In November 1999, fourteen people tried to flee Communist Cuba in a small boat. Eleven of these people were drowned at sea. Six- year old Elian was one of three who survived and made it to America. After being guarded by a ring of dolphins for three days, the child was found clinging to an inner tube in the Atlantic Ocean in waters off the Florida Coast on Thanksgiving Day, the one day America sets aside to express Gratitude to God. And now, Attorney General Janet Reno is determined to place Elian back into the cuddling arms of Fidel Castro. In this, the woman has gone berserk, but she is not alone. The Journal's Elian Gonzalez Resource Center Norman Rockwell's Four - Freedoms Is there Anything Right about Returning a Runaway Slave?

     Many statements have been made in the press on the subject of the law in regards to Elian Gonzalez, most of it inaccurate. During most of the history of the mass media, people had no other choice but to sit there and be spoon fed in this manner with innaccurate generalizations. In other words, what ever was spooned out of the baby bottle, that is what they had to eat. And as they say, you are what you eat, and those unchallengeable inaccuracies would filter into the public mind and take up their positions in the organs of thinking as unchallengeable facts in the development of public opinion. And so it is now that a majority of Americans today believe Elian should be sent home to his father in Communist Cuba. Why? Because the mass media tells them that the law requires this. But this is false. And such a falsehood does not have to linger very long in the public mind in current atmoshpere of technological progress that we are experiencing in America today.

     Thanks to the Internet, anyone can go into the U.S. Code and read exactly what the law is regarding the issue of applications for asylum and the terms and conditions under which those applications are to be either approved or denied.

     This is not complex. Anyone who can read at the third grade level will be able to understand that Elian is home free, with the proviso that Elian himself wants to stay in America. If he wants to stay in America the law guarantees him the right to stay in America.

     Not only that. Anyone will be able to see that Attorney General Reno's assertion that the Federal Courts have no basis for judicial review over her decision to return Elian to Cuba are made up of the same baloney-like mind food. It is completely untrue. And just as importantly, review of the text of the law itself reveals that there is no entry point whatsoever for the voice of Elian's father. The law sets forth in stark detail the conditions that must be met for an alien to qualify for the right to apply for asylum, and the conditions that must be met for the application to be approved. What Elian's father has to say about it, one way or the other, has no role to play. One might believe that Elian's father should have a role. But that is distinctly different from the law providing a role. The law does not provide a role for Elian's father, as you will see with your own eyes as we look at the actual text of the law.

Links to Relevant Sections of U.S. Code Listing of all Titles in U.S. Code. Listing of all chapters in Title 8 Full structure of Title 8, Chapter 12 Full text of Section 1158

     Until the advent of the Internet, the only place where one could actually put one's hands on this multi-volume set of large books was in one of the larger local public libraries, or in a University Law library, or a law library associated with the county court in your area. This means that few Americans ever got to see a real federal law. That's going to change. We are entering an era where the public will no longer get bamboozled by the self-serving assertions of government bureaucrats. Now, everyone will be able to read the actual law for himself.

     If you will open and review each of the documents specified, as they are specified, you will be more able to easily follow this step by step discusssion. Be assured though, that I will quote the relevant sections of the U.S. Code in the body of the discussion at the appropriate places. Having these source documents open in additional browser windows will enable you to check the accuracy and the context of each quote.

     The part of the U.S. Code that deals with Elian is at the tail end of a particular chain of category layers as follows.

1. Overall the U.S. Code has 50 Titles. You can go to the listing of all titles here.

2. The Title we are interested in is Title 8 which deals with Aliens and Nationality.

3. The next organizational layer is composed of chapters. Title 8 has 15 chapters. You can go to the list of all chapters in Title 8 here.

4. Looking at this list of chapters under Title 8, we see that Chapter 12 deals with Immigration and Nationality. The full organizational structure of Chapter 12 can be seen here.

5. Each Chapter is further subdivided into subchapters. Title 8, Chapter 12 is divided into five subchapters, I, II, III, IV, and V. Scanning down through this document, we see that Subchapter II, of Chapter 12 deals with Immigration.

6. The next organizational layer is parts. Subchapter II of Chapter 12, is divided into nine parts. It is Part 1 of Subchapter II which deals with the Selection System.

7. And finally, or sort of finally, the next layer of organization consists of sections, which are the work horses of the Code. The section numbers are assigned in sequential order from the very beginning of the code to the very end, and are unique specifiers, in terms of the whole Code, no matter what Title or Chapter you are in. Part 1 in this case contains ten unique sections. And it is Section 1158 that deals with the subject of Asylum.

8. The full citation for the Asylum section would be, Title 8, Chapter 12, Subchapter II, Part 1, Section 1158. The full text of Section 1158 Asylum can be found here. This is the section of the law that describes Elian's rights as an alien.

      Now, Section 1158 - Asylum, is divided into four subsections as follows:

(a) Authority to apply for asylum
(b) Conditions for granting asylum
(c) Asylum status
(d) Asylum procedure

     The functional statements that define what rights Elian has are contained in the clauses and paragraphs that comprise each of these subsections.

     Section 1158, subsection (a) Authority to apply for asylum, is the first block of text that we need to read and understand. The Attorney General, at the behest of the Clinton Administration is denying Elian his right to apply for asylum under the law. Remember that temporary custody was granted to Elian's uncle, Lazaro Gonzalez, and an application for asylum was presented on Elian's behalf by that uncle. At the request of Elian's father in Cuba, Attorney General Janet Reno set aside that application, i.e. trashed it. As can be plainly seen from the text of the law, Attorney General Reno does not have the authority under the law to set aside Elian's application for Asylum. The following is the full text of subsection (a). We will re-quote individual clauses and paragraphs as necessary, also in blue boxes, as we proceed with the discussion.

     Note that subsection (a) Authority to apply for asylum is subdivided into three paragraphs as follows:

(1) In general.
(2) Exceptions.
(3) Limitation on judicial review.

     Please read each of these sections very carefully. You know that any judge who hears this case will do the same. And you get a bonus by making that effort here. If you read it carefully, and understand it, you will not be surprised when the first judge who hears the case rules in Elian's favor. You will be able to say, "Oh, of course, that's what the law says. I am not at all surprised that Attorney General Reno has been ordered to let Elian put in his application for asylum."

     Under paragraph (1) In general, we can see that Elian is exactly the kind of person that this text is referring to. Here is paragraph (1) In general: standing by itself:

     The operative phrase is this: "Any alien who is physically present in the United States." There are no exceptions contained within this operative phrase. And to further underscore this lack of any specified preconditions we take note of this phrase as well "irrespective of such alien's status". It does not differentiate between children, or adults. It is does not differentiate on account of sex, or race, or religion. There is no question at all that Elian falls under the meaning of paragraph (1).

     The only thing in that phrase that might be open to technical interpretation is the word "alien." Perhaps General Reno thinks a person has to be from outer space before this will apply. If she believes that, the law provides a ready solution to resolve such a controversy. And this is an important principle.

     But for now, concerning what is meant by the word "alien", we will quote verbatim from Section 1101 (a) (3):

     This is not a partial quote. It is the whole quote. And we can see that this would include a person from outer space, if they were an actual person. But we also see that there is nothing here to exclude Elian. Elian is a person, and he is not a citizen of the United States, so therefore, he is an "alien" under the law.

     If one spends the time to read through it all, one might note that there are several paragraphs within Section 1101 Definitions, that speak about children, and speak about juveniles, and the authority of the Attorney General in reference to them. But the important point to keep at the forefront of ones mind is that if a particular piece of Section 1101 Definitions is supposed to apply to a particular provision, for example, Section 1158 Asylum, it will be specified in that provision.

     What are those exceptions? If the reader will scroll back up to the main blue box, you will see that those exceptions are detailed in three of the four paragraphs that comprise clause (2) as follows:

(A) Safe Third Country.
(B) Time limit.
(C) Previous asylum applications.
(D) Change circumstances. [not applicable].

     Now, lets step through these one by one.

     This is the text of paragraph (A) Safe Third Country:

     This is the text of paragraph (B) Time Limit:

     Has Elian waited longer that one year to apply for asylum? The answer is no. The application for asylum was placed before the Attorney General within a month of Elian's arrival here. This paragraph does not apply to Elian. And most importantly, the Attorney General has not cited this exception in her decision to deny Elian an opportunity to even apply for asylum.

     This is the text of paragraph (C) Previous asylum applications:

     Has Elian applied for asylum before, and been denied? The answer is no. This paragraph does not apply to Elian. And most importantly, the Attorney General has not cited this exception in her decision to deny Elian an opportunity to apply for asylum.

     Paragraph (D) Changed circumstances, embodies a dispensation for aliens to have their situations reviewed if their circumstances have changed. And this does not apply to Elian.

     Therefore, in terms of the exceptions delineated, we can see that none of the exceptions apply to Elian, therefore, paragraph (1) giving "Any alien who is physically present in the United States" the right to apply for asylum, gives Elian that right too.

     So far, under Section 1158 (a), we have looked at paragraph (1) In General, and paragraph (2) Exceptions. There is one more paragraph left to explore and that is paragraph (3) Limitation on judicial review.

     Now, this is where the Attorney General's argument misses the mark by a country mile. (A country mile is considered to be a longer mile, because the roads in rural areas are not, as a rule, as good as the roads in urban areas. Though if you consider the potholes that people have to deal with in New York City for example, a New York Mile could be twice the distance of a country mile.) The lawyers of the Justice Department are arguing that the Federal Courts have no jurisdiction in this dispute. They argue that there is a long-standing tradition that accepts the idea that Federal Courts do not generally have the power of judicial review in immigration cases. This is lawyerly sophistry at best.

     What does paragraph (3) say about that? It is so short that we will quote it in its entirely as follows:

     Why do I say that? Because we have just shown that Elian does not fit into any of the exceptions under paragraph (2)! And most importantly, the Attorney General, in her decision to deny Elian an opportunity to apply for asylum did not cite any of the exceptions under paragraph (2). The limitation on judicial review applies only to exceptions that fall within the definitions of paragraph (2).

     The important point here is that nothing in the law gives the Attorney General the authority to manufacture out of thin air exceptions that are not found within paragraph (2). The Congress decided what the exceptions were to be, and they put those exceptions in paragraph (2). Nothing under paragraph (2) applies to Elian. Therefore, the Attorney General has no authority under the law to deny Elian an opportunity to apply for Asylum!

     If the Congress felt that the issue of a father/son relationship might prove to be an exception, they would have put it in paragraph (2). But it is not there. There is nothing in paragraph (2) that says that "Elian should be with his Father." There is nothing in paragraph (2) that gives any parent an opportunity to thwart the asylum application of a child.

     Clearly, if Attorney General Reno cited any one of the exceptions under paragraph (2) as the reason for denial of the right to apply for asylum, the federal court by law could not second guess her. She would have the final say. But, she cannot add her own provisions to paragraph (2). She cannot manufacture additional exceptions, beyond those specified in paragraph (2). If she does that, she is operating outside of the law, and the federal court system is there to check that misapplication, that misdirection of executive power. And of course, that is what this lawsuit is all about.

     This lawsuit is all about the misuse of the executive power of the federal government in the effort by Attorney General Reno to manufacture an exception to fit Elian, an exception that the law does not recognize. The Clinton administration wants the law to have an arm that will carry Elian back into the lap of Castro's totalitarian paradise. After all, Castro gives everybody free health care, so, in the view of most partisan Democrats, that island is closer to an island paradise than it is to a prison camp, and this factor should not be overlooked. I mean, the thing that should not be overlooked is the ease with which partisan Democrats discount the value of freedom of speech, freedom of religion, freedom of assembly, and the freedom to petition the government for a redress of grievances, when the great jewel of free health care is offered in its place. What should not be overlooked is how the emotional nature of a human being can become so clouded that it can be persuaded to grasp after something that will actually end up enslaving it, and that the separation of powers is essential in this great process of allowing those citizens who still retain some sanity in this area to challenge and check those who have become totally co-opted by error. And in this manner, the error is not allowed to engulf the entire nation, as it has in Communist Cuba, where totalitarianism means that the citizens have no access to any checking or balancing mechanisms that can turn back the misuse of power by the government.

     The point here is that the law does not have an arm designed by Congress to deliver a child back into the arms of a communist dictator. Lacking that arm, the Attorney General has manufactured one. And that manufacturing process is illegal. And living in a free and democratic nation, we have access to those mechanisms that can turn back this illegal use of power.

     In a hearing before the Committee on the Judiciary of the United States Senate on "Cuba's Oppressive Government and The Struggle for Justice" held Wednesday, March 1, 2000, the daughter of Fidel Castro himself, Alina Fernandez, had a pointed observation to make in this regard. She said:

     This is what federal judicial review is all about when it comes to the execution of federal laws by federal officials. Federal officials are not authorized to manufacture that law. The duty of a federal official is to conform their official acts to the confines of the law. They must wear that straight jacket. And if an arm pops out here, or another arm pops out there, it is the job of the federal courts to stuff that arm back in, and to sew the straight jacket back up.

     To reiterate the central point here, if the Attorney General made her determination to deny Elian an opportunity to apply for Asylum under (2) Exceptions, then the federal courts would have nothing to say. But the Attorney General did not make her determination to deny Elian an opportunity to apply for Asylum under (2) Exceptions, but used criteria that is not specified under (2) Exceptions. Therefore, the federal court has jurisdiction to mandate compliance with the law.

     This is so simple, that you can be sure that if Elian is unfortunate enough to draw a brain dead federal judge that rules in favor of Attorney General's Reno's point of view, that there is a 99.999% chance of success that such a ruling would be overturned on its first appeal. This is because there is nothing within (2) Exceptions that comes within a galaxy's distance of implying that a parent has any say about an application for asylum by a child. The only way that such a ruling could not be overturned on appeal, would be if the eastern half of the United States fell into the ocean, and everyone including Elian disappeared below the waves.

     This is one of reasons why the Story of Elian Gonzalez has such high value in terms of teaching important principles about American Democracy. This is such a clear case of a group of people wanting a particular outcome so intensely, that they have blinded themselves to the fact that the law does not support their point of view --- the law being so absolutely and unambiguously devoid of anything that could even be misinterpreted into applying to Elian --- but they will charge ahead anyway, and throw the levers of government power as if their personal will were a substitute for the law itself. What a superb illustration for the maxim that ours is nation of laws, and not of men, but without the courts, this would mean nothing in any practical sense.

     The conditions which the alien must meet to have his application approved, are set forth in Section 1158 subsection (b) Conditions for granting asylum. This is the text of subsection (b):

     Note that Subsection (b) Conditions for granting asylum is also subdivided, but this time into three paragraphs as follows:

(1) In general.
(2) Exceptions.
(3) Treatment of spouse or children.

     Please read each of these paragraphs carefully. I know this requires an extraordinary amount of brainpower, but that is really the price of democracy isn't it? Where brainpower, instead of brute power is what determines the course of a nation.

     The most important thing to point out here initially, is that of the three paragraphs which make up part (b) you will not see listed a restriction on judicial review. Now, there is a restriction, but it is embedded within (2) Exceptions, and it is targeted only on a subparagraph within that overall paragraph. This is another important indicator of the fallacy of any contention on the part of the U.S. Justice Department that their decisions are generally free from the burden of judicial review. Is just isn't so.

     Let's go through each of these three major paragraphs one by one, beginning with Section 1158 (b) Conditions for granting asylum (1) In general. Here is the text of (1) In general standing by itself:

      As before, you can click here to bring up the whole Section 1101 Definitions document in a new window. And this is the text of Section 1101 (a) (42) (A):

     Now, I didn't quote (B) because the reference under (1) General says 1101(a)(42)(A). The rest of the text has no application to whether or not Elian meets the definition of "refugee". The (B) stuff is used in connection with another part of the code.

     The first point to make about the interpretation of (42) (A) is that it begins with "Any person." Here there is no distinction made between sex, or age, or anything else. In other words, the U.S. Congress does not make an issue of whether a person is old enough to decide for himself whether or not he is a refugee. The law does not assign that decision to a child's father or mother. The definition is based on an objective criteria, which is three-fold, first, that the person is "unwilling to return" to his country of nationality, and second, the person is "unwilling to avail himself or herself of the protection" of that nation, and third, and this is the clincher, "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."

     The approval of Elian's application for asylum hinges on whether or not there is a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."

     Now, it could be said of any refugee from a communist nation, that if he or she were to return, keep his mouth shut at the right times, and open his mouth in support of the ruling communist party at the appropriate times, that there is no well-founded fear of persecution.

     Of course, there are some who will say that persecution is defined as the physical act of being thrown into jail on the account of your political beliefs.

     But for the purposes of this definition, there is no realistic basis to try to make a distinction between the ever-present threat of persecution, and the actual infliction of a physical act of persecution. The threat alone is enough to meet the definition, because the threat is just as useful as are iron bars in keeping people from exercising their God-Given rights, especially when you consider that the heavy boot of the State lands on enough people to keep the threat alive and operating in all. And besides, the idea that only a few in Cuba actually suffer the direct physical impact of persecution, is an illusion.

     Why? Because every soul has the natural aspiration towards liberty. This concept was illustrated by one of America's most artists, Norman Rockwell, in his Four-Freedoms series based on a speech given before Congress by Franklin Delano Roosevelt in 1941. Recalling the cloud of aggression and dictatorship hanging so heavily over Europe and Asia at that time, he said:

In 1943 Normal Rockwell translated these themes into the following four illustrations (credits):

Freedom of Speech	Freedom of Religion
Freedom from Want	Freedom from Fear

     These illustrations express the idea that the aspiration for freedom is universal. And because this is so, any soul, sent into a environment where freedom of speech is not allowed, and freedom of religion is not allowed, and freedom of assembly is not allowed, will at some point try to lift its wings, and therefore suffer persecution by the ruling authority. Now, whether the initial persecution will be enough to bend the spine of the soul into submission, well, this question should not be part of our calculation at all. In other words, those who trumpet the Communist Cause, are reflect the efficacy of the first one or two instances of persecution they themselves have experienced. The fact that their spines were so easily bent is not to be taken as evidence that the pressure of persecution has vanished. Just as the body has natural healing mechanisms, so does the soul of man, so does the mind of man, so does the will of man. The bent spine will try to straighten itself up, and that is why the constant pressure of persecution, the constant atmoshere of fear must be maintained by the ruling authority.

     In a hearing before the Committee on the Judiciary of the United States Senate on "Cuba's Oppressive Government and The Struggle for Justice" held Wednesday, March 1, 2000, the son of the most famous musician in Cuba, Juan Carlos Formell, had a pointed observation to make in this regard. He said:

     In regards to Elian, this is the essential point. When we know that a system of government has been set up, as the Cuban Communist system has been, for the purpose of bending the spine of man into the crooked shape of submission to a non-democratic and therefor illegal authority, then our laws, the laws of America, are designed to provide sanctuary to any soul who has been fortunate to escape that environment.

     It should be clearly recognized that there is an enormous incentive upon the Cuban Communist Party to place an extraordinary amount of fear pressure upon Elian, much more so than an average Cuban citizen. Why is this so? Fidel Castro is day by day investing more and more of the identity of his Communist Party into the effort to successfully return Elian into its grasp. Elian has already been made an icon of the Communist Ruling Power Structure. The most recent example of this is the announcement by the Communist Party that their annual May Day Parade, which is the central holiday for the Communist System, will be devoted to Elian Gonzalez this year.

     There can be no doubt, that if Elian were ever to return, his political identity would be under greater scrutiny than that of any other citizen. More than ordinary means would be used to keep Elian in line with the Communist Party Line. After having made him a hero of the revolution, the Communist Authorities would never allow him to speak out against that revolution, and therefore, it is surely, and most certainly a given, that extraordinary measures will be taken to make Elian's conformity an absolute certainty. If the Communist Authorities have to threaten the well being of every one of his family members to accomplish this, well, they will do it. They are already doing that to Juan Miguel Gonzalez, Elian's father. Only the most extreme arm twisting behind the scenes could account for a man being so broken in will to play along with the effort of a Communist Dictator to bring his own son back into the arms of slavery.

     Juan Carlos Formell, had something to add to this dimension of the discussion as well, an aspect of the discussion that shows how deeply Elian has aleady been embedded into the Cuban culture, something that Fidel Castro will try to milk in favor of his revolution to the maximum extent possible. Mr. Formell said:

     And therefore, when evaluating the question within a time frame that is reasonable, there is no question at all that Elian fits that part of the definition of "refugee" that hinges on the presence of persecution on account of political opinion.

     Now, it is important to understand that some people will use an artificially constrained time frame, and do this perhaps unconsciously, in order to answer the question in the negative. But the law does not specify any time frame limitations. For example, people may well tend to simply imagine what the scene will be like when Elian returns to his father in the immediate future, and base their conclusion on that scene only. Certainly Elian's father will not want to persecute his son, and Castro will not want to persecute a six year-old child that Castro himself has made into an icon of his Communist totalitarian utopia. But Elian's life will extend beyond this near term scene. His life will extend onward into those years where his mind will develop more and more of the capacity to understand what his father, and Castro, robbed from him. That time will surely come, and it is at that point where the threat of persecution will hang most heavily upon him and his family. Again, more than any other person in the modern history of Cuba, this child will be required to uphold the "honor" of Castro's totalitarian state, and he will be required to do it knowing that his mother gave his life for his freedom, and through that sacrifice actually achieved that prize for him. I think the word "cruelty" would describe with the most accuracy, the end result that would be achieved if some people get their way, and succeed in sending Elian back to Communist Cuba.

     Again, the law does not specify a time frame within which we are constrained to evaluate the potential for persecution. In this case, when all factors are taken into account, the day of Elian's physical persecution can be foretold with nearly scientific accuracy.

     Now, even if the thinking of Attorney General Janet Reno (under the influence of the Clinton administration) can be so twisted as to ignore this objective reality, well, Elian still has access to the courts.

     This is an important point. The U.S. Congress has been very specific, within the body of immigration law, about stating where federal judicial review does not apply. Taking a look at the text of the law, we can see that there is no prohibition against the use of the courts to challenge an erroneous decision by the Attorney General in this area. And why is that? Because it is a matter of life and death. To withdraw the possibility of judicial review in a situation that speaks to a life and death situation, this would be the denial of the principle of due process, a very important principle in the American legal process.

     Now, the Congress set forth a second part to this, providing for exceptions, empowering the Attorney General to deny applications for asylum even if a person meets the definition of "refugee" under section (1). What are these exceptions, and do any of them apply to Elian?

     The (2) Exceptions paragraph is divided into four clauses as follows:

(A) In general.
(B) Special rules.
(C) Additional limitations.
(D) No judicial review.

     Looking at clause (A) In general first, we see six subclauses numbered in roman numeral fashion as follows: i, ii, iii, iv, v and vi. Four of the six being exceptions having to do with the criminal nature of the alien in question. If the person in question falls into any of these categories, then his refugee status can be set aside, and the application for asylum can be denied. Briefly these categories are as follows:

     These exceptions do not apply to Elian. Is there any need for discussion here? I think not. Elian is not a criminal or a terrorist.

     Looking at clause (B) Special rules, does not add any additional exceptions, but is provided to define one class of crime previously mentioned, and to give the Attorney General the authority to promulgate regulations that will clarify what previously mentioned crimes are offensive enough to cause a rejection of asylum application.

     Looking at clause (C) Additional limitations, this section gives the Attorney General the authority to promulgate additional clarifying regulations, to more clearly delineate what additional conditions may be sufficient to deny asylum applications. But this is not a blank check. The phrase "consistent with this section," is the central qualifier. Primarily this has to do with threats posed against the United States by people who could cause damage to our society in one way or another if they were granted asylum and they were allowed to stay in this country. This section was provided because new crimes are always being cataloged, and because the Congress knew that the listing of crimes could never be complete within the body of statute. There is a very good reason that in the Bible, the carnal mind was referred to as the bottomless pit. The executive power of the national government needs some flexibility to expand its efforts to protect America as the bottomless pit erupts with previously uncataloged examples of destructivity.

     From this we can grasp the general spirit of the meaning here in terms of what the Congress sees as the central duty of the Attorney General. He (or in this case she), is the central policeman of the United States. Just like a cop on the beat, he is given some leeway in determining what constitutes an immediate threat to the citizens he is charged with protecting.

     Looking at clause (D) No judicial review, this is short enough to allow for a full re-quote here as follows:

     But in fact, this is very highly focused restriction on judicial review, that does not apply to the great majority of the entire subsection (b) Conditions for granting asylum. The section to which the restriction applies is specified, i.e. subparagraph (A)(v). That subparagraph gives the Attorney General the authority to find a reason to admit someone who would otherwise be excluded under subclause (i) and (ii). It is the exercise of this authority which cannot be overturned by any federal court.

     This leaves the exercise of executive power by the Attorney General, under every other part of the this section of immigration law, open to judicial review. This is as it should be. We live under a government whose most striking feature is the checks and balances written into our Constitution. The Executive power is not absolute. It is restricted by law in the first instance, and it is restricted by the power of the federal judiciary in the second.

     Therefore, our review of the various clauses of paragraph (2)Exceptions, leaves us with the inescapable conclusion that none of them apply to Elian.

     And that leaves paragraph (3) Treatment of spouse and children for us to explore. At first glance, we see that this section does not apply to Elian, because it only applies to a spouse or to children who do not qualify for asylum under the conditions specified above. Because Elian qualifies, this section does not apply to him. Even if Elian's mother had survived the trip to Florida, and she were alive today, she would certainly qualify for asylum status, and Elian would still qualify for asylum status on his own account, notwithstanding his age, (because the asylum conditions do not reference the age of the alien as a condition for granting or denying asylum status), and therefore, this section even in the hypothetical would not apply to Elian. But if there was some reason that the Attorney General had for believing that a particular child was not eligible for asylum status under this section, perhaps the child was a terrorist or something, this paragraph would give that child asylum status by virtue of his status as a child of a parent who was granted asylum status under this section. But I must admit that the utility of this section is more obscure than it ought to be.

     So, where does that leave us? Under Section 1158 Subsection (a) Authority to apply for asylum Elian has the right to apply for asylum status, and no exceptions under that section apply to him. Under Section 1158 Subsection (b) Conditions for granting asylum, because Elian meets the conditions set forth, and because no exceptions apply to him, his application for asylum must be approved.

     Under paragraph (4) Notice of privilege of counsel and the consequences of frivolous application, requires the Attorney General, "at the time of filing of an application" to (A) "advise the alien of the privilege of being represented by counsel ... and (B) "provide the alien a list of persons ... who have indicated their availability to represent aliens in asylum proceedings ... "