Pandora's Box Revisited.
The story below confirms my concerns expressed yesterday to the thread.It appears the up-coming oral hearing is in fact pertaining to ALL PERSONS ON US SOIL...not like someone suggested,that it was under the Special Laws concerning Cubans who reach America' shores.
As I previously wrote...a precedent may be made here that will open a Pandora's Box that no Country on Earth will escape.America's courts must realize the implications of a favourable ruling for the plaintiff.
As I also stated..I take no sides in this matter ,other than to analyse the laws - the enforcement of those laws - and the aftermath that may result from whatever interpretation may be chosen and the direction taken.
Here is the story from the Miami Herald,which BTW,I feel has been less than objective in this matter ,but this story is indeed accurate . Regards.
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Published Thursday, April 20, 2000, in the Miami Herald
Ruling may change way INS treats applications by kids
BY JAY WEAVER
jweaver@herald.com
The federal appeals court decision in the Elian Gonzalez case struck like a thunderbolt Wednesday, with attorneys saying the ruling signaled a potential shift in immigration law that could force the U.S. government to accept asylum applications from thousands of unaccompanied children.
The actual legal effect of the 11th Circuit Court of Appeals' decision is limited only to barring Elian's removal from this country until after the court has a chance to consider his appeal. It pivots on whether he has the right to apply for asylum, with oral arguments scheduled for May 11.
But the three-judge appellate panel strongly implied in its decision that the court might be prepared to rule that the Immigration and Naturalization Service erred when it decided that Elian, at the age of 6, was too young to be capable of applying for asylum.
The INS had said that only Elian's Cuban father could speak for Elian because the boy is so young, and his father wants him back in Cuba. The boy's Miami relatives challenged that decision with a lawsuit.
If the appellate court rules that the law means what it literally says -- ``any alien . . . may apply for asylum' -- it could have a dramatic impact on the agency's handling of innumerable cases. The INS routinely sends back thousands of immigrant children to their homelands every year.
U.S. Rep. Alcee Hastings, a lawyer and former federal judge, said the court's tacit acceptance that ``any alien' has a right to an asylum hearing may have set an unintended precedent.
``What they just got through doing, if this is to become the law, is to open the flood gates -- and I don't think they intended to do that,' Hastings said.
His advice to Attorney General Janet Reno: ``Appeal this to the Supreme Court.'Some legal experts in the immigration field agreed with Hastings' analysis, though they applauded the court's decision to bar the boy's removal from the country until his appeal is over.
``If the court is saying a child that tender of age can make that determination, it would have significant ramifications,' said Ira Kurzban. In the early 1980s, Kurzban won the right for refugees to seek asylum on constitutional grounds of due process.
In their decision, Circuit Judges Joel F. Dubina, James L. Edmondson and Charles R. Wilson cited the federal statute in dispute -- ``any alien . . . irrespective of such alien's status, may apply for asylum.'``[Elian] appears to come within the meaning of `any alien,' ' the judges wrote in their 16-page opinion. ``We, therefore, question the proposition that, as a matter of law, [Elian] cannot exercise the statutory right to apply for asylum.'
The judges went on to write: ``If Congress had meant to include only some aliens, perhaps Congress would not have used the words `any alien.' ' They noted that it ``may seem a strange or even foolish policy' to let a little boy apply for asylum against the wishes of his father. But they stressed that if Congress intended by the plain language of its law to allow a ``school-age child to apply personally for asylum,' then ``this court and the INS are bound to honor' it.
A CONTRAST
The appellate court's decision contrasts with U.S. District Judge K. Michael Moore's ruling last month. He upheld Reno's broad powers to interpret the question of who may apply for asylum on a case-by-case basis. In Elian's case, she backed the INS decision that only the boy's father can speak for him.Some lawyers were taken aback by the appellate court's decision.
Peter Schuck, a Yale University law professor who specializes in immigration matters, said the appellate court is venturing into a legal area that previously had been considered the province of Congress, the attorney general and president.He used the word ``preposterous' in reference to the court's literal interpretation of what Congress meant by ``any alien.'
The Miami relatives' legal team said they did not agree that the appeals court's decision could lead to a major change in asylum procedures. The team said the judges simply recognized the right of the little boy to speak his mind. ``This is a fully cognitive child who states his fear of going back to Cuba,' attorney Kendall Coffey said. ``If you have a child with a cognitive capacity of an 11-year-old and psychological evaluations that say he can capably speak for himself, that is a completely different scenario from a 2-year-old [seeking asylum].'
Another of the family's attorneys, Roger Bernstein, said: ``What the judges are saying is that in evaluating the wishes of Elian, the INS only evaluated the wishes of the father, not Elian's. What they're saying is, his voice needs to be considered.'
MANY CASES
Immigration law is replete with cases in which parents and children have differed over whether the children could apply for asylum. In 1980, Kurzban represented the Cuban parents of a teenage girl, Odalys Valdes, who came to the United States in a hijacked boat with her boyfriend. After a two-year legal fight, the parents and the Cuban government dropped their lawsuit seeking her return.
Another unusual custody case -- which sparked an international incident during the Cold War and has drawn comparisons to Elian's dispute -- unfolded in 1980 when Ukrainians Michael and Anna Polovchak decided to return to their homeland after just six months in Chicago.
Their children, Walter, 12, and Natalie, 17, refused to go. Walter, who ran away, was granted asylum. His parents challenged Walter's decision in federal court -- and lost. His sister's decision to stay behind was uncontested because of her age.
In 1985, a federal appeals court ruled the parents' rights had been violated by the U.S. government. But by that time, Walter Polovchak was nearly 18. He became a U.S. citizen after celebrating that birthday.
Herald staff writer Sandra Marquez Garcia contributed to this report. |
