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UNITED STATES DEPARTMENT OF JUSTICE
Jeffrey M. Leving
Law offices of Jeffrey M. Leving, Ltd.
19 South La Salle St., Suite 450
Chicago, IL. 60603
(312) 807-3990
Brief of Amicus Curiae
Comes now American Coalition for Fathers & Children (hereinafter "ACFC") and submits this Brief of Amicus Curiae in the matter of Elian Gonzalez Brotons (Elian Gonzalez), a minor child citizen and national of Cuba. ACFC is a national nonprofit organization whose objective is to advocate for equal rights for all parties affected by the break up of the family. ACFC is particularly interested in protecting the rights of fathers who seek to maintain their vital role as parent and primary caregiver to their children. The organization was formed in December of 1996 and presently has over 15,000 members. ACFC's mission is to keep fathers actively involved in their children's lives, due to the catastrophic personal and social costs of fatherless homes. More than any other single factor, economic or social, the absence of active fathers in the home is the greatest indicator of future adjustment problems for children. ACFC works to help protect father's rights in a legal system where the inherent bias effectively removes one parent, typically the father, from the life of the children.
ACFC files this amicus curiae brief to support the right of Juan Miguel Gonzalez Quintanas to regain custody of his minor child, and the right of the minor child to be reunited with his father, half-sister and grandparents. Mr. Gonzalez, the only surviving parent of Elian Gonzalez, resides in Cuba. Elian Gonzalez' family and friends are in Cuba. In fact, Elian has captured the hearts of the Cuban people, and a broad familial and societal network is in place in his home country to provide every possible support. It is because of these factors that ACFC strongly supports the return of Elian Gonzalez to his father, and to his home.
I. Statement of Facts
On November 22, 1999, Elian Gonzalez was taken by his mother and her boyfriend on a dangerous journey from Cuba to the United States. Elian was taken without his father's knowledge or consent, even though the father has joint custody of him pursuant to the terms of the parents' divorce. Elian's mother and boyfriend died during the voyage, and Elian was found clinging to a rubber tire in the sea near the city of Miami.
Mr. Gonzalez immediately requested the return of his son. He never consented to the departure of his son, particularly by such illegal and dangerous means. Mr. Gonzalez, who resides in Cuba, has always played an active part in Elian's life. In the shared custody arrangement Mr. Gonzalez had with Elian's mother, he routinely cared for the child after school during the week and overnight on weekends. He did this to accommodate her work schedule. Elian's only sibling, his half-sister, resides in Cuba with his father and stepmother. Moreover, both sets of Elian's grandparents, maternal and paternal, live in Cuba and seek the boy's return.
Neither Mr. Gonzalez nor any of his family in Cuba fear for Elian's safety when he is allowed to return home. Nor does his family fear harm to themselves. On the contrary, the plight of young Elian has elicited the greatest sympathy from the Cuban people and their government. It has become a national cause to reunite father and son. Cuban government officials, Cuban citizens, and the Gonzalez family have all publicly proclaimed their desire to secure the return of Elian Gonzalez to his home and family. Futhermore, the international community and the weight of public opinion in the United States both call for the return of Elian Gonzalez.
However, Elian Gonzalez is still in the United States, and has not been released to his father - his only surviving parent. Apparently, there has been an application for political asylum filed for him, allegedly on his behalf. This brief of amicus curiae addresses not only why political asylum under U.S. immigration law is not appropriate in this case, but also the general humanitarian reasons to return Elian Home. ACFC urges the Service to consider this brief at the deferred inspection hearing for Elian Gonzalez and during its deliberations of the issue of political asylum.
II. Argument
A. Careful consideration of the facts and circumstances of this case prove that Elian Gonzalez does not qualify for Political Asylum, Withholding of Removal or Relief under the Convention Against Torture (CAT). First of all, there is simply no standing for any person in the United States to file an application for political asylum on Elian's behalf. He may have an independent claim to political asylum, but no extended family member or friend has the legal standing to bring it for him. Certainly his father has not sought this relief for Elian. Therefore, any claim brought by someone other than Elian himself must be dismissed for lack of standing. Moreover, while those who have filed the pending asylum claim for Elian Gonzalez may have laudable motives, the fact that cannot be ignored is that Elian does not qualify for Political Asylum, withholding of removal or CAT relief. Both the relevant law and the Service's own adjudication guidelines dictate that any such claim be denied.
On December 10, 1998, the Service issued is seminal "Guidelines for Children's Asylum Claims" (the Guidelines) (Reprinted in 76 Interpreter Releases, Appendix 1, January 4, 1999) If the Service follows these guidelines, the asylum claim must be denied. Two important themes are stressed in the Guidelines. First, there is simply no way around the fact that the child's claim must meet the substantive criteria of the law.
In order to be granted asylum in the United States, the child applicant must establish that he or she meets the definition of refugee contained at Section 101(a)(42)(A) of the Immigration and Nationality Act, as interpreted by Board and Federal Court precedent. Regardless of how sympathetic the child's claim may be, he or she cannot be granted asylum unless this standard is met. Consequently, the "best interests of the child" principle, while useful to the interview process, does not replace or change the refugee definition in determining substantive eligibility.
Guidelines, at pp. 17-18.
The internationally recognized "best interests of the child" principle is a useful measure for determining appropriate interview procedures for child asylum seekers, although it does not play a role in determining substantive eligibility under the U.S. refugee definition.
Guidelines, p. 6
In order to be classified as a "refugee", a person has to meet the numerous elements set forth in the Immigration and Nationality Act (INA) definition of that term. Section 101(a)(42)(a) of the INA defines a refugee as a person unwilling or unable to return to his home country "because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." INA 101(a)(42).
First, in order to qualify for asylum, the harm that Elian may fear must be serious enough to rise to the level of persecution. The Board of Immigration Appeals (BIA) has interpreted persecution to include threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom. Matter of Acosta, 19 I&N Dec. 211,222(BIA 1985). However, persecution does not encompass all unfair or harsh treatment. Matter of V-T-S, Int.Dec.3308(BIA 1997). The Board has further held that, "generally harsh conditions shared by many other persons" do not amount to persecution. Acosta 19 I&N Dec. at 222.
There can be no allegations of past persecution according to the above standard, and furthermore no credible fear of future persecution. In light of the actions and public statements of both the boy's father and the Cuban government, there is no reason to fear torture, threats to life, confinement, or loss of liberty. The fact that Cuba may have a lower economic standard of living is not enough to constitute persecution; it would be the kind of condition common to many people in Cuba that Acosta held did not amount to persecution. Absent persecution, there can be no grant of asylum, withholding of removal or CAT relief.
The Guidelines warn asylum adjudicators to look to the circumstances of the parents and other family members when deciding the reasonableness of a child's fear of persecution.
Guidelines, p. 20.
In certain cases, the reasonableness of an applicant's fear of persecution can be reduced when his or her family remains in the home country unharmed after the applicant's departure. Matter of A-E-M-Int Dec.3338 (BIA 1998); Cuadreas v. INS, 910 F.2d 567 (9th Cir. 1990).
Mr. Juan Gonzalez is currently in Cuba, unharmed.
Not only must a successful claim to political asylum be based upon fear of persecution, the persecution feared must also be "on account of" one of the specified statutory grounds in INA 101(a)(42). See Guidelines, p. 21. Elian's Race and Nationality are common to most Cubans. At his young age, he cannot belong to any clearly definable social group; the law requires that any social group must be identifiable through common "immutable characteristics". Acosta 19 I&N Dec. at 233. His religion is not at issue. As a minor, it is also hard to fathom what political opinion he can be said to hold, whether real or imputed, which places him in danger. The mere claims that Cuba is "a dangerous country" or that he would "be better off here" are not enough to support a grant of asylum relief.
Regarding withholding of removal, the potential case for Elian is substantially weaker even than for political asylum. While asylum only requires a reasonable fear of persecution, withholding of removal requires a showing of "clear probability" of persecution. Obviously, if he cannot prove asylum, he canot meet the tougher requirements of withholding of removal.
Finally, in order to prevail on a claim for CAT relief, Elian must show that he is likely to suffer torture, specifically at the hands of the Cuban government. Such a claim cannot be maintained due to the health and well being of his entire family in Cuba, coupled with the public statements of the Cuban government seeking the safe return of Elian Gonzalez. Again, the claim would have to show a clear likelihood of torture by the Cuban government. No such torture has been alleged by Elian in the past and it is not credible to believe that it will occur in the future.
B. The best interests of Elian Gonzalez compel his return to his father. The INS Guidelines for Children's Asylum Claims follow international law and procedures in other countries such as Canada in insisting that even when applying the "best interests of the child' standard, the principle of family unity is the foremost goal. The Guidelines indicate that the asylum adjudicator should be guided by international accords such as the United Nations declarations and conventions in this area. See Guidelines, pp. 2-3. The UNHCR Handbook states that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State. UNHCR Handbook, Chapter VI, para.181. The Handbook goes on to state the matter very specifically: It is obvious...that formal refugee status should not be granted if this is incompatible with [the applicant's] personal legal status. Thus, a dependent member of a refugee family may be a national of the country....[from which] asylum [is sought]....and may enjoy that country's protection. To grant him refugee status in such circumstances would not be called for. UNHCR Handbook, Chapter VI, para. 184
The ACFC strongly asserts that the best interests of the child in this case are to be reunited with his father, stepmother, half-sister and grandparents in Cuba. Both he and his family enjoy the protection of the country from which he seeks asylum. The government of Cuba is on record in the public forum and through communications the U.S. government that it would welcome Elian back. There is no credible fear of reprisal. Neither Elian nor Mr. Gonzalez is held to maintain any opinion, characteristic or belief, which would cause Elian to fear persecution in Cuba.
Numerous studies have been conducted in the social science community about the severe negative effects the absence of a child's father from his life can have upon his development. ACFC has compiled statistics on the effects of fatherless homes, all taken from official government sources and reputable research groups. A copy of ACFC's summary is included with this brief for the convenience of the service. However, a quick scan of the statistics raises severe concerns for Elian's well-being if he is not reunited with his father. For instance, children from fatherless homes are: 5 times more likely to commit suicide; 32 times more likely to run away; 14 times more likely to commit rape; 20 times more likely to have behavioral disorders; 10 times more likely to use drugs; 9 times more likely to drop out of high school; and 20 times more likely to end up in prison. (See attached ACFC fact sheet on the costs of father absence)
Therefore, any serious consideration of the best interests of Elian Gonzalez must take these factors into account. Elian is much more likely to overcome the trauma of the loss of his mother, much more likely to have a stable and loving home life, and much more likely to be a well adjusted adult if he is allowed to return to his home and father. No amount of material possessions in the United States can take the place of a boy's father.
The INS Guidelines on Children's Asylum Claims also gives practical guidance on the sources of information available to adjudicators and the methods of evidence intake. The guidelines warn that sometimes a young child who is being interviewed for asylum might be coached by adults to give a particular story, and that they relate the story for fear of angering the adults involved. Guidelines, p. 15. The Guidelines instruct adjudicators in such a circumstance to make sure to conduct a thorough review of the underlying merits. In the present case, Elian's situation has been highly publicized, and there are many interest groups who may pressure separation from his father. Apart from the child's verbal testimony, therefore, the Guidelines allow for evidence from family members and evidence from members of the child's community. Guidelines, p. 13.
Elian's family and community have spoken loud and clear that he be allowed to return to his father. Obviously, his father intends to remain in Cuba and does not fear harm to Elian or himself if he returns. He is willing and able to provide all the necessities of life for Elian. He will be surrounded by family and friends, and a familiar environment. In short, by looking at all the circumstances surrounding the case, it is clear that Elian has no claim to political asylum, and should be returned home to his family.
Conclusion
It is in Elian's best interests that he be reunited with his father and only surviving parent. Not only does no one have standing to bring any claim for political asylum on Elian's behalf; he does not qualify for said relief under the law. Fundamental principles of justice, the laws of the United States and international law all call for his return to Cuba. We therefore respe ctfully pray that Elian Gonzalez be released to his father as soon as possible, and for all other necessary relief.
Children Need BOTH Parents!
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