To get the most out of Elian, Liberty and the Law Betrayed the author recommends that you read the following three documents first: 1. "Is there Anything Right about Returning a Runaway Slave?" sets forth an extensive exposition of principle from the stand point of moral common sense. This article provides an essential foundation for approaching the subject of the law. 2. "Elian and the Law" sets forth a extensive analysis of the applicable immigration law that applies to the Elian Gonzalez situation. This provides an essential foundation for making sense out of Judge K. Michael Moore's opinion. 3. "The Opinion of Judge K. Michael Moore". Having established a preliminary foundation of belief concerning what are the most imporant moral factors, and having a foreknowledge of the text of the law, it is highly recommended that the reader study the totality of Judge Moore's decision without the burden of anyone's analysis resting upon your mind. The Journal's Elian Gonzalez Resource Center

     Elizabet Broton, the mother of Elian Gonzalez, took her son Elian, the fruit of her womb, away from oppression, away from Cuba, away from Communism. She took her son out of the darkness, and into the light.

     But now, just four months later, Judge K. Michael Moore of the Federal Court for the District of Southern Florida has lifted a gnarled and grotesque trumpet of betrayal to his lips. On March 11, 2000, with a brutish snarl of satisfaction, albeit clothed by the tight fitting undergarments of judicial temperament, he has put his ignominious stamp of approval upon the Attorney General's decision to send Elian Gonzalez back into the clutches of a totalitarian police state.

     Not only has this inspired the king of Cuban thugs, Fidel Castro to proclaim victory over Elian's soul, but this ruling heralds the appearance on the world stage of the most outlandish betrayal of a mother's sacrifice the world has ever seen, of the most outlandish betrayal of a child's best interests that the world has ever seen, of the most outlandish betrayal of the spirit of liberty the world has ever seen, and clearly the most outlandish betrayal of American Law and Due Process rights ever to be seen on American soil. God Almighty, it is a dark and somber day for America, a country that was once known as the land of the free and the home of the brave.

     Of course, the clouds of betrayal were gathering over America well before Judge Moore took this case under the furrows of his brooding intellect. For a truth, the Attorney General Janet Reno was mounted high and charging forward on her stallion of executive power leading, cajoling, bewitching, seducing this great boiling mass of infamous intent ever onward long before fate choose Judge Moore to play the role of hero. That's right. Judge Moore was in the unique position of having the opportunity to wield the sword of the law to push the legions of darkness back, but instead he waved them on. Can you believe it? He waved them on! I feel sorry for Judge Moore. If Judge Moore has a conscience, he will soon discover upon reflection that the general outline of his role in this event painfully parallels that of Judas who thought he did the world a favor when he betrayed the Christ.

     To any heart that shines with the Spirit of Liberty, a light that illumines the mind with all the noble aspirations associated with freedom, the studying of Judge Moore's decision is like studying a rotten apple. It is filled with the worms of self- interest, profound bias, faulty reason, and gross errors. It is the work of one of the smallest minds in American jurisprudence.

     But Judge K. Michael Moore wanted to hear this case. Judge Moore wanted his place in the history books. You have heard it said that where there's a will, there's a way, and that certainly applies here. Judge Moore wanted to do something positive and constructive for Fidel Castro, and he was not going to let anyone stand in his way.

     Judge Moore pulled out all the stops to find precedents that would allow him to turn back each of the Justice Departments arguments in the subject areas of jurisdiction, standing, party in interest, parental rights and the next friend status of Lazaro Gonzalez. He went on and on in this regard, 33 pages worth, and, I have to admit, he was on solid ground, but only because it was ground he himself had to stand on. Make no mistake about it. He made absolutely sure that his authority to hear the case was based on a seamless series of arguments, and so it appears.

     But when Judge Moore got to the core of the case, the interpretation of Title 8, Section 1158 of the immigration law which says in pertinent part "In general, any alien physically present in the United States ... may apply for asylum ...", all of sudden he went from a visionary to a blind man.

     When it came to finding precedents that would support the ground under Elian's feet, all he could find were precedents that would remove ground. And this is where the charge of heavy bias is illustrated most profoundly, in as much as he refused to find any precedent that would challenge his own pre-conceived opinion concerning where Elian should live. This is illustrated all the more, in the fact that the core of his opinion found only that the Attorney General had discretion to make the decision to send Elian back. The judge made no value judgement concerning the decision itself, and in fact was forbidden from doing so by the precedents he cited. But in his conclusion, the judge takes a completely different tact stating, " ... each passing day is another day lost between Juan Gonzalez and his son ...", which makes it clear that the Judge has dismissed any notion that Elian faces great harm if returned to Cuba, and embraces the narrow view that something so profound and so special occurs between a father and son that trumps any concern about the quality of life under the repression of a totalitarian police state.

     It is evidence that the mind of this judge is under the influence of this idealistic abstraction, because he refuses to allow into his orbit of judgement the very real consequences associated with sending a child back into the grips of a totalitarian police state. This idealistic abstraction is like a set of blinders that doesn't allow him to see anything beyond the ground under his own feet.

     There is ample evidence of this in one key feature of this ruling. In the course of shoring up the ground under his own feet, in terms of supporting his jurisdiction to hear the case, and in supporting his desire to make a ruling that will help send Elian back to Cuba, the judge cites many precedents that would have worked equally well to expose the fallacy of the Attorney General's decision. He cites these precedents in his own self- interest. But he will not cite them on behalf of Elian's interest. This will be made quite clear as we proceed.

     As we mentioned above, in the course of his opinion, Judge Moore dealt with several issues. For example, lawyers for the Justice Department argued that the Federal Court had no jurisdiction in this case, that the law barred the Court from exercising judicial review over the Attorney General's decision to send Elian back to Cuba, and that Elian had no standing to sue in Federal Court, and that no one but his father could bring suit on his behalf. Judge Moore uses pages 1 through 33 of the opinion to set aside these preliminary arguments.

     These issues had to be batted down one by one before Judge Moore could arrive at the central issue, which is the interpretation of Section 1158 of the immigration law.

     As noted, the central issue in this case is the interpretation of Section 1158 of the U.S. Code. I will deal primarily with that section of Judge Moore's decision which sets forth his (erroneous) interpretation of Section 1158. Judge Moore sets forth his analysis and interpretation of Section 1158 beginning on page 36, and ending on page 46 of the opinion, for a total of ten pages. We will go through these ten pages paragraph by paragraph, and in most cases, footnote by footnote.

Note: pages 33 through 36 deals with the contention on the part of Elian's lawyers that Elian has been denied procedural due process rights that are guaranteed by the 5th Amendment of the U.S. Constitution. The judge sets this argument aside as invalid, based entirely upon established precedents. These precedents appear to establish the fact that an unadmitted alien has no rights under the U.S. Constitution. The Judge's application of precedent in this appears to be valid. And I have the sense that the precedents have merit. I think that Elian's legal team made a technical mistake here in trying to tie the issue of the denial of due process to the U.S. Constitution. But I would hasten to add that Due Process is a synonym for fairness in any legal process, and this Elian has certainly been denied.

     Beginning on page 36 then, the Judge begins his analysis of Section 1158 with an introductory statement as follows:

     This paragraph of course is an abrupt departure from the general course of the opinion up to this point, where everything seemed to be going in Elian's favor, as the judge set aside each of the Justice Departments arguments. On the key argument, as you can see, he is agreeing completely with the Attorney General's reading of the law. Footnote 28:

     It is possible that Elian's legal team can make something out of the Judge's denial of discovery. As will be seen, the Judge ignores a very large body of contextual reality in arriving at his decision, and it is possible that a discovery proceeding could have had the effect of enlightening the mind of the judge to such an extent that his decision would have been much different. For example, much is made about the issue of an "abuse of discretion" on the part of the Attorney General. This abuse of discretion is evident in refusing to consider the real dangers that Elian will be exposed to upon his returning to Cuba. Perhaps if the judge had allowed a discovery hearing that would have brought forth the basic information that is publically available in the human rights reports published by the U.S. Department of State, then the fact of abuse of discretion could have come more clearly in focus for the judge. The reader may evaluate this proposition against the backdrop of the information found at the following links:

     The judge continues:

     Judge Moore highlights these words: "[t]hat determination and ruling by the Attorney General with respect to all questions of law shall be controlling."

     The judge highlights these words as if they have some substantial amount of relevance to this case, but that is a false implication, as can be clearly shown.

     First make note of the fact that the paragraph is divided into three clauses. The first clause gives the Attorney General, as a general rule, the authority to implement all immigration laws. The second clause sets forth exceptions to that general rule. These exceptions are required because the immigration law establishes responsibility for other departments outside the purview of the Attorney General. The third clause sets forth a rule which is to be applied to resolve conflicts that arise between the responsibilities referred to in clause 1, and the responsibilities referred to in clause 2.

     As noted, the first section sets forth the general powers of the Attorney General as it relates to immigration and naturalization of aliens:

     What this means, is that the Attorney General needs to read the body of the law to determine what her duties are. Her duties are no more, nor less than what the body of the law specifies. This is not complicated.

     And then comes the second part, which starts with the word "except". Look at the exception:

      Given these two areas of responsibility, we have a situation in which there could arise conflicts between these departments, and these conflicts need to be resolved in an orderly manner without putting additional administrative burdens upon the Office of the President, or the courts. The third clause provides the rule to resolve such conflicts:

      This clause simply gives precedence to the Customs and the INS if they decide they need to prohibit entry to someone with an otherwise valid visa. And therefore, it is clear that the clause the judge points to, is targeted directly, like a laser beam, at the issue of resolving conflicts that arise between the immigration responsibilities assigned to the Attorney General in clause 1, and the immigration responsibilities assigned to other executive branch departments in clause 2. Clause 3 is simply a rule to resolve turf battles between executive branch departments.

     This conclusion can be brought even more clearly into focus by following this simple exercise. Read the first clause of the paragraph, skip the second clause, and see if it makes any sense to apply the concept embodied in the words "provided however" to the first clause, as follows:

     By its presence, clause 3 implies that a question has been raised as to the issue of whose authority is, or is not controlling in regards to matters of law. The first clause does not by itself set up any question as to what may or may not be controlling. If there is a question of control, there must be an implication of competing interests. Clause one has no implication of competing interests. There is only one party referred to in the first clause, and that is the Attorney General. Therefore, applying the third clause to the first, is meaningless. It is uninterpretable, because it resolves a question that is not posed. The question is posed, i.e. the implication of competing interests is contained in the juxtaposition of the first clause to the second clause. Therefore the rule of resolution in the third clause makes sense only as a device to resolve the implication of competing interests on behalf of the competing parties in specified in the first and second clauses.

     Moreover, in footnote no. 29, we will see how the judge wants to have it both ways. Which is another indicator of the fallacy of his reasoning in this area. He is looking for some statement that will give the Attorney General "controlling" authority. He thinks he has found it. But oh, wait a minute, if "controlling authority" means what it appears to mean, well, that would mean Janet Reno's decisions cannot be overridden by any Federal Court, because if they could be overridden, they would not be controlling. So he rationalizes this away, keeping that part of the "controlling authority" that would allow the Attorney General to wield total control over Elian, but not total control over his Court:

     Notwithstanding the Judge's contortions, the meaning of the language is plain. The Judge has made a gross error in saying that "this provision does quite clearly provide a general grant of deference to decisions on "questions of law." It does so only in the context specified. The Attorney General's decisions as to matters of law, when it comes to those instances in which there is an overlap of responsibility between the specified executive departments, will be controlling. Those executive departments must bend to her decisions as to matters of law.

     But even the judge sees that there is a problem with this "general grant of deference on questions of law." As noted, this might be taken as a rule denying any court jurisdiction to hear any challenge to her "controlling" authority. Therefore, he carves out some space where he can have his jurisdiction:

     In the next paragraph we find another major flaw in the foundation of Judge Moore's ruling. He says:

     First of all, the Judge left out two crucial words that are part of the text of the law. And this intentional oversight will have significant implications later on. Notice the citation the judge gives for this text. It is "8 U.S.C. § 1158(a)(1)." Paragraph (1) starts out with the words "In general." Normally when you leave words out, you put in little dots to let readers know that there are words there that you have chosen to leave out. But he did not add those dots, and in fact, he drew conclusions regarding this text that makes it clear that he was proceeding on the assumption that those two words are not even there, as you will see below. This is the full text of Section 1158(a):

     Now, when the judge says that the Congress provides "some guidance", I get the distinct impression that he is making a point that the Congress did not provide enough guidance, and of course that is his thesis as you will see as he develops his arguments. But, the text is plain. "(1) In General ... Any alien who is physically present in the United States ... " is plain language and clear enough, qualified only by the exceptions listed in paragraph (2).

     The Judge continues:

     When the Judge says that "section 1158(a) ... fails to set forth a standard for review" one must wonder what exactly he is talking about. How about common sense? What happened to common sense as a standard for review? When the common sense standard is applied, for example, that Elian perfectly fits the definition of "any alien who is physically present in the United States", one must conclude that to deny him the opportunity to apply for asylum is "manifestly contrary to the law" and because it is manifestly contrary to the law, it has to be, by definition, an "abuse of discretion".

     If one is to overlook the fact that the judge took Section 1252 (b)(4)(D) out of context, taking its supposed relevance at face value, which we will do for the sake of discussion, one must conclude that this does not help his case, and it does not lead to the conclusion he specifies. If the "manifestly contrary to the law and an abuse of discretion" standard (in the specified context) was applicable to this case, which it is not, at least in the manner in which the judge interprets it, it would not, as the judge contends, provide "strong support for the proposition that Congress did not intend to provide for much second guessing of administrative decisions under Section 1185(a)." In its appropriate area of application, it is a statement that allows any federal court to determine whether the Attorney General has broken the law, and abused his or her discretion.

Note: We note here that the "manifestly contrary to the law and an abuse of discretion" standard by itself applies in a generic manner to all questions concerning the execution of federal law by federal officials. In no case does a federal official have any license to act in a manner "manifestly contrary to the law", nor does a federal official have any license to abuse any discretion conferred by the law. Therefore, when any federal judge is reviewing any action by a federal official, the judge will use this standard as a universal rule that does not need to be stated anywhere in the text of the law itself.

     When you consider the meaning of the phrase, "manifestly contrary to the law", this means only that if a decision of the Attorney General departs from the law, then the decision is not conclusive, and is therefore within the purview of the court to strike it down. The text of the law plainly encompasses aliens of all ages, and plainly excludes any role for a parent at the application stage. Therefore, the Attorney General decision is plainly contrary, i.e. "manifestly contrary to the law", and therefore it cannot be conclusive. And in regards to a decision that represents an abuse of discretion, if the Attorney General exercises her discretion in such a manner as to break the law, that is by definition an abuse of discretion. No Attorney General, nor any government official, is granted the discretion to break the law.

      This becomes apparent when you glance up a few paragraphs and take note of the title of both the section and the subsection of which this is a part. Section 1252 as a whole, and subsection (b) carries the following titles and descriptions:

     The Judge found his little nugget of illusion (clause D) under paragraph "(4) Scope and Standard for Review." Therefore we ask, "scope and standard for review" of what? Answer: as illustrated above, paragraph "(4) Scope and Standard for Review" falls under subsection (b) in which we find the words "order of removal". This is fhe most immediate layer of subject matter context. Moreover, if the title of the whole section (1252) makes any difference at all we must observe that it reads thusly: "judicial review of a final order of removal". This is the first layer of subject matter context. And because the subsection (b) descriptor refers specifically to subsection (a) (1), we must refer to that, and there we find the phrase, "orders of removal" and "final order of removal" which establishes the controlling subject matter context as follows:

     There is no doubt about it. The subject matter context for Section 1252 (b)(4)(D) is established, in three layers, as "orders of removal" as follows:

     Now, the fact of the matter is, that Elian Gonzalez has never received any "order of removal", much less a "final order of removal". Elian Gonzalez, during the time that this case was being heard has been under a grant of parole, and that grant of parole has never been rescinded. Therefore, Elian is not challenging an "order of removal." Elian is challenging the decision of the Attorney General to allow his father, Juan Miguel Gonzalez, to obstruct the asylum application process.

     In Judge Moore's opinion, from pages 2 to 11, the judge sets forth the pertinent background of this case, including excerpts from the most relevant memorandums and letters sent from the INS, and the U.S. Justice Department, to Lazaro Gonzalez and his legal team. There is no mention of an order of removal. It is clear that the issue that was consuming the attention of all parties was the question of who had the authority to speak for Elian Gonzalez in immigration matters. The INS, and the Attorney General, communicated their decision that only the father had the authority to speak for Elian, and because they expected Elian's father to come and get him, the situation had not reached the point where anyone was thinking about deporting him. Moreover, because there was much talk about giving Elian his day in court, the Attorney General stepped back to allow Elian's lawyers to challenge the Attorney General's decision in Court. The lawsuit was filed on Elian's behalf on January 19, 2000, not challenging an "order of removal", but challenging Reno's decision not to accept Elian's application at all.

     In fact --- and this is the smoking gun in this regard --- the Attorney General said in her letter of January 12, 2000, that "it is not appropriate to commence removal proceedings against this six year old boy." If no removal proceedings had commenced, no order of removal could have been issued, and therefore, the Section 1252 (b) (4) (D) cannot apply to the case at bar.

     Therefore, what the Judge has quoted, because is applies to "judicial review of final orders of removal", does not even apply to this case. That is, unless the hierarchical organization of subsections, paragraphs and clauses means nothing. This argument has to be conclusive in revealing yet another gross error on the part of this judge, this time in misapplying Section 1252 (b)(4)(D) to this case.

     In regards to the judge overlooking the obvious here, we find more evidence of his bias. His desire to see Elian back in Cuba in the loving embrace of Castro's totalitarian police state is so intense, that he is assuming an order of removal. But there is nothing in the law that allows the U.S. Code to be applied on the basis of an assumption. If an order of removal exists in fact, then Section 1252 (b)(4)(D) applies to the process of reviewing it. If no order of removal exists, there is no order of removal to review, and therefore Section 1252 (b)(4)(D) cannot apply.

     The foregoing quotations from the opinion represents the sum total of Judge Moore's analysis of "applicable statutory provisions". This analysis of applicable statutory provisions covered three portions of the Code, and he made a gross error in the interpretation and application of each one, as follows:

A. Section 1103(a) - Judge Moore pulled the concept of "controlling authority" completely out of context, and uses it throughout the remainder of the decision as cornerstone of his reasoning.

B. Section 1158(a)(1) - Judge Moore left off two (2) crucial words that are essential to a proper interpretation, allowing him to reach an incorrect conclusion concerning the supposed inadequacy of guidance contained therein. This is used as another cornerstone of his ruling, especially in the latter stages.

C. Section 1252 (b)(4)(D) - Judge Moore applies this section completely out of context, deriving a false and unsubstantiated rule of interpretation from it that he will use not just as a cornerstone of his arguments, but as the very heart of his arguments.

     In every rule book I am familiar with, it is always three (3) strikes and you are out. This not a very auspicious beginning for Judge K. Michael Moore. And it is all downhill from here, if that were possible, because a just and truthful ruling cannot be built upon a 3-part argument, where each of three parts has a fatal flaw.

     The judge continues:

     We take note of the fact that the court will "properly characterize" the Attorney General's decision. After reviewing the Judge's characterization, one doubts whether the word "proper" can be properly used to describe it.