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8 U.S.C. § 1252(b)(4)(D) provides: “Except as provided in paragraph (5)(B) […] (D) the Attorney General's discretionary judgment whether to grant relief under section 1158(a) of this title shall be conclusive unless manifestly contrary to the law and an abuse of discretion.”
Plaintiff minor Elian Gonzalez was five years old when he was rescued by the United States Coast Guard from the Atlantic Ocean off the southeastern coast of Florida. Elian was placed in the care of his paternal great uncle, Lazaro Gonzalez. Minor's father Juan Gonzalez requested that his son be returned to Cuba, alleging that his son was taken out of the country in an illegal manner and without his consent. Lazaro filed an asylum application on minor's behalf. INS denied the asylum application, interpreting Juan’s repeated requests for the return of the child as a request to withdraw Elian’s application. It also refused to recognize Lazaro as Elian’s representative. Thus, Lazaro (on behalf of Elian) filed the instant lawsuit, alleging that the INS lacked the authority to reject the asylum applications and was required--by federal statutes and regulations--to accept and adjudicate those applications. Defendants filed a motion to dismiss the action or, alternatively, to grant summary judgment.
Did the Attorney General act within her discretion in determining, as a matter of law, that Juan is Elian’s sole authorized representative for asylum matters?
Faced with an unprecedented set of circumstances--including a six-year-old child who had recently lost his mother, a father who had indicated (prior to his son's application for asylum) that he opposed any potential application for admission or asylum, the fact that the INS had conducted two in-person interviews with the father and had found no evidence of abuse, and principles of international standards that support the presumption that a parent speaks for his or her child--the Attorney General found that the INS Commissioner had correctly concluded that the wishes of Juan Gonzalez properly had been granted. In her decision, the Attorney General concluded that Elian is not competent to demonstrate an "intention to apply for asylum," and that "under universally accepted legal norms," Elian’s father should speak for him. The Attorney General's finding of incompetency on the part of Plaintiff, much like a federal court's determination of a prospective witness's capacity or competency to testify, is a threshold matter in need of resolution prior to the processing of Plaintiff's application. And like such determinations in federal court, the Attorney General's finding as to Plaintiff's competency is best characterized as a question of law. Under the facts alleged, and based on the nature of the issue of capacity to apply for asylum considered by the Attorney General--specifically its character as a question of law--the Attorney General's decision was controlling.