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An Answer for Elian
by Gary Endelman, Esq.

Gary Endelman practices immigration law at BP Amoco Corporation. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP Amoco Corporation in any way.

Biography May 04, 2000 -- There is a possible answer that US immigration law has for Elian Gonzalez, but it may not be the one generating so much sound and fury. Beyond that, the larger importance of this whole episode may be to serve as an impetus for the enlargement of children’s rights, something that will endure regardless of where Elian eventually grows up.

In 1966, at the height of the Cold War, Congress passed the Cuban Adjustment Act which could be a way for Elian to stay here. Under this law, any Cuban citizen, regardless of age, who is inspected and admitted or paroled into the United States, is entitled to stay temporarily in parole status and be granted employment authorization. One year and one day later, he or she may apply for adjustment of status to lawful permanent resident. This remedy remains on the books and has been previously applied to unaccompanied minors form Cuba, though not in a high profile case where, as here, the interests of the child are actually or potentially adverse to those of a sole surviving parent.

The merits of Elian’s asylum claim, or indeed whether this claim will be heard at all, will soon be decided. What is striking about the recent preliminary decision by the Eleventh Circuit Court of Appeals which enjoined Elian’s departure form the United States is the extent to which the Court expressed a willingness to consider Elian as a free and competent actor separate from the authority of his father or great-uncle. Most disinterested observers find it hard to believe that a six-year old child can have a well-founded fear of persecution on any ground that could possibly serve as a credible basis for a grant of asylum. The INS was on solid common-law ground by maintaining that only his father could speak for the boy who lacked the capacity to do so for himself. Yet, since the INS had never spoken with Elian, the limits of such capacity remained unknown. The asylum statute contains no age restriction, but speaks of "any" alien irrespective of "status;" perhaps the concept of "status" can be stretched to include that of age as well. If Congress had meant to bar young children from applying for asylum, as it singled out serious criminals, speculated the Eleventh Circuit, it would have plainly said so. The fact that it did not evidently meant something as an indication of legislative intent on the issue. Moreover, the Eleventh Circuit placed great weight on the INS own asylum guidelines which clearly contemplate that, in some circumstances, a child can indeed seek asylum against the express wishes of his or her parents. In fact, the INS guidelines go so far as to caution that, "Asylum Officers should not assume that a child cannot have an asylum claim independent of the parents." The INS Guidelines mandate that "when…it appears that the will of the parents and that of the child are in conflict," the INS asylum adjudicator must decide if the minor has a well-founded fear on the basis of all circumstances which "may call for a liberal application of the benefit of the doubt" (emphasis added). In the January 1999 INS Asylum Officer Corps Training Guidelines for Children’s Asylum Claims the Service discusses three age-based developmental stages (0-5, 6-12 and 13-18 years) and offers guidance to asylum officers on dealing with children in each such category.

It is easy to become mesmerized by the blaring headlines, the dramatic pictures, the raw human emotions and personal tragedies of the Elian Gonzalez case. For Elian and his family, both immediate and extended, the importance of his asylum claim is intensely personal. It is hard to tell the players without a scorecard. Those on the left who constantly complain that the INS is too strict and does not give asylum claimants a full opportunity to make their case, wonder why the Service has not yet sent Elian back to Cuba. Those on the right, who never met a due process protection for undocumented aliens that they did not want to take away, rush to create new protections for Elian that asylum applicants rarely, if ever, get to enjoy. Is this about Elian or is it about Cuba and our attitudes toward Fidel? Leaving politics aside for a moment, the truth is that the Cuban Adjustment Act, rather than asylum, is the most appropriate legal basis for Elian to remain in the United States. Beyond that, the willingness of the Eleventh Circuit to consider what Elian says he wants is a reflection of the extent to which the growing movement for children’s rights, that has already influenced so many other area of American jurisprudence, has now made a deep and perhaps lasting imprint on US immigration law in the person of a small and confused Cuban boy. Long after Elian stays or goes home to Cuba, it is this that he may be most justly remembered for.