Gonzalez ex rel. Gonzalez v. Reno, 00-206-CIV.

Citation86 F.Supp.2d 1167
Decision Date21 March 2000
Docket NumberNo. 00-206-CIV.,00-206-CIV.
PartiesElian GONZALEZ, a minor, By and Through Lazaro GONZALEZ, as next friend, or, alternatively, as temporary legal custodian, Plaintiff, v. Janet RENO, Attorney General of the United States; Doris Meissner, Commissioner, United States Immigration and Naturalization Service; Robert Wallis, District Director, United States Immigration and Naturalization Service; and United States Immigration and Naturalization Service; and United States Department of Justice, Defendants.
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida

Kendall Brindley Coffey, Miami, FL, Jose R. Garcia-Pedrosa, Ruden McClosky Smith Schuster and Russell, Miami, FL, Spencer Eig, Miami Beach, FL, Barbara Lagoa, Eliot Pedrosa, Judd J. Goldberg, Greenberg Traurig Hoffman Lipoff Rosen, Miami, FL, Linda Marguerite Osberg-Braun, Roger Alfred Bernstein, Hackley Bernstein & Osberg-Braun, Aventura, FL, for Plaintiff.

Thomas E. Scott, U.S. Atty., U.S. Atty's Office, Dexter Lee, Asst. U.S. Atty., Miami, FL, Thomas W. Hussey, Director, David J. Kline, Deputy Director, David W. Ogden, Acting Asst. Atty Gen., Patricia L. Maher, Deputy Asst. Atty. Gen., William J. Howard, Sr. Litigation Counsel, Jocelyn M. Wright, Sr. Litigation Counsel, Russell J.E. Verby, John P. Moran, Michelle Gorden, Trial Attys., Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, DC, for Defendant.

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the Court upon Defendants' Motion To Dismiss or Alternative Motion for Summary Judgment (DE # 22, filed January 26, 2000).1

UPON CONSIDERATION of the Motion and the pertinent portions of the record, and after a hearing on March 9, 2000, at which the parties presented oral argument, the Court enters this Order, which is outlined below as follows.

The Order is presented in four parts. In Part I of the Order, the Court sets forth the factual background leading to the filing of the Complaint in this case. Part II concerns this Court's subject matter jurisdiction over Defendants' claims, as well as the related issues of Plaintiff's standing to bring suit, real party in interest, capacity, and next friend status. In Part III, the Court addresses the merits of each count set forth in the Complaint. Part IV provides a conclusion.


The facts of this case are presented here in summary fashion. On November 25, 1999, the United States Coast Guard intercepted two fishermen who had rescued five-year-old Elian Gonzalez ("Plaintiff")2 from the Atlantic Ocean off the southeastern coast of Florida. The Coast Guard transported the boy, whose mother perished during the voyage from Cuba to the United States, to a local hospital. Later that day, the United States Immigration and Naturalization Service ("INS") granted Plaintiff a temporary deferral of his inspection and placed him in the care of his paternal great uncle, Lazaro Gonzalez, who resides in Miami, Florida.

On November 27, 1999, Plaintiff's father, Juan Gonzalez,3 sent a letter to the Cuban government requesting that his son be returned to him in Cuba. The letter stated that Plaintiff, who was born and had been raised in Cuba, "was taken out of [Cuba] in an illegal manner and without [Juan Gonzalez's] consent." Letter from Juan Gonzalez to Felipe Perez Roque, Minister of Foreign Relations of 11/27/99, Defendants' Notice of Filing Record and Exhibits, at 110 (English translation). The request was forwarded to the United States interests section in Havana that same day, and then to the INS. In a letter to Juan Gonzalez dated December 8, 1999, Robert Wallis, INS District Director, outlined the documentation required by the INS in order to release Plaintiff to his father's custody.

Two days later, an application for asylum for Plaintiff was submitted to the INS, signed by Lazaro Gonzalez. The alleged grounds for asylum were membership in a particular social group and/or political opinion.4 Shortly thereafter, another application — identical to the first — was submitted with Plaintiff's own printed name. On January 10, 2000, a Florida state court granted Lazaro Gonzalez "limited legal authority ... to assert and protect such rights as the child may have under United States immigration law."5 Lazaro Gonzalez then filed another asylum application on Plaintiff's behalf.

In the interim, an INS official conducted two interviews with Juan Gonzalez in Havana and obtained documentation of his request that Plaintiff be returned home to Cuba. During the first of those interviews, on December 13, 1999, Juan Gonzalez read from a handwritten statement and asked that any application for admission to the United States on his son's behalf be withdrawn. Silma L. Dimmel, Officer-in-Charge for the INS in Havana, conducted the interview in Spanish at Juan Gonzalez's home. Report of Interview with Juan Gonzalez, Defendants' Notice of Filing Record and Exhibits, at 48. When asked for his preference regarding Plaintiff, Juan Gonzalez stated the following:

Elian, at the age of six, cannot make a decision on his own.... I'm very grateful that he received immediate medical assistance, but he should be returned to me and my family. As for him to get asylum, I am not allowing him to stay or claim any type of petition; he should be returned immediately to me.

id. at 50.

During the interview, Juan Gonzalez also stated that Plaintiff "practically lived with me since he attended school closer to my residence [than to the residence of Plaintiff's mother]," and Plaintiff's paternal grandmother had cared for the boy while the parents worked. Juan Gonzalez asserted that he had been unaware that Plaintiff's mother was taking Plaintiff to the United States. He also stated that he wanted no claim or petition raised on Plaintiff's behalf, that Plaintiff's paternal relatives living in Miami have "no rights over Elian," and that he did "not want any law firm to represent Elian." Juan Gonzalez also expressed concern that Lazaro Gonzalez is "under pressure" and "unable to back off because of the circumstances of what could happen." Id. at 49-54.

In order to address concerns that the oral discussion might be monitored by external sources, the INS official provided Juan Gonzalez with a short written list of questions and possible answers for him to complete. His answers indicated that he felt he could "speak freely" and that it was his desire that Plaintiff "should return to Cuba." Id. at 57.

On December 20, 1999, officials from an INS District Office met with Lazaro Gonzalez, his daughter who resides in his home, and several attorneys. One of the INS officials present, Jorge L. Roig, Port Director for the INS at the Port of Miami, spoke directly with Lazaro Gonzalez and prepared a report of the interview (which was not recorded). According to Lazaro Gonzalez, Juan Gonzalez said that "if the boy made it to this country safe and sound that we should protect him by whatever means available." Declaration of Jorge L. Roig, Defendants' Notice of Filing Record and Exhibits, at 221. He also asserted that Juan Gonzalez is "under pressure" from the Cuban government, and that "whoever knows about the Castro system, knows this is how it works there." Id. When asked about any specific or objective reason to believe that Plaintiff would be harmed if he returned to Cuba, Lazaro Gonzalez stated that "everything he has, if he goes back, it's all changed," and that Plaintiff's "activities here are different from those that he would have over there." Id. at 222.

Subsequent to the meeting, attorney Roger Bernstein sent a letter to the General Counsel of the INS, claiming that in light of the "endemic and gross violations of human rights which exist in Cuba," Juan Gonzalez is not able to express his true wishes regarding Plaintiff "without dire repercussions to his person and family." Letter from Roger Bernstein to Owen Cooper, General Counsel, INS of 12/27/99, Defendants' Notice of Filing Record and Exhibits, at 225-26. Mr. Bernstein offered to provide written affidavits to support his assertions that Juan Gonzalez's movements are restricted, that his "tone drastically changed" in conversations with Lazaro Gonzalez, and that the Cuban government had "harassed" Plaintiff's mother. Id.

On December 31, 1999, the INS official in Havana again met with Juan Gonzalez — this time to "clarify some of the answers provided" during the first interview. Declaration of Silma L. Dimmel, Defendants' Notice of Filing Record and Exhibits, at 229. During this meeting, which took place at the private residence of a United Nations official, Juan Gonzalez completed another written questionnaire, indicating that his actions were not restricted and that he did not want Plaintiff to stay in the United States. Id. at 231 (English translation). He expressed offense that the INS was "questioning my paternity over others that have no rights .... [and] giving more rights to others ... although they have no authority over Elian." Id. at 241.

The General Counsel for the INS prepared a Memorandum, dated January 3, 2000, which cited pertinent cases from the United States, as well as provisions of Cuban law, and expressly considered the following question: "May Plaintiff apply for asylum in direct opposition to the expressed wishes of his father?" Memorandum from Bo Cooper, General Counsel for Doris Meissner, Commissioner of 1/3/00, Defendants' Notice of Filing Record and Exhibits, at 7-17. The Memorandum addressed Florida law on the competency of a minor to enter into a contract and noted that the INS "generally assumes that someone under the age of 14 will not make representation or other immigration decisions without the assistance of a parent or legal guardian." Id.

In light of the attorneys' concerns regarding the voluntariness of Juan Gonzalez's statements, and a "general understanding of the practices of the...

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