I was speaking of the options for how to turn over the boy.
Btw there was a court order for the Feds to go in and get the boy by force if need be.
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newsmax.com
Andrew Napolitano, legal analyst for Fox News and a constitutional scholar had this exchange today on Fox with Eric Holder,
Reno's second in command at Justice:
Napolitano: Tell me, Mr. Holder, why did you not get a court order authorizing you to go in and get the boy?
Holder: Because we didn't need a court order. INS can do this on its own.
Napolitano: You know that a court order would have given you the cloak of respectability to have seized the boy.
Holder: We didn't need an order.
Napolitano: Then why did you ask the 11th Circuit Court of Appeals for such an order if you didn't need one?
Holder: [Silence]
Napolitano: The fact is, for the first time in history, you have taken a child from his residence at gunpoint to enforce your
custody position, even though you did not have an order authorizing it.
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_________________________________________________
Ruling of the U.S. Court of Appeals, 11th Circuit
Elian Gonzalez (``Plaintiff'), a 6-year-old child from Cuba, has made his way to the United States. Plaintiff, as an alien,
submitted an application for asylum . . . to the Immigration and Naturalization Service (``INS'). His father
asked, in effect, that the application be withdrawn. After an investigation, the INS -- deciding that Plaintiff could not apply for
asylum himself and that, under the circumstances, only his father could seek asylum on Plaintiff's behalf -- concluded that there
was no reason not to honor the father's request and, accordingly, refused to consider Plaintiff's application. Plaintiff then
brought suit in federal district court challenging on several grounds the INS's refusal to consider his application. The district
court rejected Plaintiff's claims.
Plaintiff has appealed the district court's decision to this Court. His appeal is scheduled to be argued orally next month.
Plaintiff, however, now moves for an injunction ``to preclude [Plaintiff's] physical removal from the jurisdiction of the United
States during the pendency of this appeal.' We conclude that Plaintiff is entitled to such an injunction and grant the motion.
In considering a motion for injunction pending appeal, we examine four factors: (1) whether the movant is likely to prevail on
the merits of his appeal; (2) whether, if we do not issue an injunction, the movant will suffer irreparable harm; (3) whether, if
we issue an injunction, any other party will suffer substantial harm; and (4) whether an injunction would serve the public
interest, See In re. Grand Jury Proceedings (11th Cir. 1992). Although the first factor is generally the most important, the
movant need not always show that he probably will succeed on the merits of his appeal. Garcia-Mir v. Meese (11th Cir. 1986).
Instead, where the ``balance of the equities weighs heavily in favor of granting the [injunction],' the movant need only show a
``substantial case on the merits.'
In this case, the balance of the equities weighs heavily in favor of enjoining the removal of Plaintiff from the U.S. pending
appeal. And Plaintiff has made a ``substantial case on the merits' of his appeal.
1. BALANCE OF
THE EQUITIES
The equities, in this case, weigh heavily in favor of issuing an injunction pending appeal. Apart from concerns about what
might happen to this child if he is returned to Cuba (which we do not address), if Plaintiff leaves the United States during the
pendency of his appeal, his case will likely become moot. Our failure to issue an injunction pending appeal, therefore, could
strip the Court of jurisdiction over this case and deprive Plaintiff forever of something of great value: his day in a court of law.
That circumstance alone presents a significant risk of irreparable harm to Plaintiff.
In addition, we doubt that an injunction would harm the INS. Plaintiff has been in the United States for nearly five months. The
INS refused to consider Plaintiff's application for asylum more than three months ago. The INS, however, has not sought to
remove Plaintiff in the meantime from the United States. The suggestion that an injunction pending appeal, prohibiting the
removal of Plaintiff from the United States until Plaintiff's expedited appeal is decided on the merits, will harm the INS is not
compelling.
Nor do we believe that an injunction pending appeal in this case would offend the public interest. The INS, in opposition to
Plaintiff's motion, invokes the well-established authority of the political branches of government in immigration affairs. We
fully recognize the plenary power of Congress over immigration matters. See Jean v. Nelson (11th Cir. 1984). But we fail to
see how an injunction in this case infringes upon the congressional power; after all, the heart of Plaintiff's appeal is that the INS
by refusing to consider Plaintiff's asylum application has disregarded the command of Congress. And we doubt that protecting
a party's day in court, when he has an appeal of arguable merit, is contrary to the public interest. We therefore, conclude that the
equities weigh heavily in favor of granting an injunction pending appeal.
2. SUBSTANTIAL CASE
ON THE MERITS
This case is mainly about statutory construction and the proper exercise of executive discretion. Among other things, we must
ultimately decide what Congress meant when it said:
Any alien who is physically present in the United States or who arrives in the United States . . .
irrespective of such alien's status, may apply for asylum in accordance with this section or, where
applicable, section 1225(b) of this title.
Plaintiff argues that the INS's refusal even to consider his application violates 8 U.S.C. 1158(a). The INS contends that,
because Plaintiff is a 6-year-old child, he is incompetent to submit an application on his own behalf and that, on the facts of this
case, he must have his father submit the application for him. Because his father did not do so, the INS contends that Plaintiff
never actually applied for asylum and that, therefore no application exists for its consideration. Even accepting as we do the
principles of deference set out in Chevron v. Natural-Resources Defense Council Inc. (1984), we at this time have doubt, in the
light of the record and Plaintiff's arguments on appeal, about the correctness of the INS's interpretation of section 1158.
In considering an agency's interpretation of a statute, we first must examine the plain meaning of the pertinent statutory
language: ``If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to
the unambiguously expressed intent of Congress.' Chevron (1984). The statute in this case seems pretty clear. Section
1158(a)(1) provides that ``any alien irrespective of such alien's status, may apply for asylum.' Plaintiff appears to come within
the meaning of ``any alien.' And the statute plainly says that such an alien ``may apply for asylum.' We, therefore, question the
proposition that, as a matter of law, Plaintiff (unless his father consents) cannot exercise the statutory right to apply for asylum.
Congress's provision for ``any alien' is not uncertain in meaning just because it is broad. See Pennsylvania Dept. of
Corrections v. Yeskey, (1998). If Congress had meant to include only some aliens, perhaps Congress would not have used the
words ``any alien.' In addition, although the INS has the authority to issue regulations and procedures governing the
submission of asylum applications, the INS cannot properly infringe on the plain language of the statute or the clear
congressional purpose underlying it. See Shoemaker v. Bowen (11th Cir. 1988). Nor can the INS properly narrow the scope of
a statute through regulation. See Ellis v. General Motors Acceptance Corp. (11th Cir. 1998). At this time, we cannot say that
``any alien' excludes Plaintiff: given the plain language of the statute, he might be entitled to apply personally for asylum.
Furthermore, it seems unclear that an INS decision to treat Plaintiff's application as a nullity without an adjudication on the
merits is a ``procedure for the consideration of [Plaintiff's] asylum application.'
Not only does the plain language of the statute seem to support Plaintiff's argument that he, despite his
age, is entitled to apply personally for asylum, the present regulatory scheme created by the INS also
seems to strengthen Plaintiff's position. The existing INS regulations do envision situations where a
minor may act on his own behalf in immigration matters. Moreover, the regulations contemplate that a
minor, under some circumstances, may seek asylum against the express wishes of his parents. Also, the
INS Guidelines for Children's Asylum Claims envision that young children will be active and independent
participants in the asylum adjudication process.
The INS has not pointed to (nor have we found) statutory, regulatory or guideline provisions which place
an age-based restriction on an alien's ability to apply for asylum. And we have found no preexisting
requirement that a minor, in submitting an asylum application, must act through the representative
selected by the INS. >
Not only does it appear that Plaintiff might be entitled to apply personally for asylum, it appears that he
did so. According to the record, Plaintiff -- although a young child -- has expressed a wish that he not be
returned to Cuba. He personally signed an application for asylum.
Plaintiff's cousin, Marisleysis Gonzalez, notified the INS that Plaintiff said he did not want to go back to Cuba. And it appears
that never have INS officials attempted to interview Plaintiff about his own wishes.
Even if the INS is correct that Plaintiff needs an adult, legal representative for his asylum application, it is not clear that the INS,
in finding Plaintiff's father to be the only proper representative, considered all of the relevant factors -- particularly the child's
separate and independent interests in seeking asylum. . . . It does not appear that the INS ever spoke to or interviewed Plaintiff
before making this determination. And Lazaro Gonzalez, Plaintiff's great uncle, is no stranger to Plaintiff. The INS placed
Plaintiff in Lazaro's care upon Plaintiff's arrival in this country, and Lazaro is a blood relative. When Lazaro submitted
applications for asylum on Plaintiff's behalf, Lazaro was the INS's designated representative to take care of Plaintiff and to
ensure his well-being. Lazaro's interests, to say the least, are not obviously hostile to Plaintiff's interests. So, for now, we
remain unconvinced that the asylum application submitted by Lazaro on behalf of Plaintiff necessarily was ineffectual under the
law.
For these reasons and in these circumstances, we believe that Plaintiff has presented a substantial case on the merits.
CONCLUSION
By its nature, this Order sets out more questions than answers. We have not attempted to address every point advanced by both
sides, but we have attempted to explain our decision to grant the injunction. No one should feel confident in predicting the
eventual result in this case.
The true legal merits of this case will be finally decided in the future. More briefing is expected. We intend to hear oral
argument. We need to think more and hard about this case for which no sure and clear answers shine out today. Still, because
of the arguments presented as well as the potential inconsistencies of the INS's present position with the plain language of the
statute and with the INS's own earlier interpretations of the statute in INS regulations and guidelines, and because of the
equities in this case, we conclude that Plaintiff is entitled to an injunction pending appeal.
Therefore, it is ordered that:
(1) Plaintiff, Elian Gonzalez, is enjoined from departing or attempting to depart from the United States;
(2) Any and all persons acting for, on behalf of, or in concert with Plaintiff, Elian Gonzalez, are enjoined from aiding or
assisting, or attempting to aid or assist, in the removal of Plaintiff from the United States;
(3) All officers, agents, and employees of the United States, including but not limited to officers, agents, and employees of the
United States Department of Justice, are enjoined to take such reasonable and lawful measures as necessary to prevent the
removal of Plaintiff, Elian Gonzalez, from the United States.
MOTION GRANTED.
IT IS SO ORDERED
Not only does Elian have a right to apply for asylum, the
court said, with a bow toward the dimbulbs at the
Immigration and Naturalization Service (INS), "it appears
that he did so." Indeed, the court noted that Elian
himself signed the petition, prepared by his uncle, with
a 6-year-old's childish scrawl. The court heard what Bill
Clinton and Janet Reno and the tone-deaf ciphers at the
Justice Department and the INS could not hear or would
not hear, the trusting cry of a child to hold on to a
precious life in the land of the free that his mother
died to give to him. |
