An article about the relatives' legal options from the Miami Herald.
Published Friday, June 2, 2000, in the Miami Herald
Legal team's chances are fading,
analysts say
JAY WEAVER
jweaver@herald.com
The Miami lawyers for Eli n Gonz lez vowed to carry on their fight to win an
asylum hearing for the Cuban boy, but immigration experts said their chances
of taking his case all the way to the U.S. Supreme Court are slim after their
latest legal loss Thursday.
The experts stressed that the three-judge panel of the 11th Circuit Court of
Appeals broke no new legal ground with its ruling, which reinforced the federal
government's refusal to hear the 6-year-old's asylum application because his
Cuban father wants him to return home.
They said the ruling provided little reason for the full 11th Circuit Court or
U.S. Supreme Court to consider any appeal by the Miami relatives' lawyers
because the case's fundamental question is a narrow one with limited impact.
The question -- does an alien child as young as Eli n have a right to apply for
asylum? -- is not likely to interest the high-court justices, they said.
The Supreme Court tends to consider only cases, such as abortion-rights
disputes, that have broad effects on American lives or raise conflicts in the law.
``The Supreme Court doesn't spend their precious time with issues that are not
likely to arise again and where there are no conflicts among the [appellate]
courts,'' said Yale University Law Professor Peter Schuck.
Schuck and other immigration experts, who have questioned the boy's right to
apply for asylum since he was rescued off the Florida coast in November, said
his legal team's arguments have failed to hold sway over the courts.
``They have the same options that they had before as far as legal arguments
are concerned, so in that sense their legal options have not run out,'' Schuck
said. ``But since those arguments were not terribly persuasive to begin with, I
doubt their arguments would be upheld on further appeal.''
LONG BATTLE
Alex Aleinikoff, a professor at Georgetown University Law Center, said the
boy's case was destined to die before the Supreme Court because of the
persistence of his Miami lawyers in what he and others see as a hopeless legal
battle.
``The informed legal observers from beginning of this case said they would
have a hard time in the state court and in the federal court,'' Aleinikoff said.
``Both of those predictions came true.''
Aleinikoff, a former INS general counsel, described the 11th Circuit's ruling as
``ordinary.''
While the three-judge panel recognized that immigration law allows any alien
to apply for asylum, it acknowledged the INS has the power to interpret its
meaning on a case-by-case basis -- especially because the law says nothing
about any age restrictions.
The 11th Circuit Judges James Edmondson, Joel Dubina and Charles Wilson
supported the INS's ``executive discretion'' on immigration laws passed by
Congress. They upheld U.S. District Judge K. Michael Moore's March 21
decision.
David Martin, another former general counsel of the INS, said the 11th Circuit
ruling was in ``the great tradition'' of federal courts deferring to agencies when
it's not clear how a law should be administered. In this case, the ``gray area''
was how, and in what circumstances, a juvenile can apply for asylum.
TEAM'S ARGUMENT
The Miami legal team argued that the INS did not follow the law, but made up
policy as Eli n's case unfolded over the past six months. But legal experts said
that argument has failed them so far.
Kendall Coffey, one of the lead attorneys for Eli n's Miami relatives, said the
legal team will consider a few alternatives for its appeal. The lawyers will either
ask the three judges or all 12 members of the 11th Circuit Court to rehear
their case within a two-week deadline. Or, they will take their appeal directly
to the U.S. Supreme Court.
On Thursday, the lawyers asked the Supreme Court to grant a preliminary
injunction to block Eli n's return with his father to Cuba during further appeals.
But they put that request on hold after learning that the appellate court's
previous order barring the boy's return will be in effect for another 21 days.
TWO APPROACHES
Coffey said the lawyers can argue that the appeals court erred in siding with
the INS in denying Eli n's asylum applications, or they can claim the agency
violated Eli n's due-process rights under the Constitution.
But the three-judge panel concluded that Eli n's ``due process claim lacks
merit and does not warrant extended discussion.''
The judges cited a previous 11th Circuit opinion, affecting thousands of Haitian
refugees, that they say settled the question in 1984. The ruling in Jean vs.
Nelson read: ``Aliens seeking admission to the United States . . . have no
constitutional rights with regard to their applications.''
The following year, the Supreme Court consider the appeal and affirmed that
decision, but not on constitutional grounds. The justices looked narrowly at
immigration law passed by Congress.
Coffey said that Eli n, who is only allowed to stay in this country at the
discretion of the INS, has a constitutional right to apply for asylum. ``We
believe it's a live question that needs to be answered by the [high] court,''
Coffey said.
Some legal experts questioned Coffey's reasoning.
``I don't know what constitutional rights have been violated in Eli n's case,''
said University of Miami Law Professor David Abraham. ``The rights of
unadmitted aliens are limited in matters involving immigration.''
Ira Kurzban, who represented the Haitians in the 1984 case, said he would
argue that an alien has a constitutional right to request asylum on grounds that
the 11th Circuit never did away with that right.
But Kurzban, a respected immigration lawyer whose textbook was cited by
the three-judge panel in their opinion, observed that the Miami legal team
already conceded that argument to Moore in the federal district court.
``They never pursued this and it was a big mistake,'' Kurzban said.
Herald staff writer Frank Davies contributed to this report. |
