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Case Number: 2012-0371-F
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the Clinton Presidential
Library Staff.
Folder Title:
Immigration (Elian Gonzalez Filings) [2]
Staff Office-Individual:
Legal Advisor-Derosa, Mary
Original OA/ID Number:
2543
Row:
Section:
Shelf:
Position:
Stack:
39
4
3
2
V
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
ELIAN GONZALEZ, a minor, by and
through, LAZARO GONZALEZ,
as next friend, or, alternatively,
as temporary legal custodian,
CIV - KING
CASE NO.:
Plaintiffs,
MAGISTRATE JUDGE
O'SULLIVAN
00
[]
V.
0206
JANET RENO, Attorney General of the
United States; DORIS MEISSNER, Commissioner,
United States Immigration and Naturalization
Service; ROBERT WALLIS, District Director,
United States Immigration and Naturalization
Service; UNITED STATES
CT.
PM 3:31
IMMIGRATION AND NATURALIZATION
SERVICE; and UNITED STATES
DEPARTMENT OF JUSTICE,
Defendants.
/
COMPLAINT FOR INJUNCTIVE RELIEF AND PETITION
FOR WRIT OF MANDAMUS
Plaintiffs, Elian Gonzalez ("Elian" and/or "Elian Gonzalez"), a minor, by and
through, Lazaro Gonzalez, as next friend, or, alternatively, as temporary legal custodian,
sue Defendants, Janet Reno, Attorney General of the United States; Doris Meissner,
Commissioner, United States Immigration and Naturalization Service ("INS"); Robert
Wallis, District Director, INS; United States Immigration and Naturalization Service; and
the United States Department of Justice (collectively, the "Defendants") and allege as
follows:
1.
This is an action seeking injunctive relief precluding Defendants from
returning Elian Gonzalez to Cuba until Defendants abide by their own rules and
regulations and adjudicate his applications for political asylum as required by 8 U.S.C.
§1158, 8 C.F.R. $208.9 and 8 C.F.R. $208.14. This action is also a petition for the
issuance of a writ of mandamus compelling Defendants to abide by their own rules and
regulations as such are set forth in 8 U.S.C. §1158, 8 C.F.R. §208.9 and 8 C.F.R.
$208.14.
I.
PARTIES
2.
Plaintiff, Elian Gonzalez, is a six year old native and citizen of Cuba who
presently resides in Miami, Miami-Dade County, Florida as a paroled alien.
3.
Plaintiff, Lazaro Gonzalez is a resident of Miami-Dade County, Florida and
is suing as next friend, pursuant to Fed.R.Civ.P. 17(c), or, alternatively, as temporary legal
custodian, ofElian Gonzalez, a minor.
4.
Defendant, Janet Reno, is being sued in her official capacity as the Attorney
General of the United States.
5.
Defendant, Doris Meissner, is being sued in her official capacity as the
Commissioner of the United States Immigration and Naturalization Service.
6.
Defendant, Robert Wallis, is being sued in his official capacity as the
District Director of the United States Immigration and Naturalization Service for the
District of Florida.
7.
Defendant, United States Immigration and Naturalization Service, is an
agency of the United States and is being sued as the agency responsible for the
enforcement of the Immigration and Nationality Act ("INA").
2
8.
Defendant, U.S. Department of Justice, is a department of the United
States and is being sued as the department responsible for enforcing the Immigration and
Nationality Act ("INA").
II.
JURISDICTION AND VENUE
9.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331,
28 U.S.C. § 1346, 28 U.S.C. § 1361, and 28 U.S.C. § 2201.
10.
Venue is proper pursuant to 28 U.S.C. § 1391(e), in that this is an action
against officers and agencies of the United States in their official capacities, brought in the
district where a Defendant resides and where a substantial part of the events or omissions
giving rise to Plaintiffs' claim occurred.
11.
Venue also properly lies within the Southern District of Florida pursuant to
28 U.S.C. §1402(a)(1) because it is the judicial district where Plaintiffs reside.
12. - All conditions precedent to bringing this lawsuit, if any, have been
performed, waived, excused, or have otherwise occurred.
III.
STATEMENT OF THE FACTS
13.
On December 6, 1993, Elian Gonzalez was born to Juan Miguel Gonzalez
and Elizabeth Gonzalez in Cuba. Throughout his childhood, Elian lived with his mother.
14.
Since 1997, Elian and his mother lived with his stepfather Lazaro Munero.
Mr. Munero was imprisoned in Cuba in early 1998 and also, on or about, October, 1998
through December 25, 1998 for actions which demonstrated his opposition to the Cuban
regime.. Because of this, on several occasions, Elian's mother was interrogated by the
Communist Party and her loyalty to the Communist Party was challenged. The
3
persecution suffered compelled Lazaro Munero, Elizabeth Gonzalez and Elian Gonzalez
to flee Cuba.
15.
On or about November 22, 1999, Elian's father and grandfather called
Lazaro Gonzalez in Miami and told him that Elizabeth and Elian Gonzalez were on the
way to Miami in a boat, and requested that he take care of them in the United States.
16.
On November 25, 1999, two men fishing off the east coast of Florida, near
Miami, spotted in the water what appeared to be an inflated automobile tire. They
approached the object and found a then-5-year-old boy, Plaintiff, Elian Gonzalez, literally
hanging on to the tire.
17.
As it was later learned, Elian had fled Cuba's communist system with his
mother, stepfather, and other relatives and persons, fourteen (14) in all, in a small boat
that had capsized between Cuba and the United States. Elian saw his mother and
stepfather, along with most of the remaining persons in the small boat, perish at sea.
18.
The fishermen rescued the boy, contacted the U.S. Coast Guard, and
delivered him to the Coast Guard. The Coast Guard transported Elian to the Joe
DiMaggio Hospital in Hollywood, Florida.
19.
As word spread of Elian's rescue at sea, Lazaro and Angela Gonzalez,
together with their daughter Maryslesis, went to the hospital to determine whether the boy
was their great-nephew. At the hospital, Lazaro Gonzalez spoke with Elian's father, Juan
Miguel Gonzalez, by telephone. During that conversation, Juan Miguel Gonzalez asked
Lazaro Gonzalez to take care of his son, Elian.
20.
Because Elian Gonzalez landed on United States soil without having been
admitted and inspected by an immigration official, he is considered an arriving alien. INS
4
appropriately paroled him into the United States in accordance with his arriving alien
status and placed him in the custody of Lazaro and Angela Gonzalez. INS scheduled a
deferred inspection for December 23, 1999.
21.
Fulfilling the request of Elian's father, Lazaro and Angela Gonzalez
accepted custody of Elian from the INS.
22.
Shortly after Elian's arrival in Florida, Cuba's dictator, Fidel Castro
("Castro"), began to demand publicly that Elian be returned to Cuba. To that effect,
Castro arranged for large, state-sponsored demonstrations to take place on the streets of
Havana. This included closing down many local schools and places of employment and
requiring students and employees to attend the demonstrations, as required by Cuba's
totalitarian government. The Cuban government also procured a letter from Elian's father
in Cuba, ostensibly requesting that Elian be returned to him, notwithstanding the father's
earlier request that the Lazaro and Angela Gonzalez see to it that the boy was properly
cared for in the United States.
23.
On December 13, 1999, Lazaro Gonzalez, as a next friend of Elian
Gonzalez, filed a petition for asylum on behalf of Elian Gonzalez. The petition included
Forms G-28, Notices of Appearance of Counsel on Elian's behalf.
24.
On December 15, 1999, Elian Gonzalez, individually, pursuant to 8 U.S.C.
§1158(a)(1) and 8 C.F.R. §208.2 filed a petition for asylum. The petition included Forms
G-28, Notices of Appearance of Counsel on Elian's behalf.
25.
To date, neither of the filed petitions for asylum have been returned for
incompleteness as such a term is defined by 8 C.F.R. §208.3(c)(3). The required interview
pursuant to 8 C.F.R. §208.9(b) has not been scheduled.
5
26.
On December 22, 1999, the INS postponed the deferred inspection
interview of Elian Gonzalez until January 21, 2000 at 9:00 a.m.
27.
On January 5, 2000, without holding an evidentiary hearing and without
adhering to statutorily and constitutionally mandated laws and procedures to adjudicate
petitions for political asylum, the INS withdrew Elian's petitions for political asylum and
withdrew his application for admission with intentions to return Elian to Cuba by January
14, 2000. True and correct copies of correspondence from INS advising Elian's attorneys
and Plaintiff, Lazaro Gonzalez, of these actions are attached hereto as Composite Exhibit
"A". On January 6, 2000, INS returned the applications filed on December 13, 2000 and
December 15, 2000, with a letter stating that INS could not accept the asylum
applications. See Composite Exhibit "A".
28. On January 7, 2000, Elian Gonzalez was properly served with a subpoena
requiring his testimony before the House Government Reform Committee on February 10,
2000 (hereinafter, the "Subpoena"). A true and correct copy of the Subpoena is attached
hereto as Exhibit "B".
29.
On January 7, 2000, Lazaro Gonzalez, as custodian of Elian Gonzalez, a
minor, pursuant to Chapter 57, Florida Statutes, filed a Verified Petition for Temporary
Custody in the Circuit Court for the 11th Judicial Circuit in and for Miami-Dade County,
Florida.
30.
On January 10, 2000, the Circuit Court for the 11th Judicial Circuit in and
for Miami-Dade County, Florida issued a Temporary Protective Order (the "Temporary
Protective Order") which granted Lazaro Gonzalez "such limited legal authority as
necessary to preserve the status quo and prevent the child's removal from this jurisdiction
6
[the State of Florida], including, but not limited to, the authority to assert and protect such
rights as the child may have under United States immigration law and to retain counsel to
assert and protect such rights." A true and correct copy of the Temporary Protective
Order is attached hereto as Exhibit "C".
31.
On January 11, 2000, Lazaro Gonzalez, as the temporary legal custodian of
Elian Gonzalez pursuant to the Temporary Protective Order, filed a petition for asylum,
on behalf of Elian Gonzalez, with the INS.
32.
On January 12, 2000, Defendant, Janet Reno, Attorney General of the
Untied States, advised that the Temporary Protective Order has "no force or effect insofar
as INS' administration of the immigration laws is concerned."
33.
On January 13, 2000, the INS refused to accept the application for asylum
filed by Lazaro Gonzalez pursuant to the Temporary Protective Order. A true and correct
copy of the January 13, 2000 correspondence from the INS informing Elian's attorneys of
INS' decision is attached hereto as Exhibit "D".
COUNT I - REQUEST FOR INJUNCTIVE RELIEF ENJOINING
DEFENDANTS FROM VIOLATING THE
FIFTH AMENDMENT TO THE U.S. CONSTITUTION
Plaintiffs, Elian Gonzalez ("Elian" and/or "Elian Gonzalez"), a minor, by and
through, Lazaro Gonzalez, as next friend, or, alternatively, as temporary legal custodian,
repeat the allegations set forth above in paragraphs 1-33 and further state:
34.
This is an action in equity for injunctive relief enjoining Defendants from
violating the Fifth Amendment of the United States Constitution (the "Fifth Amendment").
7
35.
The Fifth Amendment provides, in relevant part, that "[n]o person
shall
be deprived of life, liberty, or property, without due process of law
"
36.
For purposes of the Fifth Amendment, Elian Gonzalez, a properly paroled
alien into the United States, is afforded constitutional protection as all persons within the
territorial jurisdiction of the United States.
37.
The right to petition for political asylum is a constitutionally protected right
which invokes the guarantee of due process as is the right to have the Defendants abide by
their own rules, regulations and policies and for Elian to be represented by counsel. See,
Orantes-Hernandez V. Thornburgh, 919 F.2d 549, 554 (9th Cir. 1990); Jean V. Nelson,
727 F.2d 957, 982-83 (11th Cir. 1984); Haitian Refugee Center V. Smith, 676 F.2d 1023,
1038-39 (5th Cir. Unit B 1982).
38.
Defendants have violated the constitutionally protected due process rights
of Elian Gonzalez by depriving him of the right to petition for political asylum
39.
Defendants have further violated the constitutionally protected due process
rights of Elian Gonzalez by refusing to adjudicate the petitions for asylum and withholding
of removal filed by and on his behalf as such an action is required by 8 U.S.C. §1103(a),
8 U.S.C. §1158(a), 8 U.S.C. §1231(b)(3)(A), 8 C.F.R. §208.3(c)(3) and 8 C.F.R.
§208.14(b)(1) & (2).
40.
Defendants have also violated the constitutionally-protected due process
rights of Elian Gonzalez by refusing to recognize Elian's right to counsel.
41.
Plaintiffs have no adequate remedy at law to address Defendants' violation
of the Fifth Amendment guarantee of due process. But for the present request for
8
injunctive relief, Plaintiffs have no avenue available to seek administrative or judicial
review of Defendants' actions.
42.
Plaintiffs will suffer irreparable injury if Defendants' unlawful actions are
not enjoined immediately.
WHEREFORE, for all the foregoing reasons, Plaintiffs, Elian Gonzalez ("Elian"
and/or "Elian Gonzalez"), a minor, by and through, Lazaro Gonzalez, as next friend, or,
alternatively, as temporary legal custodian, respectfully request this Court to enter an
order 1) declaring that Defendants have violated the due process clause of the Fifth
Amendment of the U.S. Constitution; 2) enjoining Defendants from returning Elian
Gonzalez to Cuba until Defendants have allowed Elian Gonzalez to invoke his due process
rights and apply for political asylum and withholding of removal; 3) enjoining Defendants
from returning Elian Gonzalez to Cuba until Defendants have allowed Lazaro Gonzalez as
next friend, Qr, alternatively, as temporary legal custodian, of Elian Gonzalez, a minor, to
invoke, on Elian's behalf, Elian's due process rights and apply for political asylum on
behalf of Elian; 4) enjoining Defendants from refusing to recognize Elian's right to
counsel, including, but not limited to, the representation of undersigned counsel, on
Elian's behalf, before the Immigration and Naturalization Service; 5) awarding plaintiffs
the costs of this action, including fair and reasonable attorney's fees as provided in the
Equal Access to Justice Act under Title 28 U.S.C. § 2412; and 6) granting such other
and further relief as the Court deems just and proper.
9
COUNT II- REQUEST FOR INJUNCTIVE RELIEF ENJOINING
DEFENDANTS
FROM VIOLATING 8 U.S.C. §1103(a) and 8 U.S.C. §1158(a)
Plaintiffs, Elian Gonzalez ("Elian" and/or "Elian Gonzalez"), a minor, by and
through, Lazaro Gonzalez, as next friend, or, alternatively, as temporary legal custodian,
repeat the allegations set forth above in paragraphs 1-33 and further state:
43.
This is an action in equity for injunctive relief enjoining Defendants from
violating 8 U.S.C. §1103(a) and 8 U.S.C. §1158(a).
44.
Pursuant to 8 U.S.C. §1103(a), Defendants are charged with the
administration and enforcement of all laws relating to the immigration and naturalization
of aliens.
45.
Pursuant to 8 U.S.C. §1158(a) and (d),
The Attorney General shall establish a procedure for an alien
physically present in the United States or at a land border or port of entry,
irrespective of such alien's status, to apply for asylum, and the alien may be
granted asylum in the discretion of the Attorney General if the Attorney
General determines that such an alien is a refugee within the meaning of
section 101(a)(42)(A) of this title. (Emphasis added).
46.
Plaintiff, Elian Gonzalez, is an alien as such a term is defined in 8 C.F.R.
$235.2(a) and is physically present in the United States. Plaintiff, Elian Gonzalez, has also
properly applied for political asylum.
47.
Defendants have violated 8 U.S.C. §1103(a) and 8 U.S.C. §1158(a) by
unilaterally withdrawing petitions for asylum filed by and on behalf of Elian Gonzalez on
December 13, 1999 and December 15, 1999 and by withdrawing the petition for asylum
10
filed by Lazaro Gonzalez, as temporary legal custodian pursuant to the Temporary
Protective Order, on January 11, 2000.
48.
Defendants have also violated 8 U.S.C. §1103(a) and 8 U.S.C. §1158(a) by
depriving Elian Gonzalez of the right to apply for political asylum.
49.
Defendants have further violated 8 U.S.C. §1103(a) and 8 U.S.C. §1158(a)
by refusing to adjudicate Elian's petitions and determine whether Elian Gonzalez is a
refugee within the meaning of 8 U.S.C. §1101(a)(42)(A).
50.
Pursuant to 8 U.S.C. §1158(a), the INS must adjudicate Elian Gonzalez's
application for political asylum before attempting to return him to Cuba.
51.
Plaintiffs have no adequate remedy at law to address the violations
committed by Defendants as set forth above. But for the present request for injunctive
relief, Plaintiffs have no avenue available to seek administrative or judicial review of
Defendants'-actions.
52.
Plaintiffs will suffer irreparable injury if Defendants' unlawful actions are
not enjoined immediately.
WHEREFORE, for all the foregoing reasons, Plaintiffs, Elian Gonzalez ("Elian"
and/or "Elian Gonzalez"), a minor, by and through, Lazaro Gonzalez, as next friend, or,
alternatively, as temporary legal custodian, respectfully request this Court to enter an
Order 1) declaring that Defendants have failed to comply with 8 U.S.C. §1103(a) and 8
U.S.C. §1158(a); 2) enjoining Defendants from returning Elian Gonzalez to Cuba until
Defendants have fully complied with 8 U.S.C. §1103(a) and 8 U.S.C. §1158(a); 3)
enjoining Defendants from continuing to violate 8 U.S.C. §1103(a) and 8 U.S.C.
§1158(a) by refusing to recognize the petitions for political asylum filed by and on behalf
11
of Elian Gonzalez; 4) enjoining Defendants from continuing to violate 8 U.S.C.
§1103(a) by refusing to abide by 8 U.S.C. §1158(a) which requires Defendants to
determine whether Elian Gonzalez is a refugee within the meaning of 8 U.S.C.
§1101(a)(42)(A); 5) awarding plaintiffs the costs of this action, including fair and
reasonable attorney's fees as provided in the Equal Access to Justice Act under Title 28
U.S.C. § 2412; and 6) granting such other and further relief as the Court deems just and
proper.
COUNT III - REQUEST FOR INJUNCTIVE RELIEF
ENJOINING DEFENDANTS FROM VIOLATING 8 C.F.R. $208.9
Plaintiffs, Elian Gonzalez ("Elian" and/or "Elian Gonzalez"), a minor, by and
through, Lazaro Gonzalez, as next friend, or, alternatively, as temporary legal custodian,
repeat the allegations set forth above in paragraphs 1-33 and further state:
53. - This is an action in equity for injunctive relief enjoining Defendants from
violating 8 C.F.R. §208.9.
54. Pursuant to 8 U.S.C. §1103(a), Defendants are charged with the
administration and enforcement of all laws relating to the immigration and naturalization
of aliens.
55.
Pursuant to 8 C.F.R. §208.9, "[t]he Service shall adjudicate the claim of
each asylum applicant whose application is complete within the meaning of §208.3(c)(3)
and is within the jurisdiction of the Service." (Emphasis added).
56.
3 C.F.R. §208.3(c)(3) provides that if "[t]he Service has not mailed the
incomplete application back to the applicant within 30 days, it shall be deemed complete.
An incomplete application is one "that does not include a response to each of the
12
questions contained in the Form I-589, is unsigned, or is unaccompanied by the required
materials specified in paragraph (a) of this section."
57.
The petitions for asylum filed on December 13, 1999, December 15, 1999
and January 11, 2000 have not been mailed back by Defendants because they are
incomplete. As such, the petitions filed on December 13, 1999, December 15, 1999 and
January 11, 2000 are complete pursuant to 8 C.F.R. §208.3(c)(3) (hereinafter, the
"Completed Petitions for Asylum").
58.
Pursuant to 8 C.F.R. §208.9(a), Defendants are now required to
adjudicate the Completed Petitions for Asylum
59.
Defendants have failed to comply with 8 U.S.C. §1103(a) and 8 C.F.R.
§208.9(a) by failing to adjudicate Elian Gonzalez' Completed Petitions for Asylum as they
are required to do once the petitions are complete.
60. - Plaintiffs have no adequate remedy at law to address the violations
committed by Defendants as set forth above. But for the present request for injunctive
relief, Plaintiffs have no avenue available to seek administrative or judicial review of
Defendants' actions.
61.
Plaintiffs will suffer irreparable injury if Defendants' unlawful actions are
not enjoined immediately.
WHEREFORE, for all the foregoing reasons, Plaintiffs, Elian Gonzalez ("Elian"
and/or "Elian Gonzalez"), a minor, by and through, Lazaro Gonzalez, as next friend, or,
alternatively, as temporary legal custodian, respectfully request this Court to enter an
order 1) declaring that Defendants have failed to comply with 8 C.F.R. §208.9(a); 2)
enjoining Defendants from returning Elian Gonzalez to Cuba until Defendants have fully
13
complied with 8 C.F.R. §208.9(a); 3) enjoining Defendants from continuing to violate §8
C.F.R. §208.9(a) by refusing to adjudicate the petitions for asylum filed by and on behalf
of Elian Gonzalez on December 13, 1999, December 15, 1999 and January 11, 2000 even
though such petitions are complete pursuant to 8 C.F.R. §208.3(c)(3); 4) awarding
plaintiffs the costs of this action, including fair and reasonable attorney's fees as provided
in the Equal Access to Justice Act under Title 28 U.S.C. § 2412; and 5) granting such
other and further relief as the Court deems just and proper.
COUNT IV - REQUEST FOR INJUNCTIVE RELIEF ENJOINING
DEFENDANTS FROM VIOLATING 8 C.F.R. $208.14(b)
Plaintiffs, Elian Gonzalez ("Elian" and/or "Elian Gonzalez"), a minor, by and
through, Lazaro Gonzalez, as next friend, or, alternatively, as temporary legal custodian,
repeat the allegations set forth above in paragraphs 1-33 and further state:
62. - This is an action in equity for injunctive relief enjoining Defendants from
violating 8 C.F.R. §208.14(b).
63.
Pursuant to 8 U.S.C. §1103(a), Defendants are charged with the
administration and enforcement of all laws relating to the immigration and naturalization
of aliens.
64.
Pursuant to 8 C.F.R. §208.14(b)(1) & (2), upon adjudicating the petitions
for asylum, the asylum officer may "grant asylum in the exercise of discretion to an
application who qualifies as a refugee under section 101(a)(42) of the Act [or] [i]f the
alien appears to be deportable, excludable or removable under section 240 of the Act, the
asylum officer shall either grant asylum or refer the application to an immigration judge
for adjudication in deportation, exclusion, or removal proceedings." (Empliasis added).
14
65.
Defendants have failed to comply with 8 U.S.C. §1103(a) and 8 C.F.R.
§208.14(b)(1) & (2) by ordering Elian Gonzalez's return to Cuba without an adjudication
of his petitions for asylum and without referring his applications for asylum to an
immigration judge for adjudication in deportation, exclusion, or removal.
66.
Plaintiffs have no adequate remedy at law to address the violations
committed by Defendants as set forth above. But for the present request for injunctive
relief, Plaintiffs have no avenue available to seek administrative or judicial review of
Defendants' actions.
67.
Plaintiffs will suffer irreparable injury if Defendants' unlawful actions are
not enjoined immediately.
WHEREFORE, for all the foregoing reasons, Plaintiffs, Elian Gonzalez ("Elian"
and/or "Elian Gonzalez"), a minor, by and through, Lazaro Gonzalez, as next friend, or,
alternatively,as temporary legal custodian, respectfully request this Court to enter an
order 1) declaring that Defendants have failed to comply with 8 C.F.R. §208.14(b)(1) &
(2); 2) enjoining Defendants from returning Elian Gonzalez to Cuba until Defendants
have fully complied with 8 C.F.R. §208.14(b)(1) & (2); 3) enjoining Defendants from
continuing to violate 8 C.F.R. §208.14(b)(1) & (2) by attempting Elian Gonzalez's return
to Cuba without an adjudication on the asylum claim and/or in removal proceedings; 4)
awarding plaintiffs the costs of this action, including fair and reasonable attorney's fees as
provided in the Equal Access to Justice Act under Title 28 U.S.C. § 2412; and 5)
granting such other and further relief as the Court deems just and proper.
15
COUNT V - PETITION FOR WRIT OF MANDAMUS
Plaintiffs, Elian Gonzalez ("Elian" and/or "Elian Gonzalez"), a minor, by and
through, Lazaro Gonzalez, as next friend, or, alternatively, as temporary legal custodian,
repeat the allegations set forth above in paragraphs 1-33 and further state:
68.
This is an action requesting the issuance of a writ of mandamus compelling
Defendants, as the entities charged with the administration and enforcement of all laws
relating to the immigration and naturalization of aliens, to abide by their own rules and
regulations and adjudicate the petitions for asylum filed by and on behalf of Elian
Gonzalez.
69.
This Court has jurisdiction to issuance a writ of mandamus pursuant to 28
U.S.C. §1361 which provides that "district courts shall have original jurisdiction of any
action in the nature of mandamus to compel an officer or employee of the United States or
any agency thereof to perform a duty owed to the plaintiff." (Emphasis added).
70.
Defendants are either agencies of the United States or officers and/or
employees of the United States. Pursuant to 8 U.S.C. §1103(a), Defendants are charged
with the administration and enforcement of all laws relating to the immigration and
naturalization of aliens.
71.
On December 13, 1999, December 15, 1999 and January 11, 2000,
petitions for asylum were filed by and on behalf of Elian Gonzalez.
72.
The petitions for asylum filed on December 13, 1999, December 15, 1999
and January 11, 2000 have not been mailed back by Defendants because they are
incomplete. As such, the petitions are complete pursuant to 8 C.F.R. §208.3(c)(3).
16
73.
Pursuant to 8 U.S.C. §1103(a), 8 C.F.R. §208.3(c)(3), 8 C.F.R. §208.9(a),
and 8 C.F.R. §208.14(b)(1) & (2), Defendants are now required to adjudicate the
petitions for asylum filed by and on behalf of Elian Gonzalez.
74.
Defendants, however, have refused to adjudicate the petitions for asylum
filed by and on behalf of Elian Gonzalez and have instead unilaterally withdrawn such
petitions.
WHEREFORE, for all the foregoing reasons, Plaintiffs, Elian Gonzalez ("Elian"
and/or "Elian Gonzalez"), a minor, by and through, Lazaro Gonzalez, as next friend, or,
alternatively, as temporary legal custodian, respectfully request this Court to issue a writ
of mandamus directed to Defendants compelling them, as the entities charged with the
administration and enforcement of all laws relating to the immigration and naturalization
of aliens, to 1) mullify their withdrawal of the petitions for asylum filed by and on behalf of
Elian Gonzalez on December 13, 1999, December 15, 1999 and January 11, 2000 and 2)
adjudicate such petitions for asylum as required by 8 U.S.C. §1103(a), 8 C.F.R.
§208.3(c)(3), 8 C.F.R. §208.9(a), and 8 C.F.R. §208.14(b)(1) & (2).
17
Dated this 19th day of January, 2000.
Respectfully submitted,
HACKLEY, BERNSTEIN &
OSBERG-BRAUN, P.L.
Co-Attorneys for Elian Gonzalez
and Lazaro Gonzalez
2875 N.E. 191st Street, PH 1B
Aventura, FL 33180
Telephone: (305) 692-8888
Facsimile: (305) 692-8838
By: Lil QR
LINDA OSBERG-BRAUN
Florida Bar No. 0827282
ROGER A. BERNSTEIN
Florida Bar No. 0968714
GREENBERG TRAURIG, P.A.
Co-Attorneys for Elian Gonzalez
and Lazaro Gonzalez
1221 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 579-0500
Facsimile:
By: BARBARA Florida JUDD J. Bar (305) GOLDBERG No. LAGOA 579-0717 966990
Florida Bar No. 0115924
ELIOT PEDROSA
Florida Bar No. 0182443
LAW OFFICES OF SPENCER
EIG
Co-Attomeys for Elian Gonzalez
and Lazaro Gonzalez
420 Lincoln Road, Suite 379
Miami Beach, Florida 33139
Telephone: (305) 672-2770
Facsimile: (305) 672-3770
SPENCER EIG
Florida Bar No. 0162681
18
RUDEN, McCLOSKY, SMITH,
SCHUSTER & RUSSELL, P.A.
Co-Attorneys for Elian Gonzalez
and Lazaro Gonzalez
701 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 789-2700
Facsimile: (305) 789-2793
JOSE GARCIA-PEDROSA
Florida Bar No. 0137115
MIAMI3/GOLDDERGU/183294/3xfS011.D0C/1/19/00/999.097513
19
Mr. Lazaro Gonzalez
Page 2
In our direct conversations with Mr. Gonzalez-Quintana, he has repeatediy informed us
of his decision not to assert Elian's right to apply for asylum. Mr. Bernstein and his associates
have prepared and submitted asylum applications on Elian's behalf, one of which was signed by
Elian. After careful consideration, we have determined that Elian does not have the capacity to
apply for asylum without the assistance of his parent. Further, neither the applications you have
submitted nor any other information available indicates that Elian would be at risk of harm in
Cuba such that his interests might so diverge from those of his father that his father could not
adequately represent him in this matter. Therefore, given Mr. Gonzalez-Quintana's decision not
to assen Elian's right to apply for asylum, we cannot accept the asylum applications as having
been submitted on Elian's behalf.
Mr. Gonzalez-Quintana has also repeatedly requested that Elian be returned immediately
to his custody in Cuba. We consider this to be a request to withdraw Elian's application for
admission to the United States, made by Elian's custodial parent with authority to speak for Elian
in immigration matters. Therefore, we have granted Mr. Gonzalez-Quintana's request to
withdraw Elian's application for admission to the United States.
Upon his arrival, Elian was temporarily paroled into the United States. Arrangements
should now be made within the next nine days for Elian's reunion with his father. It is our hope
that you will bc able to make arrangements with your nephew to ensure that Elian is returned to
him and his immediate family as soon as possible. The INS is prepared to provide whatever
assistance would be appropriate. We are also aware that neutral third parties have offered to
facilitate Elian's return to Cuba and we are ready to work with them as arrangements are sought.
We appreciate your family's immediate willingness to care for and comfort Elian after
the tragic loss of his mother and stepfather and his ordeal on the high seas. Please be assured
that we would be happy to facilitate continuing contact between Elian, his father, and your
family. If Elian and his immediate family wished to apply for tourist visas at some point in the
future, the Consular Section at the U.S. Interests Section in Havana would, of course, consider
them very favorably.
Sincerely,
Commissioner
Operations
THEY
3
U.S. Department of Justice
Immigration and Naturalization Service
Office of the Director
P.O. Box 851488
Texas Service Center
Mesquite, Texas 75185-1488
January 6, 2000
Mr. Roger Bernstein
Attorney at Law
Turnberry Plaza
2875 NE 191st St., Penthouse 1B
Aventura, FL 33180
Dear Mr. Bernstein:
The enclosed asylum applications are being returned to you. The INS cannot accept the
asylum applications you have submitted on Elian Gonzalez's behalf for the reasons explained in
the attached letter from Michael A. Pearson to you.
Sincerely,
James J. Burzynski
Director, TSC
Attach
002
NIGHT BOX
FILED
JAN 26 2000
CLARENCE MADDOX
UNITED STATES DISTRICT COURT
CLERK. USDC/SUFL/MIA
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 00-0206-CIV-HOEVELER
ELIAN GONZALEZ, a minor,
by and through, LAZARO GONZALEZ,
as next friend, or alternatively,
as temporary legal custodian,
Plaintiffs,
vs.
JANET RENO, Attorney General
of the United States;
DORIS MEISSNER, Commissioner,
United States Immigration and
Naturalization Service;
ROBERT WALLIS, District Director,
United States Immigration and
Naturalization Service; UNITED
STATES IMMIGRATION AND
NATURALIZATION SERVICE; and
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendants.
/
DEFENDANTS' MOTHON FOR LEAVE OF COURT TO FILE
MEMORANDUM OF LAW IN EXCESS OF TWENTY PAGES
Defendants, by and through their undersigned counsel, file
their Motion for Leave of Court to File Memorandum of Law in
Excess of Twenty Pages, and state:
1. Defendants have prepared their Motion to Dismiss or
Alternative Motion for Summary Judgment, and Opposition to
Plaintiffs' Motion for Preliminary and Permanent Injunctive
Relief and Petition for Writ of Mandamus, which numbers ninety-
six (96) pages, which includes an eleven page Table of Contents
003
and Table of Authorities.
2. Under S.D.Fla.L.R. 7.1 (C) (2), no party shall file a
memorandum of law in excess of twenty pages, absent prior
permission of the Court. The additional length in defendants'
Motion is necessary to adequately address the plaintiffs' twenty-
five page Motion for Preliminary and Permanent Injunction and
Petition for Writ of Mandamus and Supporting Memorandum of Law,
as well as defendants' jurisdictional arguments.
WHEREFORE, defendants respectfully request leave of the
Court to file their Motion to Dismiss Or Alternative Motion for
Summary Judgment, and Opposition to Motion for Preliminary and
Permanent Injunctive Relief and Petition for Writ of Mandamus,
numbering ninety-six pages.
Respectfully submitted,
THOMAS E. SCOTT
UNITED STATES ATTORNEY
By:
Deafter A. Lee
DEXTER A. LEE
Assistant U.S. Attorney
Fla. Bar No. 0936693
99 N.E. 4th Street
Miami, Florida 33132
(305) 961-9320
Fax: (305) 530-7139
2
U.S.ATTY-CIVIL
004
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing was hand-delivered this 27TH day of January, 2000 to:
Linda Osberg-Braun, Esq.
Hackley, Bernstein i Osberg-Braun, P.L.
2875 N.E. 191st Street, Penthouse 1B
Aventura, Florida 33180
Barbara Lagoa, Esq.
Greenberg Traurig
1221 Brickell Avenue
Miami, Florida 33131
Spencer Eig, Esq.
420 Lincoln Road, Suite 379
Miami Beach, Florida 33139
Jose Garcia-Pedrosa. Esq.
Ruden, McCloskey, Smith,
Schuster & Russell, P.A.
701 Brickell Avenue
Miami, Florida 33131
Depter A. Lee
DEXTER A. LEE
Assistant U.S. Attorney
3
005
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 00-0206-CIV-HOEVELER
ELIAN GONZALEZ, a minor,
by and through, LAZARO GONZALEZ,
as next friend, or alternatively,
as temporary legal custodian,
Plaintiffs,
vs.
JANET RENO, Attorney General
of the United States;
DORIS MEISSNER, Commissioner,
United States Immigration and
Naturalization Service;
ROBERT WALLIS, District Director,
United States Immigration and
Naturalization Service; UNITED
STATES IMMIGRATION AND
NATURALIZATION SERVICE; and
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendants.
/
DEFENDANTS' MOTION FOR LEAVE OF COURT
TO FILE DOCUMENT UNDER SEAL
Defendants, by and through their undersigned counsel, file
their Motion for Leave of Court to File Document Under Seal, and
state:
Defendants have submitted various exhibits in support of
their Motion to Dismiss or Alternative Motion for Summary
Judgment, and Opposition tc Plaintiffs' Motion for Preliminary
and Permanent Injunctive Relief and Petition for Writ of
Mandamus. Not included in the exhibits are the asylum
Q UUB
applications which Lazaro Gonzalez and his counsel purported to
submit on Elian's behalf. Plaintiffs have not included the
asylum applications in their exhibits to their complaint or
motion. However, at footnotes 22 and 23 of their motion for
injunctive relief, they have summarized the contents of the
asylum applications. While defendants have not included the
applications in their exhibits, they reserve the right to do so
in the future should circumstances warrant their disclosure. In
the meantime, defendants seek leave of the Court to file the
applications under seal. Nothing in INS's regulations precludes
their public disclosure. See 8 C.F.R. § 208.6.
A copy of the document is submitted for in camera inspection
and review by the Court.
WHEREFORE, defendants respectfully request leave of the
Court to file this thirty-five page exhibit under seal.
Respectfully submitted,
THOMAS E. SCOTT
UNITED STATES ATTORNEY
By:
Depter A. Lee
DEXTER A. LEE
Assistant U.S. Attorney
Fla. Bar No. 0936693
99 N.E. 4th Street
Miami, Florida 33132
(305) 961-9320
Fax: (305) 530-7139
2
01.27.00 11.00 PAA 3000307139
U.S. ATTY-CIVIL
007
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing was hand-delivered this 27TH day of January, 2000 to:
Linda Osberg-Braun, Esq.
Hackley, Bernstein & Osberg-Braun, P.L.
2875 N.E. 191st Street, Penthouse 1B
Aventura, Florida 33180
Barbara Lagoa, Esq.
Greenberg Traurig
1221 Brickell Avenue
Miami, Florida 33131
Spencer Eig, Esq.
420 Lincoln Road, Suite 379
Miami Beach, Florida 33139
Jose Garcia-Pedrosa, Esq.
Ruden, McCloskey, Smith,
Schuster & Russell, P.A.
701 Brickell Avenue
Miami, Florida 33131
Dexter A- Lee
DEXTER A. LEE
Assistant U.S. Attorney
3
01727/00 11.00 ГАЛ
U.S.ATTY-CIVIL
008
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
)
ELIAN GONZALEZ, a minor, by and
)
through LAZARO GONZALEZ, as next
)
friend, or alternatively as temporary legal
)
custodian of ELIAN GONZALEZ, a minor,
)
CASE No. 00-0206-CTV-
) HOEVELER
Petitioners/Plaintiffs,
)
) RESPONDENTS/DEFENDANTS:
V.
) MOTION FOR EXPEDITED
) SCHEDULING OF
JANET RENO, Attorney General of the
)
DEFENDANTS' MOTION TO
United States; DORIS MEISSNER,
) DISMISS OR ALTERNATIVE
Commissioner, Immigration and
) MOTION FOR SUMMARY
Naturalization Service; ROBERT WALLIS,
)
JUDGMENT, AND PLAINTIFFS'
District Director, Immigration and
) MOTION FOR PRELIMINARY
Naturalization Service; UNITED STATES
) AND PERMANENT
IMMIGRATION AND NATURALIZA-
)
INJUNCTIVE RELIEF AND
TION SERVICE; and UNITED STATES
) PETITION FOR WRIT OF
DEPARTMENT OF JUSTICE,
) MANDAMUS
)
Respondents/Defendants.
)
)
Defendants move for expedited scheduling of the proceedings on the government's
Motion To Dismiss Or Alternative Motion for Summary Judgment, and plaintiffs' Motion
For Preliminary and Permanent Injunctive Relief and Petition for Writ of Mandamus.
This Motion is based on matters set forth in the accompanying Motion To Dismiss Or
Alternative Motion for Summary Judgment and Opposition To Motion for Preliminary
Injunction, as well as on the following events:
1. Elian Gonzalez ("Elian"), a six-year-old native and citizen of Cuba, was one of
009
three survivors of a failed attempt by fourteen Cuban nationals to traverse the waters
between Cuba and the United States on November 22, 1999. Record and Exhibits filed in
support of Defendants' Motion To Dismiss Or Alternative Motion for Summary Judgment
and Opposition To Motion for Prelirainary Injunction ("Record") at 29-30, 36-37.
Among those who perished was Elian's mother. Id. at 30-34. Elian was rescued by two
fishermen who discovered him floating on an inner tube off the coast of Florida on
November 25, 1999. Id. at 29-30.
2. On November 25, 1999, the Immigration and Naturalization Service ("INS")
paroled Elian into the United States for deferred inspection. See 8 C.F.R. § 235.2(e)
(1999). Id. at 36.
3. Thereafter, the INS conducted a careful investigation of the facts and
circumstances surrounding Elian's arrival at the United States, his relationship with his
father, Juan Miguel Gonzalez-Quintana ("Juan Gonzalez"), and statements made by
plaintiff Lazaro Gonzalez, into whose care the INS placed Elian pending his deferred
inspection.
4. On January 5, 2000, the INS Commissioner determined that only Juan
Gonzalez may speak for Elian in imrigration matters. Based on Juan Gonzalez'
statements concerning Elian, the Coramissioner of the INS decided to accept Juan
Gonzalez' request to withdraw the applications for admission and asylum submitted on
behalf of Elian. In addition, the INS Commissioner directed that Elian should be returned
to his father in Cuba. Consequently, the INS Executive Associate Commissioner, Office
2
01727/00 ГАД
U.S.ATTY-CIVIL
010
of Field Operations, Michael A. Pearson, sent letters to plaintiff Lazaro Gonzalez and
three attorneys who claim they repre sent Elian. Id at 1, 3,5.
5. In the letter to Lazaro Gorzalez, Mr. Pearson explained that the INS
Commissioner had determined that Juan Gonzalez has the right and obligation to
represent Elian concerning immigration matters. Id. at 3-4. Mr. Pearson reminded
Lazaro Gonzalez that Elian was released into his care with no intention that he would
have the authority to seek immigration benefits on Elian's behalf. Id. In addition, Mr.
Pearson informed Lazaro Gonzalez that Juan Gonzalez had specifically refused to permit
the three attorneys to represent Elian. Id. Finally, Mr. Pearson sought Lazaro Gonzalez'
cooperation in reuniting Elian with Juan Gonzalez in Cuba as soon as possible. Id.
6. Similarly, on January 5, 2000, Mr. Pearson sent an additional letter to Lazaro
Gonzalez' attorneys, Spencer Eig and Roger Bernstein, explaining the decision of the INS
Commissioner. Id. at 5-6. Mr. Pearson informed the attorneys that only Juan Gonzalez
could speak for Elian concerning immigration matters. Id. In addition, Attorneys Eig,
Bernstein, and Osberg-Braun were notified that based on the assertions of Juan Gonzalez,
the INS would not recognize their claims to be Elian's legal representatives. Id Finally,
Mr. Pearson appealed for their cooperation in effectuating the decision of the INS
Commissioner. Id
7. On January 7, 2000, instead of complying with the INS requests, Plaintiff
Lazaro Gonzalez, with the assistance of Attorneys Eig, Bernstein, and Osberg-Braun,
filed a Verified Petition for Temporary Custody and Other Relief in the Circuit Court for
3
01/27/00 11.01 ГАД 0033307108
011
the 11th Judicial Circuit in and for Miami-Dade County, Florida, Family Division
("family court"). Id at 300-15. Plaintiff sought temporary custody of Elian pending a
full evidentiary hearing on the Petition for Temporary Custody.
8. On January 10, 2000, Circuit Court Judge Rosa Rodriguez issued an Order
setting an evidentiary hearing on the Petition for Temporary Custody for March 6, 2000.
9. In conjunction with the Order, Judge Rodriguez also issued a Temporary
Protective Order which, among other provisions, prohibited Elian's removal from the
jurisdiction of the 11th Judicial Circuit, ordered that the status quo be preserved, and
granted Lazaro Gonzalez limited legal authority to speak on Elian's behalf in immigration
matters. Id. at 291-99.
10. On January 19, 2000, plaintiff filed a Complaint For Injunctive Relief and
Petition for Writ of Mandamus in this Court.
11. There is need for an expedited scheduling of defendants' Motion To Dismiss
Or Alternative Motion for Summary Judgment, and plaintiff's Motion For Preliminary
and Permanent Injunctive Relief and Petition for Writ of Mandamus because:
a. Elian lost his mother nine weeks ago, and to compound his tragedy, since then
he has yet to see his father.
b. More than three weeks ago, the INS Commissioner decided that Elian should
be reunited with his father.
C. Elian faces an uncertain future resulting from a conflict among family
members, in particular his father in Cuba, and Lazaro Gonzalez in Miami, Florida. The
4
01/27/00 11:01 FAA 3055307139
U.S.ATTY-CIVIL
012
longer that conflict continues unresolved, the longer Elian's future remains in doubt.
d. Elian has become the focus of international news media attention, making it
difficult if not impossible for Elian to live a normal life.
CONCLUSION
Defendants request that the Court set the following schedule:
A.
That plaintiffs' opposition to defendants' motion to dismiss and plaintiffs'
reply in support of the motion for a preliminary injunction be filed no later
than February 2, 2000.
B.
That defendants' reply in support of the motion to dismiss be filed no later
than February 7, 2000.
C.
That a hearing on defendants' motion to dismiss and plaintiffs' motion for a
preliminary injunction be set at the earliest possible opportunity thereafter.
111
/ / /
/ / / /
5
11.01
U.S.ATIY-CIVIL
013
Respectfully submitted,
DAVID W. OGDEN
Acting Assistant Attorney General
PATRICIA MAHER
Deputy Assistant Attorney General
THOMAS W. HUSSEY, Director
DAVID J. KLINE, Deputy Director
Defter A. Lee
for
WILLIAM J. HOWARD
Senior Litigation Counsel
JOCEL YN L. WRIGHT
Senior Litigation Counsel
RUSSELL J.E. VERBY
JOHN P. MORAN
MICHELLE GORDEN
Trial Attorneys
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
(202) 616-4900 tel.
(202) 616-4948 fax
THOMAS E. SCOTT
United States Attorney
Southern District of Florida
Depter A. Lee
DEXTER A. LEE
Assistant U.S. Attorney
Fla. Bar No. 0936693
99 N.E. 4th Street
Miami, Florida 33132
(305) 961-9320
6
01/27/00 11:01 PAA
Qu14
CERTIFICATE OF SERVICE
I certify that on this 27th day of January, 2000, I caused one copy of the foregoing
Motion for Expedited Scheduling of Defendants' Motion to Dismiss or Alternative
Motion For Summary Judgment and Opposition to Motion for Preliminary and Permanent
Injunctive Relief to be served upon plaintiffs by same-day delivery addressed as follows:
LINDA OSBERG-BRAUN
SPENCER EIG
ROGER A. BERNSTEIN
Law Offices of Spencer Eig
Hackley, Bernstein & Osberg-Braun
420 Lincoln Road, Suite 379
2875 N.E. 191st Street, PH 1B
Miami Beach, Florida 33139
Aventura, Florida 33180
BARBARA LAGOA
JOSE GARCIA-PEDROSA
JUDD J. GOLDBERG
Ruden, McClosky, Smith, Schuster &
ELIOT PEDROSA
Russell, P.A.
Greenberg Traurig, P.A.
701 Brickell Avenue
1221 Brickell Avenue
Miami, Florida 33131
Miami, Florida 33131
Dexter A- Lee
DEXTER A. LEE
Assistant U.S. Attorney
7
0
015
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 00-0206-CIV-HOEVELER
ELIAN GONZALEZ, a minor,
by and through, LAZARO GONZALEZ,
as next friend, or alternatively,
as temporary legal custodian,
Plaintiffs,
VS.
JANET RENO, Attorney General
of the United States;
DORIS MEISSNER, Commissioner,
United States Immigration and
Naturalization Service;
ROBERT WALLIS, District Director,
United States Immigration and
Naturalization Service; UNITED
STATES IMMIGRATION AND
NATURALIZATION SERVICE; and
UNITED STATES DEPARTMENT OF
JUSTICE,
Defendants.
/
DEFENDANTS' NOTICE OF FILING RECORD AND EXHIBITS
Defendants, by and through their undersigned counsel, hereby
file the Record and Exhibits in support of their Motion To
Dismiss or Alternative Motion for Summary Judgment, and
Opposition to Plaintiffs' Motion for Preliminary and Permanent
/ / /
/ / /
/ / /
016
Injunction and Petition for Writ of Mandamus.
Respectfully submitted,
THOMAS E. SCOTT
UNITED STATES ATTORNEY
By:
Depter A. Loe
DEXTER A. LEE
Assistant U.S. Attorney
Fla. Bar No. 0936693
99 N.E. 4th Street
Miami, Florida 33132
(305) 961-9320
Fax: (305) 530-7139
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing was hand-delivered this 27TH day of January, 2000 to:
Linda Osberg-Braun, Esq.
Hackley, Bernstein & Osberg-Braun, P.L.
2875 N.E. 191st Street, Penthouse 1B
Aventura, Florida 33180
Barbara Lagoa, Esq.
Greenberg Traurig
1221 Brickell Avenue
Miami, Florida 33131
Spencer Eig, Esq.
420 Lincoln Road, Suite 379
Miami Beach, Florida 33139
Jose Garcia-Pedrosa, Esq.
Ruden, McCloskey, Smith,
Schuster & Russell, P.A.
701 Brickell Avenue
Miami, Florida 33131
Depter A. Lee
DEXTER A. LEE
Assistant U.S. Attorney
2
PAA 000030/138
U.S.AIIY-CIVIL
017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
)
ELIAN GONZALEZ, a minor, by and
)
through LAZARO GONZALEZ, as next
)
friend, or alternatively as temporary legal
)
No. 00-0206-CIV-HOEVELER
custodian, of ELIAN GONZALEZ, a minor,
)
)
) DEFENDANTS' MOTION TO
Petitioners/Plaintifis,
) DISMISS OR ALTERNATIVE
) MOTION FOR SUMMARY
V.
) JUDGMENT, AND OPPOSITION
) TO PLAINTIFFS' MOTION FOR
JANET RENO, Attorney General of the
) PRELIMINARY AND
United States; DORIS MEISSNER,
) PERMANENT INJUNCTIVE
Commissioner, Immigration and
) RELIEF AND PETITION FOR
Naturalization Service; ROBERT WALLIS,
)
WRIT OF MANDAMUS
District Director, Immigration and
)
Naturalization Service; UNITED STATES
)
IMMIGRATION AND NATURALIZA-
)
TION SERVICE; and UNITED STATES
)
DEPARTMENT OF JUSTICE,
)
)
Respondents/Defendants.
)
)
018
TABLE OF CONTENTS
TABLE OF AUTHORITIES
iv
I.
SUMMARY
2
II.
BACKGROUND
7
A.
ELIAN GONZALEZ DEFERRED INSPECTION
7
B.
JUAN GONZALEZ DEMANDED ELIAN'S RETURN
9
C.
THE INS MET WITH JUAN GONZALEZ TO OBTAIN
EVIDENCE OF HIS RELATIONSHIP WITH ELIAN
10
D.
THE INS MET WITH LAZARO GONZALEZ
15
E.
THE INS CONDUCTED A SECOND INTERVIEW OF
JUAN GONZALEZ
18
F.
THE COMMISSIONER ISSUED HER DECISION
22
G.
LAZARO GONZALEZ AND HIS ATTORNEYS SOUGHT
THE ATTORNEY GENERAL'S RECONSIDERATION
24
H.
ACTION FILED IN FAMILY COURT
256
I.
THE ATTORNEY GENERAL RESPONDED TO THE
REQUEST FOR RECONSIDERATION
27
ARGUMENT
29
I.
THE COURT LACKS SUBJECT MATTER JURISDICTION OVER
PLAINTIFFS' DEMAND THAT THE ATTORNEY GENERAL
ACCEPT AN ARRIVING ALIEN'S APPLICATION FOR
ADMISSION AND PLACE HIM IN FORMAL PROCEEDINGS TO
ADJUDICATE AN ASYLUM APPLICATION
31
П.
PLAINTIFFS LACK STANDING TO RAISE ANY CLAIM
34
i
01/27/00 11:01 FAX 3055307139
U.S.ATTY-CIVIL
019
A.
BECAUSE HIS FATHER HAS WITHDRAWN ELIAN'S APPLICATION
FOR ADMISSION, HAS NOT
AUTHORIZED ANYONE TO SEEK ASYLUM ON ELIAN'S
BEHALF, AND WISHES HIS RETURN TO CUBA, ELIAN GONZALEZ
IS NOT A PROPER PARTY PLAINTIFF
36
B. A STATE FAMILY COURT CANNOT AUTHORIZE
PLAINTIFF LAZARO GONZALEZ TO ASSERT
IMMIGRATION CLAIMS ON BEHALF OF ELIAN
GONZALEZ WHEN THE COMMISSIONER HAS
DETERMINED TO THE CONTRARY
40
(1) AN OVERVIEW OF THE PREEMPTION DOCTRINE
41
(2) FIELD AND CONFLICT PREEMPTION BAR
LAZARO GONZALEZ FROM ELYING ON
HIS FAMILY COURT APPOINTMENT AS INTERIM
TEMPORARY GUARDIAN TO BRING THIS
ACTION
47
III. THE COURT SHOULD DISMISS THIS CASE FOR FAILURE
TO STATE A CLAIM OR, IN THE ALTERNATIVE, GRANT
DEFENDANTS SUMMARY JUDGMENT
51
A. ARRIVING ALIENS HAVE NO CONSTITUTIONAL RIGHT
TO APPLY FOR ADMISSION OR ASYLUM
51
B.
ARRIVING ALIENS LACKING CAPACITY AND AN
OBJECTIVE BASIS FOR SEEKING ASYLUM HAVE NO
ENFORCEABLE STATUTORY RIGHT TO APPLY FOR
ADMISSION OR ASYLUM
56
C.
MANDAMUS IS NOT AVAILABLE TO PLAINTIFFS
63
D.
DEFENDANTS ARE ENTITLED TO SUMMARY
ii
020
JUDGMENT ON WHETHER THE COMMISSIONER
PROPERLY ACCEPTED JUAN GONZALEZ'
WITHDRAWAL OF THE ADMISSION AND ASYLUM APPLICATIONS
PURPORTEDLY PROFFERED ON ELIAN'S BEHALF
67
(1)
THE COMMISSIONER'S DECISION IS "FACIALLY
LEGITIMATE AND BONA FIDE"
67
(2)
REVIEWED UNDER THE ADMINISTRATIVE
PROCEDURE ACT, THE COMMISSIONER'S
DECISION WAS AN APPROPRIATE EXERCISE
OF DISCRETION
79
IV. THE COURT SHOULD DENY PLAINTIFFS' MOTION FOR
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF
80
A.
PLAINTIFFS HAVE FAILED TO DEMONSTRATE
A SUBSTANTIAL LIKELIHOOD OF SUCCESS
81
B.
PLAINTIFFS HAVE FAILED TO DEMONSTRATE A
SUBSTANTIAL THREAT OF IRREPARABLE INJURY
81
C.
PLAINTIFFS HAVE FAILED TO DEMONSTRATE
THAT THEIR OWN INJURY OUTWEIGHS THE INJURY
TO THE UNITED STATES
82
D.
PLAINTIFFS HAVE FAILED TO DEMONSTRATE
THAT THE INJUNCTION WOULD NOT DISSERVE
THE PUBLIC INTEREST
83
CONCLUSION
83
CERTIFICATE OF SERVICE
85
iii
021
TABLE OF AUTHORITIES
FEDERAL CASES
Acosta-Montero V. INS, 62 F.3d 1347 (11th Cir. 1995)
60
Amanullah V. Nelson, 811 F.2d 1 (1st Cir. 1987)
54, 53
Ardestani V. INS, 502 U.S. 129 (1991)
79
Bank of United States v. Ritchie, 33 U.S. 128 (1834)
37
Boyes V Shell Oil Products, --- F.3d -, 2000 WL 3724
(11th Cir. Jan. 4, 2000)
50
Caban V. Mohammed, 441 U.S. 380 (1979)
74
Chevron U.S.A., Inc. V. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984)
41, 56, 59
Church V. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994)
81
City of New York V. FCC, 486 U.S. 57 (1988)
41
Committee of Central American Refugees V. INS, 795 F.2d 1434 (9th Cir. 1986)
80
Croce V. Bromley Corp., 623 F.2d 1084 (5th Cir. 1980)
37
Cuban American Bar Association P. Christopher, 43 F.3d 1412 (11th Cir.),
cert. denied, 516 U.S. 913 (1995)
53, 54, 68
Dahl V. HEM Pharmaceuticals, 7 F.3d 1399 (9th Cir. 1993)
80
DeCanas V. Bica, 424 U.S. 351 (1976)
44, 46, 47, 49
Devine V. Indian River County School Board, 121 F.3d 576 (11th Cir. 1997)
37
Dunn-McCampbell Royalty Interest, Inc. V. National Park Service,
112 F.3d 1283 (5th Cir. 1997)
64
Einhorn v. DeWitt, 618 F.2d 347 (5th Cir. 1980)
64
iv
Q 022
Ekiu V. United States, 142 U.S. 651 (1892)
46
Executive 100, Inc. V. Martin County, 922 F.2d 1536 (11th Cir. 1991)
51, 55
Fiallo V. Bell, 430 U.S. 787 (1977)
46, 49
Florida Power & Light Company !. Lorion, 470 U.S. 729 (1985)
79
Fong Yue Ting V. United States, 149 U.S. 698 (1893)
46
Ford Motor Credit Company v. Milhollin, 444 U.S. 555 (1980)
57
Ford V. Haley, 195 F.3d 603 (11th Cir. 1999)
35
Garcia V. INS, 7 F.3d 1320 (7th Cir. 1993)
54
Garrick V. Weaver, 888 F.2d 687 (10th Cir. 1989)
37
Gisbert V. U.S. Attorney General, 988 F.2d 1437 (5th Cir. 1993)
53
Haitian Refugee Ctr., Inc. V. Baker, 949 F.2d 1109 (11th Cir. 1991)
80
Heckler V. Chaney, 470 U.S. 821 (1985)
30, 31, 32
Herman V. NationsBank Trust Company, 126 F.3d 1354 (11th Cir. 1997)
59
Hines V. Davidowitz, 312 U.S. 52 (1941)
43, 45, 46
Hodgson V. Minnesota, 497 U.S. 417 (1990)
64, 73, 75
INS V. Aguirre-Aguirre, 526 U.S. 415, 119 S. Ct. 1439 (1999)
41, 56, 77
INS V. Cardoza- Fonseca, 480 U.S. 421 (1987)
56
Jackson V. Motel 6 Multipurpose, Inc., 130 F.3d 999 (11th Cir. 1997)
63, 64
Jean V Nelson, 472 U.S. 846, 854-55 (1985)
54
Jean V. Nelson, 727 F.2d 957 (11th Cir. 1984)
53, 54, 67
Johns V. United States Department of Justice, 653 F.2d 884 (5th Cir. 1981)
48
V
0030307138
U.S.ATIY-CIVIL
0 023
Kirkland Masonry, Inc. V. Commissioner of Internal Revenue,
614 F.2d 532 (5th Cir. 1980)
65
Kleindienst V. Mandel, 408 U.S. 753 (1972)
46, 49, 68
Kwong Hai Chew v. Colding, 344 U.S. 590 (1953)
52
Landon V. Plascencia, 459 U.S. 21. (1982)
49, 52
Leal-Rodriguez V. INS, 990 F.2d 939 (7th Cir. 1993)
69
Legal Environmental Assistance Foundation, Inc. v. EPA,
118 F.3d 1467 (11th Cir. 1997)
79
Lehr v. Robertson, 463 U.S. 248 (1983)
74, 75
Leng May Ma V. Barber, 357 U.S. 185 (1958)
52, 55, 69
Lewis V. Brunswick, 107 F.3d 1494 (11th Cir. 1997)
41, 42, 43, 50
Linder v. Portocarrero, 963 F.2d 332 (11th Cir. 1992)
56
Lonchar v. Zant, 978 F.2d 637 (11th Cir. 1993)
38
In re Lopez-Lukus, 113 F.3d 1187 (11th Cir. 1997)
64
Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250
(5th Cir. 1980)
35, 36
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)
35
Lynch V. Cannatella, 810 F.2d 1363 (5th Cir. 1987)
53
Marcello V. Bonds, 349 U.S. 302 (1955)
79
Marshall County Board of Education V. Marshall County Gas Dist.,
992 F.2d 1171 (11th Cir. 1993)
56
Matsushita Electric Industrial Co. V. Zenith Radio Corp., 475 U.S. 574 (1986)
51
vi
0021
May V. Anderson, 345 U.S. 528 (1953)
74
Mazurek V. Armstrong, 520 U.S. 968, 117 S. Ct. 1865 (1997)
80
McCarty V. McCarty, 453 U.S. 210 (1981)
42
Meyer v. Nebraska, 262 U.S. 390 (1923)
74
Mississippi Power & Light Co. V. Mississippi ex rel. Moore,
487 U.S. 354 (1988)
42
Morgan V. Potter, 157 U.S. 195 (1895)
36
Naidoo V. INS, 39 F. Supp. 755 (W.D. La. 1999)
34
Nyquist V. Mauclet, 432 U.S. 1 (1977)
50
Pacific Gas & Electric Co. V. Energy Resources Conservation and
Development Com'n, 461 U.S. 481 (1987)
42
Parham V. J.R, 442 U.S. 584 (1979)
61, 74
Pasquini V. Morris, 700 F.2d 658 (11th Cir. 1983)
57, 66
Pelaez V. INS, 513 F.2d 303 (5th Cir.), cert. denied, 423 U.S. 892 (1975)
49
Perez-Perez v. Hanberry, 781 F.2d 1477 (11th Cir. 1986)
68
Pierce V. Society of Sisters, 268 U.S. 510 (1925)
73
Plyler V. Doe, 457 U.S. 202 (1982)
46, 50
Polovchak v. Meese, 774 F.2d 731 (7th Cir. 1985)
75, 76
Prince V. Massachusetts, 321 U.S. 158 (1944)
74
Quilloin v. Walcott, 434 U.S. 246 (1978)
62
Ramirez-Osorio V. INS, 745 F.2d 937 (5th Cir. 1984)
54
Reno V. American-Arab Anti-Discrimination Committee,
vii
ГАЛ
U.S.ATTY-CIVIL
025
525 U.S. 471(1999)
passim
Reno v. Flores, 507 U.S. 292 (1993)
passim
Rush V. Macy's New York, Inc., 775 F.2d 1554 (11th Cir. 1985)
64
Shaughnessy V. United States ex rel. Mezei, 345 U.S. 206 (1953)
52
Skinner V. Oklahoma, 316 U.S. 535 (1942)
74
Stamm v. Paul, 121 F.3d 635 (11th Cir. 1997)
59
Stanley V. Illinois, 405 U.S. 645 (1972)
73, 74, 75
Sudomir V. McMahon, 767 F.2d 1456 (9th Cir. 1985)
46
T.W. & M.W. V. Brophy, 124 F.3d 893 (7th Cir. 1997)
37, 38, 39
Teper V. Miller, 82 F.3d 989 (11th Cir. 1996)
41, 42
Toll v. Moreno, 458 U.S. 1 (1982)
45, 48
Transcontinental Gas Pipe Line Corp. V. State Oil and
Gas Board of Mississippi, 474 U.S. 409 (1986)
42
United States ex rel. Knauffv. Shaughnessy, 338 U.S. 537 (1950)
49, 52, 53
United States V. Gordon-Nikkar, 518 F.2d 972 (5th Cir. 1975)
49
Van Dinh V. Reno, 197 F.3d 427 (10th Cir. 1999)
34
Warth V. Seldin, 422 U.S. 490 (1975)
36
Whitmore v. Arkansas, 495 U.S. 149 (1990)
35, 37
Wisconsin V. Yoder, 406 U.S. 205 (1972)
73
STATE CASES
Berlin v. Berlin, 386 So. 2d 577 (Fla. 3d D.C.A. 1980), rev. denied,
394 So.2d 1151 (Fla.1981)
74
viii
026
Elkins V. Vanden Bosch, 433 So. 2d 1251 (Fla App. 3 Dist. 1983)
74
Gramegna V. Parole Commission, 666 So. 2d 135 (Fla. 1996)
74
Liberty Mutual Insurance Co. V. Conley, 152 So. 2d 521
(Fla.App. 1 Dist. 1963)
74
Orange Motors of Miami, Inc. V. Miami National Bank,
227 So. 2d 717 (Fla. 3d DCA 1969)
74
R.C.N. V. State, 141 Ga. App. 490. 233 S.E.2d 866 (1977)
62
FEDERAL STATUTES
5 U.S.C. §§ 551-559, 701-706
79
28 U.S.C. § 1361
63
Fed. R. Civ. P. 56(c)
51, 67
INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A)
50, 68
INA § 101(a)(27)(J) 8 U.S.C. § 1101(a)(27)(J)
50
INA § 101(a)(42), 8 U.S.C. § 1101(a)(42)
81
INA § 103, 8 U.S.C. § 1103(a)
43, 56, 71
INA § 208(a) 8 U.S.C. § 1158(a)
56
INA § 208(d)(7), 8 U.S.C. § 1158(d)(7)
64
INA § 235(a)(1), 8 U.S.C. § 1225(a)(1)
68, 69
INA § 235(a)(4), 8 U.S.C. § 1225(a)(4)
34, 69, 70
INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii)
31, 34, 35
INA § 242(g), 8 U.S.C. § 1252(g)
30, 31, 32, 83
ix
ГЛА 0000007108
UIS.ATTY-CIVIL
027
STATE STATUTES
Fla. Stat. § 61.1308(1)(c)
26
Fla. Stat. § 61.1308(1)(d)
26
Fla. Stat. § 744.301
71
REGULATIONS
8 C.F.R. § 1.1(q)
69
8 C.F.R. § 103.2(a)(2)
38
8 C.F.R. § 207.7
57
8 C.F.R. § 208.9
56
8 C.F.R. § 208.14(b)
56
8 C.F.R. § 208.14(e)
57
8 C.F.R. § 235.1(d)
69
8 C.F.R. § 235.2(e)
69
8 C.F.R. § 292.3(a)
50
MISCELLANEOUS
K. Manheim, State Immigration Laws and Federal Supremacy,
22 Hastings Const. L.Q. 939 (1995)
46, 47
INS, Children's Asylum Guidelines
57
INS, Inspector's Field Manual, Chapter 17.15(f)
passim
X
028
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
)
ELIAN GONZALEZ, a minor, by and
)
through LAZARO GONZALEZ, as next
)
friend, or alternatively as temporary legal
)
No. 00-0206-CIV-HOEVELER
custodian, of ELIAN GONZALEZ, a minor,
)
)
Petitioners/Plaintifis,
)
DEFENDANTS' MOTION TO
) DISMISS OR ALTERNATIVE
V.
) MOTION FOR SUMMARY
)
JUDGMENT, AND OPPOSITION
JANET RENO, Attorney General of the
) TO PLAINTIFFS' MOTION FOR
United States; DORIS MEISSNER,
) PRELIMINARY AND
Commissioner, Immigration and
) PERMANENT INJUNCTIVE
Naturalization Service; ROBERT WALLIS,
)
RELIEF AND PETITION FOR
District Director, Immigration and
)
WRIT OF MANDAMUS
Naturalization Service; UNITED STATES
)
IMMIGRATION AND NATURALIZA-
)
TION SERVICE; and UNITED STATES
)
DEPARTMENT OF JUSTICE,
)
)
Respondents/Defeniants.
)
)
Defendants Janet Reno, et al. ("the United States") by and through their
undersigned counsel, hereby move to dismiss plaintiffs' complaint for injunctive and
mandamus relief, or, alternatively, move for summary judgment In addition, the United
States hereby opposes plaintiffs' motion for preliminary and permanent injunctive and
mandamus relief.
/ / /
/ / /
111
U.S.AITY-CIVIL
4 029
I.
SUMMARY
This case concerns a small boy named Elian Gonzalez who lost his mother nearly
eight weeks ago. His father, who has been close to Elian throughout the boy's life, has
asked that his son return home to him in Cuba. The United States has concluded that the
two should be reunited because it is the father who now speaks for his son. But relatives
here, who doubtless mean well, are seeking to have Elian remain in the United States
because of their concerns about the repressive government of Cuba. This lawsuit has
resulted.
Plaintiffs' complaint ignores the dispositive question the Attorney General posed to
counsel in her letter of January 12. 2000: "Who speaks for the child?" Defendants'
Exhibits ("Record") at 27. Elian is so young he cannot comprehend the significance of an
asylum application. Someone else, therefore, must decide and speak for him. Plaintiffs
would have the government be bound by their interpretation of the Immigration and
Nationality Act and regulations whereby the only person who cannot speak for Elian in
immigration matters is his surviving parent. This cannot be. As the Supreme Court has
made clear, "our society and this Court's jurisprudence have always presumed [parents] to
be the preferred and primary custodians of their minor children," Reno V. Flores, 507
U.S. 292, 310 (1993), a presumption clearly reflected in the family unity policy which is
embodied in the Immigration and Nationality Act.
When Juan Miguel Gonzalez, Elian's father, came forward to request Elian's
return, the INS sent one of its officers to speak with him. The INS learned that Juan
2
3
11:47 PAA
U.S.AITY-CIVIL
02/02/002
Gonzalez and Elian are very close. Although his parents were divorced, Elian lived a
great deal of the time with Juan Gonzalez since he attended school closer to his father's
house than to his mother's. Record at 49. "He would sleep and eat here and spent most
of his time here. He even slept with me and my present wife in the same bed while
visiting because he's very close to me." Id. As a matter of fact, he said later, "Elian's
name is the construction of parts of our names: 'Eli', for the beginning of [his mother's]
name Elisabeth and 'an' for the latter part of my name, Juan." Id at 51. "Elian is my life.
He is my first son. Wherever I went, he went with me. I taught him how to swim, do
karate, he has a parrot here, dogs a bicycle and all kinds of toys." Id. Juan Gonzalez
was very involved with Elian's education and his school. Id. The INS summary of the
interviews of Juan Gonzalez are submitted as part of the Record. The INS sought
assurances that Juan Gonzalez was speaking freely when he asked for Elian's return, and
the evidence indicates he was and is.
There are two plaintiffs in this case. One is Elian's great-uncle, Lazaro Gonzalez,
either in his capacity as a state family court-appointed temporary guardian or as a "next
friend" under Rule 17(c) of the Federal Rules of Civil Procedure. The other is Elian.
The complaint's five claims all challenge the government's decision not to adjudicate an
asylum application filed on Elian's behalf by Elian's great-uncle against his father's
wishes. Plaintiffs' first claim is that Elian has a constitutional right to an asylum
adjudication. Plaintiffs' second, third, and fourth claims are that the Immigration and
Nationality Act and various Immigration and Naturalization Service ("INS") regulations
3
01/27/00 r.11 0033507108
USA-CIVIL
000
require that the government adjudicate the asylum application. Plaintiffs' fifth claim is
for mandamus. Based on this complaint, Lazaro Gonzalez has filed a motion, asking the
Court to enjoin the government from complying with Juan Gonzalez' wish that Elian
return to Cuba and to mandate that the asylum application be fully adjudicated.
The government's motion to dismiss or in the alternative for summary judgment
and opposition to plaintiffs' motion for injunctive relief has four main parts. Following a
discussion of the factual background of this case, Part I argues that the Court lacks
subject matter jurisdiction over plaintiffs' demand that the Attorney General commence
proceedings against Elian, and over any challenge to her decision to permit Elian to
withdraw his application for admission. See pages 31-36. In the alternative, Part II asks
that the Court dismiss this case for lack of standing. That argument has two sections.
Section II.A explains that Lazaro Gonzalez' designation as "next friend" does not provide
standing because such a designation only aids enforcement of a right vested in a minor.
See pages 36-42. Elian's rights are: vested exclusively in his father and thus Lazaro has no
authority to make Elian a proper party plaintiff. Section II.B explains that Lazaro
Gonzalez' state family court appointment as interim temporary guardian does not solve
the standing problem either. See pages 43-53. The reason for this is that the Immigration
and Nationality Act preempts the family court order to the extent the order regulates
immigration and conflicts with the Commissioner's determination. Because the
Commissioner has determined that Elian's father speaks for him with respect to federal
immigration matters, a state court cannot decide otherwise. The final argument with
4
01/27/00 11:00 PAA 305030/138
U.S.ATTY-CIVIL
031
respect to standing is more fully developed later in the summary judgment portion of this
motion, but the conclusion applies here as well. Elian lacks standing to bring this suit
because, inasmuch as his father has withdrawn Elian's admission and asylum
applications, Elian has not suffered an "injury in fact."
Section III of this motion is based on Rule 12(b)(6), and, alternatively, on Rule
56(c), of the Federal Rules of Civil Procedure. Plaintiffs have failed to state a claim upon
which relief can be granted, or, alternatively, the Court should grant summary judgment
to the government. Plaintiffs claim Elian has a constitutional right to apply for asylum,
but a long line of Supreme Court cases and Eleventh Circuit precedent have held to the
contrary. See pages 53-58. Plaintiffs claim the Immigration and Nationality Act and
regulations require that the asylum application be adjudicated, but they ignore the fact
that parental authority determines whether an application may even be submitted on
behalf of a child so young as to lack the capacity to affirm the contents of that
application. See pages 54-65. Similarly, plaintiffs rely on a mandamus claim to seek
enforcement of that statutory right to seek asylum, while again ignoring the parent's
authority to speak for his child. See pages 65-70.
In the context of the government's motion for summary judgment, the government
invites examination of the propriety of the Commissioner's decision, ratified by the
Attorney General, to recognize the authority of Elian's father to speak for his son in
immigration matters. Under established law, the Commissioner's decision should be
upheld if it is "facially legitimate and bona fide." See pages 70-82. Alternatively, while
5
RETIONPOOD
032
the government does not believe the Administrative Procedure Act applies in this
instance, should the Court find that it does, it should uphold the Commissioner's decision
to rely on Elian's father's judgment because that decision is neither arbitrary nor
capricious. See pages 82-83.
Finally, the government asks the Court to deny plaintiffs' motion for injunctive
relief. See pages 83-87. For the reasons summarized above, plaintiffs have failed to
demonstrate a substantial likelihood of success. Plaintiffs have also failed to meet their
burden of showing a substantial threat of irreparable harm. The real harm is that six-
year-old Elian is being kept from his father and his father from him. Nor have plaintiffs
demonstrated that their injury outweighs the injury to the United States, which is
substantial. The INS will be harmed if it cannot act upon the immigration decisions
parents make on their children's behalf. And, if this country does not honor the wishes of
a child's surviving parent, the United States will be harmed from the standpoint of its
international standing in protecting parental rights in cases involving American children.
Finally, plaintiffs have not demonstrated that the injunction would serve the public
interest. It disserves the public interest to undermine the principle that parents may
decide what is best for their children. It disserves the public interest to undermine the
ability of immigration inspectors at our ports-of-entry to look to parents to make
immigration decisions for their children. And as Ambassador Mary Ryan explains in a
declaration made part of the record, it disserves the public interest to undermine the
ability of the United States to obtain the return of U.S. citizen children.
6
033
II. BACKGROUND
A. ELIAN GONZALEZ' DEFERRED INSPECTION
Six-year-old Elian Gonzalez is a native and citizen of Cuba who was rescued from
the Florida Straits a few miles northeast of Fort Lauderdale on November 25, 1999. See
Defendants' Exhibits ("Record") at 29-30, 36-37. That morning, two Miami men who
were out fishing found him floating on an inner tube, brought him aboard their boat,
radioed the Coast Guard, and started toward shore. Id. The Coast Guard launched a
utility boat to retrieve him from the men who found him. Id. at 29. At 9:05 a.m., he was
transferred to the utility boat and ten minutes later brought to the Coast Guard station. Id.
at 38. Suffering from hypothermia and dehydration, Elian was then taken by ambulance
to Hollywood Memorial Hospital. Id. at 29.
At that time, the Coast Guard notified the United States Border Patrol of Elian's
hospitalization. Id. at 36, 38. In turn, Border Patrol agents Verne Eastwood and Jose
Lopez arranged to meet Immigration and Naturalization Service ("INS") inspector
Edward Agundez at the hospital. Id. at 36-37, 38-39. When the three arrived, hospital
staff advised them that several people in the waiting area claimed to be related to Elian.
Id. at 36-37, 39. Two of these persons identified themselves as Lazaro Gonzalez and his
wife Angela. They explained that they were the child's great uncle and aunt, identified
Elian as Elian Monzalvo-Gonzalez, and provided the officers with information about his
parents and residence in Cuba. Id.
7
Inspector Agundez telephoned an INS supervisor in Miami and told him that he
was convinced that Lazaro Gonzalez was Elian's uncle and that at that time, in view of
Elian's medical condition, an immigration inspection was not possible. Id. at 36. The
supervisor therefore instructed Agundez to defer Elian's inspection for thirty days. Id.
Agundez completed the documents which deferred Elian's inspection until December 23,
1999, and served those documents on Lazaro Gonzalez. Id. at 40-41 (Forms I-94 and I-
546). Before leaving the hospital, Agundez instructed hospital staff to release Elian into
Lazaro Gonzalez' care when he was ready to be discharged. Id. at 37, 40-41. The next
day, November 26, the hospital did so. Id. at 37.
Subsequent inquiries by the INS revealed that Elian and thirteen others had left
Cuba aboard a sixteen-foot motor boat about 4:30 Monday morning, November 22, 1999.
Id. at 30. With Elian was his mother Elisabeth Brotons; her common law husband,
Lazaro Munero; Lazaro Munero's parents and two brothers; five members of the Nelson
Rodriguez family, who were distant relatives of Elisabeth Brotons; and Arianne Horta
and Nivaldo Fernandez. Id. at31-34. Late Monday, the group ran into five-foot waves
and their motor quit. Id. at 32. Drifting north, they bailed water until the boat capsized
sometime around 2:30 a.m. on the morning of Tuesday, November 23, 1999. Id.30, 32-
33. They took to two inner tubes that had been tied to the boat. Id. at 30, 32. By late
Wednesday, however, only Elian, Fernandez, and Horta had survived. Id. at 33. The
others evidently had become hypothermic and drifted away from the inner tubes. Id. at
32-33. On the night of Wednesday, November 24, 1999, Elian was alone on one inner
8
RETIONPOOD
0. 035
tube; Fernandez and Horta were separated from him on the other. Id. at 33. On the
morning of Thursday, November 25, 1999, about two and a half days after the boat had
capsized, Fernandez and Horta caine ashore at Key Biscayne. Id. at 29, 33. Elian was
rescued a short time later three miles or so from Fort Lauderdale and, based on his urgent
need for medical attention, the Coast Guard brought him ashore and arranged for his
emergency transfer to Hollywood Hospital. Id. at 29-30, 36.
B. JUAN GONZALEZ DEMANDED ELIAN'S RETURN
On November 27, the day after Elian was released to defendant and Angela
Gonzalez, Juan Gonzalez dispatched a letter to the Cuban government requesting its
assistance in obtaining his son's return Id. at 110, 111. That day, he wrote to Cuban
Foreign Minister Felipe Perez Roque and asked him to carry out the necessary
procedures. Id. Perez in turn forwarded Juan Gonzalez' letter to the U.S. Interests
Section in Havana. Id. at 112. Perez stated, in part:
The child's father, Juan Manuel Gonzalez Quintana, a citizen of Cuba, has
asked this ministry to obtain the immediate return of his son who was taken
out of the country by the mother and ex-wife of Gonzalez Quintana without
his consent Given the human connotation of the event and based on sound
legal foundation, this Ministry presents this reclama, enclosing the letter of
the father of the minor in which he demands the return of his child.
Id. at 113.
Robert A. Wallis, INS district director for the Miami district, responded by letter
to Juan Gonzalez' demand on December 8, 1999. Id. at 42. In that letter, Wallis told
Juan Gonzalez that the INS needed to meet with him to obtain proof that he was Elian's
9
01/27/00 ГЛА 0000507108
UJ0
father and had lawful authority to exercise parental rights. Id. He asked Juan Gonzalez
to provide documents such as a birth certificate or baptismal certificate, school or medical
records, written statements from persons attesting to their relationship, and a divorce
decree and documents such as medical or school records which reflected the exercise of
parental rights. Id. at 42-45. On December 10, 1999, before the INS was able to gather
this information, Lazaro Gonzalez signed and submitted to the INS an asylum application
on Elian's behalf.
C.
THE INS MET WITH JUAN GONZALEZ TO OBTAIN EVIDENCE OF
HIS RELATIONSHIP WITH ELIAN
On December 13, 1999, Silma Dimmel, Officer-in-Charge for the INS in Havana,
met with Juan Gonzalez at his residence. Id. at 46. Accompanying Dimmel was Jeffrey
DeLaurentis, the First Secretary and Chief of the Political/Economic Section of the U.S.
Interests Section. Id. With Juan Gonzalez were his parents, Elisabeth Brotons' parents,
his wife, their son, and other family members. Id. at 48. Dimmel asked Juan Gonzalez if
she and Mr. DeLaurentis could meet with him in private so he could talk freely and
without interruption. Id. He led them to another room but asked that his parents
accompany them. Id. Dimmel agreed to this but obtained his agreement that his parents
would not comment until after the two of them were finished. Id.
In a written report summarizing her interview of Juan Gonzalez, Dimmel described
Juan Gonzalez' assurances that he is Elian's father and that their relationship is a close
one. Id. Among documents Juan Gonzalez produced was Elian's birth certificate; his
10
ГАЛ
U.S.ATTY-CIVIL
I
037
own birth certificate; Elian's school enrollment form indicating that Elian lived with him
at an address different from Elisabeth Brotons' address (id. at 81); a May 1999 hospital
admission form indicating that Elian resided with him and that in the event of an
emergency he was the point of contact; and a report from Elian's school indicating that
Elian is bright and well-adjusted, and that his parents were involved in his school work.
Id. at 72-107.
Juan Gonzalez also provided Dimmel with a series of affidavits. Id. at 118-99.
Included among them are affidavits from a doctor who treated Elian in connection with
May 1999 surgery and who spoke of Juan Gonzalez' solicitude for Elian; from a nurse,
who on that occasion observed the affection between and among Elian, Juan Gonzalez,
and Elisabeth Brotons; from Juan Gonzalez' supervisor who related the suffering Juan has
endured since his separation from Elian; from neighbors who described the mutual
affection they observed between Juan and Elian; and from Elian's teacher and school
principal, who attested to the closeness between Juan and Elian. Id. at 119-99.
Asked about the custody arrangement, Juan Miguel said that although Cuban law
grants custody of a child to the mother, Elian had been spending more time with him than
with Ms. Brotons:
When we got divorced the laws in Cuba grant custody of a child to the
mother. However, the boy practically lived with me since he attended
school closer to my residence because she lived outside the city limits. She
even decided not to register him at the school which he was supposed to
attend in order for him to stay here and my mother to take care of him while
both of us worked. She (Ms. Brotons) sometimes argued with me because
he spent more time with me: in this residence than with her. He would sleep
11
and eat here and spent most of his time here. He even slept with me and
my present "wife" in the same bed while visiting because he's very close to
me.
Id. at 49. "As a matter of fact," he said later, "Elian's name is the construction of parts of
our names: 'Eli', for the beginning of her name Elisabeth and "an" for the latter part of
my name, Juan." Id. at 51.
Elian is my life. He is my first son. Wherever I went, he went with me. I
taught him how to swim, do karate, he has a parrot here, dogs, a bicycle and
all kinds of toys. As a matter of fact, I haven't been to the barber because
he isn't here since we always went together. I always had a good
relationship with Ms. Brotons. She would even bring Elian here and go to
buy birthday gifts for my father. Even her present boyfriend would come
here and talk to me and eat here. My parents also liked him a lot. I liked
him also because he never inistreated my son whom he loved very much
and I appreciated that from him. Ms. Brotons also had a good relationship
with my present wife.
Id.
Asked how often he saw Elian, Juan Gonzalez answered, "All of the time. He
basically lived here, we did everything together and as already mentioned, he spent more
time with me and my parents than with his own mother." Id. at 52. He went on to say,
"We did everything together. I used to take him to the place where I work to use the
swimming pool and we played together. He slept with me, that's how close we are." Id.
Juan Gonzalez reiterated that after his relationship with Elisabeth Brotons ended, Elian
slept at his home "all of the time." Id. He also said he attended meetings and activities at
Elian's school, and that he had seen to it that Elian received needed surgery. Id. Asked if
12
039
he provided financial support for Elian's upbringing, he explained that he provided more
than what the law required of him. Id. at 52-53.
Dimmel explained to Juan Gonzalez that under United States law an individual
who is seeking admission to the United States may withdraw his application and return to
Cuba; remain in the United States and after one year become a lawful permanent resident
under the Cuban Adjustment Act; or apply for asylum. Id. at 49-50. Asked for his
preference as Elian's father, Juan Gonzalez was unequivocal:
Return immediately to Cuba. I was listening to the news and about the laws
in the United States. Elian, at the age of six, cannot make a decision on his
own. In the first place, he wasn't found on land, he was found at sea. I'm
very grateful that he received immediate medical assistance, 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. at 50.
Juan Gonzalez said that Lazaro Gonzalez is his father's brother and had left Cuba
legally over ten years ago. "They lived with us in this house and with family since I was
a young child," he said. Id. at 53. "Last August, 1998, they visited Cuba for 15 days and
that's when they met Elian. They 100k a liking to Elian because he's such a nice boy, well
behaved and well mannered; since he's such a lovable boy, they immediately liked him.
Elian is very well educated." Id. Juan Gonzalez added that when he initially spoke to
Lazaro and his wife, they said Elian should be returned immediately to him:
Then all of a sudden, things changed. We had an argument over the phone
because they even offered me money to leave Elian there. I do not want
Elian to stay there, I want him back here in Cuba. It appears that Lazaro is
13
010
under pressure. I tried to convince him rationally to let Elian return, but he
says he is unable to back o:ff because of the circumstances of what could
happen.
Id. at 54.
INS Officer Dimmel concluded her report with the following summation:
It was this officer's observation that the residence where Elian lived, until
the time he was removed by his mother, is very well kept, clean and that
Elian has a very loving set of grandparents and father.
Mr. Gonzalez Quintana appeared very concerned for Elian's return to him
as soon as possible without further delays because he misses his "buddy."
Mr. Gonzalez Quintana provided for the well being of Elian[,] and his
grandparents took good care of Elian after school and during visits to the
residence. Mr. Gonzalez Quintana lives with his present common-law wife,
baby son, his parents and his brother. Elian's grandparents on his mother's
side were also present at Mr. Gonzalez Quintana['s] residence, but were
precluded from being present at the interview.
Mr. Gonzalez Quintana was very much involved in Elian's sustenance and
care. He taught Elian how to swim, do karate and did many activities
together, to the point that Mr. Gonzalez Quintana has not visited the barber
shop since Elian's gone because they got their haircuts together.
Elian was taken care of by his paternal grandmother more so than by his
mother since [his mother] resided in a very small room and not with her
mother. This is one reason why Elian spent so much time with his father,
grandparents, stepmother and stepbrother.
Mr. Gonzalez Quintana, his parents and maternal grandparents expressed
their request that Elian return to Cuba immediately. His paternal
grandparents are greatly distraught that the emptiness that Elian's not being
in Cuba has left in the family. The honesty, concern and truthfulness on the
part of Mr. Gonzalez Quintana was palpable as well as his caring and
wanting his son [to] be returned to Cuba. Elian's paternal grandparents also
appear to be confused and distraught. The family was hurt by the death of
Ms. Brotons and it was obvious that Elian is deeply missed by the family.
Id. at 55.
14
@041
D.
THE INS MET WITH LAZARO GONZALEZ
On December 17, 1999, Miami INS District Director Wallis wrote to Lazaro
Gonzalez and his attorneys to request a meeting to give them the opportunity to respond
to Juan Gonzalez' insistence that only he had the authority to speak for Elian. Id. at 214.
That meeting took place at the INS district office on December 20. Id. at 219-24.
Present for the INS were Jorge Roig, INS Port Director for the Port of Miami; Miami INS
District Counsel Dan Vara; and INS Associate General Counsel Ron Whitney. Id at 217.
Present as well were Lazaro Gonzalez; a cousin of Elian's named Marisleysis Gonzalez;
and attorneys Spencer Eig, Roger Bernstein, and Linda Osberg-Braun Id.
According to Jorge Roig's written summary of the meeting, Messrs. Eig, Bernstein,
and Ms. Osberg-Braun initially met alone with the INS representatives. Id. at 219. After
a discussion of the meeting's purpose, Mr. Bernstein spoke about the asylum application
submitted on Elian's behalf and why it would be in Elian's best interests to remain here.
Id. Mr. Bernstein said he had inte viewed twenty witnesses and ten family members and
that there was a consensus that Juan Gonzalez is being coerced and that his true wishes
are for the boy to remain in the United States. Id. He described changes in the tone of
the telephone conversations between Juan Gonzalez and the Miami relatives. Id. "[T]he
father initially did not ask that Elian be sent back," he said. Id. Rather, Mr. Bernstein
stated that Juan Gonzalez asked that Elian be taken care of by his Miami relatives. Id.
He also described Elian's family history, including his step-father's imprisonment for
three months. Id. And he reiterated concerns that the Castro regime would exploit Elian
15
042
politically. Id. Mr. Bernstein further stated that the Convention on the Rights of the
Child and the International Declaration on Human Rights grant children the right to apply
for asylum without parental consent. Id. at 220.
Mr. Bernstein stated that a reporter in Cuba had contacted him to say that Juan
Gonzalez had previously written letters to the United States Interest Section asking
permission to leave Cuba. Id, Moreover, Mr. Bernstein reported that persons who had
recently arrived here from Cuba had said that Cuban officials were at Juan Gonzalez'
home, making freedom of movement impossible. Id. Mr. Eig added that Elian's mother's
dying wish was for Elian to live in the United States. Id. Mr. Eig also claimed that Cuba
adheres to the doctrine known as pater protesta, whereby the state is the ultimate
guardian of all children. Id.
At this point, Lazaro and Marisleysis Gonzalez entered the room, and Port
Director Roig put a series of questions to Lazaro Gonzalez. Juan Gonzalez is Elian's
father, Lazaro said. Id. He also said that it was his understanding that Elian's mother
received custody of Elian after the divorce. Id. at 221. When asked if he had any reason
to doubt Juan's assertion of parental rights, Lazaro answered, "The boy left Cuba with his
mother. Juan said that if the boy made it to this country safe and sound that we should
protect him by whatever means available. I spoke to both the father and the grandfather."
Id. Asked when this conversation took place, Lazaro said it was on Monday, two to three
days before Elian was found Id. Later Lazaro returned to this November 22, 1999
phone call, describing the conversation as one in which Juan Gonzalez told him that Elian
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4
043
had left with his mother. Id. at 223. Juan Gonzalez said nothing to him to indicate that
he had consented to Elian's departure. Id. Nor did he give him any other information
about who was making the trip. Id. Lazaro described a second telephone conversation
with Juan Gonzalez on Thursday, November 25, 1999, when a doctor at Hollywood
Hospital telephoned Juan Gonzalez for Elian's medical history. Id. at 223-24. Lazaro
told Roig that he himself spoke to Juan Gonzalez on that occasion and that Juan Gonzalez
told him to take care of Elian and protect him. Id. at 224.
Lazaro Gonzalez described Elian's relationship with his father as a normal
relationship but said that Elian was not always with his father because he lived with his
mother. Id. at 221, 222. When Elian was not with his mother, Lazaro Gonzalez said, he
was with his paternal grandparents: Id. at 221. He also said he did not think that Elian's
life at his house in Cuba was a stable one. Id. Asked to explain, he stated that Elian had
changed since being released to him and his wife's care, and that Elian's family life in
Cuba necessarily was not stable because of his parents' relationship. Id. at 221, 222.
As for Mr. Bernstein's claim that Juan Gonzalez was being coerced to demand his
son's return, Lazaro said that he and his family believe that the Cuban government is
pressuring Juan Gonzalez because he changed his mind. Id. at 222. Asked for proof, he
asked why more proof was needed when Cuban authorities are at Juan Gonzalez' house
and will not let him leave. Id. Family members in Cuba have told him that Juan
Gonzalez is being guarded, he saic.. Id. Whoever knows about the Castro regime knows
this is how it works there. Id He cited a statement of Juan Gonzalez that Elian had not
17
Qual
lost out on anything by virtue of living in Cuba. Id Marisleysis Gonzalez agreed that
Juan Gonzalez was being pressured. Id. at 224. She said his tone of voice is different, as
if people were telling him what to say. Id. And she thought his phone was being tapped.
Id.
At the close of the interview, Mr. Eig asked Marisleysis Gonzalez to say a few
words about how Elian is doing in their home. Id. at 224. She said that Elian seemed
very able to cope with the tragedy he had experienced and to adapt to his new
surroundings. Id. She also said that Elian had bonded with her the most and that she is
concerned about his well-being if he is separated from her. Id. Elian does not ask to go
back to his father, she added. Id When asked if he wants to go back, she reported that
Elian had replied that his father should come and live with them in Miami. Id Finally,
she said that when Elian asks her what will happen, she does not know how to answer
him because she does not know. Id.
E.
THE INS CONDUCTED A SECOND INTERVIEW OF JUAN
GONZALEZ
On December 31, 1999, the INS conducted a second interview of Juan Gonzalez.
Id. at 228-43. This time the interview took place at the private residence of the
representative for the United Nations International Children's Emergency Fund
("UNICEF") in Havana, a location. United States and Cuban representatives had agreed
upon as neutral and private. Id at 234. INS Officer-in-Charge Silma Dimmel,
accompanied by Jeffrey DeLaurentis, again conducted the interview. Id. Juan Gonzalez
18
was accompanied by his parents. Id. Ms. Dimmel's written summary of that meeting
contains the following information.
At the outset of the meeting, Juan Gonzalez told Ms. Dimmel that his meetings
with United States representatives were voluntary and that he was not being coerced. Id
at 235. He also said that Elisabeth Brotons took Elian out of the country without his
consent or knowledge. Id. Elian lived with him most of the time and attended school in
his own district rather than Ms. Brotons' district. Id. That, he said, proves that Elian
lived with him and was under his care. Id Ms. Dimmel then asked him to explain an
apparent discrepancy between his first interview and Lazaro Gonzalez' interview with
respect to the timing of Juan Gonzalez' first call to Lazaro Gonzalez. Id at 236. Juan
Gonzalez explained that on Monday, November 22, 1999, his family learned from a
friend that Elisabeth Brotons had left for the United States and had taken Elian with her.
Id When Juan Gonzalez learned of this that night, he became upset and asked his father
to call his brother Lazaro to inquire about it. Id. Lazaro denied knowing anything about
it. Id The following morning, Lazaro called Juan Gonzalez' father and said that
Elisabeth Brotons' relatives in Miami knew nothing about it either. Id. Juan Gonzalez
said that morning he spoke with authorities about what he would need to do to reclaim
Elian in the event that Elian ended up in the U.S. or in Coast Guard custody. Id.
On Thursday, November 25, 1999, Juan Gonzalez and his family received word
that a child had been rescued and evidently taken to the hospital in Miami. Juan
Gonzalez asked his father to call Lazaro Gonzalez' house to find out if the child was
19
QU46
Elian. His father spoke with Lazaro's wife who said she would ask Lazaro to check on
this and call him back. Id. at 237. When Juan Gonzalez returned home from work, he
received a call from Elian's doctor at the hospital in Miami. Id. Elian had given the
doctor his address and phone number. Id. Juan Gonzalez and the doctor spoke before
Lazaro Gonzalez arrived at the hospital. Id When Lazaro Gonzalez and Juan Gonzalez'
father later spoke, Lazaro assured him that he would take care of Elian. Id. According to
Ms. Dimmel, Juan Gonzalez told her that, "As family we did not need to tell him to watch
over my son." Id.
The following day when the hospital released Elian to Lazaro Gonzalez, the
Miami relatives - presumably Lazaro and his wife - called Juan Gonzalez' home and
spoke about Juan Gonzalez and his family coming to the United States. Id. They said
that Juan Gonzalez would be given a job, that Elian was fine, and that they would take
care of him Id. Subsequently, Lazaro and Juan Gonzalez fought over the phone
because, according to Ms. Dimmel's summary, Lazaro continued to insist that Juan
Gonzalez and his family come to the United States. Id. Juan Gonzalez told Ms. Dimmel
that he immediately began arranging to obtain the necessary documents for Elian's return.
Id. "I want my son back." Id. Juan Gonzalez' father reported to Ms. Dimmel that when
he told his brother that Elian would have to be returned to Cuba, Lazaro said that would
not be a problem and that, "If I have to take a plane to return Elian to Cuba, I will do so."
Id at 238.
20
01017
Ms. Dimmel then asked Juan Gonzalez about his statement during their first
meeting that the Cuban community in Miami was exerting pressure on Lazaro Gonzalez
to insist that Elian remain in the United States. Id. at 239. Juan Gonzalez repeated his
earlier statement that Lazaro Gonzalez told his father that he would return Elian except
that he would look bad. Id. Ms. Dimmel reported that Juan told her:
People are saying that I am being coerced by the Cuban government.
However, you can see that they are the ones being coerced by the Cuban
community in Miami. I am not being coerced to meet with you, I want to
do so and am doing it voluntarily. He (Lazaro) is being pressed by the
Cuban community. He has five (5) attorneys, I don't. What bothers me the
most is that I must prove paternity of my son and what have they (INS)
asked the relatives in the U.S. to present as proof of relationship? They just
showed up at the hospital and stated that they were relatives without any
proof or evidence and INS grants them custody of my son. I, on the other
hand, have to prove my relationship.
They have neither my consent nor my permission to be taking the child here
or there. Imagine their insensitivity, in taking that child to Disney world
and putting him on a boat r.de when he already suffered such an ordeal.
They forced him on the ride while he was crying and screaming; not
wanting to do so. My son is suffering, my son needs me and needs his
grandparents; and I need him. They don't even let him speak to us. When
we call and Elian starts saying "Grandma I want to be with you" or "Daddy
I want to go with you," they immediately make him cry, or give him a
candy or start tapping on the lines saying that the lines are getting bad and
hang up the phone. They don't let him talk to us and always have an excuse
for not letting him speak to us. In the background you can hear them telling
Elian to say he wants to stay in the United States, whereas the child is
saying the opposite to us over the phone. It's abusive what they are doing to
Elian. The boy needs me. He already experienced the worst, he's only six
years old and needs his father and they (relatives in Miami) are not taking
that into consideration and INS is still making me wait for my son; it's been
a month.
Id.
21
Ms. Dimmel summarized her interview, observing that Juan Gonzalez is deeply
concerned for Elian's well-being and that he had stressed that the Miami relatives are
using his son for their own benefit without concern for his emotional well-being. Id. at
243. Both Juan Gonzalez and his parents are distressed and became emotional several
times during the interview. Id. All appeared to her to be honest and uncoerced:
Mr. Gonzalez met with us voluntarily and spoke truthfully and honestly.
He misses and wants his son back and the grandparents cannot mention
Elian's name without becoming emotional. This is an honest, genuine and
unified family thoroughly engaged in Elian's life, that has been under
distress since the taking of the child by his mother. It is obvious to this
officer that the mother took the child without Mr. Gonzalez' knowledge,
consent and/or permission.
Id.
F.
THE COMMISSIONER ISSUED HER DECISION
On January 5, 2000, INS Executive Associate Commissioner Michael Pearson sent
letters to Juan Gonzalez, Lazaro Gonzalez, and attorneys Bernstein and Eig notifying
them of the Commissioner's decision that she had accepted the withdrawal of Elian's
application for admission and had declined to accept the asylum applications that Lazaro
Gonzalez and his attorneys had submitted. Id. at 1, 3, 5. In his letter to Juan Gonzalez,
Mr. Pearson said that the INS had reviewed the information he had provided and had
determined that he was indeed Elian's father and lawful guardian. Id. at 1. As such, Mr.
Pearson said, Juan Gonzalez has 'the right and obligation to represent Elian in all legal
transactions and acts in which Elian has an interest." Id He further stated:
22
019
we recognize your authority to speak on behalf of Elian in immigration
matters. Consequently, we are granting your request to withdraw Elian's
application for admission to the United States, a key step in reuniting you
with your son. Also, consistent with the wishes you expressed at our two
interviews with you, we accept your decision not to assert Elian's right to
apply for asylum in the United States.
Id. Mr. Pearson then went on to say that the INS was notifying Lazaro Gonzalez and the
attorneys of Juan Gonzalez' having expressly declined to permit the attorneys to represent
Elian. Id And, he said, the INS had also explained to the others that it was not accepting
the asylum applications. Id
Mr. Pearson's letter to Lazaro Gonzalez is similar in content. Id at 3-4. In
addition, he advised him that the INS had taken steps to ensure that Elian's father was
able to express his true wishes at the two INS interviews and was convinced that he had
done so. Id. at 3. And so far as legal representation for Elian is concerned, Pearson
stated:
Roger Bernstein and several of his associates, attorneys in Miami, have
submitted several Forms G-28, Notice of Entry and Appearance as
Attorney, for Elian. Some of these Forms G-28 were signed by you on
behalf of Elian. On others, Elian himself has printed his first name. After
careful consideration, we have determined that we cannot recognize any of
the Forms G-28 as authorizing these attorneys to represent Elian in
immigration matters. Although the INS has placed Elian in your physical
care, such placement does not confer upon you the authority to act on
behalf of Elian in immigration matters or authorize representation in direct
opposition to the express wishes of the child's custodial parent. Further, we
do not believe that Elian, who recently turned six years old, has the legal
capacity on his own to authorize representation. Finally, Mr. Gonzalez-
Quintana has expressly declined to authorize Mr. Bernstein or his
associates to represent Elian. Therefore, the INS cannot recognize them as
Elian's representatives.
23
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QUSU
Id. at 3.
As for the asylum applications purportedly filed on Elian's behalf, Pearson stated:
In our direct conversations with Mr. Gonzalez-Quintana, he has repeatedly
informed us of his decision not to assert Elian's right to apply for asylum.
Mr. Bernstein and his associates have prepared and submitted asylum
applications on Elian's behalf, one of which was signed by Elian. After
careful consideration, we have determined that Elian does not have the
capacity to apply for asylum without the assistance of his parent. Further,
neither the applications you. have submitted nor any other information
available indicates that Elian would be at risk of harm in Cuba such that his
interests might so diverge from those of his father that his father could not
adequately represent him in this matter. Therefore, given Mr. Gonzalez-
Quintana's decision not to assert Elian's right to apply for asylum, we
cannot accept the asylum applications as having been submitted on Elian's
behalf.
Id. at 4.
Mr. Pearson offered Lazarc Gonzalez any assistance that might be needed to
effectuate Elian's reunion with his father. He offered to facilitate continued contact
between Elian, his father, and Lazaro Gonzalez' family. In addition, he closed by saying,
"If Elian and his immediate family wished to apply for tourist visas at some point in the
future, the Consular Section at the U.S. Interests Section in Havana would, of course,
consider them favorably." Id. Mr. Pearson's letter to the attorneys contained the
information found in the other two letters. Id. at 5-6.
G.
LAZARO GONZALEZ AND HIS ATTORNEYS SOUGHT THE
ATTORNEY GENERAL'S RECONSIDERATION
In a letter dated January 5, 2000, attorneys Bernstein, Eig, and Osberg-Braun
sought the Attorney General's reconsideration of the Commissioner's decision. Id. at 24.
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@051
The decision stripped Elian of legal representation, they wrote, and also denied him a
hearing on his asylum application. Id They insisted that regardless of what Juan
Gonzalez might want for his son, Elian "has a constitutionally protected right to apply for
political asylum. " Id The Commissioner's decision appeared arbitrary, they also
asserted, "based largely on secret interviews conducted with Juan Miguel Gonzalez in
Cuba." Id. And, they said, it seemed predicated on the untested view that Elian's father
is free from duress in Castro's Cuba, and addresses only the father's best interests, not
Elian's. Id Moreover, they said, the decision was not in accord with an INS policy on
admission withdrawals dated August 21, 1997, which states:
When deciding whether to permit the minor to withdraw his or her
application for admission, officers must also make every effort to determine
whether the minor has a fear of persecution or return to his or her country.
If the minor indicates a fear of persecution or intention to apply for asylum,
or if there is any doubt, especially in the case of countries with known
human rights abuses or where turmoil exists, the minor should be placed in
removal proceedings under section 240 of the Act.
Id
H.
ACTION FILED IN FAMILY COURT
On January 7, Lazaro Gonzalez filed interim and temporary petitions for
temporary custody and other relief in a Dade County family court. Id. at 300-15.
Because, he said, Elian was in danger of being removed to Cuba, he asked the family
court to award him temporary custody not only so that he could give legal consent for any
medical care Elian might need, but also so that he could apply for Elian's admission and
25
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U.S.ATTY-CIVIL
@052
asylum "and any other relief that may be needed in connection with [Elian's] immigrant
status" including bringing litigation. Id at 301-05.
Lazaro Gonzalez asked the family court, in ruling on his petition, to discount Juan
Gonzalez' insistence that his son return to Cuba. Id at 306-07. He cannot speak freely
while he is there, Lazaro argued. Thus, he said, the family court should not and cannot
consider the father's objections "urless he is removed from his coercive environment and
appear[s] in this Court so that he may speak openly concerning [Elian's] best interest."
Id. at 308. Moreover, he said, even if the family court were to accept that Juan Gonzalez'
objection to the family court proceeding is uncoerced, it should find that he is unfit to
provide for Elian's care and control by finding that he has "abused, abandoned, or
neglected" him. Id. at 309.
On January 10, 2000, the family court issued an order setting a March 6, 2000,
hearing on the petition for temporary custody and instructing that Juan Gonzalez be
served with the pleadings. Id at 291-99. It found that it had jurisdiction under Fla. Stat.
§§ 61.1308(1)(c) and (d) and, in any event, jurisdiction independent of these sections,
under compelling circumstances, to grant temporary judicial relief to protect the best
interests of a child. Id. at 297. Finding that Lazaro Gonzalez had established a prima
facie case that Elian might be subject to imminent harm if relief were not granted, the
family court issued an order which included the following:
(1) "[t]he status quo shall be preserved until such time as a full hearing on
the Verified Petition for Temporary Custody and Other Relief is held;" (2)
"Elian Gonzalez shall not be removed from this jurisdiction pending a full
26
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02/02/02
hearing on the Verified Petition for Temporary Custody and Other Relief;"
and (3) Lazaro Gonzalez "is granted such limited legal authority as is
necessary to preserve the status quo and prevent the child's removal from
this jurisdiction, including but not limited to, the authority to assert and
protect such rights as the child may have under United States immigration
law and to retain counsel to assert and protect such rights" and (4) "a
guardian ad litem for the minor child shall be appointed by separate order,
to act as next friend of the child, evaluator and investigator, with such
powers, privileges and responsibilities as are necessary to advance the best
interest of the child."
Id. at 299.
I.
THE ATTORNEY GENERAL RESPONDED TO THE REQUEST FOR
RECONSIDERATION
In a letter dated January 12, 2000, the Attorney General responded to Lazaro
Gonzalez' request that she overturn the Commissioner's decision. Id. at 25-28. "While I
am always open to considering new information that might arise," she stated, "I am not
currently aware of any basis for reversing Commissioner Meissner's decision that Juan
Gonzalez - Elian's father - has the sole authority to speak for his son on immigration
matters." Id. at 25. Acknowledging that Lazaro's attorneys had obtained the family court
order, the Attorney General pointed out that the United States was not a party to that
action, nor was it named in the family court's order. Id "Indeed," she said, "the question
of who may speak for a six-year-old child in applying for admission or asylum is a matter
of federal immigration law." Id. Nothing in the order changes that, she said. Id.
The Attorney General then referenced a January 7 meeting with Miami
representatives including Lazaro Gonzalez' counsel Roger Bernstein. Because on that
occasion Mr. Bernstein had said that the INS had originally announced that the dispute
27
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UUS.ATIY-CIVIL
051
over Elian was properly a family court matter, she thought it appropriate to address that
issue in her letter. Id. at 25-26. Shortly after Elian's arrival, she said, it was suggested
that INS's placement of Elian in Lazaro Gonzalez' care amounted to a grant of custody.
Id at 26. The INS responded to this suggestion by pointing out that the INS could not
grant custody and that such a request would have to be put before the state courts. Id.
The situation quickly changed, however, when it became clear that Juan Gonzalez had
asserted his parental authority and had adequately expressed his wish, under the
immigration laws, that Elian's petition for admission be withdrawn. Id. "In these
circumstances, INS was obliged to determine whether the father was the appropriate
person to speak for Elian on immigration issues. That question, as I have said, remains
one of federal, not state, law." Id
The Attorney General reminded Mr. Bernstein that Elian is only six-years-old, and
that, as a general matter, when dealing with children that young, the immigration law, like
other areas of the law, looks to the wishes of the surviving parent. Id She went on to say
that Commissioner Meissner had reached her decision through a careful and thorough
process. Id. The INS Commissioner had looked to all available information, including
information from the three interviews, and had carefully considered the allegation that
Juan Gonzalez was being coerced into demanding Elian's return. Id. Based on that
information, the INS Commissioner was confident of the father's very close relationship
with Elian and confident that he truly wanted him to return home. Id at 26-27.
28
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055
The Attorney General then went on to discuss the attorneys' complaint that the INS
had departed from established policy. Id. at 27. She pointed out that the paragraph the
attorneys had quoted was taken out of context, and that the context made clear that it did
not apply to a situation of a six-year-old unaccompanied minor whose return his surviving
parent had insisted upon. Id "Nothing in the field guidance suggests that a father's
wishes regarding his six-year-old child should be overridden." Id. To the contrary, the
context makes clear that the INS's first responsibility when dealing with unaccompanied
minors is to try to find the parent or legal guardian, even if that person is outside the
United States. Id.
ARGUMENT
In this case, the INS has sought to follow the statutes and regulations in a sensitive
and careful manner that fully respects the rights of this vulnerable young child and his
family at a time of great tragedy and crisis in their lives. The Commissioner has been
mindful of the policy of family unification that underlies the Immigration and Nationality
Act, and consistent with her constitutional, statutory, and regulatory responsibilities, has
exercised due regard for the traditional and customary role of parents in the lives of
children of tender years. Her determination that Elian's father should speak for him with
respect to immigration matters was reached following thorough interviews with Juan
Miguel Gonzalez and Lazaro Gonzalez. Under well-established legal principles, the
Court should allow that determination to stand, and allow the Commissioner to return
Elian to his sole surviving parent.
29
056
I.
THE COURT LACKS SUBJECT MATTER JURISDICTION OVER
PLAINTIFFS' DEMAND THAT THE ATTORNEY GENERAL
ACCEPT AN ARRIVING ALIEN'S APPLICATION FOR ADMISSION
AND PLACE HIM IN FORMAL PROCEEDINGS TO ADJUDICATE
AN ASYLUM APPLICATION
To the extent plaintiffs seek to force the Attorney General to refuse to allow the
withdrawal of the application for admission and to put Elian into removal proceedings,
the Court lacks jurisdiction. See Heckler v. Chaney, 470 U.S. 821 (1985); Reno v.
American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S. Ct. 936 (1999);
INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii); INA § 242(g), 8 U.S.C. § 1252(g).
As the Supreme Court made clear in American-Arab, Section 242(g) was enacted to
confirm that determinations either to institute proceedings or not to do so are committed
to agency discretion.
Count IV of plaintiffs' complaint requests that the Court enjoin the INS from
returning Elian to Cuba without adjudicating the asylum applications submitted by Lazaro
Gonzalez in removal proceedings. Complaint at 15. This constitutes a demand for the
commencement and adjudication of proceedings. The Attorney General has decided that
placing Elian in removal proceedings would be inappropriate. Record at 11. Heckler V.
Chaney, American-Arab, INA § 2.42(a)(2)(B)(ii) and INA § 242(g) preclude judicial
review of that decision.
In Heckler v. Chaney, the Court recognized the well-established principle that
agency decisions to decline to institute enforcement proceedings are generally not subject
to judicial review, and that judicial review of such decisions under the Administrative
30
RETIONPOOD
.
0 057
Procedure Act is unavailable because they are "committed to agency discretion by law.
Because the only conceivable basis for a waiver of sovereign-immunity and a cause of
action against the Attorney General here is the APA, review of the exercise of
enforcement discretion is barred here as well. "[A]n agency's decision not to prosecute or
enforce, whether through civil or criminal process, is a decision generally committed to
an agency's absolute discretion." 470 U.S. at 831 (citations omitted). Reasons for this
general principle of judicial nonreviewability include whether the particular enforcement
action bests fits the agency's overall policies. Id. In addition, the Court observed:
[W]e recognize that an agercy's refusal to institute proceedings shares to
some extent the characteristics of the decision of a prosecutor in the
Executive Branch not to incict — - a decision which has long been regarded
as the special province of the Executive Branch, inasmuch as it is the
Executive who is charged by the Constitution "to take Care that the Laws
be faithfully executed."
Id. at 832 (quoting U.S. Const., Art. II, § 3.)
The general presumption of unreviewability of decisions not to enforce applies to
the Attorney General's determination not to commence proceedings against Elian. The
INA does not require that proceedings be commenced The Commissioner determined
not to commence proceedings in view of Elian's young age, in view of all that he has been
through, and in view of the fact that his father has withdrawn his application for
admission. Moreover, apart from the lack of jurisdiction under a Heckler v. Chaney
analysis, Section 242(g) bars judicial review of "any cause or claim by or on behalf of
31
ГЛД
U.S.ATIY-CIVIL
V.) 058
any alien arising from the decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute orders against any alien." 8 U.S.C. § 1252(g).
The Supreme Court in American-Arab, 119 S. Ct. 936, dealt with the reach of
Section 242(g) where the issue was whether it barred judicial review of a claim by
members of the Popular Front for the Liberation of Palestine (PFLP) that the INS had
unfairly targeted them for deportation proceedings. In holding that the section indeed
applied, the Court found that it "applies only to three discrete actions that the Attorney
General may take: her 'decision or action' to 'commence proceedings, adjudicate cases, or
execute removal orders." Id. at 943. In so ruling, the Court made it abundantly clear that
judicial review of the Attorney General's decision not to commence proceedings,
adjudicate cases, or execute removal orders is similarly barred.
Observing that these three actions "represent the initiation or prosecution of
various stages in the deportation process," the Court went on to say that at each of these
stages, "the Executive has discretion to abandon the endeavor. Id (emphasis
added). In support of this, the Court quoted from an immigration treatise:
To ameliorate a harsh and unjust outcome, the INS may decline to institute
proceedings, terminate proceedings, or decline to execute a final order of
deportation. This commendable exercise in administrative discretion,
developed without express statutory authorization, originally was known as
nonpriority and is now designated as deferred action. A case may be
selected for deferred action treatment at any stage of the administrative
process. Approval of deferred action status means that, for the
humanitarian reasons described below, no action will thereafter be taken to
proceed against an apparently deportable alien, even on grounds normally
regarded as aggravated.
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059
Id. (quoting 6 Gordon and Mailman, Immigration Law and Procedure § 72.03[2][h]
(1998) (emphasis added)). Elian is only six and obviously should be spared the trauma of
removal proceedings. The Attorney General determined, as the Commissioner had
previously determined, that Juan Gonzalez' wishes that Elian be returned home should be
respected. Plaintiffs' request for injunctive relief invites "deconstruction, fragmentation,
and hence prolongation," American-Arab, 119 S. Ct. at 945, of the government's effort to
reunite Elian with his father pursuant to the father's request. The Supreme Court has
made clear that this Court has no jurisdiction to do this, and the Court should therefore
refuse to review plaintiffs' claims to the extent that they ask the Court to compel the
Attorney General to commence removal proceedings against Elian.
As for the Attorney General's decision to grant Elian's request, as expressed by his
father, to withdraw his application for admission to the United States, INA §
242(a)(2)(B)(ii) bars review of any claim that this request was improperly granted.
Plaintiffs' complaint contains no claim with respect to the propriety of the Attorney
General's decision to allow Juan Gonzalez to withdraw Elian's application for admission
to the United States, as distinct from the application for asylum purportedly submitted on
his behalf. Had they made such a claim, however, INA § 242(a)(2)(B)(ii), 8 U.S.C. §
1252(a)(2)(B)(2), would bar its review. That Section 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.
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(Emphasis added.) One of the many decisions that is subject to the Attorney General's
discretion is her decision to permit an alien to withdraw his application for admission to
the United States. INA § 235(a)(4) 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." See also
American-Arab, 119 S. Ct. at 945 (§ 242(a)(2)(B) is among IIRIRA's many provisions
that "are aimed at protecting the Executive's discretion from the courts"); Van Dinh v.
Reno, 197 F.3d 427, 431 (10th Cir. 1999) (§ 242(a)(2)(B)(ii) bars judicial review of the
Attorney General's discretionary determinations related to the custody and detention of
deportable aliens); Naidoo V. INS, 39 F. Supp. 755, 762 (W.D. La. 1999) (INA §
242(a)(2)(B)(ii) bars judicial review of Attorney General's decision to stay removal).
The determination to recognize Elian's wish, expressed by his father, that he does not
want to be admitted to the United States, and thus to forego commencement of
immigration proceedings against the child is not subject to judicial review.
II.
PLAINTIFFS LACK STANDING TO RAISE ANY CLAIM
If the Court does not dismiss plaintiffs' complaint for lack of jurisdiction, it should
dismiss the case for lack of standing. Plaintiffs' complaint designates Lazaro Gonzalez
and Elian as plaintiffs. Lazaro Gonzalez, who seeks to represent Elian as the interim
temporary guardian appointed by the family court, or as next friend under Rule 17(c) of
the Federal Rules of Civil Procedure, lacks standing to raise these claims on Elian's
behalf in either capacity. To the extent he appears as the family court's interim temporary
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061
guardian, the INA- and the Commissioner's and the Attorney General's lawful
determinations that Juan Gonzalez speaks for Elian in immigration matters - preempts
that appointment. To the extent that he appears as next friend, next friend status does not
confer standing. See Lubbock Feed Lots, Inc. V. Iowa Beef Processors, 630 F.2d 250, 256
(5th Cir. 1980). In any event, the United States challenges Lazaro Gonzalez' designation
as next friend. Garrick v. Weaver, 888 F.2d 687, 693 (10th Cir. 1989). If anyone should
represent Elian, it is his father, and his father has asked that Elian return home.
Elian lacks standing because, as shown in Section IV, infra, the Commissioner's
determination that Juan Gonzalez speaks for Elian is facially legitimate and bona fide,
and, in any event, is not arbitrary cr capricious. Because Juan withdrew the admission
and asylum applications purported y filed on Elian's behalf, Elian has suffered no "injury
in fact." See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). "Article III of the
United States Constitution limits the jurisdiction of federal courts to actual cases or
controversies." Ford v. Haley, 195 F.3d 603, 624 (11th Cir. 1999) (citing U.S. Const. art.
III, § 2, cl. 1; Whitmore V. Arkansas, 495 U.S. 149 (1990)). A fundamental case-or-
controversy limitation is the requirement that a litigant have standing to invoke the power
of a federal court. Warth v. Seldin, 422 U.S. 490, 498 (1975). One of the requirements
for standing is that the plaintiff have suffered an injury in fact. Lujan V. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). Here Elian's father has spoken for Elian in
withdrawing Elian's applications for admission and asylum. Thus, Elian has not suffered
an injury in fact, and neither has Lazaro Gonzalez. Accordingly, dismissal is required.
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0
062
A.
BECAUSE HIS FATHER HAS WITHDRAWN ELLAN'S
APPLICATION FOR ADMISSION, HAS NOT
AUTHORIZED ANYONE TO SEEK ASYLUM ON
ELIAN'S BEHALF, AND WISHES HIS RETURN TO
CUBA, ELIAN GONZALEZ IS NOT A PROPER PARTY
PLAINTIFF
A next friend under Rule 17(c) of the Federal Rules of Civil Procedure does not
himself become a party to the action in which he participates, but merely presses the
cause of action on behalf of the person allegedly injured, the real party in interest.
Morgan V. Potter, 157 U.S. 195, 198 (1895). Put differently, the minor does not acquire
the right of action from the next friend. The next friend can only aid in the enforcement
of a right already vested in the minor (who must himself have standing).
Lazaro Gonzalez recognizes that Elian is the real party in interest, thus fulfilling
Rule 17(a)'s requirement that "[e]very action shall be prosecuted in the name of the real
party in interest." But to be a real party in interest, Elian must have "the right sought to
be enforced." Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250, 256 (5th
Cir. 1980). Therein lies the problem. The complaint asserts rights for Elian under
statutes and regulations that do not apply because Elian's father has chosen, on Elian's
behalf, to withdraw that application for admission and to decline to apply for asylum.
Elian's father told the INS that his son should be returned to him. It is Juan Gonzalez, as
Elian's father, not Elian himself or his great uncle, who has "the right sought to be
enforced." Id. If Elian's father had told the INS that he wanted Elian to remain in the
United States to pursue adjustment under the Cuban Adjustment Act, the INS would have
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063
complied with that instruction. But he did not Juan Gonzalez sought to have his son
returned to him.
In addition, Lazaro Gonzalez' status as "next friend" is inappropriate because Elian
has a proper representative, his father. Next friend standing is not automatically granted.
A next friend must first prove that the real party in interest cannot pursue his own cause
due to some disability such as mental incompetence or lack of access to the courts.
Whitmore V. Arkansas, 495 U.S. 149, 163-65 (1990); see also Lonchar, 978 F.2d at 641;
T.W. & M.W. V. Brophy, 124 F.3d 893, 895 (7th Cir. 1997) ("[A]ppointed or not [the
putative next friend] can be challenged as not being a suitable representative, just as a
guardian ad litem can be."); accord Garrick V. Weaver, 888 F.2d 687, 693 (10th Cir.
1989). Ultimately, "[t]he burden is on the 'next friend' clearly to establish the propriety
of [his] status, and thereby justify the jurisdiction of the court." Whitmore, 495 U.S. at
164.
Rule 17(c) allows a "representative" to sue on an infant's behalf, but the infant's
parent can be that "representative." See Devine v. Indian River County School Board,
121 F.3d 576, 581 (11th Cir. 1997); Croce v. Bromley Corp., 623 F.2d 1084, 1093 (5th
Cir. 1980) (same). Indeed, if at all possible the parents should be. The Supreme Court
recognized that parents are the natural choice to represent infants in court proceedings
more than one hundred fifty years ago in Bank of United States V. Ritchie, 33 U.S. 128
(1834). The "proper rule is that the next friend must be an appropriate alter ego for a
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064
plaintiff who is not able to litigate in his own right " T. Brophy, 124 F.3d at 897.
Lazaro Gonzalez is not Elian's alter ego; Elian's father is.¹
Moreover, not only is Juan Gonzalez available to assert the interests of Elian, but
the Attorney General is charged with exercising legal custody over Elian while he is in
the U.S. unaccompanied by a parent. See Reno v. Flores, 507 U.S. at 300. In exercising
that custody, the Attorney General fulfills the equivalent of a parens patriae function
while Elian's father is unavailable. Id. at 304. The Attorney General is therefore
authorized to make decisions in Elian's interest (including setting conditions on Elian's
transfer to the temporary care of his relatives in Florida, as she has done). And, in
making those decisions, the Attorney General is surely justified in taking into account the
presumptive right of Elian's father to make determinations on behalf of his six year old
son and to undertake whatever inquiries she determines are appropriate to satisfy herself
of the genuineness of the parental relationship and the father's parental judgments.² The
primary role of the parent in these circumstances is reflected in the regulations governing
1 Nor can plaintiff's counsel assert interests on Elian's behalf. Against Juan Gonzalez'
insistence that the attorneys do not re present his son, their claim to represent Elian because
Lazaro Gonzalez and ostensibly Elian consented to their doing so has no basis. While there is no
absolute prohibition against a minor signing a Form G-28, the form designating attorneys or
representatives in immigration proceedings, such a designation is effective only if the minor has
the capacity to do so. In the State of Florida, a minor under the age of eighteen is not considered
competent to enter into contracts. See Section 743.07, Florida Stat. (1973). Under INS
regulations, a parent or legal guardian may sign the application or petition of a minor under the
age of fourteen 8 C.F.R. 103.2(a)(2). Here, Juan Gonzalez has expressly stated that he did not
wish for the attorneys to represent Elian, or authorize them to do so. Record at 57.
2
So too is she surely justified in taking into account Elian's interest (indeed, right) in
being reunited with his father, his closest living relative.
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065
the custody of unaccompanied juveniles, as well as the background principles of law that
regulation reflects. Id at 310.
Given that the Attorney General of the United States is charged by Act of
Congress with the custody of children such as Elian and given that Elian's father is
available to make parental decisions on his behalf and the Attorney General has
determined, after conducting an appropriate inquiry, that there is no basis for declining to
give effect to the strong presumption in favor of parental authority - there is substantial
reason to question whether a federal court could ever properly recognize "next friend"
standing on the part of someone else to challenge the judgment of the Attorney General or
of the father. That is especially so in the absence of some showing that the Attorney
General or the Commissioner abdicated their responsibilities by declining to make any
judgment on the question of parental authority, or acted in bad faith, and there manifestly
is no basis for such a claim here.
At the very least, Lazaro Gonzalez would have to bear a particularly heavy burden
in establishing his entitlement to next friend status in order to substitute his judgment for
that of the Attorney General of the United States within the sphere of her responsibilities
and of Elian's father within the sphere of his. Thus, if review is available at all, and if
such review extends beyond the question of whether the Attorney General actually made
a determination on Elian's behalf, then in order to obtain the court's recognition as Elian's
next friend, Lazaro must establish that the Attorney General's conclusion that Juan
Gonzalez may properly assert Elian's legal rights was, on the basis of the information
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066
presented to her, arbitrary and capricious. That showing has not been made. As we have
explained, Lazaro met with INS officials in an effort to persuade them that Juan
Gonzalez's assertions about his capacity to speak for Elian could not be trusted, and INS
officials met twice with Juan Gonzalez to determine whether Juan Gonzalez's assertions
were creditable. They concluded, based on all the information brought to their attention,
that Juan Gonzalez does indeed have Elian's interests at heart, and that his assertion of his
parental rights to withdraw Elian's application for admission was genuine. Lazaro can
point to nothing in the record of the Attorney General's decision to ratify that conclusion
that would justify setting aside that decision, and declaring Lazaro to be Elian's next
friend, thus effectively terminating Juan's parental rights and ignoring the Attorney
General's legal responsibility to exercise temporary custody over Elian.
B.
A STATE FAMILY COURT CANNOT AUTHORIZE PLAINTIFF
LAZARO GONZALEZ TO ASSERT IMMIGRATION CLAIMS ON
BEHALF OF ELIAN GONZALEZ WHEN THE COMMISSIONER
HAS DETERMINED TO THE CONTRARY
Lazaro Gonzalez' interim temporary guardianship does not remedy his lack of
standing in this suit because the INA clearly preempts the family court order to the extent
that it purports to authorize Lazarc Gonzalez to act on Elian's behalf in immigration
matters. The Court should accord deference to the INS, both in its response to Juan
Gonzalez' assertion of parental authority and to its decision, a decision ratified by the
Attorney General, that the question of who speaks for Elian is a question of federal law.
See Record at 25-28 (Attorney General's letter of January 12, 2000, to counsel); id. at
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067
317-18 (INS letter of January 13, 2000, to counsel); 8 U.S.C. § 1103(a); Teper V. Miller,
82 F.3d 989, 998 (11th Cir. 1996) (according Chevron deference to federal agency in its
determination that state law preempted); see also INS v. Aguirre-Aguirre, 526 U.S. 415,
119 S. Ct. 1439, 1445-49 (1999) (recognizing that INS officials "exercise especially
sensitive functions that implicate questions of foreign relations" and that INS decisions
are entitled to deference described in Chevron, U.S.A., Inc. V. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984)). "In other words, even if a statute is on its face
ambiguous, Congress' intent to preempt may be clear when the administrative agency
expressly responsible for interpreting and implementing the statute has clarified it."
Teper, 82 F.3d at 998; see also City of New York V. FCC, 486 U.S. 57 (1988) (cautioning
that even in the area of preemption, "if the agency's choice to preempt represents a
reasonable accommodation of conflicting policies that were committed to the agency's
care by statute, we should not disturb it unless it appears from the statute or its legislative
history that the accommodation is not one that Congress would have sanctioned.").
(1) AN OVERVIEW OF THE PREEMPTION DOCTRINE
"Any state law that conflicts with federal law is preempted by the federal law and
is without effect under the Supremacy Clause of the Constitution."³ Lewis V. Brunswick,
3 The Supremacy Clause states:
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof, and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
(continued )
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107 F.3d 1494, 1500 (11th Cir 1997) (citing Cipollone V. Liggett Group, Inc., 505 U.S.
504, 516 (1992). Preemption can operate not only as between federal and state statutes,
but also as between federal and state decisions based on those statutes. See, e.g.,
Mississippi Power & Light Co. V. Mississippi ex rel. Moore, 487 U.S. 354 (1988) (federal
commission's order preempted state commission's inquiry); Transcontinental Gas Pipe
Line Corp. V. State Oil and Gas Board of Mississippi, 474 U.S. 409 (1986) (federal
statute preempted order of state oil and gas board); McCarty V. McCarty, 453 U.S. 210
(1981) (federal scheme of military retirement benefits preempted state court divorce
award under community property laws).
Congressional intent is the "touchstone" of preemption analysis. Lewis, 107 F.3d
at 1500. That intent is divined in three ways. See Pacific Gas & Electric Co. V. Energy
Resources Conservation and Dev. Com'n, 461 U.S. 481, 491 (1987). First is "express
preemption," where Congress has explicitly defined the extent to which its enactments
preempt state law. Lewis, 107 F.3d at 1500 (citing Teper V. Miller, 82 F.3d 989, 993
(11th Cir. 1996) (citations omitted)). Second is "field preemption," where "Congress has
regulated a field so pervasively, or federal law touches on a field implicating such a
dominant federal interest, that an intent for federal law to occupy the field exclusively
may be inferred." Id. And third is "conflict preemption," where state and federal law
3 ( cont inued)
Laws of any State to the Contrary notwithstanding
Art. VI, Cl. 2.
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069
actually conflict, such that it is impossible to comply with both or where the state order is
of such a nature as to "prevent or hinder the [federal agency] from operating the way
Congress intended it to operate." Lewis V. Brunswick, 107 F.3d 1494, 1502 (11th Cir.
1997).
In the area of immigration, the Supreme Court has recognized both field and
conflict preemption, both of which apply in this case. In the field preemption case of
Hines v. Davidowitz, 312 U.S. 52, 61 (1941), the question was whether "the supremacy of
the national power in the general field of foreign affairs, including power over
immigration, naturalization and deportation," preempted a similar state statute. 312 U.S.
at 61. The Court found preemption based on its finding that the state statute had intruded
into the field of international relations. Id at 67-68. That field demands "broad national
authority," it emphasized, because the United States' treatment of aliens in this country
can affect how foreign countries treat our citizens when they are abroad.4 Id. at 62-65.
4
The Court observed that:
One of the most important and delicate of all international relationships,
recognized immemorially as a responsibility of government, has to do with the
protection of the just rights of a country's own nationals when those nationals are
in another country. Experience has shown that international controversies of the
gravest moment may arise from real or imagined wrongs to another's subjects
inflicted, or permitted, by a government
Among those treaties have been
many which not only promised and guaranteed broad rights and privileges to aliens
sojourning in our own territory, but secured reciprocal promises and guarantees
for our own citizens while in other lands. And apart from treaty obligations, there
has grown up in the field of international relations a body of customs defining with
more or less certainty the duties owing by all nations to alien residents - duties
which our State Department has often successfully insisted foreign nations must
(continued )
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DeCanas V. Bica, 424 U.S. 351 (1976), which dealt with state regulation of the
employment of illegal aliens, sets forth the boundaries of the immigration field for field
preemption analysis as well as the standard for conflict preemption analysis. The Court
described the field of immigration as matters having to do with "the terms and conditions
of admission to the country and the subsequent treatment of aliens lawfully in the
country," id. at 360 n.8, or, as it put it elsewhere, matters having to do with "who should
or should not be admitted into the country, and the conditions under which a legal entrant
may remain." Id. at 355. Anything within this field is a per se-preempted "regulation of
immigration." Id
As for conflict preemption, the Court stated that the question is whether, although
the INA contemplates some room for state legislation in the area of aliens' employment,
the particular statute was preempted because "it stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress in
enacting the INA." Id. at 363 (citing Hines V. Davidowitz, 312 U.S. at 67; Florida Lime
& Avocado Growers V. Paul, 373 U.S. at 141). Elsewhere, the Court phrased the conflict
preemption question as whether the state statute "can be enforced without impairing the
4 ( continued)
recognize as to our nationals abroad.
Id. at 64-65 (footnote omitted).
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071
federal superintendence of the field" covered by the INA. Id. (citing Florida Lime, 373
U.S. at 142).⁵
In Toll V. Moreno, 458 U.S. 1 (1982), the Court considered whether the INA
preempted a University of Marylard policy of barring in-state aliens from receiving lower
in-state tuition rates if their parents worked for certain international organizations.
Finding field preemption, the Court observed that:
The Federal Government has broad constitutional powers in determining
what aliens shall be admitted to the United States, the period they may
remain, regulation of their conduct before naturalization, and the terms and
conditions of their naturalization. Under the Constitution the states are
granted no such powers; they can neither add to nor take from the
conditions lawfully imposed by Congress upon admission, naturalization
and residence of aliens in the United States or the several states.
Id. at 11 (citing Hines, 312 U.S. at 66). The federal government's authority over the
status of aliens derives from various sources, the Court went on to say. These sources
"include the constitutional power '[t]o establish [a] uniform Rule of Naturalization, U.S.
Const., Art. I, § 8, cl. 4, its power '[t]o regulate Commerce with foreign nations,' id., cl. 3,
and 'its broad authority over foreign affairs." Id. at 10 (citing United States v. Curtiss-
Wright Export Corp. 299 U.S. 304, 318 (1936); Mathews V. Diaz, 426 U.S. 67, 81, n. 17
(1976); Harisiades V. Shaughnessy, 342 U.S. 580, 588-89 (1952)). "Our cases have long
S Because the lower court had invalidated the state statute on field preemption grounds
and had not reached the conflict preemption question, the Court remanded for consideration of
this question. Id. at 363-65.
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072
recognized the preeminent role of the Federal Government with respect to the regulation
of aliens within our borders." Id. at 10 (collecting cases).
Supreme Court immigration case law is replete with recognition of the federal
government's preeminent role. The right to control immigration inheres in national
sovereignty. "It is an accepted maxim of international law that every sovereign nation has
the power, as inherent in sovereignty, and essential to self-preservation, to forbid the
entrance of foreigners within its dominion, or to admit them only in such cases and upon
such conditions as it may see fit to prescribe." Ekiu v. United States, 142 U.S. 651, 659
(1892); See also Plyler v. Doe, 457 U.S. 202, 219, n. 19 (1982) (citing DeCanas, 424 U.S.
351) (states cannot conduct foreign policy, control access to the United States, or exercise
naturalization authority); Fiallo V. Bell, 430 U.S. 787, 792 (1977); Kleindienst V. Mandel,
408 U.S. 753, 765 (1972); Fong Yue Ting V. United States, 149 U.S. 698 (1893); Sudomir
V. McMahon, 767 F.2d 1456, 1464 (9th Cir. 1985) ("federal authority in the areas of
immigration and naturalization is plenary."); see generally K. Manheim, State
Immigration Laws and Federal Supremacy, 22 Hastings Const. L. Q. 939 (1995). In this
case, to the extent that a Miami-Dade County circuit court has purported to authorize
Lazaro Gonzalez to act for Elian in immigration matters, that order is preempted by the
INS's contrary determination under the Immigration and Nationality Act.
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(2)
FIELD AND CONFLICT PREEMPTION BAR LAZARO GONZALEZ
FROM RELYING ON HIS FAMILY COURT APPOINTMENT AS
INTERIM TEMPORARY GUARDIAN TO BRING THIS ACTION
Field and conflict preemption bar Lazaro Gonzalez from relying on his family
court appointment as interim temporary guardian to bring this lawsuit. Lazaro's family
court petitions reflect that he asked the family court to overturn the Commissioner's
decision that Juan Gonzalez speaks for Elian in immigration matters, and to have that
right accorded to him instead. Id at 300-15. Lazaro asked the state court to allow him to
seek political asylum on Elian's behalf (id.); to exercise custody of Elian pending the
adjudication of that asylum application (id); to stay Elian's removal from the United
States pending an evidentiary hearing (id.); and to inquire into whether Juan Gonzalez'
request that Elian return to Cuba is genuine and uncoerced (id.). He also sought
authorization to apply for Elian's admission to the United States. Id He asked the family
court to grant him custody of Elian based upon a finding that Juan Gonzalez is an unfit
father who has "abused, abandoned or neglected Elian, as defined in Chapter 39 [of the
Florida statutes]."6 Id And he sought authorization to pursue any other relief that might
be needed in connection with Elian's immigration status, including authorization to retain
counsel and bring legal proceedings. Id. at 305. In response, the family court ordered
preservation of the status quo pending further hearing. Id. at 299. It also ordered that
6
In this regard, Lazaro Gonzalez relied solely on Juan Miguel Gonzalez' desire that Elian
be returned to Cuba. Lazaro Gonzalez did not allege specific instances of mistreatment or
neglect.
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Elian not be removed from its jurisdiction pending that hearing, and it granted Lazaro
Gonzalez the authority necessary to preserve the status quo, prevent Elian's removal,
protect any rights Elian may have under the INA, and retain counsel to protect such
rights. Id.
As a federal matter, however, the Immigration and Naturalization Service had
decided, and the Attorney General had ratified the decision, that Juan Gonzalez alone
speaks for Elian in immigration matters. Id. at 1-23. The Commissioner's decision in this
regard underpins the other crucial decisions in this case: the decision to accept Elian's
request, as expressed by his father, to withdraw his application for admission; the
decision to accept Juan Gonzalez' refusal to authorize attorneys to represent Elian in
immigration matters; the decision to effect Elian's reunion with his father as soon as
practicable, including, if necessary, the transfer of immigration custody of Elian from
Lazaro Gonzalez to the INS or a neutral third party; and the decision not to commence
removal proceedings. See Johns V. United States Department of Justice, 653 F.2d 884,
889 (5th Cir. 1981) (the discretion to commence removal proceedings is entrusted to the
Attorney General).
The family court's appointment of Lazaro Gonzalez for immigration purposes is
field preempted. It "falls squarely within the boundaries of the preempted domain,"
Teper, 82 F.3d at 995 (citation omitted), because it purports to regulate immigration by
interfering with the Commissioner's lawful determination that Elian, by virtue of his
father's requests on his behalf, has withdrawn his application for admission and asked to
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075
return to Cuba. The preemption inquiry is whether the state action is a "regulation of
immigration," DeCanas, 424 U.S. at 355, which depends on whether the state action
pertains to "who should or should not be admitted into the country, and the conditions
under which a legal entrant may remain." Id. Under DeCanas, the family court order is
clearly "a regulation of immigration."
These matters, as the Supreme Court emphasized in United States ex rel. Knauff V.
Shaughnessy, 338 U.S. 537, 542 (1950), are exclusively federal matters:
Admission of aliens to the United States is a privilege granted by the
sovereign United States government. Such privilege is granted to an alien
only upon such terms as the United States shall prescribe. It must be
exercised in accordance with the procedure which the United States
provides
When Congress prescribes a procedure concerning the
admissibility of aliens, it is not dealing alone with a legislative power. It is
implementing an inherent executive power.
* * * *
Thus the decision to admit or to exclude an alien may be lawfully placed
with the President, who may in turn delegate the carrying out of this
function to a responsible executive officer of the sovereign, such as the
Attorney General. The action of the executive officer under such authority
is final and conclusive.
Conflict preemption also bars the family court order to the extent it purports to
authorize Lazaro Gonzalez to speak on Elian's behalf in immigration matters, preserve the
status quo, and prohibit Elian's removal. "[T]t is impossible to comply with both" the INS
7
The Attorney General has a compelling interest in controlling access to the United
States. Kleindienst V. Mandel, 408 U.S. 753, 766 (1972). The decision whether to admit an alien
is a matter of sovereign prerogative, a "privilege" subject to the exclusive control of the political
branches. Landon v. Plascencia, 459 U.S. 21, 32 (1982); Fiallo V. Bell, 430 U.S. 787 (1977);
United States V. Gordon-Nikkar, 518 F.2d 972, 977 (5th Cir. 1975); Pelaez V. INS, 513 F.2d 303,
305 (5th Cir.), cert. denied, 423 U.S. 892 (1975).
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decision to return Elian to his father in Cuba and the family court decision to retain him
in Miami with Lazaro Gonzalez. The family court decision therefore "stands as an
obstacle to the accomplishment of the full purposes and objectives' of federal law."
Boyes v Shell Oil Products, F.3d -, 2000 WL 3724, *6 (11th Cir. Jan. 4, 2000)
(quoting Silkwood V. Kerr-McGee Corp., 464 U.S. 238, 248 (1984)). Moreover, the
family court decision is of such a nature as to "prevent or hinder the [INS] from operating
the way Congress intended it to operate." Lewis V. Brunswick, 107 F.3d 1494, 1502 (11th
Cir. 1997). INS officials should not have to expose themselves to the risk of family court
contempt proceedings for performing their lawfully authorized immigration
responsibilities.'
8 Although it is established that "[c]ontrol over immigration and naturalization is
entrusted exclusively to the Federal Government, and a State has no power to interfere," Mauclet,
432 U.S. at 10, immigration laws and tribunals of course remain free to take account of state law
decisions and "legal facts," for example, marriages, divorces, criminal convictions, or guardianship
decisions. The immigration laws do so, however, as a matter of convenience and comity, in order
to "draw[ ] upon [state] resources and expertise that are already in place," Flores, 507 U.S. at
312 n.7, and not on account of any requirement that they do so. Indeed, the immigration laws
can, and frequently do, depart from state law criteria for parallel determinations See, e.g., INA §
101(a)(27)(J) (defining "special immigrant juveniles" only in part based on state court
determination, and providing that "nc juvenile court has jurisdiction to determine the custody
status or placement of an alien in the actual or constructive custody of the Attorney General
unless the Attorney General specifically consents to such jurisdiction"); 101(a)(48) (defining
"conviction" for immigration purposes to encompass what in many cases would not constitute a
conviction under state law); 8 C.F.R § 292.3(a) (1999) (authorizing suspension from practice
before immigration administrative tribunals persons authorized to practice under state law).
"Given that the States' power to regulate in [the immigration] area is so limited, and that this is an
area of such peculiarly strong federal authority, the necessity of federal leadership seems evident."
Plyler, 457 U.S. at 238 n.1. In this instance, both the Commissioner and the Attorney General
determined that the question of whether only Juan Gonzalez could speak for Elian on immigration
issues is a question of federal, not state, law. See Record at 25-28, 317-18.
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III.
THE COURT SHOULD DISMISS THIS CASE FOR FAILURE TO
STATE A CLAIM OR, IN THE ALTERNATIVE, GRANT
DEFENDANTS SUMMARY JUDGMENT
In the alternative, even were there jurisdiction to hear this matter, the Court should
dismiss the complaint for failure to state a claim or grant summary judgment to the
government. Under Rule 12(b)(6), dismissal is appropriate when, on the basis of a
dispositive issue of law, no construction of the factual allegations will support the cause
of action. Executive 100, Inc. V. Martin County, 922 F.2d 1536, 1539 (11th Cir. 1991).
Summary judgment is in order, on the other hand, where there is "no genuine issue as to
any material fact and the moving party is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c). There is no "genuine issue for trial" where the record, taken as a
whole, could not lead a rational trier of fact to find for the non-moving party."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A.
ARRIVING ALIENS HAVE NO CONSTITUTIONAL
RIGHT TO APPLY FOR ADMISSION OR ASYLUM
Count I of the complaint alleges that by denying Elian a right to petition for
asylum the United States has violated the Fifth Amendment Due Process Clause. See
Complaint at 7-9. Because the Supreme Court and Eleventh Circuit precedent establish
that applicants for admission cannot assert immigration rights based on the Due Process
Clause, and because the government's motion to dismiss pursuant to Rule 12(b)(6) does
not rely on extra-pleading materials, the Court should dismiss this count for failure to
state a claim.
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078
Applicants for admission such as Elian are viewed as standing outside the border
seeking entry. See, e.g., Leng May Ma v. Barber, 357 U.S. 185, 186 (1958) (although
physically present within this country's borders, unadmitted and excludable alien not
"within the United States"); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206,
212, 215 (1953) (inadmissible aliens are "treated as if stopped at the border" and as being
merely "on the threshold of initial entry"). Of course, in this case the INS has determined
that Elian does not wish to be admitted and in fact seeks to go home. Plaintiffs contend
to the contrary and argue that the INS's failure to accept and adjudicate the asylum
applications they have submitted on Elian's behalf violates his constitutional rights. Even
if plaintiffs were authorized to speak on Elian's behalf, their constitutional arguments are
without merit.
Aliens "on the threshold of initial entry" have no more constitutional rights in
connection with their applications for admission than would an alien physically located in
another country. See Landon v. Piasencia, 459 U.S. 21, 32 (1982) (An alien on the
threshold of entry "has no constitutional rights regarding his application [for admission],
for the power to admit or exclude aliens is a sovereign prerogative."); Kwong Hai Chew V.
Colding, 344 U.S. 590 (1953) (Bill of Rights a futile authority for applicant for
admission); Knauff, 338 U.S. at 544 ("Whatever the procedure authorized by Congress is,
it is due process as far as an alien denied entry is concerned"); id at 600 (denial of
9 The Court further stated,
(continued )
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079
removal hearing "raises no constitutional conflict if limited to 'excludable' aliens who,"
again by virtue of their status, "are not within the protection of the Fifth Amendment.");
Jean V. Nelson, 727 F.2d 957, 968 (11th Cir. 1984) (en banc) ("As to [applicants for
admission], the decisions of executive or administrative officers, acting within powers
expressly conferred by Congress, are due process of law") (collecting cases); Cuban
American Bar Ass'n V. Christopher, 43 F.3d 1412, 1427-29 (11th-Cir.) (Cuban and
Haitian asylum-seekers detained in "safe haven" at American military base had no
"protectable liberty or property interest against being wrongly repatriated", nor any other
cognizable constitutional rights regarding their immigration status), cert. denied, 516 U.S.
913 (1995); Gisbert V. U.S. Attorney General, 988 F.2d 1437, 1442 (5th Cir. 1993)
(excludable aliens entitled only to those due process rights as are provided by law); Lynch
V. Cannatella, 810 F.2d 1363, 1373 (5th Cir. 1987) ("entry fiction' that excludable aliens
9 ( continued)
[A]n alien who seeks admission to this country may not do so under any claim of
right
Such privilege is granted to an alien only upon such terms as the United
States shall prescribe. It must be exercised in accordance with the procedure
which the United States provides.
[I]t is not within the province of any court,
unless expressly authorized by law, to review the determination of the political
branch of the government to exclude a given alien.
Knauff, 338 U.S. at 542.
10 The Eleventh Circuit has made clear, however, that "aliens can raise constitutional
challenges to deprivations of liberty cr property outside the context or entry or admission, when
the plenary authority of the political branches is not implicated." Jean, 727 F.2d at 972 (en banc).
See also Amamullah V. Nelson, 811 F.2d 1, 9 (1st Cir. 1987) ("outside the context of admission
and exclusion procedures, excludable aliens do have due process rights.") (emphasis added).
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are to be treated as if detained at the border determines the aliens' rights with regard
to immigration and deportation proceedings").
In Jean, supra, the en banc Eleventh Circuit held that "excludable [non-resident]
aliens have no constitutional rights with respect to their applications for
asylum
" 727 F.2d at 984. Rejecting an argument that the Refugee Act created a
constitutionally protected "liberty" or "property" interest in asylum, the Eleventh Circuit
found it "clear that the Refugee Act does not create an entitlement to asylum" but only
provides that asylum may be granted in the Attorney General's discretion. Id. Therefore,
the Eleventh Circuit concluded, "[t]he grant of asylum does not
create an interest
protected by the due process clause." Id. at 981-82.¹¹ Other Circuits also have found that
the INA's asylum provisions do not create a constitutionally protected liberty or property
interest. See, e.g., Garcia v. INS, "1 F.3d 1320, 1326 (7th Cir. 1993); Ramirez-Osorio V.
INS, 745 F.2d 937, 942-43 (5th Cir. 1984).
Plaintiffs base their first count on an assertion that Elian's parole entitles him to the
constitutional protections afforded "all persons within the territorial jurisdiction of the
United States." Complaint at 1 36. The Eleventh Circuit in Jean expressly rejected this
contention, saying, "The Supreme Court has consistently rejected claims that the parole
11 Upon affirming the en banc decision in Jean, the Supreme Court stated that the
Eleventh Circuit should not have reached constitutional issues because the issues on appeal could
have been resolved on statutory and regulatory grounds. Jean, 472 U.S. at 854-55. Neverthe-
less, the Eleventh Circuit later found that "our en banc holding in [Jean] regarding the constitu-
tional issue remains viable as the Supreme Court did not vacate the opinion but affirmed and
remanded on alternative grounds." Cuban American Bar Ass'n V. Christopher, 43 F.3d at 1428
n.20.
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or detention of an excludable alien has an effect on his status under the law." 727 F.2d at
969 (citing Leng May Ma, 357 U.S. at 188; Mezei, 345 U.S. at 215; Kaplan, 267 U.S.
228, 230-31 (1925); United States ''. Ju Toy, 198 U.S. 253, 263 (1905); Nishimura Ekiu,
142 U.S. at 661; Ahrens V. Rojas, 292 F.2d 406, 410-11 (Sth Cir. 1961)). "The parole of
aliens seeking admission is simply a device through which needless confinement is
avoided while administrative proceedings are conducted It was never intended to affect
an alien's status." Id. (quoting Leng May Ma, 357 U.S. at 190). Thus, since "no
construction of the factual allegations will support the cause of action," Executive 100,
Inc., 922 F.2d at 1539, grounded in the Due Process Clause, the Court should dismiss
Count I for failure to state a claim.
In any event, even if the Due Process Clause were applicable, the Attorney
General has afforded more than whatever process could be due with respect to the
application for asylum or admission The Attorney General did not arbitrarily deny or
extinguish any interest or ability to submit such applications. The Attorney General gave
effect to Juan Gonzalez' decision to withdraw those applications only after providing for
two interviews of him in Cuba and after affording Lazaro Gonzalez an opportunity to be
heard.
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B.
ARRIVING ALIENS' LACKING CAPACITY AND AN
OBJECTIVE BASIS FOR SEEKING ASYLUM HAVE NO
ENFORCEABLE STATUTORY RIGHT TO APPLY FOR
ADMISSION OR ASYLUM
Counts II, III, and IV of the complaint allege that the INS violated 8 U.S.C. §
1103(a), 8 U.S.C. § 1158(a), 8 C.F R. § 208.9 and 8 C.F.R. § 208.14(b) by not
adjudicating the asylum applications or commencing removal proceedings against Elian.
Complaint at 10-15. Accepting the complaint's allegations as true and reading them in the
light most favorable to plaintiffs, Linder V. Portocarrero, 963 F.2d 332, 334 (11th Cir.
1992), dismissal of these counts is required because, on the basis of "a dispositive issue
of law, no construction of the factual allegations will support the cause of action."
Marshall County Bd of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th
Cir. 1993).
Because in this instance the dispositive issue of law involves construction of the
statute and regulations which the INS administers, the Court must apply the principles of
deference described in Chevron U.S.A. Inc. V. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842 (1984). See Aguirre-Aguirre, 119 S. Ct. at 1445. Thus, the Court
should determine whether "the statute is silent or ambiguous with respect to the specific
issue" before it; if so, "the question for the court [is] whether the agency's answer is based
on a permissible construction of the statute." Chevron, 467 U.S. at 843; see also
Cardoza-Fonseca, 480 U.S. at 448-49. The INS's construction of its regulations is
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"especially due that respect." Ford Motor Credit Company V. Milhollin, 444 U.S. 555,
566 (1980) (citations omitted).
Under normal circumstances, minors arrive at United States ports-of-entry in the
company of their parents. Again, under normal circumstances, children generally do not
file asylum applications independent of their parents. Rather, one or both of their parents
seek asylum. The remaining members of the family are eligible for asylum derivatively.
See 8 C.F.R. § 208.14(e) and § 208.20. That same is true for aliens who seek refugee
status from outside the United States. See 8 C.F.R. § 207.7. Elian, however, arrived at a
U.S. port-of-entry as an unaccompanied minor. It is undisputed that when he sought
entry at age five, he lacked valid entry documents and, therefore, was subject to removal.
The INS Field Manual,¹² which the: Attorney General discussed in the context of this case
in her letter to counsel of January 12, 2000 (Record at 25-28), indicates that the INS's
first responsibility under these circumstances is to find the child's parent or legal guardian
so that they are informed of the child's situation. Record at 254 ("Officers must attempt
to contact a relative or guardian either in the United States or in another country
regarding the minor's inadmissibility whenever possible."); see 8 C.F.R. § 236.3(a)(1)
(listing "[a] parent" as the first preference for custody release); Reno V. Flores, 507 U.S.
292, 310 (1993) (discussing this regulation and commenting that "[t]he list begins with
12 The INS Field Manual, like the INS Children's Asylum Guidelines, "are for the
administrative convenience of the INS only," and do not have the force and effect of substantive
law. Pasquini V. Morris, 700 F.2d 658, 662 (11th Cir. 1983).
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parents, whom our society and this Court's jurisprudence have always presumed to be the
preferred and primary custodians of their minor children") (citation omitted). See also
Record at 285 (Declaration of Michael D. Cronin, Acting Associate Commissioner for
Programs) ("Where the unaccompanied minor is very young and lacks sufficient capacity
to understand the withdrawal process, it would be standard practice for the inspecting
officer to make all attempts to locate a parent or, if the parents are unknown or
unavailable, another adult relative.").
In this case, Juan Gonzalez was in Cuba and, when contacted, expressed in plain
terms that he wanted his son "returned immediately" to him. Record at 50 ("I am not
allowing him to stay in the United States. 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.").
After considering all of the available information in this case, including the closeness of
the father's relationship with Elian, and the question whether any threat to Elian upon his
return could create a conflict of interest for his father, the Commissioner concluded that
Elian lacked the capacity to apply for asylum and that his father's wishes regarding his
return should be respected. Record at 7-23; 25-28.
Underlying the Commissioner's conclusion is a memorandum by the INS General
Counsel bearing the Commissioner's written approval. Id. at 7-23. That memorandum
reflects that the INS engaged in a careful effort to determine whether there was any
reason it should not adhere to the presumption regarding the right of a parent to speak for
his or her child. In making that determination, the INS drew support from the Seventh
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Circuit's Polovchak decision for its conclusion that Elian, at age six, was "well below the
lower end of necessary maturity described" and lacked the necessary capacity for
affirming the contents of his asyluri application. Id. at 16. It then looked at the asylum
application to see whether there WES anything in it to suggest that the INS should not rely
on the father's judgment. Based upon that evaluation, it concluded that the father's
request should be honored and did not accept the application for adjudication. Id at 17.
The question before the Court is whether the INS' approach to the question of who
speaks for a child so young as to not understand the contents of an asylum application
rests on a permissible interpretation of the INA. Chevron, 467 U.S. at 843. Recent
Eleventh Circuit decisions have addressed Chevron deference. "Unless Congress, in
enacting [the statute at issue,] demonstrated clearly its intent with regard to the questions
before us, we must defer to the [agency head's] official interpretations of [the statute] if
they are reasonable." Herman V. NationsBank Trust Company, 126 F.3d 1354, 1363
(11th Cir. 1997). If the agency head has taken an official position, the court's role "is
quite limited":
Under Chevron a court is not to search for what in the court's view is the
best possible construction of the statute
Realizing that administrators
and judges might well disagree about the wisdom of a policy behind an
agency's construction of a statutory provision, the Supreme Court
admonished courts not to forget to whom the authority and responsibility
for such policy making is entrusted.
Id. (quoting Jaramillo v. INS, 1 F.3d 1149, 1152 (11th Cir. 1993) (en banc)); see also
Stamm V. Paul, 121 F.3d 635, 641 (11th Cir. 1997) (accepting "permissible" agency
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reading of the statute although that reading "is far from the most natural reading");
Acosta-Montero V. INS, 62 F.3d 1347, 1349 (11th Cir. 1995) (agency interpretation
entitled to deference assuming it is "reasonable").
The Commissioner's approach is reasonable and should be upheld. Nowhere does
the INA require that the INS adjudicate an asylum application tendered on behalf of a
child so young as to lack any understanding of its contents when the child's parent does
not wish the child to remain in the United States. The INS did not rule out the possibility
of adjudicating the application. It considered the application, examined it for evidence
that would suggest that the father's judgment could not be relied upon, and, finding none,
declined to delay the reunion of El an and his father.
Without doubt, this is a rare case. But in applying the statute and regulations to
this case, the INS was guided by policies of broad application, including the family unity
policy embodied in the INA. Record at 284 at T 6. (Cronin declaration). Another policy
is that in dealing with children at ports of entry who lack sufficient capacity to understand
the immigration process, immigration inspectors defer to the accompanying parent on
nearly all decisions regarding their immigration status. Id at I 6. It is also INS policy
that "if an unaccompanied minor has sufficient capacity to indicate a fear of persecution
in his or her home country, the INS will place the child in Section 240 removal
proceedings rather than permitting him or her to withdraw the application for admission."
Id. at 1 7. In addition, if "an unacc ompanied minor lacks the capacity to understand the
immigration process and has no parent to speak for him or her," the INS Field Manual
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instructs the inspecting officer to "make every effort to determine whether the child's
safety would be threatened in his or her homeland." Id. at 1 9. Only if "there is an
objective basis to support a claim for asylum" must that child be placed in removal
proceedings. Id. at 1 9. As the Attorney General explained in her letter, however, this
policy does not apply where there is no objective basis and the child has a parent to speak
for him or her. Record at 25-28.
Plaintiffs assert that the statute and regulations required that the INS fully
adjudicate the asylum application. See Complaint at 10-15. But they ignore the
dispositive question the Attorney General posed to counsel in her letter of January 12,
2000: "Who speaks for the child?" Id at 27. An asylum application filed on behalf of a
child that the child cannot comprehend requires that someone speak for that child.
Plaintiffs would have the INS be bound by an interpretation of its statute and regulations
whereby the child's father could not speak for his child. But "our society and this Court's
jurisprudence have always presumed [parents] to be the preferred and primary custodians
of their minor children. "13 Reno V. Flores, 507 U.S. 292, 310, (1993) (citing Parham V.
13 The Court in Flores also stated:
"The best interests of the child," a venerable phrase familiar from divorce
proceedings, is a proper and feasible criterion for making the decision as to which
of two parents will be accorded custody. But it is not traditionally the sole
criterion - much less the sole constitutional criterion - for other, less narrowly
channeled judgments involving children, where their interests conflict in varying
degrees with the interests of others. Even if it were shown, for example, that a
particular couple desirous of adopting a child would best provide for the child's
welfare, the child would nonetheless not be removed from the custody of its
(continued )
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J.R, 442 U.S. 584, 602-03 (1979). "Categorical distinctions between relatives and
nonrelatives, and between relatives of varying degree of affinity, have always played a
predominant role in determining child custody and in innumerable other aspects of
domestic relations." Id at 310 n.5. There is no reason to ignore that role here.
INS inspectors deal with children every day. Last year, they inspected
345,000,000 nonimmigrants at United States ports-of-entry, vast numbers of them
children. Record at 283, 1 3. In order to carry out its statutory mandate to regulate
admission to the United States, the INS must be accorded deference to the interpretation
of its statute regarding who speaks for these children consistent with customary views of
parental authority. The Supreme Court's statement in Reno V. Flores, 507 U.S. at 303,
about an INS policy of permitting detained juvenile aliens to be released only to their
parents, close relatives, or legal guardians except in unusual and compelling
circumstances applies no less here: "We think the INS policy now in place is a
reasonable response to the difficult problems presented when the Service arrests
13 ( continued)
parents so long as they were providing for the child adequately. See Quilloin V.
Walcott, 434 U.S. 246, 255, 93 S.Ct. 549, 555, 54 L.Ed.2d 511 (1978). Similarly,
"the best interests of the child" is not the legal standard that governs parents' or
guardians' exercise of their custody: So long as certain minimum requirements of
child care are met, the interest; of the child may be subordinated to the interests of
other children, or indeed even to the interests of the parents or guardians
themselves. See, e.g., R.C.N. V. State, 141 App. 490, 491, 233 S.E.2d 866,
867 (1977).
Id at 303.
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089
unaccompanied alien juveniles. It may be that other policies would be even better, but
'we are not a legislature charged with formulating public policy." Id (citation omitted).
Accordingly, for the foregoing reasons, the Court should dismiss counts II, III, and IV for
failure to state a claim upon which relief can be granted. Alternatively, it should grant
summary judgment for defendants.
C.
MANDAMUS IS NOT AVAILABLE TO PLAINTIFFS
Plaintiffs also seek the issuance of a writ of mandamus to compel the defendants to
"nullify" their refusal to accept the three prior applications for asylum submitted on
behalf of Elian and adjudicate the applications. See Complaint, 11 68-74. Mandamus is
an extraordinary remedy that should be granted sparingly and only in the most drastic
situations. See Jackson V. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1004 (11th Cir.
1997). The Court should dismiss this claim because plaintiffs have not shown that the
INS has a duty to accept the applications or that plaintiffs have an indisputable right to
the relief sought, particularly where, as here, the child is only six years old and the
Commissioner has determined that there is no basis for overcoming the strong
presumption that effect should be given to the judgment of the parent.
To demonstrate entitlement to mandamus, plaintiffs must demonstrate that they
have a clear and indisputable right to the issuance of the writ, and that there is no
alternative remedy available. See 28 U.S.C. § 1361 ("the district court shall have original
jurisdiction of any action in the nature of mandamus to compel an officer or employee of
the United States or any agency thereof to perform a duty owed to the plaintiff");
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Jackson, 130 F.3d at 1004; In re Lopez-Lukus, 113 F.3d 1187, 1188 (11th Cir. 1997);
Rush V. Macy's New York, Inc., 775 F.2d 1554, 1558 (11th Cir. 1985). Mandamus is
available "only where government officials clearly have failed to perform
nondiscretionary duties." Dunn-M:Campbell Royalty Interest, Inc. V. National Park
Service, 112 F.3d 1283, 1288 (5th Cir. 1997). A plaintiff seeking mandamus must show
that a government officer owes him a legal duty that is a "specific ministerial act, devoid
of the exercise of judgment or discretion." Id; see Einhorn V. DeWitt, 618 F.2d 347, 349
(5th Cir. 1980) (mandamus cannot compel a discretionary action). The legal duty must
be set forth in the Constitution or by statute, "and its performance must be positively
commanded and so plainly prescribed as to be free from doubt." Id
The INS's decision to honor Juan Gonzalez' request that the asylum application not
be accepted is consistent with the INA and with the common-law principle that parents
have a right to speak on behalf of their children: See Hodgson, 497 U.S. at 483. Further,
the determination is a sound one, made pursuant to a rigorous inquiry into Elian's
relationship with his father; an investigation into, and ultimate rejection of, allegations of
coercion relating to the father's expression of his true wishes for his son; and a well-
substantiated premise that Elian and his father have a close relationship.
Neither the statute nor the applicable regulations give rise to a duty to adjudicate
an asylum application submitted by unauthorized persons against the father's wishes on
behalf of a child so young he cannot understand it. In general, INA § 208(d) authorizes
the Attorney General to establish a procedure for the consideration of asylum
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applications. This provision reflects that the Attorney General has the discretion to limit
her consideration of an asylum application, so long as any decision to do so does not
violate the INA. Also, INA § 208(d)(7) provides that "nothing in [subsection (d)] shall be
construed to create any substantive or procedural right or benefit that is legally
enforceable by any party against the United States or its agencies or officers or any other
person." Under this provision, the plaintiffs have absolutely no legally enforceable right,
entitlement, or interest in the procedures promulgated under section 208 governing the
agency's consideration of asylum applications.
Likewise, INS's Guidelines For Children's Asylum Claims or INS Field Manual do
not give rise to a legally enforceable duty on behalf of INS to adjudicate the asylum
applications. See Kirkland Masonry, Inc. V. Commissioner of Internal Revenue, 614 F.2d
532, 534 (5th Cir. 1980) ("[A] simple administrative directive to agency employees does
not suffice to create a duty to the public."). The Guidelines acknowledge that juveniles
may apply for asylum independently of their parents, and they set forth procedures
suggesting how best to elicit inforration from juvenile applicants. Where there is some
possibility that the "will of the parents and that of the child are in conflict," the INS has to
decide whether the juvenile's fear is well-founded based on all the known circumstances.
Guidelines at 20. In this instance, the INS complied with the Guidelines because Elian is
so young that there can be no conflict. In any event, however, the INS examined the
application to assure itself that there was nothing in it that would call into question Juan
Gonzalez' judgment such that the presumption of parental authority should not be
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followed. In any event, nothing in the language of the Guidelines imposes any legally
enforceable duty or obligation on the agency to consider or adjudicate a particular
juvenile's asylum application.
In addition to the lack of mandatory language, mandamus relief is not warranted
here because of the nature of the action the plaintiffs seek to compel. Mandamus relief is
available to compel the performance of nondiscretionary, ministerial acts. Here, the
decision to withdraw Elian's asylurn applications did not involve a merely ministerial act,
but instead entailed the express exercise of the Commissioner's judgment, later ratified by
the Attorney General, that Elian, as a child of tender years, is not competent to speak for
himself in immigration matters; that for this same reason, Elian cannot possibly
appreciate the consequences of seeking asylum in the United States rather than returning
to Cuba; and that his father has the legal authority to speak for him in immigration
matters. Because Elian's father is the sole individual with the authority to speak for his
son in immigration matters, plaintiffs have absolutely no legally enforceable right to the
relief they seek here.
Nor do INS's Guidelines re ating to children's asylum claims give rise to a
constitutionally protected or otherwise enforceable right that warrants mandamus relief.
First, the Eleventh Circuit has reccgnized that INS's internal operating procedures "are
for the administrative convenience of the INS only," and do not have the force and effect
of substantive law. Pasquini V. Morris, 700 F.2d 658, 662 (11th Cir. 1983) ("The internal
operating procedures of the INS are for the administrative convenience of the INS only."). ").
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The language and the stated purpose of the Guidelines is consistent with this recognition:
"This memorandum is written to provide [asylum officers] with background and guidance
on adjudicating children's asylum claims." See Guidelines for Children's Asylum Claims
(Plaintiffs' Complaint, Exh. C). Nothing in the language of the Guidelines mandates the
adjudication of a juvenile applicant's application for asylum. See Jean, 727 F.2d at 982.
Under the foregoing analysis, the plaintiffs have failed to demonstrate that Elian
has a clear right to the relief that is sought on his behalf - - the nullification of INS's
refusal to accept and adjudicate the asylum applications. For this reason alone, they have
failed to state a claim for mandamus relief, and the request for relief should be dismissed.
In the alternative, the Court should grant the government summary judgment on this
claim.
D.
DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON
WHETHER THE COMMISSIONER PROPERLY ACCEPTED JUAN
GONZALEZ' WITHDRAWAL OF THE ADMISSION AND ASYLUM
APPLICATIONS PURPORTEDLY PROFFERED ON ELLAN'S
BEHALF
(1)
THE COMMISSIONER'S DECISION IS "FACIALLY LEGITIMATE
AND BONA FIDE"
As mentioned at the beginn ng of this Section, the test for granting summary
judgment is whether there is "no genuine issue as to any material fact
[such that] the
moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Plaintiffs'
action challenges the Commissioner's decision to recognize Juan Gonzalez' parental
authority to speak for six-year-old Elian in withdrawing the asylum applications that
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094
others purported to file on Elian's behalf. Because in reviewing that decision, the Court
looks to what was before the Commissioner when she rendered her decision and there is
no dispute "as to any material fact" in that record, this case is ripe for summary judgment.
In assessing that decision, moreover, the Court should determine only whether the
Commissioner has advanced "a facially legitimate and bona fide reason" for her decision.
See Cuban American Bar Association v. Christopher, 43 F.3d 1412, 1428 (11th Cir.
1995) (reviewing Attorney General's parole decisions for "facially legitimate and bona
fide" reason); Perez-Perez V. Hanberry, 781 F.2d 1477, 1482 (11th Cir. 1986) (same).
The Supreme Court first articulated this standard in Kleindienst v. Mandel, 408 U.S. 753,
770 (1972), where it held that "when the Executive exercises [the power to make policies
and rules for the exclusion of aliens] negatively on the basis of a facially legitimate and
bona fide reason, the courts will [not] look behind the exercise of that discretion."
When Elian was brought ashore on November 25, he was, as a matter of law,
deemed to be an applicant for admission to the United States. The source of that
classification is INA § 235(a)(1), 8 U.S.C. § 1225(a)(1), which reads:
Aliens treated as applicants fo:- admission. An alien present in the United States
who has not been admitted or who arrives in the United States (whether or not at a
designated port of arrival and including an alien who is brought to the United
States after having been interdicted in international or United States waters) shall
be deemed for purposes of this chapter an applicant for admission.
See also INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13) (defining admission as lawful
entry after immigration inspection and authorization by immigration officer). Like any
alien seeking to enter the United States, Elian had to be inspected by an immigration
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officer to confirm his admissibility.14 See 8 U.S.C. § 1225(a)(3); 8 C.F.R. § 235.1(d).
"[T]he inspection process is critical to the integrity of the immigration system. The
purpose of these procedures is 'in addition to making a closer examination of [an alien's]
right to enter in the first place, [to] require and obtain information and a variety of
records that enable [immigration officials] to keep track of the alien after his entry."
Leal-Rodriguez v. INS, 990 F.2d 939, 946 (7th Cir. 1993) (citation omitted).
The day Elian arrived at Hollywood Hospital, Supervisory Immigration Inspector
Edward Agundez deferred his immigration inspection until December 23. Record at 22.
Elian's inspection was deferred because he was receiving emergency medical treatment
and adequate information about his parents was unavailable. Id Under this deferred
inspection procedure, Elian was granted a limited parole into the United States pending
his inspection. Id at 22; see 8 C.F.R. § 235.2(e) (allowing parole for deferral of
inspection on account of medical disability). "The parole of aliens seeking admission is
simply a device through which needless confinement is avoided while administrative
proceedings are conducted. It was never intended to affect an alien's status, and to hold
that petitioner's parole placed her legally 'within the United States' is inconsistent with the
congressional mandate, the administrative concept of parole, and the decisions of this
Court." Leng May Ma v. Barber, 357 U.S. 185, 188-90 (1957).
14 Under the statutory scheme, an alien (a person not a citizen or national of the United
States) is deemed to be seeking "entry" or "admission" into the United States if he "arrives" at a
port of entry (such as an airport) and has not yet been admitted by an immigration officer. INA $
235(a)(1), 8 U.S.C. $ 1225(a)(1), as added by IIRIRA § 302(a); 8 C.F.R. § 1.1(q).
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Elian has, by virtue of his father's having spoken on his behalf, asked to withdraw
his application for admission, and the INS has indicated that it would grant that request.
Record at 1-2. Section 235(a)(4) of the Act expressly allows this. "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
from the United States." 8 U.S.C.
§ 1225(a)(4). This is not rare. For fiscal year 1997, the INS reported permitting more
than half a million aliens, 556,966 to be exact, to withdraw from seeking admission See
U.S. Immigration and Naturalization Service, 1997 Statistical Yearbook of the
Immigration and Naturalization Service 166 (1999).
The INS Immigration Inspector's Field Manual provides guidance for the use of
this authority. Where unaccompanied minors are concerned, the Manual instructs
immigration inspectors to allow withdrawal whenever appropriate. But before doing so,
it further states, "the INS officer must be satisfied either that the minor is capable of
understanding the withdrawal process, or that a responsible adult (relative, guardian, or in
cases where a relative or guardian is not available, a consular officer) is aware of the
actions taken and the minor's impending return." Record at 277 (Inspector's Field
Manual, Chapter 17.15(f)). This is what happened here. The INS determined that Elian
is of such a tender age that he lacks the capacity to make immigration decisions. It
apprised Elian's father of the situation, and his father withdrew Elian's application for
admission and declined to assert an asylum claim, as a result of which Elian will be
returned
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097
The Manual also instructs immigration inspectors to make every effort to ascertain
whether the safety of an unaccompanied minor lacking the capacity to make immigration
decisions would be threatened if he returned home. Id If there is an objective basis to
support a claim for asylum, the minor would be placed in removal proceedings. Id; see
also id. at 285. The Attorney General explained how this section of the Field Manual
applied to Elian's case in her letter to counsel of January 12, 2000. Record at 25-28. In
that same letter, she made clear that: the question of whether Juan Gonzalez was the
appropriate person to speak for Elian in immigration matters was one of federal, not state
law. Id at 26. Section 103(a) of the INA provides that the Attorney General's
determinations and rulings "with respect to all questions of law" under the INA "shall be
controlling." 8 U.S.C. § 1103(a). Her determinations and rulings with respect to Juan
Gonzalez' authority to speak for Elian are entitled to Chevron deference.
No one disputes the authenticity of the birth certificate Juan Gonzalez provided to
the INS. Nor should there be any cispute that he possesses parental authority. In
immigration matters, a legal relationship is generally assessed under the law of the
jurisdiction where the relationship arose. See, e.g., Matter of Hosseinian, Int Dec. 3030
(BIA 1987). Under Cuban law, on the death of one parent, parental authority remains
with the surviving parent. Record at 202. That authority, under Article 85 of the Family
Code of Cuba, includes the authority "to represent their children in all legal transactions
and acts in which they have an interest. " Id That authority is precisely what Juan
Gonzalez is seeking to exercise. Florida law is similar. See Fla. Stat. § 744.301 ("The
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098
mother and father jointly are natural guardians of their own children and of their adopted
children, during minority. If one parent dies, the natural guardianship shall pass to the
surviving parent, and the right shall continue even though the surviving parent
remarries.").
Lazaro Gonzalez and his attorneys are claiming that Juan Gonzalez's assertion of
parental authority cannot be relied upon because he is saying only what Cuban officials
demand he say. Id. at 266-68. The INS, however, expended great effort to assess that
allegation through two interviews of Juan Gonzalez conducted by Officer-in-Charge
Silma Dimmel, witnessed by State Department Official Jeffrey DeLaurentis, at Juan
Gonzalez' home and at a neutral site. The INS carefully examined the issue of coercion.
Neither Dimmel nor Jeffrey DeLaurentis believes Juan was coerced. Id at 228-29, 235,
245. Dimmel's summations of her two interviews describe a father who is speaking from
his heart. Id. at 55, 235. Elian was taken from Cuba without Juan Gonzalez' consent, and
he wants him back:
It is this officer's observation that Mr. Juan Miguel Gonzalez Quintana is
deeply concerned for the well being of his child.
He as well as his
parents are emotionally distressed and became emotional several times
during the interview. Mr. Conzalez did not appear to be forced or coerced
to speak with us and claim[ed] he wants his son. Both he and his parents
appeared honest and concerned for the well being of the child in wanting
the child with them in Cuba immediately. The longer the child remains in
the U.S., the more they will continue to suffer. Their emotional stress and
pressure is the reason for their not returning to work. Mr. Gonzalez met
with us voluntarily and spoke truthfully and honestly. He misses and wants
his son back and the grandparents cannot mention Elian's name without
becoming emotional. This is an honest, genuine and unified family
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thoroughly engaged in Elian's life, that has been under distress since the
taking of the child by his mother.
Id at 243. The INS asked questions in written form to overcome the possibility of
listening devices. It also took into account the circumstances - - that Juan Miguel and
Elian had a close, loving relationship, and the tragic death of Elian's mother, and
concluded that Juan Miguel's request for Elian's return to him represented his true wishes.
Moreover, the INS properly concluded that Juan Gonzalez' parental authority
extends to the question of whether it should accept the asylum applications purportedly
filed on Elian's behalf. As with the application for admission, to adjudicate an asylum
application ostensibly submitted by a six-year-old without cognizance of the father's
parental authority contradicts the principle that primary responsibility for the care of
children rests with their parents. See Wisconsin V. Yoder, 406 U.S. 205, 232 (1972);
Pierce V. Society of Sisters, 268 U.S. 510, 535 (1925). With this role as primary care-
giver and protector comes the "common law recognition to the right of parents, not
merely to be notified of their children's actions, but to speak and act on their behalf."
Hodgson v. Minnesota, 497 U.S. 417, 483 (1990) (Stevens, J., concurring) (citing J.
Schouler, Law of Domestic Relations 337 (3d. ed. 1882); 1 W. Blackstone, Commentaries
452-453; 2J. Kent, Commentaries on American Law 203-206; G. Field, Legal Relations
of Infants 63-80 (1888)). As Justice White explained in Stanley v. Illinois, 405 U.S. 645
(1972):
The private interest here, that of a man in the children he has sired and
raised, undeniably warrants deference and, absent a powerful countervailing
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interest, protection.
The Court has frequently emphasized the
importance of the family. The rights to conceive and to raise one's children
have been deemed "essential," Meyer v. Nebraska, 262 U.S. 390, 399
(1923), "basic civil rights of man," Skinner V. Oklahoma, 316 U.S. 535, 541
(1942), and "[r]ights far more precious
than property rights," May V.
Anderson, 345 U.S. 528, 533 (1953). "It is cardinal with us that the
custody, care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state
can neither supply nor hinder." Prince V. Massachusetts, 321 U.S. 158, 166
(1944).
405 U.S. at 650 (parallel citations omitted).¹⁵
Moreover, the government's position that only Juan Gonzalez can speak for Elian
in immigration matters does not rest only on their parent-child relationship. A parent's
interest in controlling the upbringing of his child is "a counterpart of the responsibilities
they have assumed." Lehr V. Robertson, 463 U.S. 248, 257 (1983); accord Parham, 442
U.S. at 602. Biological parentage simply offers a person "an opportunity
to develop a
relationship with his offspring." Lehr, 463 U.S., at 262; see also Caban v. Mohammed,
441 U.S. 380, 397 (1979) (Stewart J., dissenting). It is the "demonstration of
commitment to the child through the assumption of personal, financial, or custodial
15
See Parham V. J.R., 442 U.S. 584, 602-03 (1979) (outlining a "presumption that
parents possess what a child lacks in maturity, experience, and capacity for judgment required for
making life's difficult decisions."); Gramegna V. Parole Commission, 666 So.2d 135, 136 (Fla.
1996) (Florida legislature has determined that consent of the victim is not defense to the crime of
lewd conduct with minor because a child is incapable of understanding the full consequences of
acts enumerated in statute); Orange Motors of Miami, Inc. v. Miami Nat'l Bank, 227 So. 2d 717,
718 (Fla. 3d DCA 1969) (finding agreements entered into by minors are voidable because minors
do not have capacity to contract); Liberty Mut. Ins. Co. V. Conley, I52 So.2d 521, 523 (Fla.App.
1 Dist. 1963) (same); see also Elkins % Vanden Bosch, 433 So.2d 1251, 1252 Fla.App. 3 Dist.
1983) (holding that 12 and 15-year-old children possess sufficient intelligence, understanding, and
experience to make mature choice between parents in a custody battle); Berlin V. Berlin, 386
So.2d 577 (Fla. 3d D.C.A. 1980), rev. denied, 394 So.2d 1151 (Fla.1981) (same).
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responsibility" that gives the natural parent the authority to speak for the child and
triggers an interest warranting the protection of the courts. See Hodgson, 497 U.S. at
445; Stanley, 405 U.S. at 651; Lehr, 463 U.S. at 261.
The INS assured itself not only that Juan Gonzalez is Elian's father but that the
relationship between the two is very close. Juan Gonzalez remained a central part of
Elian's life despite his divorce from Elian's mother, Elisabeth. During the first INS
interview in Cardenas, he explained that Elian spent more time at his residence than at
Ms. Brotons' residence. Id at 49, 52. "He would sleep and eat here and spent most of
his time here." Id at 49. Elian attended school near his father's home, ate most of his
meals with his father, and shared the same bed as his father and step-mother. Id His
father participated in Elian's school activities and attended meetings with Elian's teachers.
Id at 52, 76. He saw to it that Elian received necessary medical care when he needed
surgery. Id. at 51, 88. He met Elian's emotional needs and provided him with food and
shelter. Id. at 52-53. The evidence is that Juan Gonzalez is committed to Elian "through
the assumption of personal, financial
[and] custodial responsibility." Hodgson, 497
U.S. at 445.
Among cases the INS relied upon in its deliberations is Polovchak V. Meese, 774
F.2d 731 (7th Cir. 1985). There, against his parents' wishes, twelve-year-old Walter
Polovchak had filed an asylum application claiming Soviet authorities would persecute
him on account of his conversion to the Baptist faith. 774 F.2d at 733. The INS granted
the application because it deemed him sufficiently mature to apply, later granted him
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lawful permanent residence, and subsequently issued a departure control order.
Litigation ensued in both state and federal court. In the state litigation, the Illinois
Supreme Court eventually held that the trial court had erred in making Walter a ward of
the court, thereby removing him from his parents' custody. Id.
Meanwhile Walter's parents filed suit in federal court asserting that the INS' failure
to give them notice and an opportunity to be heard before it granted Walter asylum and
issued a departure control order violated their procedural due process rights. Id. The
district court granted them summary judgment against the INS on their claim that the INS
had not followed its procedures in issuing the departure control order and enjoined the
order's enforcement. Id at 734. The government appealed, and the Seventh Circuit
affirmed. The primary question before it, the court of appeals observed, "concerns what
action the government must take to ensure that both parties, the parents and the child,
receive an adequate opportunity to assert their interests." Id at 734. It sided with the
parents, observing that "[f]ree personal choice in matters involving family life is a
fundamental liberty interest of a parent because 'the parents' claim to authority in their
own household to direct the rearing of their children is basic in the structure of our
society." Id.
The significance of the Polovchak case lies in its recognition of the importance of
parental authority and in its recognition that some children are too young to assert certain
rights that override that authority. The INS had accepted and adjudicated twelve-year-old
Walter Polovchak's asylum application because it deemed him sufficiently mature to
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apply. At that age, the Seventh Circuit noted, Walter "was presumably near the lower
end of an age range in which a minor may be mature enough to assert certain individual
rights that equal or override those of his parents." Id at 736. By the time Walter's case
reached the Seventh Circuit, he was on the eve of his eighteenth birthday. Id That
placed him at the high end of the range:
at age seventeen (indeed, on the eve of his eighteenth birthday), Walter is
certainly at the high end of such a scale, and the question whether he should
have to subordinate his own political commitments to his parents' wishes
looks very different. The minor's rights grow more compelling with age,
particularly in the factual context of this case.
The ability of a young person to decide to which political system he
professes allegiance necessarily increases with age. We do not suggest that
every twelve year old entertains serious political views (although some
may); we would, however, suggest that many seventeen year olds do.
Similarly, as the child grows, his parents' influence over him weakens, and
the time his parents have in which to guide him grows shorter.
Id. at 736-37.
Deference to the INS is particularly important here because this case implicates
questions of foreign relations. See Aguirre-Aguirre, 119 S. Ct. at 1445 (INS officials
"exercise especially sensitive functions that implicate questions of foreign relations"). A
declaration by Ambassador Mary A. Ryan discusses at length how the decision reached
by the INS in Elian's case is consistent with the principles that the Department of State
expects to be followed in similar cases involving American children. Record at 286-90.
The INS decision to respect Juan Gonzalez' parental authority is consistent with the
principles that inform the Department of State's consular work on behalf of American
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citizen children in foreign countries. Id at 288, 1 9. That consular work is based on the
assumption that the parents of American citizen children, not the Department of State or
the United States Government, should decide what is best for their children. Id. at 287, 1
6.
If a U.S. citizen minor child were found overseas and subject to a dispute
concerning possible return to the United States, the Department of State explains, "we
would expect the government of that country immediately to seek the child's surviving
parent, if any, and to contact U.S. consular officials for assistance in doing so if
necessary." Id. at 288, 1 8. The Department of State would not expect the surviving
parent to be required to participate in a foreign court's custody proceedings to establish
his or her right to assume responsibility for the child as against distant relatives or
outright strangers. Id. Thus, what the United States does in Elian's case may have
implications far beyond this case.
Elian is well below the low end of the range the court in Polovchak referred to.
Given Elian's extreme youth and the absence of any reliable evidence that Juan Gonzalez
is not being candid in insisting that Elian return home, the Commissioner's decision to
recognize Juan Gonzalez' parental authority is facially legitimate and bona fide and must
be upheld.
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(2)
REVIEWED UNDER THE ADMINISTRATIVE PROCEDURE ACT,
THE COMMISSIONER'S DECISION WAS AN APPROPRIATE
EXERCISE OF DISCRETION
In the event the Court finds the "facially legitimate and bona fide" standard not
applicable and chooses to apply the more exacting (but still highly deferential) standard
of review that is generally applicable under the Administrative Procedure Act ("APA"), 5
U.S.C. §§ 551-559, 701-706,¹⁶ the Commissioner's decision easily withstands that review
also. Under the APA, the Court will "hold unlawful and set aside agency action,
findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." Legal Environmental Assistance Foundation, Inc.
V. EPA, 118 F.3d 1467, 1473 (11th Cir. 1997) (citing APA § 706(2)). "The task of the
reviewing court is to apply the appropriate APA standard of review, 5 U.S.C. § 706, to
the agency decision based on the record the agency presents to the reviewing court."¹⁷
Florida Power & Light Company V. Lorion, 470 U.S. 729, 743-44 (1985). The
16 The government maintains that the APA is not applicable. See Ardestani V. INS, 502
U.S. 129 (1991) (holding that attorneys not entitled to attorney fees under the Equal Access to
Justice Act because deportation proceedings not "adversary adjudications" under APA § 554);
Marcello v. Bonds, 349 U.S. 302 (1955) (holding that the INA supplants the APA). However,
even under the more rigorous APA standard, the Commissioner's decision withstands scrutiny.
17 In this instance, the exhibits that are pertinent to the Court's review are the documents
containing the information on which the Commissioner relied in rendering her decision on the
applications for admission and asylum That information is found at pages 1 through 285 of the
record, with the exception of the correspondence between the Attorney General and counsel at
pages 24-28, and the declarations by INS Officer Dimmel (id. at 47-46), Port Inspector Roig (id
at 217-18) and State Department official DeLaurentis (id. at 244-45). "The APA specifically
contemplates judicial review on the basis of the agency record compiled in the course of informal
agency action in which a hearing has not occurred." Id. at 744 (citing 5 U.S.C. §§ 551(13), 704,
706).
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Commissioner's decision, as explained above in the context of review for a facially
legitimate and bona fide reason, easily withstands scrutiny under the APA standard of
review.
IV.
THE COURT SHOULD DENY PLAINTIFFS' MOTION FOR PRELIMINARY
AND PERMANENT INJUNCTIVE RELIEF
Moreover, the Court should deny plaintiffs' motion for preliminary and permanent
injunctive relief. The Supreme Court recently reiterated that preliminary injunctive relief
is "an extraordinary and drastic remedy" which requires the movant to put forth
"substantial proof" in support of his motion and to carry "by a clear showing, the
burden of persuasion" on the separate legal elements.¹⁸ See Mazurek V. Armstrong, 520
U.S. 968, 117 S. Ct. 1865, 1867 (1997) (quoting C. Wright et al., Federal Practice and
Procedure § 2948, at 129-30 (2d ed. 1995)). To obtain a preliminary injunction, the
moving party must demonstrate "(1) a substantial likelihood of success on the merits; (2)
a substantial threat of irreparable injury; (3) [that] its own injury outweighs the injury to
the nonmovant; and (4) the injunction would not disserve the public interest." Haitian
Refugee Ctr., Inc. V. Baker, 949 F.2d 1109, 1110 (11th Cir. 1991) (per curiam).
18 Thus, where "a plaintiff seeks a mandatory injunction that goes beyond maintaining the
status quo pendente lite, 'courts should be extremely cautious' about issuing a preliminary
injunction and should not grant such relief unless the facts and law clearly favor the plaintiff."
Committee of Central American Refugees V. INS, 795 F.2d 1434, 1441 (9th Cir. 1986) (citations
omitted); Dahl V. HEM Pharmaceuticals, 7 F.3d 1399, 1403 (9th Cir. 1993).
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A.
PLAINTIFFS HAVE FAILED TO DEMONSTRATE A SUBSTANTIAL
LIKELIHOOD OF SUCCESS
In view of the foregoing demonstration that plaintiffs have failed to state a claim
with respect to each of their five counts, it necessarily follows that they have failed to
demonstrate a substantial likelihood of success for injunctive relief. The movant's failure
to demonstrate a "substantial likelihood of success on the merits" may defeat the party's
claim, without regard to its ability to establish any of the other elements. See Church V.
City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994). The Court should therefore deny
plaintiffs' motion on this basis alone.
B.
PLAINTIFFS HAVE FAILED TO DEMONSTRATE A SUBSTANTIAL
THREAT OF IRREPARABLE INJURY
The Court should also find that plaintiffs failed to demonstrate a substantial threat
of irreparable injury. They cannot possibly have demonstrated injury because, as
previously discussed, they lack standing based on their inability to demonstrate an "injury
in fact." Moreover, plaintiffs' motion is based on the presumption that the asylum
application they purported to submit on Elian's behalf is meritorious and demonstrates
that Elian will suffer persecution if he is returned to Cuba. They summarize the
applications in their motion for injunctive relief. See P.I. Motion at n.22 & 23. That
summary reflects that the applications have no merit as a basis for a finding of future
persecution on account of one of the grounds enumerated in the Immigration and
Nationality Act, race, religion, nationality, membership in a particular social group, or
political opinion. See INA § 101(a)(42), 8 U.S.C. § 1101(a)(42) (defining "refugee"). It
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was plaintiffs' burden to establish this prong of the required analysis for injunctive relief.
They have not met their burden.
C.
PLAINTIFFS HAVE FAILED TO DEMONSTRATE THAT THEIR
OWN INJURY OUTWEIGHS THE INJURY TO THE UNITED
STATES
Plaintiffs have made no showing that their own injury outweighs the injury to the
United States. To the extent they attempt a showing, they merely state, with respect to
both this element and the next, that "[t]he government cannot allege any harm and cannot
show adverse implications to the public interest. Rather using a regulation that is
designed and intended to protect refugees who flee persecution can only serve the public
interest." Motion at 23.
To the contrary, the government will be harmed should the Court grant injunctive
relief. Elian would suffer further harm from not being reunited with his father and
grandparents. The Immigration and Naturalization Service would suffer harm from the
standpoint of not being able to give effect to immigration decisions made by parents on
their children's behalf. Moreover, the United States would suffer harm from the
standpoint of its international standing in protecting parental rights in cases involving
American children wrongfully removed from this country. According to the State
Department, "A failure to enforce the INS decision would, conversely, be inconsistent
with the principles we advocate on behalf of the United States and could have potentially
lasting negative implications for left-behind parents in the United States and for U.S.
citizen children taken to foreign countries." Record at 290.
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D.
PLAINTIFFS HAVE FAILED TO DEMONSTRATE THAT THE
INJUNCTION WOULD NOT DISSERVE THE PUBLIC INTEREST
Plaintiffs' statement that "using a regulation that is designed and intended to
protect refugees who flee persecution can only serve the public interest," P.I. Motion at
23, by no means satisfies their burden of demonstrating that the injunction would not
disserve the public interest. It disserves the public interest to undermine the principle that
parents of children should decide what is best for their children. It disserves the public
interest to undermine the ability of immigration inspectors at our various ports-of-entry to
look to parents or other responsible adults to make immigration decisions for minors. It
disserves the public interest to undermine the effectiveness of the United States in
working with other countries for the return of abducted U.S. citizen children. And it
disserves the public interest to ignore accepted international practice in cases involving a
sole surviving parent located in the United States, where we would expect the foreign
country to immediately return the child to the surviving American parent.
CONCLUSION
The Court should dismiss this case for lack of subject matter jurisdiction pursuant
to INA § 242(g) or, alternatively, for lack of standing. Should the Court reject these
arguments, it should grant the government's Rule 12(b)(6) motion with respect to
plaintiffs' five counts or, alternatively, grant summary judgment on these counts. The
Court should also deny plaintiffs' motion for preliminary and permanent injunctive relief
and for a writ of mandamus.
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Respectfully submitted,
DAVID W. OGDEN
Acting Assistant Attorney General
PATRICIA L. MAHER
Deputy Assistant Attorney General
THOMAS W. HUSSEY
Director
DAVID J. KLINE
Deputy Director
Denter A. Lee
for
WILLIAM J. HOWARD
Senior Litigation Counsel
JOCELYN M. WRIGHT
Senior Litigation Counsel
RUSSELL J.E. VERBY
JOHN P. MORAN
MICHELLE GORDEN
Trial Attorneys
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
(202) 616-4900 tel.
(202) 616-4948 fax
THOMAS E. SCOTT
UNITED STATES ATTORNEY
Depter A Lee
DEXTER A. LEE
Assistant U.S. Attorney
Fla. Bar No. 0936693
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111
99 N.E. 4th Street
Miami, Florida 33132
(305) 961-9320
Fax: (305) 530-7139
CERTIFICATE OF SERVICE
I certify that on this 27th day of January, 2000, I caused one copy of the foregoing
Motion to Dismiss or Alternative Motion For Summary Judgment and Opposition to
Motion for Preliminary and Permanent Injunctive Relief to be served upon plaintiffs by
next-day delivery addressed as follows:
LINDA OSBERG-BRAUN
SPENCER EIG
ROGER A. BERNSTEIN
Law Offices of Spencer Eig
Hackley, Bernstein & Osberg-Braum
420 Lincoln Road, Suite 379
2875 N.E. 191st Street, PH 1B
Miami Beach, Florida 33139
Aventura, Florida 33180
BARBARA LAGOA
JOSE GARCIA-PEDROSA
JUDD J. GOLDBERG
Ruden, McClosky, Smith, Schuster &
ELIOT PEDROSA
Russell, P.A.
Greenberg Traurig, P.A.
701 Brickell Avenue
1221 Brickell Avenue
Miami, Florida 33131
Miami, Florida 33131
Date A. Lee
DEXTER A. LEE
Assistant U.S. Attorney
85
U.S. Department of Justice
Immigration and Naturalization Service
Office of the Executive Associate Commissioner
425 / Street NW
Washington. DC 20536
JAN
5 2000
Juan Miguel Gonzalez-Quintana
Calle Cossio #170
Cardenas, Cuba
Dear Mr. Gonzalez-Quintana,
Thank you for meeting with United States representatives from the Immigration and
Naturalization Service (INS) and the Department of State (DOS) on December 13th and 31st.
We have reviewed the information and documents you have provided to establish your
relationship to Elian Gonzalez. We have determined that you are Elian's biological father and
lawful guardian and, as such. you have the right and obligation to represent Elian in all legal
transactions and acts in which Elian has an interest. Therefore, we recognize your authority to
speak on behalf of your son Elian in immigration matters. Consequently, we are granting your
request to withdraw Elian's application for admission to the United Statcs, a key step in rcuniting
you with your son. Also, consistent with the wishes you expressed at our two interviews with
you, we accept your decision not to assert Elian's right to apply for asylum in the United States.
We are contacting your relatives in Miami, who have been caring for Elian since his
rescue at sea, and Roger Bernstein, the attorney who has asscrted that he and his associates
represent Elian in immigration matters, to advise them of our decision. We have explained to
them that you have expressly declined to authorize Mr. Bernstein and his associates to represent
Elian in immigration matters, and that we therefore cannot recognize them as Elian's
representatives. We have also explained that we have determined that, according to your wishes,
Elian is not asserting his right to apply for asylum in the United States. Therefore, we arc not
accepting the asylum applications prepared and submitted by Mr. Bernstein and his associates
and signed by Elian or Lazaro Gonzalez.
As you are aware from our meeting. the process of returning your son to Cuba is
complicated and although we hope to receive cooperation from your family in Miami, there may
be delays or challenges to our decision. It is our hope that you and your relatives in Miami will
be able to work together as a family to ensure that Elian is returned to you as quickly as possible.
We have asked them to work out an arrangement for returning Elian to you by the end of next
week. Should you wish to come to the United States to pick up Elian or should your relatives in
Miami want to escort him back to Cuba, the Immigration and Naturalization Service would be
pleased to provide whatever assistance would be appropriate. We are also aware that neutral
000001
Juan Miguel Gonzalez Quintana
Page 2
third parties have offered to facilitate Elian's return to you. Should you wish to seek the
assistance of such a third party, we are ready to work with them as arrangements are sought to
reunite you and your son.
Sincerely,
HOLD
Executive Associate Commissioner
for Field Operations
000002
Immigration and Naturalization Service
Office of the Executive Associate Commissioner
425 / Street NW
Washington. DC 20536
JAN - 5 2000
Mr. Lazaro Gonzalez
2319 N.W. 2nd Street
Miami, Florida 33125-5207
Dear Mr. Gonzalez,
We appreciate your cooperation during our consideration of immigration matters relating
to Elian Gonzalez and your meeting with us in Miami on December 20th. After careful
consideration and consultation with her legal advisors, the INS Commissioner has made several
determinations in this case, of which I am now prepared to inform you.
The INS has been in direct contact with Juan Miguel Gonzalez-Quintana. Mr. Gonzalez-
Quintana has provided reliable documentation that he is Elian's biological father and that he now
has legal custody of the child under Cuban law. As such, he has the right and obligation to
represent Elian in all legal transactions and acts in which Elian has an interest. Therefore, we
have determined that Mr. Gonzalez-Quintana has the authority to speak for his son in
immigration matters. After carefully considering all relevant factors, we have determined that
there is no conflict of interest between Mr. Gonzalez-Quintana and his son, or any other reason,
that would warrant our declining to recognize the authority of this father to speak on behalf of
his son in immigration matters. Further, we took steps to ensure that Mr. Gonzalez-Quintana
could express his true wishes at our interviews with him, and after carefully reviewing the results
of the interviews, we are convinced that he did so.
Roger Bernstein and several of his associates, attorneys in Miami, have submitted several
Forms G-28, Notice of Entry and Appearance as Attorney, for Elian. Some of these Forms G-28
were signed by you on behalf of Elian. On others, Elian himself has printed his first name. After
careful consideration, we have determined that we cannot recognize any of the Forms G-28 as
authorizing these attorneys to represent Elian in immigration matters. Although the INS has
placed Elian in your physical care, such placement does not confer upon you the authority to act
on behalf of Elian in immigration matters or authorize representation in direct opposition to the
express wishes of the child's custodial parent. Further, we do not believe that Elian, who
recently turned six years old, has the legal capacity on his own to authorize representation.
Finally, Mr. Gonzalez-Quintana has expressly declined to authorize Mr. Bernstein or his
associates to represent Elian. Therefore, the INS cannot recognize them as Elian's
representatives.
000003
Mr. Lazaro Gonzalez
Page 2
In our direct conversations with Mr. Gonzalez-Quintana, he has repeatedly informed us
of his decision not to assert Elian's right to apply for asylum. Mr. Bernstein and his associates
have prepared and submitted asylum applications on Elian's behalf, one of which was signed by
Elian. After careful consideration, we have determined that Elian does not have the capacity to
apply for asylum without the assistance of his parent. Further, neither the applications you have
submitted nor any other information available indicates that Elian would be at risk of harm in
Cuba such that his interests might so diverge from those of his father that his father could not
adcquately represent him in this matter. Therefore, given Mr. Gonzalez-Quintana's decision not
to assent Elian's right to apply for asylum. we cannot accept the asylum applications as having
been submitted on Elian's behalf.
Mr. Gonzalez-Quintana has also repeatedly requested that Elian be returned immediately
to his custody in Cuba. We consider this to be a request to withdraw Elian's application for
admission to the United States, made by Elian's custodial parent with authority to speak for Elian
in immigration matters. Therefore, we have granted Mr. Gonzalez-Quintana's request to
withdraw Elian's application for admission to the United States.
Upon his arrival, Elian was temporarily paroled into the United States. Arrangements
should now be made within the next ninc days for Elian's rcunion with his father. It is our hope
that you will be able to make arrangements with your nephew to ensure that Elian is returned to
him and his immediate family as soon as possible. The INS is prepared to provide whatever
assistance would be appropriate. We are also aware that neutral third parties have offered to
facilitate Elian's return to Cuba and we are ready to work with them as arrangements are sought.
We appreciate your family's immediate willingness to care for and comfort Elian after
the tragic loss of his mother and stepfather and his ordeal on the high seas. Please be assured
that we would be happy to facilitate continuing contact between Elian, his father, and your
family. If Elian and his immediate family wished to apply for tourist visas at some point in the
future, the Consular Section at the U.S. Interests Section in Havana would, of course, consider
them very favorably.
Sincerely,
Commissioner
for Field Operations
000004
TOTAL P.03
U.S. Department of Justice
Immigration and Naturalization Service
Office of the Executive Associate Commissioner
425 / Street NW
Washington, DC 20536
JAN 5 2000
Roger Bernstein
Hackley, Bernstein & Osbcrg-Braun, Attorneys at Law
Turnberry Plaza
2875 191st Street, Penthouse 1B
Aventura, FL 33180
Spencer Eig
420 Lincoln Road, Suite 379
Miami Beach, FL 33139
Dear Messrs. Bernstein and Eig
We have received the letters you have sent regarding your claim to represent Elian
Gonzalez and appreciate your meeting with us in Miami on December 20th to discuss this
matter. We understand that you continue to assert that, through his direct consent and the
consent of Lazaro Gonzalez, you represent Elian Gonzalez. After consulting with her legal
advisors and carefully considering this matter, the Commissioner of the INS has made several
determinations, of which I am now prepared to inform you.
The INS has been in direct contact with Juan Miguel Gonzalez-Quintana. Mr. Gonzalez-
Quintana has provided reliable documentation that he is Elian's biological father and that he now
has legal custody of the child under Cuban law. As such, he has the right and obligation to
represent Elian in all legal transactions and acts in which Elian has an interest. Therefore we
have determined that Mr. Gonzalez-Quintana has the authority to speak for his son in
immigration matters. After carefully considering all relevant factors, we have determined that
there is no conflict of interest between Mr. Gonzalez-Quintana and his son, or any other reason,
that would warrant our declining to recognize the authority of this father to speak on behalf of
his son in immigration matters. Further, we took steps to ensure that Mr. Gonzalez-Quintana
could express his true wishes at our interviews with him, and after carefully reviewing the results
of the interviews, we are convinced that hc did so.
You and your associates have submitted several Forms G-28, Notice of Entry and
Appearance as Attorney, for Elian. Some of these Forms G-28 were signed by Lazaro Gonzalez
on behalf of Elian. On others, Elian himself has printed his first name. After careful
consideration, we have determined that we cannot recognize any of the Forms G-28 as
authorizing you to represent Elian in immigration matters. Although the INS has placed Elian
000005
Roger Bernstein
Spencer Eig
Page 2
in the physical care of Lazaro Gonzalez, such placement does not confer upon Lazaro Gonzalez
the authority to act on behalf of Elian in immigration matters or authorize representation in direct
opposition to the express wishes of the child's custodial parent. Further, we do not believe that
Elian Gonzalez, who recently turned six years old, has the legal capacity on his own to authorize
you to represent him. Finally, Mr. Gonzalez-Quintana has expressly declined to authorize you or
your firms to represent Elian. Therefore, the INS cannot recognize you as Elian's
representatives.
In our direct conversations with Mr. Gonzalez-Quintana, he has repeatedly informed us
of his decision not to assert Elian's right to apply for asylum. You have prepared and submitted
asylum applications on Elian's behalf, one of which was signed by Elian. After careful
consideration, we have determined that Elian does not have the capacity to apply for asylum
without the assistance of his parent. Further, neither the applications you have submitted nor any
other information available indicates that Elian would bc at risk of harm in Cuba such that his
interests might so diverge from those of his father that his father could not adequately represent
him in this matter. Therefore, given Mr. Gonzalez-Quintana's decision not to assert Elian's right
to apply for asylum, WC cannot accept the asylum applications you have submitted on Elian's
bchalf.
Mr. Gonzalez-Quintana has also repeatedly requested that Elian be returned immediately
to his custody in Cuba. We consider this to be a request to withdraw Elian's application for
admission to the United States, made by Elian's custodial parent with authority to speak for Elian
in immigration matters. Therefore, we have granted Mr. Gonzalez-Quintana's request to
withdraw Elian's application for admission to the United States.
We appreciate your cooperation as we considered your claims to represent Elian.
Sincerely,
Commissioner
Operations
000006
Immigration and Naturalization Service
Office of the General Counsel
425 / Street NW
Washington DC 20536
JAN 3 2000
MEMORANDUM FOR DORIS MEISSNER
COMMISSIONER
Dawn Derk
Dawn
Date
FROM:
Bo Cooper
General Counsel
SUBJECT: Elian Gonzalez
QUESTIONS PRESENTED
1.
Who has the legal authority to speak on behalf of the six-year old Cuban national, Elian
Gonzalez - his father, his great uncle, or the attorneys claiming to represent Elian?
2.
Given Elian's father's apparent legal authority to speak for the child on immigration
matters, under what circumstances should the child's interests be considered apart from
the expressed wishes of the parent regarding disposition of the child's application for
admission and his asylum application?
A.
Is the father able to represent adcquately the immigration interests of the
child?
B.
May Elian apply for asylum in direct opposition to the expressed wishes of his
father?
SUMMARY ANSWERS
1.
The documents and other submitted material indicate that Juan Miguel
Gonzalez-Quintana has the legal authority to speak for his son Elian.
-2.
The INS must determine whether the father has an interest that conflicts with his ability
to represent the immigration interests of the child. Specifically, the INS must consider
whether the possibility of coercion precludes Elian's father from making his true
000007
intentions known and speaking on behalf of Elian and whether Elian's asylum application
represents a divergence of interests between the father and child.
A.
After evaluating the testimony of the father and the uncle, we believe the
father is able to convey to the INS his true intentions regarding Elian and to
represent adequately the immigration interests of the child.
B.
At his tender age, Elian does not have the capacity to seek asylum on his
own behalf. Since there is no objective basis to believe that Elian is at risk
of persecution or torture, the INS should not accept his asylum application
against the expressed wishes of his father.
DISCUSSION
1.
Who has the legal authority to speak on behalf of the child - his father, his great uncle, or
the attorneys claiming to represent him?
Juan Miguel Gonzalez-Quintana has submitted numerous documents establishing that he
is the father of Elian Gonzalez. Elian's great uncle, Lazaro Gonzalez, does not dispute this
claim. Because the child was born out-of-wedlock, some have questioned whether this fact
affects the father's legal rights. Under Cuban law, however, parental rights are unaffected by
questions of legitimacy. Constitution of Cuba, Article 37.
In immigration matters, relationships are generally assessed under the law of the
jurisdiction where the relationship arose. See e.g., Matter of Hosseinian, Int. Dec. 3030 (BIA
1987). Cuban law also reinforces the right of both parents to exercise parental authority. Articles
82 and 83 of the Family Code of Cuba provide that minor children shall be under the authority of
their parents and that parental authority is shared jointly by both parents. Should one parent die,
as in this case, the surviving parent becomes the sole individual authorized to speak for the child.
The specific rights and duties of a parent, enumerated in Article 85 of the Family Code, include
the obligation to represent the child in all legal transactions and acts in which they have an
interest (Article 85, clause 5). While a person may lose the right to exercise such authority, the
absence of any evidence showing that a court has deprived or suspended such authority would
indicate that the parent's rights continue in force. (See attached Opinion from Library of
Congress.)
Without the consent of the surviving parent, the great-uncle, Lazaro Gonzalez, has no
legal basis to act on behalf of Elian in immigration matters. Although attorneys in this case have
characterized him as Elian's legal guardian, he has submitted no evidence and made no claim
that he is actually a court-appointed guardian. While INS has placed the child into Lazaro
Gonzalez's carc, the fact that Elian has been released to him does not authorize him to speak for
the child in immigration matters. Instead, he has agreed to care for the child and ensure that he
appears at all immigration proceedings. 8 CFR 236.3(b)(4). Given these factors, Lazaro
Gonzalez has no legal basis at this time to represent Elian in immigration matters.
2
000008
Three attorneys have submitted Form G-28, Notice of Entry and Appearance as Attorney
or Representative, with Elian's signature. They assert that they represent Elian, and not Lazaro,
though they have conceded that this representation is through the consent of Lazaro Gonzalez, as
well as by the apparent direct consent of Elian. The attorneys have also indicated that Elian
wishes to pursue his application for admission in the United States. Although the attorneys claim
to have the authority to speak on Elian's behalf, the law does not appear to support this claim.
While there is no absolute prohibition against a minor signing a Form G-28, the ability to do so
must be evaluated against general questions of capacity. In the state of Florida, for instance, a
minor under the age of 18 is not considered competent to enter into contracts. See Section
743.07, Florida Statutes (1973). Under INS regulations, the parent or legal guardian may sign
the application or petition of someone under the age of fourteen. 8 CFR 103.2(a)(2). Thus, while
it appears that Elian may sign the Form G-28, the INS generally assumes that someone under the
age of 14 will not make representation or other immigration decisions without the assistance of a
parent or legal guardian. Here, the father has expressly stated that he does not authorize the
attorneys to represent Elian, and that he does not want Elian to seek asylum. Unless the INS has
direct evidence of Elian's capacity, Elian's signature on the Forms G-28 does not bear much
weight.
Further, the attorneys appear to have a potential conflict of interest. In their letter of
December 15, 1999, they stated that they represent Elian, "by direct consent, as well as through
the consent of Lazaro Gonzalez, Elian's custodian, who is currently his legal guardian in the
United States." As stated above, Lazaro Gonzalez has no legal basis to represent the
immigration interests of Elian. Thus, his personal interests in this matter are separate and apart
from Elian's immigration interests. Since Lazaro Gonzalez appears to have retained the services
of the attorneys on Elian's behalf, any fiduciary duty they owe to Lazaro presents a potential
conflict of interest.
The INS has no basis to reject the father's parental authority. Therefore, we presume that
he has the legal authority to speak on behalf of the child in immigration matters.
2.
Given the father's apparent legal authority to speak for the child on immigration matters,
under what circumstances should the child's interests be considered apart from the
expressed wishes of the parent regarding disposition of the child's application for
admission and his claim for asylum?
On December 14, 1999, attorneys retained on behalf of Elian Gonzalez by Lazaro
Gonzalez submitted an asylum application, under Elian's signature, claiming that Elian would be
persecuted on the basis of his social group if he were returned to Cuba. The attorneys assert that
the child is raising the asylum claim independently, rather than through a guardian or
representative. The father has expressly stated that he does not want Elian to seek asylum. The
attorneys have also indicated that Elian wishes to pursue his application for admission in the
United States while Elian's father has stated he wants Elian returned to Cuba.
The attorneys have asserted that Elian's father cannot speak for him in immigration
matters because he is under the control and jurisdiction of the country from which Elian fears
3
000009
persecution. Because the father outwardly supports the regime, the attorneys claim that he
cannot represent the child's best interests. They also claim that the Cuban government has
prevented the father from expressing his actual wishes for his son.
While we do not regard the attorneys as authorized to represent the immigration interests
of Elian, their assertions call into question the father's ability to represent adequately the
immigration interests of the child. The underlying question goes to whether the father's personal
interests conflict with his rcpresentation of the immigration interests of the child to a degree
sufficient to justify interference with his parental authority. In this case, the possibility of a
conflict has been raised based on allegations that the father is not free to express his wishes and
the assertion that that the child is free to raise an asylum claim regardless of the father's wishes.
A. Father's ability to represent the immigration interests of the child
Immigration law presents little guidance on the resolution of a parent's ability to
adequately represent the interest of the child. In Johns V. DOJ, 624 F.2d 522 (5th Cir. 1980), the
Fifth Circuit held that the government violated the due process rights of a five-year old Mexican
national when it issued a deportation order against her, because the attorney retained to represent
her spoke for her alleged parents, rather than the child. In that case, the court found a clear
divergence between the interests of the child and those of the "parents," who had no legal
authority over the child. The court further found that the Mexican birth mother, who claimed her
child had been kidnapped, did not necessarily represent the interests of the child given that she
had not seen the child since the day she was born. In making its finding, the court noted that the
child had been raised in a different culture, spoke a different language, and would, if deported, be
returned to her natural mother's home to reside with two older siblings who had never seen her
and with whom she could not communicate. Id., at p. 524. The Fifth Circuit remanded the case
to the district court with instructions to appoint a guardian ad litem to represent the child in all
further proceedings. Id.
In this case, the alleged inability of the father to adequately represent the interests of the
child rests not on any estrangement between father and child or the father's inability to
adequately assess the best interests of his child. To the contrary, evidence in the record,
including the interview of the father and the numerous affidavits he provided, establish that the
father and child share a close relationship, and that the father has exercised parental
responsibility and control for example, in the education and health care of the child. Instead, the
alleged inability of the father to adequately represent the interests of the child is based on the
possibility that the father has been coerced. If coerced, the father's representation of the
immigration interests of the child may conflict with the father's interest in his own personal
safety, rendering him unable to adequately represent the child in immigration matters. Following
Johns, this inability would require the appointment of a guardian ad litem to represent Elian's
immigration interests. Accordingly, it is necessary to evaluate the possibility of coercion and to
determine whether the father's ability to adequately represent the interests of the child in
immigration matters is impeded to such a degree as to justify an interference with the father's
assertion of parental authority.
4
000010
On December 13, 1999, the Officer in Charge for the INS Havana sub office
(accompanied by the First Secretary and Chief of the Political/Economic Section of the US
Interests Section) interviewed Juan Miguel Gonzalez-Quintana at his home. Mr. Gonzalez-
Quintana described in great detail his close relationship with his son He submitted affidavits
from several neighbors, family friends, physicians, and Elian's teacher attesting to the affection
between the father and son as well as the responsibility the father has taken in his son's life. He
expressed his wishes that Elian be returned to him, that Elian not be allowed to apply for asylum,
and that Elian not be represented by the attorneys purporting to represent him in the United
States. Mr. Gonzalez- Quintana was also asked to express his wishes without speaking (in
writing) in order to protect against the possibility of auditory monitoring of the interview by
Cuban officials. Mr. Gonzalez- Quintana again expressed, in writing, his wish for the child to
return to Cuba. The Officer in Charge found that "the honesty, concern and truthfulness on the
part of Mr. Gonzalez-Quintana was palpable
Thus, Mr. Gonzalez-Quintana's demeanor, as
assessed in person by the Officer in Charge, supports the conclusion that the father's expressed
wishes are not motivated by outside influences. The numerous affidavits attesting to the closc
relationship between the father and son lend further credence to the father's request that his son
be returned to him.
On December 20, Elian's great uncle, Lazaro Gonzalez, was interviewed at the INS
District Office in Miami. Lazaro Gonzalez expressed his opinion that the father's statements
were coerced. He based this conclusion on four factors. First, Lazaro Gonzalez stated that Mr.
Gonzalez-Quintana, in two phone calls, asked that Lazaro Gonzalez and his family take care of
Elian. The first of these conversations occurred prior to Elian's arrival in the United States¹, and
the second occurred on the day Elian was found at sea and brought to a hospital in Ft.
Lauderdale. In subsequent conversations, Elian's father demanded the boy's return. The father
never mentioned to INS a conversation prior to Elian's arrival in the United States and never
acknowledged that he had ever asked his uncle to care for the child. Next, Lazaro Gonzalez, as
well as his daughter, noted the tone of the subsequent telephone conversations with the father,
and opined that he did not appear to be speaking freely. Third, Lazaro Gonzalez stated that,
according to family members living in Cuba with whom he has spoken. Cuban officials are
present at the father's home and have prevented him from leaving. Fourth, one of the attorneys
stated that he was told by a reporter in Cuba that. according to sources in Mr. Gonzalez
Quintana's neighborhood, the father had applied with the U.S. Interest Section for the lottery
program to come to the United States. Because of the manner in which the DOS and the INS
record applications for various immigration programs, it would be impossible to use government
records to rule out completely that possibility.
In order to ensure that we have examined fully the question of coercion, the INS sought a
second interview with Juan Miguel Gonzalez-Quintana At the request of both the US and
Cuban governments, a neutral site was selected, the home of the representative of the United
Nations International Children's Emergency Fund (UNICEF). The INS officer in charge who
had conducted the first interview also conducted this interview which was held on December 31,
1999. As was the case at the December 13, 1999 interview, Mr. Gonzalez was accompanied by
his parents who were present for the interview, was asked a number of questions by the OIC, and
1 It should be noted here that we have found no evidence that the father consented to Elian's
travel to the United States prior to his departure.
5
000011
was also given a set of written questions. The OIC concluded that Mr. Gonzalez "spoke
truthfully." The OIC was convinced that Mr. Gonzalez "appeared honest and concerned for the
well being of the child and in wanting the child with them [the Gonzalez family] in Cuba
immediately."
The statements of Lazaro Gonzalez, as well as a general understanding of the practices of
the Castro regime, make it essential that the INS closely examine the voluntariness of the father's
statements. The evidence of coercion, however, is far from compelling when weighed against
the personal interviews of the father and the interpretation of those interviews by the INS officer.
Equally important, the existence of political pressure does not necessarily mean that the father's
expression of his wishes is not genuine. If the father's statements truly reflect his belief as to the
best interests of his child, then there is no divergence of interests. His statements would reflect
his assessment of his child's best interests and should generally be given effect, notwithstanding
any political pressure he may feel. Accordingly, it is important to evaluate all available evidence
with an eye toward determining not merely whether the father is subject to political pressure or
even coercion, but whether he is acting against his true belief as to the best interests of his child.
First, the opinions of Lazaro Gonzalez and his daughter, based on the tone of telephone
conversations, conflict with the INS officer's interpretation of her interview with the father.
Because the INS officer interviewed the father in person and was convinced that the father is
speaking truthfully and freely, we believe that her interpretation carries more weight than the
opinions of Lazaro Gonzalez and his daughter.
Second, the telephone conversations, recounted by Lazaro Gonzalez, wherein the father
asked him to take care of the child do not establish a belief on the part of the father that the child
should remain in the United States permanently. If true, the first of these conversations occurred
prior to Elian's arrival in the United States and prior to any knowledge on the part of the father
that Elian's mother had perished at sea. Her tragic death fundamentally changed the
circumstances such that any prior statements of the father create no inference as to his true
beliefs after the event. The second conversation with the father occurred while Elian was being
examined and treated at a hospital in Ft. Lauderdale. The father's alleged request that Lazaro
Gonzalez take care of the child is subject to varying interpretations. At the second interview, the
OIC asked the father to discuss his earlier conversations with Lazaro Gonzalez. He disputed
Lazaro's version. Elian's father stated "At all times I asked that Elian be returned to me."
Elian's grandfather interjected and the OIC summarized his view "At no time during his
conversation with his brother did he ask him to take care of Elian. As a family they did not have
to say such a thing. It's humane and as family, it is an obligation." Assuming Elian's father
made the statement, we believe the most reasonable interpretation is that it was a normal reaction
of a father to the circumstances of his five year-old son's lone arrival and medical treatment in a
foreign country following the tragic death of his mother, rather than a request that the child
remain with Lazaro Gonzalez indefinitely.
Third, the statements of the attorney concerning the father's alleged applications under
the United States lottery program carry little weight. We asked Elian's father in the written
questions whether he had applied either in person or by mail to the US Interests Section for
permission to go to the United States. He indicated in writing that he had not The statements
6
000012
that he had applied for an immigrant visa are based on hearsay and cannot be confirmed or
denied by the U.S. Interests Section or the INS. Even if we assume the father had applied under
the lottery program, there is no information concerning the circumstances of those applications,
including his intentions concerning Elian. 2 Moreover, the circumstances faced by the father and
his child have drastically changed from the time of any such application.
Fourth, Elian's great uncle and the attorneys argued that father's freedom of movement
has been restricted by his government. We questioned Mr. Gonzalez-Quintana at the second
written submission about this allegation and he indicated that his movements are not restricted by
the Cuban government. We recognize that Cubans do not enjoy the freedom of movement we
have in our own country and that Mr. Gonzalez-Quintana is certainly under a lot of scrutiny by
the press and by the Cuban government. We have not, however, found evidence that he is unable
to move as freely as other Cuban citizens or that his movements are restricted in order to punish
or intimidate him or to influence his parental decisions. We have assumed for purposes of
recommendation that there are limitations on the father's freedom and that he is being moniters
both by the Cuban government and by the Cuban press, but we do not believe that leads to an
inforence that the father's request for his child's return is not genuine.
Finally, the father's loving and active relationship with his child, as established by his
interview and numerous affidavits, coupled with the circumstances under which he now finds his
six year-old son, separated from his only surviving parent in a foreign country immediately
following the tragic death of his mother, strongly suggests that the father's request for his child's
return is genuine. After considering the totality of the information currently before the INS, we
believe that the most reasonable inference is that the father is able to represent adequately the
child's interests in immigration matters.
After weighing the information we have gathered, we believe the father is able to
represent adequately the child's immigration interests. Accordingly, we believe the INS should
give effect to the father's request for the return of his child by treating it as a request for a
withdrawal of Elian's application for admission. Since we believe Elian's father is able to speak
on behalf of his son, we should add that were Elian's father to come to the United States to assert
his parental authority, we believe that the INS would be required to recognize Elian's father's
interests with respect to all immigration matters involving Elian. Elian's father's arrival would
necessarily change the custody arrangement we sought with his uncle in his absence. Under the
INS regulations, a child is released in order of preference to 1) a parent; 2) legal guardian; or 3)
an adult relative. 8 CFR 236.3 In the December 13th interview, our officer in charge indicated to
Mr. Gonzalez-Quintana that visas to visit the United States are generally granted for persons in
his situation. Mr. Gonzalez-Quintana indicated he was uninterested in applying for such a visa.
2 No one has claimed and wc have no indication in INS records that Elian's father ever applied
under the refugee program. Therefore we must assume that the father did not base any such
immigration application on a fear of persecution for himself or his family.
7
000013
B. Elian's asylum application
While an application for asylum and a request for withdrawal of an application for
admission are inherently contradictory requests, the acceptance of a parent's request for the
withdrawal of his child's application for admission does not necessarily preclude a child from
applying for asylum independent of his parent. INS must determine whether it will accept an
asylum application prepared by one of the attorneys claiming to represent Elian and filed under
Elian's signature. The INS has instructed its Texas Service Center to hold the application until
this determination is made.
A child's right to seek asylum independent of his parents is well established. Section
208(a)(1) of the INA permits any individual physically present in the United States or who
arrives in the United States-including any alien who has been brought to the United States after
having been interdicted in international or United States waters-to apply for asylum. While
Section 208(a)(2) of the INA describes certain exceptions to this right, those exceptions are not
applicable to this case. There are no age-based restrictions on applying for asylum. Because the
statute does not place any age restrictions on the ability to seek asylum, it must be taken as a
given that under some circumstances even a very young child may be considered for a grant of
asylum. The INS need not, however, process such applications if they reflect that the purported
applicants are so young that they necessarily lack the capacity to understand what they are
applying for or, failing that, that the applications do not present an objective basis for ignoring
the parents' wishes. Further, the United Nations Convention on the Rights of the Child requires
state parties to:
take appropriate measures to ensure that a child who is seeking refugee status or
who is considered a refugee in accordance with applicable international or
domestic law and procedures shall, whether unaccompanied or accompanied by
his or her parents or by any other person, receive appropriate protection and
humanitarian assistance in the enjoyment of applicable rights.
United Nations Convention on the Rights of the Child, Article 22, 28 LL.M. 1448, 1464 (1989). 3
Neither section 208 of the INA, nor the Convention on the Rights of the Child, howcver,
addresses whether a child may assert a claim for asylum contrary to the express wishes of a
parent. We believe, in keeping with the United States' obligation of nonrefoulement under the
1967 Protocol Relating to the Status of Refugees, certain circumstances require the United States
to accept and adjudicate a child's asylum application, and provide necessary protection, despite
the express opposition of the child's parents.
The Seventh Circuit helped define those circumstances in Polovchak V. Meese, 774 F.2d
731 (7th Cir. 1985). The Court held that the significant rights of parents to direct the life of their
child did not preclude the child from raising an asylum claim, despite the parents' opposition.
The parents' significant interests entitled them, however, to participate in all immigration matters
regarding their child. In that case, the INS accepted an asylum application by a twelve-year old
1 The United States is a signatory to the United Nations Convention on the Rights of the Child,
not a party.
8
000014
boy and granted asylum without notice to the parents. The Seventh Circuit held that the
government had erred because it failed to ensure that both parties received an adequate
opportunity to assert their interests. The Court found it persuasive that the boy, who was twelve,
was sufficiently mature to articulate a desire for asylum apart from his parents' wishes.
In assessing the parents' rights, the Court applied the balancing test established by
Matthews V. Eldridge, 424 U.S. 319 (1976), which provides a mechanism for assessing the level
of procedural due process necessary in a given proceeding. Under that test, the government must
assess the private interest affected by the proceeding, the risk of error inherent in the chosen
proceeding, and the interest of the government in using a particular proceeding. Based on that
analysis, the Polovchak court found that the involvement of the parents must be weighed against
any competing procedural interests, ultimately concluding that the parents' risk - the loss of
their ability to direct their child's interests - significantly outweighed the burdens imposed on
the government by providing the parents with notice and opportunity to participate in the
procedure.
The Supreme Court has applied the same balancing test in assessing the standard of proof
necessary to permit the termination of parental rights. Recognizing "that freedom of personal
choice in matters of family life is a fundamental liberty interest protected by the Fourteenth
Amendment," the Court held that parental rights could not be severed absent clear and
convincing evidence of a basis to terminate. Santosky V. Kramer, 455 U.S. 745, 753 (1982).
The Court noted that the child and the parents "share a vital interest in preventing crroneous
termination of their natural relationship." Id. at 760. Consequently, applying the Eldridge
factors, the Court determined that the private interest affected by proceedings to terminate
parental rights is commanding. the risk of error in using a preponderance of the evidence
standard is substantial, and the countervailing government interest in using the preponderance of
the evidence standard, rather than the clear and convincing evidence standard, was slight.
The issue here -- whether the INS should accept and adjudicate Elian's asylum
application in direct opposition to his surviving parent and legal guardian -- does not result in the
termination of parental rights. It carries the potential, however, of significantly prolonging,
perhaps indefinitely, Elian's separation from his father, resulting in a substantial interference
with the father's parental rights. So, while Santosky is not directly applicable to this case, the
INS must keep in mind the potential interference with the father's parental rights when
determining whether to accept and adjudicate Elian's application for asylum. In Polovchak, the
Seventh Circuit addressed the competing interests of the twelve-year old boy who had clearly
expressed his desire to apply for asylum and of the parents in asserting their parental rights by
requiring the government to allow the parents to participate in their child's immigration matters.
Here, the father may not have an opportunity, in a meaningful way, to participate in the
adjudication of Elian's asylum application bccause his residence in Cuba may preclude him from
travelling to the United States or because he is unwilling to do so. In order to respect the
parental rights of the father, the INS must first determine whether a true divergence of interests
exists with respect to Elian's asylum application. Is Elian truly seeking asylum? If not, would
his return violate United States' international obligations? If the answer to either question is yes,
the INS must adjudicate the application, but in a way that provides the father with a meaningful
opportunity to participate.
9
000015
(i)
Elian's capacity to assert a claim for asylum on his own behalf
While the asylum statute clearly invests a child with the right to seek asylum, the
question of capacity to assert that right is unresolved. The Polovchak case recognized that a
twelve-year-old boy was sufficiently mature to be able to articulate a claim in express
contradiction to the wishes of his parents. It did not specifically reach issues relating to the
capacity of a younger child, but opined that a twelve-year old was probably at the low-end of
maturity necessary to sufficiently distinguish his asylum interests from those of his parents.
Elian's tender age is clearly one of the factors that must be considered in assessing whether he
can assert an asylum claim. At age six, well below the lower end of necessary maturity
described by the Seventh Circuit in Polovchak, we have serious doubts as to Elian's capacity to
possess or articulate a subjective fear of persecution on account of a protected ground. There is
no indication from the information INS has received that Elian possesses or has articulated a
subjective fear of persecution on a protected ground, or that he has the ability to do so.
Moreover, we do not believe that Elian, at age six, is competent to affirm that the contents of his
asylum application accurately reflect his fear of returning to Cuba, if any. We believe, therefore,
that despite his signature on his application for asylum, Elian lacks the capacity to raise an
asylum claim. Thus, we do not consider Elian to be seeking asylum or refugee status on his own
behalf.
(ii)
Objective basis for a valid asylum claim
Capacity is only one of the issues that must be assessed, howcver. In cases involving
unaccompanied minors who may be eligible for asylum, the INS Children's Guidelines,
following the recommendations of the UNHCR, advise adjudicators to assess an asylum claim
keeping in mind that very young children may be incapable of expressing fear to the degree of an
adult. In recommending a course of action for evaluating a child's fear, the Children's
Guidelines note that the adjudicator must take the child's statements into account, but it is far
more likely that the adjudicator will have to evaluate the claim based on all objective evidence
available. The UNHCR notes that the need for objective evidence is particularly compelling
where there appears to be a conflict of interest between the child and the parent. UNHCR
Guidelines, para. 219.
Thus, while Elian appears to be too young to raise an asylum claim on his own behalf, if
objective information demonstrates that there is an independent basis for asylum,
notwithstanding the father's stated interests, the INS would be obliged to consider the claim. In
evaluating whether such information exists, the INS should first consider the allegations
contained in his asylum application.
Elian's application for asylum bases his claim on two grounds. First, the application
describes past persecution to members of Elian's family, including detention of Elian's
stepfather, imprisonment of his great-uncle, and harassment of his mother by the communist
party. Second, the application describes the potential for political exploitation of Elian, based on
a political opinion imputed to him by the Castro regime, resulting in severe mental anguish and
suffering tantamount to torture. The application includes a request for protection under the
10
000016
Convention Against Torture. When attorney Roger Bernstein first submitted the application on
December 10, he reserved the right, in his cover letter, to supplement the application with
supporting documentation. In a meeting prior to the interview of Lazaro Gonzalez, Mr.
Bernstein stated that he has spoken to witnesses who could attest to the allegations of past
persecution and the likelihood of political exploitation.
None of the information provides an objective basis to conclude that any of the
experiences of Elian's relatives in Cuba bear upon the possibility that Elian would be persecuted
on account of a protected ground. Further, while we are troubled about the possibility of
political exploitation and resulting mental anguish, it does not appear to form the basis of a valid
claim for asylum. There is no objective basis to conclude that the Castro regime would impute to
this six-year old boy a political opinion (or any other protected characteristic), which it seeks to
overcome through persecution. See INS V. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812 (1992)
(holding that an applicant for asylum based on political opinion must show that the alleged
persecutors are motivated by the applicant's political opinion).
Finally, the allegation that any political exploitation of Elian requires protection under the
Convention Against Torture is without objective basis. The assertion that the mental anguish
Elian might face would be sufficiently severe to constitute torture under the Convention is purely
speculative. Additionally, to merit protection under the Convention, the applicant must
demonstrate that the torture would be inflicted intentionally. Even if the Castro regime seeks to
exploit Elian for political gain, there is no reason to believe that it has any intention of inflicting
severe mental anguish or any other form of harm recognized by the United States as torture upon
Elian. Further, under U.S. law, the definition of mental suffering that can constitute torture is
very narrow: it must be prolonged mental harm caused by the intentional infliction of severe
physical pain or suffering. the administration or threatened administration of mind altering
substances, or the threat of imminent death to the victim or another person. 8 CFR 208.18(a)
Again, there is no indication that any political exploitation of Elian by the Castro regime would
involve such tactics.
We do not believe Elian has the capacity to form a subjective fear of persecution on
account of a protected ground. Further, there appears to be no objective basis for a valid claim
for asylum or protection under the Convention Against Torture. Therefore, we believe that there
is no divergence of interest between the father and child with respect to Elian's asylum
application which warrants interference with the father's parental authority. Elian's return to
Cuba would not violate the United States' obligations under the 1967 Protocol Relating to the
Status of Refugees, the Convention Against Torture, or the Convention on the Rights of the
Child. The INS may give effect to the father's request for the return of his child by not accepting
or adjudicating the application for asylum submitted under Elian's signature.
Disapproved
Approved for the reasons stated in the memorandum
1/5/2000
11
000017
THE LIBRARY OF CONGRESS
101 INDEPENDENCE AVENUE, SL
WASHINGTON, D.C. 20540-3000
OFFICE OF THE LAW LIBRARIAN
OFFICE: (202) 707-5065
TAX: FAX: (202) 707-1820 (202) 707-1820
LOC # 012-00
LL File No. 99-8098
December 17, 1999
Dear Ms. Podolny:
In response to your request for information on the Cuban laws relating to
custody and legitimation of children, enclosed please find a report we have prepared
for you entitled "Parental Authority in Cuba"
We hope this information is helpful. If we may be of further assistance, please
let us know.
Sincerely,
Norma C. Gutierrez
Senior Legal Specialist
Enclosure
Janice Podolny
Chief, Examination Officer
Immigration and Naturalization Services
425 I St, N.W.
Washington, D.C. 20536
000018
99-8098
PARENTAL AUTHORITY IN CUBA
The requester, the Immigration and Naturalization Services (INS). asks for an opinion on
provisions of Cuban family law relating to custody and legitimation Briefly, the facts of the case are
as follows: A child was born out of wedlock and, when his mother died, the minor was under her
de facto custodianship. According to the requester, the child's custody was not assigned by the
court, but the parents had a friendly, informal shared custody arrangement. The requester states that
the child used to spend at least 50% of his time with his father.'
Specifically, INS seeks to ascertain the following: (1) if the custodial parent dies, whether
the non-custodial parent automatically gets custody; (2) whether it matters that the parents were not
married when the child was born.
The INS has not furnished the Law Library with the birth certificate of the child nor with any
other legal document pertaining to the minor.
The inquiry raises the following issues under the laws of Cuba:
Paternity and filiation
Parental authority
Paternity and filiation
The INS asks for an opinion on the law pertaining to legitimation The Constitution of Cuba²
provides as follows:
Article 37. All children have equal rights, whether they were born in or out
of wedlock Any classification of the nature of the relationship is abolished.
No statement shall be put on record making any distinction regarding births,
or the civil status of parents, in the certificates registering children, nor in any
other document pertaining to the relationship.
1
Telephone interview with Janice Podolny. Chief Examination Officer at the Immigration and Naturalization
Services (Dec. 16, 1999)
2
CONSTITUTION OF CUBA. as amended, Garria Oficial (G.O.) August 1. 1992 translated by Foreign Broadcast
Information Service. FBIS-LAT-92-226-5.
000019
LAW LIBRARY OF CONGRESS 2
The State guarantees the determination and recognition of paternity through
suitable legal procedures.¹
In view of the above article and based on the principle of constitutional supremacy, the old
categories of legitimacy and illegitimacy are no longer operative and, therefore, have no effect in the
reciprocal rights and obligations between parents and children.
The registration in the Office of the Civil Registry of acts concerning the civil status of
individuals-i.e., birth, marriage, death, acquisition and loss of Cuban nationality-is governed by the
Law on the Civil Registry.
Article 55 of the Law on the Civil Registry provides as follows:
Article 55. Parentage of children shall be proved with the certification of the
birth registration issued with the formalities established by law.'
The lack of a birth certificate limits the Law Library's ability to ascertain the parentage
relationship of the father and child in the case at hand The INS states, however, that it has the child's
birth certificate wherein the alleged father is named as the child's father."
Parental Authority
(
Parental authority in Cuba is governed by the Family Code of Cuba' The provisions of the
Code relevant to this inquiry provide the following:
Article 82. Minor children shall be under the parental authority of their
parents."
Article 83. The parental authority belongs to both parents jointly.
3
Id are 37.
.
Lay Na 51 de Julia 15. 1985. Del Registro del Estado Civil (G.O. Aug. 22 1985). art 3.
5
Id are 82.
6
Supro note 1.
7
Código de la Familia, Anotado y Concordado (Divulgación Ministerio de Justicia, Cuba. 1937).
$
w art. 82
000020
LAW LIBRARY OF CONGRESS 3
[Parental authority] belongs to only one parent on the death of the other, or
due to the fact that the exercise of such right has been suspended or deprived
from him/her [by the pertinent authority].'
Article 85. The parental authority comprises the following rights and duties
of the parents:
1)
to have their children under their custody and care; to make an effort to
provide them a stable dwelling and adequate nourishment: to care for their
health and personal hygiene;
2)
to care for the education of their children;
3)
to direct the formation of their children for social life;
4)
to administer and care for the personal and real property [bienes] of their
children in the most industrious way;
5)
to represent their children in all legal transactions and acts in which they have
an interest; 10
Extinction and suspension of the parental authority
Article 92. The parental authority is extinguished:
3)
due to the death of the parents or the child;
4)
due to the child's arrival at legal age;
5)
due to the marriage of the child who has not arrived at the legal age:
6)
due to the adoption of the child."
Article 93. Both parents, or one of them, shall loss the paternal authority
over their children
,
Id art. $3.
10 1d an 85.
" Id ar. 92.
000021
LAW LIBRARY OF CONGRESS 4
1)
when it is imposed as a sanction upon them by a final court decision
in a criminal process;
2)
when it is assigned to one of them or when both are deprived of the
paternal authority by a final court decision issued in a divorce or
aullity of marriage proceeding.¹²
Article 94. Parental authority is suspended by incapacity or absence of the
parents when declared by the court."
Article 95. The courts, taking in consideration the circumstances of the case,
may deprive both parents, or one of them, of parental authority, or suspend them from
its exercise in the cases of articles 93 and 94, or by a judgment issued in a trial
brought about by the other [parent] or the government attorney [fiscal], when one or
both parents:
1)
gravely fail[s] to comply with the duties provided in article 85;
2)
induce[s] the child to perform an act which constitutes a crime;
3)
abandon[s] the national territory and, thus, their children:
4)
engage[s] in a behavior which is antisocial [conductu viciosa],
corruptive, criminal or dangerous, which is not compatible with the
exercise of parental authority;
5)
commit(s) a crime against the person of the child."
Conclusion:
Articles 82 and 83 of the Family Code of Cuba grant the parental authority of children to both
parents jointly.
Article 83 grants parental authority to only one parent on the death of the other, or when such
right has been suspended or deprived to one of the parents by the pertinent authority.
In the case at hand, as stated above, the Law Library does not have the birth certificate of the
minor. Assuming that the parentage relationship between the father and child has been legally
12 is art. 93.
1) Id. art. 94.
14 Id. art 95.
000022
LAW LIBRARY OF CONGRESS 5
established. and assuming that no prior ruling has been issued by a Cuban court under Articles
94 and 95 of the Family Code depriving or suspending the right of the child's father to
exercise the parental authority granted to him by articles 82 and 83 of the Code, the father has
never lost it. Furthermore, if the above two assumptions are correct, under article 83 of the
Family Code, such parental authority right belongs entirely to the father from the moment that
the child's mother died.
Prepared by Norma C. Gutiérrez
Senior Legal Specialist
Law Library of Congress
Legal Research Directorate
December 1999
000023
TOTAL P.18
ATTORNEYS AT LAW
Turnberry Plan
2875 NE 1915 Street Penthouse 18 Avenue FL 33130
Miami-Dade (305) 692-8888 Broward (954) 349-499-
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M. Kail Hackley"
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Roger A. Beneficin"
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Lines Oxberg-Braun"
Florida & P2 Bars
The Honorable Janet Reno
January 5. 2000
Attorney General of the United STATES
10* and Constitution Avenue, N.W.
Washington, D.C. 20530
Dear Attorney General Reno:
We write to you on Elian Gonzalez' hehalf. to ask you to review and reverse the decision
announced today by INS Commissioner Daris Meissner. That decision strips Elian of legal
representation, and denies him a hearing on his request for political asylum If is unfair and
unconstitutional, and was reached without according Elian any due process of law. This leaves
him alone and unprotected by the laws of our nation
Elian Goazalez has a constitutionally protected right to apply for political asylum regardless of
his age or his father's statements. The decision appears to be an arbitrary one, based largely on
sectes interviews conducted with Juan Miguel Gonzalez in Cuba. It seems to be predicated on the
untested view that Gonzalez is free from duress in Fide! Castro's Cuba, and addresses only
Elian's father's best interests. not Elian's. L also contradicts the Commissioner's own policy,
directives and regular practices.¹
A decision of this importance should be reached by the highest officials of this country, not by a
lower official. even one as distinguished as Commissioner Meissner, and in accordance with due
process of law. We ask that you review the process and merits of this decision, and that you
consult with the President of the United States.
We look forward to working with you to assure Elian duc process of law.
Sincerely,
Roge
a.
SPENCER 400 EIG
LINDA OSBERG-BRAUN
ROGER A. BERNSTEIN
Hackley. Bernstein & Osberg-Braun, P.L.
Attorney-st-Law
CC:
The Counsel to the President of the United States
I HQINS 50/5.12 96 Act054 of August 21. 1997 states. "When deciding whether to permit the minor to
/ withdraw his or her application for admission. officers must also make every effort a determine whether
the minor has a Year of persecution or return to his or ber country. If the minor indicates 8 (ear of
persecution or intention 9 spoly for as ylum. or if there is any doubt, especially in the case of countries with
known human rights abuses or where urmoil exists. the mutior should be placed in removal proceedings
under section 240 of the Act
000024
Office of the Attorney General
Eashington, B. e 20530
January 12, 2000
Linda Osberg-Rraun, Esq.
Roger A. Bernstein, Esq.
Hackley. Bernstein & Osberg-Braun, P.L.
Turnberry Plaza
2875 NE 191" Street
Penthouse 1B
Aventura, Florida 33180
Spencer Eig, Esq.
420 Lincoln Road
Suite 379
Miami Beach, Florida 33139
Dear Messrs. Big and Bernstein and Ms. Ocberg-Braun:
I have reviewed your letter of January 5 concerning the case
of Elian Gonzalez, as well as the issues that Mr. Bernatein
raised when he and others met with me on the evening ot January
7. including the fact that you have filed a custody action on
behalf of Lazaro Gonzalez in the Miami Dade County Circuit Court.
I understand that court has granted a temporary protective order
to Lazaro Gonzalez. while I am always open to considering new
information that might arise, I am not currently aware of any
basis for reversing Commissioner Meissncr's decision that Juan
Conzalez Elian's father--has the sole authority to speak for his
son on immigration matters.
As you know. the United States is not a party to the action
you have filed in Florida court, nor is it named in the temporary
protective order that the Florida Circuit Judge issued January
10. Indeed, the question of who may speak for a six-year-old
child in applying for admission or asylum is a matter of federal
Immigration law. Nothing in the temporary protective order
changes r.he government's determination that Juan Gonzalez can
withdraw applications for admission and asylum relating to Elian
and that he has donc so. In the Department's judgment, the
Florida court's order has no force or effect insofar as INS's
administration of the immigration laws is concerned.
In our meeting last Friday evening, Mr. Bernstein said that
the INS itself had originally announced that state courts could
resolve Elian's status in the United States. I think it is
important to clarify, therefore, this Department's views about
000025
Letter to Spencer Eig, Esq., et al.
Page 2
the possible role of state courts in a case such as this. In the
first few days after Elian's arrival in the United States, when
it was suggested that INS's placement of Elian in the care of his
great-uncle amounted to a grant of custody, INS indicated that it
could not grant custody and that such a request would have to be
put before the state courts. As the case evolved, it became
clear that Elian's father, who was still in Cubs, was asserting a
parental relationship with Elian and had adequately expressed his
wish, under the immigration laws, for Elian's petition for
admission to this country to be withdrawn. In these
circumstances, INS was abliged to determine whether Line father
was the appropriate person to speak for Elian on immigration
issues. That question, as I have said, remains one of federal,
not state, law. The Commissioner's resolution of that question--
as well as of other immigration matters- may be challenged, if at
all, only in federal court. We are prepared to litigale in that
forum. Accordingly, Commissioner Melsuner has determined that
the January 14 date should be extended to accommodate any federal
court proceedings. This little boy has been through SO much. and
it is therefore imperative that all of us do what we can to
resolve hie case as soon as possible.
With respect to the issues raised in your January 5 letter,
I would make the following observations. Elian Gonzalez is a
six-year-old child who hae loct his mother. As a general matter,
when dealing with a child this young, the immigration law. like
other areas of law, looks to the wishes of the surviving parent.
One circuit court case indicated that a twelve-year-old child may
apply for asylum over the wishes of his parents in some
circumstances. See Polovchak V. Meese, 774 F.2d 731, 736 (7th
Cir. 1985) That case also makes it clear, however, that a
twelve-ycar-old child is "near the lower end of an age range in
which a minor may be mature enough to assert certain individual
rights that equal or override those of his parents."
Commissioner Maissner has determined that, under applicable law,
Elian is too young to make legal decisions for himself, and that
his father has the legal authority to speak for him in
immigration matters.
Commissioner Meissner reached her decision through a careful
and thorough process. All of the available information was
considered, including the reports from two lengthy and private
interviews with Elian's father, Juan Gonzalez, and the report
from the December 20 meeting with Elian's great uncle and cousin
and each of you. Commissioner Meissner also carefully considered
the allegation that Juan Gonzalez was under some form of
coercion, and is confident, based on her representative's direct
contact with Juan Gonzalez, the father's very close relationship
000026
Letter to Spencer Eig. Eoq. ct al.
Page 3
with Elian, and the other evidence provided, that the father has
expressed his true wishes in asking that his son be returned to
him.
The INS does not rule out the possibility of a case in which
an asylum application would be accepted from a young child
against the wishes of a parent. In that regard, the INS
Guidclines for Children's Asylum Claims provide a useful
framework. In particular, they provide for a review of the
objective circumstances relating to possible torture or
persecution in the child's home country in cases where a child is
too young to express a competent view on these matters. The INS
reviewed the asylum application you sought to file on Elian's
behalf, considered all other relevant available information, and
found no objective basis for overriding the father's wishes for
his son. In particular, the INS found no credible information
indicating that the child would be at risk of torture or
persecution if returned to his father, and thus concluded that it
had no reason to question the father's decision not to assert an
asylum claim.
The specific language you cite from the INS Inspector's
Field Manual is not applicable here. It is designed to protect
an unaccompanied minor who arrives here illegally, has no parent
to speak for him, and is also capable of speaking for himself.
In those circumstances, if the child indicates a wish to return
voluntarily to his country of origin, he would normally be
allowed to withdraw the application for admission and be sent
home, rather than being placed into removal proceedings. If the
child expresses a fear of persecution. however, the Field Manual
provides that the child should be placed not in expedited removal
proceedings, but rather in conventional removal proceedings
before an immigration judge.
Nothing in the field guidance suggests that a father's
wishes regarding his six-year-old child should be overridden. On
the contrary. in a related provision you do not cite, the Field
Manual makes it clear that the first responsibility of the INS
when confronted with an unaccompanied minor is to attempt to
remedy the situation by finding the child's parent or legal
guardian, even if that person is outside the United states. It
is only when that effort is unsuccessful that the Field Manual
provisions you cite even come into play.
Even if it were applicable in this situation, the provision
you cite would not answer the basic question presented by this
case: Who speaks for the child? If Elian is not competent to
"indicate() a fear or persecution or intention to apply for
000027
Letter to Spencer Eig. Esq., et al.
Page 4
asylum," then someone would have to decide in his behalf whether
to do so, That someone, under universally accepted legal norms,
is his father. And his father has stated, in no uncertain terms,
that he does not wish for Elian to make an asylum claim. As
noted above, the INS considered relevant information, including
the statements of Elian's Miami relatives and information in the
asylum application, and determined that 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. It is not appropriate to commence removal
proceedings against this six-year-old boy. The Field Manual does
not suggest otherwise.
Once again, it is my strong hope that we can work together
to resolve this child's status as soon as possible.
Sincerely,
000028
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
ELIAN GONZALEZ,
)
)
PLAINTIFF,
)
)
V.
)
) DECLARATION OF
IMMIGRATION AND NATURALIZATION SERVICE,
) LIEUTENANT
) COMMANDER
) JAMES O. FITTON,
) USCG
DEFENDANT.
)
)
)
1. : am Lieutenant Commander James O. Fitton, U.S. Coast Guard,
currently assigned as the Senior Duty Officer at the U. 5.
Coast Guard Seventh District Command Center in Miami,
Florida. My immediate responsibility is to supervise the
Coumand Center Controllers handling all U.S. Coast Guard
operational cases in the area from South Carolina to Florida
including Puerto Rico and the U.S. Virgin Islands.
2. A: about 7:00 am or November 25, 1999, the Miami-Dade Police
Department reported to the Coast Guard that two Cuban
migrants had landed at Key Biscayne. Upoil debriefing the two
migrants, it was reported there were fourteen other migrants
unaccounted for. Coast Guard 6592, a helicopter. was
launched to search and a Coast Guard Station Miami Utility
Boat was launched to conduct a shoreline search of Key
Bascayne. A Coast Guard Air Station Miami HU-25, a fixed
wing aircraft, was diverted to search from Islamorada to Boca
Ration, Florida.
3. During the search, at about 8:45 a.m. on November 25, Coast
Guard Station Fort Lauderdale reported that a 5-year-old boy
clinging to an inner tube approximately two nautical miles
off of Commercial Blvd (26-11N, 080-03W) was located. The
boy was suffering from hypothermia and dehydration. A Coast
Guard Station Fort Lauderdale utility boat recovered the boy
from the fishermen who found him and transported him to EMS
for further transfer to Hollywood Memorial Hospital. The body
of an elderly woman was located approximately three nautical
miles east of the five-year-old boy November 25. Coast Guard
search crews recovered six bodies November 26.
4. A more detailed debrief of the two migrants by the Border
Patrol revealed that only four migrants remained unaccounted
for. The active search for survivors was suspended November
000029
27 The two adult migrants also claimed that a group of
fourteen departed Cardenas, Cuba or November 22, 199 at 4:30
a.m. in a 16 foot motorboat. On Tuesday, November 23, the
motorboat capsized and seven of the migrants drawned. The
remaining seven were split into two groups. Four adults and
the child clung to one inner tube and the other two clung to
a separate inner tube. Eventually the two groups drifted
apart. The two (male and female) were eventually located by
a fisherman and were brought to Key Biscayne and turned over
to Miami-Dade Police Department.
5. Per 28 U.S.C. 51746, I declare under penalty of perjury that
the foregoing is true and correct. Executed on December 21,
1999.
James O. Pitton fther
Lieutenant Commander
U. S. Coast Guard
Senior Duty Officer
Seventh District Command Center
000030
TOTAL P.03
[an error occurred while processing this directive]
NEWS
Published Monday: December 13 1999, in the Miami Herald
The deadly voyage: How it happened
18-month drama began with hope, ended in tragedy
BY ELAINE DE VALLE
[email protected]
The international incident that has
it
pitted Miami exiles against Cuban
SEE ALSO
en español,
leader Fidel Castro in a custody
battle over 6-year-old rafter Elian
Gonzalez began on a beach east
of Havana during Thanksgiving
week.
That was when 14 people waded through
shallow waters off Cardenas, pushing a 17- to
20-foot boat far enough from homes so they
couldn't be seen or heard. Destination: Miami.
Only three people made it. including Elian, who
was rescued off Fort Lauderdale by two
cousins who were fishing.
IN A NEW LAND: Lazaro Munero,
Lost in the debate over whether the boy should
nght, with his uncle Jose, who
be returned to his father in Cuba or left in
crossed the Florida Straits with him
Miami with relatives are the stories of the 11
on his first voyage from Cuba.
others - who they were and why they risked
the deadly voyage. Through interviews with two
adult survivors and the family of the dead in
this country and Cuba. pieced together with the
account of the U.S. Border Patrol, The Herald
has tried to re-create the tragic journey.
It IS a story that dates back nearly 18 months,
when Lazaro Rafael Munero Garcia, organizer
of the ill-fated trip. first came to South Florida.
The night of June 29. 1998. after landing near
WSVN
mile marker 71 in the Keys. he told Border
YOUNG SURVIVOR: Elian Gonzalez
Patrol agents he had come on a 12-foot boat
rests on an ambulance stretcher
with three other men.
shortly after his Thanksgiving rescue
off Fort Lauderdale after a voyage in
Munero, then 23, spent the night at the Krome
which two adults also survived but 11
detention center and was released into the
others were lost
community the next day. He went to live in
Flagami with his uncle, Jorge Munero, his aunt,
Boat's last victime aided
Mana Lopez Munero, and their young daughter
Elian
in a small addition they rent behind another
kid at
home on Southwest Third Street But Lazaro
Munero couldn't bear being apart from his
Disney
family.
Boy's high-profile case puts
lawyer in spotlight
"From the beginning. he would cry for his
Previous coverage
parents, his wife and the boy." Jorge Munero
said
Though his family doesn't believe that Lazaro Munero was legally married to
Elian's mother. Elizabet Brotons Rodriguez, the two lived together for years.
"He considered her his wife." Jorge Munero said. "He lived for her. He couldn't
000031
12'13 7:1
Arianne Horta Alfonso and her boyfriend. Nivaldo Fernandez Ferran, the only
adult survivors of the voyage. also found out about the trip. They told U.S.
Border Patrol agents that they offered Lazaro Munero $1,000 to take them.
Jorge Munero. Lazaro's uncle in Miami, said the two survivors are the only
passengers from the ill-fated vessel whom he didn't know in Cuba before he left
in 1992. He is sure his nephew didn't charge anyone for the trip, all of them
being family in one way or another. Elizabet was related to the Rodriguez clan
through her niece Carmen, the wife of a third Rodriguez boy, Orlando, who left
Cuba last year.
More likely, he said, Lazaro feared that if he didn't take the couple, they would
spill the beans.
SETTING OUT
About 4:30 a.m. Nov. 21, the 15 would-be emigrants made their way to Sierrita,
a spot on the shore a block or so from a shipyard where the tin houses are far
enough away so that no one can see you. There, a beaten path in the shrubbery
opens out to a rough shore.
They carried water, bread. crackers. cheese and previously boiled hot dogs.
Like many rafters before them, they also took three inflated inner tubes - just in
case they needed them - which they tied and trailed behind the boat.
Soon. the voyagers had trouble with the outboard engine and returned to the
Cuban coast for repairs. Arianne Horta dropped off her daughter, Estefani, 5.
because she feared the trip would be too dangerous. Then, believing they had
the problem fixed. the group set off again in the dawn that Monday.
The Cuban Foreign Ministry said in a statement three days after the survivors
were found that it had alerted the U.S. Coast Guard about the overloaded boat
headed for U.S. waters. The Cuban Border Patrol, it said, had spotted the boat
Monday morning leaving the waters off Cardenas and patrol agents repeatedly
warned the passengers to turn back.
U.S. Coas: Guard officials acknowledged getting a telex from their Cuban
counterparts and said agency planes and cutters were dispatched to search for
the boat. They found nothing.
BAD WEATHER
Late that Monday from all accounts, the group ran into foul weather and the
engine quit again. They drifted. bailing water that was coming in over the sides
in the five-foot waves, until Tuesday night - it was dark, survivors said - when
the boat capsized.
They clung to the hull for a while and righted it again, but the boat kept taking on
water. Fearing they would sink, the group decided to use the inner tubes.
Seeing that one was flat. they formed two groups on the others - women and
the boy on one, the men on the other.
Then, one by one, they started slipping into the sea.
It is believed that Lazaro Munero and his brother Jikary were the first to go. One
of them decided to try to swim for land and send help. When he ran into
difficulty. his brother followed. When both seemed to struggle, a third man swam
off to help them.
None of the three were ever seen again.
Perhaps the third man was their father, Rafael. Shortly after, Horta said, a
woman who learned that both of her sons were dead decided she had nothing
left to live for - and let go. It is believed that the woman was Marielena Garcia,
Munero's mother Horta tried to grab her as she and others screamed for her to
hold on But it was too late and they were all weak.
000032
12/13/99 7.
The next day Horta and Fernandez said they saw at least two big ships. They
aren't sure if they were cruise ships or freighters. They screamed and waved --
but the vessels didn't stop
At that point, Horta. the boy and another woman - perhaps Barrios, who is
believed to have been the last one with Elian remained on one inner tube, and
Fernandez was on the other. Later Wednesday, Fernandez became delirious
and started to lose consciousness. so Horta untied herself from one inner tube
and swam to the other at this point they were still connected by a piece of
rope. She slapped him back to life.
That night, they could see little lights in the distance, and they were sure it was a
shore. They tried to swim, but the currents kept pushing them back. Tired, weak
and thirsty, they decided to rest for a while, keeping their eyes on the horizon.
In the night, they also became separated from the other inner tube, which
disappeared. It could have been when Horta and Fernandez fell half-asleep for
a short while; they couldn't keep their eyes open. The next morning, when they
saw some lights, the two started to kick and paddle toward the shore. They saw
boats, a marina. They were just off Key Biscayne.
A FISHING TRIP
Meanwhile, Donato Dairymple was at the controls of his cousin's boat, setting off
from the dock behind his cousin's house on the Intracoastal Waterway in
Pompano Beach for a fishing trip. Sam Ciancio had called him the day before to
invite him. It was a rare treat. The two hardly ever see each other - maybe once
a year. Dairymple said.
"He said he wasn't going to go if I didn't go. I canceled two jobs to do it," said
Dairymple. who has a small housecleaning business and is in the middle of
moving.
They left about 7 a m. on Thanksgiving Day.
Ciancio told Dalrymple to look out for floating debris under which fish sometimes
gather
"We were just out of Lighthouse Point. and I was zigzagging southeast at an
angle." Dairymple said. "There were three- to five-foot waves. It was rough out
there. very rough."
About 8:30 a.m. Dairymple spotted something - a dark thing. circular in shape.
They neared it and Ciancio started baiting the poles. when Donato noticed what
he thought was a person inside the floating black rubber doughnut. He saw what
he thought was a hand and the top of a man's head with dark, wet hair.
"Nah," Ciancio said. still baiting.
"I'm telling you. Sam, there's somebody in there."
Ciancio looked again. "Isn't that a sick joke? That somebody could tie a doll to
an inner tube?"
A CLOSER LOOK
Just then, there were tugs on the poles and both men began to reel in their
catch. As Ciancio kept fighting with a fish on the end of his line, Dalrymple lost
the bite on his. "So I went back to the steering wheel to get a closer look,"
Dairymple said. "I didn't think it was a dummy in there."
Something kept nagging at him. "I'm telling you there's someone in that inner
tube. I think he's dead," he yelled to his cousin. Then, as if on cue, he saw a
hand move. It slipped a little, then reached up again to get a better grasp.
His cousin told him to pull the boat over as he stripped in seconds and jumped
into the water When he pulled the boy in, they couldn't believe it.
000033
12/13/99 7
"I asked him, 'Do you speak English? and he didn't answer," Dairymple said.
"He didn't look American. so I asked. 'Tu habias español?' and he said, 'SI.' But
real softly, like a little sigh.
The boy never cried "He never showed any tears or signs of being scared.
even though he's probably been through hell and back and I'm sure he's never
seen two Americans before." Dairymple said, his eyes widening as if he were
telling the story for the first time.
The man with the tattoos covering both forearms cradled the weak foreign boy in
his arms anyway.
"While my cousin is on the phone. I'm kissing his face, his forehead and his
cheeks and his chin, and holding him," Dalrymple said, crossing his arms on his
chest as if he still held the child.
The exhausted boy immediately fell asleep, he said.
A Herald staff writer in Cuba contributed to this report.
[an error occurred while processing this directive]
Contact Us
Cocyright 1999 Miami Herald
000034
12/13/99 7:51
To: Janet Reno
The retention of Elian in the United States adds to the tragedy of the family over the loss
of Elizabeth For us. the significance of returning Elian to his family will honor his
mother's memory, return the family to normality and, more importantly, return Elian to
the normality of life with his father, brother, family, friends at schools, his toys, dog and
parrot.
Wc are grateful to you for affirming Juan Miguel's paternity rights, but we have felt
frustrated over delays in complying with this right. We ask that you return Elian to his
immediate family and not to his distant family where there had not been a previous
relationship. This is the reason for being here, and wc thank you for this interview.
We only have Sunday to see Elian and we not only want to see him, but we also want to
return with him to Cuba.
Sincerely,
Mariela Quintana Garrido
Raquel Rodriguez Rodriguez
22 January 2000
000035
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
ELIAN GONZALEZ
)
)
Plaintiff/Petitioner,
)
)
V.
)
)
JANET RENO, Attorney General, et al.,
)
)
Defendants/Respondents.
)
)
)
DECLARATION OF EDWARD AGUNDEZ
I, Edward Agundez, declare that:
1.
I am a supervisory immigration inspector (SII) employed by the United States
Immigration and Naturalization Service (INS) in Fort Lauderdale, Florida. My duties
include the supervision of immigration inspectors and the enforcement of the nation's
immigration laws as those laws pertain to aliens seeking admission to the United States.
2.
This declaration is based upon my personal knowledge and information obtained
from other individuals employed in law enforcement.
3.
On November 25, 1999, at about 10:40 AM, I received a telephone call from
Senior Border Patrol Agent (SPA) Jose Lopez. SPA Lopez advised of the rescue of a
child found floating on an inner tube approximately three miles from the Port Everglades
port of entry. SPA Lopez advised that the child had been transported by emergency
medical service to Hollywood Memorial Hospital and requested that I meet him there.
4.
At about 11:15 AM, I met SPA Lopez and Border Patrol Special Agent (SA)
Verne Eastwood at Hollywood Memorial Hospital. At this time, SPA Lopez and SA
Eastwood briefed me concerning the details of the child's rescue. SPA Lopez and SA
Eastwood advised that the child had been found at sea by two fishermen. He was brought
to the United States Coast Guard (USCG) station at Port Everglades/Fort Lauderdale,
Florida
5.
At about 12 noon, I provided the information concerning the child's arrival in the
United States telephonically to INS officials in my chain of command.
6.
At the hospital, SPA Lopez and I spoke with individuals who claimed to be the
child's family members. One of the individuals, Mr. Lazaro Gonzalez, stated that he was
the child's uncle. When SPA Lopez provided Lazaro Gonzalez with a photograph of the
000036
child, Lazaro Gonzalez identified him as Elian Gonzalez. Lazaro Gonzalez then
produced his own photograph of the child with his natural parents purportedly taken in
Cuba.
At about 1:00 PM I was contacted by Simon Nader, the INS port director at Port
Everglades/Fort 7. Lauderdale, Florida. Due to health concerns (the child was being treated
in the hospital emergency room) and because the location and identity of the child's
parents were unknown, the decision was made to defer the child's immigration inspection
for 30 days pursuant to 8 C.F.R. $235.2(e). The paperwork was completed at about 2:00
p.m. The I-546 was served upon Lazaro Gonzalez.
I informed the child's attending physician that when the child was ready to be
released 8. from the hospital, that he should only be released to his aunt or uncle, Mr. and
Mrs. Lazaro Gonzalez.
I declare under penalty of perjury that the foregoing is true and correct. Executed
this2C day of December. 1999.
Edward & Carly
Edward Agundez
Date December 20, 1999
2
000037
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
ELLAN GONZALEZ
)
)
Plaintiff/Petitioner,
)
)
V.
)
)
JANET RENO, Anomey General, et al.,
)
)
Defendants/Respondents
)
)
)
DECLARATION OF VERNE EASTWOOD
L Verne Eastwood. declare that:
1.
1 am a special agent in the anti-smuggling unit of the United States Border Patrol.
In this capacity I am responsible for investigating incidents involving the smuggling of
aliens into the United States. When appropriate, my unit refers suspected alien smugglers
to the United States Attorney for criminal prosecution. The aliens encountered during
these investigations are typically referred for administrative removal proceedings
pursuant to the Immigration and Nationality Act.
2.
This declaration is based upon my personal knowledge and information obtained
from other individuals employed in law enforcement.
3.
On November 25, 1999. at about 9:10 AM, the United States Coast Guard
(USCG) in Fort Lauderdale, Flonda notified the Border Patrol station at Pembroke Pines,
Florida that a 5-year-old child had been brought ashore in Fort Lauderdale. The child was
reported to be in very serious condition.
4.
AS there was conflicting information concerning the whereabouts of the child, the
Border Patrol contacted the Broward County Sheriff's Department (BCSD) which was
believed 10 have additional information. The BCSD advised that the child had been
rescued by two fishermen and was being transferred to the USCG station at Dania Beach.
Florida (near Fort Lauderdale).
5.
Senior Border Parrol Agent (SPA) Jose Lopez and myself responded to the USCG
station at Dania Beach to investigate the circumstances surrounding the arrival of the
child.
6.
Upon arrival the USCG station, officers of the BCSD Marine Unit advised SPA
Lopez and myself that the child had been transported to Hollywood Memorial Hospital
000038
by ambulance. They advised further that two fishermen. Donato Dalrymple and Sam
Ciancio, had found the child floating on an inner tube south of Hillsboro Inlet.
7.
The commanding officer at the USCG station at Dania Beach, Nicole Nancarrow,
confirmed the information provided by the BCSO officers. She advised that two
fishermen located the child and reported their discovery and location to the USCG at
Dania Beach via radio. Commander Nancarrow advised that the fishermen were
instructed by the USCG to bring the child to the USCG station at Dania Beach. While
enroute to the station, the fishermen were met by a USCG cutter which had been
dispatched. The child was transferred to the cutter and brought to the USCG station.
8.
Upon receipt of this information, SPA Lopez and I notified the United States
Immigration and Naturalization Service (INS) inspections unit at Pon Everglades. Florida
of the circumstances surrounding the child's arrival. We spoke with Supervisory
Immigration Inspector (SII) Edward Agundez and gave him directions to Hollywood
Memorial Hospital.
9.
SPA Lopez and I proceeded to Hollywood Memorial Hospital and arrived there at
about 11:30 AM. Upon arrival at the hospital. we were advised of the child's medical
condition by hospital staff. The hospital staff advised further that there were several
people in the waiting area who were claiming to be related to the child. SU Agundez was
already at the hospital when we arrived.
10.
SPA Lopez and 1 attempted to obtain biographical information from the child but
he was unresponsive at that time. SPA Lopez photographed the child.
11.
SPA Lopez and I then spoke with the individuals who were claiming to be family
members. One of the individuals, Lazaro Gonzalez, claimed to be a cousin of the child's
father. SPA Lopez and SII Agundez spoke with those claiming to be family members
concerning the condition of the child and the circumstances surrounding his arrival.
Lazaro Gonzalez. and his spouse, Angela Maria Gonzalez, identified the child as Elian
Monzalvo-Gonzalez and provided information concerning the child's parents and the
parents' place of residence in Cuba
12.
Those claiming to be family members were shown a photograph of the child taken
by SPA Lopez and they confirmed that the child was Elian Monzalvo-Gonzalez.
13.
SPA Lopez and I departed the hospital at about 12:30 PM. This was the last
contact that we had with Elian Monzalvo-Gonzalez.
I declare under penalty of perjury that the foregoing is true and correct. Executed
this
day of December, 1999.
Verne Eastwood
2
000039
U.S. Department of Jusdice
UNDER
Immigration and Naturalization Service
DEFERRED INSPECTION
You.
ELIAN GONZACEZ
have not established conclusively that you are admissible to the United States: therefore. YOU ARE
ORDERED TO APPEAR IN PERSON AT THE BELOW INDICATED ADDRESS ON THE DATE
AND TIME CITED. A final determination will be made then concerning whether and under what
conditions you will be admitted to this country for the purpose you have indicated. FAILURE
TO APPEAR AS ABOVE ORDERED MAY RESULT IN YOUR BEING TAKEN INTO CUSTODY
BY AN OFFICER OF THIS SERVICE.
Your passport has been retained. It will be returned
to you in person when you report to the address indicated below.
Reporting Address:
Reporting Date & Time
U.S. IMMIGRATION AND NATURALIZATION SERVICE
7880 EISCAVNE ECID
M.AM, FL 33138
DEC 1000 23, 1999
Att. DEFERRED INSP.
0900 am.
Speci fic Reason(s) for Deferral of Inspection:
Documentary Deficiency:
Passport
Visa
FORM 1-151/1-551
Non-bonafide Nonimmigrant (See details below)
For M/S Bond Posting (See details below)
DETAILS:
Applicant Speaks SPANISL
Abare subject minor was Resurally two fisher men ON 11/25/99 (Language)
3 miles out to Sea From the Port Everglules Pat OF Entry'.
Station MINOR pickup by EMS UNIT. Takento Hollapinood childrents IN
Subject was taller X- the Port Evenglabes Coast Gund
Hospital on Johnson ST. Subject minor had NO Doct's ant or
whim. was Released (ustody oF his uncle &
m.a.t mas Gonzalez both ERC' holdens. any other Information
Staple duplicate copy VI
Agentwithe Bonder putrol,on Barder Patrol used agent
Required Contact agent Eastwood. 954-444-2536 special
Lopez 954-768-3450-Bespro They were both onsite when
minior was brought to USGG station/PEU. DeFFered AS
per APP NEDER.
305-541-9039
of Signature of recommending officer
Part Everglates, 11/25/99
Deferrung for
Dak
Eg. Supervisory Office ENSZZ
FORM 1.546 (REV. 411-83Y
(NOTE: Instructions os Reverse)
000010
-
043849814 02 DeFFered
I
immigration -AS
INS!
Naturalle 11.00 Service
1.44
PEU#3
Affirm Record
11/25/99
GONZALEZ Name NICNZETYO
Birth - ..
ELIAN
44
CULA Caunir.
of -
MGLE
3
Alline and Might Name:
SEG
Only WINE you Brarded
Cuble
when 7.60 Washington
Date
Address wise in Lawer: 1 J.niner and these
2319 NW 2ND ST
I
61, and THE
MIGMI FL
000041