>Gonzalez to the INS at a Miami airport, renders Plaintiff's hands unclean.
>Whether Lazaro Gonzalez failed to comply with a lawful order of the INS and
>whether such failure would justify invocation of the unclean hands doctrine
>in some cases are issues that we need not decide today. Lazaro Gonzalez is
>not the plaintiff in this case; Plaintiff is Elian Gonzalez. However unclean
>Lazaro Gonzalez's hands may be, the INS has suggested no misconduct on the
>part of Plaintiff, Elian Gonzalez, that would justify application of the
>unclean hands doctrine in this case to him. [end 6]
>
>2. SUBSTANTIAL CASE ON THE MERITS
>
>This case is mainly about statutory construction and the proper exercise of
>executive discretion. Among other things, we must ultimately decide what
>Congress meant when it said:
>
>Any alien who is physically present in the United States or who arrives in
>the United States ... irrespective of such alien's status, may apply for
>asylum in accordance with this section or, where applicable, section 1225(b)
>of this title.
>
>8 U.S.C. 1158(a)(1). Plaintiff argues that the INS's refusal even to
>consider his application violates 8 U.S.C. 1158(a). The INS contends that,
>because Plaintiff is a 6-year-old child, he is incompetent to submit an
>application on his own behalf and that, on the facts of this case, he must
>have his father submit the application for him [7]. Because his father did
>not do so, the INS contends that Plaintiff never actually applied for asylum
>and that, therefore no application exists for its consideration. Even
>accepting as we do the principles of deference set out in Chevron v.
>Natural-Resources Defense Council Inc. (1984), we at this time have doubt,
>in the light of the record and Plaintiff's arguments on appeal, about the
>correctness of the INS's interpretation of section 1158.
>
>[7] Although the INS determined that Plaintiff was incompetent to make
>immigration decisions, it bears repeating that the INS made this
>determination without having met with Plaintiff or having any evaluations
>done on his capacity. [end 7]
>
>In considering an agency's interpretation of a statute, we first must
>examine the plain meaning of the pertinent statutory language: "If the
>intent of Congress is clear, that is the end of the matter; for the court,
>as well as the agency, must give effect to the unambiguously expressed
>intent of Congress." Chevron (1984). The statute in this case seems pretty
>clear. Section 1158(a)(1) provides that "any alien ... irrespective of such
>alien's status, may apply for asylum." Plaintiff appears to come within the
>meaning of "any alien.[8]" See 8 USC 1101(a)(3). And the statute plainly
>says that such an alien "may apply for asylum." We, therefore, question the
>proposition that, as a matter of law, Plaintiff (unless his father consents)
>cannot exercise the statutory right to apply for asylum.
>
>[8] Congress specifically and expressly excluded three groups of aliens
>from the meaning of "any alian." See 8 USC1158(a)(2). School-age children
>are not among the excluded groups, however. [end 8]
>
>Congress's provision for "any alien" is not uncertain in meaning just
>because it is broad. See Pennsylvania Dept. of Corrections v. Yeskey,
>(1998). If Congress had meant to include only some aliens, perhaps Congress
>would not have used the words "any alien.[9]" In addition, although the INS
>has the authority to issue regulations and procedures governing the
>submission of asylum applications, the INS cannot properly infringe on the
>plain language of the statute or the clear congressional purpose underlying
>it. See Shoemaker v. Bowen (11th Cir. 1988). Nor can the INS properly narrow
>the scope of a statute through regulation. See Ellis v. General Motors
>Acceptance Corp. (11th Cir. 1998). At this time, we cannot say that "any
>alien" excludes Plaintiff: given the plain language of the statute, he might
>be entitled to apply personally for asylum. Furthermore, it seems unclear
>that an INS decision to treat Plaintiff's application as a nullity without
>an adjudication on the merits is a "procedure for the consideration of
>[Plaintiff's] asylum application."
>
>[9] To some people, the idea that a six-year-old child may file for asylum
>in the United States, contrary to the express wishes of his parents, may
>seem a strange or even foolish policy. But this Court does not make
>immigration policy, and we cannot review the wisdom of statutes duly enacted
>by Congress. If Congress intended -- as evidenced by the plain meaning of
>section 1158 -- that a school-age child (such as Plaintiff) be able to file
>personally an application for asylum, this Court and the INS are bound to
>honor the policy-decision made by Congress. [end 9]
>
>Not only does the plain language of the statute seem to support Plaintiff's
>argument that he, despite his age, is entitled to apply personally for
>asylum, the present regulatory scheme created by the INS also seems to
>strengthen Plaintiff's position. The existing INS regulations do envision
>situations where a minor may act on his own behalf in immigration matters
>[10]. Moreover, the regulations contemplate that a minor, under some
>circumstances, may seek asylum against the express wishes of his parents
>[11]. Also, the INS Guidelines for Children's Asylum Claims envision that
>young children will be active and independent participants in the asylum
>adjudication process [12].
>
>[10] See 8 CFR 103.2(a)(2)("An applicant or petitioner must sign his or her
>application or petition. However, a parent or legal guardian may sign for a
>person who is less than 14 years old."); 8 CFR 236.3(b):("When a juvenile
>alien is apprehended, he or she must be given a [Notice of Rights and
>Disposition Form]. If the juvenile is less than 14 years of age or unable to
>understand the notice, the notice shall be read and explained to the
>juvenile in a language he or she understands. In the event a juvenile who
>has requested a hearing pursuant to the notice subsequently decides to
>accept voluntary departure or is allowed to withdraw his or her application
>for admission, a new [form] shall be given to and signed by the juvenile.")
>[end 10]
>
>[11] See 8 CFR 236.3(f)("If a juvenile seeks... any form of relief from
>removal, where it appears that the grant of such relief may effectively
>terminate some interest inherent in the parent-child relationship and/or the
>juvenile's rights and interests are adverse with those of the parent, and the
>parent is presently residing in the United States, the parent shall be
>given notice of the juvenile's application for relief"); Poloychak v Meese,
>7th Cir.1985); cf. Johns v Dept of Justice (5th Cir.1980). [end 11]
>
>[12] The Guidelines provide asylum officers with information about how to
>talk to and interview a young child about his asylum application. The
>Guidelines repeatedly stress that the kind of questions which should be
>asked and the kind of answers which should be expected varies according to
>the age of the applicant and that special care should be taken when
>interviewing young children. The Guidelines also say that "Asylum Officers
>should not assume that a child cannot have an asylum claim independent of the
>parents," and that "when a parent or parents do not appear to have an
>approvable claim, an asylum Officer should routinely make an inquiry into
>the child's case even though the child may be listed merely as a derivative
>on a parent's application and may not have filed a separate asylum
>application." See Guidelines at 15. The Guidelines also say that "the age,
>relative maturity, ability to recall events, and psychologial make-up of the
>child will affect the quality of the answers an Asylum Officer is able to
>elicit from that child. While the burden of proof remains on the child to
>establish his or her claim for asylum, an Asylum Officer must take these and
>other factors into account when assessing the credibility of a claim and
>must also attempt to gather as much objective evidence as possible to
>evaluate the child's claim." See Guidelines at 17. Above all, the INS
>Gidelines say that "when... 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
>the known circumstances, which may call for a liberal application of the
>benefit of the doubt.'" See Guidelines at 20 (citations omitted).
>
>An additional point of interest is that the INS Asylum Officer Corps
>Training Guidelines for Children's Asylum Claims (INS, January 1999) discuss
>the three age-based developmental stages of children (0-5, 6-12, 13-18 years
>old) and provide guidance for asylum officers in dealing with children in
>each category. Notably, the training guidelines provide an example of a
>statement from a six-year-old child and provide information which can be
>used to assess statements by children of that age. See id. at 10-18.
>[end 12]
>
>The INS has not pointed to (nor have we found) statutory, regulatory or
>guideline provisions which place an age-based restriction on an alien's
>ability to apply for asylum. And we have found no preexisting requirement
>that a minor, in submitting an asylum application, must act through the
>representative selected by the INS [13].
>
>Not only does it appear that Plaintiff might be entitled to apply personally
>for asylum, it appears that he did so. According to the record, Plaintiff --
>although a young child -- has expressed a wish that he not be returned to
>Cuba [14]. He personally signed an application for asylum [15].
>
>[13] The INS Guidelines cite to a number of studies and articles dealing
>with the ability of children to testify as witnesses in judicial
>proceedings. See Guidelines at 13 n.21. At the least, this reference
>supports the inference that the INS envisioned that the kind of competency
>required for a minor to apply for asyulum is competency to testify, see
>Maryland v Craig, 497 US 836 (1990), not legal competency to contract and so
>on, which is a much different standard.
>
>Caselaw supports the inference that complete legal competency has not been
>the determinative circumstance for whether a minor may apply for asylum. See
>Polovchak v Meese (7th Cir. 1985) (allowing a 12-year-old minor to apply for
>asylum). [end 13]
>
>[14] We do not now suggest that the stated intentions of a six-year-old
>child are dispositive or even entitled to substantial weight in deciding
>whether the child ultimately receives a grant of asylum. Still, a colorable
>argument exists that a school-age child's expressed wishes about where he
>wants to live can trigger the requirement that Plaintiff's claim for asylum
>be given full and fair consideration. This conclusion may be particularly
>true where, as here, Plaintiff has indicated to mental health professionals
>that he does not want to return to Cuba, and where those mental health
>professionals have said that he understands what he is saying. These
>statements might ultimately not be of great weight in determining
>Plaintiff's application for asylum, but we are not sure that they can be
>summarily dismissed as having no weight at all.[end 14]
>
>[15] Plaintiff's application was complete. To date, none of Plaintiff's
>applications were returned by the INS for being incomplete. According to its
>own regulations, the INS "shall adjudicate the claim of each asylum
>applicant whose application is complete within the meaning of 208.3(c)(3)."
>8 CFR 208.9(a).[end 15]
>
>Plaintiff's cousin, Marisleysis Gonzalez, notified the INS that Plaintiff
>said he did not want to go back to Cuba. And it appears that never have INS
>officials attempted to interview Plaintiff about his own wishes.
>
>Even if the INS is correct that Plaintiff needs an adult, legal
>representative for his asylum application, it is not clear that the INS, in
>finding Plaintiff's father to be the only proper representative, considered
>all of the relevant factors -- particularly the child's separate and
>independent interests in seeking asylum. Cf Polovchak v Meese (7th Cir.
>1985); Johns v Dept. of Justice (5th Cir. 1980) (recognizing in the context
>of a deportation hearing that the mother's interests are not necessarily the
>same as her four-year-old child's). It does not appear that the INS ever
>spoke to or interviewed Plaintiff before making this determination. And
>Lazaro Gonzalez, Plaintiff's great uncle, is no stranger to Plaintiff. The
>INS placed Plaintiff in Lazaro's care upon Plaintiff's arrival in this
>country, and Lazaro is a blood relative. When Lazaro submitted applications
>for asylum on Plaintiff's behalf, Lazaro was the INS's designated
>representative to take care of Plaintiff and to ensure his well-being.
>Lazaro's interests, to say the least, are not obviously hostile to
>Plaintiff's interests. So, for now, we remain unconvinced that the asylum
>application submitted by Lazaro on behalf of Plaintiff necessarily was
>ineffectual under the law.
>
>For these reasons and in these circumstances, we believe that Plaintiff has
>presented a substantial case on the merits.
>
>CONCLUSION
>
>By its nature, this Order sets out more questions than answers. We have not
>attempted to address every point advanced by both sides, but we have
>attempted to explain our decision to grant the injunction. No one should
>feel confident in predicting the eventual result in this case.
>
>The true legal merits of this case will be finally decided in the future.
>More briefing is expected. We intend to hear oral argument. We need to think
>more and hard about this case for which no sure and clear answers shine out
>today. Still, because of the arguments presented as well as the potential
>inconsistencies of the INS's present position with the plain language of the
>statute and with the INS's own earlier interpretations of the statute in INS
>regulations and guidelines, and because of the equities in this case, we
>conclude that Plaintiff is entitled to an injunction pending appeal [16].
>
>[16] The INS, in its response to Plaintiff's motion, said it would consent
>to an injunction requiring the INS to bar Plaintiff's departure from the
>United States if this Court also entered an order directing Lazaro Gonzalez
>to present Plaintiff to the INS, as directed by the INS, for transfer of
>care to the Plaintiff's father. We decline to proceed in that manner.
>
>To decide Plaintiff's motion and to preserve his right to a day in court, we
>need only address the issue of Plaintiff's removal from the country. We need
>not decide where or in whose custody Plaintiff should remain while this
>appeal is pending. This Order only prevents Plaintiff's removal from this
>country. [end 16]
>
>Therefore, it is ordered that:
>
>(1) Plaintiff, Elian Gonzalez, is enjoined from departing or attempting to
>depart from the United States;
>
>(2) Any and all persons acting for, on behalf of, or in concert with
>Plaintiff, Elian Gonzalez, are enjoined from aiding or assisting, or
>attempting to aid or assist, in the removal of Plaintiff from the United
>States;
>
>(3) All officers, agents, and employees of the United States, including but
>not limited to officers, agents, and employees of the United States
>Department of Justice, are enjoined to take such reasonable and lawful
>measures as necessary to prevent the removal of Plaintiff, Elian Gonzalez,
>from the United States [17].
>
>[17] Plaintiff, in his reply brief, requested that this Court order
>mediation in this case. Although we may direct the parties to participate in
>mediation, see Fed.R.App; P.33, we choose not to do so at this time.
>Nevertheless, we encourage the parties to avail themselves voluntarily of
>this Court's mediation services.[end 17]
>
>MOTION GRANTED.
>
>IT IS SO ORDERED.
>
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