IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Atlanta, Georgia
May 11, 2000

ELIAN GONZALEZ , a minor, by and through LAZARO GONZALEZ, as next friend, or, alternatively, as temporary legal custodian,
Plaintiffs-Appellants,

V.

JANET RENO, Attorney General of the United States; DORIS MEISSNER, Commissioner, United States Immigration and Naturalization Service; ROBERT WALLIS, District Director, United States Immigration and Naturalization. Service; UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE; and UNITED STATES DEPARTMENT OF JUSTICE,
Defendants-Appellees,

JUAN GONZALEZ, Intervenor

TRANSCRIPT OF ORAL ARGUMENT
BEFORE THE HON. J.L. EDMONDSON, THE HON. JOEL F. DUBINA AND THE HON. CHARLES R. WILSON
IN THE ABOVE-STYLED MATTER.

APPEARANCES OF COUNSEL: For the Plaintiffs-Appellants: KENDALL COFFEY, Attorney at Law
For the Defendants-Appellees: EDWIN KNEEDLER, Assistant United States Attorney
For the Intervenor: GREGORY B. CRAIG, Attorney at Law

DONNA C. KEEBLE, Official Court Reporter

P R 0 C E E D I N G S

JUDGE EDMONDSON: Gonzalez versus Reno. {Again please note: NOT Gonz. v  Gonz.}

Mr. Coffey, come around and speak to us, please.

MR. COFFEY: Good morning, your Honor. This is Kendall Coffey for the appellant.

Few things can be more compelling in either law or life itself than the cause of a child and, before you this morning, for the rights of a young boy to be protected from potentially serious harm of a police state.

The United States Congress has, without qualification or reservation of any kind, established asylum laws with arms that enfold young children within their protection.

The mandatory will of the Congress and the mandatory statements of the regulations should have been enough for any responsible agency but, instead, the INS has done everything possible to avoid the required hearing.

JUDGE WILSON: Mr. Coffey, is it your contention that the INS has absolutely no discretion whatsoever to determine whether an asylum application is properly submitted?

MR. COFFEY: Your Honor, it does not. It must follow its own regulations and those regulations provide that if an asylum application is completed, there shall be a hearing.

JUDGE WILSON: No discretion whatsoever?

MR. COFFEY: None, your Honor. In fact ---  ...   
{JUDGE WILSON ASKS BUT REFUSES TO HEAR A RESPONSE!   [#1: first time] JUDGE W. WILL LATER CONTINUALLY CUT K. COFFEY OFF.  THEN JUDGE W. WILL CONTINUALLY IMPEDE COFFEY FROM GIVING PROPER DELIBERATION?}

JUDGE WILSON: Well, let me pose a hypothetical to you.

MR. COFFEY: Yes, your Honor?

JUDGE WILSON: Let's say a teenage baby-sitter for a two-year-old alien child takes that child downtown to the INS office while his parents are at the movies and has him scribble his first name on an asylum application and the parents come running down an hour or two later screaming, "I speak for my child, this baby-sitter doesn't speak for my child," you're telling me that the INS doesn't have any discretion whatsoever, they have to go through the time and the expense of having a formal asylum hearing?

MR. COFFEY: Your Honor, if the {APPLICATION} form is facially sufficient, on its face, their own regulations say that there shall be a hearing.

That's very different from a situation where, for example, in the course of the asylum hearing , they { [the INS], WOULD even} have to allow a baby-sitter or a smuggler to speak for the child. {HERE The family filling out the APPLICATION had been granted full custody by the INS at the time THIS APPLICATION WAS FILED…}

If there were an asylum hearing, which typically, your Honor, many of them are 30 minutes or less --

JUDGE DUBINA: Can there be an application, though, if the child does not have the capacity to fill out the form?

MR. COFFEY: Well, your Honor, of course, that's not the case. We have a six-year-old and I think the guidelines, the INS's own announced procedures, are very clear that a six-year-old can seek asylum.

But if this extraordinary case which the INS keeps talking about -- which, frankly, I don't think has come up and which does not present any kind of a significant agency issue other than for purposes of argument --

JUDGE DUBINA: It seems to me that the Government in its brief has conceded that the district court got the statutory interpretation wrong and that any alien could include a child such as Elian in this case.

The problem then is, though, and as they framed the issue in their brief, did he apply in this case.

Do you agree that that is the way the issue ought to be framed?

MR. COFFEY: That's the issue now, in their brief.

JUDGE DUBINA: Do you agree that's the way the issue ought to be framed?

MR. COFFEY: No, your Honor, I don't.  I think he did apply.  { HOW ABOUT: NO ONE COULD REASONABLY QUESTION AT THIS JUNCTURE THAT HE DID APPLY?!!!}

I think that an agency's actions have to be reviewed by the analysis the agency did at the time; and what they did at the time was travel strictly under 1158 (a), the authority to apply for asylum statute, and said that he's too young.

Since then, they made a remarkable retreat from that and now said, well, he really isn't too young, because that's exactly what their own guidelines show.

In fact, as the Court observed in its earlier order, six to twelve-year-olds are one of the categories that they specifically have dedicated training for to determine asylum applications. But now what they are saying is that the asylum application was never filed and that's contrary to their own regulations.

It is certainly within the prerogative of the INS to duly promulgate regulations. If they believe there is a baby-sitter problem, they could address that in the form of regulations and they could make age-specific determinations in the form of duly promulgated regulations.

But what they can't do is when they have an existing regulation that makes it mandatory – ...
{J. WILSON CUTS HIM OFF AGAIN. [#2] }

JUDGE WILSON: Well, how do you distinguish the Polovchak case when the Seventh Circuit determined that a twelve-year-old is near the lower end of-the range where you have the mental capacity or the ability to express a well-founded fear of persecution sufficient to file an application for asylum?

MR. COFFEY: Well, what the Polovchak said is that  twelve years was the young end of where a child's interest is equal to or greater than the parent. It didn't really say that a child, even a younger child, has no interest at all.

And, obviously, as we acknowledge, a six-year-old's maturity is a factor to be considered but it is not a per se disqualification.

And, your Honor, if the INS had read Polovchak as December 1998 when they announced their guidelines for children's asylum, if they had said that twelve is the minimum age, why doesn't it appear anywhere in their own guidelines?

Polovchak, in "This twelve-year-old is the bottom end theory" isn't in their guidelines; it isn't in the U.N. guidelines. In fact, they promulgated a specific regulation dealing with the situation of parent/child conflict where the parent is presently residing in the U.S. and what they provided in their own regulation is not that there is a disqualification of six-year-olds. It's absolutely age neutral, it does not disqualify on the basis of any age at all. It says that the child gets the asylum hearing and that the parents participate.

And that really is the wisdom of Polovchak, not that there is any disqualification based on age.

And, again, it doesn't say that anybody under twelve is disqualified but that the parents' rights are sufficiently important that they, of course, should be considered in the context of the child's asylum hearing.

And, indeed, the INS guidelines talk about – ...
{OK HERE, POINT MADE, YET IT'S CUT OFF [#3] / #4-#8 are more serious.}

JUDGE WILSON: Well, was it in the context of the asylum hearing or in the context of the asylum application?

MR. COFFEY: Well, your Honor, the only form for adjudication in the INS guidelines is a hearing, is a hearing/interview by the asylum officer.

JUDGE WILSON: What if you have multiple, multiple applications on behalf of a child, someone has got to decide who speaks for the child, right?

MR. COFFEY: That's right, your Honor.

JUDGE WILSON: Well, then who makes that decision?

MR. COFFEY: You look at the guidelines. And what the guidelines say is that the child can speak for the child if the child is acting voluntarily.

And a six-year-old that's cognitive, as we know, could testify in a court of this land competently, under oath, and that testimony could send adults to prison for a very long time.

This child, according to the evidence of record, was more than sufficiently competent to express his desire to invoke a chance to stay in this country.

JUDGE WILSON: Well, you have represented prominently in your briefs and your submissions that this six-year-old has the mind and the intelligence of a twelve-year-old, which is suspiciously convenient to the age that Mr. Polovchak was.

But, I've reviewed this asylum application and I'm sure Elian Gonzalez is a very bright and intelligent six-year-old but he didn't even have the ability to sign his last name on that asylum petition.

MR. COFFEY: Your Honor, many aliens, many aliens have to rely on adults, lawyers, Catholic services, a range of folks to help them with the process.

Of course, when the INS guidelines were created to treat the child's own asylum application -- and that's their announced procedures -- and when this court examined the issues of an agency's own announced procedures in Jean versus Nelson, which was the INS, this court made it very clear that an agency has to adhere to its own analysis, procedures.

But in the context of their own guidelines, they talk about the child coming in; they go through a range of discussions that make it very clear that the asylum officer is supposed to reach out to that child, a trusted adult -- and that's the term of art -- and they say should presumptively should be allowed in there with the child.

They say a smuggler, by the way, if there is somebody in there who is adverse to the child, should be told to leave the room; and that if in a particular situation it's necessary to be fair to the child, you have to get a guardian and then you do that, too.

JUDGE WILSON: Well, I'm going to read one of the questions or one of the questions on a standard form asylum application. I understand that the three applications that have been submitted in this case are under seal. One of the questions is, "Have you or any member of your family ever belonged to or been associated with any organization or groups in your home country such as, but not limited to, a political party, student group, labor union, religious organization, military or paramilitary group, civil patrol, guerilla organization, ethnic group, human rights, group or press or the media?"

You're telling me that a six-year-old is competent to answer questions like that?

MR. COFFEY: Your Honor, I don't think a six-year-old can answer in detail all of the questions but what the law says is that there is an age-appropriate process for six-year-olds.

For example, subjective fear of prosecution, the INS is saying in so many words that children, if they have difficulty articulating a subjective fear of prosecution, that is, their own fear, they are implying that they are disqualified.

The guidelines say the opposite. What they say is that you reduce the burden on a child where there is a subjective fear of persecution precisely because they are young and you look to more objective factors.

JUDGE WILSON: Well, I've read the answers, the answers on this asylum application, and they all appear to be written in the third person and reflect maybe a fear of prosecution on behalf of someone else, like maybe the person who is submitting the asylum application on behalf of Elian Gonzalez.

Doesn't it appear that this is really an expression of a fear of prosecution on behalf of someone other than the petitioner himself?

MR. COFFEY: Well, your Honor, you can certainly have, in a sense, situations where a child can be subjected to harm because of identification with family members, no question about that. And here, you have a child who was identified with a stepfather, a mother who gave her life to bring him to this country, as well as now the U.S. relatives, all of whose actions are crimes in Cuba.

Make no mistake about it, this child's mother, the person in the world we cherish the most, is a traitor in Cuba.

And an as our evidence suggests, evidence that's in the record, what is done in those circumstances is the child is basically compelled to repudiate the memory of the parent whose a traitor.

JUDGE WILSON: Well, the supreme court ruled in INS versus Elias-Zacarias, a case that was cited in the briefs that an asylum seeker claiming to be the victim of persecution on account of political opinion must offer evidence of four things: Number one, that he has been a victim of persecution; secondly, that he holds a political opinion; thirdly, that his political opinion is known to his persecutors; and, fourth, that the persecution has been or will be on account of his political opinion.

And you're telling me that the INS does not have the discretion to take a look at this asylum application and determine that this six-year-old is unable to meet those four prongs of the test?

MR. COFFEY: Your Honor, they can't do that. There has never been a procedure by the INS to pre-screen applications, never. They give a hearing and, in certain limited instances, they still give the applicant an interview. This is the first time ever special --- ...   {CUTTING HIM OFF AGAIN! [#4] }

JUDGE WILSON: So the INS's hands are tied? If a kidnapper brings in a six-month-old child, they got to go through the time and the expense of an asylum hearing?

MR. COFFEY: Your Honor, I think that if a kidnapper comes in with a six-month-old child – ...   {CUT HIM OFF AGAIN! [#5] }

J UDGE WILSON: And a prior criminal record.

MR. COFFEY: -- and a prior criminal record, then the INS officer can make, based on the circumstances at the front end, a determination that this is not the will of the child and there is no, quote, "trusted adult," because this is a kidnapper, then in those circumstances, they might be able to reject an asylum application. But that is so far from the case here.

J UDGE WILSON: Well, there is some discretion on the part of the INS then?

MR. COFFEY: Your Honor, I guess what I would say is the issue, is did this child seek asylum. If the child did not seek asylum in the scenario that you're talking about, then that is a different case than the one we have here today.

But the evidence we have before you -- and it's on a summary judgment standard, all of the facts have to be taken favorably, of course, to the appellant -- the evidence that we have before you is that this child did want to stay here.

And, of course, many aliens, your Honor, have very little education, they have no clue about U.S. asylum law; so, of course, applications are filled out by lawyers and an age-appropriate or a culture-appropriate discussion is made between the lawyer and the alien. It doesn't mean they are disqualified.

And I want to emphasize what is so unfair about the procedure they invented here. And now, it's almost like a three-part requirement that they quote really for the first time in their answer brief that says that they can look at an application and pre-screen them out. That does not exist before your Honor.

And the controlling regulation, what it says is that the asylum officer has to consider any other evidence presented at the hearing, mandatory duty.

There was never a statement at the time this application was submitted that all of your evidence of any kind has to be in this document, because, we, the INS, are going create for the first time ever a substantial threshold showing requirement. You can't have procedures that are invented four months after-the-fact. That's incredibly unfair and it violates their own regulation as well as the guidelines which are at the heart of this matter, your Honor.

What they do, what they always do, is give a - hearing.  A hearing, a day in court, is the heart and soul of justice.

It is something in H.V.C. versus Smith, which I don't think Jean versus Nelson in this respect overruled at all, said some form of hearing is always required.

Why wasn't it done here?

And to suggest that they are flooded with baby-sitter applications is obviously not true. If it were, there would be a regulation for it. And the only regulation they promulgated on minor-parent disagreement allows the minor's case to go forward to adjudication and brings the parent in.

That's fair, we have never objected to it, but it does not mean you disqualify a small child. To the contrary, when you read the INS criteria on December, the 10th anniversary of the Universal Declaration of Rights, they couldn't make it more clear that children, refugee children, get more rights than anyone else; and that with all of the nation's concern about the flood of immigration, there is still an open heart and an open mind where refugee children are concerned.

Those principles were turned on their head in this case and a child that should have gotten, under the INS's own criteria, more compassion, more consideration, more of a day in court, got absolutely none.

JUDGE WILSON : Let me ask you -- I see your time is up but let me ask you this: There is a statute, Section 1103 (a)(1) of Title VIII of the United States Code, it's been cited in the briefs. It says the attorney general shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens except insofar as this chapter or such laws relate to the powers, functions and duties conferred upon the President, Secretary of State, Office of the Department of State or diplomatic or consulate offices, provided, however, that determination and ruling by the attorney general with respect to all questions of law shall be controlling.

MR. COFFEY: What it means, your Honor -- and the Geary-Geary case and other cases make it clear -- that's not a divestiture of your jurisdiction, the law is still decided by a federal court. What it means is -- and the Jean versus Nelson case discusses something similar, as does the supreme court case in Geary-Geary -- that for INS purposes, the legal issues are defined by the attorney general, she delegates them down to certain agencies, such as the B.I.A. and such as other agencies in appropriate cases.

It doesn't mean that the courts don't decide the law. The courts decide the law where there is grounds for deference.   And there is none here because the INS's own procedures are quite clear. Then, of course, courts apply those normal principles.

But that is not a displacement of jurisdictional provision at all, it has never been so interpreted.

JUDGE DUBINA: Let me ask you about a different statute, before you sit down.

What does 8 U.S.C. Section 1158 (d)(7) mean to you?

And I noticed that you conspicuously did not discuss that statute in your brief. What does it mean?

MR. COFFEY: Your Honor, that statute, of course, is carved out from 1158 (a). The apply-for-asylum process has clearly and always been something that the Courts have addressed.

There is a legion of cases, your own cases, other cases, that say.

What I think (d) addresses is provisions that are brought elsewhere in the statute and nothing else, nothing more, is brought in (d).

It basically says you don't have a cause of action under certain other traditions of the asylum statute.

But the case law has made a vast gulf of difference between (a), which is authority to apply for asylum. And that's where the cases say the INS has got to obey the statutes, the regulation and its own announced procedures and other provisions, because, as we know, the actual grant of asylum, which is, of course, something you've never reached {HERE}, and that's what (b) and some of the other provisions talk about, that part of the law does implicate a degree of discretion.

But the duty to accept and adjudicate an asylum application is a duty owed to any alien, including a small child.

J UDGE EDMONDSON: Any other questions for this lawyer?

Thank you.

Mr. Kneedler, would you come up and speak on behalf of the Government, please?

MR. KNEEDLER: Thank you, your Honor.

And may it please the Court, I am Ed Kneedler from the United States Department of Justice, representing the appellees in the case.

JUDGE EDMONDSON: Mr. Kneedler, it's always been my view that when I'm talking to lawyers and I insist upon them not being coy with me, that I should not be coy with you.

Let me call your attention to a couple of things that worry me.

MR. KNEEDLER: Yes, sir.

JUDGE EDMONDSON: Let's assume, for sake of argument, that the INS has considerable discretion about determining what is an application at all.

And let's assume, for the sake of argument, that the INS has some discretion as to whom may file on behalf of a six-year-old child, that you are not obliged to accept an application from a six-year-old child, his own, unsupported by any adult. Let's assume that.

Here are the two problems that I have with this case and I want you to lend your help.

MR. KNEEDLER: Okay.

JUDGE EDMONDSON: The first is in reviewing your exercise of discretion for arbitrariness and reasonableness, the first problem I have is this: The people who apply, the adult who applied for Elian Gonzalez is not some stranger; he is a blood relative, related, I think, to about the fourth degree, and he was at the time the application was submitted -- let's not say filed, submitted -- the person who had physical custody under the auspices of the INS.  But nonetheless, he was residing in the man's house.

The parent, on the other hand, resided out of the country altogether.

I have a question -- and I want you to make me feel better about this -- about the idea that the INS can have a discretionary policy that where the sole natural parent is not within the jurisdiction of the United States himself, that he does not have the exclusive right to file, or that he does have.

I guess your policy is, as I understand it, absent certain special circumstances, the sole surviving parent has the exclusive right to either apply or not apply.

The problem that we're talking about, someone who is outside of the jurisdiction of the United States and the fact that we, as I understand the policy, it's so rigid about this guy can apply and no one else can apply, that's not my understanding of the way, for example, in American courts -- which I agree are not controlling -- but in American courts, I think a wider variety of people can act as next of friend other than the natural parent, even if the natural parent is present.

The other problem I have is I can understand your policy --

I tell you what, Matt, cut off this lawyer's time. I don't want to take up half his time. Give him all of his time back.

No need in my lecturing you, Mr. Kneedler; I want you to lecture me. I know what I think.

Here is what the other problem I have is: I understand the idea that you could have a policy that says, okay, the natural guardian will be the next friend absent a substantial conflict of interest. I worry about whether there is inherently a conflict of interest that is substantial where the child is within the jurisdiction of the United States and the sole parent is not only beyond the jurisdiction of the United States but is a resident in what I understand our state department calls a communist totalitarian state, that whether there is inherently a conflict of interest between the child in the United States and his father on the question of whether or not the child should seek asylum in the United States.

So those two issues, first of all, the exclusiveness aspect. And then if we even assume the exclusivity of the natural parent is okay but we still have a conflict of interest exception to that, the idea that under these kinds of circumstances there is an inherent conflict of interest in reality, those two ideas worry me.

And with those thoughts, we are going to turn the clock back on and let you speak for awhile. {SO UNLIKE J. WILSON}

MR. KNEEDLER: Okay. Let me try to address those two concerns.

With respect to the first, on whether the parent who is outside the country, the commissioner's decision in this case goes through a very careful analysis of this point in an interpretation of the Immigration Act; and what she says is that under the Immigration Act, you look to the relationship of parent and child and you look to the relationship under the law of the domicile, or the law where the relationship arose.

And in the commissioner's decision, that includes an analysis of the law of Cuba, which presumably would be the law in virtually every country in the world, which is that a sole surviving parent would speak for the child.

The fact that the parent is – {FAIR "STOP" HERE, SINCE HE IS WAY OFF THE QUESTION}

JUDGE EDMONDSON: Well, now, Mr. Kneedler, you need to understand that while I agree that that's the usual practice in the United States --

MR. KNEEDLER: Yes.

JUDGE EDMONDSON: -- I do not agree that that is the law in the United States in terms of an absolute , that the parent will speak for the child.

MR. KNEEDLER: Right. No, right. And I hope to get to that in the second part of the question.

JUDGE EDMONDSON: Okay. I didn't mean to break your thought; I just wanted to be sure what we were communicating.

MR. KNEEDLER: Right. Right.

So what the attorney general concluded is that the parents' right to speak for their child stems from the law that the place where the relationship arose, in this case, in Cuba.

And Appellant does not challenge the fact that Juan Miguel Gonzalez is not only the biological parent but has legal responsibility, has a close and loving relationship with his son and also is intimately familiar with his life circumstances.

These are conditions that the courts in the U.S. look to beyond simply biological parenthood, a legal responsibility, in determining whether a parent speaks for the child. They sometimes inquire more broadly; I mean, is the parent well-situated to examine all of the well-being and all of the considerations of the child, does the parent know the child's circumstances. So we do have that here.

But, more fundamentally, I think both in U.S. law and in the international community but the sacred bond between parent and child does not depend on where the parent or the child happens to be at any particular moment in time. It is a relationship that actually predates law, that the responsibility for the parents to be rearing their children to make major life decisions for them.

And particularly under the immigration laws which deal with Elian's coming and going from the United States, it is sensible for the attorney general to be giving effect to parental decisions when the parent may be outside the country and the child may be in, or vice-versa.

Now, with respect to the -- and, again, as you pointed out, it's not a question of exclusive right. 
{YES, IT IS THAT, AT THIS POINT!}

What the commissioner decided is that it's presumptively so this father knew his child and was presumptively able to speak for him. But then the attorney general separately inquired into the question of whether Juan Miguel Gonzalez was being coerced to express wishes that were not actually his true wishes and concluded that he was not and that he was expressing his true wishes.

JUDGE EDMONDSON: I'm willing to accept, for the sake of argument, that Juan Gonzalez's desires to be with his child are honestly held desires, even if those desires are consistent with the governmental policies of Cuba.

MR. KNEEDLER: Okay. Thank you.

And then the commissioner perhaps could have said that's dispositive and the parent's rights went out, but that is not what the commissioner said.

The commissioner said that there is a right for a child to apply independently of the parent, not just derivatively as the child of an asylum seeker but independently in his or her own right over the objections of the parent, even if there is an objective basis for the asylum claim such that it would suggest that the parent is not adequately representing the child or that there is a divergence of interest.

And this corresponds not only to the experience in the United States that I think courts apply and I think common sense applies in other settings but also balances the competing interests under the international regime where the rights of the child, as we point out in our brief under numerous international documents, the convention on the Rights of the Child and even in the asylum setting as the U.N.H.C.R. materials point out, the rights of the child take place within the family and within the framework of family re-unification. So it's important that the family's rights and family re-unification be given a strong weight.

But there is a subjective check on that and it's a more generous and protective policy than simply parental rights.

And now with respect to the analogy within the United States, it is true that people other than parents can be next friends when circumstances require but the sequence under the law and under practice is that the parent presumptively speaks for a young child in making life decisions. And in the next friend or guardian ad litem situation in a court, the wishes of the person who is sought to be protected are given effect or if that person is not competent, then a parent's wishes are given effect, unless there is a conclusion that that parent is not an adequate representative in the particular circumstances and that parent then gets displaced .  

{VIA REGULATIONS, TO BE DETERMINED SUBSEQUENT TO THE APPLICATION SUBMITTAL.}

JUDGE EDMONDSON: That's where I part company with you a little bit on the law. I don't know that this is outcome-determinative but let me tell you what I think that the law is in this country, in general.

I think that there are a wide variety of relations that may come into a court and claim to be next friend and can lawfully serve without even accounting for what the natural parent's wishes are. I mean, I don't think that the Courts always have to say, well, does he have a parent alive and what do they think.

Second, I think there is law in this country that in the matters of child custody, child welfare and so forth that relatives related to a degree of the fourth degree have in Kansas at least by statute, an absolute right, an absolute right to appear and to argue the welfare of the child.

Now, I don't say that any of that is binding on the INS, I just want you to understand that it's not so clear to me that there is only one intelligent legal response, the parent has the right.

MR. KNEEDLER: No. And first of all, this is an area 0in which there is considerable discretion on the attorney general to fashion appropriate rules and precisely because these are difficult circumstances and to borrow by analogy from other circumstances, and so the practice in courts is not necessarily controlling.

But I think that different kinds of cases could arise from courts, for example, that might lead to different circumstances.

One would be if the child just has a monetary claim, then for a guardian ad litem to come in and advance that suit when the parent doesn't want to, may not be much of an interference with the parent's rights. On the other hand, there may be circumstances where it would be.

You might have a parent with a seven-year-old child who may have a suit against a school district and a very valid claim but the parent, knowing the child very well, said, "I'm going to forego the right to sue on behalf of the child because it could cause the child difficulties in the classroom, it could alienate the school district; and I, as the parent in balancing what's overall the best for the child, as I understand it, and I understand him, I'm going to forego the lawsuit because of the pain it might cause the child."

Well, to have another person come in to file such a lawsuit would constitute a substantial interference with the parent's judgment about whether or not to file a claim.

And something similar but far more profound is going on here, where a third-party is coming in and saying, "I want to invoke a legal process on behalf of this child on something that is life-altering, life-determining in terms of where that child's lot will be cast in life," to interfere with the parent's fundamental decision to say, "My child's lot is with me."  {VIA REGULATIONS, TO BE DETERMINED ONLY SUBSEQUENT TO THE APPLICATION SUBMITTAL.}

And so what the INS has said in this situation is as long as the parent can be relied upon to be acting on behalf of his child, as he understands it in his best judgment, that that should be given effect, unless, again, with this check, there is a reason to believe --

JUDGE EDMONDSON: Let's talk a little bit about the question of inherent conflict of interest where the child is in -the United States, the sole surviving parent is in a country which our country says is a communist totalitarian state which regularly violates the freedoms and rights of its citizens.

I don't think I exaggerate what the State Department says about Cuba, do I?

MR. KNEEDLER: No.

JUDGE EDMONDSON: okay. So let's talk about the conflict of interest.

MR. KNEEDLER: I do not think that that or at least the attorney general could reasonably conclude that that is not the sort of conflict of interest that would disqualify the parent from presumptively having a say.

After all, if the mere desire of a parent to have his child with him and to rear him and to guide him and nurture him, one place where the child or someone purporting to speak on the child's behalf might prefer to have that child elsewhere, if that were a conflict of interest then that would be a fundamental, I think, attack on the understanding in a free country such as ours, that the autonomy of parent and child to develop that nurturing relationship would be seriously interfered with.

And what the attorney general has done is to interpret this nation's immigration laws consistent with those background principles of this nation's constitutional heritage, that the desire of the father to have the child with him and to nurture the child as the father sees best is not a conflict of interest.

To put it on nothing nearly as significant as you're posing but it is a common occurrence in life if a family is moving to another city, the child may say because of unfamiliarity with the other place or familiarity with where he is, "I want to stay here and I'll stay with Aunt Sally," well, that is not a conflict of interest between the parent and child, it is a --

JUDGE EDMONDSON: No, moving from Cleveland to Atlanta is not the same thing, as you noted, as from Cuba to 0the United States.

MR. KNEEDLER: No. No. But the point I wanted to make is that while the choice may be more difficult for the parent or while the choice may be more difficult for the attorney general and for others in this country to accept, it doesn't detract from the point that it is still ultimately the father's choice to make.

And under our constitutional system, difficult choices as well as easy choices are vested in the parent.

JUDGE EDMONDSON: Let me ask you, let me give you a hypothetical, which I concede is far grosser than I think the case I have in front of me but it helps. Just like you had some hypotheticals that were not exactly on point, I've got one that's not on point, either, but it will help me a little bit.

Let's suppose that we have a parent who resides in a hypothetical country in which children are mutilated in some way that is extremely offensive, at least to Western minds, on a regular basis; that in that country, given its culture, that is acceptable conduct. The child, in some way, makes his way to the United States. The sole surviving parent in the country, hypothetical country, sincerely, from the heart, says, "Look. I want and need my child to be with me, I believe that that is in my child's best interests."

Is that a conflict of interest case or is that kind of like this?

MR. KNEEDLER: No. That is the sort of situation that the commissioner's decision was addressed to, if there is an objective basis for believing that the child would be exposed to -- in the example you're citing, the harm, assuming it was otherwise covered by the refugee definition but of the sort of harm that you're describing would go beyond the level of asylum to the situation that would prohibit the Government from returning someone, where the Government is the actor.

So if you have that sort of very serious harm that is going back, that is the sort of objective circumstance that the commissioner's decision contemplates that there would be an adjudication. So that the commissioner's decision here was tailored, was carefully crafted both to protect the parent's rights but not absolutely, because of the concerns that there could be objective circumstances. {Fine, but how and when exactly were they actually reviewed and considered in this particular case?}

But it is important to sustain that balance that the attorney general struck because there is an important principle at stake here and that is the principle that ordinarily and presumptively it is up to the parent to decide whether to invoke the legal process of another country on behalf of his child.

And I just wanted to illustrate that by the reciprocal situation that if we had a U.S. child who had traveled abroad with a parent in somewhat similar circumstances and the parent died -- and let's take a country, let's say Iraq or China -- where a relative to the fourth degree invoked processes under that country's laws and said, "I think it would be better if this child remained here rather than to return to the decadent United States," they might say, it would be of grave concern to the United States if courts or administrative processes in other countries were too likely invoked on the basis of essentially an automatic invocation of a legal process, which is what the appellant calls for in this case, without giving the presumptive deference to the parent in the first instance to decide whether the parent wants that process to be invoked on behalf of his child.

JUDGE DUBINA: Let me go back with you just a minute or two to the past two questions.

MR. KNEEDLER: Yes, sir?

JUDGE DUBINA: You seem to concede in your brief that district court erred in its interpretation of any alien. So then we get to the question of the capacity, did Elian have the capacity.

MR. KNEEDLER: Yes, sir? {HE DID? IS THIS HIS ANSWER?*}        

JUDGE DUBINA: How can you determine that, you being the INS, if you've never interviewed the child?

MR. KNEEDLER: The reason for that is that capacity is something that has a judgment of common experience to it.

And let me point out that the commissioner's decision took the Seventh Circuit's decision in Polovchak as a touchstone, for example, in which the court there said that twelve is at the lower end of the range in which a child would be mature enough to make a life-altering decision in opposition to his parents.

A rough line like that pervades the Immigration Act.

As the commissioner pointed out elsewhere in her decision in deciding whether Elian was mature enough to hire the lawyers in this case and concluded that he was not, pointed out that INS regulations provide that a parent or child may sign an application or a petition for a child under age .

Now, that doesn't mean that is an automatic cutoff point but what it does suggest is that -- and that covers all manner of applications and petitions for

JUDGE DUBINA: Let me ask the question a different way: What did the INS base its decision on that Elian did not have the capacity to file a petition for asylum?

MR. KNEEDLER: What it based its decision on is that Elian at age six was far below what was the range of age suggested in the Polovchak decision. Secondly -- and for that reason, the commissioner had serious doubts that a child of this age could ever have the capacity to file an application.

And then secondly, she said that there has been no indication in the evidence that was submitted to her that Elian Gonzalez possessed or articulated or was able to even subjective fear of persecution on the grounds identified within the statute; and the third, that Elian Gonzalez was unable to swear or affirm to the truth of the contents of the application on which the asylum was sought.

And essentially what she said -- for a child this young, I think a flat rule that a six-year-old can never be sufficiently mature to make a life-altering decision like this would have been entirely within the commission’s determination. {*SO HE DID NOT THEN? SELF CONTRADICTORY?}

But what she said is at least in the absence of someone coming forward with any evidence that Elian Gonzalez had personally made a judgment of this sort, she was going to regard him as not having the capacity, the capacity to understand that he was applying for asylum, which has the notion that not only of the protected -- of the grounds for asylum that Judge Wilson referred to but also the understanding that applying for asylum is a permanent life -- he speaks a desire to have a permanent life choice. {WITH OUT ACCEPTANCE OF THE PRIOR-FILED APPLICATION OR CONDUCTING ANY HEARING INQUIRY}

JUDGE DUBINA: My last question, and I’ll leave you alone, if Elian's mother had survived this tragic journey, is there any doubt in your mind that her petition as well as her son's petition for asylum would have been granted by the INS?

MR. KNEEDLER: Well, if his mother had survived, it probably would not have been necessary to invoke the asylum process, because there is a special statute in the Cuban Adjustment Act and parol policies that build on that that would have allowed them to stay, because there, you would have had a parent who said, "I want to stay here."

And the great majority of Cuban-Americans who have come to this country have come and gotten protection under that general statute, not under the asylum statute. And, in fact, those that are interdicted, the great majority of them are found not to be refugees within the meaning of the Act and are returned.  

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ENDORSEMENTS

JUDGE WILSON: The appellant relies very heavily upon the fact that there are certain INS guidelines that are in effect that were not followed in this particular case.

How do you place those guidelines in context in connection with this case?

MR. KNEEDLER: Thank you. I did want to address that, because those guidelines, as the second sentence in the guidelines state, presuppose that there has been an application filed and they discuss what an asylum officer should do. And the asylum officer is the person who does the interview.

They do not speak to the antecedent question of whether there has been a valid asylum application filed.

The third situation they address is where the child is old enough to apply for asylum in his own right or where the child has a parent or a duly appointed legal guardian applying for asylum on his behalf. They do cover that situation but they do not speak to -- and certainly the commissioner's interpretation of her own guidelines is entitled to deference -- do not speak to the situation of whether a minor child can apply for asylum over the objections of the parent.

I had also wanted to point out that those guidelines specifically say on pages and 0 that they refer to the handbook of the United Nations Commissioner for Refugees and the U.N.H.C.R. takes the position that a child under the age of may be assumed not to be mature enough to apply for political asylum on his own behalf.

And what the United States has done is apply a floor, a presumptive floor that is considerably more generous than that. The U.N.H.C.R. is the official, the United Nations, official responsible for overseeing immigration matters generally.

I also wanted to point out that those guidelines cite U.N.H.C.R., the INS guidelines cite U.N.H.C.R. guidelines on the interview of unaccompanied minors. Those are cited several places in the guidelines.

And going back to the question of interviewing Elian, those guidelines, the U.N.H.C.R. guidelines, suggest that an interview of a child would only be necessary if the child was sufficiently mature to warrant an interview.

And as we point out in our brief, there are a number of state court cases that we have cited that have concluded it's not necessary even to interview a child.

But, again, the question there is whether the attorney generals decision is facially legitimate or arbitrarily capricious for not having sat down and interviewed the child in this case. And the absence of any evidence in the administrative record on the question of the need to interview

Elian, that he had anything personal to add, it was certainly not, we think, an abuse of discretion not to do that.

JUDGE EDMONDSON: Mr. Kneedler, I think we have no more questions and

MR. KNEEDLER: Could I make just one more point?

JUDGE EDMONDSON: How about one minute for one point?

MR. KNEEDLER: Okay. I just wanted to point out that the point has been made that there are no preexisting regulations on this subject and nothing in the INA requires that the attorney general proceed only by regulation.

In fact, the supreme court's leading decision in Chanery (phonetic) on administrative action allows agencies to proceed by either administrative adjudication -- and this was an informal adjudication -- or by regulation.

And certainly nothing in the INA detracts from that and Chevron deference applies equally to determinations and constructions of statutes that are made in adjudications as opposed to regulations.

The attorney general had to decide whether this was a 0child who had capacity and whether the person purporting to speak on his behalf could legitimately displace the child's wishes and the absence of regulations could not get the attorney general off the hook of having to make that decision, and so she made that decision on the basis of guidance by analogous things but without a regulation.

JUDGE EDMONDSON: Thank you, Mr. Kneedler.

MR. KNEEDLER: Thank you, your Honor.

JUDGE EDMONDSON: Mr. Craig, would you come up and speak to us, please?

MR. CRAIG: Thank you, your Honor.  May it please the Court, I would like to thank this court for the opportunity to participate in these proceedings. I'm grateful for this chance to speak for Juan Miguel, who is the father of Elian.

JUDGE DUBINA: I have but one question and then I'll leave you alone: From everything I've read in this case, I have no reason to believe that your client is anything but a loving father to his son.

I do not know what it takes if you're a Cuban national to get out of the country of Cuba. But I think this goes a little bit to the conflict of interest question that Judge Edmondson asked a few moments ago.

Will you explain to us why it took your client five months to leave Cuba, to come to the United States to see his son, after he learned that his son had survived?

MR. CRAIG: His position throughout this, your Honor, was that if I was confident that I would be given my son the day I arrived in the United States, I would have been there immediately.

Now, I've gone back and thought in retrospect would he have had a chance had he come at that window of time when he first learned that his boy had been recovered and was okay. And Ifve looked at what happened within the 24, 48, 72 hours after the time Elian was fished out of the Atlantic Ocean and brought to the hospital.

The very next day as he was being taken out of the hospital and turned over by the INS to the relatives in Miami, one of the relatives was quoted in The Miami Herald as saying, "Heaven has brought him to freedom, we will not let him go back." That was the first thing that happened.

The very next day, the relatives in Miami retained a lawyer for the purpose of blocking access to the boy by the father and blocking his ability to return the son to his father in Cuba. That happened the very next day.

The following day, which is a Sunday, leaders of the Cuban-American community in Miami visited the boy and made announcements to the public press that there was no way that this boy would be sent back to Cuba to his father.

So already, the ground rules of the battle had been 0set within two or three days after this poor boy's arrival and the politics had intruded into what should have been essentially a family affair and it's unfortunate and it may well have deterred Juan Miguells willingness to go.

I begin with that little history that the signals that were coming down to Cuba from Miami were, "We're not going to let this boy go, no matter what."

The second thing to point out, your Honor, is that these are two very hostile bureaucracies and this is a simple man who lives in Cardenas. It is not an easy thing for any Cuban national to get a visa approved either by his government or the government of the United States. So there were bureaucratic impediments that were quite clear.

And if you go back and look at the reporting -- and I'm not sure that the Miami Herald or any of the newspapers at the time were totally reliable but that's what I've got to answer your question -- the reporting is that the INS said that it would consider the application for a visa by Juan Miguel as it would any other national from Cuba, which means that it would be put into a lottery and it would be a matter of time, a good deal of time; it would be given priority but it would be considered in the same method as from any other Cuban national.

I fault the INS for not going to Juan Miguel right then and saying, "Mr. Gonzalez, if you are the father and you 0want this boy, the best thing for you to do is to come to the United States and retain a lawyer, because the other side has got a lawyer, and we will be with you to fight for him."

The third thing that happened was that the INS itself did not complete its inquiry until January rd and did not notify Mr. Gonzalez until January th that the INS had decided that he was the father, that he could speak for the boy and that he was entitled to take custody of the boy.

Now, what Juan Miguel did do, your Honor, was the day after he learned -- he learned about the boy's recovery on a Thursday. That very next day, he gathered the birth certificate, his marriage certificate and his educational records, the hospital and medical records and he wrote a letter to his government saying, "They have my son, I want him back; '- here is proof." This was on the advice of the officials in his local town.

So he took every action that he knew to take and then he learned that the relatives in Miami were asserting a claim of custody, that they would not return the boy, and the situation got worse and worse.

JUDGE DUBINA: I certainly didn't mean to take all of your time by asking you that question but I did think it was a fair question to ask you. And maybe if our presiding judge would indulge you a few more minutes to say whatever you to say to us --

JUDGE EDMONDSON: Sure. We are here, let's make use of it.

Mr. Craig, you want to take a couple of minutes and tell us some thoughts that you had apart from our questions? 
{AGAIN SIPIDLY, UNLIKE JUDGE W.'s  BEHAVIOR TOWARD MR. COFFEY.}

MR. CRAIG: Thank you, your Honor.

To us, the issue here is whether a remote relative over a father's wishes can force the INS to accept and process an asylum application, which if granted could conceivably destroy the parental rights of Juan Miguel and dismember his family; and if denied, could conceivably cause such delay, up to six years, such as to transform the father and his family into prisoners of the administrative and appellate procedures associated with the asylum law.

I'm really not here to argue intricacies of INS practices and policies, I'm here simply to say that we think the INS got it right and that its final resolution of these issues is supported by our common sense and our common law, our community values and our nation's constitution.

I believe I begin with the Court's understanding, I hope, that this is a loving father, who spent an enormous amount of time raising this child for six years, both before and after the separation with the birth mother.

I also assert, your Honor, that Juan Miguel has spent more time and knows this boy better than anyone in this courtroom or anyone on the face of this planet and that Juan Miguells concern about his well-being, about his happiness and about his future take second place to no one.

He, like any father, wants his son to be happy, to live a full and satisfying life, to grow up, raise a family and share in the same joys and satisfactions that he had when he grew up.

And that is why, your Honor, I think that the inherent conflict of interest does enormous damage to parents who have the misfortune to be living or to be born or to be raised in communist countries. I think mostly we would respond to a parental appeal from a Polish family who is living under communism that their son, if he were in this situation, should be returned, a six-year-old son.

It imposes a punitive -- the kind of presumption against a family in one of these countries - 
{SO, HOLD A HEARING!}

JUDGE EDMONDSON: Let's talk about that for awhile.

MR. CRAIG: I’m happy to, your Honor.

JUDGE EDMONDSON: I don't think that under the statute that the chief concern that the INS can have is your client's feelings. I think that their chief concern and maybe -- let me underline the word "maybe" -- their only concern can be the child's rights under American laws once he is here.

There is a little different idea -- I mean, you can have a parent -- of course, we have cases in the United States you're an experienced lawyer, you know about such things we have cases in the United States where there are parents who sincerely, honestly, lovingly will not allow their children to have certain kinds of medical care. And there is no question about their sincerity, yet I think it's not uncommon for courts of law, administrative entities also, family and children services and so on, to override the parents' interests not because it is insincere but because that it seems to be so conspicuously in conflict with the needs of the child at the moment.

In the case -- let me give you a hypothetical. My guess is that you’ve heard every hypothetical that there is but let me give you this hypothetical so you can talk to me about this.

Let's assume that we are still residing in the world where international communism was a viable entity; that the Berlin Wall, for example, was still fully in place; that we have a mother and child who attempt to escape. In the course of that escape, the mother dies but, in some way, the child gets beyond the Wall and comes into West Berlin, that bastion of liberty in that part of the world at that time.

Is it clear to you that the father in Communist Germany, without regard to his sincerity -- which I accept for the sake of argument -- as I say, the father says, "Look, I want my child back, he is my flesh and blood, I love him more than anything in the world, I want my child back," is it clear to you that his wishes under those circumstances would trump everything and because he is the father of the child would have been likely to have been returned?

MR. CRAIG: If American immigration law were applicable in the German situation, it seems to me quite clearly that the sole surviving parent, if there is that parent, if there is not objective evidence that shows that that parent is abusive or will subject that child to or is incompetent or cannot take care of that child, if there is not objective evidence that by returning this boy, say, six years, to his father, he will be subjected to torture or physical mutilation or objective evidence of some kind of suffering that would warrant the interference with the parental rights, it ",,, seems to me quite clear under almost universal applications of international conventions and custom that that child would be returned to his father. I think that would be the case if the INS dealt with it here. {SO, HOLD A HEARING!}

I would like to say, your Honor, one thing having to do with this question of coercion and whether Juan Miguel Gonzalez is, in fact, a free decision-maker at this point, because I think that's of some importance in your deliberations.

When the INS first interviewed him, knowing that it was Cuba, they took precautions, they made every effort to determine whether or not there was coercion. They found none. {AN APPLICATION FOR ASYLUM HAD BEEN SUBMITTED; SO AT LEAST HOLD A HEARING}

Juan Miguel came to the United States; he brought his immediate family, his wife and his child. He spoke to the top government officials in this country alone. He is represented by a lawyer who is pledged to speak for him and to respond to him. My duties run to him only. He can instruct me to do whatever he wants to do. He has met with journalists, he has met with members of Congress; he has been free to express openly and freely his opinions throughout.

Now, he has also just requested that visas be granted to the extended family, to the grandparents that are still in Cuba so that they will come up and visit him. {BUT, NEVER ALL OF THEM IN THE U.S. AT ONCE.}

He has made it quite clear that whatever his decision may be as to where he chooses to raise his son, he wants it to be his own decision, free of any kind of either manipulation from Miami or coercion from Havana. And it's my duty to him to try to make it possible for him to make that decision.

Your Honor, I want to say just in closing that there is a real family here and the decisions that you make here will have an immediate and enormous impact on the vitality of the family. It is a close family, it is a unit, it is intact, it is functional.

But it's also in jeopardy. It is in jeopardy from this court's action for fear that asylum proceedings follow. It is in jeopardy from the actions of Lazaro Gonzalez, who 0still purports to speak for Juan Miguel over Juan Miguells consent and over his objection.

My plea to the Court on behalf of this family is to lift the cloud of doubt and uncertainty from their lives, to do it quickly and to set them free to return to paths of their own choosing and destinies of their own design.

Thank you very much, your Honor.

JUDGE EDMONDSON: Thank you very much, Mr. Craig.

Mr. Coffey, come up and give us your rebuttal, if you will.

MR. COFFEY: Thank you, your Honor.

JUDGE EDMONDSON: You need to understand -- Matt, would you turn off the clock and let me speak to this lawyer for a minute? { INTENDING TOWARDS SOME FAIRNESS.}

In an abstract kind of way, at least, I see this case legally as being chiefly about separation of powers.

I tell you that because maybe that will cause you to shape your rebuttal one way or another. But that is the real problem, is the separation of powers issue for me.

I am certain about one proposition: However I might personally feel about what would be best for Elian Gonzalez is not supposed to determine the outcome in this case. I trust that you agree with that absolutely?

MR. COFFEY: I understand that, your Honor.  {IF SO, WHY DID MR. COFFEY FAIL TO FURTHER DEVELOP ON THAT POINT CLEARLY OR DIRECTLY DURING HIS ENTIRE ORAL ARGUMENT OR CLOSE?}

I would like to initially turn to a question raised by Judge Dubina, who asked why four, five months. And to clarify perhaps what Mr. Craig said, INS asked him right up front -- and I'm reading right out of the record -- "You may apply for a visa to the United States to see Elian now." This was in early December. Visas are generally granted in situations like that.

"Do you wish to apply?" "No, I'm not interested." He says he didn't want to apply when pressed.

He fills out a questionnaire: "Do you want to go to the United States to see Elian now, yes or no?" He checks, "No. if I make that point, your Honor, not to emphasize that this is not a loving father. We are not here to take issue with that but to emphasize that even the most loving parents in ',, the world cannot always control the harm that their children may face.

And there is no parent in Cuba that controls what will happen to his or her child. And there is no power in this country that can protect Elian Gonzalez if he is removed to Cuba.

And let's make no mistake about it, there is no way that a regime that has been obsessed with this child, who is probably the most famous six-year-old in the world, is going to allow him to walk around and say that America is a good place, that he wishes he was back with his Miami relatives, that his mother died in that dark night for something of value.

The stepfather that put him on the inner tube, it is a clearly aggressively -- was a clearly aggressively persecuted traitor. They have got to -- and we say there is a reasonable possibility that’s the only standard under the asylum laws -- they have got to make sure this kid is clammed up and shows up at the parades and says all of the right things that Castro wants him to.

And, of course, psychological harm and political exploitation are the kinds of things that are recognized in the INS's own guidelines.

And to speech capacity, these guidelines make it clear that children have capacity, they talk about how to speak to individual independent asylum applicants in words that could ',, be understood on Sesame Street. They talk about bringing in, if you can, a trusted adult. It doesn't have to be a parent. It doesn't have to be even somebody with the role that Lazaro Gonzalez had, which, by the way, was good enough for a federal court standing and why that wasn't good enough for the INS has never been explained.

Of course, he had capacity. And if they are going to reject any six-year-old--- …    -- (CUT OFF AGAIN! [#6]! SHOULD HAVE FINISHED WITH: “THEN A SPECIFIC AGE LIMITATION WOULD OR SHOULD HAVE BEEN SPECIFIED IN THEIR PRIOR/EXISTING REGULATIONS” )

JUDGE WILSON: And this six-year-old can take all these factors into consideration and make these decisions himself?

MR. COFFEY: Your Honor, a six-year-old cannot understand U.S. asylum application details and the intricacies of U.S. asylum law. of course, they can't.

I would guess that the vast majority of alien asylum applicants have great difficulty and do not understand the details. That's why they have lawyers.

But that's also why the INS, fully aware of all of the principles and the norms and everything that the INS has talked about and invoked about family values, which we obviously concur with, they absorbed all of that wisdom into guidelines in and they specifically make it clear that a six-year-old has these rights; that if a six-year-old lacks --- ...   {(CUT OFF AGAIN! [#7]!! }

JUDGE WILSON: But in the face of competing people ,asserting their interests on behalf of this child, the INS does not have the discretion to evaluate the interests of these individuals and determine who appropriately speaks for the child?

MR. COFFEY: Your Honor, they have to follow their own announced procedures and they didn't. {WHY NOT STATE HOW, SPECIFICALLY, DID THEY FAIL TO DO SO?}

And when we talk about separation of powers, that's one of the most critical issues there is, because if an agency is going to be given the ball to run with, they have got to stay within the bounds of the field and they have got to follow the rules. {HOW DID THEY FAIL?  WHERE DOES HE BEGIN TO ADDRESS THIS ISSUE AS CLEARLY GUIDED BY JUDGE E. WHO PRACTICALLY BEGGED HIM FOR A FOLLOWUP!!!, TOTAL LACK OF ANY AND ALL “THOROUGHNESS” AS REQUIERED IN CASES LIKE S. C.: “SKIDMORE vs. SWIFT & CO.”}

JUDGE WILSON: Doesn't the INS have the discretion to interpret its own guidelines?

MR. COFFEY: Your Honor, they have the discretion to promulgate rules consistent with the rules of Congress and if they get -- ...  – {CUT OFF AGAIN!!! [#8]!!! SAY SOMETHING TO THE JUDGE!!!}

JUDGE WILSON(!): And we are required to give deference to their interpretation of those guidelines. It's clear in the law that that's true.

MR. COFFEY: Your Honor, their interpretations that are fashioned for the first time in the scope of a controversy get no deference. And this court as recently as March made that very clear in the IAL Aircraft case.   {?}

The last thing the agencies are supposed to do is in the midst of a difficult controversy, especially a case of this magnitude of controversy and emotion, is to make up the rules as they go along.

To be very specific, they have now said in the new rule that there is a pre-screening requirement that you have to put all of the evidence in for objective fear of persecution. To be clear, very young children are basically excused if they lack subjective fear of persecution, so the issue turns to objective fear of persecution. And what they are saying is they can create a pre-screening procedure that never existed before and not even tell you and not even have it in place at the time the application is considered.

And, in fact, the evidence shows, Mr. Bernsteints affidavit says that when he went into the meetings with the INS, they said, "We don't want to deal with the merits of the asylum claim." There was no procedure saying you've got to put it on all on the asylum application. The regulation says at the hearing, you provide additional evidence, which we got, which is in the record, and yet what they did basically, your Honor, is reverse the rules of the game and say that even though your asylum application in so many words was consistent with every known procedure at the time, now, months after the fact, we can write new rules requiring a substantial threshold showing in the application itself, never existed before, and bounce out the application retroactively. That is the heart of unfair process.

And whether due process is treated as a constitutional doctrine, as a statutory based doctrine, as it was in Jean versus Nelson and Marencus versus Lewis, this agency approach offends due process under any scenario.

A couple of other points and then I'll thank the court for your extensive patience.

JUDGE WILSON: I thought that we held in Botkin (phonetic) and in Jean versus Nelson that an un-admitted alien is not entitled to the constitutional protections and processes?

MR. COFFEY: Exactly. But I'm saying, your Honor, that the notions of due process and fairness and require an agency to follow its own -- this is mentioned three or four times in Jean versus Nelson -- the statutes, the regulations and its own announced procedures. The courts have the right and the duty to enforce those things as matter of statutory principles. That's the holding of Jean versus Nelson.

Lewis versus Marencus, Third Circuit, same thing: They did not either recognize constitutional due process and the asylum process. They said, "Look, you got to be fair. You can't reinvent the rules after the fact, you have to be fundamentally fair."

And, your Honor, in H.V.C. versus Smith, and a result that I think is still applicable today, because, again, there was a statutory basis for results, a constitutional basis, this, court said the Constitution doesn't apply but the statutory analysis does.

They said a hearing in some form is a necessity for an asylum adjudication and the guidelines just points and that I think are quite important, says that it provides memorandum guidance on adjudicating asylum claims.

And, in fact, it makes it clear on page six of the guidelines, they are automatically scheduled for interviews and sent interview notices after the filing of asylum applications. All of the language is mandatory.

These hearings typically take an hour and a half, but at least the applicant, the person who may be in harm's way, gets to come before a neutral decision-maker. The U.N. guidelines -- and they are flat wrong.

If you look at section and , the statement that children under are somehow prescribed by the U.N. guidelines couldn't be more wrong, "Specifically contemplates adjudication by a neutral fact-finder even if the will of the child is in conflict with the parent."

And that same premise that even if --

JUDGE EDMONDSON: Mr. Coffey -- Mr. Coffey, I think you've answered Judge Wilson's question. Why don't you take two minutes and sum up? I can't promise that we won't interrupt you but we can say we will try. We say we will try, we will not – {WHY NOT LET THE JUDGE FINISH  HIS SENTENCE HERE K. C.?}

MR. COFFEY: Okay. Judge, I truly appreciate that. {BETTER IF HAD SAID MUCH EARLIER}

There is a role for the best interests of the child, of course. It does not determine substantive asylum law. The INS guidelines make that clear, that it is nonetheless a court process in terms of how it is considered. And that is exactly why what should have been done was a hearing granted and an asylum hearing is all this case is about with the participation of the father, if he wanted to participate in that hearing, because U.S. law says that, of course, parental rights have great, great importance and they should. But they say in the final analysis that the best interests of the child has to be considered. And the rights here to be protected from harm are the rights of a child.

It is not a harm that would ever be inflicted upon the father. If the affidavits of record ate right, this child is going to be purged of illegal thoughts in a communist country. He is a traumatized child. That kind of purging is potentially of grave and serious harm.

It would offend any standard of law, including, incidentally, the Hague convention, which they keep referring to. That hearing was never granted. A brand new procedure to somehow not really consider but maybe consider an asylum application was conceived after-the-fact, just for the purpose of avoiding a hearing.

But even if it has discretion, as this court has held so many times on whether to grant asylum, the duty to consider the application with the hearing is integral to the system.

Whenever a child is harmed and whenever a child faces future harm, it's a very basic effort to try to talk to the child, find out what happened, see if there is circumstances that put that child at risk. And yet, inexplicably, inexcusably, improperly, the INS refused to do that and to this day, there is no explanation. That is the most minimum process that is ever recognized not only in our courts but in INS procedure.

There is no counterpart for a procedure that rejects the asylum applicant without even talking to them and it is especially wrong to do so in the case of a small child.

JUDGE EDMONDSON: Mr. Coffey, I think that we understand your position and we thank you for coming.

Do you have one more word you want to say?

MR. COFFEY: That word is thank you, your Honor.

JUDGE EDMONDSON: That's a very good choice.

Well, when I came out this morning, I said I looked forward to hearing these oral arguments. I thank you for them. The court thanks you, I think they were helpful.

I also came out this morning and asked the audience to help us, and you have. I thank you, too.

We will be in recess.

(Proceedings concluded.) CERTIFICATE
I, DONNA C. KEEBLE, Official Court Reporter, certify that the foregoing pages are a correct transcript from the record of proceedings in the above-entitled matter.

    

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SOME FURTHER R. L. C. COMMENT ON LEGAL COUNSEL:   For Mr. Kendall Coffey: The change of Elian’s ‘possession’ by Executive Branch’s forcible removal patently altered the substantive pattern of the custody case.  DUE TO THE SEIZURE, YOU HAD AN UPHILL BATTLE AND IT I APPEARS TO ME JUDGE WILSON WAS LESS THAN 'APPROPRIATE' . Nevertheless, please explain why you did not rethink the thrust of your constitutional argument.  More to the point, you failed to tailor your May 11th Oral Argument’s Close so as to address the favorable issues clearly brought forth by Judge Edmondson questioning.  Maybe Monday morning Q.B. plays. Nevertheless, I wonder about your thoughts on the following:   FIRST:  JUDGE EDMONDSON:  Let's talk a little bit about the question of inherent conflict of interest where the child is in the United States, the sole surviving parent is in a country which our country says is a communist totalitarian state which regularly violates the freedoms and rights of its citizens.   I don't think I exaggerate what the State Department says about Cuba, do I? (Government's Attorney) MR. KNEEDLER: No THEN LATER  JUDGE EDMONSDON AGAIN TO MR. KEEDLER: JUDGE EDMONDSON: Let me ask you, let me give you a hypothetical, which I concede is far grosser than I think the case I have in front of me but it helps.  Just like you had some hypotheticals that were not exactly on point, I've got one that's not on point, either, but it will help me a little bit.  Let's suppose that we have a parent who resides in a hypothetical country in which children are mutilated in some way that is extremely offensive, at least to Western minds, on a regular basis; that in that country, given its culture, that is acceptable conduct.  The child, in some way, makes his way to the United States.  The sole surviving parent in the country, hypothetical country, sincerely, from the heart, says, "Look. I want and need my child to be with me, I believe that that is in my child's best interests."  Is that a conflict of interest case or is that kind of like this? MR. KNEEDLER: No... (see full transcript above) {THIS QUITE VIABLE "CONFLICT" ARGUMENT WAS ONLY TANGENTIALLY TOUCHED ON BY KNEEDLER AND CRAIG YET WAS NOT USED AS ANY DIRECT ATTACK ON YOUR PART.  WHY? AND THEN MOST DISMISSIVELY:}     THEN LATER:   ... MR. COFFEY: Thank you, your Honor. JUDGE EDMONDSON: You need to understand -- Matt, would you turn off the clock and let me speak to this lawyer for a minute?  In an abstract kind of way, at least, I see this case legally as being chiefly about separation of powers. I tell you that because maybe that will cause you to shape your rebuttal one way or another. But that is the real problem, is the separation of powers issue for me. ( JUDGE E. GOES ON FURTHER , CONTINUING) I am certain about one proposition: However I might personally feel about what would be best for Elian Gonzalez is not supposed to determine the outcome in this case. I trust that you agree with that absolutely? MR. COFFEY: I understand that, your Honor. {A SEEMING OBVIOUS GUIDANCE TO: EXECUTIVE MISSTEPS  i.e. INTERPRETATION OF REGULATIONS WITHOUT DUE DILIGENCE, AS IN “SKIDMORE” [SEE BELOW.] .    WHAT ABOUT ELIAN''S FORCIBLE  EXECUTIVE SEIZURE POSSIBLY TO BE RECTIFIED BY JUDICIAL INTERVENTION THAT WAS NOT EVEN TOUCHED UPON BY MR. COFFEY?}   {IF UNDERSTOOD, WHY FAIL TO FURTHER DEVELOP ON THAT POINT CLEARLY OR DIRECTLY DURING THE ENTIRE REST OF YOUR ORAL ARGUMENT & CLOSE:  i.e.: NO COURT STIPULATED ‘GOOD FAITH MEDIATION’ BY THE JUSTICE DEPT., i.e. ‘ILLEGALITY’ OF THE RAID AS WELL AS NO POST RAID VISITATION PERMITTED, NO POST RAID EXECUTIVE CONCESSIONS TO THE COURT, i.e. NO JUDICIAL SUPERVISION, ETC., ETC, ETC???  WHAT OF SUMMING UP WITH FATHER'S CONFLICT OF INTEREST ISSUES, CHILD'S HUMAN RIGHTS vs PARENTAL WISHES, ALONG WITH: NO INTERVIEW.}   AND FINALLY: AS FAR AS THE APPLICATION, THE INTERVIEW AND THE HEARING'S CONSTITUTIONAL ISSUES: I AM NOT A LAWYER AND HAVE NO FORMAL LEGAL TRAINING BUT RATHER THAN ATTACKING "CHEVRON" DIRECTLY, VIA  Christensen v. Harris County (see 11th Circuit decision at the end),  MY SHORT INTERNET SEARCH & READINGS LED ME TO S.C. JUSTICE, BREYER's: DISSENT ON "CHRISTENSEN" -  IN "Christensen Dissent" JUSTICE BREYER SITES "SKIDMORE" [SEE BELOW]:

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From U.S. Supreme Court's "Website": SKIDMORE v. SWIFT & CO., 323 U.S. 134 (1944) 323 U.S. 134 SKIDMORE et al. v. SWIFT & CO.  No. 12. Argued Oct. 13, 1944. Decided Dec. 4, 1944.  .... The law does not impose an arrangement upon the parties.  It imposes upon the courts the task of finding what the arrangement was. We do not minimize the difficulty of such an inquiry where the arrangements of the parties have not contemplated the problem posed by the statute. But it does not differ in nature or in the standards to guide judgment from that which frequently confronts courts where they must find retrospectively the effect of contracts as to matters which the parties failed to anticipate or explicitly to provide for. Congress did not utilize the services of an administrative agency to find facts and to determine in the first instance whether particular cases fall within or without the Act.  Instead, it put this responsibility on the courts.   Kirschbaum v. Walling, 316 U.S. 517, 523 , 62 S.Ct. 1116, 1120. But it did create the office of Administrator, impose upon him a variety of duties, endow him with powers to inform himself of conditions in industries and employments subject to the Act, and put on him the duties of bringing injunction actions to restrain violations. Pursuit of his duties has accumulated a considerable experience in the problems of ascertaining working time in employments involving periods of inactivity and a knowledge of the customs [323 U.S. 134, 138]   prevailing in reference to their solution. From these he is obliged to reach conclusions as to conduct without the law, so that he should seek injunctions to stop it, and that within the law, so that he has no call to interfere. He has set forth his views of the application of the Act under different circumstances in an interpretative bulletin and in informal rulings. They provide a practical guide to employers and employees as to how the office representing the public interest in its enforcement will seek to apply it. Wage and Hour Division, Interpretative Bulletin No. 13. The Administrator thinks the problems presented by inactive duty require a flexible solution, rather than the all-in or all-out rules respectively urged by the parties in this case, and his Bulletin endeavors to suggest standards and examples to guide in particular situations. In some occupations, it says, periods of inactivity are not properly counted as working time even though the employee is subject to call. Examples are an operator of a small telephone exchange where the switchboard is in her home and she ordinarily gets several hours of uninterrupted sleep each night; or a pumper of a stripper well or watchman of a lumber camp during the off season, who may be on duty twenty-four hours a day but ordinarily 'has a normal night's sleep, has ample time in which to eat his meals, and has a certain amount of time for relaxation and entirely private pursuits.' Exclusion of all such hours the Administrator thinks may be justified. In general, the answer depends 'upon the degree to which the employee is free to engage in personal activities during periods of idleness when he is subject to call and the number of consecutive hours that the employee is subject to call without being required to perform active work.' 'Hours worked are not limited to the time spent in active labor but include time given by the employee to the employer. ...' [323 U.S. 134, 139]   The facts of this case do not fall within any of the specific examples given, but the conclusion of the Administrator, as expressed in the brief amicus curiae, is that the general tests which he has suggested point to the exclusion of sleeping and eating time of these employees from the work-week and the inclusion of all other on-call time: although the employees were required to remain on the premises during the entire time, the evidence shows that they were very rarely interrupted in their normal sleeping and eating time, and these are pursuits of a purely private nature which would presumably occupy the employees' time whether they were on duty or not and which apparently could be pursued adequately and comfortably in the required circumstances; the rest of the time is different because there is nothing in the record to suggest that, even though pleasurably spent, it was spent in the ways the men would have chosen had they been free to do so.  There is no statutory provision as to what, if any, deference courts should pay to the Administrator's conclusions.  And, while we have given them notice, we have had no occasion to try to prescribe their influence.  The rulings of this Administrator are not reached as a result of hearing adversary proceedings in which he finds facts from evidence and reaches conclusions of law from findings of fact. They are not, of course, conclusive, even in the cases with which they directly deal, much less in those to which they apply only by analogy. They do not constitute an interpretation of the Act or a standard for judging factual situations which binds a district court's processes, as an authoritative pronouncement of a higher court might do. But the Administrator's policies are made in pursuance of official duty, based upon more specialized experience and broader investigations and information than is likely to come to a judge in a particular case. They do determine the policy which will guide applications for enforcement [323 U.S. 134, 140]   by injunction on behalf of the Government. Good administration of the Act and good judicial administration alike require that the standards of public enforcement and those for determining private rights shall be at variance only where justified by very good reasons. The fact that the Administrator's policies and standards are not reached by trial in adversary form does not mean that they are not entitled to respect. This Court has long given considerable and in some cases decisive weight to Treasury Decisions and to interpretative regulations of the Treasury and of other bodies that were not of adversary origin. We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control. (IN A FAIR LEGAL AUDIENCE) The courts in the Armour case weighed the evidence in the particular case in the light of the Administrator's rulings and reached a result consistent therewith. The evidence in this case in some respects, such as the understanding as to separate compensation for answering alarms, is different. Each case must stand on its own facts. But in this case, although the District Court referred to the Administrator's Bulletin, its evaluation and inquiry were apparently restricted by its notion that waiting time may not be work, an understanding of the law which we hold to be erroneous.  Accordingly, the judgment is reversed and the cause remanded for further proceedings consistent herewith. Reversed. { SEE FULL CASE @:  FindLaw: U. S. Case Law: Supreme Court OR LINK TO: < http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=323&invol=134 >  SO MR. COFFEY FINALLY (SECOND) :  IN LAZARO GONZALEZ v JANET RENO THE INS RELIED ON NOTHING PREEXISTING (NOT EVEN A BULLETIN AS WAS HELD INSUFFICIENT IN "SKIDMORE") AND, WITHOUT AN INTERVIEW OR A HEARING, ANY CONSIDERATION IN THEIR  INTERPRETATIVE RULING  WOULD APPEAR TO FALL FAR SHORT OF ALL ‘CONSISTENCY’ AND ALL ‘THOROUGHNESS’ .   -------------------------------------------------------------------------------- THANK YOU FOR YOUR ATTENTION!  Sincerely,   Dr. Robert L. Chacona

 

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& THE COURT'S ACTUAL DECISION:  (VERY BRIEF!) IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 00-11424 -------------------------------------------- D. C. Docket No. 00-206-CV-KMM ELIAN GONZALEZ, a minor, by and through LAZARO GONZALEZ, as next friend, or, alternatively, as temporary legal custodian,  Plaintiff-Appellant, v. JANET RENO, Attorney General of the United States; DORIS MEISSNER, Commissioner, United States Immigration and Naturalization Service; ROBERT WALLIS, District Director, United States Immigration and Naturalization Service; UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE; and UNITED STATES DEPARTMENT OF JUSTICE, Defendants-Appellees, JUAN MIGUEL GONZALEZ, Intervenor. ---------------------------------------------------------------- Appeal from the United States District Court for the Southern District of Florida ---------------------------------------------------------------- (June 23, 2000) ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC (Opinion __________, 11th Cir., 2000, ___ F.3d ___). Before EDMONDSON, DUBINA and WILSON , Circuit judges. PER CURIAM: Our decision of 1 June hung largely on two ideas: (1) that the policy adopted by the INS in this case -- a policy developed in what we called "informal adjudication" -- was due "some deference" because 8 U.S.C. § 1158(a) was silent on the precise question at issue and because the INS had the duty to set how the statute was to be applied when the statute was silent, and (2) that the level of deference due the INS policy was strengthened -- becoming "considerable" -- when we also took into account the foreign policy implications of the administrative decisions dealing with immigration. Among other things, our opinion spoke of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 104 S. Ct. 2778 (1984). When our opinion was written, we knew of Christensen v. Harris County, 120 S. Ct. 1655 (1 May 2000), a Fair Labor Standards Act (FLSA) decision. But no lawyer in this case had cited or argued Christensen to us. More important, we thought that Christensen -- which involved no immigration law, no foreign policy considerations, and no kind of agency adjudication -- was noncrucial to this case. So, we never mentioned Christensen. Now in the petition for rehearing, Plaintiff stresses Christensen. Therefore, we will write briefly about it. First, Christensen involved an opinion letter from the Department of Labor giving advice to Harris County, Texas. The letter, in itself, did not decide Harris County's rights; it did not stop and did not purport to be able to stop Harris County from acting against the advice given. The letter was in no way binding on Harris County. And later when Christensen arose as active litigation, Harris County was not sued by the Department of Labor, but by private citizens: county employees who contended that Harris County was misconstruing the FLSA. The Supreme Court said that the administrative position taken in the opinion letter was not due Chevron deference. As we read it, the Supreme Court's opinion also indicated that the view of the pertinent statute taken in the opinion letter was wrong and unreasonable: "this view is exactly backwards." Id. at 1663. In our case, the INS did directly decide Plaintiff's specific right to file certain asylum applications (did not ever exist at all!) under the pertinent statute(?!)  and did so after receiving and weighing some evidence(??!!-informally-??!!) .  The INS acted in the context of an actual and concrete dispute with and before that agency (without accepting any application or a conducting any hearing) . The INS decision(*) was final and binding on Plaintiff unless he, in effect, appealed it to a court. The sovereign power of the United States -- per the INS and the Attorney General -- had ('retroactively' AND without 'thoroughness') determined that neither Plaintiff himself nor Lazaro Gonzalez could file for asylum on Plaintiff's behalf over the objections of Plaintiff's father.  This kind of administrative decision-making -- which we think no one can seriously question(?!) was the deliberate and official position of the pertinent agencies of the executive branch of our government -- is substantially different from and more than the opinion letter in Christensen. We considered the administrative decision-making in this case to be adjudication(-1) and to be outside Christensen's scope.(-1)  In our view, to apply Christensen to this case would not be following Christensen, but would be an extension of Christensen. Second, we thought, even when Christensen does apply, administrative decisions of agencies are still due some deference. And we believed that under Chevron or Christensen, when the foreign-policy impact of immigration law was added as a separate source of judicial deference, we were justified in exercising the judicial restraint that marked our opinion.   In addition, we did conclude that the executive branch decisions under section 1158 were reasoned and reasonable.   (What' impact' specifically applies in this case AND, in this case, how was it 'reasoned and reasonable' NOT to allow the application & NOT to HOLD a HEARING?) The petition for rehearing(0) is DENIED; and no member of this panel nor other Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, the Petition for Rehearing En Banc is DENIED. The mandate of this court will issue on Wednesday, 28 June 2000, at 4:00 in the afternoon (Atlanta time). A filing of a motion to stay the issuance of the mandate will not extend the time for the issuance of the mandate. Expect no motions to stay the issuance of the mandate to be granted. All injunctions in this case will dissolve on Wednesday, 28 June 2000, at 4:00 in the afternoon (Atlanta time). All further requests for stays or for injunctive relief should be directed to the Supreme Court of the United States. Entered for the Court: /s/  J.L. EDMONDSON UNITED STATES CIRCUIT JUDGE FOOTNOTES *. By "the INS decision," we mean the decision of the INS Commissioner, as affirmed by the Attorney General. -1. See 5 U.S.C. § 551(6)-(7). -1. The Supreme Court opinion gives some examples of the kinds of agency acts that are due Chevron deference. In setting out some examples, "formal adjudication" is mentioned. We have described what happened before the INS in our case as informal adjudication. We understand the listing in Christensen to be illustrative and not to be an exhaustive or complete list of agency acts due deference. And, see Pension Benefit Guar. Corp. v. LTV Corp., 110 S. Ct. 2668, 2678-79, 2681 (1990). 0. Plaintiff, in his petition for rehearing, also argues that we should not have rejected his constitutional claim. We, however, feel bound by the decision in Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984) (en banc), aff'd on other grounds, 105 S. Ct. 2992 (1985), to reject Plaintiff's constitutional claim.

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