- The Washington Times - Monday, June 5, 2000

The U.S. 11th Circuit Court of Appeals confronted a close legal question in the Elian Gonzalez asylum case. Its decision last Thursday in Gonzalez vs. Reno to sustain the Immigration and Naturalization Service's refusal to entertain Elian's asylum application over the objection of his father, nevertheless, seems ill-reasoned and wrong. Either Congress or the U.S. Supreme Court should correct the error.

The case pivoted on section 1158 of the Immigration Code. It extends the opportunity for asylum to "[a]ny alien," with no age restriction. Both Elian and his great-uncle and provisional custodian, Lazaro Gonzalez, filed asylum applications with the INS alleging the 6-year-old child held a well-founded fear of persecution because of political opinion if returned to the intellectual serfdom that afflicts Fidel Castro's Cuba.

The INS interviewed Elian's father, Juan Miguel Gonzalez, in Cuba to ascertain his wishes about Elian's application. Juan Miguel had joined the Union of Young Communists at 15, enthusiastically played the Soviet Stakhanovite in acclaiming Mr. Castro's grisly ideology ("Socialism or Death"),and became a full member of the Cuban Communist Party at a precocious 24, an achievement he heralded as "the proudest thing that can happen to you," according to Tim Golden's New York Times Magazine article on April 23.) In other words, Juan Miguel was no innocent in the diabolical submissiveness ruthlessly enforced by Mr. Castro, and the unforgiving penalties of dissent or communist waywardness. If he consented to Elian's asylum application, especially after it had become heavy artillery in Mr. Castro's political warfare against the United States, Juan Miguel knew both from experience and intuition that retaliation for his temerity would be both swift and unmerciful. His life and personality demonstrate he is less the martyred Sir Thomas More and more the truckling Stalinist apologist Nicholai Bukharin.

Despite the obvious, the INS insisted that Juan Miguel's professed desire for Elian's return to Cuba and to withdraw the asylum application reflected a free and uncoerced will. The agency further saw no conflict of interest in Juan Miguel's desire to avoid Mr. Castro's chilling wrath and Elian's interest in avoiding persecution for the audacity of thinking for himself. That conclusion is akin to finding harmony between King Agamemnon's desire to sail across the Aegean to defeat the Trojans and his daughter Iphigenia's wish to avoid sacrifice to appease the gods and to make for sailwinds. The INS conclusion that only Elian's father was entitled to authorize an asylum application on behalf of the child thus seemed wobbly at best. A three-member unanimous panel of the court of appeals, however, left that obtuse interpretation and application of section 1158 undisturbed.

An asylum statute that salutes the freedom symbolized by the Statue of Liberty intends a generous, not a cramped, construction. Ambiguities should be resolved against persecution. The panel accepted that Elian, despite his youth, was a "person" eligible to seek asylum. It also affirmed the reasonable INS policy of requiring an adult to speak for children of tender years in immigration matters. While voicing skepticism, the appellate judges further sustained the INS presumption that the parent is the sole appropriate representative of the child in asylum cases, even when subject to a foreign communist-totalitarian state where offending the government is a crime and intellectual coercion is as inescapable as breathing air. Reason however, dictates the opposite, and thus the emergency need of the INS for education in the obvious, or at least George Orwell's "1984."

The INS presumption is defeated either by a showing of definite coercion directed at the parent or by the latter's conflict of interest with the child's asylum petition. Attorney General Janet Reno found neither, and the Appeals Court swallowed the findings with intermittent choking.

No coercion against Juan Miguel? Mr. Castro made Elian an icon, the poster child, of the Cuban Revolution whose sainthood was featured from the streets of Havana to the airwaves around the globe. To say that free will governed his decision against Elian's application is to drain the concept of all meaning, like saying stagecoach riders display free will in giving their jewels to highwaymen.

The INS further maintained that Elian's asylum claim was facially weak, and thus no stark conflict with Juan Miguel's wish that the child return to Cuba had emerged. The Appeals Court erred in upholding the reasonableness of that conclusion. Asylum is warranted by finding a well-founded fear of persecution because of political opinion. Certitude is not required. All thinking in Mr. Castro's Cuba is political, and the ordinary individual who declines to echo Communist Party dogma like Pavlov's dog is invariably punished. Neither the INS nor the court identified a single case since Mr. Castro assumed power by the gun more than four decades ago where a dissident was left undisturbed and unpersecuted. Moreover, Elian's deification by Mr. Castro guarantees persecution for even the slightest ideological defection.

In sum, Elian has been erroneously treated as a stepchild, not a favorite, of section 1158. Congress should overturn the injustice by a specific statutory award of citizenship and asylum. Juan Miguel can choose between Communist Cuba or remaining with Elian in the United States. He should not be permitted to chose both.

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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