THE CASE OF ELIAN GONZALEZ: LEGAL BASICS
CRS Report for Congress
The Case of Elian Gonzalez: Legal Basics
Larry M. Eig
American Law Division
The controversial and often impassioned immigration case of Elian Gonzalez ended
the afternoon of June 28, 2000, when the six-year old Cuban boy returned home with his
father. Elian’s departure occurred seven months after the shipwrecked boy was brought
to U.S. shores and less than an hour after a temporary injunction preventing his removal
Litigation over Elian’s legal fate did not end until the day of his departure. Then,
the Supreme Court declined to consider the rulings of the Eleventh Circuit Court of
Appeals that allowed Elian’s return. Earlier, the Eleventh Circuit had barred Elian’s
removal until it had had an opportunity to consider his case more fully.
Elian was brought ashore alone after his mother and others died in an accident at
sea. Because of the exigencies of the case, Elian was paroled into the keeping of
relatives in Florida pending a determination of his future residency and care.
Subsequently, the Florida relatives sought legal custody of Elian in state court and
assisted in his applying for asylum with federal immigration authorities. Elian’s father,
Juan Miguel Gonzalez, objected to these legal actions, and later he personally came to
the U.S. from Cuba to attempt to regain custody.
As litigation progressed, Florida state courts ultimately declined to consider the case
as a matter of state family law, deferring instead to federal immigration law. Meanwhile,
the federal courts eventually decided that the Attorney General could terminate the right
of care that had been granted to Elian’s relatives and that an asylum claim for Elian could
not proceed over his father’s objections.
This report briefly discusses legal authority that pertained to the Elian Gonzalez
case. It will not be updated. For discussion of related issues, see CRS Report RS20446,
Elian Gonzalez: Chronology and Issues, by Ruth Wasem.
Introduction. Elian Gonzalez, now six years old, was rescued at sea on
Thanksgiving Day 1999 and brought ashore. His mother, who died at sea, had taken Elian
with her from Cuba in an attempt to come to the U.S., thereby separating Elian from his
natural father and his grandparents. After his arrival and hospitalization, the Attorney
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General paroled Elian into the care of relatives in Florida – most specifically Lazaro
Gonzalez, a great-uncle. Subsequently, both Lazaro Gonzalez and Elian himself filed
applications seeking asylum for Elian in the U.S., but the Immigration and Naturalization
Service (INS) refused to accept them against the wishes of Elian’s father, Juan Miguel
The Justice Department, which has primary responsibility for enforcing U.S.
immigration law, emphasized that Elian’s ability to reside here was exclusively an issue of
federal immigration law, to be determined strictly under federal legal standards and
definitions. Applying these, the Attorney General eventually reunited Elian with his father
in the Washington, D.C., area, thus backing the earlier position of INS Commissioner
Doris Meissner that Elian’s father had sole legal authority to speak for Elian in
immigration matters. This stand on the unity of father and son was consistent, preceding
the departure of Juan Miguel Gonzalez from Cuba and continuing after his arrival here in
early April 2000.
This stand by immigration officials also was upheld by the U.S. Court of Appeals for
the Eleventh Circuit in a June 1, 2000, ruling. This ruling followed an April 19, 2000,
order by the Eleventh Circuit that temporarily enjoined Elian’s removal from the U.S.
pending its full consideration of the case on appeal from the U.S. District Court for the
Southern District of Florida. Earlier, U.S. District Judge K. Michael Moore had upheld
the INS position that an asylum application could not proceed against the wishes of Elian’s
father, thereby exposing Elian to the possibility of quick removal to Cuba.
Meanwhile, the Florida state courts also had been active in Elian’s case, but later
backed off. In January, Florida Circuit Judge Rosa Rodriguez issued a temporary
protective order that recognized certain temporary custodial rights of Elian’s relatives here
to the detriment of Elian’s natural father. On April 13, however, another Florida judge,
Circuit Judge Jennifer Bailey, lifted the protective order, holding that Lazaro Gonzalez
was too distant a relative to be seeking custody under Florida law and recognizing further
that the Gonzalez case was a federal immigration matter and not a state family court
matter. Judge Bailey’s holding marked the end of significant state court involvement.
This report discusses selected legal issues that were implicated by the Gonzalez
Regulation of immigration. Informed by several constitutional provisions and
ultimately resting on the inherent right of every sovereign nation to control its borders, the
authority to regulate the entry of aliens and the conditions of their stay is a plenary power
of the Federal Government. Congress has exercised this authority primarily through the
Immigration & Nationality Act of 1952 (INA), as amended (8 U.S.C. §§ 1101 et seq.).
Under the INA, an alien, including an unaccompanied minor, who arrives without
proper migration documents has no right to remain and, indeed, is regarded as having no
constitutional rights within the immigration process. But while an arriving alien without
documents is subject to summary exclusion and removal, the INA does not foreclose all
possibility of remaining. For example, the Attorney General may temporarily parole an
alien into the U.S. for various purposes, including receipt of medical assistance and release
pending further consideration of status. An alien on parole continues under the
constructive custody of the Attorney General, who can set conditions in each case and
revoke parole at will. Beyond parole, an arriving alien also may apply for asylum here on
the basis of prospective individualized persecution abroad based on race, religion,
ethnicity, political opinion, or membership in a particular social group.
Cuban migration: Congress and the Executive Branch are not obligated to give all
foreign nationals equal migration rights. At least two authorities uniquely affect Cubans:
the Cuban Adjustment Act of 1966 and the Joint U.S.-Cuba Communique on Migration.
Originally intended to overcome procedural obstacles to adjusting to legal permanent
resident (LPR) status, the Cuban Adjustment Act (P.L. 89-732, as amended) has, through
administrative practice and congressional acquiescence, been used to allow any Cuban who
has been paroled or admitted into the U.S. to apply for LPR status after one year. This
discretionary remedy for Cubans is much more advantageous than the usual adjustment
rights under the INA.
The Joint Communique on Migration (issued September 9, 1994, and reprinted in 71
Interpreter Releases 1236 (9/12/94)) followed an uncontrolled mass exodus of Cubans by
sea. The agreement set out in the communique changed Cuban migration in two
fundamental ways. First, the U.S. agreed to permit the annual resettlement of at least
agreed to discourage the irregular, unsafe departure of Cuban boat people by discontinuing
its policy of allowing Cubans rescued at sea to enter the U.S. A May 2, 1995, Joint
Statement amplified this latter point: “Effective immediately, Cuban migrants intercepted
at sea by the United States and attempting to enter the United States will be taken to
Cuba.” The new interdiction policy resulted in a “wet foot-dry foot” distinction under
which Cubans at sea would be returned without possibility of favorable treatment under
the Cuban Adjustment Act, while Cubans reaching shore would retain at least the
possibility – but not the assurance – of parole and subsequent adjustment to LPR status.
Asylum under the INA. Under § 208 of the INA, “[a]ny alien who is physically
present in the United States . . . may apply for asylum.” At core issue in the Gonzalez case
was whether the phrase “any alien” was sufficiently unclear to leave the Attorney General
discretion to refuse to accept an asylum application by or on behalf of a minor without
The current asylum provisions derive from the Refugee Act of 1980, which added §
The Attorney General shall establish a procedure for an alien physically present in the
United States . . . to apply for asylum, and the alien may be granted asylum in the
discretion of the Attorney General if the Attorney General determines that such alien is
a refugee [as defined elsewhere in the INA]. . . .
The legislative history of the asylum provisions is sparse – there is no debate on any
minimum age for application, for example – but that history which does exist emphasizes
the importance of establishing an asylum process that is uniform and free of geographic
or ideological bias.
Congress did not significantly amend the statutory asylum provisions until the
enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA). IIRIRA put many of the features of then recent administrative asylum reforms
in statute, rather than, as had previously been the case, leaving all the details of the asylum
process to be determined through regulation. IIRIRA also went beyond ratification of
administrative practice by setting forth, for the first time in statute or regulation, express
grounds for refusing to accept an asylum application. These grounds include time limits,
denial of a previous claim, and ability to be sent to a safe third country. Congress included
the first two of these exceptions because they were perceived as curbs for abuse that could
not be addressed adequately under existing law by administrative authorities. The third
exception had been only a regulatory basis for denying discretionary relief under existing
law, but the regulation did not purport to be a basis for refusing an application.
Judge Moore’s decision. In a March 21, 2000, order in the case of Gonzalez v.
Reno (86 F. Supp. 2d 1167), U.S. District Judge K. Michael Moore upheld the Attorney
General against a challenge to her authority brought by Elian’s Florida relatives on Elian’s
behalf. The complaint alleged that the Attorney General had exceeded her authority and
misapplied the law by refusing to adjudicate an asylum claim filed on Elian’s behalf.
Judge Moore’s opinion recounts at length the efforts undertaken by immigration
authorities to investigate the nature of Elian’s relationship with his father and the
circumstances of his life in Cuba. Based on these investigations, immigration officials
concluded that there was a lack of evidence indicating a risk of prospective harm in Cuba
“such that [Elian’s] interests might so diverge from those of his father that his father could
not adequately represent him [in asylum matters].” Consequently, the Attorney General
refused to consider an asylum application filed against the wishes of Elian’s father, despite
statutory language that grants “any alien” in the U.S. the right to apply for asylum.
Judge Moore first dismissed the charge that the Attorney General’s refusal to
consider the application violated Elian’s due process rights under the Constitution. An
alien in Elian’s posture – an alien paroled into the U.S. upon arriving without documents
– simply does not have due process rights in the immigration realm, according to Judge
Moore. This conclusion would appear to comport with 50 years of judicial precedent.
Next, Judge Moore upheld the refusal to consider the asylum application despite the
“any alien” phrasing of the statute. In so doing, Judge Moore emphasized two factors.
The first was the uniquely broad authority delegated to the Executive Branch to interpret
immigration law free from outside interference. The second was the arguable ambiguity
of the statutory language when read in the context of other provisions and the wide
discretion of the Attorney General to resolve these ambiguities in any reasonable manner.
The Eleventh Circuit. In first considering an appeal of Judge Moore’s decision, a
three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit enjoined the
removal of Elian from the U.S. until it had considered the case more fully. The Eleventh
Circuit’s injunction, issued April 19, appeared to suggest that the court was not as
sanguine as Judge Moore about the vagueness of the INA and the scope of the Attorney
General’s power under that statute. Based on what it regarded as the apparently plain
language granting “any alien” the right to apply for asylum, the Eleventh Circuit
questioned the proposition that, as a matter of law, parental consent is required. The
Eleventh Circuit also questioned whether a decision to treat Elian’s application as a nullity
comported with the congressional directive to establish procedures for considering asylum
Nevertheless, the June 1, 2000, ruling by the Eleventh Circuit agreed with Judge
Moore’s legal conclusions and much of his reasoning. The court did find that the “any
alien” language in the asylum provision of the INA clearly covered 6-year olds, but it also
went on to state that the important question was not whether Elian could apply. Rather,
according to the court, the critical question was whether Elian had applied, for purposes
of the statute, when he and his Florida relatives offered applications over the express
wishes of Elian’s father.
The Eleventh Circuit emphasized that the INA does not command how an alien can
apply for asylum, and from that gap springs executive discretion. Citing the broad
discretion implementing agencies generally have in administering a statute under their
charge (see Chevron v. N.R.D.C., 467 U.S. 837 (1984)), and immigration authorities in
particular (see INS v. Aguirre-Aguirre, 526 U.S. 415 (1999)), the court held that INS did
not act unreasonably in deciding that 6-year olds lack capacity to seek asylum on their own
and that only parents can seek asylum for them, absent special circumstances. That this
policy was first adopted in the Gonzalez case and, then, during the course of informal
adjudication was not persuasive to the court. Nor was the fact that the policy did not
harmonize with earlier INS interpretive guidelines on child asylum cases. Instead the court
stressed INS efforts to investigate the nature of Elian’s relationship with his father and the
conditions Elian likely would face if returned to Cuba.
The court repeatedly observed that its decision rested on the deference due INS
because neither the phrase “any alien” nor any other statutory provision compelled a
particular policy on accepting asylum applications from 6-year old minors. On the other
hand, judicial opinions do not always accord INS such broad leeway in interpreting the
INA. Instead, courts at times have read the asylum provisions to circumscribe
administrative discretion. For example, § 208 directs the Attorney General to “establish
a procedure for the consideration of asylum applications . . . .” Several U.S. courts of
appeals have concluded that the “a procedure” language precludes the Attorney General
from adopting separate asylum procedures for stowaways.
The Eleventh Circuit ended its June 1 opinion with a footnote imposing a 14-day
deadline on seeking a rehearing en banc by the full court. Under the federal rules of
appellate procedure, the court’s final mandate issues 7 days after the filing period, though
the mandate may be further stayed if a rehearing request is filed. It thus appeared that
Elian’s removal to Cuba would remain barred until at least June 22, but that longer delays
would be at the discretion of the courts and administrative authorities in the context of
further appellate litigation, if any.
The Eleventh Circuit had its last say in Elian’s case on June 23. Then, it denied
requests to consider the case further. In doing so, the court reiterated that the “informal
adjudication” approach taken by INS was due judicial deference, especially because of the
foreign policy considerations at stake. The court further held that its final mandate in the
case, and the concomitant dissolving of its earlier injunction, would issue June 28 at 4:00
p.m., Atlanta time. The Supreme Court announced mid-day on the 28th that it would not
exercise its discretion to consider the Gonzalez matter, and by 4:30 that day, Elian had
departed for Cuba.
Custody controversy. When the Eleventh Circuit temporarily enjoined Elian’s
removal from the U.S. on April 19, 2000, those who supported Elian remaining in Florida
celebrated. As they celebrated, however, the Attorney General asserted that the Eleventh
Circuit’s injunction did not directly preclude her from seeking to reunite Elian with his
father at some location in the U.S. Early on April 22 – within days of the Eleventh
Circuit’s ruling – armed federal agents forcibly removed Elian from the Florida house
where he had been staying. Elian then was flown to Andrews Air Force Base near
Washington, D.C., and entrusted into the care of his father, with whom he remained.
When Elian initially arrived in the U.S., immigration authorities, in compliance with
policy on unaccompanied minors and in recognition of the exigencies in the case, decided
to parole Elian into the U.S. for deferred inspection – i.e., for future determination of his
status under immigration law. Federal regulations on releasing minors on parole give top
priority to parents for the care of the parolee, going so far as to allow a parent abroad to
designate a person in the U.S. for care in certain circumstances. In unusual or compelling
circumstances, however, a minor parolee may be entrusted into the care to an adult other
than a close relative or guardian if the adult agrees to care for the minor and to present the
minor to immigration authorities for further proceedings.
The parole authority under the INA is broad and highly discretionary. The Attorney
General (or her designee) may set “such conditions as [s]he may prescribe” on release on
parole. Moreover, an alien on parole remains in the constructive custody of immigration
authorities, and immigration authorities retain general power to terminate parole,
especially where parole conditions are violated.
In Elian’s case, immigration authorities revoked his parole into the care of his Florida
relatives on April 13 after they refused to return him to them at Opa-locka Airport in
Florida. Thus, legal care of Elian reverted to the Government, even though he physically
remained with his Florida relatives while transfer negotiations continued. After negatively
judging the prospects for successful negotiations, immigration authorities obtained a
search warrant for Lazaro Gonzalez’ house from a federal judge on the evening of April
21, citing federal criminal rules that authorize the issuance of search warrants to seize
unlawfully restrained persons. The same day, immigration authorities also issued an
administrative warrant for Elian’s arrest.
These steps notwithstanding, many congressional and legal observers questioned the
forcible transfer of Elian to his father. One legal scholar opined that the Government failed
to obtain sufficient judicial authorization. Other observers questioned whether the federal
officers who seized Elian acted in an appropriately restrained manner. Still others asked
whether the federal transfer of Elian to Juan Miguel could have improperly influenced the
outcome of a case to which the Federal Government was a party. Nonetheless, the June
1 ruling upholding the INS requirement of Juan Miguel’s consent to asylum eclipsed the
controversy over Elian’s seizure, and the Government’s actions in regaining Elian from his
relatives care were never subjected to extended judicial scrutiny.