Personal Injury

Debating Undocumented Immigrants' Rights

Elian Gonzalez: The Next Gideon?

Adapted from Siobhan Morrisey: "The Next Gideon?" ABA Journal (Aug. 2000): 26–27; "Afloat on the High Seas," ABA Journal (April 2000) 20–22; and "Leading by Example," ABA Journal (May 2000): 22.

When Elian Gonzalez’s journey began in 1999, nobody could have predicted that his case would erupt into an international incident.

Elian is just one among hundreds of thousands of Cubans who have fled to the United States since Fidel Castro seized power forty-one years ago. His mother Elizabeth Brotons allegedly took the six-year old boy from Cuba without his father’s knowledge. Three days into Elian’s journey, fishermen found the boy by himself. His mother and ten others drowned after their boat sank. With his mother’s death, Elian became an unaccompanied child whose father remained in Cuba.

Immigration officials failed to realize the potential legal and political implications when they released Elian to a great-uncle living in Miami. The first indication of trouble came when Castro demanded the child’s return. Immigration Commissioner Doris Meissner said she would comply, prompting Elian’s Miami relatives to sue.

Potential for Children's Rights Gains
The Elian Gonzalez case is often viewed simply as a custody dispute between the father and Miami relatives. The U.S. Supreme Court refused to hear the case, and the boy returned to Cuba with his father.

Nonetheless, some children’s rights advocates think that the Elian case ultimately may help their cause. Among other reforms, these advocates maintain that the state should provide free legal aid to juvenile refugees, given the complexity of immigration law and the ages of the children affected. They believe the Elian case will lead to landmark law requiring free legal advice for juvenile refugees akin to Gideon v. Wainwright , which gave defendants the right to a lawyer when facing jail.

Coincidentally, both the Elian and Gideon cases originated in Florida. Clarence Earl Gideon was a four-time felon accused of burglarizing a Panama City poolroom. Gideon argued that anyone facing incarceration should be entitled to legal representation—even if he cannot afford to pay. The Supreme Court’s agreement in 1962 was immortalized in the book Gideon’s Trumpet.

Will the Elian case be the Gideon’s Trumpet for refugee children lacking money and wherewithal to hire legal representation? Are legal experts right who say that the case will have far-reaching legal implications—particularly for those laws governing unaccompanied minors seeking asylum? Even though Elian’s relatives lost their bid to keep him in the United States, will the case's ultimate beneficiaries be those who come after him? "We will know more about their unique problems when they come to this country alone," said Bernard Perlmutter, director of the University of Miami’s Children and Youth Clinic. "Maybe the publicity alone will be good for this cause."

Perlmutter maintains that the Supreme Court refused to hear Elian’s case because the justices did not wish to second-guess executive decisions on immigration matters. By refusing to address the issue, the Supreme Court reinforced the unfettered discretion accorded the Immigration and Naturalization Service (INS), Perlmutter says. Although the case created no new law, it did expand the discretion the INS enjoys, he says.

Lawyers for Elian claimed his right to freedom conflicted with his father’s rights as parent. They argued the INS should have heard Elian’s asylum claim before deciding to send him back to Cuba. They said that the court could order an asylum hearing irrespective of his father’s wishes since neither Congress nor the INS puts age restrictions on an alien’s right to asylum.

"We are very concerned that the results of this case would be harmful to children who need more protection, not less," says lawyer Kendall Coffeey, who championed Elian’s asylum case.

Kidnapped U.S. Kids Abroad
Some legal observers believe that the tug of war over Elian Gonzalez was in some ways a mirror image of hundreds of cases involving U.S. children now living abroad who were taken there by one parent without the other’s consent. U.S. officials noted the similarities between these cases and argued that Elian must be returned to Cuba. However, their references in legal filings to international child abduction cases generated protests from lawyers for Elian’s U.S. relatives and their supporters.

Government officials claimed that allowing Elian to remain here would undermine U.S. policy aimed at persuading reluctant foreign governments to assist in recovering kidnapped children. In seeking the return of American children, the United States tries to persuade other countries to apply The Hague Convention, which calls for signatory countries to "secure prompt return of children…wrongfully removed…or retained by one parent." Although the United States is a party to the convention, Cuba is not.

However, lawyers for Elian’s Miami relatives argued that this case differed from those of children taken outside the United States without parental permission because Elian sought political asylum and freedom from communist Cuba. Government officials rejected the asylum application filed on Elian’s behalf because they said he was too young to understand the legal issues involved and therefore could not speak for himself. Instead, his father, who wanted him back, could make the decision for him.

Children in Flight
Although more than a dozen lawyers represented Elian’s Miami family, most refugee minors are not so lucky. In 1999, 5,000 unaccompanied children sought asylum in the United States. In many cases, the children had no access to interpreters or counsel. Some of these children fled the horrors of their homelands: bonded labor, female genital mutilation, child prostitution, and conscription into the military as child soldiers.

Last year, 1,200 children voluntarily agreed to deportation from the United States, largely because many of them did not understand their legal options, according to Perlmutter. "They may well be children who have bona fide claims to asylum," he says.

The United Nations High Commission on Refugees estimates that children comprise more than half the world’s refugee population—roughly 20 million minors. Those who make it to the United States often don’t comprehend the legal process and have difficulty being heard, says Wendy Young, director of government relations with the Women’s Commission for Refugee Women and Children, a New York City-based nonprofit organization. When a child’s capacity is added to that mix, it is virtually impossible to win asylum. However, asylum seekers represented by a lawyer are three times as likely to win asylum as those without.

Although not all children merit asylum, many people believe that all minors should be appointed a lawyer to shepherd their cases, as is already done in Britain. Young plans to launch a pilot program in Arizona based on the British model. The Phoenix Pilot Project for Children and Immigration and Proceedings will appoint a lawyer for all juvenile refugees and a guardian ad litem for any unaccompanied child. The juveniles will have their own immigration docket and receive a rights package with written, video, and live presentations.

Importantly, the project will establish a shelter for the children, beginning with 48 beds and expanding to 100. Phoenix was specifically selected because the INS houses refugee children there with juvenile delinquents. Of the 4,600 children in INS custody nationwide, roughly 2,000 reside in juvenile correction facilities. Presently, the INS-detained children are commingled with the youthful offenders. They also have language barriers, and some have fled abuse in their own countries. Many are therefore already traumatized.

While the project hopes to expand nationwide, it may face opposition from a growing anti-immigration movement and people who oppose spending tax dollars on noncitizens. It is estimated that expanding the program nationwide would cost less than $10 million a year.

Elian Case Still Center of Controversy
Legal experts continue to sort out the impact of the Elian saga on U.S. law. Many children’s rights advocates remain hopeful that the Elian case will highlight the plight of young refugees. Others are less optimistic. "We are very concerned that this case could set a dangerous precedent and give the INS even more discretion than Congress intended," says lawyer Cheryl Little, a lawyer with the Miami-based Florida Immigrant Advocacy Center.

The center joined the women’s commission and the Lawyers Committee for Human Rights, which is headquartered in New York City, in submitting an amicus brief in the Elian case. The brief referred to the Refugee Act of 1980, in which Congress stated any alien physically present in the United States may apply for asylum, and added, "Congress has never deprived children of the right to seek asylum."

The three groups also expressed a fear that giving the INS too much discretion erodes or even eliminates a "child’s right to apply for asylum in cases where a child may have an independent claim for protection, despite objections from a parent." According to some legal observers, many countries have a tendency to think of children only as dependents of adults. This "invisibility" is a common problem for refugee children. However, asylum officers should not assume that a child cannot have an asylum claim independent of the parents, according to legal advocates, because neither Congress nor the INS put age restrictions on an alien’s right to asylum.

More important, the government’s position appears to conflict with the INS’s Guidelines for Children’s Asylum Claims, which the women’s commission helped draft. The INS issued its guidelines on December 10, 1998, the fiftieth anniversary of the Universal Declaration of Human Rights. Those guidelines, state the brief, "clearly confirm the INS’ s understanding that children have a right to apply for asylum."

"It speaks in words that would be understood on Sesame Street," says lawyer Coffey. "Yet this case holds out the risk that some or all of that well-thought-out approach to children will be undone."

Activities related to the Elian Gonzalez case and the legal rights of child refugees in the United States

Student Central | Students in Action | Debating Undocumented Immigrants' Rights
Locked Up Tight | Asylum May Be a Matter of Life and Death | The Next Gideon?
Careers in Immigration Law