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After Elian, When Can a Child Apply For Asylum?
by  Cyrus D. Mehta

June 6, 2000

The United States Court of Appeals for the Eleventh Circuit, on June 1, 2000,  affirmed the lower district court’s decision holding that the Immigration and Naturalization Service properly dismissed Elian Gonzales’ asylum claim.

Most know Elian’s story. He is a six-year-old child who arrived in the United States after his mother drowned when the boat that carried her and several others from Cuba capsized off Florida. Elian was the only survivor.  Prior to the mother taking Elian to the United States, she had separated from his father, Juan Miguel, but he continued to have regular and significant contact with his son.

After Elian was rescued by fisherman off the Florida coast, the INS allowed  Elian into the United States under the custody and care of his great uncle, Lazaro Gonzales. Lazaro, on Elian’s behalf, and later Elian, filed asylum applications so that he could remain in the United States.

Juan Miguel objected that Lazaro sought asylum for Elian and expressed a strong desire that his son be returned immediately to Cuba. After determining that Juan Miguel’s desire was genuine and not coerced, the INS rejected Elian’s asylum claim as legally void. The INS considered Elian too young to file his own application. It cited the custom that parents generally speak for their children and found that this case did not warrant a departure from custom. Accordingly, the asylum applications were considered void.

Lazaro filed a claim in a Florida federal district court seeking to compel the INS to consider the merits of his asylum application rather than dismiss it as being legally void. The district court rejected the claims. Lazaro appealed to the United States Court of Appeals for the Eleventh Circuit in Atlanta, which affirmed the decision of the lower district court.

The appeals court decision centered on the interpretation of the legal provision that allows aliens to apply for asylum in the United States. 8 U.S.C. Section 1158 provides that “any alien…may apply for asylum.” The plaintiffs contended that because Elian is “any alien”, he could and did in fact apply for asylum under this provision. The summary rejection of the application by the INS, without consideration on the merits, violated the statute.
The court disagreed. It reasoned that Section 1158 is silent on the precise question at issue in this case. Although Section 1158 gives “any alien,” including a 6 year old child, the right to apply for asylum, it does not set forth procedures on how such an application may be filed. The court acknowledged that Congress left gaps in the statute, which gave rise to discretion on the part of the INS to choose how to fill the gaps.

The INS used its discretion in determining that only Elian’s father – and not the six-year-old child or the great uncle – could file an asylum application. “Although the courts should not be unquestioning, we should respect the other branches’ policy-making powers,” the decision stated. The court also cautioned that the executive branch cannot have “unbridled discretion in creating and in implementing policy.” In Elian’s case, however, the court did not find the INS’s position unreasonable.

Whether one agrees with the decision or not, some immigration advocates remain troubled by the fact that it gives INS too much discretion in determining a child’s inability to apply for asylum contrary to the parent’s wishes. Although court was worried that the INS policy did not distinguish whether the parent lived in a communist-totalitarian state or not, it concluded that the INS policy was not totally unreasonable in this respect.

There may be situations where a child might need to apply for asylum contrary to the wishes of his or her parent. What if an African girl is fleeing genital mutilation that her father has insisted in accordance with tribal custom? Or another girl has run away from an abusive father because she cannot seek protection against him in her own country? The INS may not allow the child to apply for asylum as it would be contrary to the parent’s wishes, and a court might rubber stamp the decision based on the precedent established in Elian’s case.

Fortunately, the court observed that under the “INS policy, special circumstances may exist that render a parent an inappropriate representative of the child.  Where such circumstances do exist, the INS policy appears to permit other persons, besides a parent, to speak for the child in immigration matters. So, to some extent, the policy does protect a child’s own right to apply for asylum under section 1158 despite the contrary wishes of his parents.”

Let us hope that the INS adheres to this policy when children file for asylum against abusive parents. And if the INS insists that only a parent can file on behalf of the child, despite the abuse, it is further hoped that a federal court will find that the INS abused its discretion. 


Read the Elian Gonzales case.

[You need Acrobat to read this file]

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City.He is the trustee of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award.He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted at 212-686-1581 or