Appeals Court Excerpts

Excerpts from the Thursday's 33-page ruling by a three-judge panel of the 11th U.S. Circuit Court of Appeals in the Elian Gonzalez case. The judges sided with the government, saying that immigration officials acted properly when they denied an asylum hearing for the boy:

From the three-judge panel's conclusion, written by Judge J.L. Edmonson:

"When the INS was confronted with Plaintiff's purported asylum applications, the immigration law of the United States provided the INS with no clear answer. The INS accordingly developed a policy to deal with the extraordinary circumstances of asylum applications filed on behalf of a 6-year-old child, by the child himself and a nonparental relative, against the express wishes of the child's parents (or sole parent). The INS then applied this new policy to Plaintiff's purported asylum applications and rejected them as nullities.

"Because the pre-existing law compelled no particular policy, the INS was entitled to make a policy decision. The policy decision that the INS made was within the outside border of reasonable choices. And the INS did not abuse its discretion or act arbitrarily in applying the policy and rejecting Plaintiff's purported asylum applications. The Court neither approves nor disapproves the INS' decision to reject the asylum applications filed on Plaintiff's behalf, but the INS decision did not contradict 8 U.S.C. 1158 (federal law).

"The judgment of the district court is AFFIRMED."

From the body of the ruling:

"When an alien does apply for asylum within the meaning of the statute, the INS according to the statute itself and INS regulations must consider the merits of the alien's asylum claim. ... The important legal question in this case, therefore, is not whether Plaintiff may apply for asylum; that a 6-year-old is eligible to apply for asylum is clear. The ultimate inquiry, instead, is whether a 6-year-old child has applied for asylum within the meaning of the statute when he, or a nonparental relative on his behalf, signs and submits a purported application against the express wishes of the child's parent. ... Because the statute is silent on the issue, Congress has left a gap in the statutory scheme. From that gap springs executive discretion. As a matter of law, it is not for the courts, but for the executive agency charged with enforcing the statute (here, the INS), to choose how to fill such gaps."

"The INS, exercising its gap-filling discretion, determined these things: (1) 6-year-old children lack the capacity to sign and to submit personally an application for asylum; (2) instead, 6-year-old children must be represented by an adult in immigration matters; (3) absent special circumstances, the only proper adult to represent a 6-year-old child is the child's parent, even when the parent is not in this country; and, (4) that the parent lives in a communist-totalitarian state (such as Cba), in and of itself, does not constitute a special circumstance requiring the selection of a nonparental representative."

"We accept that the INS policy at issue here comes within the range of reasonable choices. First, we cannot say that the foundation of the policy the INS determination that 6-year-old children necessarily lack sufficient capacity to assert, on their own, an asylum claim is unreasonable."

"The applications also alleged that, if Plaintiff were returned to Cuba, he would be used as a propaganda tool for the Castro government and would be subjected to involuntary indoctrination in the tenets of communism. Plaintiff's father, however, apparently did not agree that Plaintiff should remain in the United States."

"We acknowledge, as a widely accepted truth, that Cuba does violate human rights and fundamental freedoms and does not guarantee the rule of law to people living in Cuba. ... Nonetheless, we cannot properly conclude that the INS policy is totally unreasonable in this respect."

"During the pendency of this appeal, the INS revoked Plaintiff's parole and removed Plaintiff from Lazaro's custody. The INS then paroled Plaintiff into the custody of Juan Miguel, who had traveled to the United States to reclaim his son. After Juan Miguel came to the United States, we permitted Juan Miguel to intervene in this case.

"To ensure that Plaintiff would not be returned to Cuba, depriving Plaintiff of a day in court and depriving this Court of jurisdiction over Plaintiff's appeal, we enjoined Plaintiff's removal from the United States pending appeal."

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