GOING HOME? THE ELIAN GONZALEZ CASE
I.
INTRODUCTION
This is how Elian Gonzalez’s fairy tale was supposed to go: the loving father,
Juan Miguel, had never been able to signal his true hopes for his son because Fidel Castro
had him in chains; but once he broke free and made it to America, once he stepped off the
Learjet at Dulles Airport at dawn with his new wife and baby at his side, he would fall to
the ground, kiss the tarmac and ask for asylum. 1 So would end the four month long
standoff for Elian Gonzalez. The six-year-old boy would start a new life with his father
in America as all thoughts of returning to Castro’s Cuba faded away.
But in this instance the fairy tale has not come true. Juan Miguel Gonzalez,
Elian’s father, has repeatedly refused to allow Elian’s relatives in Miami to speak on his
child’s behalf,2 and has demanded the return of his son to him in Cuba.3 Juan Miguel has
traveled to the United States to retrieve his son. Along the road to recovering Elian, Juan
Miguel has proven to INS officials 4 and Attorney General Janet Reno5 that he is a fit
parent whose only wish is to be reunited with his child and return home to Cuba.6
1
Tim Padgett, et. al., I Love My Child, TIME M AGAZINE, Apr. 17, 2000, Vol.
155, No. 15.
2
Elian Gonzalez v Janet Reno, No. 00-206 (S.D. Fla. March 9, 2000). During
an interview on December 13, 1999 with INS officials in Cuba, Juan Miguel stated that
he wanted no claim or petition raised on Elian’s behalf, that Elian’s paternal relatives
living in Miami have no rights over Elian, and that he did not want any law firm to
represent his son. See id. at 4.
3
See id. at 4. When Juan Miguel Gonzalez was asked whether he wanted his
son to remain in the United States or be returned to Cuba he replied, “Elian at the age of
six, cannot make a decision on his own . . . I’m grateful that he received immediate
medical attention, but he should be returned to me and my family. As for him to get
asylum, I am not allowing him to stay or claim any type of petition; he should be returned
immediately to me.” Id.
4
See id. at 6. The General Counsel for the INS concluded that “Juan Miguel is
able to represent Elian’s immigration interests,” and if he were to come to the United
States the INS would be required to recognize Juan Gonzalez’s interests and would
change the custody arrangement made with Elian’s Miami relatives. See id.
5
See id. at 8-9. “The INS considered relevant information, including the
statements of Elian’s Miami relatives and information in the asylum application, and
determined there is no objective basis for a valid asylum claim. Consequently, it found
no conflict between Elian and his father. Under these circumstances, the appropriate
course of action was to honor the desires of the father regarding Elian’s applications for
admission and asylum.” See id. at 8. See also Letter from Attorney General Janet Reno
But Lazaro Gonzalez, Elian’s great uncle,7 has fought Elian’s return to his father
and subsequent return to Cuba at every turn. Before gaining custody over Elian,8 Lazaro
Gonzalez was seeking asylum for his six-year-old nephew.9 It was the refusal by the
Immigration and Naturalization Service [hereinafter “INS”] to review the asylum
applications submitted by Lazaro and Elian10 which prompted an appeal to the United
States District Court in Miami.11 The lawsuit was filed on January 19, 2000 alleging the
to Spencer Eig, Roger Bernstein, and Linda Osberg-Braun of 1/12/00, Defendant’s
Notice of Filing Record and Exhibits, at 25-28.
6
See id. a t 2-3. Juan Gonzalez sent a letter to the Cuban government on
November 27, 1999 requesting his son be returned to Cuba. In the letter he stated Elian
born and raised in Cuba was taken from Cuba in an illegal manner without his [Juan
Miguel’s] consent. The letter was forwarded to the United States interests section in
Havana the same day, and then on to the INS. See id. at 3.
7
See id. at 2. The United States Coast Guard intercepted two fishermen who
rescued Elian Gonzalez from the Atlantic Ocean off the coast of southeastern Florida on
November 25, 1999. Elian was transported to a local hospital, was granted temporary
deferral from inspection, and placed in the care of his paternal great uncle later that same
day. See id.
8
Gonzalez at 3. A Florida state court granted Lazaro Gonzalez “limited legal
authority . . . to assert and protect such rights as the child may have under United States
immigration law.” on January 10, 2000. Elian’s application for asylum was filed in
December of 1999. See id. See also Temporary Protective Order, Gonzalez v GonzalezQuintana, 00-00479 FC 29 (Fla. Cir. Ct. Jan. 10, 2000) (granting “Petitioner’s Verified
Emergency Ex-Parte Petition for Interim Order”).
9
See id. at 3. Lazaro Gonzalez filed an application for asylum for Elian with the
INS; the alleged grounds for asylum being membership in a particular social group and/or
political opinion. See id. There are only five grounds for granting asylum: race, religion,
nationality, membership in a particular group, and political opinion. See 8 U.S.C. §
1158(b)(1).
10
See id. at 3. Lazaro Gonzalez filed the first application for asylum with his
signature on it, and then filed a second application with Elian’s name printed on it. See
id.
11
See id. at 7-8. The INS sent a letter to Roger Bernstein and Spencer Eig, the
two attorneys supposedly representing Elian through the asylum process, whereby the
Commissioner of the INS determined that Elian does not have the capacity to apply for
asylum without the assistance of his father, Juan Miguel Gonzalez. The asylum
applications were returned on January 6, 2000. See id. at 8. On January 12, 2000,
Attorney General Janet Reno issued her decision [reviewing the INS’s decision]
upholding the INS’s determination. See id. See also Letter from Attorney General Janet
Reno to Spencer Eig, Roger Bernstein, and Linda Osberg-Braun of 1/12/00, Defendant’s
Notice of Filing Record and Exhibits, at 25-28.
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3
INS lacked authority to reject the asylum applications and by federal statutes and
regulations was required to accept and adjudicate them. 12
II.
A.
JURISDICTION OF THE COURT
Plaintiff’s Status
The status of Elian Gonzalez (referred to as Plaintiff in the district court’s
written order) is deemed to be that of an unaccompanied, unadmitted alien,13 subject to
removal from the United States at the end of his temporary parole.14 By controlling
Elian’s status under 8 U.S.C. § 1225(a)(1) the INS has been able to indefinitely extend
his stay within the United States.15
B.
Subject Matter Jurisdiction
After careful consideration the court could not find a compelling reason why it
would not have subject matter jurisdiction in this case.16 The court reviewed pertinent
statutes, applicable legislative history, and controlling case law in making its decision.17
12
See id. at 11. The United States as Defendant’s in this action urge the District
Court to dismiss this action or to grant summary judgement. See id.
13
See id. at 12. Under 8 U.S.C. § 1225(a)(1) Elian is an unaccompanied minor
alien because he was “brought to the United States after having been interdicted in
international or United States waters.” Aliens who arrive in the United States are
automatically deemed to be an applicant for admission. The term “unadmitted alien” is
synonymous with “excludable alien” referring to any alien who has reached the border of
this country, but has not been admitted. See id. at 12. See also Bertrand v. Sava, 684
F.2d 204, 205 n.1 (2d Cir. 1982). This new terminology comes from the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 04-208, 110
Stat. 3009, 3009-546 (1996) (“IIRIRA”).
14
Gonzalez at 12. Elian was not put through removal proceedings but instead
was temporarily paroled into the United States and the INS then deferred any inspection
for removal. The INS has the power to grant parole instead of detention pending removal
under 8 U.S.C. § 1182(d)(5) and 8 C.F.R. § 235.2(e). The original deferral of processing
granted on November 25, 1999 was extended to January 21, 2000 and then indefinitely
extended. See id.
15
See id.
16
See id. at 19. The court concluded the defendant’s Motion must be denied as
to subject matter jurisdiction. Id. at 19.
17
See id. The Court found there was “substantial doubt” that Congress intended
to establish a jurisdictional barrier to judicial review of the administrative decision at
This court recognized that federal courts are courts of limited jurisdiction18 and
that it is Congress’s exclusive power to restrict the jurisdiction of federal courts.19 The
court presumed that federal courts will not use any perceived congressional intent to
restrict their jurisdiction.20 So where there is “substantial doubt” as to congressional
intent, the presumption for judicial review is controlling.21
Title 8 of the U.S. Code, sections 1103 and 1158 grant the Attorney General
broad authority to implement immigration laws and discretionary power for granting
asylum, but are not clear as to congressional intent for judicial review over the processing
of asylum applications.22 The court used the jurisdictional tenets mentioned above in
conjunction with 8 U.S.C. §§ 1103 and 1158 to evaluate both Defendant’s and Plaintiff’s
positions.23
The Defendant made three arguments opposing subject matter jurisdiction.
First, the Defendant argued the court lacked jurisdiction because the INS’s refusal to
accept the Plaintiff’s asylum applications fell within their administrative discretion, and
this discretion would not be reviewable under 8 U.S.C. § 1252(g).24 The Defendant
argued an agency decision not to enforce proceedings would not be subject to judicial
review under the Administrative Procedure Act,25 and that such decision is generally
issue. Accordingly, the Court concluded the Defendant’s Motion [for dismissal or
alternatively summary judgement] was denied as to subject matter jurisdiction. See id.
18
See id. at 12-13, citing Keene Corp. v. United States, 508 U.S. 200 (1993). See
also U.S. CONST . art. III § II; 28 U.S.C. § 1331.
19
See id. at 13, citing Keene Corp., 508 U.S., at 207. See also United Gas Pipe
Line Co. v. Whitman, 595 F.2d 323, 330 (5th Cir. 1979).
20
Gonzalez at 13, citing Block v. Community Nutrition Inst., 467 U.S. 340
(1984). The presumption favoring judicial review can be rebutted by a showing of “clear
and convincing evidence” that Congress intended to preclude review. See id. citing
Board of Governors of the Fed. Reserve Sys. v. McCorp. Fin. Inc., 502 U.S. 32, 44
(1991). A showing that the “congressional intent to preclude judicial review is ‘fairly
discernable in the statutory scheme’” is sufficient to meet the “clear and convincing”
standard. See id., citing Block, 467 U.S. at 351.
21
See id. at 13.
22
See id. at 13. Under 8 U.S.C. § 1158(a) judicial review is allowed for a
decision by the Attorney General permitting an alien to apply for asylum. Citing 8
U.S.C. § 1252(b)(4)(D), The decision to grant relief under section 1158(a) is “conclusive
unless manifestly contrary to law and an abuse of discretion”. Id. at 14.
23
See id. at 13. These statutes formed the basis of the Plaintiff’s complaint. See
id.
24
See id. at 14. Since the Attorney General’s decision not to begin removal
proceedings is not reviewable under section 1252(g) this makes her decision to uphold
the INS’s rejection of the Plaintiff’s asylum applications unreviewable. Therefore, this
Court lacks sufficient subject matter jurisdiction under this statute.
25
See id. at 14. Administrative Procedure Act (“APA”), 5 U.S.C. §§ 101 et. seq.
2000]
Current Developments
5
within the absolute discretion of the particular agency.26 This court not presiding over a
matter of enforcement, but a refusal to accept an application, rejected the Defendant’s
argument.27
Secondly, the Defendant argued that 8 U.S.C. § 1252(g) bars judicial review of
“any cause or claim by or on behalf of any alien arising from the decision or action by the
Attorney General to commence proceedings, adjudicate cases, or execute removal orders
against aliens.”28 The court distinguished this argument from Plaintiff’s assertion that
this case involves a simple request that the INS accept and consider the asylum
applications.29 The court justified its decision based on the Supreme Court’s narrow
interpretation of the restrictions included in 8 U.S.C. § 1252(g) in Reno v. American-Arab
Anti-Discrimination Committee.30
Defendant’s third argument claimed this case involved two applications by the
Plaintiff.31 The first was the application for asylum and the second an application for
admission into the United States.32 The Defendant argued that a decision to allow
26
See Gonzalez at 14. The Defendants cite Heckler v. Chaney, 470 U.S. 821
(1985), where the Supreme Court found agency decisions not to institute enforcement
proceedings are not generally subject to review under the APA and that such decisions
are normally left in the sole discretion of the agency. See id.
27
See id. at 14. The Court rejected the Chaney decision as controlling here
because that decision involved enforcement of an actual decision made by an agency and
was covered by the APA. See id.
28
See id. at 15. See also 8 U.S.C. § 1252(g). The Court inferred the
Defendant’s argument supports the interpretation of this section that judicial review is
bared for the decisions and actions mentioned as well as any decision or action not to act
under this statute. See id., n.10.
29
See id. at 15. 8 U.S.C. § 1252(g) was found to be simply inapplicable because
the Plaintiff was not seeking the initiation of removal proceedings, but that the INS
simply accept and review the asylum applications. See id.
30
See id. at 15. 525 U.S. 471 (1999). The Supreme Court resisted expanding
the restrictions in 8 U.S.C. § 1252(g) stating: “It is implausible that the mention of three
discrete events along the road to deportation was a shorthand was of referring to all
claims arising from deportation proceedings. Not because Congress is too unpoetic to
use synecdoche, but because that literary devise is incompatible with the need for
precision in legislative drafting. We are aware of no other instance in the United States
Code in which language such as this has been used to impose a general jurisdictional
limitation...”. Id. at 15-16.
31
See id. at 16. Defendants further argue this case involves not only an
application for asylum but also an application for admission into the United States, and
that the INS decision to permit withdrawal of an application for admission is not subject
to review by this court. See id.
32
Gonzalez at 16. As an arriving alien, the Plaintiff is deemed to have submitted
an application for admission under 8 U.S.C. § 1225(a)(1). Id.
withdrawal of an application for admission from the INS would not be reviewable under
8 U.S.C. 1225(a)(4),33 and alluded that such a decision to withdraw an application for
admission would remove the need for an application for asylum. 34
The Plaintiff claimed his Complaint was based solely on the INS’s decision not
to accept his asylum applications,35 not a withdrawal of an application of admission.36
The Court reviewed decisions regarding 8 U.S.C. § 1158 and concluded the only portion
of this statute subject to judicial review was subsection (a)(1).37 Since the Plaintiff’s case
was solely based upon the INS refusal to accept his asylum applications, which was
governed by 8 U.S.C. § 1158(a)(1) this Court concluded they had authority for judicial
review and the requisite subject matter jurisdiction.38
33
See id. at 16. Specifically this statute states “an alien applying for admission
may, in the discretion of the Attorney General and at any time, be permitted to withdraw
the application for admission and depart immediately from the United States.” 8 U.S.C.
§1225(a)(4). See supra note30.
34
See id. at 16. Defendant’s argue that 8 U.S.C. § 1225(a)(2)(B) is a basis to
deny judicial review for any claim that the application for admission into the United
States was improperly granted. 8 U.S.C. § 1252(a)(2)(B)(ii) states “Notwithstanding any
other provision of law, no court shall have jurisdiction to review (ii) any other decision or
action of the Attorney General the authority for which is specified under this subchapter
to be in the discretion of the Attorney General, other than the granting of [asylum] relief
under section 1158(a) of this title. Id.
35
See id. at 17. Plaintiff argues his complaint is based on 8 U.S.C. § 1158, and
that 8 U.S.C. § 1252(a)(2)(B)(ii) exempts certain decisions under 8 U.S.C. § 1158 (a)
from the elimination of judicial review such that this Court has subject matter jurisdiction
or at least that subject matter jurisdiction is not destroyed under 8 U.S.C. § 1252
(a)(2)(B)(ii). See id.
36
See id. at 17. The court felt the Defendant’s argument was compelling but not
controlling because it was clear the decision regarding the asylum application was
governed by a different standard. Even though an arriving alien is deemed to be an
applicant for admission under 8 U.S.C. § 1225(a)(1) the application for asylum is filed
under 8 U.S.C. § 1158 with procedures independent from an application for admission.
See id. at 16.
37
See id. at 18. The court stated that 8 U.S.C. § 1252 (a)(2)(B)(ii) could only be
read as excluding 8 U.S.C. § 1158(a)(1) (“Any alien . . . may apply for asylum”) from the
prohibition of judicial review, as decisions under 8 U.S.C. § 1158(a)(2) (excepting certain
categories of aliens from the provisions of (a)(1) expressly have been excluded from
judicial review by 8 U.S.C. § 1158 (a)(3). See id.
38
Gonzalez at 18. The court further observed “where Congress includes
particular language in one section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion”. See id. citing Russello v. United States, 464 F.2d 720, 722 (5th Cir.
1972 (per curiam)).
2000]
Current Developments
III.
7
CONCLUSION
In its final determination the court granted summary judgment to the
Defendant.39 The court concluded that the decision to grant asylum was a matter within
the discretion of the Attorney General, and her decision through statute and
congressionally delegated discretion was controlling as a matter of law.40 So after
judicially permitted review41 of the exercise of that discretion this court found no abuse
which would warrant a different conclusion.42
Since then the Plaintiff has appealed this court’s decision to the Eleventh Circuit
Court of Appeals.43 This court granted Plaintiff an injunction “to preclude Elian’s
physical removal from the United States during the pendency of this appeal.”
Walter D. Tenney
39
See id. at 49-50.
See id. at 49.
41
See supra notes 34-37.
42
Gonzalez at 49.
43
Elian Gonzalez v. Janet Reno, No. 00-11424-D (11th Cir. Court. of Appeals).
This court, on March 27 expedited Plaintiff’s appeal and scheduled oral argument for the
week of May 8. See id. at 3.
40