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The decision to deny Elian Gonzalez access to the asylum process is entirely within the discretion of the Immigration and Naturalization Service, the 11th U.S. Circuit Court of Appeals has ruled. J.L. Edmondson, writing for the three-judge panel, cast the conflict between Elian’s father, Juan Miguel Gonzalez of Cuba, and Miami relatives as an issue of separation of powers. The INS has broad authority to draft policy, Edmondson writes, and did not abuse its power when it refused to consider the 6-year-old’s application for asylum. Gonzalez v. Reno, No. 00-11424-D, 200 U.S. App. (11th Cir. June 1, 2000). “We have not the slightest illusion about the INS’ choices: the choices — about policy and the application of the policy — that the INS made in this case are choices about which reasonable people can disagree. Still, the choices were not unreasonable, not capricious and not arbitrary, but were reasoned and reasonable. The INS’ considerable discretion was not abused,” wrote Edmondson. The ruling comes three weeks after the May 11th hearing before a panel of 11th Circuit judges that included Joel F. Dubina, Charles R. Wilson and Edmondson. In a footnote, the appeals court gave Elian’s Miami relatives 14 days to ask for an en banc rehearing. “Expect no extensions,” the note reads. Lawyers for the Miami relatives already have sought an injunction from the U.S. Supreme Court to keep the boy in the country while the appeals process continues. The 11th Circuit panel based much of its ruling on Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 104 S. Ct. 2778, 2781 (1984), which directs agencies to comply with the plain intent of the Congress, while allowing them to set policy “based on a permissible construction of the statute.” In this case, lawyers for the Department of Justice and for Elian’s Miami relatives were wrangling about the meaning of the U.S. Immigration Statute, especially 8 USC 1158, which says that “any alien who is physically present in the United States … may apply for asylum.” Though some of the debate initially focused on whether a 6-year-old properly fits that category, the court indicated that the proper focus should have been on the phrase “may apply,” not “any alien.” “The important legal question in this case, therefore, is not whether Plaintiff may apply for asylum; that a 6-year-old is eligible to apply for asylum is clear. The ultimate question, instead, is whether a 6-year-old has applied for asylum within the meaning of the statute when he, or a non-parental relative on his behalf, signs and submits a purported application against the express wishes of the child’s parent,” the panel wrote. The statute is silent, the court says, on what exactly constitutes an application for asylum. “Because the statute is silent on the issue, Congress has left a gap in the statutory scheme. From that gap springs executive discretion,” the judges wrote. It is not up to the court to fill those gaps, but the agency-in this case, the INS, the ruling says. In its ruling, the court laid out the policy the INS applied in this case: First, that 6-year-olds lack the capacity to complete an application for asylum; second, that such children must be represented by an adult in immigration matters; third, that barring special circumstances, the proper adult to represent the child is the parent, regardless of that parent’s location; and fourth, that living in a Communist-totalitarian state does not constitute a special circumstance. Such policy, the ruling says, falls “within the realm of reasonable choices.” Within the context of this procedure, Elian’s purported application for asylum never carried any legal weight, according to the court. Atlanta immigration lawyer Carolina Colin-Antonini says the ruling seems rather narrowly drawn and likely will have little effect on subsequent rulings. That a 6-year-old lacks the capacity to apply for asylum is reasonable, she says, since most asylum cases involve older children with a clear fear of danger at home. The problem comes when parental will and the rights of a child conflict, she says. “There will be many, many cases where the parent may be the source of the problem,” she says. Colin-Antonini adds that, among immigration attorneys, “There is some concern about the INS making up policy as it goes along.” The court says it was “not untroubled” by the power the INS renders to the wishes of parents — even those abroad. In some cases, the policy might hinder a child’s valid asylum claim and violate their statutory right to asylum, the court says. But in considering the long tradition of judicial deferral to the agencies, the court says “We cannot disturb the INS policy in this case just because it might be imperfect. And we cannot invalidate the policy — one with international relations implications — just because we personally might have chosen another.” Citing State Department reports, the court also acknowledged that Cuba violates human rights and denies the rule of law to its people. However, the court also held that the executive branch has broad discretion to determine foreign policy, and an immigration policy that focused not on an individual parent but on the qualities of the government under which that parent lives “would have significant consequences for the President’s conduct of our nation’s international affairs.” Atlanta immigration lawyer Hector R. Cora says the INS should have granted the hearing, with Elian’s father present. “[Elian] should have the right to go before the Executive Office of Immigration review — the immigration court,” Cora says. “I don’t understand why they didn’t just go ahead and hold a hearing in the first place.” Elian, Cora notes, has no right to be in the United States now that the INS has revoked his parole. He should be in some stage of deportation, he says. Florida anglers rescued Elian from the sea over the Thanksgiving weekend after a failed, fatal attempt by his mother and 10 others to escape Cuba on a raft. The INS initially placed the boy with his great-uncle, Lazaro Gonzalez, the closest living relative in the country at that time. When Juan Miguel Gonzalez came to the United States to claim his son and return to Cuba April 6, Elian’s Miami relatives refused to turn him over. With the help of his great-uncle, Elian filled out the asylum application. The INS decided that Elian’s application was “legally void” and declined to consider its merits. The INS commissioner held that Elian needed an adult representative to speak on his behalf. Special agents with the INS stormed Lazaro Gonzalez’s home, seized Elian and returned him to his father April 22. The boy, his father, stepmother and stepbrother have been staying in the Washington, D.C., area since then. Staff reporter R. Robin McDonald contributed to this report.

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