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Gonzalez Decision May Hurt Other Refugee Children

New York, NY

Women's Commission for Refugee Women and Children Expresses Concern Over U.S. District Court Decision

New York, New York - March 21, 2000- The Women's Commission for Refugee Women and Children expressed concern that today's decision by the U.S. District Court for the Southern District of Florida in the case of Elian Gonzalez leaves a troubling level of discretion in the hands of the Attorney General to decide when refugee protection is available to young children. Mary Diaz, Executive Director of the Women's Commission, commented, "This decision could have devastating effects on other refugee children who make their way to the United States. Unfortunately, today's world can be an evil place for children, who are increasingly subject to human rights abuses and targets in armed conflict. It is essential that the U.S. asylum process remain as open to children fleeing persecution as it is to adults."

Elian Gonzalez, a six-year-old Cuban boy, was paroled into the United States in November 1999 after the boat carrying him and his mother and stepfather capsized. Elian lost his mother and stepfather in the accident. Since his arrival, his father and the Cuban government have insisted that Elian be returned to Cuba, while his relatives and the Cuban-American community in Miami have insisted that Elian be allowed to pursue a claim to asylum.

In Gonzalez v. Reno the U.S. District Court found that the Attorney General retains discretion to determine which individuals can apply for asylum in the United States. The Court further determined that U.S. immigration law makes special provisions for children in certain circumstances. From this it concludes that it was not an abuse of the Attorney General's discretion to conclude that Elian Gonzalez lacks the capacity to file an asylum application and therefore his father could withdraw the application.

Wendy Young, Washington Liaison and director for the Women's Commission Detention and Asylum Project, observed, "It seems the Court is trying its best to ensure Elian is reunited with his father--and that may be in his best interests at the end of the day. But we're afraid this decision reaches too far and could have a ripple effect on other children's cases. We fear it will hinder protection of our youngest asylum seekers. We owe it to children to make sure that the system is as child-friendly as possible. I'm sure no one wants to return kids to situations in which their well-being or even their very lives could be in jeopardy."

The U.S. Immigration and Naturalization Service (INS) recently released statistics that show that last year it had more than 5,600 children seeking asylum in its custody. Ms. Young noted, "The vast majority of these children go through our immigration system without the help of one lawyer, let alone the five that Elian has. For a federal court to say that the Attorney General has the authority to exclude children from access to the U.S. asylum process could set a troubling precedent. What about those kids who are being abused, sold as sexual slaves or threatened with female genital mutilation by their parents? This decision gives the green light to the INS to return such kids with no consideration of their need for protection. These are just some of the kinds of abuses inflicted on children."

The federal court decision, moreover, calls into question advances made in the protection of children asylum seekers in recent years. In December 1998, the INS issued "Guidelines for Children's Asylum Claims." These Guidelines for the first time acknowledged the special needs of children seeking asylum and laid out procedural and evidentiary standards for adjudicators to follow in order to reach appropriate decisions in children's asylum claims. The guidelines provide guidance in working with even the youngest of children and call for the appointment of a "trusted adult" to help unaccompanied children.

The federal court also acknowledged that children may benefit from the assistance of an adult, noting, "The participation of a non-parent next friend should give the Court some pause, but may be appropriate in certain circumstances." The Women's Commission has recently been working with the Department of Justice to establish a guardian-like program for children in immigration proceedings to ensure that unaccompanied children fully appreciate the proceedings in which they have been placed, can articulate their own desires for the future, and that the Court reaches a decision that is in the best interests of the child.

The Women's Commission is a non-profit organization dedicated to improving the protection of and assistance to refugee women and children around the world. Women and children make up 80 percent of the world's refugees, with children representing 52 percent.