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SOME THOUGHTS ON ELIAN GONZALEZ
by Michael J. Gurfinkel, Esq.
The entire United States, as well as the rest of
the world, were captivated and mesmerized over the INS' raid on
the home of Elian Gonzalez' Miami relatives, in order to reunite
the little boy with his father. Talk shows, news reports, and
front page newspaper stories of this event overshadowed all other
world events, with people having different opinions, and taking
different positions concerning INS' actions.
For purposes of this article, I express no opinion,
and take no position, concerning the rationale or justification
of INS' actions. However, here are some observations concerning
these events, which may ultimately benefit immigrants as a result
of the Elian Gonzalez affair:
FAMILY SEPARATION CAUSES EXTREME HARDSHIP
Attorney General Janet Reno declared from the outset
that, "This boy belongs with his father". Indeed, the
raid on the Miami relatives' home by armed federal agents was
conducted so that the INS could reunite this child with his parent.
Therefore, the Attorney General of the United States has declared,
in the strongest possible terms, the "extreme hardship"
that results from a family being separated. The example and position
taken by the Attorney General of the United States concerning
the pain and anguish caused by family separation, is invaluable
in other areas of immigration law.
For example, if a person makes certain misrepresentations
(i.e. assumed name entry, photo- substituted passport), they are
ineligible for a visa, unless they can establish "to the
satisfaction of the Attorney General" (Janet Reno) that
the refusal to grant a visa or green card would result in "extreme
hardship" to the alien's spouse or parent who is a citizen
or green card holder. Many aliens sought to obtain this "fraud
waiver" by demonstrating the hardship on these qualifying
relatives, caused by the potential family separation. However,
some INS officers took the position that "mere family separation"
is not enough to constitute "extreme hardship."
However, Attorney General Janet Reno ordered armed
Federal officials to raid the Miami relatives' home, so that this
child could be reunited with his father. She obviously believes
that family separation does cause extreme hardship, and
she took these measures to avoid family separation. In Elian's
case, the father was separated from his son for about five months.
Denial of fraud waivers by INS officers would sometimes result
in a lifetime separation. Therefore, Attorney General Janet
Reno (the INS' boss), believes family separation causes extreme
hardship.
KINDER, GENTLER REPUBLICANS
After the raid on the Miami relative's home, various
Republican Congressional leaders strongly criticized the Clinton
Administration over what they termed "strong-arm" enforcement
tactics by the INS. However, it was these very same Republicans
who, in 1996, spearheaded and passed the Illegal Immigration Reform
and Immigrant Responsibility Act (IIRAIRA) of 1996. This was one
of the most harsh changes in immigration law, eliminating various
forms of waivers (or forgiveness), limiting the scope of judicial
review of INS actions, permitting summary/expedited removal (deportation)
of certain aliens by INS, retroactively applying certain laws
to crimes committed years ago, etc.
In other words, the Republicans had, in the past,
taken a very tough and harsh approach to immigration enforcement.
Now, from the various comments of Republicans, they seem upset
over INS enforcement of immigration laws. They can also see the
harsh consequences of many of these laws. We should hope that,
as a result of the Elian Gonzalez affair, Republicans and Democrats
will lead the way in amending or changing many of these harsh
laws from IIRAIRA.
KINDER, GENTLER INS
Many people, including Republicans, criticized the
INS over its handling of the Elian Gonzalez affair. They now call
for Congressional hearings to examine INS' policies, tactics,
and enforcement procedures. Recently, there was a similar call
for Congressional hearings concerning tactics, policies, and procedures
of the Internal Revenue Service, resulting in IRS rethinking the
way it deals with people and cases. If there are such Congressional
hearings concerning INS, perhaps there may be changes in the INS,
the same way that there were changes within the IRS.
The bottom line, is no one knows, as yet, how Elian
Gonzalez' situation will ultimately turn out. However, let's hope
that these events help trigger changes which will benefit INS,
politicians, and most of all, the immigrant population.
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