Ok, this might seem a trite question to some, but I am really curious to know if this Elian Gonzalas actually has civil rights under the US constitution.
He’s not an American citizen, so wouldn’t he have some limits to the rights that he’s accorded?
The Turtle Moves
I think that is the whole problem. There are certain rights that are considered “inalienable” (I think that is the word), or otherwise rights that exist to everybody.
The question in my mind is whether his right to freedom supercedes his father’s right to raise his son.
I’d like to know that too.
The Turtle Moves
It’s not a trite question at all, but a very interesting question at the intersection of international and U.S. Constitutional law. I don’t know all of the answers, but I have a bit of a handle on some of them.
Everybody in the United States has civil rights under the U.S. Constitution. With fairly limited exceptions, everyone in the U.S. gets the all of the major civil rights without regard to immigration status (e.g. due process, Constitutional criminal law rights, etc.). In fact the U.S. Supreme Court has held that public schools are required to educate children who are illegal immigrants.
Different rules apply, however, at border crossings. Until someone has officially crossed into the U.S., that person is not considered in the country. For instance, if you flew into the U.S., you wouldn’t be considered in the country until you had passed through immigration and customs. (As an aside, there was a story about a woman who had a baby after her plane touched down at JFK, but before clearing immigration. The baby was not considered a U.S. citizen, as are all children born in the U.S., because the mother was not considered in the country when the kid was born.)
Well, from what I’ve read, Elian is in the status of someone at a border crossing. Though he was given paroled to physically come into the country, he is still legally in a state of legal limbo. I believe that is why the INS has legal control over him. As such, he has very limited legal rights.
He does, however, have the right to apply for asylum. I believe that anyone getting to a border crossing has that right. (This is one reason that when the Coast Guard intercepts people at sea, it likes to send them back to their country of origin rather than landing them in the U.S.) Now if he were an adult, he could just apply for asylum, and because he’s from Cuba, would most likely get it easily.
The problem is that he’s six years old. By any standard, that’s much too young to make a legal decision. (If he were, say, fifteen, he probably would be able to make the decision on his own, though he might have to have a legal guardian file on his behalf.)
Now given that we have this six year old kid at a border crossing, the question becomes who gets to decide whether he should apply for asylum. That’s what the litigation going on in federal court right now is about. Elian’s Miami relatives have submitted asylum papers on his behalf. The INS rejected them, saying that the Miami relatives were not legal guardians and therefore did not have legal standing to submit the papers.
The Miami relatives sued in federal court to have the application accepted. The district court held that under international law, the custody of a child (and therefore the right to make these legal decisions) goes to the surviving parent. Accordingly, his father has the right to decide whether Elian should apply for asylum, and no one else can do so on his behalf.
Well, the Miami relatives have appealed this decision to the Court of Appeals, and this is the decision everyone is waiting for.
So, in short, Elian has the right to apply for asylum, but his legal guardian, his father, has decided for him that he will not exercise that right. Accordingly, the INS has decided that he should be returned to the custody of his father in Cuba.
Hope this helps.
Bill
You don’t have a thing to worry about. I’ll have the jury eating out of my hand. Meanwhile, try to escape.
Sig by Wally M7, master signature architect to the SDMB
That does clear up several of the issues I was wondering about.
Thanks Billdo!
