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Elian's Day in Court Neal Mulligan neal karenmulligan@rcn.com Ruling of the U.S. Court of Appeals, 11th Circuit
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 . . . to the Immigration and Naturalization Service (``INS''). His father asked, in effect, that the application be withdrawn. After an investigation, the INS -- 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. 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.
Plaintiff has appealed the district court's decision to this Court. 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.'' We conclude that Plaintiff is entitled to such an injunction and grant the motion.

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. 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.

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.
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.

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. 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.

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.'' 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.

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.'' 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.''

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. Moreover, the regulations contemplate that a minor, under some circumstances, may seek asylum against the express wishes of his parents. Also, the INS Guidelines for Children's Asylum Claims envision that young children will be active and independent participants in the asylum adjudication process.

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.

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. He personally signed an application for asylum.

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. . . . 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.

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.

MOTION GRANTED.

IT IS SO ORDERED.



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