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Most Americans seemed pleased when the 11th U.S. Circuit Court of Appeals essentially decided that it’s time for Elian Gonzalez to go home. More accurately, the court held on June 1 that the Immigration and Naturalization Service need not give Elian an asylum hearing. The media have apparently taken the decision as a sign that the story is winding down. News last week that the Miami relatives were appealing the decision received subdued attention at best. But before closing the final chapter on the winsome six-year-old, all Americans should consider what the 11th Circuit’s ruling says about U.S. immigration law. It’s not that Elian shouldn’t return to Cuba. I think he should. What makes me hesitate is the constitutional law, legislation, regulations, and cases that the 11th Circuit opinion relies on. The court didn’t misinterpret any of them. And that’s the problem. What the court said about immigration law should give people on both sides of the Elian debate good reason to sit back and question whether we want to keep doing things the same way. First, it’s important to emphasize that the opinion was unanimous by the three judges on the panel. There was not even a separate concurrence; they were unanimous as to the holding and the underlying law. To my mind, that means there’s a good chance that the court and the INS both got it right. At the very least, this unanimity stands as evidence that there’s no conspiracy, no secret deal between the U.S. government and Fidel Castro, and that there’s been no abuse of discretion by Attorney General Janet Reno or President Bill Clinton. (Let’s also note that the three judges were appointed by three different presidents — Clinton, George Bush, and Ronald Reagan — from two political parties.) A DAY IN COURT? But what, exactly, did the judges agree on? First, they agreed that there were no grounds to grant the Miami relatives’ claim that constitutional guarantees of due process required the government to grant Elian an asylum hearing. Or, as the court quoted from one of its own opinions in 1984, “Aliens seeking admission to the United States … have no constitutional rights with regard to their applications.” Insistence that the Constitution required an asylum hearing was an issue that animated Miami residents at the height of the Elian drama a couple of months ago. At one point, Cuban-American singer Gloria Estefan, after managing to meet with Reno, said, “It is alarming to think that in refusing Elian his day in court, the full truth in his situation may never be heard.” What could be more American than a day in court? Well, Supreme Court precedent, for starters. The 11th Circuit’s view on this matter comes directly from a case the Supreme Court decided in 1892. And the 1892 decision is in tune with an 1889 Supreme Court opinion holding that Congress can do essentially whatever it wants with regard to immigration policy. That decision, charmingly referred to as the Chinese Exclusion Case, reads: “That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy.” To be sure, this carte blanche grant of discretion to Congress — called “plenary power” — has been the subject of fierce criticism. As Columbia Law School’s Professor Louis Henkin wrote in 1987, “Chinese Exclusion — its very name is an embarrassment — must go.” But the doctrine has not gone away, as the Elian decision makes clear. Aside from the rights that Congress, and the executive carrying out Congress’ wishes, give to asylum seekers, they have none. Gloria Estefan isn’t the only one who should be piqued. CUBANS AND OTHERS Another issue that the judges agreed on is that the INS did not act unreasonably in deciding that Elian would not have qualified for asylum even if he had received a full hearing. International and U.S. law require that asylum seekers show that they cannot return home “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” The 11th Circuit rightly did not spare harsh words in condemning the political environment in Cuba. But as to the Miami relatives’ claims that Elian would be indoctrinated with communist ideology and that he would therefore be persecuted, the court stated, “We cannot say that the INS had to treat education and indoctrination as synonymous with ‘persecution.’” This is important. If communist indoctrination is not a basis for Cubans to claim refugee status, then do Cubans deserve asylum in the United States? Obviously, some do — those who are clearly being persecuted within the definition of the asylum standard. But do all Cubans automatically meet that standard? If the 11th Circuit’s Elian opinion is any indication, probably not. In fact, technically speaking, most Cubans who have immigrated to the United States didn’t do so through asylum procedures. Rather, they entered this country through the Cuban Adjustment Act of 1966 and successor legislation. And that legislation doesn’t involve asylum. According to the 1966 act, “any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States” and has been present in the country for a certain period of time can become a lawfully admitted permanent resident with the possibility, eventually, of gaining citizenship. The Cuban Adjustment Act and successor legislation are still good law. Yes, during the Cold War a blanket rule granting the right to all Cubans who made it to America to become lawful permanent residents might have made sense. But today, especially given the more dire straits of people from other countries, does it still make sense? The 11th Circuit’s decision, whether it meant to or not, seems to cast into doubt the need for the Cuban Adjustment Act. DRAWING LINES The judges also agreed that, if it were up to them, they might not have adopted the rule that the INS did. Instead of requiring parents to speak for children in seeking asylum absent special circumstances, the judges might have put more weight on the wishes of the child. But the INS’s approach was acceptable: “[W]e recognize that absolute line-drawing — although necessarily sacrificing accuracy and flexibility for certainty and efficiency — is an acceptable approach.” Bright lines are part and parcel of immigration law. As the 11th Circuit said, they always end up sacrificing accuracy and flexibility. And given the Supreme Court’s view toward Congress’ plenary power over immigration matters, the bright-line rules are hardly ever restrained. In 1996, for instance, Congress changed the definition of “aggravated” felonies requiring deportation to include a panoply of offenses. The result: The lives of countless immigrants have been uprooted for actions that were petty or years in the past. Anthony Lewis of The New York Times has described these people’s situations in wrenching detail. But whatever cruelties result, as the 11th Circuit said, such rules are “acceptable.” So the 11th Circuit got everything right in its Elian opinion. Or almost everything. In the introduction to the opinion, the judges wrote that “for this Court, the case is mainly about the separation of powers under our constitutional system of government.” But that’s not all it’s about. This case is about immigration and asylum law, and how Americans treat those who would come to join us. It’s about how Congress dictates immigration policy with no meaningful constitutional oversight, about how Congress distinguishes unfairly between nationalities in granting the benefit of legitimate entry into this country, and about bright-line rules that inflict crushing losses on vulnerable people. This time the judges resolved the case in a manner that was just and fair. But let’s remember what the opinion is really about. Evan P. Schultz is a free-lance writer in Washington, D.C., and a lawyer who previously practiced immigration law.

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