After six-year-old Elian (plaintiff) arrived in U.S. territorial waters clinging to a raft six months ago, he applied for asylum in at least one document he signed personally. When his Cuban father sought to have it withdrawn, the Immigration and Naturalization Service (INS) determined that Plaintiff was too young to make an independent request and refused to consider it.
With the aid of his temporary legal custodian, Lazaro Gonzalez, Plaintiff then sued in federal court challenging this action but that court denied his claim. On appeal, the U.S. Court of Appeals for the Eleventh Circuit grants Plaintiff's motion for an injunction against his physical removal from U.S. jurisdiction pending the decision of his appeal which is to be argued early in May.
The Court first balances the equities. "The equities, in this case, weigh heavily in favor of issuing an injunction pending appeal. Apart from concerns about what might happen to this child if he is returned to Cuba (which we do not address), if Plaintiff leaves the United States during the pendency of his appeal, his case will likely become moot. Our failure to issue an injunction pending appeal, therefore, could strip the Court of jurisdiction over this case and deprive Plaintiff forever of something of great value: his day in a court of law. That circumstance alone presents a significant risk of irreparable harm to Plaintiff." [Slip op. 2]
Nor would an interim injunction offend the interests of the INS. As to the public interest, the INS pointed to the plenary power of the political branches over immigration matters. "But we fail to see how an injunction in this case infringes upon the congressional power; after all, the heart of Plaintiff's appeal is that the INS by refusing to consider Plaintiff's asylum application, has disregarded the command of Congress. And we doubt that protecting a party's day in court, when he has an appeal of arguable merit, is contrary to the public interest." [id.]
Plaintiff has a substantial argument on the merits since 8 U.S.C. Section 1159(a)(1) provides that "any alien who is physically present in the United States... may apply for asylum." Moreover, INS's own regulations and guidelines provide for the "active and independent" participation of minors in asylum proceedings and "contemplate that a minor, under some circumstances, may seek asylum against the express wishes of his parents." [Slip op. 3]
There is also support for the notion that testimonial competency rather than contractual competency should be the proper test for minors in asylum cases. Finally, despite indications that Plaintiff does not want to leave the U.S., INS officials have never tried to interview him about his own wishes.
Even if the INS is right that Plaintiff needs an adult to apply for asylum, it is not obvious that Plaintiff's father was the only proper representative or that Lazaro Gonzalez, Plaintiff's great-uncle by blood, whom the INS had designated as his representative and care-giver, was a legally inappropriate person to have submitted the asylum request on plaintiff's behalf. "Lazaro's interests, to say the least, are not obviously hostile to Plaintiff's interests." [Slip op. 4]
[The Associated Press reports that, just before dawn on April 22, federal agents armed with automatic weapons and using tear gas on the crowd, broke into the home where Elian had been staying and forcibly removed him over his cries and screams. There are indications that government agents may have transferred Elian into his father's custody at Andrews Air Force Base just south of Washington, D.C.]
Citation: Gonzales v. Reno, Case No. 00-11424-D (11th Cir. April 19, 2000); Associate Press Newswires, Sat. April 22, 2000, under byline of Alan Clendenning.]
