>From: NY Transfer News <[EMAIL PROTECTED]>
>Via NY Transfer News * All the News That Doesn't Fit
>
>11TH CIRCUIT COURT OF APPEALS RULING - ELIAN GONZALEZ - APRIL 19, 2000
>
>
>Below is the complete text of the 11th Circuit Court's April 19th ruling.
>The Miami Herald has published some of the text, but did not include the
>footnotes, which seem to be of rather major importance in deciphering this
>decision. (Footnotes below appear at the end of the paragraph in which they
>are referenced.)
>
>It seems to us that this ruling is not primarily a slap at Juan Miguel
>Gonzalez, Fidel Castro or the vast majority of US residents -- who support
>the release of a 6-year-old captive from the clutches of a severely
>disturbed family and their terrorist patrons in Miami. It seems, rather, to
>be primarily a slap at Janet Reno and the lame performance on all counts by
>the INS, the "Justice" Dept., and their attorneys.
>
>There ARE instances where a minor's interests may conflict with a parent's,
>including immigration and asylum cases. These cases may not necessarily
>be "cold-war" inspired: One only has to look at the situation of children
>sold into prostitution by their desperately poor parents in such countries
>as Guatemala, or third-world children removed from their own parents for
>adoption by childless anglos in the US, for ready potential examples.
>
>The INS may well have been able to argue that there is NO QUESTION of Elian
>Gonzalez's right to stay in the US because of the way he arrived, but the
>INS apparently did NOT so argue (if anyone has copies of the briefs it would
>be interesting to see them online). Since Elian was found floating in the
>ocean, and not on dry land, it is arguable that he could still be
>"deported" by the INS against his express wishes -- which could, in the
>abstract, be legitimate, even though he is only 6 years old.
>
>Let us remember that this ruling comes from an appellate court, and the
>decisions they render are supposed to, and do, create precedents on which
>future cases may be decided. Let us also remember that the Court is part of
>a large bureaucracy of its own. If anything, this decision is aimed more
>at the INS and the Justice Dept. and what appears to be a lot of very sloppy
>legal work and a cowardly attempt by Janet Reno to shift her own
>responsibility onto the court. The court is supposed to be making rulings
>based on the briefs and arguments presented to them by attorneys. They are
>not expected to, and rarely will, do the work the attorneys are supposed to
>have done.
>
>This case presented a terrific opportunity for the judges to scold the INS
>and the Dept. of Justice, and it seems they jumped at the chance. The INS
>has NOT ever interviewed Elian Gonzalez; they never have argued that this
>child wanted from the beginning to go home to his family, and now that he
>has been tormented into stating the opposite, they cannot even credibly
>demonstrate that his statements are the result of coercion.
>
>The INS DID give temporary custody to the relatives in Miami, and they did
>not revoke that custody for many months -- even when it was painfully
>obvious that the Miami relatives were using the child for their own
>political purposes.
>
>The US Government has never appointed an independent legal guardian to
>represent Elian's interests. Whether he is, or is not, entitled to automatic
>legal asylum under the asinine rules governing Cuban migration, at this
>point the child deserves to have a lawyer -- for himself.
>
>The government has never solicited any kind of professional evaluation of
>the child; in a case such as this, an evaluation would usually be ordered by
>any competent judge in any decent family court (which apparently does not
>exist in Florida, if it does anywhere in this country). Thus, there is no
>counter-evidence to statements by the so-called "mental health
>professionals" hired by the Miami clan, who have behaved most
>unprofessionally in pandering to the gusanos who are paying their bills.
>
>When, very belatedly, the US Government finally asked 3 eminently qualified
>professionals to step in, their charge was limited to helping the INS
>reunite Elian and his father in the least traumatic way possible -- they
>were never even asked to speak to Elian himself. One wonders why they didn't
>insist on doing so, since in reality, any child in that situation would have
>developed some unrealistic fears or fantasies that could be allayed by
>caring adults, if they only knew what the child thought! Since the Lazaro
>Gonzalez household is doing everything possible to sabotage Elian's reunion
>with his father, meeting with them was rather pointless, and any information
>they provided the two psychiatrists and the psychologist would have been
>suspect anyway.
>
>The judges' ruling, in its entirety, is not quite as absurd as many people
>have said. They are clearly annoyed with the Govt's behavior; they are
>inviting -- or perhaps challenging -- Janet Reno to enforce the law and the
>administrative decisions of the INS. They did not address the question of
>Elian's status as much as they addressed the inconsistent and incompetent
>behavior of the INS, who apparently have not followed their own Guidelines
>regarding children -- quoted liberally, and damningly, in the ruling's
>footnotes.
>
>The INS and the US Government treated this case differently from any other
>from the beginning, and they (and unfortunately, Elian) are now reaping the
>consequences.
>
>If anything, it seems that the Government's response to the request for an
>injunction pending appeal got the judges' backs up -- perhaps that is the
>reason they seem to have bent over backwards on behalf of the awful Lazaro
>-- there is nothing "alleged" about his failure to comply with an INS order.
>The INS order was widely publicized, and so was Lazaro's refusal to comply
>with it. Nor do they address the question of whether Elian understood
>anything about what he was signing when he "applied for asylum himself."
>They do address the question of whether he is capable of understanding such
>an application -- according to the INS guidelines, he IS potentially
>capable, at age 6. According to the gusano mental health professionals --
>who have not been contradicted by any other mental health professionals --
>he does understand the meaning of "not wanting to return" to Cuba. There is
>nothing in the record to refute this. Why not? If the INS had responded to
>Lazaro's petitions more competently, it seems possible that the entire
>appeal could have been dismissed without all the tortured logic of enjoining
>Elian not to leave the country before his "own" appeal could be heard.
>
>The judges also note that multiple applications for Elian's asylum are
>apparently complete, and have not been returned because they were
>incomplete. What happened to them? Were they just ignored? If they were moot
>because "Elian has the right to stay already," why didn't the INS respond,
>to the Court and to the Miami family, by saying so? What is the matter with
>these Government lawyers? They have left holes a mile wide in their own
>positions. Are they so disorganized? Are they too cowardly to fulfill their
>own responsibilities, and leaving it to the judges of Amerikkka to take on
>the Miami mob they are afraid of? Or are they deliberately throwing the
>case? If not, they'd better get themselves organized before they attempt any
>oral arguments.
>
>One can easily disagree with the judges' wording of the sentence that "At
>the very least, Lazaro's interests are not obviously hostile" to Elian's. In
>fact, Lazaro and the whole Gonzalez clan in Miami are "obviously hostile" to
>Elian's well-being, as their despicable actions clearly indicate. It would
>have been more accurate if the ruling had said that distant relative is not
>necessarily less interested in a minor's well-being than a parent.
>
>Children don't have as many rights in the US as they do in Cuba, but some
>advances have been made over the years, and it isn't a bad thing in general
>that the INS and the courts recognize those rights. In this particular
>instance, it's very unfortunate that Elian's rights might end up destroying
>Elian's health and welfare.
>
>For that reason, it might be a good idea for Juan Miguel to get himself some
>decent legal representation and join the fray in court. For that he will
>need someone who has real litigation experience in immigration, asylum, and
>custody cases -- not just silk stocking pals of Slick Willy, and not just
>Lefty Lawyers from the NLG. Juan Miguel might begin by suing Janet Reno to
>force her to do her job and get custody of his child back, before the kid is
>damaged any further during an endless round of legal maneuvering.
>
>Since Juan Miguel Gonzalez has already made a commitment to stay in the US
>while the US courts do their thing, he should have a player in his corner
>who is a good litigator. No help can be expected from that worm Reno -- the
>claim by the Justice Dept. that they are "confused" by the ruling certainly
>bodes ill. Gonzalez, father and son, need some good lawyers at this point,
>if anything is going to persuade the bums in Washington to rescue that
>child.
>
>In our opinion, the US support contingent can do more good helping on that
>front-- whether it is helping to pay legal expenses or helping to physically
>liberate Elian -- than they can by bitching to a bunch of judges in Atlanta,
>when the real problem, as always, is in Washington, DC. -- NY Transfer News]
>
>
>[Reposted, with apologies for any typographical errors, by NY Transfer News
>from PDF files at http://www.law.emory.edu/11circuit ]
>
>Ruling of the U.S. Court of Appeals, 11th Circuit
>
>ELIAN GONZALEZ, a minor, by and through
>LAZARO GONZALEZ, as next friend, or, alternatively,
>as temporary legal custodian ............................ Plaintiff
>
>v
>
>JANET RENO, Attorney General of the United States;
>DORIS MEISSNER, Commissioner, US Immigration and Naturalization Service;
>ROBERT WALLIS, District Director, US Immigration and Naturalization Service;
>UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE; and
>UNITED STATES DEPARTMENT OF JUSTICE ......................Defendants
>
>Appeal from the United States District Court
>for the Southern District of Florida
>
>Before EDMONDSON, DUBINA and WILSON, Circuit Judges.
>
>BY THE COURT:
>
>Elian Gonzalez ("Plaintiff"), a 6-year-old child from Cuba, has made his way
>to the United States. Plaintiff, as an alien, submitted an application for
>asylum, pursuant to 8 USC 1158(a), to the Immigration and Naturalization
>Service ("INS"). His father asked, in effect, that the application be
>withdrawn. After an investigation, the INS [1] -- deciding that Plaintiff
>could not apply for asylum himself and that, under the circumstances, only
>his father could seek asylum on Plaintiff's behalf -- concluded that there
>was no reason not to honor the father's request and, accordingly, refused to
>consider Plaintiff's application[2]. Plaintiff then brought suit in federal
>district court challenging on several grounds the INS's refusal to consider
>his application. The district court rejected Plaintiff's claims.
>
>[1] Several applications for asylum were actually submitted on Plaintiff's
>behalf. One was signed by Plaintiff himself. The others were signed by
>Plaintiff's great-uncle and temporary custodian (selected by the INS),
>Lazaro Gonzales. [end 1]
>
>[2] Plaintiff is a minor; Plaintiff's suit was brought by and through Lazaro
>Gonzalez as next friend. See generally Fed.R.Civ.P.17(c). [end 2]
>
>Plaintiff has appealed the district court's decision to this Court[3]. His
>appeal is scheduled to be argued orally next month. Plaintiff, however, now
>moves for an injunction "to preclude [Plaintiff's] physical removal from the
>jurisdiction of the United States during the pendency of this appeal.[4]" We
>conclude that Plaintiff is entitled to such an injunction and grant the
>motion.
>
>[3] This Court, on 27 March 2000, expedited Plaintiff's appeal and scheduled
>oral arguments for the week of 8 May 2000.[end 3]
>
>[4] A party must ordinarily first move in the district court for an
>injuntions pending appeal. In this case, Plaintiff came directly to the
>appellate court. A motion for an injunction pending appeal may be made
>directly to the court of appeals when a party shows that moving first in the
>district court would be impracticable. See Fed.R.ApplP.8(a)(2). In this
>case, we are satisfied that Plaintiff has sufficiently shown that it would
>have been impracticable to move first in the district court: the
>time-sensitive nature of the proceedings and the possibility that we could
>have lost jurisdiction in the absence of an injunction support our exercise
>of discretion in this case. See also Michael v. INS, 48 F.3d 657,663 (2d
>Cir.1995).
>
>On 13 April, 2000, a single-judge emergency order, enjoining Plaintiff's
>removal from the United States, was issued until a three-judge panel had
>considered fully Plaintiff's motion for injunction pending appeal. We now
>have considered fully Plaintiff's motion and the single-judge emergency
>order has served its purpose. The single-judge order, accordingly, is
>replaced by this Order. [end 4]
>
>In considering a motion for injunction pending appeal, we examine four
>factors: (1) whether the movant is likely to prevail on the merits of his
>appeal; (2) whether, if we do not issue an injunction, the movant will
>suffer irreparable harm; (3) whether, if we issue an injunction, any other
>party will suffer substantial harm; and (4) whether an injunction would
>serve the public interest, See in re. Grand Jury Proceedings (11th Cir.
>1992). Although the first factor is generally the most important, the movant
>need not always show that he probably will succeed on the merits of his
>appeal. Garcia-Mir v. Meese (11th Cir. 1986). Instead, where the "balance of
>the equities weighs heavily in favor of granting the [injunction]," the
>movant need only show a "substantial case on the merits."
>
>In this case, the balance of the equities weighs heavily in favor of
>enjoining the removal of Plaintiff from the U.S. pending appeal. And
>Plaintiff has made a "substantial case on the merits" of his appeal.
>
>1. BALANCE OF THE EQUITIES
>
>The equities, in this case, weigh heavily in favor of issuing an injunction
>pending appeal. Apart from concerns about what might happen to this child if
>he is returned to Cuba (which we do not address), if Plaintiff leaves the
>United States during the pendency of his appeal, his case will likely become
>moot. Our failure to issue an injunction pending appeal, therefore, could
>strip the Court of jurisdiction over this case and deprive Plaintiff forever
>of something of great value: his day in a court of law. That circumstance
>alone presents a significant risk of irreparable harm to Plaintiff.
>
>In addition, we doubt that an injunction would harm the INS [5]. Plaintiff
>has been in the United States for nearly five months. The INS refused to
>consider Plaintiff's application for asylum more than three months ago. The
>INS, however, has not sought to remove Plaintiff in the meantime from the
>United States. The suggestion that an injunction pending appeal, prohibiting
>the removal of Plaintiff from the United States until Plaintiff's expedited
>appeal is decided on the merits, will harm the INS is not compelling.
>
>[5] Multiple Defendants are in this case. But we refer to Defendants
>collectively as the "INS." [end 5]
>
>Nor do we believe that an injunction pending appeal in this case would
>offend the public interest. The INS, in opposition to Plaintiff's motion,
>invokes the well-established authority of the political branches of
>government in immigration affairs. We fully recognize the plenary power of
>Congress over immigration matters. See Jean v. Nelson (11th Cir. 1984). But
>we fail to see how an injunction in this case infringes upon the
>congressional power; after all, the heart of Plaintiff's appeal is that the
>INS by refusing to consider Plaintiff's asylum application has disregarded
>the command of Congress. And we doubt that protecting a party's day in
>court, when he has an appeal of arguable merit, is contrary to the public
>interest. We therefore, conclude that the equities weigh heavily in favor of
>granting an injunction pending appeal [6].
>
>[6] The INS also asserts that, under the equitable doctrine of "unclean
>hands," Plaintiff is unentitled to seek the equitable remedy of an
>injunction pending appeal. The INS urges that Lazara Gonzalez's alleged
>failure to comply with an INS order, directing that he surrender Elian
>
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