeking asylum. And our concern really in this case is that we not set a precedent that’s going to hurt the many other kids that are in the system. If there’s a silver lining to this case, and I think it’s a stretch to say there might be one, it is that we have finally brought some attention to the bigger picture here.

INS has now released statistics, for example, that say that last year alone they had 5,600 children in their custody but these are unaccompanied children. Let me just say that the treatment those thousands of other children receive is nothing like this case. Just take the fact that Elián has had five to seven lawyers. Most children go through proceedings with no lawyers. The fact that his case has become a debate in presidential elections and that high-level officials within the Justice Dept., the INS, the White House are spending hours of their days looking at this one case. That does not happen for most children. And finally, it is a fact that most kids actually end up in detention with the INS, which could last for a few days or for over a year. I know one child right now who has been in INS detention for 22 months and is being held in a juvenile correctional facility on top of that. So, as Kathleen pointed out, one of our successes in working on this issue with the INS was- and I have to give them a lot of credit- that they were very receptive to working with us to look at the unique guidelines on policies and procedures for dealing with children seeking asylum. We looked at the Canadian guidelines for child asylum seekers and learned from those guidelines and put together very solid guidelines of our own, which, as I think David mentioned, were issued in December 1998. These are the INS guidelines for children’s asylum claims, and I think these guidelines go a long way towards recognizing the very special and very unique needs of children in asylum proceedings.

Let me just briefly spell out some of the things the guidelines address. Basically what they do over all is establish legal, evidentiary procedural standards for the adjudication of children’s asylum claims. They are based on the notion that children can seek asylum and I think this is a very important principle that everybody cares about. Children are not excluded from refugee protection because of their young age. The issue is not their eligibility for asylum but their capacity to apply for asylum. And this is where the guidelines come in. They establish or basically lay out tips that asylum officers and immigration judges can use, about how you interview a child, even at a very young age. And they acknowledge that very young children may appear in our asylum system. This doesn’t get us off the hook, it just gives us a challenge to the system. How do you interview a child at a very young age? How do you reach the facts of his case? They talk about the level of evidence that may be required in these cases. They point out also what is reflected in international guidance on these issues, that in a young child’s case, the adjudicators may be in a position where they’re going to have to rely more heavily on objective evidence, rather than the testimony of him or herself. And they also provide a legal framework for looking at children’s claims and they point out that children in today’s world are often direct targets for human rights abuses. Some of these abuses are very unique to children -- child labor, young girls fleeing female genital mutilation, child prostitution, child censure issues, and sexual slavery as it is inflicted on girls. Even though these abuses are perhaps fairly new and unique in today’s world, that doesn’t mean that they’re excluded from consideration under our asylum laws.

I think I’ll stop there.

Kathleen Newland: OK, thanks very much, Wendy, I agree with you. That’s one of the key general principles in this case, which is that even very young children can have valid asylum claims. It’s important that we not lose sight of it in considering the particular merits of Elián Gonzalez’s case.

Professor Regan, I’m really pleased to have a specialist in family law on this panel, because a lot of what I’ve read has been focused on the asylum claim and the immigration claim and so on. I’d like to ask you to give us a picture of how family law thinks about the capacity of a six year old in a legal proceeding. Obviously, they have rights. Family law courts deal with very young children all the time in custody cases and so on. How does a court take their rights and preferences into account? Just give us a picture of how this works.

Mit Regan: For one thing I think it’s important to echo what Wendy said: You have to distinguish between children as possessing certain rights, that is what the law calls being ‘parties in interest.’ Those may be rights granted by statutes, such as eligibility for various welfare benefits. It may be that the child is a beneficiary under a trust or named in a will. It may be that the child has suffered personal injury and therefore would be able to have a right to bring a tort action. You have to separate that question of whether the child has rights (and of course in this case that issue is reflected in the question of whether Elián Gonzalez has the right to bring asylum claim, notwithstanding his status as a minor) from the question of when a minor, if at all, is capable of instituting such a suit, that is directing it and having his or her wishes followed. Generally, in family law, what are called unemancipated minors, that is minors who haven’t established that they’re living separate and apart from the parents and supporting themselves, do not have the capacity to sue in their own names. Therefore, someone must represent them in court. The federal rules of civil procedure, Rule 17c, provide that in that sort of instance, what’s called a "next friend" or a guardian ad litem appointed by the court can sue on the child’s behalf. Typically, the parent is the party, presumptively, who is designated to speak on the child’s behalf as the party of interest. However, when there is a disagreement between the parent and the child, there is at least a possibility that a non-parent might be appointed to represent the child’s interest.

There are really two situations when that’s the case. One is when the child is deemed to be cognitively capable of making a decision regarding important legal rights, such as the right to have an abortion, for instance, or a right to refuse or accept medical treatment. There’s no uniform standard among the states for cognitive capability. This is typically a matter of state law. Certainly many of the states and much of the literature suggests that, around the age of fourteen, children are at least presumptively regarded as cognitively capable. In some instances, it will vary. That’s a presumption. It could be that a child who is even younger might be deemed sufficiently mature to be able to make a decision to pursue a lawsuit over a parent’s objection. That’s going to be determined on a case-by-case basis. What would happen in such instances is that the court would conduct an interview essentially with the child to determine just whether he or she is sufficiently mature to be able to direct his/her own representation.

So that’s one instance in which the parent may not be speaker for the child in conducting the lawsuit. The second is when there is perceived potential for a conflict of interest between the child and the parent so that even a child who’s not regarded as cognitively capable of directing their representation should not have a parent speak for him or her if there is some doubt that the parent will be able to act in a disinterested fashion with the interest of the child in mind. In this case one of the claims, for instance, was that Juan Miguel Gonzalez was really being coerced by the Cuban government. Therefore his expressed preference really did not reflect his disinterested assessment of Elián’s best interest. It was simply the result of political pressure.

There is at least one precedent in the immigration context, the case regarding the young man whose parents came from the Soviet Union, who at the age of twelve did not want to return with the family to the Soviet Union. By the time that the decision was rendered he was just short of his eighteenth birthday and that clearly affected the court’s determination of how to resolve it. But the court did say that the age of twelve might be at the very low end of the spectrum on which the child might be deemed capable of asserting independent interest for asylum purposes.

So generally children are interviewed for the purpose of determining whether they are capable of directing their representation on their own. In this case I think the argument that the INS should have interviewed Elián isn’t particularly weighty. If twelve is the low end of the spectrum well, six is half of that. You can do the math. I think it’s a case where the INS almost has to take judicial notice of the fact that a six year old, actually someone who has just turned six, I think he was five years old when he was picked up, was simply not going to be able to express a preference in a meaningful sort of way. Then, as David and Alex have indicated, the INS goes on to try to ascertain whether there are any objective conditions for him being able to assert a claim over the objection of the parent.

My sense, and I am not an immigration law specialist- although I’ve learned a lot as this case has gone on- is that both the provisions and the way the INS has conducted the matter parallel very closely what happens in a typical family law case.

Kathleen Newland: Could you just say one brief word about this concept of "next friend"? It’s a peculiar sort of construction. How does a court decide who speaks for the child? You said presumptively it’s the parent, but when that presumption is challenged?

Mit Regan: When that presumption is challenged, a "next friend" is usually someone who has a sufficiently close connection to the child that he or she can be regarded as someone who will act motivated by the desire to vindicate the child’s best interest. In some cases the appointment of a guardian ad litem might introduce someone whose roll is somewhat different: technically speaking, an attorney for a child who is supposed to vindicate that child’s interest. Legal and ethical provisions say that to the extent you can, when you’re dealing with what’s called a "client under a disability" such as minority status, you’re to follow the wishes of that client, at least as much as possible. A guardian ad litem is someone who’s supposed to step back and take a more dispassionate view. They’re really more of an arm of the court than is an advocate for the child.

The two begin to blend as the child gets older, closer to maturity, because then there is a heightened duty to pay more attention to the preferences of the child because the child is deemed more capable of forming meaningful preferences. Given that backdrop, a guardian ad litem might conclude that there is an important consideration in deciding what is in the child’s best interest.

Kathleen Newland: I think Alex and Wendy both wanted to weigh in on this point.

Alex Aleinikoff: First of all, I just wanted to point out that I believe that in the most recent brief filed by the family, they assert that Elián has a mental age of eleven. But my question is this: The Court of Appeals opinion notes a couple of times that people can go to prison based on the word of four year olds. In other words in sexual abuse cases, a four year old’s testimony may be taken and can be used to put people in jail. How do you mesh that with the idea that a six year old can’t state a preference to file an asylum claim?

Mit Regan: Well, first of all, it’s very rare. There’s no single uniform age for competency to testify. By statute and common law the lowest presumptive age is around ten. In most states, it’s fourteen. Again, it’s rebuttable, so that it’s conceivable that a four year old might be regarded as competent for purposes of testifying. My sense is that in those cases often that’s the only sort of evidence there is. The court is loathe to dismiss out of hand the word of the child. The court is going to make a determination on a case-by-case basis. I have to say that’s a case where concern about maturity really does come in conflict with desire to protect the child from imminent harm.

Alex Aleinikoff: Isn’t that an argument for interviewing Elián here to see if he could make the statement on his asylum claim-- the same as a four year old can make statement when harm is imminent?

Mit Regan: I think that probably the INS position would be that it’s not a comparable situation of imminent harm. Physical injury has a gravity that this notion of well-founded fear of persecution doesn’t necessarily. And the ability to articulate a well-founded fear of persecution probably requires more sophisticated mental processes than the ability to simply relate what happened, to put the past into a physical event. That’s the way I would imagine that would be distinguished. But again it’s a spectrum. It’s a case-by-case determination and it really depends on the nature of the child’s interest in any given instance. So there’s not only lack of uniformity with respect to any bright line of competency. The weight given to what the child says is going to vary depending on the interest at stake as well.

Kathleen Newland: Thanks a lot, Mit. Wendy, the question of guardianship is one that, as I look at the UNHCR guidelines, they seem to mostly have in mind the cases of unaccompanied minors. That’s another respect in which this one is pretty unusual in terms of asylum cases. That sort of puts a different light on the guardianship issue.

Wendy Young: I think that, stepping back, this issue of whether a parent is speaking for the child and reflecting the child’s best interest can be critical. There really are three scenarios that I think can come up in the asylum context. One is the situation of a truly unaccompanied minor; we just don’t know where the parents are, or the parents are dead or missing in action.

The second is where the child has actually fled an abuse that’s being inflicted by the parents or condoned by the parents: for example, a young girl who’s fled female genital mutilation where very often the family has condoned this as a cultural practice.

Third, possibly - I’ve never seen a case like this but I could conceive of it- is a case where there are two parents in the picture and they aren’t necessarily agreeing on what should happen to the child.

I think that this notion of appointing guardians ad litem to unaccompanied refugee children is one that we need to explore more fully, looking at our own domestic context and seeing how guardians work, but also looking internationally. This is a concept that UNHCR has suggested could be useful in the case of unaccompanied minors. The United Kingdom, for example, has put together a panel of advisors for unaccompanied children seeking refugee status there. These advisors are people who have experience working with children. They have child welfare backgrounds, education backgrounds, etc. They’re also very careful to make sure that these advisors are culturally appropriate to the children because, of course, that’s another challenge to face with this particular population. The purpose of the advisor in the United Kingdom, is very broad. They can hire and fire counsel. They insure that the child is accessing any social benefits that they might be eligible for in the United Kingdom. They help the children understand the nature of the refugee process that they’re going through and help them to articulate their own desires for the future. I think that’s a model that we should be looking at very carefully.

In Canada there’s another model. They appoint a designated representative to children in refugee proceedings there. The designated representative very often is the family member, however. So that’s something to think about.

Even our own guidelines, the INS guidelines, open the door to this concept. There’s a provision in there that deals with allowing a child to bring a trusted adult to the immigration proceedings. Here they follow the Canadian model and say that generally the trusted adult would be a family member. So they do stop short of the UK model where you have somebody who’s more of a professional filling that role. But I think if this case has done anything, it has really highlighted that this is a critical question whether the parent is reflecting the interests of the child. But the current system isn’t really set up to deal with how you address that issue. And I would throw out another concern, which is, I’m not sure that the INS is the agency that really should be making that determination. It’s not a child welfare agency. It does not have this kind of expertise. When children are in INS custody there’s also an inherent conflict of interest because this is also the agency charged with their removal from the United States. So I would suggest in looking at this further, we also need to think who should be making this decision and that this decision needs to be made quickly and it needs to be made under a clear set of criteria, not by the INS.

Kathleen Newland: That’s an interesting point. I want to save a little time also for questions, but just spice things up with one more general question. I think I’ll start with David. On the question of the removal of Elián Gonzalez from the Miami family’s home: was this a legal action? Was the INS in conformity with the law? Was the raid legal?

David Martin: I think the raid was legal. It’s most unfortunate that it came to that, and we should evaluate it in context. The Justice Department worked for months to try to develop various scenarios to avoid that outcome, even to the extraordinary length of Janet Reno going personally to Miami to meet and try to work out something with the family. But she was rebuffed on that. When INS terminated the parole, the family said essentially - - and I think these were the exact words: "You’ll have to come get the child by force." The great uncle said that at one point. It should not be surprising that that’s exactly what unfolded. It’s most unfortunate that the standoff forced that result.

There have been challenges raised, and a lot of play has been given to an op. ed. piece by Prof. Larry Tribe of Harvard, who is a distinguished constitutional law scholar. As I read his challenges to the search warrant and to the raid, it struck me that maybe some of the accolades that Prof. Tribe has been getting as a distinguished constitutional law scholar had gone to his head and he felt he wasn’t subject to some of the obligations that mere mortals who write op. ed. pieces are subject to, such as reading the warrant they’re criticizing and researching the law on which it’s based, specifically immigration and criminal law.

Let me spell that out a little bit. Basically what Prof. Tribe said was that search warrants are to seize evidence, not people. And that is the traditional and customary use of search warrants. But this claim overlooks an important change in the rule governing search warrants in 1979. The rule was changed to give specific authority to get a search warrant, to search for, and seize if necessary, persons who are held and restrained unlawfully. The report that accompanied that amendment said that ordinarily such persons will be held against their will, and in that case the persons are of course not subject to seizure. Ordinarily that’s the case. But nothing has been ordinary about this particular case. I think seizure here was appropriate. There was legal authority for a warrant, and I think it’s a very good thing that we had a neutral magistrate who looked at the INS case and authorized going into a home in those circumstances.

Secondly, Prof. Tribe said Elián is not an illegal alien so that the usual rules applying to them can’t justify INS’s action here. Of course, INS has been trying not to treat this case in that fashion. But the right reading of the statute, regarding the status or non-status that he had here, must lead to the conclusion that, yes, Elián was an illegal alien, although just in a highly technical sense. He was initially paroled into the United States. When the parole was terminated, as Alex mentioned -- I believe it was April 13 or 14 -- that not only ended any authority the uncle had to retain the child, it also meant that Elián was not entitled to be at large in the country. So INS did get an arrest warrant, an administrative arrest warrant, for Elián Gonzalez and used that as part of the foundation for the search warrant. Their purpose in seizing him and arresting him was entirely in order to reparole him, as they have done now, to the custody of his father, immediately. It was perfectly appropriate. I think the raid was legally appropriate and I think it was unfortunately necessary under these circumstances.

Kathleen Newland: Thanks David. I want to turn the discussion to what might be the outcome of this case. But before we do that, are there any questions on some of these legal issues?

Audience member: I practice Immigration Law in Washington, DC. Do the briefs cite any direct challenges to the father’s fitness? There was a suggestion of something such as the inherent coercion from Castro. Is there anything specific that challenges the fitness of Juan Miguel as the representative?

Alex Aleinikoff: I think the claim that’s woven throughout is that even if there’s a loving relationship between father and child, any father that would opt to have his kid returned to Cuba is not acting in the best interest of that child. And that’s been U.S. policy for forty years, under the Cuban Adjustment Act. It is true that we now have an interdiction policy that says that if you’re interdicted on the high seas, you can be returned. But, there is some history behind a claim like that. David, do you see anything else that makes the claim here as to why there might be a conflict between parent and child? It’s heightened a little bit in this case because the claim is not that just any kid would be entitled to asylum from Cuba. The Miami relatives argue that this child in particular would become a trophy for Castro and be paraded around Cuba and his life would no longer be his own because he would always be on display as the great victory of Castro over the United States.

Audience member: That constitutes persecution?

Alex Aleinikoff: Well, that’s a different claim. The question was going to the issue whether the father shouldn’t represent the child, which requires some conflict between the two. The issue whether that would then win on the asylum claim- that we may want to get to. It’s much harder to show that he would be persecuted in any meaningful sense on the basis of political opinion or membership. But the question of conflict goes to whether or not the court should allow the application to be filed at all.

David Martin: It may well be the case that in any given instance a parent can be deemed a fit parent, in the sense that the state could not terminate that parent’s rights of control or custody over the child, but with respect to a particular issue might not be deemed an appropriate representative. That is, he or she might be disqualified because of a conflict which is confined to the specific issue so that a fit parent in some circumstances might nonetheless not be regarded as an appropriate representative or next friend. It’s important to keep those distinctions in mind.

Audience member: I just have a very elementary question. How did Elián actually get to Lázaro? I don’t know how Lázaro inserted himself into this. How did INS determine that there was a family there? Was he able to say his name was Gonzalez?

Alex Aleinikoff: My understanding of this is that Juan Miguel called his family in Miami when he discovered that Elián was gone. He said, "My God he must have gone to the United States." So he called and said to watch out for him. And that then alerted the family to the fact the boy was coming. Maybe people from the Cuban Interest Section want to add to that, the actual specifics about who called whom.

Audience member: I’m with INS. There’s some dispute about when the phone calls occurred and how they occurred. The family members in Miami were alerted to the fact that the child would be arriving. When they heard about the child, basically they learned about it on television or radio reports. They did go to the hospital to say that they were relatives. At that time the child was paroled into their custody by INS on a temporary basis.

Kathleen Newland: Any other questions?

Audience member: Do any of you find it rather odd that the INS went to Cuba to interview the father? Is this what we do with a child from Haiti?

Wendy Young: I think this is unusual, for the INS to go out and actively seek out the parent in the home country. Actually I have an opinion from an immigration judge in Chicago which is interesting. This was a case that I actually sat in on. It concerned an eleven year old Indian girl who fled abuse by her parents and then the parents had sold her to traffickers who brought her here to the United States where the INS apprehended her at the airport and placed her in detention. At the hearing, the immigration judge raised the point that he had repeatedly asked the INS to try and contact her parents in India to try and assess what was happening in the home country and that the INS had failed to do so. So I think that provides an interesting point of contrast.

In terms of our amicus brief, again we do not take the position on the specifics of this case, but we look at international law and U.S. asylum law and this notion that the Attorney General has the discretion to decide who can and who cannot apply for asylum and delineate that. The statute is very clear on the point that any alien can apply for asylum, and it is not appropriate to be placing age restrictions on that. It is a dangerous precedent to be expanding the Attorney General’s discretion to grant asylum, or to decide who can apply for asylum. I think this is important to keep in mind, not only for children, but if we allow this to stand on the books, it could set a dangerous precedent for other populations, too.

Kathleen Newland: Anybody else want to comment?

David Martin: It was quite appropriate for the INS to do some kind of inquiry, because just for someone to say "I’m the father, so honor my wishes" isn’t enough. There were reasons to go and see whether he was the father and whether he met the traditional standards of fitness, looking at neglect and abuse issues, and also to look into the question of possible coercion or other conflicts of interest. There are a number of family law questions that INS has to deal with in a number of its roles. One could argue for it to look into doing different recruitment if this becomes a common pattern. I don’t think it’s inappropriate to say that INS should look at those kinds of issues at various times.

Kathleen Newland: I would think there’s at least something of a "common sense standard."

Audience member: I’ve been struggling with how all this fits in with expedited approval. There, the Congress says not any alien can apply for asylum and particularly an alien in this situation would be subject to expedited removal. Normally someone who came in on a Coast Guard cutter and was in an expedited removal context would have to make a credible fear of persecution showing to be able to apply for asylum. The INS has elected not to apply that to children, which is appropriate. Then the question is what does the INS do with an unaccompanied child? This whole case raises an interesting question whether the child should be in a full-fledged adversarial hearing before a judge particularly because under our procedures and regulations children do not get counsel appointed for them. In that context a child could apply for asylum. The child is in the custody of relatives, which we have all recommended over the years that the INS should do. The relatives find lawyers and they file an asylum claim. I think that the INS really could and should have handled it differently. What the court decides they could do is a different question. But I think the INS can and should have handled it differently to either consider the asylum claim and all these questions in a more formal type of context either with the asylum office - it didn’t have to be the local Miami asylum office- or someone from the central office, or a regular hearing. I think this would have been more open, more akin to their normal procedures. There wouldn’t have been a lot of this question of the INS manipulating the law. I think that when you reach the persecution question, once the father arrived on the scene, then it would have been a different question. But as long as the kid was still unaccompanied, I don’t understand how they made up entirely new rules and disregarded their own procedures.

Kathleen Newland: Let me ask just one very quick yes or no question to Mit. Once a child was in the custody of relatives, was he unaccompanied?

Mit Regan: Unaccompanied according to immigration law? There’s really not an analog in family law to that sort of situation. It would be a presumption that the family could serve as legal guardians for some interim period.

Alex Aleinikoff: I just want to respond to the previous point. You said a lot of things that may need a little bit of unpacking for non-lawyers. The way to think about it is to assume that the Eleventh Circuit rules that the Attorney General wrongfully refused to accept the applications from the family. What happens next? It goes back to the INS to hear these asylum claims. What Carol mentioned is that under the 1996 law that Republicans who are now screaming about the need for courts in this process were asking for less court interference and they enacted expedited removal. These provisions say that someone who comes in without papers (as Elián did) goes through expedited removal, which means that first they need go to an asylum officer to prove that they have credible fear of persecution, a low-level standard. If that’s granted, then they go to a full hearing before an immigration judge on the asylum case. If the child does not have a credible fear, there’s no judicial review of that decision at all. So, if Elián goes back to expedited removal, he could actually end up with not much procedure. The INS does have internal guidelines, not legally binding, that recommend that children not be put in expedited removal proceedings. They should be held for full immigration judge hearings. The law is clear that if you arrive without papers you go into expedited removal. So INS gets around the law by adding an additional charge of removal. And the charge they use is "likely to become a public charge." That’s a ground of inadmissibility. It’s not clear to me that that charge is available in this case. It’s very unlikely that Elián is likely to become a public charge. I think, therefore, that the INS has a bit of a problem getting out of expedited removal. Carol’s question is that since the INS generally goes around expedited removal for kids, how can they not, in effect, do that here by allowing Elián to file the case. I think the difference is that in the normal case of the unaccompanied minor, you don’t have a parent in the picture, in which case what you say would be perfectly appropriate. Here the parent came forward two days later, before the asylum claim was filed and said "I’m withdrawing the application for admission." I don’t want an asylum claim- which short-circuits any immigration proceeding. I think that’s the crucial difference here. At that point, the INS has to make a decision as to who speaks for the kid and then everything follows from that.

David Martin: Could I address that briefly? First of all, I wouldn’t jump immediately to considering the claim the relatives filed, even though they validly had been given the temporary care of the child. The brief for Juan Miguel makes the point that the parental interest and the interest in family unification are also of constitutional stature and need to be honored. We are close to the dividing line here. I think INS had the right factors. One can argue about their assessment of the conflicts and whether they should have gone ahead to a full asylum hearing. But to have a preliminary review, before you consider just any application that comes in against the wishes of the parent, is very important, and I think one can argue that it’s constitutionally mandated.

Secondly, if Elián’s case goes back, if there has to be an asylum hearing, it’s a really knotty question just what the proceeding is. It could be an expedited removal. There could conceivably be a basis for that. Or it could be heard in a manner that goes all the way to the immigration court. But that’s not clearly required, because we have a situation that falls between the cracks in regulations, since the application for an admission has been withdrawn. If the Eleventh Circuit rules for the uncle, there will be an asylum hearing. But the withdrawal of the application for admission, at the father’s request, has not been challenged. So I think that withdrawal is essentially final. This case therefore falls between the cracks. Perhaps the best argument is for saying that this is the kind of case that should go to an asylum officer for a full interview. The officer would then have the authority to grant or deny, rather than grant or refer on to immigration court, which is the usual procedure. I don’t know if that’s right. I think any course that’s followed now -- expedited removal, full immigration court hearing, going to an asylum officer -- any one of those is subject to further procedural challenge, and that’s part of what has the father very concerned.

Kathleen Newland: This gets clearer, but not easier.

Wendy Young: I want to go back up to the beginning of what David said where he made a comment to the effect that it’s troubling to think that relatives can be filing asylum claims on behalf of children.

David Martin: Just that such a claim would be given automatic effect.

Wendy Young: Setting aside this case, I find your generalization really troubling because most of these kids actually end up with relatives, not with a parent suddenly appearing two days later and reclaiming custody. I was in Miami three weeks ago. They had a three year old Somali in custody whom they just released to relatives in the United States.

David Martin: When the parent is in the picture saying the opposite, "I want the child back with me," then I think you have to have a preliminary review. I don’t want to disable relatives altogether from filing a claim on behalf of a child.

Wendy Young: I hope not, because otherwise you’re going to find a lot of kids immediately left out of the system.

Kathleen Newland: I think that the judgment that the INS made, in what we assume to be a considered fashion, that the father is a fit parent is absolutely central in this.

Audience member: I have a question about prohibition on Elián leaving the United States. I’ve heard the argument that the United States really doesn’t have any legal instruments to prevent someone from leaving the country short of arresting them and having them in custody. If the court battle gets dragged out and he changes his mind and they get in the car and drive to Mexico to take a flight back to Cuba subsequently, or Canada, does the United States have the legal authority to prevent their fleeing the country. I’ve heard that they would just be held in contempt of court once they leave, but so what?

Alex Aleinikoff: There is a statute that authorizes the President to prohibit any alien from leaving the United States. That power was delegated to the Attorney General, and that’s why the Attorney General’s office issued the departure control order. Right now it’s being enforced. If you think about it, Elián’s at a compound in Maryland surrounded by U.S. Marshalls and is not going anywhere that the government doesn’t want him to go. It’s kind of house arrest I suppose to some extent. But if he actually got to the airport, yes, the INS could send Marshalls and stop the plane from taking off-- not because of the court order, but because the Congress has delegated the authority to the President to keep people in the country, and the Attorney General can seek to enforce that.

Now I think there’s an interesting issue under international law under about whether that statute is legal. I thought everybody had a right under international law to return to their own country of origin. But in terms of raw power, I think the Attorney General has the power to hold someone.

Kathleen Newland: The right to return home is in the International Declaration of Human Rights, but that’s not binding international law.

David Martin: The right to leave is not absolute. It is subject to some qualification. I think there’s a good case to be made that this was one of those circumstances. A departure control order can also be used to notify air carriers and others to stop the departure. That has been used in the past. There was a case I was involved in twenty years ago involving a Soviet ballerina. There was a question about whether she was leaving voluntarily. An order served on the carriers and the airports helped to prevent departure. So I think there are ample instruments in place.

Kathleen Newland: We’re very nearly out of time so just quick questions.

Audience member: The Vice President, among others, has said that this is a custody matter for a family court and not an immigration matter. Is there any merit to his case?

David Martin: The short answer is "no". I think an argument can be made that the family court is preempted by federal immigration law. Certainly it’s conceivable that it could have been framed and pursued as a family law issue initially. But the fact that there’s an asylum claim in the picture really makes it a question of federal law and the Constitution preempts any sort of family court resolution.

Alex Aleinikoff: That position taken by the Vice President (and others on the other side of the political spectrum) that a family court should decide, has one further embarrassment to it. The Florida family court dismissed the uncle’s case not just because the federal courts were involved. That was half the opinion. The other half was that the uncle doesn’t have a case under Florida law. Great uncles are not within the scope of people who may bring this kind of action under Florida law. To make a stand in favor of the state’s authority when the state court itself has authoritatively ruled that the action can’t proceed is, one would think, embarrassing.

Kathleen Newland: One final question.

Audience member: There’s been concern raised that a broad interpretation of guardian ad litem proposals might have a very negative effect on the large number of outstanding child abduction cases and might conflict or seriously weaken the provisions of the Hague Convention on child abduction. I think the State Dept. has sometimes referred to this. Do you think this collateral concern will be addressed and whether it’s relevant?

Mit Regan: Of course, Cuba is not a signatory of the Hague Convention. It’s hard to predict but it’s conceivable there could be collateral consequences. One of the ironies of Cuba not being a signatory is that most states have construed the domestic parental kidnapping laws that prefer returning a child to the home state. State is defined to include foreign countries as well. The result would be that in cases like this, the court would be virtually required to return the child to Cuba without considering any of the defenses that can be raised under the Hague Convention, which basically fall into the category of some sort of risk to the child upon return. It’s sort of a peculiarity then, and there’s been much commentary and criticism of this, that nonsignatory states may perceive more advantageous treatment under these domestic statutes than signatories.

Kathleen Newland: Well I think you’ve addressed the question very directly. I thank you.

I’m afraid we are out of time. I would love to have gotten into some crystal ball gazing by our panelist about next steps. But we’ll have to save that for another occasion. I’d like to thank you for coming and to warmly thank our panelists for shedding light but not heat.