**­­ No. 00-11424-D**

**IN THE UNITED STATES COURT OF APPEALS**

**FOR THE ELEVENTH CIRCUIT**

**ELIAN GONZALEZ, a minor, by and through LAZARO GONZALEZ,**

**as next friend, or, alternatively, as temporary legal custodian,**

**Appellant/Plaintiff,**

**v.**

**JANET RENO, United States Attorney General, DORIS MEISSNER,**

**Commissioner, U.S. Immigration and Naturalization Service, et al.,**

**Appellees/Defendants.**

**BRIEF FOR APPELLEES**

+--------------------------------+---+-----------------------------------+
| **THOMAS E. SCOTT**            |   | **DAVID W. OGDEN**                |
|                                |   |                                   |
| **United States Attorney**     |   | **Acting Assistant Attorney       |
|                                |   | General**                         |
| **DEXTER A. LEE**              |   |                                   |
|                                |   | **PATRICIA L. MAHER**             |
| **Assistant U.S. Attorney**    |   |                                   |
|                                |   | **Deputy Assistant Attorney       |
| **99 N.E. 4th Street**         |   | General**                         |
|                                |   |                                   |
| **Miami, Florida 33132**       |   | **EDWIN S. KNEEDLER**             |
|                                |   |                                   |
| **(305) 961-9003**             |   | **Deputy Solicitor General**      |
|                                |   |                                   |
|                                |   | **DAVID J. KLINE**                |
|                                |   |                                   |
|                                |   | **Deputy Director**               |
|                                |   |                                   |
|                                |   | **WILLIAM J. HOWARD**             |
|                                |   |                                   |
|                                |   | **Senior Litigation Counsel**     |
|                                |   |                                   |
|                                |   | **Office of Immigration           |
|                                |   | Litigation**                      |
|                                |   |                                   |
|                                |   | **Civil Division, U.S. Department |
|                                |   | of Justice**                      |
|                                |   |                                   |
|                                |   | **P.O. Box 878, Ben Franklin      |
|                                |   | Station**                         |
|                                |   |                                   |
|                                |   | **Washington, D.C. 20044**        |
|                                |   |                                   |
|                                |   | **(202) 616-4900**                |
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|                                |   |                                   |
+--------------------------------+---+-----------------------------------+

**STATEMENT REGARDING ORAL ARGUMENT**

Pursuant to the parties\' emergency motion for expedited briefing and
accelerated consideration, this Court has set oral argument for May 11,
2000, at 9:00 a.m., and has allotted each side fifteen minutes for
argument.

**IN THE UNITED STATES COURT OF APPEALS**

**FOR THE ELEVENTH CIRCUIT**

**No. 00-11424-D**

**ELIAN GONZALEZ, et al.,**

**Plaintiff-Appellant,**

**v.**

**JANET RENO, et al.,**

**Defendants-Appellees.**

**ON APPEAL FROM THE UNITED STATES DISTRICT COURT**

**FOR THE SOUTHERN DISTRICT OF FLORIDA**

**BRIEF FOR APPELLEES**

**STATEMENT OF JURISDICTION**

This is an appeal from an order entered by the Honorable K. Michael
Moore, granting the government\'s motion to dismiss and alternative
motion for summary judgment. The district court\'s order is reported at
86 F. Supp. 2d 1167 (S.D. Fla. 2000). Plaintiff invoked the district
court\'s jurisdiction pursuant to 28 U.S.C. 1331, 28 U.S.C.

1346, 28 U.S.C. 1361, and 28 U.S.C. 2201. He filed a timely notice of
appeal. This Court\'s jurisdiction is based on 28 U.S.C. 1291.

**STATEMENT OF THE ISSUE**

1\. Whether the district court was correct in holding that Elian
Gonzalez has no due process rights concerning the manner in which the
INS considered the asylum applications filed on his behalf, where this
Court, consistent with settled Supreme Court case law, previously held
that unadmitted aliens cannot challenge INS decisions on their
applications for admission, asylum, or parole, on the basis of rights
guaranteed by the Constitution.

2\. Whether the INS\'s thoroughly considered and crafted approach to
considering asylum applications submitted by a third party on behalf of
(or bearing the name of) a six-year-old child, against the express
wishes of the child\'s sole surviving parent, is facially legitimate and
bona fide, and rests on a permissible interpretation and application of
the asylum statute.

**STATEMENT OF THE CASE**

> **I. COURSE OF PROCEEDINGS AND DISPOSITION BELOW**

On January 19, 2000, Lazaro Gonzalez, instituted this action as next
friend, or alternatively as interim temporary legal custodian, of Elian
Gonzalez, a six-year-old child, against the Attorney General, the
Commissioner of the Immigration and Naturalization Service (\"INS\"),
and other federal defendants. The complaint challenged the INS\'s
refusal to accept and adjudicate two asylum applications that Lazaro
submitted with respect to Elian and an essentially identical application
that bore Elian's signature. On January 27, 2000, the government filed a
motion to dismiss or, in the alternative, for summary judgment. The
district court heard oral argument on the government\'s motion on March
9, 2000. On March 21, 2000, the district court granted the government\'s
motion to dismiss or for summary judgment and dismissed the case.
Plaintiff appealed. On April 19, 2000, this Court issued an injunction
pending appeal, barring Elian\'s removal from the United States during
the pendency of this appeal.[^1]

> **II. STATEMENT OF FACTS**
>
> **(A) GENERAL BACKGROUND**

1\. Six-year-old Cuban national Elian Gonzalez became the focus of
international attention five months ago, on November 25, 1999, when he
was rescued by two Miami fishermen who found him floating on an inner
tube several miles off Fort Lauderdale. Elian was transferred to a
United States Coast Guard vessel so he could be transported to a nearby
hospital for treatment for dehydration and hypothermia. *See* *Gonzalez
v. Reno*, 86 F. Supp. 2d at 1171*.* Tragically, Elian\'s mother,
Elisabeth Brotons, drowned during the voyage from Cuba. *Id.* When Elian
was released from the hospital, the INS temporarily paroled him into the
care of Lazaro Gonzalez, his great uncle, in Miami. *Id.* That
arrangement was made pursuant to 8 U.S.C. 1182(d)(5)(A) (Supp. IV 1998)
and 8 C.F.R. 212(d)(5) and 235.2, which govern the parole of aliens who
have arrived at our borders, and 8 C.F.R. 236.3, which specifically
governs the release of juvenile aliens. The latter regulation gives
first priority to a parent in the release of a juvenile. See 8 C.F.R.
236.3(b)(1)(i); *Reno v. Flores*, 507 U.S. 292, 297, 310 (1993). But if
a parent (or legal guardian or a close relative) is not available (see 8
C.F.R. 236.3(b)(1)(i)-(iii)), the INS, in its discretion, may release a
juvenile to another adult, such as Lazaro Gonzalez. See 8 C.F.R.
236.3(b)(4). That adult must, however, agree to care for the juvenile's
well-being and to ensure the juvenile's presence at all future
proceedings before the INS or an immigration judge. *Ibid.* The release
of an alien on parole is subject to revocation by the INS at any time. 8
C.F.R. 212.5(d).

2.a. On November 27, 1999, after learning of Elian's rescue at sea,
Elian's father, Juan Miguel Gonzalez requested that Elian be returned to
him in Cuba. On December 10, 1999, Lazaro Gonzalez submitted an
application for asylum on behalf of Elian under Section 208 of the
Immigration and Nationality Act ("INA"), 8 U.S.C. 1158 (Supp. IV 1998).
R.E. I-25. That section authorizes the Attorney General, in her
discretion, to grant asylum to an alien if she determines the alien is a
"refugee," 8 U.S.C. 1158(b)(1) (Supp. IV 1998) --- *i.e.*, a person who
is unable or unwilling to return to his country of nationality "because
of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion." 86 F. Supp. 2d at 1170. An essentially identical
application, bearing Elian's printed name, was submitted later that
month. R.E. I-25.

b\. On December 13, 1999, Juan Gonzalez was interviewed at his home in
Cardenas, Cuba, by Silma Dimmel, the Officer in Charge of the INS
sub-office at the United States Interests Section in the Embassy of
Switzerland in Havana, accompanied by Jeffrey DeLaurentis, the Chief of
the Political/Economic Section of the U.S. Interests Section.
R.E.-22-16. During the interview, Juan produced evidence of his
paternity and of the strength of his relationship with Elian, including
written declarations from neighbors, teachers, and doctors. *Id.* at
60-207. Juan said he and Elisabeth had divorced but were sharing custody
of Elian. *Id.* at 49. A written report by Dimmel recounts what Juan
said about the nature of his relationship with Elian:

> When we got divorced the laws in Cuba grant custody of a child to the
> mother. However, the boy practically lived with me since he attended
> school closer to my residence because she lived outside the city
> limits. She even decided not to register him at the school which he
> was supposed to attend in order for him to stay here and my mother to
> take care of him while both of us worked. She (Ms. Brotons) sometimes
> argued with me because he spent more time with me in this residence
> than with her. He would sleep and eat here and spent most of his time
> here.

*Id*. at 49. \"As a matter of fact,\" he said later, \"Elian\'s name is
the construction of parts of our names: \'Eli\', for the beginning of
her name Elisabeth and \'an\' for the latter part of my name, Juan.\"
*Id*. at 51.

> Elian is my life. He is my first son. Wherever I went, he went with
> me. I taught him how to swim, do karate, he has a parrot here, dogs, a
> bicycle and all kinds of toys. As a matter of fact, I haven\'t been to
> the barber because he isn\'t here since we always went together. I
> always had a good relationship with Ms. Brotons. She would even bring
> Elian here and go to buy birthday gifts for my father. Even her
> present boyfriend would come here and talk to me and eat here. My
> parents also liked him a lot. I liked him also because he never
> mistreated my son whom he loved very much and I appreciated that from
> him. Ms. Brotons also had a good relationship with my present wife.

*Id*.

Asked how often he saw Elian, Juan answered, \"All of the time. He
basically lived here, we did everything together and as already
mentioned, he spent more time with me and my parents than with his own
mother.\" *Id*. at 52. He went on to say, \"We did everything together.
I used to take him to the place where I work to use the swimming pool
and we played together. He slept with me, that\'s how close we are.\"
*Id*. Juan also said he attended meetings and activities at Elian\'s
school, and that he had seen to it that Elian received needed surgery.
*Id*. Asked if he provided financial support for Elian\'s upbringing, he
explained that he provided more than the law required of him. *Id*. at
52-53.

Dimmel explained to Juan that under United States law an individual from
Cuba who is seeking admission to the United States may withdraw his
application and return to Cuba; remain in the United States and after
one year apply for adjustment of status to that of lawful permanent
resident under the Cuban Adjustment Act (see 8 U.S.C. 1255 note); or
apply for asylum. *Id*. at 49-50. Asked for his preference as Elian\'s
father, Juan was unequivocal:

> Return immediately to Cuba. I was listening to the news and about the
> laws in the United States. Elian, at the age of six, cannot make a
> decision on his own. In the first place, he wasn\'t found on land, he
> was found at sea. I\'m very grateful that he received immediate
> medical assistance, but he should be returned to me and my family. As
> for him to get asylum, I am not allowing him to stay or claim any type
> of petition; he should be returned immediately to me.

*Id*. at 50.

During the interview, Dimmel provided Juan Gonzalez with written
questions, without oral presentation, in order to ensure that he would
be free to express his true wishes without concerns about being
overheard. Juan marked his responses "immediately and without any
hesitations." R.E. III-22-48; *id*. at 57-58. The responses Juan marked
stated that he was attending the session voluntarily, that he felt he
could speak freely, that he had made his own decision with regard to
what he was going to answer during the interview, that he would like
Elian to return to him in Cuba rather than remain in the United States,
and that he did not want to go to the United States. R.E. III-22-57. INS
Officer Dimmel concluded her report with the following summation:

> It was this officer\'s observation that the residence where Elian
> lived, until the time he was removed by his mother, is very well kept,
> clean and that Elian has a very loving set of grandparents and father.
>
> Mr. Gonzalez Quintana appeared very concerned for Elian\'s return to
> him as soon as possible without further delays because he misses his
> \"buddy.\" Mr. Gonzalez Quintana provided for the well being of
> Elian\[,\] and his grandparents took good care of Elian after school
> and during visits to the residence. Mr. Gonzalez Quintana lives with
> his present common-law wife, baby son, his parents and his brother.
> Elian\'s grandparents on his mother\'s side were also present at Mr.
> Gonzalez Quintana\[\'s\] residence, but were precluded from being
> present at the interview.
>
> Mr. Gonzalez Quintana was very much involved in Elian\'s sustenance
> and care. He taught Elian how to swim, do karate and did many
> activities together, to the point that Mr. Gonzalez Quintana has not
> visited the barber shop since Elian\'s gone because they got their
> haircuts together.
>
> Elian was taken care of by his paternal grandmother more so than by
> his mother since \[his mother\] resided in a very small room and not
> with her mother. This is one reason why Elian spent so much time with
> his father, grandparents, stepmother and stepbrother.
>
> Mr. Gonzalez Quintana, his parents and \[Elian's\] maternal
> grandparents expressed their request that Elian return to Cuba
> immediately. \[Elian's\] paternal grandparents are greatly distraught
> that the emptiness that Elian\'s not being in Cuba has left in the
> family. The honesty, concern and truthfulness on the part of Mr.
> Gonzalez Quintana was palpable as well as his caring and wanting his
> son \[to\] be returned to Cuba. Elian\'s paternal grandparents also
> appear to be confused and distraught. The family was hurt by the death
> of Ms. Brotons and it was obvious that Elian is deeply missed by the
> family.

*Id*. at 55.

c\. Following its interview of Juan, the INS interviewed Lazaro, who was
accompanied by his daughter, Marisleysis, and three attorneys who said
they represented Elian. *Id.* at 219. Lazaro described Elian\'s
relationship with Juan as normal, but said that Elian was not always
with Juan because he lived with his mother. *Id.* at 220-21. He also
expressed concern that Cuban authorities were coercing Juan into
demanding Elian\'s return. *Id.* at 222. Asked for proof of coercion, he
asked why more proof was needed when Cuban authorities were at Juan\'s
house and would not let him leave. *Id.* When asked if he had any
specific or objective reason to believe that Elian would be harmed if he
were returned to Cuba, Lazaro simply stated: "During the time he's been
here, everything he has, if he goes back, it's all changed. His
activities here are different from those that he would have over there."
*Id.*

d\. Lazaro\'s belief that Juan was being coerced led the INS to
interview Juan a second time, again by Officer Dimmel and Mr.
DeLaurentis. *Id.* at 228-243. This time the interview took place at the
private residence of the representative for the United Nations
International Children\'s Emergency Fund (\"UNICEF\") in Havana, a
location United States and Cuban representatives had agreed upon as
neutral and private. *Id.* at 234. Juan again assured Officer Dimmel
that he was speaking freely, *id.* at 241, and, as he had during their
first meeting, he answered written questions to that effect. *Id.* at
231. He also said that Elisabeth Brotons had taken Elian out of the
country without his consent or knowledge. *Id.* at 235.

Summarizing her interview, Officer Dimmel observed that Juan is "deeply
concerned" for Elian\'s well-being and "did not appear to be forced or
coerced to speak with us and claim he wants his son." *Id.* at 243. Juan
and his parents became emotional several times during the interview, she
said, and all appeared to her to be honest and concerned for the well
being of the child:

> Mr. Gonzalez met with us voluntarily and spoke truthfully and
> honestly. He misses and wants his son back and the grandparents cannot
> mention Elian\'s name without becoming emotional. This is an honest,
> genuine and unified family thoroughly engaged in Elian\'s life, that
> has been under distress since the taking of the child by his mother.
> It is obvious to this officer that the mother took the child without
> Mr. Gonzalez\' knowledge, consent and/or permission.

*Id*.

3\. On January 5, 2000, the Executive Associate Commissioner of INS for
Field Operations, Michael A. Pearson, wrote Lazaro and his attorneys,
informing them that the INS had concluded that Juan has the authority to
speak for his son in immigration matters, that there is no conflict of
interest between Juan and Elian or any other reason that would warrant
the INS's declining to recognize the authority of this father to speak
on behalf of his son in immigration matters, and that Juan was
expressing his true wishes regarding Elian. *Id. at 3.* Mr. Pearson
therefore informed Lazaro that the Commissioner of INS had accepted
Juan\'s withdrawal of Elian\'s application for admission to the United
States, as well as his decision not to assert Elian\'s right to apply
for asylum. *Id.* In addition, Mr. Pearson informed Lazaro:

> Although the INS has placed Elian in your physical care, such
> placement does not confer upon you the authority to act on behalf of
> Elian in immigration matters or authorize representation in direct
> opposition to the express wishes of the child\'s custodial parent.
> Further, we do not believe that Elian, who recently turned six years
> old, has the legal capacity on his own to authorize representation.
> Finally, Mr. Gonzalez-Quintana has expressly declined to authorize
> \[attorneys\] to represent Elian. Therefore, the INS cannot recognize
> them as Elian\'s representatives.

*Id.* at 3. Further, the Mr. Pearson stated,

> After careful consideration, we have determined that Elian does not
> have the capacity to apply for asylum without the assistance of his
> parent. Further, neither the applications you have submitted nor any
> other information available indicates that Elian would be at risk of
> harm in Cuba such that his interests might so diverge from those of
> his father that his father could not adequately represent him in this
> matter. Therefore, given Mr. Gonzalez-Quintana\'s decision not to
> assert Elian\'s right to apply for asylum, we cannot accept the asylum
> applications as having been submitted on Elian\'s behalf.

*Id.* at 4.

Mr. Pearson sent those letters to Lazaro and the attorneys pursuant to a
decision by the Commissioner dated January 3, 2000. *Id.* at 7-23. That
decision, an eleven-page, single-spaced analysis by the INS\'s Office of
General Counsel bearing the Commissioner\'s approval on the final page,
analyzed two basic questions. First, who has the legal authority to
represent Elian: his father, his great uncle, or the attorneys claiming
to represent Elian? *Id.* at 7. Second, given Juan's apparent legal
authority to do so, under what circumstances should his interests be
considered apart from the father's expressed wishes regarding Elian\'s
admission to the United States and asylum? *Id.*

a\. With reference to the question of who has legal authority to speak
for Elian, the Commissioner reasoned that under immigration law,
relationships are generally assessed under the law of the jurisdiction
where the relationship arose. Here, because the relationship between
Juan and Elian arose in Cuba, Cuban law applied. The Commissioner
concluded that under Cuban law a sole surviving parent is the only
person authorized to speak for the child. *Id.* at 8. That being so, the
Commissioner concluded, Lazaro had no legal basis to act on Elian\'s
behalf without Juan's consent. *Id.* The fact that the INS had released
Elian to Lazaro did not give him that authority. *Id.* \"Instead, he has
agreed to care for the child and ensure that he appears at all
immigration proceedings.\" *Id.* (citing 8 C.F.R. 236.3(b)(4)). Nor, the
Commissioner concluded, did the three attorneys who had entered
appearances for Elian have a legal basis for doing so. A minor\'s
ability to retain counsel must be considered against the question of his
capacity, and the INS generally assumes that someone under age fourteen
will not make immigration decisions without the assistance of a parent
or legal guardian. *Id.* at 9 (citing 8 C.F.R. 103.2(a)(2)(providing
that a parent or legal guardian may sign the application or petition of
someone under age fourteen)). In this instance, the Commissioner noted,
Juan had expressly stated that he was not authorizing attorneys to
represent Elian. *Id.*

b\. The Commissioner then considered the circumstances under which
Elian\'s interests regarding admission and asylum should be considered
apart from Juan\'s expressed wishes. *Id.* at 9-17. Those issues, the
Commissioner explained, went beyond Juan's legal authority to the
question of his ability to represent Elian's interests adequately in
immigration matters. The underlying question, the Commissioner
continued, was "whether the father's personal interests conflict with
his representation of the immigration interests of the child to a degree
sufficient to interfere with parental authority." *Id.* at 10. In this
case, the possibility of a conflict was raised by (i) allegations that
the father is not free to express his wishes, and (ii) the assertion
that the child is free to raise an asylum claim regardless of the
father's wishes. *Id.*

\(i\) The Commissioner first concluded that Juan is able adequately to
represent his son's immigration interests. *Id.* at 10-13. The
Commissioner noted that in this case, the alleged inability of the
father to represent his son did not rest on any estrangement between
father and son or the father's inability to adequately assess the best
interests of the child. "To the contrary," she explained, "evidence in
the record, including the interview of the father and the numerous
affidavits provided, establish that the father and child share a close
relationship, and that the father has exercised parental responsibility
and control for example, in the education and health care of the child."
*Id.* at 10. Instead, the Commissioner explained, the alleged inadequacy
was based on the possibility that the father had been coerced into
expressing a position regarding his son's admission to the United States
and asylum that was contrary to his true wishes. \"If coerced,\" the
Commissioner reasoned, \"the father\'s representation of the immigration
interests of the child may conflict with the father\'s interest in his
own personal safety, rendering him unable to adequately represent the
child in immigration matters.\" *Id.* at 10. And if he cannot represent
Elian, the Commissioner said, then appointment of a *guardian ad litem*
would be necessary. *Id.*

The Commissioner\'s analysis of whether the Cuban government was
coercing Juan into demanding Elian\'s return began with a review of
Juan\'s two interviews. She noted that at the first interview, the INS
had asked Juan to express his wishes for Elian in writing in order to
protect against the possibility of auditory monitoring of the interview
by Cuban officials, and that he had done so. *Id.* at 11. Moreover, she
said, the INS Officer-in-Charge had found that Juan\'s \"honesty,
concern and truthfulness . . . was palpable. . . .\" *Id.* So, too,
Juan\'s second interview provided no indication of coercion. *Id.* at
11-12. That interview took place at a neutral site; Juan was accompanied
only by his parents; he again answered written questions; and the INS
Officer-in-Charge was convinced that Juan \"appeared honest and
concerned for the well-being of the child and in wanting the child with
them (Juan and his family) in Cuba immediately.\" *Id.* at 11-12.

As for Lazaro\'s suggestion at his interview that Juan\'s tone of voice
on the telephone reflected coercion, the Commissioner found Dimmel\'s
personal observations more compelling. Among other points, she also
addressed Lazaro\'s contention that Juan was not free to move about.
*Id.* at 13. At the second interview, Juan had denied that contention.
*Id.* The Commissioner recognized that Cubans do not have the freedom of
movement we have in this country, but she noted that the INS had not
found evidence that Juan's movements were restricted in order to punish
or intimidate him or to influence his parental decisions. The
Commissioner further noted that the INS was in any event assuming for
purposes of its decision that there were limitations on Juan's freedom
and that he was being monitored both by the Cuban government and the
Cuban press. But, she reasoned, this did not mean that \"the father\'s
request for his child\'s return is not genuine.\" *Id.* The Commissioner
concluded:

> Finally, the father\'s loving and active relationship with his child,
> as established by his interview and numerous affidavits, coupled with
> the circumstances under which he now finds his six year-old son,
> separated from his only surviving parent in a foreign country
> immediately following the tragic death of his mother, strongly
> suggests that the father\'s request for his child\'s return is
> genuine. After considering the totality of the information currently
> before the INS, we believe that the most reasonable inference is that
> the father is able to represent adequately the child\'s interests in
> immigration matters.

*Id.* Accordingly, the Commissioner decided to give effect to the
father's request for the return of his child by treating it as a request
for withdrawal of Elian's application for admission to the United
States. *Id.* See 8 U.S.C. 1225(a)(4) (Supp. IV 1998) (providing that an
alien may, in the discretion of the Attorney General, be permitted to
withdraw his application for admission and depart immediately from the
United States).[^2]

\(ii\) Notwithstanding her determination that Juan adequately represents
Elian in immigration matters and that the application for admission may
be withdrawn, the Commissioner gave separate consideration to the
application for asylum that had been submitted in Elian's name. *Id.* at
14-17. On this issue, the Commissioner first stated that a child\'s
right to seek asylum independent of his parents is well-established.
*Id.* She pointed out in this regard that Section 208(a)(1) of the INA,
8 U.S.C. 1158(a)(1) (Supp. IV 1998), permits any individual who arrives
in the United States to apply for asylum, and that although Section
208(a)(2) prescribes certain exceptions to that general rule, none of
those exceptions is applicable here and \"\[t\]here are no age-based
restrictions on applying for asylum.\" *Id.*

The Commissioner pointed out that Section 208 of the INA does not
address the specific question presented here: whether a child may assert
a claim for asylum contrary to the express wishes of a parent. She
concluded, however, that in keeping with the United States' obligation
of *nonrefoulement* under the 1967 Protocol Relating to the Status of
Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, certain circumstances
require the United States to accept and adjudicate a child's asylum
application, and provide necessary protection, despite the express
opposition of the child's parents. *Id.*[^3] At the same time, the
Commissioner stressed that parental rights constitute a "fundamental
liberty interest" under the Constitution, and that the question whether
the INS should accept and adjudicate Elian's asylum application in
direct opposition to his surviving parent carried the potential for
substantial interference with parental rights. *Id.* at 15 (quoting
*Santosky v. Kramer*, 455 U.S. 745, 753 (1982)). Taking these competing
considerations into account, the Commissioner concluded the INS need not
process asylum applications in these circumstances \"if they reflect
that the purported applicants are so young that they necessarily lack
the capacity to understand what they are applying for or, failing that,
that the applications do not present an objective basis for ignoring the
parents\' wishes.\" *Id.*

The Commissioner thus first considered whether Elian is "truly seeking
asylum" in his own right \-- *i.e.,* "Elian's capacity to assert a claim
for asylum on his own behalf." *Id.* at 15, 16. She noted that the
Seventh Circuit in *Polovchak v. Meese*, 774 F.2d 731 (7th Cir. 1985),
had concluded that twelve years of age was probably at the low end of
maturity necessary to sufficiently distinguish a child's asylum
interests from those of his parents. *Id.* The Commissioner noted that
Elian is only six years of age, "well below the lower end of necessary
maturity described in *Polovchak*," and that "\[t\]here is no indication
from the information INS has received that Elian possesses or has
articulated a subjective fear of persecution on a protected ground, or
that he has the ability to do so." *Id.* at 10. The Commissioner also
did not believe \"that Elian, at age six, is competent to affirm that
the contents of his asylum application accurately reflect his fear of
returning to Cuba, if any.\" *Id.* Accordingly, the Commissioner
concluded that even though Elian\'s \"signature\" appears on the asylum
application, he lacked the capacity to raise an asylum claim on his own
behalf. *Id.*

The Commissioner then explained that the further inquiry into objective
factors was appropriate because in certain analogous cases involving
very young children who may be incapable of expressing a fear of
persecution to the same extent as an adult, the *INS Children's
Guidelines* suggest that it is necessary to evaluate a possible asylum
claim based on all the objective evidence. *Id*. at 10. Applying a
similar analysis here, the Commissioner proceeded to consider whether
objective information demonstrates that there is an independent basis
for asylum, notwithstanding Juan's stated wishes.

In doing so, the Commissioner looked first to the asylum applications
submitted on behalf of Elian. *Id.* She noted that the applications
described past persecution of members of Elian\'s family, including
alleged detention of his step-father, imprisonment of his great-uncle,
and harassment of his mother by the communist party. *Id.* Second, she
noted that the application alleged that the Castro regime would exploit
Elian based on a political opinion the regime would impute to him, which
would cause severe mental anguish and torture. *Id.*

The Commissioner determined that \"\[n\]one of the information provides
an objective basis to conclude that any of the experiences of Elian\'s
relatives in Cuba bear upon the possibility that Elian would be
persecuted on account of a protected ground.\" *Id.* at 17. And as for
Lazaro\'s allegations that Elian will suffer political exploitation, the
Commissioner found those allegations troubling, but she also found they
did not form the basis of a valid asylum claim. *Id.* \"There is no
objective basis to conclude that the Castro regime would impute to this
six-year-old boy a political opinion (or any other protected
characteristic), which it seeks to overcome through persecution.\" *Id.*
(citing *INS v. Elias-Zacarias*, 502 U.S. 478 (1992)). Nor, she
concluded, do Lazaro\'s allegations provide the basis for a claim under
the Convention Against Torture, finding it "purely speculative" that the
level of mental anguish Elian might face would rise to the level of
torture, which would require a showing of "prolonged mental harm caused
by the intentional infliction of severe physical pain or suffering," the
administration or threatened administration of mind altering substances,
or the threat of imminent death to the victim or another person." *Id.*
(citing 8 C.F.R. 208.18(a)). The Commissioner found no indication that
any political exploitation of Elian by the Castro regime would involve
such tactics. *Id.*

Because the Commissioner found no basis to believe that Elian has the
capacity to form a subjective fear of persecution on account of a
protected ground and no objective basis for a claim of asylum or
protection under the Convention Against Torture, she concluded that
"there is no divergence of interest between the father and child with
respect to Elian's asylum application which warrants interference with
the father's parental authority" regarding whether to file an asylum
application. *Id.*

4\. Lazaro responded to the Commissioner\'s decision by asking the
Attorney General \"to review and reverse\" it (*id.* at 24), and by
filing a petition for temporary custody of Elian in the Florida circuit
court\'s family division (*id.* at 300-10). The family court petition
was based principally on Lazaro\'s assertion that Elian\'s return to
Cuba in accordance with the Commissioner\'s decision would, on account
of repressive conditions there, constitute abuse or neglect. On January
10, 2000, the family court issued an interim temporary award of custody,
barring Elian\'s removal from its jurisdiction and authorizing Lazaro to
take necessary steps to retain counsel and pursue asylum on Elian's
behalf. *Id.* at 294-99.

On January 12, 2000, the Attorney General responded to Lazaro\'s request
that she overturn the Commissioner\'s decision to allow Juan Gonzalez
speak for his son. *Id.* at 25-28. \"While I am always open to
considering new information that might arise,\" she stated, \"I am not
currently aware of any basis for reversing Commissioner Meissner\'s
decision that Juan Gonzalez --- Elian\'s father --- has the sole
authority to speak for his son on immigration matters.\" *Id*. at 25.
Acknowledging that Lazaro\'s attorneys had obtained the family court
order, the Attorney General pointed out that the United States was not a
party to that action, nor was it named in the family court\'s order.
*Id.* \"Indeed,\" she said, \"the question of who may speak for a
six-year-old child in applying for admission or asylum is a matter of
federal immigration law.\" *Id.*

The Attorney General reminded counsel that Elian is only six years old,
and that, as a general matter, when dealing with children that young,
the immigration law, like other areas of the law, looks to the wishes of
the surviving parent. *Id.* She went on to say that Commissioner
Meissner had reached her decision through a careful and thorough
process. *Id.* The Commissioner had looked to all available information,
including the three interviews, and had carefully considered the
allegation that Juan was being coerced into demanding Elian\'s return.
*Id.* Based on that information, the Commissioner was confident of the
father\'s close relationship with Elian and confident that he truly
wanted him to return home. *Id.*

> **(B) THE DISTRICT COURT\'S DECISION**

Lazaro Gonzalez then filed this action in district court, in his
asserted capacity as next friend of Elian or, alternatively, as interim
temporary custodian. The complaint did not challenge the Attorney
General's decision insofar as it concluded that Juan properly speaks for
Elian in immigration matters generally and therefore allowed Juan to
withdraw the application for Elian's admission to the United States.[^4]
It challenged only the Attorney General's decision to respect Juan's
determination not to pursue an asylum claim on Elian's behalf. The
district court granted the government\'s Rule 12(b)(6) motion to dismiss
the count challenging the Attorney General's decision on due process
grounds, entered summary judgment for the government on the count
alleging a violation of Section 208 of the INA, and dismissed the two
counts alleging violations of the asylum regulations, along with the
mandamus count, because the court\'s rejection of the statutory claim
necessarily disposed of them. *Id.* at 1187; 1187 n.26; 1188 n.28.

On the due process count, the district court found that Elian is an
unadmitted alien, and, as such, \"is treated as being \'on the threshold
of initial entry\' into the United States,\'\" *Id.* (quoting
*Shaughnessy v. United States ex rel. Mezei*, 345 U.S. 206, 212 (1953)),
and it rejected the argument that Elian's status as a parolee entitled
him to the same constitutional protections as all persons in the United
States. *Id.* (citing *Jean v. Nelson*, 727 F.2d 957, 969 (11th Cir.
1984), *aff\'d on other grounds*, 472 U.S. 846 (1985) (quoting *Leng May
Ma v. Barber*, 357 U.S. 185, 188 (1958)). The court then also cited
Supreme Court and Eleventh Circuit precedent establishing that
unadmitted aliens cannot challenge decisions by INS officials with
regard to their applications for admission, asylum, or parole on
constitutional grounds. *Id.* at 1188 (citing *Jean* and *Landon v.
Plasencia*, 459 U.S. 21, 32 (1982)).

In rejecting appellee's contention that the Attorney General's
consideration of the asylum applications violated Section 208 of the
INA, the district court held that \"the Attorney General \[has\] the
authority to determine that, in light of the express contrary wishes of
\[Elian\'s\] father, an application filed by someone else on
six-year-old \[Elian\'s\] behalf did not require adjudication on the
merits.\" *Id.* at 1188. The court decided that the Attorney General\'s
interpretation of Section 208 was \"controlling,\" \"conclusive,\" \"not
manifestly contrary to law\" and \"not an abuse of congressionally
delegated discretion,\" references drawn from 8 U.S.C. 1103(a), 8 U.S.C.
§ 1158(b)(4)(D), and the Administrative Procedure Act. *Id.* at 1188-90.

The district court agreed with the government that Section 208 of the
INA is \"silent or ambiguous, or otherwise contains a gap left,
implicitly or explicitly, by Congress\" regarding the consideration of
an application filed in the name of a six-year-old child or by someone
other than his parent purporting to act on his behalf. *Id.* at 1191-92
(citing *Chevron*, 467 U.S. at 842-43). The court was troubled that
appellant\'s argument \"requires the Attorney General to adjudicate
asylum applications from all children --- no matter how young in age, no
matter who claims to speak for them, and no matter what their mental
condition.\" *Id.* at 1192. Thus, the court said, if a child had been
kidnapped and brought to the United States, appellant \"would have the
Court believe that even if the Attorney General were aware that the
child had been kidnapped, the Attorney General would be obligated to
accept the application.\" *Id.*

\"In the final analysis,\" the district court stated, \"a well-intended
lawsuit filed on behalf of and for the benefit of Elian Gonzalez ran
into an equally well-intended Attorney General, sworn to uphold the
letter and spirit of the immigration law, and determined to see that a
father\'s wishes to be reunited with his six-year-old son be given
primacy in law and fact.\" *Id.* at 1194. \"\[E\]ach passing day is
another day lost between Juan Gonzalez and his son. . . .\" *Id.* The
Attorney General has decided who may speak for Elian, \"and her
decision, by statute and in the exercise of congressionally delegated
discretion, is controlling as a matter of law.\" *Id.*

**(C) SUBSEQUENT DEVELOPMENTS**

1\. Lazaro Gonzalez originally instituted this action on Elian's behalf
as next friend under Fed. R. Civ. P. 17(c) or, alternatively, as Elian's
interim temporary guardian pursuant to the state family court's order of
January 10, 2000. On April 13, 2000, however, the state family court
vacated its January 10 order and dismissed Lazaro's custody action,
holding that it was preempted by federal immigraton law and that
Lazaro's relationship to Elian, as his great uncle, was too attenuated
to satisfy Florida custody law. *Matter of Lazaro Gonzalez and Juan
Miguel Gonzalez*, No. 00479-FC-28 (Fla. Cir. Ct. Miami- Dade County). On
preemption, the court observed that Elian's presence in the United
States is at the federal government's discretion, and it reasoned that
"\[t\]he state court cannot, by deciding with whom custody should lie,
subvert the decision to return him to his father and his home in Cuba."
Slip op. 8. The family court also pointed out that "\[i\]t is axiomatic
in family court that six years old is too young to make life-altering
decisions." *Id.* at 21.

2\. On April 6, 2000, Juan Gonzalez, his wife, and their infant son,
Elian's half brother, came to the United States. On April 7, the
Attorney General met with Juan Gonzalez, his wife and their son without
the presence of any Cuban officials. Juan Gonzalez reiterated that he
wanted his son back and wanted to return to Cuba. After that meeting,
the Attorney General expressed her intention to move forward with the
reunification of father and son in the United States. Following several
days of negotiations, the Attorney General and the Commissioner of INS
flew to Miami, where they met with Lazaro Gonzalez and his family for
more than two hours to "work out a cooperative agreement" to "resolve
this matter in a way least damaging to the child." Statement of Attorney
General Janet Reno, April 12, 2000. They were unable to work out such an
agreement. Later that evening, the INS instructed Lazaro Gonzalez to
bring Elian to the Opa-Locka Airport in Miami at 2:00 p.m. on April 13.
Lazaro refused to do so, and the temporary parole of Elian Gonzalez into
his care therefore was revoked as of that time. See Appellee's
Opposition to Appellant's Emergency Motion for Injunction Pending
Appeal, at 11-12. On April 22, 2000, the INS, pursuant to a warrant,
took Elian from Lazaro Gonzalez's house in Miami and transported him to
Andrews Air Force Base outside of Washington, D.C., where he was
reunited with his father and reparoled into his father's care under INS
regulations. To effectuate this Court's order of April 19, 2000, the INS
has entered a departure control order under Section 215 of the INA, 8
U.S.C. 1185, barring Elian Gonzalez's departure from the United States
while this appeal is pending.

**SUMMARY OF ARGUMENT**

This is an extraordinary case involving Elian Gonzalez, his father, Juan
Gonzalez, and great-uncle, Lazaro Gonzalez. Juan wants to return to Cuba
with Elian. Lazaro, concerned about repressive conditions there,
submitted asylum applications on Elian\'s behalf, but Juan instructed
the INS that it should not accept those applications and that he would
not assert Elian\'s statutory right to apply for asylum. Elian is six
years old, half the age the Seventh Circuit in *Polovchak* said is at
the low-end of maturity necessary to distinguish a child\'s asylum
interests from his parents. \"It is axiomatic in family court that six
years old is too young to make life-altering decisions,\" the Florida
state court wrote when it dismissed Lazaro\'s petition to be awarded
custody of Elian. *Matter of Lazaro Gonzalez, supra*, slip op. at 21.
\"Some feel the father is selfish by insisting his son be returned to
him,\" the state court also observed, \"but what parent really believes
that anyone else could raise his child with the same degree of love and
devotion as he?\" *Id.* at 20.

Lazaro and his attorneys provided the INS with three asylum
applications. One is signed by Lazaro and submitted on December 10,
1999, two weeks after the INS paroled Elian into his temporary care, a
parole that has since been revoked. The second, bearing Elian\'s printed
name, was submitted to the INS later that month. The third, signed by
Lazaro pursuant to a now-vacated state court order that awarded interim
temporary custody of Elian to Lazaro, was submitted to the INS on
January 11, 2000. The three applications are otherwise identical. None
is written by Elian. None purports to be a statement by Elian of what he
thinks has happened or will happen to him if he returns to Cuba. None
contains information that came from Elian. Someone else filled out those
applications: some adult, whether Lazaro or his attorneys, decided that
he would speak for Elian. But another adult, Elian\'s father, exercising
his parental authority, has objected to this. This case is, therefore,
not about whether Elian has spoken about asylum. It is about which of
two adults will be allowed to speak about asylum for him: his father,
with whom he has had a close relationship all his life until they were
separated under traumatic circumstances last November; or a distant
relative.

The primary question this appeal presents, then, is whether the
Commissioner\'s thoroughly considered and carefully crafted approach to
considering asylum applications submitted by a third party on behalf of
(or bearing the name of) a six-year-old child, against the express
wishes of the child\'s sole surviving parent, rests on a permissible
interpretation and application of the asylum statute. Relying on the
words, \"\[a\]ny alien . . . in the United States . . . may apply for
asylum\" in 8 U.S.C. § 1158(a)(1), appellant maintains that Elian \"may
apply.\" But the INS has never denied this. Appellant need only examine
the Commissioner\'s decision for her recognition that the asylum statute
contains \"no age-based restrictions on applying for asylum.\" R.E.
III-22-14-16.

The question here is not whether Elian \"may apply\" but whether he
\"has applied,\" a reference to 8 U.S.C. § 1158(b)(1), the subsection of
the asylum statute that identifies who may be granted asylum. Under this
subsection, the Attorney General \"may grant asylum to an alien who has
applied for asylum in accordance with the requirements and procedures
established by the Attorney General under this section\" if the Attorney
General finds that the alien is a \"refugee.\" 8 U.S.C. 1158(b)(1). The
Commissioner reasonably determined that (1) the usual rule is that a
parent speaks for his child in immigration matters, as under the law
generally, and (2) where an asylum application is submitted by a third
party against the express wishes of the parent, the child will be deemed
to have "applied" only if the child has the capacity to understand what
he is applying for and has assented to or submitted the application
himself, or if there is a substantial objective basis for an independent
asylum claim and therefore for overriding the parent's wishes that no
asylum application should be filed. Put another way, the Attorney
General "established" those criteria as "requirements" that must be
satisfied in order to conclude under 8 U.S.C. 1158(b)(1) that a minor in
these circumstances "has applied for asylum" in accordance with
"requirements" established by the Attorney General. The Attorney
General\'s interpretation of the asylum statute is entitled to deference
under *Chevron* and *Aguirre-Aguirre* and is reasonable.

To the extent the Court goes beyond questions of law to review other
aspects of the Commissioner\'s decision, review of the decision is
pursuant to the \"facially legitimate and bona fide\" standard of
*Kleindienst v. Mandel*, 408 U.S. 753 (1972), or, at most, under the
APA\'s arbitrary and capricious standard, 5 U.S.C. § 706(2)(A). In its
April 19, 2000, order, this Court observed that the INS had not
interviewed Elian when the INS concluded that Elian lacked the capacity
to apply for asylum. But in view of Elian\'s tender years, the absence
of *any* indication in Lazaro\'s asylum applications that Elian could be
the source of information to substantiate those applications, the
inability of Elian to attest to the truth of the contents of those
applications, and the likelihood that the Miami relatives would have
influenced Elian\'s testimony, the INS was justified in not doing so.
The Commissioner\'s decision that Elian lacked the capacity to apply for
asylum on his own is \"facially legitimate and bona fide,\"
*Kliendienst*, 408 U.S. 753, or, if subjected to more searching
scrutiny, not arbitrary and capricious under the APA.

The Commissioner\'s approach to the unusual circumstances of this case
is consistent with asylum-related and family unification guidelines and
international conventions. The United Nations Convention on the Rights
of the Child does not speak to whether a child may assert an asylum
claim contrary to a parent\'s wishes, but it makes clear that
children\'s rights must be understood in the context of parental rights
and duties. The *UNHCR Guidelines* emphasize the need to reunite
unaccompanied minors with their families immediately, and counsel that
where a child is so young that he cannot prove he has a well-founded
fear of persecution, objective evidence should be looked to. This is
consistent with the Commissioner\'s analysis, which, having found that
Elian lacks the subjective capacity to apply for asylum, went on to
discuss whether objective evidence, including Lazaro\'s asylum
applications, demonstrated an \"independent basis for asylum\"
notwithstanding his father\'s stated wishes. So, too, the *INS
Children\'s Guidelines* provide general guidance on the capacity issue,
and on looking to objective evidence where capacity is at issue. These
guidelines are not enforceable, and do not solve every problem the INS
is confronted with. What makes this case unique is Elian\'s lack of
capacity coupled with his father\'s stated desire that Elian not apply
for asylum.

Aliens who satisfy the applicable standard for asylum do not have a
right to remain here. They are simply eligible to remain here, if the
Attorney General, in her discretion, chooses to allow that. To establish
eligibility, the applicant must prove that he suffered past persecution
or will suffer future persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion. Persecution is an extreme concept. The applicant must present
specific and objective facts. He must demonstrate that he has a genuine
fear of persecution on account of a proscribed ground, and that this
fear is reasonable. Evidence of widespread human rights violations is
not sufficient. The applicant must show that he will be singled out, and
that he is being singled out, for example, on account of the
applicant\'s political opinion. This is the backdrop against which this
case must be understood. And it must also be understood that, once
begun, the asylum adjudication process, from beginning to end, can take
one or two years, or even longer. In the *Polovchak* case, Walter
Polovchak was twelve years old when the litigation over his asylum claim
commenced. It went on for six years. Cynthia Johns\' case, *Johns v.
INS*, went on for five years. This is the sort of delay that Juan
Gonzalez faces, if he is deprived of his parental authority and some
other adult is allowed to speak for Juan\'s son. In dismissing Lazaro\'s
custody petition, the Florida state court spoke of having \"watched the
struggle between a family fighting for love and freedom and a father
fighting for love and family.\" Wish as one might that Juan would fight
for love, family, and freedom, that is a decision that he as a parent
must make, and it must be respected.

**ARGUMENT**

**I. THE STATUTORY FRAMEWORK FOR THE ONLY ISSUE ON APPEAL: THE
DISPOSITION OF THE ASYLUM APPLICATIONS LAZARO GONZALEZ SOUGHT TO FILE ON
ELIAN'S BEHALF**

**A. *Only The Attorney General's Threshold Assessment Of The Asylum
Applications Is At Issue.*** In the district court, appellant did not
challenge the Commissioner's determination that Juan Gonzalez, as
Elian's sole surviving parent, is the legal representative of Elian;
that Juan has a close and loving relationship with his son; that Juan
properly speaks for Elian in immigration matters generally; and that his
decision to withdraw the application for admission of Elian to the
United States therefore should be given effect so that Elian could
return to him in Cuba. See 8 U.S.C. 1225(a)(4) (Supp. IV 1998)
(providing that an arriving alien "may, in the discretion of the
Attorney General, be permitted to withdraw the application for admission
and depart immediately from the United States").[^5] Those matters
therefore are not at issue on this appeal, and indeed appellant does not
challenge those determinations in this Court.

This appeal concerns only a distinct issue of asylum procedure.
Specifically, it concerns the correctness of the district court's
conclusion that the Attorney General reasonably construed and applied
Section 208 of the INA in deciding, after a thorough review, not to
accept for a full adjudication the asylum applications that were
submitted by Lazaro Gonzalez or in Elian's own name. That question must
be considered in the context of the carefully drawn statutory
provisions, discussed in Point B immediately following, that govern
asylum and that furnish grounds for relief only in narrow circumstances
involving persecution specifically affecting the individual alien on
account of his own political opinion or other protected characteristic.
The generalized assertions Lazaro Gonzalez makes at various places in
his brief about conditions in Cuba, whether it would be in Elian's best
interests to live there, and whether actually Elian wants to live there
(see *e.g.,* Appellant's Br. 9, 14-16, 27, 31, 32-34, 35, 49-50, 54) are
quite wide of the mark and essentially irrelevant to the narrow issue of
asylum procedure presented here.

**B. *Substantive Standards For Asylum.*** Section 208(a) of the INA
provides that "\[a\]ny alien who is physically present in the United
States or who arrives in the United States . . . may apply for asylum in
accordance with this section." 8 U.S.C. 1158(a) (Supp. IV 1998). Section
208(b)(1) in turn provides that the Attorney General may grant asylum to
an alien "who has applied for asylum in accordance with the requirements
and procedures established by the Attorney General under this section,"
if the Attorney General determines that the alien is a refugee within
the meaning of 8 U.S.C. 1101(a)(42)(A) (Supp. IV 1998). \"Both this
Court and the Supreme Court have emphasized that \'an alien who
satisfies the applicable standard for asylum does not have a right to
remain in the United States; he or she is simply eligible for asylum, if
the Attorney General, in her discretion, chooses to grant it.\" *Lorisme
v. INS*, 129 F.3d 1441, 1444 (11th Cir. 1997) (citations and internal
brackets omitted).

The term \"refugee\" is statutorily defined as:

> \[A\]ny person who is outside any country of such person\'s
> nationality or, in the case of a person having no nationality, is
> outside any country in which such person last habitually resided, and
> who is unable or unwilling to avail himself or herself of the
> protection of that country because of persecution or a well-founded
> fear of persecution on account of race, religion, nationality,
> membership in a particular social group, or political opinion.

8 U.S.C. 1101(a)(42)(A) (Supp. IV 1998). The applicant bears the burden
of proving \"refugee\" status. 8 C.F.R. 208.13(a). *See, e.g.*, *Asani
v. INS* , 154 F.3d 719, 721-22 (7th Cir. 1998). Thus, even to be
eligible for a discretionary grant of asylum, the alien must prove that
he has suffered persecution in the past or has a well-founded fear that
he will suffer persecution in the future if he is returned, and that
such persecution is specifically \"on account of\" his race, religion,
nationality, membership in a particular social group, or political
opinion. *INS v. Elias-Zacarias*, 502 U.S. 478 (1992); *Lorisme v. INS*,
129 F.3d 1441, 1444 (11th Cir. 1997); s*ee also Faddoul v. INS*, 37 F.3d
185, 188 (5th Cir. 1994) (there \"must be some particularized connection
between the feared persecution and the alien\'s race, religion,
nationality or other listed characteristic. Demonstrating such a
connection requires the alien to present \'specific, detailed facts
showing a good reason to fear that he or she will be singled out for
persecution\'\") (citing *Zulbeari v. INS*, 963 F.2d 999, 1000 (7th Cir.
1992)).

Whether past or future, the applicant must show \"persecution.\"
Persecution is \"punishment or the infliction of harm which is
administered on account of . . . race, religion, nationality, group
membership, or political opinion.\" *Asani*, 154 F.3d at 722 (citation
omitted); *accord, Fisher v. INS*, 79 F.3d 955, 960 (9th Cir. 1996) (*en
banc*). \"Persecution is an extreme concept, which ordinarily does not
include \'discrimination on the basis of race or religion, as morally
reprehensible as it may be.\'\" *Fisher*, 79 F.3d at 961 (citation
omitted). Courts have found persecution, for example, where an alien was
arrested three times, severely beaten on several occasions, and directly
fired upon. *Desir v. Ilchert*, 840 F.2d 723, 726-27 (9th Cir. 1988);
*see also Mikhailevitch v. INS*, 146 F.3d 384, 389 (6th Cir. 1998)
(summarizing cases on what constitutes \"persecution\"). The Board of
Immigration Appeals (\"Board\") has described persecution as

> the infliction of suffering or harm, under government sanction, upon
> persons who differ in a way regarded as offensive (e.g., race,
> religion, political opinion, etc.) in a manner condemned by civilized
> governments. The harm or suffering need not be physical, but may take
> other forms, such as the deliberate imposition of severe economic
> disadvantage or the deprivation of liberty, food, housing, employment
> or other essentials of life.

*Matter of Laipenieks*, 18 I. & N. Dec. 433, 456-57 (BIA 1993).

To establish past persecution, an applicant must present specific and
objective facts of past persecution. *See INS v. Cardoza-Fonseca*, 480
U.S. 421 (1987); *see also* 8 C.F.R. 208.13(b)(1). Such a showing gives
rise to a rebuttable presumption of future persecution. 8 C.F.R.
208.13(b)(1)(i) & (ii).

To establish future persecution, the applicant must satisfy both
subjective and objective requirements. *INS v. Cardoza-Fonseca*, 480
U.S. 421, 430-31 (1987); *Mikhael v. INS*, 115 F.3d 299, 304 (5th Cir.
1997); *Ghaly v. INS*, 58 F.3d 1425, 1428-29 (9th Cir. 1995); *Matter of
Acosta*, 19 I. & N. Dec. 211, 221 (BIA 1985), *overruled on other
grounds by Matter of Mogharrabi*, 19 I. & N. Dec. 439 (BIA 1987);
*Mogharrabi*, 19 I. & N. Dec. at 443. The subjective element requires
credible testimony that the alien has a genuine fear of persecution on
one of the prohibited grounds if returned to his country of nationality.
*Chen v. INS*, 195 F.3d 198, 201 (4th Cir. 1999) (subjective prong
satisfied by presenting \"candid, credible, and sincere testimony
demonstrating a genuine fear of persecution\"); *Mikhael v. INS*, 115
F.3d 299, 304-05 (5th Cir. 1997) (applicant\'s \"subjective fear of
future persecution must also be objectively reasonable\"); *Mitev v.
INS*, 67 F.3d 1325 (7th Cir. 1995) (\"applicant must show . . . a
genuine, subjective fear of persecution\"); *Kamla Prasad v. INS*, 47
F.3d 336, 338 (9th Cir. 1995) (and case cited); *Ganjour v. INS*, 796
F.2d 832, 835 (5th Cir. 1986).

The objective component of an asylum claim based on future persecution
requires that the alien show \"credible, direct, and specific evidence
of facts supporting a reasonable fear of persecution on the relevant
ground.\" *Hartooni v. INS*, 21 F.3d 341 (9th Cir. 1994). \"Generally,
evidence of widespread violence and human rights violations affecting
all citizens is insufficient to establish persecution.\" *Debab v. INS*,
163 F.3d 21, 27 (1st Cir. 1998) (citing cases). Applicants must present
evidence showing that their \"predicament is appreciably different from
the dangers faced by \[their\] fellow citizens.\" *Estrada-Posadas v.
INS*, 924 F.2d 916, 920 (9th Cir. 1991); *Zepeda-Melendez v. INS*, 741
F.2d 285, 289-90 (9th Cir. 1984) (holding that \"generalized allegations
of persecution resulting from the political climate of a nation\" do not
suffice). \"General conditions of unrest alone are insufficient to
warrant relief.\" *Bevc v. INS*, 47 F.3d 907, 909 (7th Cir. 1995); *see
also* *Civil v. INS*, 140 F.3d 52 (1st Cir. 1998); *Huaman-Cornelio v.
Board*, 979 F.2d 995, 1000 (4th Cir. 1992); *M.A. v. INS*, 899 F.2d 304,
315 (4th Cir. 1990) (*en banc*); *Cariolan v. INS,* 559 F.2d 993, 996
(5th Cir. 1977) (\"The law regulating persecution claims, although
humane in concept, is not generous\"); *In Re N-M-A-*, Interim Dec.
3368, 1998 WL 744095, at \*12 (BIA 1998) (asylum not proven where
applicants face \"a variety of dangers arising from internal strife in
Afghanistan\").

Because the asylum statute \"speaks of a well-founded fear of
persecution for specific reasons,\" the Supreme Court has held that a
showing of motive for persecution is \"critical.\" *Elias-Zacarias*, 502
U.S. at 483. There must be an inquiry into the alleged persecutor\'s
motives, and the political opinion, religion, or other qualifying
characteristic must be that of the victim, not that of the persecutor.
*Id.* at 482-83. In *Sangha v. INS*, 103 F.3d 1482, 1487 (9th Cir.
1997), the Ninth Circuit put it this way:

> After the Supreme Court\'s decision in *INS v. Elias-Zacarias*, 502
> U.S. 478 (1992), an asylum seeker claiming to be a victim of
> persecution on account of a political opinion must offer evidence that
> (1) he has been a victim of persecution; (2) he holds a political
> opinion; (3) his political opinion is known to his persecutors; and
> (4) the persecution has been or will be on account of his political
> opinion. Likewise, an asylum seeker claiming well-founded fear of
> persecution must show the second, third and fourth elements, though
> not necessarily the first.

103 F.3d at 1487.

**C. *Procedures For Considering Asylum Applications That Are Properly
Filed.*** Subsection (d)(1) of Section 208 provides that "\[t\]he
Attorney General shall establish a procedure for the consideration of
asylum applications filed under subsection (a)."[^6] That authorization
does not require the Attorney General to establish any *particular*
procedure, or to provide for a full-blown evidentiary hearing in all
circumstances.

Under the current regulatory framework, there are three basic ways in
which a properly filed asylum application may be considered. First, if
the applicant is not already in removal proceedings, an asylum interview
is conducted by an asylum officer. *See* 8 C.F.R. 208.9, 208.14(b). If
the asylum officer, following the interview, denies the application, the
Act provides no right of judicial review of the asylum officer's
decision. But if the alien appears to be removable, the asylum officer
must refer the applicant to removal proceedings before an immigration
judge in the Executive Office for Immigration Review, a separate
component of the Department of Justice. 8 C.F.R. 208.14(b)(2).[^7]

Second, if the applicant has already been placed in formal removal
proceedings, the asylum issue may be adjudicated in those proceedings
(along with any other issues bearing on the alien's removal) by an
immigration judge. If, following a hearing, the immigration judge denies
the application, the alien has a right of appeal to the Board of
Immigration Appeals. *See* 8 C.F.R. 3.1(b)(3). If the Board denies
asylum and enters a final order of removal, the alien has a right to
petition for review to a court of appeals. *See generally* 8 U.S.C.
1252. The process, from beginning to end, can take one or two years, or
even longer. *Stone v. INS*, 514 U.S. 386, 399-400 (1995). *See
Polovchak*, 774 F.2d 731 (7th Cir. 1985) (minor was twelve years old
when federal and state litigation with his parents over his asylum claim
commenced and about to turn eighteen when Seventh Circuit issued
decision in 1985); *Johns v. INS*, 653 F.3d 884 (5th Cir. 1981), and
*Johns v. INS*, 624 F.2d 522 (5th Cir. 1980) (INS investigation into
Mexican mother\'s claim that newborn Cynthia had been kidnapped began in
1976 and federal, state, and INS litigation still pending five years
later in 1981).

Third, if the alien has been placed in *expedited* removal proceedings
under 8 U.S.C. 1225(b) (Supp. IV 1998), the Act itself mandates a
special threshold screening of any asylum claim. Under that procedure,
if the alien indicates an intent to apply for asylum or a fear of
persecution, the inspecting officer must refer the alien to an asylum
officer for an interview. If the asylum officer determines that the
alien does not have a "credible fear of persecution" --- defined to mean
that there is a "significant possibility, taking into account the
credibility of the statements made by the alien in support of the
alien's claim and such other facts as are known to the officer, that the
alien could establish eligibility for asylum under Section 208\" --- the
officer shall order the alien removed without further hearing. *See
also* 8 U.S.C. 1252(e)(1) and (2) (Supp. IV 1998) (providing for
judicial review of only specified issues resolved in expedited removal
orders, not including a denial of asylum). If the asylum officer finds a
credible fear, the alien is detained for further consideration of the
asylum claim. See generally 8 C.F.R. 208.30.

**II. AN ALIEN SEEKING ADMISSION TO THE UNITED STATES HAS NO DUE PROCESS
RIGHTS REGARDING AN ASYLUM APPLICATION**

The district court was clearly correct in holding that Elian Gonzalez
has no due process rights concerning the manner in which the Attorney
General considered the asylum applications submitted on his behalf. The
district court relied primarily on *Jean v. Nelson*, 727 F.2d 957 (11th
Cir. 1984) (*en banc*), *aff\'d on other grounds*, 472 U.S. 846 (1985),
noting that there this Court held that unadmitted aliens cannot
challenge INS decisions on their \"applications for admission, asylum,
or parole on the basis of rights guaranteed by the United States
Constitution.\" 86 F. Supp. 2d at 1188.

The holding in *Jean v. Nelson* reflects long-settled law. Unadmitted
aliens, although physically present within this country\'s borders, are
not \"within the United States,\" *Leng May Ma v. Barber*, 357 U.S. 185,
186 (1958), but rather are \"treated as if stopped at the border\" and
\"on the threshold of initial entry,\" *Shaugh­nessy v. United States ex
rel. Mezei*, 345 U.S. 206, 212, 215 (1953). Such an alien accordingly
\"has no constitu­tional rights regarding his application \[for
admission\], for the power to admit or exclude aliens is a sovereign
prerogative.\" *Landon v. Plasen­cia*, 459 U.S. 21, 32 (1982); *see also
­United States ex rel. Knauff v. Shaughnessy*, ­338 U.S. 537, 600 (1950)
(denial of removal hearing \"raises no constitutional conflict if
limited to \'excludable\' aliens")[^8]; *Adras v. Nelson*, 917 F.2d 1552
(11th Cir. 1990) (\"Excludable aliens cannot challenge the decisions of
executive officials with regard to their applications for admission,
asylum, or parole on the basis of the rights guaranteed by the United
States Constitution\").

This Court's en banc decision in *Jean* specifically rejected the
contention that the Refugee Act created a constitutionally protected
\"liberty\" or \"property\" interest in asylum that is protected by the
Due Process Clause. The Court found it \"clear that the Refugee Act does
not create an entitlement to asylum,\" but only provides that asylum may
be granted in the Attorney General\'s discretion. *Id*.[^9] *Accord
Garcia v. INS*, 7 F.3d 1320, 1326 (7th Cir. 1993); *Ramirez-Osorio v.
INS*, 745 F.2d 937, 942-43 (5th Cir. 1984). And this Court made clear in
*Jean* that the release of an alien on parole does not alter his status
or trigger application of the Due Process Clause to the consideration of
any claims he might make under the immigration laws. 727 F.2d at 969
(citing, *inter alia*, *Leng May Ma,* 357 U.S. at 188, and *Mezei*, 345
U.S. at 215). \"The parole of aliens seeking admission is simply a
device through which needless confinement is avoided while
administrative proceedings are conducted.\" *Id.* (quoting *Leng May
Ma*, 357 U.S. at 190).

But even if we assume, arguendo, that the Due Process Clause afforded
some protection in this setting, the Attorney General has, in this case,
afforded far more process than would be due in connection with the
threshold issue of capacity to file an asylum application. The Attorney
General did not simply return the applications unanswered or arbitrarily
deny or extinguish any ability to submit them for her consideration. She
gave effect to Juan Gonzalez\' decision not to pursue asylum for Elian
only after the INS conducted two interviews of Juan, afforded Lazaro
Gonzalez an opportunity to be heard personally and then again through
counsel, examined the applications themselves and, determining that they
did not set forth an objective basis for an independent asylum claim,
concluded that Juan's interests therefore did not diverge from those of
Elian, and offered to consider any further information Lazaro or the
attorneys might submit. See pp. 11-19, *supra.*

**III. THE COMMISSIONER, RATIFIED BY THE ATTORNEY GENERAL, REASONABLY
IMPLEMENTED THE ASYLUM PROVISION OF THE ACT IN CONSIDERING THE ASYLUM
APPLICATIONS SUBMITTED ON ELIAN'S BEHALF**

> **A. STANDARD OF REVIEW**

1\. Because this case turns primarily on the interpretation of a
provision of the INA that the Attorney General is charged with
administering, the Court must apply the principles of statutory
interpretation articulated in *Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc.*, 467 U.S. 837, 842 (1984), and *INS v.
Aguirre-Aguirre*, 526 U.S. 415 (1999). *See also* 8 U.S.C. 1103(a)
(stating that the Attorney General\'s determinations of all questions of
law under the INA \"shall be controlling\").[^10] Under *Chevron*, where
Congress has not addressed the issue, a court must defer to the
agency\'s interpretation if it is permissible or reasonable. *Lipscomb*,
906 F.2d at 545 (citing *Chevron*, 467 U.S. at 843-44). \"A finding of
reasonableness does not require a finding that the agency interpretation
was the only possible construction, or that the agency made the same
finding the court would have made.\" *Id.* (citing *Curse v. Director*,
*Office of Workers\' Compensation Programs*, 843 F.2d 456, 460 (11th
Cir. 1988) (quoting *Chevron*, 467 U.S. at 843 n.11)). As the Court
pointed out in *Chevron*, the principle of deference applies with
special force where the agency's statutory interpretation "involved
reconciling conflicting policies," 467 U.S. at 844 \-- in this case, the
policies, *inter alia*, of preserving family relationships, respecting
the parent's ability to make important life decisions for his child, and
recognizing the child's independent interest in seeking asylum if there
are substantial reasons to believe that he has a valid claim. The
Attorney General's interpretation of her own implementing regulations
and guidelines is controlling "unless 'plainly erroneous or inconsistent
with the regulation\[s\].'" *Auer v. Robbins*, 519 U.S. 452, 461 (1997).

Moreover, the Supreme Court observed in *Aguirre-Aguirre* that
\"judicial deference to the Executive Branch is especially appropriate
in the immigration context where officials \'exercise especially
sensitive political functions that implicate questions of foreign
relations.\'\" *Aguirre-Aguirre*, 526 U.S. at 425 (quoting *INS v.
Abudu*, 485 U.S. 94, 110 (1988)). The Supreme Court\'s recognition of
immigration law as occupying a unique status for purposes of judicial
review dates back more than a hundred years. \"Our cases \'have
recognized the power to expel or exclude aliens as a fundamental
sovereign attribute exercised by the Government\'s political departments
largely immune from judicial control.\'\" *Fiallo v. Bell*, 430 U.S.
787, 792 (1977) (quoting *Harisiades v. Shaughnessy*, 342 U.S. 580,
588-89 (1952)) (collecting cases). \"The judiciary is not well
positioned to shoulder primary responsibility for assessing the
likelihood and importance of such diplomatic repercussions.\"
*Aguirre-Aguirre*, 526 U.S. at 425; *see also Fiallo v. Bell*, 430 U.S.
at 792 (Supreme Court \"has repeatedly emphasized that \'over no
conceivable subject is the legislative power of Congress more complete
than it is over\' the admission of aliens\"); *Harisiades v.
Shaughnessy*, 342 U.S. 580, 588-89 (1952) (\"any policy toward aliens is
vitally and intricately interwoven with contemporaneous policies in
regard to the conduct of foreign relations\"). Thus, as the district
court recognized, the Commissioner\'s interpretations of the INA are
entitled to deference not only under *Chevron,* but also because of the
unique status of immigration law. 86 F. Supp. 2d at 1191.

2\. To the extent the Court is reviewing aspects of the Commissioner\'s
decision that do not involve the interpretation of the INA or
implementing regulations and guidelines, the Court must uphold those
aspects so long as it concludes that they are \"facially legitimate and
bona fide,\" *Kleindienst v. Mandel*, 408 U.S. 753, 770 (1972), or, at
most, unless it concludes the Commissioner's decision is \"arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law,\" under the APA, 5 U.S.C. 706(2)(A) . If the Court examines the
agency decision for facial legitimacy, it would review only the agency
decision itself, which consists of the Commissioner's decision dated
January 3, 2000; the Attorney General\'s January 12, 2000, ratification
of that decision; the three INS letters dated January 5, 2000, to Juan
Gonzalez, Lazaro Gonzalez, and Lazaro\'s attorneys; and the three asylum
applications that were filed under seal.

Reliance on the *Kleindienst* standard is appropriate because both that
case and this case involve agency decisions relating to aliens seeking
admission to the United States. Although the district court declined to
apply *Kleindienst* to plaintiff\'s statutory claim because it believed
that standard applies only when a plaintiff \"asserts a constitutional
challenge to agency action,\" *Gonzalez*, 86 F. Supp. 2d at 1190 n.33,
Eleventh Circuit precedent is to the contrary. *See, e. g., Perez-Perez
v. Hanberry*, 781 F.2d 1477 (11th Cir. 1986) (applying *Kleindienst*
standard, in absence of constitutional challenge, to INS parole denial);
*Sidney v. Howerton*, 777 F.2d 1490, 1491 (11th Cir. 1985) (same).

If this Court nevertheless should find that the *Kleindienst* \"facially
legitimate and bona fide\" standard does not apply, it should apply the
more exacting (but still highly deferential) standard of review that is
generally applicable under the Administrative Procedure Act, 5 U.S.C.
551-559, 701-706. Under the APA, as the district court observed,
\"courts hold agency findings and decisions unlawful only if they are
\'arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.\'\" *Gonzalez*, 86 F. Supp. 2d. at 1190 (quoting 5
U.S.C. 706(2)(A)) (citation omitted). \"The scope of review under the
\'arbitrary and capricious\' standard is narrow and a court is not to
substitute its judgment for that of the agency.\" *Motor Vehicles
Manufacturers Association v. State Farm Mutual Automobile Insurance
Co.*, 463 U.S. 29, 43 (1983). \"The task of the reviewing court is to
apply the appropriate APA standard of review, 5 U.S.C. § 706, to the
agency decision based on the record the agency presents to the reviewing
court.\" *Florida Power & Light Company v. Lorion*, 470 U.S. 729, 743-44
(1985).

If the Court applies the APA standard, it should review the 318-page
record the government submitted with its dispositive motion, except for
the declarations the government asked the district court to consider
only in connection with the equitable bases of plaintiff\'s motion for
preliminary injunctive relief.[^11] A *de novo* review of the facts
underlying the Commissioner\'s decision is not appropriate; the Court
may only \"consider whether the decision was based on a consideration of
the relevant factors and whether there has been a clear error of
judgment.\" *Motor Vehicles*, 463 U.S. at 43 (citing *Bowman
Transportation, Inc. v. Arkansas-Best Freight System, Inc.*, 419 U.S.
281, 286 (1974); *Cooperative Services, Inc. v. HUD*, 562 F.2d 1292,
1295 (D.C. Cir. 1977)).

> **B. THE DECISION OF THE COMMISSIONER RESTS ON A REASONABLE
> INTERPRETATION AND APPLICATION OF THE ASYLUM PROVISION OF THE INA**
>
> **(1) THE COMMISSIONER REASONABLY CONSTRUED SECTION 208 OF THE INA TO
> PERMIT A PARENT TO SPEAK FOR HIS CHILD REGARDING A POSSIBLE ASYLUM
> APPLICATION, IF THE CHILD LACKS THE CAPACITY TO APPLY AND THERE IS NO
> OBJECTIVE BASIS FOR AN ASYLUM CLAIM**

The Commissioner determined that the general rule under the INA, as
under the law generally, is that a parent speaks for his young child.
Accordingly, the Commissioner further determined that when an asylum
application is submitted on behalf of a minor child by a third party
against the express wishes of the parent, the child will be deemed to
have applied for asylum only if (a) the child has the capacity to seek
asylum in his own right or (b) there is an objective basis for an
independent asylum claim by the child indicating a divergence of
interests between parent and child. *See* pp. 11-19, *supra*. That
carefully crafted approach to considering asylum applications submitted
by a third party on behalf of a child in these circumstances is
supported by the text of Section 208 of the INA, by analogous principles
applied in cases involving minors in court, by a weighing of the
relevant policies, and by INS and United Nations guidelines used to
evaluate children's asylum claims. The Commissioner's thoroughly
considered decision, which was ratified by the Attorney General and
sustained by the district court, therefore rests on a permissible
interpretation of the asylum section of the INA and should be sustained
by this Court.

a\. The text of Section 208 confers broad latitude on the Attorney
General to determine what constitutes an application for asylum under
that Section. Appellant contends (Br. 19-25) that the text of Section
208(a)(1) forecloses the Commissioner's approach as a matter of law.
That contention, however, reflects a misunderstanding of the
Commissioner's decision. Section 208(a)(1) states: \"Any alien who is
physically present in the United States or who arrives at the United
States . . . may apply for asylum. . . .\" 8 U.S.C. 1158(a)(1) (Supp. IV
1998). Relying on the words "\[a\]ny alien," appellant contends that
because Elian is an alien who has arrived in the United States, and
because there is no age restriction in Section 208 limiting the aliens
who may apply, he is statutorily entitled to do so. But the INS has
never denied that Elian \"may apply for asylum.\" 8 U.S.C. 1158(a)(1)
(Supp. IV 1998). To the contrary, the Commissioner made clear in her
decision that he has that right under Section 208(a)(1). *See* R.E.
III-14 (\"There are no age-based restrictions on applying for asylum\");
*id.* at 16 (\"the asylum statute clearly invests a child with the right
to seek asylum\").

Subsection (a) of Section 208 merely identifies who is *eligible* *to*
*apply* for asylum. It is subsection (b)(1) that identifies who may be
*granted* asylum. Subsection (b)(1) provides that the Attorney General
"may grant asylum to an alien who *has applied for asylum* in accordance
with the requirements and procedures established by the Attorney General
under this section," if the Attorney General finds that the alien is a
"refugee." 8 U.S.C. 1158(b)(1) (Supp. IV 1998)(emphasis added).
Accordingly, the

question in this case is not whether Elian \"*may* *apply* for asylum,\"
but whether he *"has applied* for asylum.\" See R.E. III-15
(Commissioner's decision: "Is Elian truly seeking asylum?").[^12]

Nothing in the text of Section 208(b)(1), or elsewhere in Section 208,
speaks to whether a child in Elian's circumstances "has applied" for
asylum. The Commissioner therefore determined, as noted above, that (1)
the general rule to be applied under the INA is that a parent speaks for
his young child,[^13] and (2) when an asylum application is submitted on
behalf of a minor child by a third party against the express wishes of
the parent, the child will be deemed to have "applied" only if the child
has the capacity to understand what he is applying for and has assented
to or submitted the application himself, or if there is a substantial
objective basis for an independent asylum claim and therefore for
overriding the parent's wishes. See pp. 11-19, *supra*. Those criteria
are "requirements" established by the Attorney General under Section
208(b)(1) that must be satisfied in order for a child to be found to
have "applied" for asylum under that Section.[^14]

Thus, appellant's central argument in this case \-- that the asylum
applications submitted by Lazaro Gonzalez and the one signed by Elian
must be accepted and adjudicated by the Attorney General over the
objections of Elian's father simply because Section 208(a)(1) says that
"\[a\]ny alien" may apply for asylum \-- is without merit on its own
terms and is any event refuted by other provisions of Section 208 that
confer on the Attorney General broad authority to establish the
"requirements" that must be met for a minor child to apply.
Administrative standards adopted pursuant to a broad grant of authority
such as that must be sustained unless they are "arbitrary, capricious,
or manifestly contrary to the statute." *Chevron*, 467 U.S. at 844.
Plainly the principles the Commissioner adopted here satisfy that test.

Moreover, to accept appellant's argument would, as the district court
aptly observed, \"require\[\] the Attorney General to adjudicate asylum
applications from all children --- no matter how young in age, no matter
who claims to speak for them, and no matter what their mental
condition.\" *Gonzalez*, 86 F. Supp. 2d at 1192. For example, the court
continued, if a child had been kidnapped and brought to the United
States, appellant \"would have the Court believe that even if the
Attorney General were aware that the child had been kidnapped, the
Attorney General would be obligated to accept the application.\" *Id.*

b\. The Commissioner's decision that Elian's father properly speaks for
him regarding a possible asylum claim is not unlike decisions courts
must make in cases brought by or on behalf of a minor. Rule 17 of the
Federal Rules of Civil Procedure in fact addresses that very subject.
Surely a court would not adjudicate a case on the basis of a complaint
signed by a six-year-old child, or allow the suit to proceed unless the
child's interests were represented by his parent or (if his parent were
determined not to be an adequate representative) by a general guardian,
guardian ad litem, or next friend. That would be so even if the child
purported to sue under a statute that afforded a cause of action to "any
person" aggrieved. The court's insistence that the child's interests be
represented by a responsible adult would not impermissibly deprive the
child of his right to sue under such a statute.

Typically, courts allow a child's parent, if available, to serve as the
child's representative. R. Horowitz et al., *Legal Rights of Children*
75-78 (1984) (courts appoint parents to represent children unless a
conflict exists); accord *Gonzalez*, 86 F. Supp. 2d at 1185 ("Typically,
the next friend who sues on behalf of a minor is the minor's parent.")
(citing Moore, *Conflicts of Interest in the Representation of
Children*, 64 Fordham L. Rev. 1819, 1855 (1996)). \"The burden is on the
\'next friend\' clearly to establish the propriety of \[his\] status,
and thereby justify the jurisdiction of the court.\" *Whitmore v.
Arkansas*, 495 U.S. 149, 164 (1990). The \"proper rule is that the next
friend must be an appropriate alter ego for a plaintiff who is not able
to litigate in his own right.\" *Brophy*, 124 F.3d at 895.

The Commissioner's decision in this case took a parallel approach in
recognizing the parent (rather than a third party seeking to advance his
own view of the child's interests) is the proper representative of the
child with respect to the matter pending before her, as long as the
parent was an adequate representative and did not have a disabling
conflict of interest. *Cf.* *T.W. and M.W., minors, by their next
friend, Scott Enk v. Brophy*, 124 F.3d 893, 895-96 (7th Cir. 1997)
(Posner, C.J.) (minor's general representative may not be bypassed by
person seeking to sue as next friend without a showing that the general
representative is inadequate). Adequate representation by a parent can
include a decision *not* to file a suit (or, here, not to file an asylum
application) on behalf of the child, where the parent reasonably
concludes that it would be appropriate to refrain from doing so. *See,
e.g.*, *Developmental Disabilities Advocacy Center, Inc. v. Melton*, 689
F.2d 281, 285-86 (1st Cir. 1982) (Campbell, J.).

That is not to say that the Attorney General's approach to determining
when a child may speak on his own behalf in various immigration matters,
or when a parent is or is not an adequate representative of his child,
must conform to the standards courts might apply in the quite different
context of judicial proceedings under the separate authority of Fed. R.
Civ. P. 17. In 8 U.S.C. 1103 (Supp. IV 1998), Congress vested in the
Attorney General the authority to administer and interpret the INA in
the myriad circumstances that may arise, and her decisions under the
Act, after weighing all of the considerations she deems relevant, are
entitled to substantial deference from the courts. Our point is simply
that the reasonableness of the approach adopted by the Commissioner and
the Attorney General in the particular circumstances of this case is
underscored by the fact that courts often conduct comparable inquiries
in cases involving minors, recognizing parents as the presumptive
representatives of their minor children and displacing the parents'
authority only upon an affirmative showing of a disabling conflict of
interest or other inadequacy. Statutes providing for administrative
proceedings, no less than those providing for judicial proceedings, are
enacted against such background principles governing the capacity of
minors to seek relief on their own behalf and the presumptive right of
parents to represent their minor children's interests.

c\. The Commissioner's implementation of Section 208 also reflects a
balance of the competing considerations that must be taken into account
in this setting. On the one hand, of course, is the child's interest in
asylum if the child articulates a genuine fear of persecution on account
of a protected characteristic or there are concrete reasons to conclude
that such persecution of the child is a realistic prospect. On the other
hand, however, are the competing interests of *both* the parent *and*
the child in family reunification, in having the parent guide the
child's upbringing and make important decisions in his life, and in
protecting the parent-child relationship against outside interference by
third parties or the government --- interests that are rooted in the
Constitution, laws and historical traditions of this Nation, as well as
in international law. Deference to administrative action is especially
warranted when it "has involved reconciling conflicting policies" in
this manner. *Chevron*, 467 U.S. at 844.

In this instance, to adjudicate an asylum application submitted by a
third party on behalf of a six-year-old boy (as well as one ostensibly
submitted by the boy himself), over the objections of the boy's sole
surviving parent, would contradict the fundamental principle that
primary responsibility for the care of children rests with their
parents. *See, e.g.,* *Reno v. Flores*, 507 U.S. 292, 310 (1993) (\"our
society and this Court\'s jurisprudence have always presumed \[parents\]
to be the preferred and primary custodians of their minor children\")
(citing *Parham v. J.R.*, 442 U.S. 584, 602-03 (1979)); *Wisconsin v.
Yoder*, 406 U.S. 205, 232 (1972); *Pierce v. Society of Sisters*, 268
U.S. 510, 535 (1925). With this role as primary care-giver and protector
comes the \"common law . . . recognition to the right of parents, not
merely to be notified of their children\'s actions, but to speak and act
on their behalf.\" *Hodgson v. Minnesota*, 497 U.S. 417, 483 (1990)
(Stevens, J., concurring) (citing J. Schouler, *Law of Domestic
Relations* 337 (3d ed. 1882); 1 W. Blackstone, *Commentaries* 452‑453; 2
J. Kent, *Commentaries* *on American Law* 203‑206; G. Field, *Legal
Relations of Infants* 63‑80 (1888)). As Justice White explained in
*Stanley v. Illinois*, 405 U.S. 645 (1972):

> The private interest here, that of a man in the children he has sired
> and raised, undeniably warrants deference and, absent a powerful
> countervailing interest, protection. . . . The Court has frequently
> emphasized the importance of the family. The rights to conceive and to
> raise one\'s children have been deemed \"essential,\" *Meyer v.
> Nebraska*, 262 U.S. 390, 399 (1923), \"basic civil rights of man,\"
> *Skinner v. Oklahoma*, 316 U.S. 535, 541 (1942), and \"\[r\]ights far
> more precious . . . than property rights,\" *May v. Anderson*, 345
> U.S. 528, 533 (1953). \"It is cardinal with us that the custody, care
> and nurture of the child reside first in the parents, whose primary
> function and freedom include preparation for obligations the state can
> neither supply nor hinder.\" *Prince v. Massachusetts*, 321 U.S. 158,
> 166 (1944).

405 U.S. at 650 (parallel citations omitted).

\"So long as certain minimum requirements of child care are met, the
interests of the child may be subordinated to the interests of other
children, or indeed even to the interests of the parents or guardians
themselves.\" *Reno v. Flores*, 507 U.S. at 303-04. \"Certainly the
safeguarding of the home does not follow merely from the sanctity of
property rights. The home derives its preeminence as the seat of family
life. And the integrity of that life is something so fundamental that it
has been found to draw to its protection the principles of more than one
explicitly granted Constitutional right.\" *Poe v. Ullman*, 367 U.S.
497, 551-52 (1961) (Harlan, J., dissenting).

The sacred bond between parent and child also is a universally shared
principle in the international community. *See, e.g., Universal
Declaration Of Human Rights*, Art. 17 (\"The family is the natural and
fundamental group unit of society and is entitled to protection by
society and the State\"). The United Nations Convention on the Rights of
the Child, 28 LL.M 1448 (1989), to which the United States is a
signatory but not a party, emphasizes the importance of the parent-child
relationship in many of its provisions. Article 3 of the Convention
obligates the state parties to protect children, \"taking into account
the rights and duties of his or her parents . . . .\" Similarly, Article
5 calls on parties to \"respect the responsibilities, rights and duties
of parents . . . in a manner consistent with the evolving capacities of
the child. . . .\" Article 7 states that every child has the right \"to
know and be cared for by his or her parents.\" Article 14 requires that
parties \"respect the rights and duties of the parents . . . to provide
direction to the child in the exercise of his or her right in a manner
consistent with the evolving capacities of the child.\" And Article 18
calls on states to ensure \"recognition of the principle that both
parents have common responsibilities for the upbringing and development
of the child.\" \"Parents . . . have the primary responsibility for the
upbringing and development of the child.\" *Id.*

Article 22 of the Convention requires parties to "take appropriate
measures to ensure that a child who is seeking refugee status or who is
considered a refugee in accordance with applicable international or
domestic law and procedures shall, whether unaccompanied or accompanied
by his or her parents or by any other person, receive appropriate
protection and humanitarian assistance in the enjoyment of applicable
rights." But as the Commissioner noted in her decision, that provision
does not address whether a child may assert an asylum claim contrary to
the express wishes of a parent, see R.E.III-22-14, and an absolute rule
to that effect would conflict with the other provisions of the
Convention that emphasize parental responsibility.

Respecting the parent-child bond and the right of the parent to speak
for the child in a case such as this also furthers the
family-reunification principles of the immigration laws and
international agreements governing refugees. *See* United Nations High
Commissioner for Refugees ("UNHCR"), *Handbook For Emergencies* at 161
(\"International humanitarian law has as a fundamental objective the
unity of the family\"); *id.* at 163 (\"As soon as unaccompanied
children are identified, efforts must start to trace their parents or
families and ensure family reunion\"). The *UNHCR Guidelines on Refugee
Children* summarized the relative rights of the parent and child in this
way:

> Although the Convention on the Rights of the Child gives individual
> rights to children, the CRC also emphasizes relationships. The
> well-being of children and the enjoyment of their rights are dependent
> upon their families and their community. *The CRC recognizes that the
> family is \"the fundamental group of society\" and places children\'s
> rights in the context of parental rights and duties* (arts. 5, 14, 18,
> etc.).

*UNHCR Refugee Children Guidelines* at 8 (emphasis supplied).

Moreover, the *UNHCR Guidelines* emphasize the need to reunite
unaccompanied children with their families immediately. *Id.* at 13. If
asylum is an issue, the *Guidelines* counsel that the question of how to
determine whether the child qualifies for that status depends \"on the
child\'s degree of mental development and maturity.\" *Id.* at 20.
\"Where the child has not reached a sufficient degree of maturity to
make it possible to establish a well-founded fear in the same way as for
an adult, it is necessary to examine in more detail objective factors,
such as the characteristics of the group the child left with the
situation prevailing in the country of origin and the circumstances of
the family members, inside or outside the country. *Id.* at 20. That
recommendation is fully consistent with the Commissioner\'s decision in
this case, which concluded that Elian lacked the requisite subjective
capacity but then went on to discuss whether objective evidence
demonstrated an \"independent basis for asylum\" notwithstanding his
father\'s stated wishes. R.E. III-22-16.

Confronted with a six-year-old, a loving father, a universal presumption
of parental authority over \"life-altering decisions,\" *Matter of
Lazaro Gonzalez*, *supra*, slip op. at 21, the absence of evidence that
Elian will suffer persecution if he returns home, and the prospect of
perhaps years of litigation, the Commissioner followed a course designed
to return Elian to his father in the shortest time possible. The
question here is not whether Elian will be allowed to apply for some
minor benefit against his father\'s wishes. This is a question of
whether a six-year-old will live in another country apart from his
father\'s. It would be a substantial intrusion into the realm of
parental authority for a distant relative to be able to trigger
governmental procedures concerning the parent's six-year-old son that
could seriously disrupt the parent-child relationship and family
stability \-- consequences vividly illustrated to the world in this case
\-- without making a substantial threshold showing that the child
probably would be entitled to asylum at the end of the day. The
Commissioner's decision strikes an appropriate balance by respecting the
father's right to speak for his son, unless there is an objective basis
for asylum indicating a divergence of interests between father and son.

The Commissioner's determination that cases such as this need not be
referred for full adjudication also serves the interest in expeditious
resolution of immigration issues affecting arriving aliens and parents
and children generally. \"In fiscal year 1997, the INS apprehended
1,536,520 aliens.\" 1997 Statistical Yearbook of the Immigration and
Naturalization Service 164. Many of these aliens are small children,
unaccompanied or in the company of their parents or other responsible
adults. To require that the INS embark upon formal adjudicatory
processes each time there arises the question of whether parents are
properly speaking for these children would severely impede INS
enforcement activities along our borders and would delay the
reunificatoin of parent and child. The APA does not require that agency
decisions be made in formal hearings. Agencies routinely render informal
decisions based on administrative records that are compiled without
formal hearings. *Florida Power & Light Company v. Lorion*, 470 U.S.
729, 744 (1985). The Attorney General is given broad discretion to
implement the INA, including the authority to establish "procedures"
under Section 208(b)(1) in connection with applications for asylum, and
this is the procedure that she found to be appropriate for the task. The
procedures the Commissioner followed under Section 208(b)(1) to
ascertain whether Juan Gonzalez lawfully and properly speaks for Elian
regarding whether to file an asylum application are \"consistent with
\[her\] authority to tailor administrative procedures to the needs of
the particular case.\" *Atlanta Gas Light Company v. Federal Energy
Regulatory Commission*, 140 F.3d 1392, 1400 (11th Cir. 1998 ) (quoting
*Vermont Yankee Nuclear Power Corp. v. NRDC*, 435 U.S. 519, 544 (1978)).

Finally, it is essential to consider the interest of reciprocity among
nations regarding the reunification of children with their parents.
Child abduction across international boundaries is a very significant
problem. \"International abductions and retentions of children are
increasing, and only concerted cooperation pursuant to an international
agreement can effectively combat this problem.\" 42 U.S.C. 11601
(Congressional findings on international child abduction remedies). *See
generally* Michelle Morgan Kelly, *Taking Liberties: The Third Circuit
Defines \'Habitual Residence\' Under The Hague Convention On
International Child Abduction*, 41 Vill. L. Rev. 1069, 1085 n.3 (1996)
(citing State Department reports of 4,563 American children being
abducted to foreign countries between 1973 and 1993). Adherence to the
rule of law in this case is of central importance to the United States
to ensure that other nations to which U.S. children are abducted
promptly return those children.[^15]

d\. The Commissioner\'s application of Section 208 in this case also is
consistent with the *INS Children\'s Guidelines* and Section 219 of the
*UNHCR Handbook*. *Id.* The *INS Children\'s Guidelines* provide
guidance on interviewing children on asylum issues, as do the *INS
Asylum Officer Corps Training Guidelines for Children\'s Asylum Claims*.
What sets this case apart is the absence of any indication in the record
before the Commissioner that Elian had articulated a subjective fear of
persecution on account of political opinion or other protected
characteristic *and* the fact that Juan has said that he does not want
to assert Elian\'s right to apply. On the capacity issue, the *INS
Children\'s Guidelines* note that the *UNHCR Handbook* suggests that
more weight be given to objective factors since children under 16 \"may
lack the maturity to form a well-founded fear of persecution.\" *INS
Children\'s Guidelines* at 19. The Commissioner did this, evaluating the
objective evidence she had been provided, including the asylum
applications submitted by Lazaro and the one signed by Elian.

With respect to Juan's determination that Elian not apply, the
*Children\'s Guidelines*, adopting language from Section 219 of the
*UNHCR Handbook*, note that if \"it appears that the will of the parents
and that of the child are in conflict, the adjudicator will have to come
to a decision as to the well-foundedness of the minor\'s fear on the
basis of all known circumstances, which may call for a liberal
application of the benefit of the doubt.\" *Id.* at 20. The
Commissioner's decision is consistent with that advice. She evaluated
Lazaro\'s applications and the other information that had been brought
to her attention, and concluded that none of this information provided
an objective basis to conclude that Elian had a well-founded fear of
persecution. R.E. III-22-17.

Obviously, these INS and UNHCR guidelines are not enforceable. They
\"are for the administrative convenience of the INS only,\" and do not
have the force and effect of substantive law.\" *Pasquini v. Morris*,
700 F.2d 658, 662 (11th Cir. 1983). They do not solve every problem that
confronts an agency. They do not tell the reader, as the *UNHCR
Guidelines on Refugee Children* put it, \"In situation X, you must do
Y.\" They are there to provide *general* guidance. They provide general
guidance on interviewing children. They provide guidance on family
reunification. They provide guidance on the capacity issue. And they
provide guidance on determining whether a child has a well-founded fear
by resort to objective evidence. The Commissioner looked to these
sources. e. Appellant argues (Br. 43) that 8 C.F.R. 208.9 supports his
plain meaning argument because, he notes, that regulation requires that
the INS \"adjudicate the claim of each asylum applicant whose
application is complete.\" That argument suffers from the same weakness
as his argument based on Section 208(a)(1): It assumes that Elian has
applied. He has not, because he lacks the capacity to do so without his
father\'s authorization and assistance, and his father has declined to
provide that. Appellant's suggestion (Br. 43 n.8) that, because the INS
did not return his asylum applications for incompleteness, it is obliged
to adjudicate them, does not follow. The INS returned the applications
to Lazaro because Juan had declined to assert Elian\'s right to apply.
R.E. III-4. The cited regulation does not apply unless an alien submits
an asylum application.[^16]

Appellant also errs in relying (Br. 45) on 8 C.F.R. 236.3(f), which
requires that if a juvenile seeks immigration relief that could
effectively terminate some interest vis-a-vis a parent and the parent
resides in the United States, the parent must be given notice and
opportunity to assert his interests prior to a ruling on the application
for relief. That regulation assumes that the juvenile is not so young as
to lack the capacity to seek immigration relief. The Attorney General,
in her unreviewable discretion, has declined to commence removal
proceedings against Elian, and Elian is so young that the person who
would have to assert Elian\'s right to apply for asylum --- his father
--- has not done so.

> **(2) THE COMMISSIONER\'S DECISION THAT ONLY HIS FATHER CAN SPEAK FOR
> ELIAN ON WHETHER ELIAN SHOULD PURSUE HIS RIGHT TO APPLY FOR ASYLUM IS
> FACIALLY LEGITIMATE AND BONA FIDE OR, IN THE ALTERNATIVE, NOT
> ARBITRARY AND CAPRICIOUS**

Not only is the general legal framework of the Commissioner's decision
well within her authority, but also the Commissioner's application of
that framework in the circumstances of this case was thoroughly
considered and sound.

a\. Lazaro and his attorneys provided the INS with three asylum
applications, and the government filed those applications under seal
with the district court.[^17] One was signed by Lazaro and submitted to
the INS on December 10, 1999, two weeks after the INS placed Elian in
his temporary care. A second, bearing Elian\'s printed name, was
submitted to the INS later that month. The third was sent to the INS on
January 11, 2000, signed by Lazaro in his capacity as Elian\'s interim
temporary guardian pursuant to the now-vacated Florida family court
order. The three applications are otherwise identical. They are written
in the third person: none of the language purports to be a statement by
Elian of what he thinks has happened or will happen to him, and none of
the language purports to be based on information that Elian provided to
the writer. The Commissioner\'s determination that Elian should not be
regarded as having applied for asylum in his own right based on those
three applications rested on three interrelated grounds. R.E. III-22-16.
First, she found that Elian\'s age, half that which the court in
*Polovchak* said is at the low-end of maturity necessary to distinguish
a child\'s asylum interests from his parents, raised serious doubts
about Elian\'s capacity \"to possess or articulate a subjective fear of
persecution on account of a protected ground.\"[^18] *Id.* Second, she
noted that the information INS had received provided no indication
\"that Elian possesses or has articulated a subjective fear of
persecution on a protected ground, or that he has the ability to do
so.\" *Id.* And, third, she concluded that "Elian, at age six, was not
competent to affirm that the contents of his asylum application
accurately reflect his fear of returning to Cuba, if any.\" *Id.*

The Commissioner concluded that Elian was too young to have made a
formal application for asylum in the United States, with full
appreciation of its content, meaning and possible significance for the
future course of his life, and thus the Commissioner was plainly correct
that Elian did not have the legal capacity to submit such an
application.[^19] As the Florida state court judge observed when she
dismissed Lazaro\'s petition for temporary custody of Elian, *\"It is
axiomatic in family court that six years old is too young to make
life-altering decisions.\"* *Matter of Lazaro Gonzalez*, *supra*, slip
op. at 21 (emphasis added). But quite aside from capacity in that formal
or legal sense, the Commissioner also inquired into whether Elian
\"possesses or has articulated a subjective fear of persecution on a
protected ground,\" R.E. III-22-16, which could be taken as an
"application" for asylum in a more informal sense. Again, however, the
subjective component of an asylum claim requires credible testimony of a
genuine fear of persecution. *Chen*, 195 F.3d at 201; *Mikhael*, 115
F.3d at 304-05; *Mitev v. INS*, 67 F.3d 1325; *Prasad v. INS*, 47 F.3d
at 338; *Ganjour*, 796 F.2d at 835. It requires far more than a desire
to remain in the United States or not to return to Cuba. It requires
more than a generalized fear, even of general conditions in Cuba. It
requires credible evidence of genuine fear of persecution on one of the
proscribed grounds. That is not an easy burden to meet. See pp. 33-37,
*supra*. Given Elian\'s age, the nature and content of the asylum
applications that were submitted on his behalf, and the absence of an
indication that Elian actually possesses or has articulated the
requisite fear of persecution, or even has the capacity to do so, the
Commissioner was wholly reasonable in concluding that Elian had not
personally "applied" for asylum in a more informal sense either.

Courts in other areas of law have found youngsters of about Elian\'s age
not capable of resolving for themselves far less complex than whether
one genuinely fears future persecution on account of political opinion
or other proscribed grounds. *See In Re Aracelli G.*, 1993 WL 524944, at
\*4 (Conn. Super. Juv. Matters 1993) (four-year-old not mature enough to
consider his wishes in placement with grandmother versus father);
*Berlin v. Berlin*, 386 So. 2d 577 (Fla. App. 1980) (declining to
consider views of eight- and ten-year-olds on their preferences between
parents); *Faria v. Faria*, 456 A.2d 1205 (38 Conn. Super. 19) (five
year-old \"not of sufficient age or capable of forming an intelligent
preference\"); *In Re Marriage of Davis*, 602 P.2d 904 (43 Colo. App.
302 (1979)) (no error in declining to interview nearly eight-year-old to
determine preference); *In re Tweeten*, 536 P.2d 1141, 1143 (Montana
1977) (three-year-old too young); *Smith v. Smith*, 257 Iowa 584, 133
N.W. 2d 677 (1965) (wishes of seven- or eight-year-old given little
weight since not of an age to exercise discretion in choosing
custodian); *Johnson v. Johnson*, 526 S.W. 2d 33 (Mo. App. 1975) (no
purpose served by interviewing children ages six and four to determine
custody preference); *Hild v. Hild*, 157 A.2d 442 (Md. App. 1960)
(seven-year-old may not rationally express a preference); *Parker v.
Parker*, 158 A.2d 607, 609 (Md. App. 1960) (applying *Hild* rule to
eight-year-old). The Commissioner\'s decision that Elian lacked the
capacity to apply for asylum on his own --- a highly complex \"life
altering decision\[\],\" *Matter of Lazaro Gonzalez*, *supra*, slip op.
at 21 \-- therefore is \"facially legitimate and bona fide,\"
*Kliendienst*, 408 U.S. 753, or, in the alternative, not arbitrary and
capricious under the APA.

In its April 19, 2000, order, this Court observed that the INS had not
interviewed Elian before it concluded that Elian lacked the capacity to
apply for asylum in his own right. There was no reason to believe from
the face of the applications, however, that Elian was the source of any
of the information in them. Nor did the applications or other materials
submitted by Lazaro or the attorneys contain any indication that Elian
possessed or had articulated any subjective fear of persecution on one
of the prohibited grounds, or that he possessed any specific information
that might support that proposition. The absence of any such evidence
was telling, because Lazaro and the attorneys could have been expected
to produce it if they had it. Indeed, even during his interview with the
INS on December 20, Lazaro did not identify any specific harm that might
come to Elian if he returned to Cuba. R.E. III-22-219-224. Finally,
there was some possibility that Elian's residence with the Miami
relatives would have influenced what he had to say.[^20] In these
circumstances, and given Elian's tender years, there was no need for the
INS to interview Elian personally before the Commissioner rendered her
decision.

b\. As explained above, the Commissioner's determination that Elian had
not applied for asylum in his own right did not end her inquiry. As the
Attorney General put it, \"If Elian is not competent to indicate\[\] a
fear of persecution or intention to apply for asylum, then someone would
have to speak in his behalf whether to do so.\" *Id.* at 27-28 (internal
quotation marks omitted). \"That someone, under universally accepted
legal norms, is his father.\" *Id.* at 28. In other words, once the
Commissioner decided that Elian had not applied for asylum, the question
became whether there was some reason that his father\'s parental
authority should not be respected.

The Commissioner\'s analysis of this question has two parts. The first
is whether Juan\'s request for Elian\'s return expresses his genuine
intention. *Id.* at 13. The second is whether the Commissioner had been
provided with evidence (including assertions in the asylum applications
Lazaro tendered on Elian\'s behalf) that afforded an objective basis to
conclude that Elian is at risk of persecution on his return to Cuba such
that interference with his father\'s parental authority would be
warranted. Put another way, the question became which of two adults
should be allowed to speak for Elian: his father, who has raised him for
six years in a close and loving relationship and who is his sole
surviving parent with full legal authority to act on his behalf, or a
distant relative in whose care Elian was only temporarily paroled
pending completion of immigration matters and reunion with his father.

The Commissioner's decision that Juan's request for Elian's return to
him expressed his genuine intention rested on her determination that
Juan was not being coerced by Cuban authorities into stating that he
wants Elian to return when his true wish is to the contrary. R.E.
III-9-10. If Juan is being coerced, the Commissioner reasoned, then his
representation of Elian\'s immigration interests may conflict with his
interest in his own personal safety, rendering him unable to represent
Elian in immigration matters. R.E. III-10.

The Commissioner\'s conclusion that Juan genuinely wishes Elian to be
returned to him is facially legitimate and bona fide or, in the
alternative, an appropriate exercise of discretion under the APA. She
analyzed the coercion issue at considerable length, beginning with a
summary of the INS\'s first interview of Juan at his home in Cardenas.
R.E. III-11. Juan described to the INS interviewer the closeness of his
relationship with Elian, and submitted affidavits from neighbors,
friends, teachers, and doctors. *Id.* To guard against the possibility
of auditory monitoring, the INS asked Juan to express in writing his
desire for Elian\'s return. *Id.* Juan complied with that request, and,
the agency decision reflects, the INS interviewer found that \"the
honesty, concern and truthfulness on the part of \[Juan\] was palpable.
. . .\" *Id.* His demeanor on that occasion supports the finding that
Juan truly wanted his son returned to him, and the affidavits attesting
to his close relationship with Elian lend further credence to this.
*Id.*

The INS interviewed Lazaro after its interview with Juan. And, because
Lazaro raised further questions regarding the possibility that Juan was
not speaking freely, the INS interviewed Juan a second time, on this
occasion at the home of a United Nations official. R.E. III-11. As at
the first interview, Juan was accompanied only by his parents. *Id.* And
on this occasion also, he answered a set of written questions. R.E.
III-12. Based on the INS\'s two interviews of Juan, its interview of
Lazaro, Lazaro\'s daughter and attorneys, its review of other available
information, and its analysis of Lazaro\'s objections, the INS concluded
that Juan\'s demand for Elian\'s return to him expressed his genuine
intention. R.E. III-12-13.

There is a further component to the Commissioner\'s analysis of whether
to accord full weight to Juan\'s parental authority over Elian. \"In
order to respect the parental rights of the father,\" the Commissioner
reasoned, \"the INS must first determine whether a true divergence of
interests exists with respect to Elian\'s asylum application.\" R.E.
III-15. The Commissioner concluded that Elian lacked the capacity to
form a subjective fear of persecution on account of a protected ground,
considered Lazaro\'s asylum applications,[^21] and concluded that those
applications did not provide an objective basis for a valid asylum claim
for Elian. R.E. III-16-17. She therefore found no divergence of
interests.

The asylum applications alleged past and future persecution on two
grounds. First was past persecution of members of Elian\'s family,
including detention of his stepfather, imprisonment of his great-uncle,
and harassment of his mother. R.E. III-16. Second was the potential for
Elian\'s political exploitation by the Castro regime based on an imputed
political opinion, resulting in severe mental anguish and torture. *Id.*
None of this information, the Commissioner found, provides an objective
basis for concluding that Elian would be persecuted on account of a
protected ground. R.E. III-17. \"There is no objective basis to conclude
that the Castro regime would impute to this six-year-old boy a political
opinion (or any other protected characteristic), which it seeks to
overcome through persecution.\" *Id.* (citing *INS v. Elias-Zacarias*,
502 U.S. 478 (1992) (asylum applicant alleging political persecution
must show his political opinion motivates alleged persecutors)).

c\. Section VII.D. of Appellant's brief argues that the INS\'s
\"purported determination concerning family relationships\" is entitled
to no deference because the INS \"lacks both the competence and the
authority to decide matters of child custody.\" Appellant\'s Brief at
49-50. In this regard, appellant cites *Johns v. INS*, 653 F.2d at 894,
and *Polovchak*, 774 F.2d 734, the former for the proposition that the
INS lacks authority to determine the custody of a child or to enforce
the custodial rights of others, and the latter for the proposition that
the INS lacks mediation expertise. Appellant\'s Brief at 50. Appellant's
reliance on *Polovchak* is unavailing because the court of appeals in
that case recognized that age twelve is at the low end of the spectrum
where a child may assert rights independent of his parent\'s contrary
wishes. As for the INS\'s authority to determine child custody, the
Florida family court was correct in observing that Lazaro \"fails to
recognize the fundamental nature of his case --- *it is an immigration
case, not a family case*.\"[^22] Slip op. at 10 (emphasis added).

Elian is an unadmitted alien, and, therefore, the Attorney General
retains full authority over his custody. *See Reno v. Flores*, 507 U.S.
at 305-06. If relatives or nonrelatives wish to assume custody of an
unaccompanied minor, the INS can choose to refer them to state
guardianship procedures. *See Flores*, 507 U.S. at 311 n.7. But where,
as here, the sole surviving parent has requested that his child return
to him, such a referral is unnecessary and inappropriate. \"\[O\]ur
society and this Court\'s jurisprudence have always presumed \[parents\]
to be the preferred and primary custodians of their minor children.\"
*Id.* (citing *Parham v. J.R.*, 442 U.S. 584, 602-03 (1979); *Cf. Johns
v. INS*, 653 F.2d 884, 893-94 (5th Cir. 1981) (deportation proceedings
need not await state custody proceedings because \"\[s\]ave insofar as a
custody determination decides whether a person is the \'child\' of a
citizen, custody is not a statutory factor in determining
deportability\").[^23]

d\. Section V of appellant\'s brief contends that, even if the
Commissioner had discretion to refuse to accept and adjudicate Elian\'s
asylum applications, she abused that discretion by failing to evaluate
Elian\'s independent interests. Appellant\'s Brief at 28-31. \"More
specifically,\" appellant states, \"the INS refused to assess properly
Elian\'s separate stake in the right to seek asylum, and instead applied
a standard based on the father\'s alleged wishes.\" *Id.* at 28. If
appellant's argument be construed as an attack on the facial legitimacy
of the Commissioner\'s decision, it clearly falls short. Throughout this
litigation, appellant has not discussed the Commissioner\'s decision,
which expressly recognized a child's right to seek asylum independently
of its parents and examined the asylum applications to see whether they
provide an objective basis for a grant of asylum. R.E. III-16-17.[^24]
The Commissioner\'s decision is \"facially legitimate and bona fide.\"
*Kleindienst*, 408 U.S. 753.

Should the Court instead apply the APA\'s arbitrary and capricious
standard, the Commissioner's decision should be upheld under that
standard too. Under that standard, \"the Court may not substitute its
judgment for that of the agency and can set aside an agency\'s decision
only if the agency relied on improper factors, failed to consider
important relevant factors, or committed a clear error of judgment that
lacks a rational connection between the facts found and the choice
made.\" *Arango v. Treasury Department*, 115 F.3d 922, 928 (11th Cir.
1997) (citing *Motor Vehicles Manufacturers Association*, 463 U.S. at
43). \"While we must conduct a \'careful and searching\' inquiry to
assess whether the decision bears the requisite connection to the
relevant facts, our ultimate standard of review is narrow and
deferential to the agency\'s conclusions.\" *Id.* at 928 (citing
*Citizens to Preserve Overton Park, Inc. v. Volpe*, 401 U.S. 402, 416
(1971)).

Applying the APA standard permits review of the administrative record
underlying the Commissioner\'s decision that the Attorney General
ratified \-- namely, the 318-page submission (excluding declarations)
the government submitted with its motion to dismiss or alternative
motion for summary judgment.

Clearly, the agency decision reflects consideration of the necessary
relevant factors. The INS met with Juan Gonzalez and established that he
is Elian\'s father. R.E. III-8. It met with Lazaro to gather any
countervailing information. *Id.* at 11. It analyzed the question of
whether Juan is being coerced, such that he is unable to represent
Elian\'s interests. *Id.* at 10-13. It gathered information on the
quality of Juan\'s relationship with Elian. *Id.* at 13. It considered
the fact that Elian has a statutory right to apply for asylum, and that
the United Nations Convention on the Rights of the Child requires that
unaccompanied minors \"receive appropriate protection and humanitarian
assistance in the enjoyment of applicable rights.\" *Id.* at 14. It
considered the question of Elian\'s capacity to apply for asylum,
concluding, as the Florida family court later concluded, that he lacks
that capacity. *Id.* at 16. It considered Lazaro\'s asylum applications
to see whether they contained any information that would provide an
objective basis for asylum. *Id.* It considered the possibility that the
Castro regime might exploit Elian upon his return. *Id.* at 17. And, as
discussed above, it had a rational and appropriate basis to conclude
that an interview of Elian would not be helpful. *See* *supra*, p. 70.

e\. Section VI of appellant's brief argues that the INS should not have
treated Juan Gonzalez\'s wishes as \"the polestar of analysis,\" and
that \"U.S. law establishes that if sufficient circumstances justify
overriding parental prerogative concerning a minor child\'s parent,
those rights must be displaced in the interests of the child.\"
Appellant\'s Brief at 32-33. Reiterating assertions already made in
Section V of his brief, appellant bases his claim that Elian is entitled
to \"an analysis of the child\'s separate needs\" on \"indep endent
constitutional and other legal rights.\" Appellant\'s Brief at 33. His
argument displays two defects: it is wrong factually, and it is wrong
legally. It is wrong factually because the Commissioner\'s decision
reflects careful analysis of Elian\'s separate interests. R.E. III-7-17.
It is wrong legally because it rests on a mistaken premise respecting
constitutional rights that this Court addressed in *Jean v. Nelson*, and
overlooks that the Commissioner expressly found that Elian has a
statutory right to apply for asylum. R.E. III-14 (citing 8 U.S.C. §
1158(a)(1)).

Section VI also contains the misstatement that the INS has suggested
that Juan Gonzalez\'s \"unfitness is the *only* criterion for allowing
Elian\'s separate rights to be fairly treated.\" Appellant\'s Brief at
33. The Commissioner\'s decision refutes that suggestion as well. She
devoted lengthy analysis to other criteria as well: whether Cuban
authorities were coercing Juan into demanding Elian\'s return, R.E.
III-9-13, the quality of his relationship with Elian, *id.* at 13,
whether Lazaro\'s asylum applications presented an objective basis for
ignoring Juan\'s wishes, *id.* at 14, and whether Lazaro had produced
\"any other information \[that\] indicates that Elian would be at risk
of harm in Cuba such that his interests might so diverge from those of
his father that his father could not adequately represent him in this
matter,\" *id.* at 4. In the end, Lazaro disagrees with Juan Gonzalez\'s
desire that Elian live with him in communist Cuba. As Judge Bailey aptly
observed, however, \"While we may not agree with Juan Miguel
Gonzalez-Quintana\'s decision to live in Cuba, the freedoms which we
stand for here in America require that we respect that decision, which
the Attorney General has concluded is genuine and not coerced.\" *Id.*
at 20. Now that Juan is in the United States, many might wish he would
choose to remain here with his wife and two sons. But those same
freedoms require that we respect the choices the parents make for their
young family.

The implementation of Section 208 by the Commissioner in these unusual
circumstances is fully consistent with the statutory text and plainly
satisfies both the *Kliendienst* and APA standards. The fundamental
question on this appeal is not whether Elian *may* apply for asylum, but
whether he *has* done so. The Commissioner concluded that a juvenile of
such tender years as Elian lacks the legal capacity to apply for asylum.
The question then, in determining whether Elian has filed an application
for asylum, is which of two *adults* speaks for Elian \-- his father, or
a far more distant relative. The decision of the Commissioner and the
Attorney General that Elian's father speaks for him, and that therefore
Elian should not be regarded as having filed an asylum application, is
consistent with background principles governing the parent-child
relationship --- principles that in this country are rooted in the
Constitution as well as universally accepted norms.[^25]

**CONCLUSION**

For the foregoing reasons, the decision of the district court should be
affirmed.

Respectfully submitted,

+--------------------------------+---+-----------------------------------+
| THOMAS E. SCOTT                |   | DAVID W. OGDEN                    |
|                                |   |                                   |
| United States Attorney         |   | Acting Assistant Attorney General |
|                                |   |                                   |
| DEXTER A. LEE                  |   | PATRICIA L. MAHER                 |
|                                |   |                                   |
| Assistant U.S. Attorney        |   | Deputy Assistant Attorney General |
|                                |   |                                   |
| 99 N.E. 4th Street             |   | EDWIN S. KNEEDLER                 |
|                                |   |                                   |
| Miami, Florida 33132           |   | Deputy Solicitor General          |
|                                |   |                                   |
| \(305\) 961-9003               |   | DAVID J. KLINE                    |
|                                |   |                                   |
|                                |   | Deputy Director                   |
|                                |   |                                   |
|                                |   | WILLIAM J. HOWARD                 |
|                                |   |                                   |
|                                |   | Senior Litigation Counsel         |
|                                |   |                                   |
|                                |   | Office of Immigration Litigation  |
|                                |   |                                   |
|                                |   | Civil Division, U.S. Department   |
|                                |   | of Justice                        |
|                                |   |                                   |
|                                |   | P.O. Box 878, Ben Franklin        |
|                                |   | Station                           |
|                                |   |                                   |
|                                |   | Washington, D.C. 20044            |
|                                |   |                                   |
|                                |   | \(202\) 616-4900                  |
+--------------------------------+---+-----------------------------------+
|                                |   |                                   |
+--------------------------------+---+-----------------------------------+

**CERTIFICATE OF SERVICE**

I certify that on this 24th day of April 2000, I served a copy of
Defendants-Appellees\' Answering Brief on Plaintiff-Appellant by same
day facsimile transmission and by overnight mail to:

+---------------------------------+---+--------------------------------+
| KENDALL COFFEY                  |   | LINDA OSBERG-BRAUN             |
|                                 |   |                                |
| COFFEY, DIAZ & O\'NAGHTEN,      |   | ROGER A. BERNSTEIN             |
| L.L.P.                          |   |                                |
|                                 |   | Hackley, Bernstein &           |
| 2655 South Bayshore Drive,      |   | Osberg-Braun                   |
| Suite 200                       |   |                                |
|                                 |   | 2875 N.E. 191st Street, PH 1B  |
| Miami, Florida 33133            |   |                                |
|                                 |   | Aventura, Florida 33180        |
|                                 |   |                                |
|                                 |   | BARBARA LAGOA                  |
|                                 |   |                                |
|                                 |   | JUDD J. GOLDBERG               |
|                                 |   |                                |
|                                 |   | ELIOT PEDROSA                  |
|                                 |   |                                |
|                                 |   | Greenberg Traurig, P.A.        |
|                                 |   |                                |
|                                 |   | 1221 Brickell Avenue           |
|                                 |   |                                |
|                                 |   | Miami, Florida 33131           |
+---------------------------------+---+--------------------------------+
|                                 |   |                                |
+---------------------------------+---+--------------------------------+

> William J. Howard, Esq.

U.S. Department of Justice

[^1]: ^?^ Plaintiff also filed a district court action in the District
    of Columbia, *Elian Gonzalez, et al. v. Reno, et al.*, No.
    1:00CV00819 (D.D.C. filed April 13, 2000); and a petition for
    Elian\'s temporary custody in the family court for the 11th Judicial
    Circuit in and for Miami-Dade County, Florida. On April 13, 2000,
    the Florida state court dismissed the custody petition. *See*
    *Matter of Lazaro Gonzalez and Juan Miguel Gonzalez*, No.
    00479-FC-28, slip op. (Fla. Cir. Ct. Miami-Dade County April 13,
    2000), available at http://www.jud11.flcourts.org/baileyfinal.pdf.

[^2]: ^?^ An alien, such as Elian, who is present in the United States
    and has not been admitted, or who arrives in the United States, is
    deemed to be an applicant for admission. See 8 U.S.C. 1225(a)(1)
    (Supp. IV 1998).

[^3]: ^?^ The United States acceded to the Protocol in 1968. The
    Protocol bound parties to comply with the substantive provisions of
    Articles 2 through 34 of the United Nations Convention Relating to
    the Status of Refugees, 189 U.N.T.S. 150 (July 28, 1951). See *INS
    v. Stevic*, 467 U.S. 407, 416 (1984). Article 33 of the Refugee
    Convention provides that no contracting state "shall expel or return
    ('refouler') a refugee in any manner whatsoever to the frontiers of
    territories where his life or freedom would be threatened on account
    of his race, religion, nationality, membership in a particular
    social group, or political opinion." 19 U.S.T. at 6276. That
    obligation under the Convention is implemented in the INA's
    provision for withholding of return, previously codified at 8 U.S.C.
    1253(h) (1994 ed.) and now codified at 8 U.S.C. 1231(b)(3) (Supp. IV
    1998). See *INS* v. *Stevic*, 467 U.S. at 421; *Sale v. Haitian
    Centers Council, Inc.*, 509 U.S. 155, 178 (1993). The Convention
    does not impose binding obligations on contracting states with
    respect to asylum. *INS v. Cardoza-Fonseca*, 480 U.S. 421, 441
    (1987). Consistent with that understanding, even in the case of an
    alien who establishes that he is eligible for asylum by proving that
    he is a "refugee," the granting of asylum is discretionary with the
    Attorney General. See 8 U.S.C. 208(b)(1) (Supp. IV 1998); pp.33-37,
    *infra.*

[^4]: ^?^ Any such claim would have been precluded by 8 U.S.C.
    1252(a)(2)(B)(ii), which bars judicial review of any decision of the
    Attorney General that is committed to her discretion.

[^5]: ^?^ Judicial review of the Attorney General's decision allowing
    Juan to withdraw the application for admission of Elian is in any
    event barred by 8 U.S.C. 1252(a)(2)(B)(ii) (Supp. IV 1998), which
    provides that "no court shall have jurisdiction to review . . . any
    other decision of the Attorney General the authority for which is
    specified under this subchapter to be in the discretion of the
    Attorney General . . . .\" See *Gonzalez*, 86 F. Supp. 2d at 1178
    (finding this jurisdictional point "compelling," but recognizing
    that the withdrawal of the application for admission was not at
    issue).

[^6]: ^?^ Subsection (d)(7) provides that nothing in that authorization
    shall be construed to create and substantive or procedural right or
    benefit against the government.

[^7]: ^?^ Removal proceedings would not be commenced where the alien is
    not subject to such proceedings, such as where the applicant is in
    lawful status. There is no judicial review of a decision not to
    commence removal proceedings. See *American-Arab Anti-Discrimination
    Comm. v. Reno*, 525 U.S. 471, 483-85 (1999); see also 8 U.S.C.
    1252(a)(2)(B)(ii), 1252(g) (Supp. IV 1998).

[^8]: ^?^ See also *Knauff*, 338 U.S. at 542:

    > \[A\]n alien who seeks admission to this country may not do so
    > under any claim of right. . . . Such privilege is granted to an
    > alien only upon such terms as the United States shall prescribe.
    > It must be exercised in accordance with the procedure which the
    > United States provides. . . . \[I\]t is not within the province of
    > any court, unless expressly authorized by law, to review the
    > determination of the political branch of the gov­ernment to exclude
    > a given alien.

[^9]: ^?^ In affirming the *en banc* decision in *Jean*, the Supreme
    Court stated that the Eleventh Circuit should not have reached
    constitutional issues because the issues on appeal could have been
    resolved on statutory and regulatory grounds. *Jean*, 472 U.S. at
    854-55. Nevertheless, the Eleventh Circuit later ruled that \"our
    *en banc* holding in \[*Jean*\] regarding the constitutional issue
    remains viable as the Supreme Court did not vacate the opinion but
    affirmed and remanded on alternative grounds.\" *Cuban American Bar
    Ass\'n v. Christopher*, 43 F.3d 1412, 1428 n.20 (11th Cir. (1995),
    *cert. denied*, 516 U.S. 913 (1995).

[^10]: ^?^ This Court reviews *de novo* the district court\'s entry of
    summary judgment. *Bivens Gardens Office Building, Inc. v. Barnett
    Banks of Florida, Inc.*, 140 F.3d 898, 905 (11th Cir. 1998). \"The
    prevailing party may, of course, assert in a reviewing court any
    ground in support of his judgment, whether or not that ground was
    relied upon or even considered by the trial court.\" *Dandridge v.
    Williams*, 397 U.S. 471, 475 n.6 (1970). To the extent the
    Commissioner\'s decision involves questions of statutory
    interpretation, \"\[c\]onclusions of law rendered by summary
    judgment are subject to the same standard of review as any other
    question of law raised on appeal.\" *Lipscomb v. United States*, 906
    F.2d 545, 548 (11th Cir. 1990) (citing *Erwin v. Westfall*, 785 F.2d
    1551, 1552 (11th Cir. 1986), *aff\'d*, 484 U.S. 292 (1988)).

[^11]: ^?^ *See* R.E. I-27-1-3 (Defendants\' Concise Summary Of Position
    On Pending Motions And Review Of Administrative Record, at 1-3).

[^12]: ^?^ Appellant argues (Br. 40-43) that the Commissioner\'s
    interpretation of Section 208 is not entitled to *Chevron* deference
    because it is simply a litigation position. The Commissioner\'s
    decision shows that appellant is mistaken. R.E. III-7-17. The
    decision acknowledges that Section 208(a) permits any individual
    physically present in the United States to apply for asylum and that
    there are \"no age-based restrictions on applying for asylum.\" But
    it goes on to say that although \"under some circumstances even a
    very young child may be considered for a grant of asylum,\" the INS
    need not \"process such applications if they reflect that the
    purported applicants are so young that they necessarily lack the
    capacity to understand what they are applying for or, failing that,
    that the applications do not present an objective basis for ignoring
    the parents\' wishes.\" *Id.* The Commissioner\'s interpretation of
    the asylum statute formed the basis for her decision not to accept
    and adjudicate Lazaro\'s asylum applications, a decision that led to
    this litigation. There is nothing *post hoc* about it.

[^13]: ^?^ Compare 22 C.F.R. 51.27(b)(2) (State Department regulations
    requiring that parents execute passport applications on behalf of
    children under age 13, even though the relevant statute, 22 U.S.C.
    213, provides that before a passport is issued to "any person,"
    "such person" shall subscribe to and submit a written application);
    22 C.F.R. 41.103(a)(2) and 42.63(a)(2) (providing that a visa
    application for a child under age 16 and 14, respectively, may be
    signed by the person's parent or guardian), implementing 8 U.S.C.
    1201 and 2102.

[^14]: ^?^ Appellant's plain meaning argument also overlooks Section
    208(d)(1), 8 U.S.C. 1158(d)(1) (Supp. IV 1998), which provides that
    the Attorney General shall "establish a procedure for the
    consideration of asylum applications filed under subsection (a)" of
    Section 208. Even if appellant were correct that the applications
    Lazaro submitted on Elian\'s behalf should be deemed to have been
    \"filed\" in some limited sense, the Commissioner adopted a
    "procedure" for the \"consideration\" of those applications by
    determining whether there was objective information demonstrating
    that Juan Gonzalez\'s parental authority should not be respected.
    Section 208(d)(7) provides that nothing in Section 208(d) as a whole
    creates any procedural or substantive right against the United
    States or its officers, and thereby bars judicial review of the
    adoption or implementation of procedures by the Attorney General for
    the consideration of asylum applications under that Section.

[^15]: ^?^ Recognizing that abduction or wrongful retention of children
    is harmful to their well-being, the Federal Government has entered
    into international agreements, enacted laws, adopted procedures, and
    funded programs to improve the response of the civil law and
    criminal justice system when international abductions occur. The
    States have likewise developed law and practice regarding parental
    abductions.

    The Hague Convention on the Civil Aspects of International Child
    Abduction (Hague Convention), implemented in the United States by
    the International Child Abduction Remedies Act (42 U.S.C. 11601 *et
    seq.*), provides the legal basis to seek the prompt return of
    children wrongfully removed or retained in countries that are
    parties to the Hague Convention. The Convention provides an
    immediate right of action to seek a child's prompt return to the
    country where he or she was habitually resident prior to the
    abduction. The premise of this Convention is that the abducted
    child's custody should be determined by a court in the child's
    country of habitual residence and not by the unilateral actions of
    one parent. *See* [Friedrich v. Friedrich]{.underline}, 983 F.2d
    1396 (6th Cir. 1993)(Friedrich I)("habitual residence" of child born
    in Germany to German father and American mother, and who had lived
    in Germany exclusively except for brief vacations prior to mother's
    removing him to United States, was Germany.).

    If a child is abducted to or from a country that is not party to the
    Hague Convention, the parent can petition a court in that country to
    enforce a custody order made by a court in the home country. Courts
    apply their own family law. In a case involving a child taken from
    the United States, foreign courts are not legally bound to enforce
    custody orders made in the United States. although some may do so
    voluntarily as a matter of comity. If a parent finds it necessary to
    file for custody in the foreign court under the laws and customs of
    that country, that parent may encounter religious laws and customs
    or biases based on gender or nationality that preclude an award of
    custody. Because no framework of international law governs cases
    involving children taken to countries that are not parties to the
    Hague Convention, transnational cooperation in reuniting children
    with their parents is very important.

[^16]: ^?^ Count 3 of the complaint is based on 8 C.F.R. 208.9. The
    district court dismissed that Count, as well as Count 4 based on 8
    C.F.R. 208.14(b), because \"the Attorney General\'s determination as
    to \[Elian\'s\] capacity to apply for asylum is controlling, and, in
    light of that conclusion, no asylum applications are pending.\" 86
    F. Supp. 2d at 1194. This Court should affirm that determination as
    well as the district court\'s decision on the mandamus count. All
    three of these counts hinge on the statutory question presented in
    this section of appellees\' brief to the Court.

[^17]: ^?^ The government filed the asylum applications under seal in an
    abundance of caution that plaintiff not complain that an INS
    confidentiality regulation, 8 C.F.R. § 208.6, prohibited their
    disclosure to third parties. They need not have been sealed because
    this regulation does not apply to any disclosure to \"\[a\]ny
    Federal, state, or local court in the United States considering any
    legal action (i) arising from the adjudication of or failure to
    adjudicate the asylum application. . . . \" 8 C.F.R. 208.6(c)(2)(i).
    In any event, plaintiff describes the applications in footnotes
    twenty-one and twenty-two of his motion for a preliminary
    injunction. R.E. I-3-22-23.

[^18]: ^?^ Walter Polovchak was twelve when his case first commenced. By
    the time his case reached the Seventh Circuit, he was nearly
    eighteen:

    > at age seventeen (indeed on the even of his eighteenth birthday),
    > Walter is certainly at the high end of such a scale, and the
    > question whether he should have to subordinate his own political
    > commitments to his parents\' wishes looks very different. The
    > minor\'s rights grow more compelling with age, particularly in the
    > factual context of this case.
    >
    > The ability of a young person to decide to which political system
    > he professes allegiance necessarily increases with age. We do not
    > suggest that every twelve year old entertains serious political
    > views (although some may); we would, however, suggest that many
    > seventeen year olds do. Similarly, as the child grows, his
    > parents\' influence over him weakens, and the time his parents
    > have in which to guide him grows shorter.

    *Polovchak*, 774 F.2d at 736-37.

[^19]: ^?^ Elian would be unable to \"certify, under penalty of
    perjury,\" that the asylum application Lazaro and his attorneys
    filled out \"and the evidence submitted with it is all true and
    correct.\" *See* R. I-25 (Asylum applications at page 8). Nor could
    Elian, at six years of age, be expected to explain the contents of
    those applications and other evidence submitted.

[^20]: ^?^ *Cf.* Department of State, Legal Analysis of the Hague
    Convention on the Civil Aspects of International Child Abduction, 51
    Fed. Reg. 10503, 10510 (1986) ("A child's objections to being
    returned may be accorded little if any weight if the court believes
    that the child's preference is the product of the abductor parent's
    undue influence over the child.").

[^21]: ^?^ In his brief to the Court, Lazaro maintains that \"the INS
    erased Elian\'s independent rights without an assessment of his own
    injuries or the possibility that those may diverge from his
    biological father\'s.\" Appellant\'s Brief at 25. The
    Commissioner\'s decision clearly reflects this is not correct.

[^22]: ^?^ In dismissing Lazaro\'s custody petition, the Florida family
    court stated that it could not, \"by deciding with whom \[Elian\'s\]
    custody should lie, subvert the decision to return him to his father
    and his home in Cuba.\" *Matter of Gonzalez*, No. 00479-FC-28, slip
    op. at 8. It explained:

    > This case is designed to keep Elian Gonzalez in Miami over the
    > federal government\'s and his father\'s objection, and under the
    > name of a custody claim. \[Lazaro\'s\] increased level of activity
    > in the state court correlates with announcements by INS of
    > reunification of the child with his father. The United States
    > through the Attorney General has articulately and bluntly insisted
    > that reunification *will* occur. The basis for the custody claim
    > is that the child should not live in Cuba, with his father, and is
    > better off here. The Court\'s ability to reach that decision is
    > derailed by the federal government decision that he must return to
    > Cuba, his homeland, and be with his father. This court cannot
    > second-guess the INS. In the end, a determination by this court as
    > to who should have custody of Elian Gonzalez would not prevent his
    > deportation to Cuba and his father, because deportation is
    > exclusively the province of the federal government. \"Custody is
    > not a statutory factor in determining deportability.\" *Johns v.
    > Department of Justice*, 653 F.2d 884 (5th Cir. 1981).

    *Id.* at 10-11 (emphasis in original).

[^23]: ^?^ Lazaro also cites *Bergstrom v. Bergstrom*, 623 F.2d 517 (8th
    Cir. 1980), where, he says, a seven-year-old \"was allowed to
    communicate her wishes to remain in the U.S.\" Appellant\'s Brief at
    27. There a divorced American couple differed over whether their
    daughter should remain in the United States or during the school
    year live with the mother who had moved to Norway. 623 F.2d at
    518-19. Reversing on ripeness grounds, the Eight Circuit noted that
    in a pending proceeding, the family court had concluded that the
    child\'s stated preference \"was not valid because it was completely
    and wholly influenced by her father, and . . . that the father\'s
    litigation of custody . . . had resulted in emotional damage to
    \[the child\].\" *Id.* at 519 (internal quotations omitted). Because
    *Bergstrom* involved a custody dispute between two American parents,
    there is nothing out of the ordinary in a federal court\'s deferring
    to a pending family court proceeding to decide whether the child ---
    who at that time was more than ten years old --- possessed the
    capacity to express a custodial preference. 623 F.2d at 519-20.

[^24]: ^?^ Appellant cites *Polovchak*, 774 F.2d at 736, for its
    recognition that Walter \"has constitutional rights that the
    government must respect.\" Appellant\'s Brief at 29. But unlike
    Elian, who is an arriving alien, Walter was a deportable alien.
    *See* *Gonzalez v. Reno*, 86 F. Supp. 2d at 1187-88 (citing, *inter
    alia*, *Jean v. Nelson*, 727 F.2d at 968, 984) (excludable aliens do
    not enjoy constitutional rights for applications for admission).

[^25]: ^?^ Relying on *Johns v. INS*, 624 F.2d 522 (5th Cir. 1980),
    appellant seeks reversal of the district court\'s decision because
    the Court did not appoint a guardian ad litem. Opening Brief at
    53-55. He has not made the required \"strong showing\" here either.
    *Johns* did not require the appointment of a guardian ad litem for
    Elian. The analysis of the guardian ad litem issue in *Johns* rested
    on application of the Fifth Amendment Due Process Clause, a
    constitutional protection, as the district court recognized in its
    analysis of Count 1, that does not apply here on account of Elian\'s
    status as an unadmitted alien. 86 F. Supp.2d at 1187. In any event,
    the district court recognized Lazaro as Elian\'s \"next friend,\"
    *id.*, and whatever the precise differences were between a next
    friend and a guardian ad litem before Congress adopted Rule 17(c),
    the distinction has been eliminated. *See* Wright & Miller, *Federal
    Practice and Procedure* § 1572; *see also* Fed. R. Civ. P. 17(c)
    (infant may sue by next friend or by a guardian ad litem). If
    appellant\'s complaint is that the district court did not appoint a
    guardian with expansive powers as an advisor, such an appointment
    would have exceeded Rule 17(c)\'s authority, and would have
    circumvented legal restrictions on the Court\'s review of the
    Attorney General\'s decisions in this area. *See* R.E. III-22-67-80
    (Defendants\' Motion To Dismiss); R.E. I-27-1-3 (Defendants\'
    Concise Summary Of Position On Pending Motions And Review Of
    Administrative Record).