Outside the border of reasonable choices

By Sean Hackbarth
web posted June 5, 2000

On June 1, the 11th Circuit of the U.S. Court of Appeals issued their ruling on Elian Gonzalez's request for an asylum hearing. While ruling that Elian could apply for asylum, the court affirmed a U.S. District Court ruling that accepted the INS's rejection of Elian's request.

The court made it clear they did not approve or disapprove the INS's rejection of Elian's application. They felt that the INS acted "within the outside border of reasonable choices." Since U.S. immigration law "provided the INS with no clear answer," the INS had the discretion to develop "a policy to deal with the extraordinary circumstances" of this case.

One of the issues on appeal was whether a six-year-old had the right to apply for asylum. The lawyers representing Elian (through his great-uncle Lazaro Gonzalez) said Elian was entitled to apply because the law said "any alien . . . may apply for asylum." The court agreed. In the ruling, Judge Edmondson wrote that the law was "neither vague nor ambiguous." So Elian is allowed to request asylum. However, the court found that because immigration law didn't specify the manner of asylum applications and procedures, "it is not for the courts, but for the executive agency charged with enforcing the statue (here, the INS), to choose how to fill such gaps." The only authority the courts have is to make sure the agency's decisions where compliant with procedure and not arbitrary. The court did not find the INS's policy of saying that only Juan Miguel Gonzalez, Elian's father, could speak for the boy was unreasonable. It was "within the range of reasonable choices" in the words of the court.

One thing Judge Edmondson wanted to make certain was that the courts could not "reexamine the wisdom of an agency-promulgated policy." The Judge also wrote, "we cannot invalidate the policy—one with international-relations implications—selected by the INS merely because we personally might have chosen another." The court obviously felt that such policymaking did not fall within the proper sphere of the judicial branch.

The INS policy does not get off scot-free. The court was bothered that the INS does not give any special consideration for parents living in communist-totalitarian states. The court stated that Cuba violates "human rights and fundamental freedoms and does not guarantee the rule of law to people living" there. The court also understood that "re-education, communist indoctrination, and political manipulation" were a real possibility for Elian upon return to Cuba. However, the court concluded that the INS policy was not "totally unreasonable" because the agency would allow "a non-parental representative" if government coercion was found.

What this all means is that the INS was within their legal rights to deny Elian an asylum hearing. Since Congress left the details in immigration law up to the INS, and the INS's policy was reasonable and not arbitrary, the court felt it could not overturn the agency's decision.

Elian's lawyers have already said they will appeal the ruling. In the meantime, Elian will remain in the U.S. with his father.

While the ruling is another victory for Fidel Castro, Greg Craig, Juan Miguel, and all their communist-sympathizing friends, it does not let the Clinton administration off the hook. Since the INS's change of heart last December when it decided that a Florida state court was not the place where this issue should be settled, the administration said it was a matter of law for Elian to be returned to his father. The court dismissed this claim saying "immigration law of the United States provided the INS with no clear answer." So the INS had to develop a policy to deal with this situation. That's is not the rule of law; that's the rule of Reno. Before Elian was washed upon Florida's shore, there was nothing like Elian's case so the INS had to create a policy. Their first idea was to let the state court settle the custody dispute. But after Fidel Castro screamed, the INS changed its mind and said state courts had no authority in this case. The Appeals Court ruled that the INS has wide discretion on immigration matters.

The ruling also does not let Congress off the hook. Since Congress gave the INS wide latitude in immigration matters, it has authority to alter the law. The easiest action Congress could do is pass a law making Elian a U.S. citizen. This would take the whole affair out of the hands of the INS (and Janet Reno's highly politicized Justice Department) and into a Florida state court. Only in a state court would the best interests of Elian be determined.

Passing such a law would take political courage, and with large majorities of the public siding with returning Elian to Cuba, I do not see much hope. Nevertheless, the court's ruling does say that it is Congress' duty to "exercise political will." Freedom-loving Congressmen and Senators should accept their duty.

Sean Hackbarth publishes ElianWatch and The American Mind.

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