What the U.S. Court of Appeals Said

"[N]ever have INS officials attempted to interview Plaintiff [Elian] about his own wishes….It does not appear that the INS ever spoke to or interviewed Plaintiff [Elian] before making this determination."

INS’ own regulations require that it should have interviewed Elian.

"The [INS] Guidelines provide asylum officers with information about how to talk to and interview a young child about his asylum application. The Guidelines repeatedly stress that the kind of questions which should be asked and the kind of answers which should be expected varies according to the age of the applicant and that special care should be taken when interviewing young children. The Guidelines also say that ‘Asylum Officers should not assume that a child cannot have an asylum claim independent of the parents…’" 

INS’ regulations even instruct its officials on how to interview children.

"[The INS Guidelines have instructions on how to] discuss the three age-based developmental stages of children (0-5, 6-12, 13-18 years old)…Notably, the training guidelines provide an example of a statement from a six-year-old child and provide information which can be used to assess statements by children of that age."

The INS did not follow the law when Janet Reno decided that the father is the only proper person for it to choose.

"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 facts – 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."

This Court will not grant INS’ request that custody be given to the father and it is anticipated that the boy will stay in Miami until an expedited hearing is held before this Court during the week of May 8 -- unless the INS agrees to the arbitration procedures available in the Court and a change in custody is agreed upon by the parties, i.e., Elian and the INS.

"The INS, in its response to Plaintiff’s motion, said it would consent to an injunction requiring the INS to bar Plaintiff’s departure from the United States if this Court also entered an order directing Lazaro Gonzalez to present Plaintiff to the INS, as directed by the INS, for transfer of care to Plaintiff’s father. We decline to proceed in that manner….

"To decide Plaintiff’s motion and to preserve his right to a day in court, we need only address the issue of Plaintiff’s removal from the country. We need not decide where or in whose custody Plaintiff should remain while this appeal is pending. This Order only prevents Plaintiff’s removal from this country….Plaintiff, in his reply brief, requested that this Court order mediation in this case. Although we may direct the parties to participate in mediation…we choose not to do so at this time. Nevertheless, we encourage the parties to avail themselves voluntarily of this Court’s mediation services."
 

Photocopy version of document available from CNN
 

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