by Randolph J. May
Legal Times, August 8, 2000

Elian Gonzalez is once again ensconced in Cuba. His father, Juan Miguel, has been named a “Hero of the Nation” in Havana. In Miami, Uncle Lazaro and Cousin Marisleysis haven’t been heard from lately. And the political cartoonists long since have sketched their wry depictions of Elian being handed over to Castro by Lady Liberty.

In the opening sentence of its opinion that sent Elian packing, the U.S. Court of Appeals for the 11th Circuit stated, “This case, at first sight, seems to be about little more than a child and his father.” In fact, it continued, the case is “mainly about the separation of powers under our constitutional system of government: a statute enacted by Congress, the permissible scope of executive discretion under that statute, and the limits on judicial review of the exercise of that executive discretion.”

SEPARATION OF POWERS

The court was right that the case’s significance extends beyond the high drama of the six-year-old’s personal survival story. But it was wrong in deciding that Elian could not seek political asylum. So no matter how one feels about whether Elian will be better or worse off back in Cuba, the 11th Circuit’s Gonzalez v. Reno decision is troubling for the way it handled the very separation-of-powers issue that it identified as being at the heart of the case.

Confronted with a statute providing that “[a]ny alien . . . may apply for asylum,” the court held that Elian could not do so against the wishes of his father. The opinion began by stating that the law “is neither vague nor ambiguous. The statute means exactly what it says: ‘[a]ny alien . . . may apply for asylum.’ ” Emphasizing that a statute is not ambiguous just because its coverage is broad, the opinion continued that the statute “plainly would permit Plaintiff [Elian] to apply for asylum.”

Because Elian had filed three separate asylum applications with the Immigration and Naturalization Service (one signed by himself and two submitted on his behalf by Uncle Lazaro), the court seemed on the brink of holding that Elian at least would get a hearing on the merits of his asylum claim. But in a curious turnabout, the court abruptly reframed the issue: The question became not whether Elian may apply for asylum (“that a six-year-old is eligible to apply for asylum is clear,” the court stated), but whether he had, in fact, applied.

With the question reformulated, Elian lost. The court deferred to the INS’s position that his applications were not valid because they were filed against the wishes of his father. Although “not untroubled” by the INS’s position, the court said it was obliged to defer because the agency’s decision “was within the outside border of reasonable choices.”

The court justified its deference by citing that Supreme Court totem of administrative law, Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. Chevron first requires a court reviewing an agency decision to determine whether Congress has directly spoken to the relevant issue. If so, the court “must give effect to the unambiguously expressed intent of Congress.” If not, the court must respect the agency’s construction of the statute so long as it is reasonable.

ASYLUM STATUTE CLEAR

In Elian’s case, because the statute did not define the word apply, the 11th Circuit concluded the law was ambiguous on the point of what constitutes a valid asylum application. But the word apply is one of the more common and clear terms that congressional drafters use. Webster’s Ninth New Collegiate Dictionary defines apply as “to make an appeal or request esp. in the form of a written application.” Congress may well enact too many indeterminate statutes, but this isn’t one of them.

Considering both the clear language of the statute and the first part of the Chevron test, the 11th Circuit should have held that Elian lawfully applied for asylum, since that is what he did. For a decision that begins by trumpeting the importance of the separation of powers, the 11th Circuit opinion seems to go out of its way to deprive Congress’ act of its intended force.

The court then compounded its error in the next stage of its Chevron analysis by deferring to what was less a deliberative agency policy implementing a congressional delegation than a hastily conceived litigation strategy. The INS’s new “policy” was contained in nothing more than a single memorandum from the INS general counsel to the INS commissioner, and in letters from the INS and the attorney general to Elian and Lazaro Gonzalez. All are dated between Jan. 3 and Jan. 12, 2000.

They were all written in response to the asylum applications that Elian and his Miami relatives filed. Even worse, they conflict with previous INS regulations and guidelines, which the court had relied on in its earlier decision granting an injunction to prevent Elian’s removal from this country during his appeal. Those guidelines, as the court’s earlier decision emphasizes, use a hypothetical six-year-old’s asylum application as an illustration of what the INS might accept. In its opinion, even the 11th Circuit acknowledged that the new policy might “not harmonize perfectly with earlier INS interpretative guidelines.”

DEFERENCE NOT DESERVED

No matter. The 11th Circuit gave the new interpretation Chevron deference. But why should the court treat an informal and hastily conceived policy with such respect? According to a Supreme Court opinion handed down a month before the Elian decision, the appeals court shouldn’t have.

In Christensen v. Harris County, the Supreme Court specifically refused to afford deference to a formal opinion letter of the Department of Labor. In an opinion by Justice Clarence Thomas, the Court stated: “Interpretations such as these in opinion letters—like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do not warrant Chevron-style deference.”

Christensen likely will not end all confusion, because the Court used the language of illustration, not declaration. It stated “for example” a formal adjudication or notice-and-comment rulemaking are due Chevron-style deference, while interpretations “such as” opinion letters— “like” policy statements, manuals, and guidelines—are not.

But even if Christensen won’t resolve all Chevron applicability questions, it should have at least tilted the 11th Circuit away from granting deference to the INS’s new and informal policy. The internal memorandum and letters relied on by the Gonzalez court are no more entitled to deference than the agency pronouncements that the Supreme Court said should not receive deference in Christensen. Indeed, conceived in such obvious haste, without any public participation, and lacking the force of law, the INS policy seems even less deserving.

The 11th Circuit’s decision did not mention Christensen, and so, not surprisingly, the parties focused on it during the petition for rehearing. But the court dismissed its significance without meaningful elaboration, merely stating that Elian’s informal adjudication was “outside Christensen’s scope.”

You may assume that I think Elian should not be back in Cuba with his dad. Not necessarily. I just believe that the court got it wrong by reading the statute in a way that denied Elian the asylum hearing he deserved. Such a hearing would have been the proper forum to weigh Juan Miguel’s admittedly strong claim that he has the right to raise his son wherever he pleases against the claims of Elian’s Miami relatives concerning the travails Elian may face growing up in Castro’s Cuba.

Whatever delay such a hearing would have occasioned would have been tribute to our concern, here in America, for the niceties of the law.

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. He may be reached at rmay@pff.org. His column, “Fourth Branch,” appears regularly in Legal Times.

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