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Jewish World Review April 24, 2000 /19 Nissan, 5760

Paul Greenberg

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Orders are orders:
Seize the child!

http://www.jewishworldreview.com -- THE SCENE in the early, pre-dawn hours at that beleaguered house in Miami had everything but the hobnail boots. The darkness, the screams, the truncheons and screams and black helmets, the sirens and tear gas, the doors pried open and a child pried from a desperate family . . . How many times has such a scene been repeated in this past century? And as always, it is said This Is the Law. As if this had not been the most political of decisions.

As soon as Bill Clinton promised that he wouldn't politicize the case of the littlest fugitive, you knew he would. Our president now has dropped his pose of impartiality and declared that little Elian had to be forcibly seized. Why? "It's the law," he pronounces.

His decision might surprise the Eleventh Circuit Court of Appeals in Atlanta, which had just granted young Elian's relatives in Miami the injunction they sought against his being deported-at least not till he's had his day in court. The three-judge panel pointedly rejected the Justice Department's request for an order directing the boy's guardian in Miami to hand him over to the Immigration and Naturalization Service. Indeed. the judges added that the family in Miami had made "a substantial case on the merits."

In its restraint, the court, unlike the president, did not declare what the law is, nor who should have custody of the boy until his case is resolved. "No one should feel confident in predicting the eventual result in this case," the judges warned. "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 his case for which no sure and clear answers shine out today."

In issuing its opinion, the court had a great advantage over the president.

It had apparently studied the law. And it found that the "statute in this case is pretty clear." The relevant statute, 8 USC Section 1158 (a) (1), reads: "Any alien who is physically present in the United States . . . irrespective of such alien's status, may apply for asylum . . . ."

In a triumph for the clear meaning of words, the court said that "any alien" means any alien, including a six-year-old. The court noted that Congress had specifically excluded three groups of aliens from the right to apply for asylum, and children were not among the excluded. Indeed, the court cited a couple of cases, including that of a 12-year-old and a four-year-old, in which the child's interests overrode that of a parent or parents.

In short, this young plaintiff has a case that deserves to be heard. Not just in law but according to the Immigration and Naturalization Service's own rules and regulations. To quote the judges: "Not only does the plain language of the statute seem to support the 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. Moreover, the regulations contemplate that a minor, under some circumstances, may seek asylum against the express wishes of his parents."

The judges cited the INS' own rulebook, which notes that, when the interests of parent and child conflict, the official in charge "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." The court noted that the INS' Training Guidelines include a sample statement from a six-year-old and suggestions about how "to assess statements by children of that age."

In its decision last week, the court took no position on whether the INS could storm the boy's home in Miami and seize him, but it did note "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 . . ."

It could be argued that seizing this little plaintiff by force and packing him off to a military base was within the letter of the law. But what of its spirit? This president and this attorney general have ignored, indeed twisted, the tone of the appellate court's decision, which was highly critical of the INS' high-handed ways. But what this administration has ignored most is what Learned Hand once called the spirit of liberty, the spirit that is not too sure it is right.

With all these legal questions still up in the air, our president and new chief justice goes before the microphones and declares, "That is the law." Apparently it is not just in Cuba where El Presidente hands down the law in remarks at news conferences.

There is something eerily familiar about a chief executive from Arkansas confidently telling the federal courts what the law is. Orval E. Faubus liked to do the same thing.

But just because Bill Clinton said it doesn't make it so, either.

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