Some thoughts on Elian Gonzalez - Immigration Corner

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 to the Elian Gonzalez affair:

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 misrepresentation (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.

After the raid on the Miami relatives' 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.

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.

Michael J. Gurfinkel has been an attorney for 20 years. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. He is also a member of the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association.

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