Eleventh Circuit holds that, under
Chevron doctrine, Immigration and Naturalization Service did not abuse its
discretion in dismissing asylum application by six-year-old Cuban boy made
against wishes of Cuban parent
In
Cuba, plaintiff Elian Gonzalez was born in December 1993 to Juan Miguel and
Elizabeth Gonzalez who separated when plaintiff was three. Elizabeth kept
custody of plaintiff although Juan Miguel had regular and meaningful contacts
with him. On November 22, 1999, Elizabeth left Cuba to take plaintiff to the
U.S. along with twelve other Cuban nationals. But when strong winds and rough
seas capsized their small boat off the coast of Florida, eleven of the
passengers died, including plaintiff's mother.
Plaintiff
survived by clinging to an inner tube for two days. Florida fishermen rescued
plaintiff at sea and took him for treatment at a Miami hospital. At the
instance of Miami resident and great-uncle, Lazaro Gonzalez, INS officials put
off plaintiff's immigration inspection and paroled him into Lazaro's custody
and care.
Aided
by a Miami attorney, Lazaro filed two applications for asylum on plaintiff's
behalf and plaintiff signed a third request himself. The applications alleged
that the Castro government had persecuted many members of plaintiff's family
for opposing the communist government, e.g., by imprisoning two of plaintiff's
great-uncles for their political activity. Moreover, if the U.S. sent plaintiff
back to Cuba, the complaint alleged that the government would exploit him as a
"propaganda tool" and would involuntarily indoctrinate him in
communist dogma.
When
an INS official interviewed Juan Miguel at his Cuban home, the latter spurned
any claim for asylum by his six-year-old and demanded plaintiff's immediate
return to his custody. INS officials in Miami next met with Lazaro and several
lawyers. Lazaro continued to maintain that the Cuban government was coercing
Juan Miguel to demand plaintiff's return to Cuba. An INS official again talked
to Juan Miguel in Cuba and concluded that he genuinely and freely wanted
plaintiff to come back to Cuba.
In
January 2000, the INS Commissioner turned down plaintiff's applications for
asylum as legally void for lack of plaintiff's capacity to file his own
applications against the wishes of his father. Acting by and through Lazaro as
next friend, plaintiff sued in federal court to compel the INS to rule on the
merits of his applications. The district court, however, summarily dismissed
the complaint and plaintiff appealed. Preliminarily, the Circuit Court enjoined
Elian's removal from the U.S. pending the appeal [see 2000 International Law
Update 59].
Plaintiff
contended that the lower court had violated due process and erred in not
appointing a guardian ad litem for Elian. Rejecting these two points without
extended discussion, the appellate court focuses on the dismissal of plaintiffs
claim under 8 U.S.C. Section 1158 which provides in part that "[a]ny
alien...may apply for asylum." In plaintiff's view, the statute includes
himself despite his young age.
The
INS replied by contending that Section 1158 does not speak to the issue of a
six-year-old's capacity to file an application for asylum against the wishes of
the child's parent. In such instances, the INS was free to fashion a policy
that Juan Miguel be the one to decide whether to seek asylum for plaintiff and
thus to regard plaintiff's and Lazaro's application(s) as legally void. The
U.S. Court of Appeals for the Eleventh Circuit affirms the lower court.
The
basic issue is plaintiff's capacity to file his or her own independent asylum
claim under the circumstances of this case. "The important legal question
in this case, therefore, is not whether Plaintiff may apply for asylum; that a
six-year-old is eligible to apply for asylum is clear. The ultimate inquiry,
instead, is whether a six-year-old child has applied for asylum within the
meaning of the statute when he, or a non-parental relative on his behalf, signs
and submits a purported application against the express wishes of the child's
parent." [Slip op. 5].
So
much for what Section 1158 does say; the problem is how to deal with what
Congress did not say. "The statute does not set out procedures for the
proper filing of an asylum application. Furthermore, the statute does not
identify the necessary contents of a valid asylum application. In short,
although the statute requires the existence of some application procedure so
that aliens may apply for asylum, section 1158 says nothing about the
particulars of that procedure." [Id.]
Noting
that the courts cannot properly reexamine the wisdom of an agency-promulgated
policy to fill the gaps left by Congress, this Court outlines the discretionary
policy choice the INS made in this case. The INS decided that six-year-old
children lack the capacity to personally submit an asylum application without
the representation of an adult. In the absence of special circumstances, the
child's parent is the only proper adult to assume this role, even though the
parent resides abroad. Especially in light of the statutory hiatus, it cannot
be said that these positions by the INS are unreasonable.
Finally,
"[T]hat the parent lives in a communist-totalitarian state (such as Cuba),
in and of itself, does not constitute a special circumstance requiring the
selection of a non-parental representative. Our duty is to decide whether this
policy might be a reasonable one in the light of the statutory scheme. See
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984)." [Slip op. 6]
The
Court does, however, express some misgivings. "We recognize that, in some
instances, the INS policy of deferring to parents -- especially those residing
outside of this country -- might hinder some six-year-olds with non-frivolous
asylum claims and prevent them from invoking their statutory right to seek
asylum. But, considering the well-established principles of judicial deference
to executive agencies, we cannot disturb the INS policy in this case just
because it might be imperfect. (Cits.) And we cannot invalidate the policy --
one with international-relations implications -- selected by the INS merely
because we personally might have chosen another." [Slip op. 7].
Finally,
the Court applies the above principles to the facts of this case. "No one
should doubt that, if Plaintiff returns to Cuba, he will be without the degree
of liberty that people enjoy in the United States. Also, we admit that
re-education, communist indoctrination, and political manipulation of Plaintiff
for propaganda purposes, upon a return to Cuba, are not beyond the realm of
possibility. Nonetheless, we cannot say that the INS's assessment of
Plaintiff's asylum claim -- that it probably lacked merit -- was arbitrary. To
make a meritorious asylum claim, an asylum applicant must show that he has a
'well- founded fear of persecution' in his native land. (Cit.) Congress largely
has left the task of defining with precision the phrase 'well- founded fear of
persecution' to the INS. (Cits.)
"Plaintiff
points to no earlier INS adjudications or judicial decisions where a person, in
circumstances similar to Plaintiff's, was found to have established a
'well-founded fear of persecution.' Political conditions 'which affect the
populace as a whole or in large part are generally insufficient to establish
[persecution].' (Cit.) We cannot say that the INS had to treat education and
indoctrination as synonymous with 'persecution.' (Cits.) Not all exceptional
treatment is persecution." [Slip op. 9-10]
In
sum, the INS did not abuse its considerable discretion in this matter.
Citation: Gonzalez v. Reno, No. 00-11424 (11th Cir. June 1, 2000).
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