Eric Rasmusen, Indiana University, Dept. of Business Economics and Public Policy, Kelley School of Business, Room 456, 1309 East Tenth Street, Bloomington, Indiana 47405-1701, (812)855-9219. [email protected] , Php.indiana.edu/~erasmuse.
The Court should be forced to come to grips with that issue, including the particular point that the father is subject to retaliation by the Cuban government. The Appeals Court should remand for determination of that fact. Or, better, the Appeals Court could rule that the AG's finding of fact is clearly in error, which is the truth, and that as a matter of law, a person in an authoritarian regime is under duress when making statements on which the regime has a strong opinion.
If Elian's father has made no valid statement, then we are left with the issue of whether the AG's discretion runs so far as to determine as a matter of law that people incompetent to file applications on their own behalf cannot file applications at all. The most likely conclusion is that *someone* has the right to file for them. Who that someone is could be a tough question, but it does not really matter here. It could even be the AG herself, as long as other people are allowed to present evidence at the hearing too.
POINT 2: IS IT SILLY TO REQUIRE THE Attorney General TO ACCEPT AN APPLICATION FOR A HEARING WHEN SHE HAS ALREADY MADE UP HER MIND?
This question is implicit in the Court's ruling, and needs to be addressed, even though it is not used explicitly in the holding.
The reason it is not silly to require a hearing goes to the reason the INS has standard procedures in the first place: to avoid corrupt and political decisions. If hearings are just to help out the INS, then they could be optional, and would probably be skipped most of the time, like oral argument in appellate courts. The only reason to make them compulsory is that in a few cases the Justice Dept. wants to skip hearings because its reasoning would not bear public scrutiny because it is corrupt or politicized. The Gonzalez is precisely the kind of case that needs public hearing. If forced to *publicly* confront evidence, the AG might well change her mind. If she didn't, that is fine too, but she would have to bear the political consequences. Remember that the reasoning behind Chevron and administrative law generally is that it is OK for some decisions to be in executive discretion *because the executive is elected and under political accountability*. Everybody involved in the Gonzalez case knows that this is the crux of the matter.
POINT 3: IS THE IMPLICIT APPLICATION FOR ASYLUM BY ELIAN'S MOTHER VALID?
Elian's mother implicitly made a request for an asylum hearing by trying to immigrate. Was this a valid request? Is it valid enough to set against the father's request? (All it need do is cancel out the father's request and force the issue to be decided by a third party.)
This point was not raised in the motion before the Court. I don't know whether it can be raised on appeal. It was implicitly raised in the Court's recitation of the facts. Certainly it can as far as cancelling out the father's request. It might be a separate cause of action, though, especially if filed by whoever legally represents the mother. A good candidate for representing the mother would be the Attorney-General of Florida.
POINT 4: THE COURT'S USE OF POLAVCHEK ON PAGE 44 CONTRADICTS ITS HOLDING ON ELIAN'S DUE PROCESS CLAIM.
Polavchek, the court says, held that alien parents were denied due process rights when they were denied the right to a hearing on their child's asylum application. That goes counter to the court's assertion that aliens do not have due process rights. Or is the difference that the alien parents were physically in the US and had visas?
POINT 5: THE COURT IS WRONG TO SAY IN DICTUM THAT IF ELIAN APPLIES FOR ASYLUM NOW AND IS REFUSED HE CAN NEVER APPLY AGAIN.
p. 44 footnote 36. The Court goes too far in saying that if Elian is denied now he loses all right to apply in the future. That is true only if the present application is frivolous, which is false. The AG is free to rule the present application frivolous after hearing it, but that is much stronger than just rejecting an application, and I doubt she would do it.
POINT 6: IF THE INS RULE IS "PARENTS ONLY" IT IS UNREASONABLE; IF IT IS "LEGAL CUSTODIAN ONLY" THEN THE INS SHOULD DEFER TO STATE LAW.
The INS is not very clear as to its exact rule for accepting applications on behalf of minors. If the rule is "Anybody with a strong interest" then relative like great-uncles would qualify. If it is "Parents only", then the legal guardian would not qualify if the child had been taken away from unfit parents, but the unfit parents would qualify. If it is "Legal guardian only," then state courts decide who the legal guardian is, not federal courts. The INS does have a plausible reply to this: that it is not the state of Florida, but the nation of Cuba whose laws apply, since Elian is not formally admitted to the U.S. yet. If this were a nation other than Cuba, this would be a valid argument. But the US does not recognize the Castro regime, and so it would be silly to recognize the rulings of Castro's courts as being legal Cuban courts.