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 O C E E D I N G S

JUDGE EDMONDSON: Gonzalez versus Reno.

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: 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 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 have to allow a baby-sitter or a smuggler to speak for the child.

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.

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 – …

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 – …

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 — …

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 – …

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.

What does that mean?

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 , 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.

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 –

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.

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 .

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."

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.

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?

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.

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.

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.