Elian, Liberty, and the Law Betrayed
An Analysis of Judge Moore's Ruling
(Part 3 of 3)
By Steven S.
Showers, Editor
The Judge continues ...
In
Chevron, the Supreme
Court set forth the following two-step analysis for judicial determinations regarding the propriety
of agency action:
If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress. If, however, the court
determines Congress has not directly addressed the precise question at issue, the court does not
simply impose its own construction of the statute, as would be necessary in the absence of an
administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the agency's answer is based on a
permissible construction of the statute. Chevron, 467 U.S. at 842-43 (1984)
(citations omitted) (emphasis added).
The Supreme Court further noted that "[w]hen a
challenge to an agency construction of a statutory provision, fairly conceptualized, really centers
on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap
left open by Congress, the challenge must fail." Id.33
| [Moore Decision - pp. 40-41] |
|
The precise issue at bar is whether the Attorney General
has the discretion to deny a refugee from Cuba an opportunity to apply for asylum. Congress has
addressed this issue directly in the Cuban Democracy Act. If the asylum provisions were written
for anyone, they were written for refugees from Communist regimes, and especially refugees
from Castro's Communist regime. The Supreme Court says, "if the intent of the Congress is
clear,
that is the end of the matter." Well, it appears to this writer that the intent of the Congress is
clear,
and therefore, the court has no obligation to defer to the Attorney General's decision, but rather,
the court has a duty to evaluate that decision on the basis of both the spirit and the letter of the
law.
The Judge continues:
| The Supreme
Court consistently has
recognized, however, that the unique aspects of immigration law require a special approach. It is
firmly established that immigration matters are within the plenary control of Congress.
See U.S. Const. art. I, § 8, cl. 4 ("The Congress shall have Power . . . To establish
an uniform Rule of Naturalization . . . ."); see also Fiallo v. Bell,
430 U.S. 787, 792 (1977) ("'[O]ver no conceivable subject is the legislative power of Congress
more complete than it is over' the admission of aliens.") (quoting Oceanic Navigation Co. v.
Stranahan, 214 U.S. 320, 339 (1909)).
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This observation further intertwines the Congressional
Finding in the Cuban Democracy Act with the asylum provisions of the immigration law.
The Judge continues ...
In the exercise
of its plenary
control, as evidenced in 8 U.S.C. § 1103 and other statutory provisions, Congress has made
"sweeping delegations of authority" to the Attorney General in the context of immigration
matters. Jean v. Nelson, 727 F.2d 957, 965 (11th Cir. 1984); see, e.g.,
United States v. Shaughnessy, 353 U.S. 72, 78 (1957) (holding that where Congress
fails to specify standards to guide the Attorney General's discretion in immigration, the Attorney
General may rely on any reasonable factors).
The Supreme Court has acknowledged this broad exercise of
congressional authority, "recogniz[ing] that judicial deference to the Executive Branch is
especially appropriate in the immigration context where officials exercise especially sensitive
political functions that implicate questions of foreign relations." INS v. Aguirre-Aguirre,
119 S. Ct. 1439, 1445 (1999). The Court has further observed that "[t]he judiciary is not well
positioned to shoulder primary responsibility for assessing the likelihood and importance of
[certain] diplomatic repercussions." Id.; see also Hampton v. Mow Sun Wong, 426 U.S.
88, 101-02 n.21 (1976) ("[T]he power over aliens is of a political character and therefore subject
only to narrow judicial review.").
| [Moore Decision - pp. 41-42] |
|
The judge appears to believe that "sweeping delegations
of authority" is synonymous with "blanket and undifferentiated" delegation of authority. But this
goes too far. The authority delegated is codified in quite precise terms in the body of the law.
The
law specifies what authority has been delegated. The use of this adjective "sweeping" gives one
the impression that the Congress has told the Attorney General that she can do anything. That is
not the case. The law controls what the Attorney General can do in terms of immigration
matters.
These "sweeping delegations of authority" they cannot extend beyond the provisions of the law.
In regards to the reference to foreign policy
considerations, executive branch officials do not have the discretion to break the law in pursuit of
some foreign policy goals. I believe this was what the Iran/Contra scandal was all about.
And concerning the Judge's characterization of
Shaughnessy:
| "(holding that
where Congress fails
to specify standards to guide the Attorney General's discretion in immigration, the Attorney
General may rely on any reasonable factors)"
|
The key word here is "reasonable". It is not reasonable,
absolutely not reasonable, given the history of this nation in standing against communist
aggression
on this planet, given the history
of Cuba's support for the overthrow of democratic governments throughout Latin America, given
our long history of support for the Cubans who successfully fled across the Florida Straits to
freedom, exemplified by the Cuban Adjustment Act of 1966, that a U.S. Attorney General would
use the power bequeathed to her by the people of the United States to deliver a child back into
the arms of a Communist Dictator. Given this history, the Attorney General's decision to send
Elian back to Cuba can only be part of the policy agenda of the Clinton Administration which is
trying to "normalize" relations with that Communist Prison camp. It is an element of Bill
Clinton's
foreign policy, and it has nothing to do with the best interests of Elian Gonzalez. Remember, the
asylum provisions are written to guard the interests of the alien, not the interests of Bill Clinton
and
his legacy.
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The Judge continues, and here we are getting at the core
issue, which is the interpretation of Title 8, Section 1158:
| b. "Silence or Ambiguity of
8 U.S.C. §
1158(a)
Under Chevron, where a statute is "silent or
ambiguous," actions by the Attorney General are to be reviewed for a determination of whether
the agency's judgment call was based upon a "permissible construction of the statute." 467 U.S.
at 842-43. As the Eleventh Circuit has noted in Herman v. NationsBank Trust Co., 126
F.3d 1354 (11th Cir. 1997):
Under Chevron a court is not to search for what
in the court's view is the best possible construction of the statute . . . . Realizing that
administrators and judges might well disagree about the wisdom of a policy behind an agency's
construction of a statutory provision, the Supreme Court admonished courts not to forget to
whom the authority and responsibility for such policy making is entrusted. Id. at 1363
(quoting Jaramillo v. INS, 1 F.3d 1149, 1152 (11th Cir. 1993) (en banc).
Plaintiff asserts that the language of section 1158(a) is
clear and unambiguous, thus precluding an analysis under Chevron. However, upon a closer
examination of section 1158(a), in the context of other pertinent statutory provisions,34 the Court
is unconvinced that Plaintiff's narrow reading is an appropriate construction of the statutory
language. Rather, for the reasons discussed below, the Court agrees with Defendants' argument
that 8 U.S.C. § 1158(a) falls into the category of statutes that are "silent or ambiguous,"
or otherwise contain a "gap left, implicitly or explicitly, by Congress." Chevron, 467
U.S. at 842-43 (1984) (citing Morton v. Ruiz, 415 U.S. 199, 231 (1974)).
| [Moore Decision - pp. 42-43] |
|
The Judge proceeds to set forth the reasons for this
conclusion:
| To begin, 8
U.S.C. § 1158(a) fails to mention one particular class of aliens children. This could be
construed as silence, in light of the fact that in immigration law, Congress and the INS often
make special provisions for children and others who may have difficulty acting in their own best
interests. See, e.g., 8 U.S.C. § 1182 (a)(9)(B)(iii)(I) ("No period of time in
which an alien is under 18 years of age shall be taken into account in determining the
period of unlawful presence in the United States under clause (i).") (emphasis added);
Perez-Funez v. INS, 619 F. Supp. 656, 661 (C.D. Cal. 1985) ("The Court notes that, as
discussed above, INS policy treats children fourteen years of age and older differently
from younger class members.") (emphasis added); 8 C.F.R. § 236.2(a) ("If the respondent is
confined, or if he or she is an incompetent, or a minor under the age of 14, the notice to
appear, and the warrant of arrest, if issued, shall be served in the manner prescribed in §
239.1 of this chapter . . . .") (emphasis added); 8 C.F.R. § 240.38 ("Every alien 14 years
of age or older who is excluded from admission to the United States by an immigration judge
shall be fingerprinted . . . .") (emphasis added). In light of these examples of age-specific
provisions, it is apparent that Congress and the INS recognize that children deserve special
treatment under immigration law.
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This is another instance where the reading of pages 1
through 33 of the opinion will expose a fatal contradiction in the judges reasoning. In the course
of the Judge's discourse on the subject of judicial review, we find the following paragraph from
pages 17 to 18:
It also would
appear that the
provision relating to 8 U.S.C. § 1158(a) within 8 U.S.C. §1252(a)(2)(B)(ii) can be read
to exclude only 8 U.S.C. § 1158(a)(1) ("Any alien . . . may apply for asylum") from the
preclusion of judicial review, as decisions under 8 U.S.C. § 1158(a)(2) (excepting certain
categories of aliens from the provisions of (a)(1) for example, those who have previously
unsuccessfully applied for asylum) expressly have been excluded from judicial review by 8
U.S.C. § 1158(a)(3). See 8 U.S.C. § 1158(a)(3) ("No court shall have jurisdiction to
review any determination by the Attorney General under paragraph (2)."). Thus, clearly the only
remaining portion of section 1158(a) that could be subject to judicial review by this Court is
subsection (a)(1). The Court further observes that "where Congress includes particular language
in one section of a statute but omits it in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate inclusion." Russello v. United
States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d
720, 722 (5th Cir. 1972) (per curiam)).12
| [Moore Decision - pp. 17-18] |
|
This is the important part:
| The Court
further observes that
"where Congress includes particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts intentionally and purposely
in the disparate inclusion." Russello v. United States, 464 U.S. 16, 23 (1983) (quoting
United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972) (per curiam)).12
|
Now, this is only common sense. The Immigration
Law, as the Judge has pointed out is filled with references to the special needs of children. This
means that legislators are keenly aware of the special needs of children. Applying this
rule, the fact that they left out any reference to the issue of the age of the applicant under the
exceptions paragraph, must be taken as a conscious choice by the Congress. When Congress said
"Any alien physically present in the United States ... may apply for asylum ... " the term "any"
must be taken to encompass children unless otherwise specified. The silence concerning children
in this section is not "ambiguous". Given the forgoing rule, it has to be taken as intentional.
Why? Because children suffer under communism even more so than adults. The children have
their minds brainwashed on a daily basis to worship the communist party, and to deny God, and
have far less capacity to resist. Therefore, they are in need of just as much protection, if not
more,
as any adult.
And this is especially true because it is well known that
whatever objections to a child applying for asylum that originate from within a totalitarian police
state cannot possibly have the best interests of the child in mind. They want that child back as a
cog in the machinery of the totalitarian state. And if there is any doubt about it, this issue is
certainly ripe for adjudication, because the representations of totalitarian thugs can never be
taken
at face value. We all know how good Bill Clinton is at lying. Very convincing everyone has to
agree. But Bill Clinton is an amateur compared to the members of the Communist Party. This
we
know from
experience.
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It is important to understand that there are NO age
limitations and NO parental criteria specified as relevant at the asylum application stage because
common sense, and the Congress, intended those factors to be considered in the process of
adjudicating the application itself. There is no doubt that the age of the child and the wishes of
the
parent are important factors. But more importantly, common sense tells us that the interests of
both child and parent are better adjudicated within the context of an asylum hearing where there
is
a three-point balance of power consisting of a) Elian and his advocates, b) Elian's father, and his
communist party controllers, and c) the immigration judge.
What rules Elian's fate today is simply the desire of Bill
Clinton to throw a bone to a Communist Dictator. Bill Clinton lost an election in 1980 because
of the Mariel boatlift issue. Castro is threatening to release another Mariel boatlift if Elian
Gonzalez is not returned. Bill Clinton has a good reason to placate Fidel Castro. And so, Elian
must go back to Cuba. And that exclusive kind of authority on the part of executive branch
officials was intended to be counterbalanced by the process of adjudicating an asylum
application.
That process is set forth with great specificity in Section 1225 of the Immigration Law.
This is the bottom line: It is especially dense headed on
the judge's part to cite a precedent in support of his desire to hear the case, and then to
completely
ignore that precedent when it comes to vindicating the plaintiff's position. This is another
example
of the heavy bias under which this judge is operating.
The Judge continues:
| Plaintiff would
have the Court focus purely on 8 U.S.C. § 1158(a)(1) to the exclusion of the remainder of
section 1158 and other portions of the INA. However, for the Court to do so would be to reject
firmly established principles of statutory interpretation that guide this Court's analysis, as well as
to accept the logical extension of Plaintiff's argument, which is that Congress requires the
Attorney General to adjudicate asylum applications from all children no matter how young in
age, no matter who claims to speak for them, and no matter what their mental condition.35 This
conclusion seems especially unreasonable in light of the potential harm that may result to a child
on whose behalf an asylum application is filed.36
|
As noted above it is this Judge whose focus is
artificially narrow. He repeatedly refuses to take into account the greater context within which
this
case is being adjudicated, and it is this Judge who has made a substantial error in not applying a
rule of interpretation that he himself quoted in an earlier part of the opinion which must lead to
an
opposite conclusion regarding the meaning intended by Congress when they omitted any
reference
to the subject of children in Section 1158 (a). Moreover, all the dangers the Judge alludes to here
which supposedly extend in a "logical" manner from the plaintiffs arguments, to wit, that asylum
applications be processed for every child that might apply are dealt with in the process of
adjudicating the asylum application.
Without a doubt, as Elian's case demonstrates, there are
more dangers associated with the refusal to ajudicate an application, i.e. a lifetime spent under
the
boot of a totalitarian police state, than there ever could be in the process of ajudicating even a
very
large number of applications.
This is an important point. It makes far more sense that
the case regarding an asylum application of child of any age go into an adjudication process,
because the child has so much to lose if the application is not ajudicated. If one is to err, one
must
err on the side of safety, and the adjudication process provides that safety factor.
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The Judge continues:
| Consider, as an
example, the case in which a child is kidnapped abroad, brought to the United States, and an
application for asylum is filed on his or her behalf by the kidnapper. In that case, Plaintiff would
have the Court believe that even if the Attorney General were aware that the child had been
kidnapped, the Attorney General would be obligated to accept the application. While it is true
that the Attorney General would have an ability to deny the application following an
adjudication, this would not alter the fact that the child's status under 8 U.S.C. § 1158(a)
would have changed.37
37 The Court acknowledges that the Attorney General
has discretion to consider changed circumstances under 8 U.S.C. § 1158(a)(2)(D); however,
this does not obviate the additional barrier that the kidnapped child would face in the future upon
an attempt to file a new application for asylum.
| [Moore Decision - pp. 44-45] |
|
In regards to the issue of kidnaping, other areas of the
U.S. Code give the Attorney General the power to deal with kidnaping as a violation of the law.
If the preponderance of the evidence indicates that a child has been kidnapped, then under the
law,
the kidnapper can be arrested and prosecuted. The child can be taken into custody by the INS,
where it will become readily clear to the immigrations officers involved, whether or not the child
had any intent or desire to apply for asylum. If no intent or desire to apply for asylum originated
with the child, the child will withdraw the application.
Moreover, the administrative particulars of the asylum
ajudicating process are not set forth in any great detail in the body of the law, leaving this to the
regulatory discretion of the INS. If the issue of kidnapping was a particular problem, the INS
could formulate regulations that would put any asylum application process on a preliminary
administrative hold pending an investigation of the kidnapping allegations.
And therefore, in regards to the issue of kidnapping,
there
is no problem here. The Judge is trying to make a mountain out of a molehill.
In regards to the consequences of having an asylum
application denied, it is true that Section 1158(a)(2)(C) says that if an alien applies for asylum
and
that application is rejected, the alien cannot apply for asylum again. But this cannot be taken in
isolation in the manner implied by the Judge. Section 1158(a)(2)(D) gives the Attorney General
the authority to wave Section 1158(a)(2)(C) if the alien can show that material circumstances
have
changed. This offers no additional barriers for that particular child:
|
Section 1158. Asylum
(a) Authority to apply for asylum
-
(1) In general Any alien ....
- (2)
Exceptions
- (A)
Safe third country ...
-
(C) Previous asylum applications
Subject to subparagraph (D), paragraph (1) shall not apply to
an alien if the alien has previously applied for asylum and had
such application denied.
-
(D) Changed circumstances
An application for asylum of an alien may be considered,
notwithstanding subparagraphs (B) and (C), if the alien
demonstrates to the satisfaction of the Attorney General either
the existence of changed circumstances which materially affect
the applicant's eligibility for asylum or extraordinary
circumstances relating to the delay in filing an application
within the period specified in subparagraph (B).
- (3)
Limitation on judicial review ...
|
The Judge continues, and now he is really reaching for
straws:
| Moreover, if
Congress truly
intended section 1158(a) to permit any alien to apply for asylum, why enact 8 U.S.C. §
1252(b)(4)(D) at all?38 The fact that section 1252(b)(4)(D) provides a standard of review for
"discretionary judgment" exercised by the Attorney General under section 1158(a) is the dagger
to the heart of Plaintiff's request.39
|
Here the Judge uses strongest most obscene metaphor to
clothe his weakest argument. (What a heavy bias it is to encourage a mind to hold a dagger at the
heart of a six-year old child, even if only metaphorically). If the reader will remember, when the
judge first brought up this section of the code earlier in the opinion, we showed that it was taken
out of context, and that it did not apply to the circumstances surrounding this case, in as much as
this section applies only in regards to a challenge to an "order of removal", and no "order of
removal" was ever issued in regards to Elian Gonzalez. The plaintiff is not challenging an
"order
of removal." The plaintiff is challenging the attorney General's refusal to process an asylum
application. Please refer back to Part 1,
pages 10 and 11 where this issue is dealt with in detail.
The fact that Section 1252 (b)(4)(D) applies only to the
review of orders of removal, coupled with the fact that no order of removal was ever issued,
makes the judge's conclusion in the last quoted paragraph, another gross factual error, and
therefore of no effect. The appeals court must disregard it completely, and irrevocably.
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The Judge continues:
| This
conclusion is bolstered by the
fact that within 8 U.S.C. § 1158(a)(2), Congress has provided for exceptions to the term
"[a]ny alien." These include aliens who: 1) may be removed to a safe third country, 2) have
failed to file for asylum within one year of arriving in the United States, or 3) have previously
applied for and been denied asylum. See 8 U.S.C. § 1158(a)(2). Thus, "[a]ny alien" was
evidently not intended by Congress literally to include all aliens.
|
In the above paragraph, the Judge is saying that the U.S.
Congress is giving us the false impression that "any alien" should be taken to mean "all"
aliens. The Judge is saying that the U.S. Congress is giving us the erroneous impression
that the phrase "any aliens" should be taken to mean that there are zero exceptions. But this is a
false premise, and again, a gross error on the Judge's part. Again, the Judge makes a mistake that
is
carried forward from a previous omission on his part. The text of Section 1158(a)(1) reads in
pertinent part: "(1) In general, any alien who is physically present in the United States .... may
apply for asylum...." He keeps leaving off the words "In general". The term "In general"
implies
that there will be exceptions, and the Congress listed those exceptions out in paragraph (2).
Therefore his conclusion cannot be "bolstered" by this observation because it is a completely
erroneous observation.
The Judge continues:
| Due to the
failure of 8 U.S.C.
§ 1158(a) to address minors, as well as the fact that the word "[a]ny" in "[a]ny alien" is
internally contradicted by 8 U.S.C. § 1158(a)(2), the Court concludes that the words "[a]ny
alien" cannot be read as literally as Plaintiff suggests to the Court,40 and that 8 U.S.C. §
1158(a), regardless of the reason,41 is sufficiently "silent or ambiguous" to warrant an analysis
under Chevron.
40 See United States v. Kirby, 74 U.S. (7
Wall.) 482, 486-87 (1868) ("All laws should receive a sensible construction. General terms
should be so limited in their application as not to lead to injustice, oppression, or an absurd
consequence. It will always, therefore, be presumed that the legislature intended exceptions to its
language, which would avoid results of this character. The reason of the law in such cases should
prevail over its letter.").
| [Moore Decision - pp. 45-46] |
|
First, as we have noted, if you take into account the
words "In general" you cannot conclude, as the Judge does, that "the word '[a]ny' in '[a]ny alien'
is internally contradicted by the listing of exceptions in 8 U.S.C. § 1158(a)(2)". This is
simply a gross factual error. And this tends more to the side of sophistry when you consider
similar "contradictions" that were right in front of his face in earlier sections of the code which
were of no concern to him. For example, in the discussion of Section 1103(a), the same pattern
appears, in as much as the language uses an all encompassing terminology in the first part of the
text, and then exceptions follow as a matter of logical necessity:
| Section 1103(a)
(1) The Attorney General shall be charged with the administration and enforcement of this
chapter and all other laws relating to the immigration and
naturalization of aliens, except insofar as this chapter or
such laws relate to the powers, functions, and duties conferred upon the President, the Secretary
of State, the officers of the Department of State, or diplomatic or consular officers: Provided,
however, [t]hat determination and ruling by the Attorney General with respect to all questions of
law shall be controlling. (emphasis added). |
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Secondly, given the rule of interpretation that was
quoted above, one must reach the opposite conclusion concerning the omission of any mention of
the issue of age. Again, the immigration law has many provisions that illustrate that the
Congress
is aware of the special needs of children. The fact that the Congress used the words "In general
any alien ..." and chose not to include any reference to age in paragraph (2), must be taken, not
only as an intentional omission, but as the desire of the Congress to have the special needs of
children addressed in the process of adjudicating the application.
Third, the Judge concludes that the law "is sufficiently
"silent or ambiguous" to warrant an analysis under Chevron." This is simply not the
case. Again, the artful use of the phrase "In General any Alien ..." is a bold statement of
limitation
upon the discretion of the Attorney General, eliminating that discretion nearly entirely, but not
quite, funneling the attention in a logical manner to paragraph (2) where the Congress lists the
exceptions they desire the Attorney General to take into account. Again, there is no mention of
age, and there is no mention of the role of the parent at this stage.
Concerning the footnote that was attached to the
preceding paragraph:
| 40 See
United
States v. Kirby, 74 U.S. (7 Wall.) 482, 486-87 (1868) ("All laws should receive a sensible
construction. General terms should be so limited in their application as not to lead to injustice,
oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature
intended exceptions to its language, which would avoid results of this character. The reason of
the law in such cases should prevail over its letter.").
|
These words represent a keen bit of wisdom. But the
Attorney General and this Judge have turned this wisdom upside down, and inside out. The key
words here are "injustice, oppression, and absurd consequences".
In the first regard, the facts of "injustice" and
"oppression" are well documented in the human rights reports produced by our own U.S.
Department of State in regards to the conditions that are prevalent in Cuba. The interpretation
and
twist put upon the law by the Attorney General would result in the delivery of Elian into the
clutches of a totalitarian police state where the fact of injustice, and the fact of
oppression will be the daily reality of that child. Therefore, it cannot be gainsaid, that
the
Attorney General's interpretation of the law will bring about the end result of injustice and
oppression. Judge Moore makes a substantial error in ignoring the fact that his ruling has
produced exactly the results which this precedent warns against.
In the second regard, the idea that the executive power
of the U.S. Government would deliver a child back into the arms of a communist dictator, where
that system of communism will twist that mind into a spineless subservience, through the use of
fear and terror, to an ideology that denies God, and justifies the enslavement of his people, and
this
after a brave mother gave her life to get that child to the land of freedom, and that child has
loving relatives in Miami who will care for him, is exactly the kind of "absurd consequence"
warned against in United States v. Kirby.
And this qualifies as an "absurd consequence" for an
additional reason. Our revered U.S. Constitution gives the federal government the authority to
guarantee a Republican form of Government in each state of the union. Therefore, the issue of
what kind of government we will live under is reduced to the issue of bloodshed. Notice that
there
is nothing in that part of the Constitution that has anything to say about negotiation. What we
are
talking about here is a life and death issue, the life and death of those who will be charged with
the
task of enforcing that provision if it ever came to that. If the form of government is a life and
death issue for us, it is a perversion of all we hold dear to maintain that the kind of government
under which Elian will live does not matter a wit.
The last sentence quoted reads: "The reason of the law
in such cases should prevail over its letter." The reason of the law. Because the asylum provision was
first added to the immigration law in 1980, we must observe that this was the very height of the
Cold War. The reason for the asylum provisions were to safeguard people, including children
from the oppression of communist governments. If they could reach the safety of America, they
were to be given the opportunity to stay. It is the Attorney General and this Judge who have
turned the law upside down in this regard, and produced this absurd conclusion, that the child
will
be returned to a communist dungeon based on the words of a father who is without a doubt under
the control of the communist government, at minimum through the instrumentation of a life of
indoctrination, and at maximum through the direct knowledge that if he would say anything
contrary to the Castro Government, he would face certain jail time, and make life very difficult
for
his own father and mother who remain in Cuba as vulnerable retirees.
This is what Castro means by "family values." In other
words, it works to Castro's advantage for the Cuban people to place an inordinate value on their
family members. If the Cuban people as a whole valued freedom over family, Castro could not
use threats against family members to keep people in line. But because the Cuban people are
programmed to value family over freedom, threats against family is a powerful lever to keep
people under the thumb of the Communist Party.
In this regard, it is well to make note of the fact that all
of Juan Miguel Gonzalez's closest family members back in Cuba, including his mother and
father,
have been moved out of their homes and into government compounds. This move carries an
obvious message. Perhaps the great majority of the American people do not understand this
message. But that really doesn't matter. What matters is that Juan Miguel Gonzalez understands
it, and there is no doubt that he undertstands it perfectly. Even on American soil he plays the
role
of the loyal communist revolutionary, not because he wants to, but because the lives of all family
members left behind in Cuba depend upon him playing that role flawlessly.
The Judge continues:
| Having found
that the statute is
"silent or ambiguous," the pertinent question is whether the Attorney General's construction of 8
U.S.C. § 1158(a) was a "permissible interpretation." The Court finds that, in light of the
discretion afforded to the Attorney General and the pertinent statutory provisions treating
children differently from adults, the interpretation of the Attorney General was permissible, and
relief cannot be awarded under Count II.
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The asylum procedures were designed to protect people
from oppression and persecution. Those who wrote this law had the truth clearly in view. They
understood that it was the right thing to do to provide refuge for these people. They understood
that it was the moral thing to do. But they also understood that those who suffered under the lash
of communist oppression would have a greater love for liberty, and would therefore make the
most
ideal citizens of the United States of America. Those who wrote this law could not have
anticipated, nor would they have agreed before hand, that the discretion of the Attorney General
would extend so far as to allow an instrument of oppression and persecution, i.e. Juan Miguel
Gonzalez, to have access to the asylum process itself for the purpose of denying another person,
i.e. Elian, access to the protection of this law. To allow an instrument of oppression and
persecution, i.e. Juan Miguel Gonzalez, to deny Elian access to the protection of the law is a
manifest violation of the spirit of this law, and therefore it cannot, by any stretch of the
imagination, be considered a "permissible construction".
Again, the asylum procedures were designed to protect
people from oppression and persecution. Therefore, the asylum procedures provide a refuge to
the
oppressed from the long arm of a totalitarian police state. Given this fact, what kind of mind
would consider it permissible to allow the long arm of that totalitarian police state to shut down
the
asylum process, and to close the door in Elian's face, and thus to leave Elian under the control of
that totalitarian police state? It is a mind that has betrayed the spirit of the law, and in giving aid
and comfort to the very purveyors of oppression, has betrayed the spirit of liberty.
This performance by Judge K. Michael Moore is
deserving of impeachment. A mind and a soul that is so adverse to the spirit of truth, and to the
spirit of liberty which undergirds our institutions, has no business sitting as a federal judge. The
honorable thing for him to do, would be to resign his position, step down from the federal bench,
and thereby leave some fragrance of honor in his wake.
It can only be hoped that his infamy, masquerading as
judicial temperment, will ignite some outrage among the general population, and might thereby
add
some momentum to the drive to abolish lifetime tenure for federal judges, and substitute in lieu
thereof, a reasonable term of office that will allow the people to escape the level of incompetance
this judge has exhibited.
The highlights of Judge Moore's incompetance is rather
depressing, three out of four represent gross and elementary errors in language interpretation, the
fourth being simply the blindness of a bigoted mind:
A. Section 1103(a) - This section sets forth the general authority of the Attorney General
over Immigration matters, with the exception of those areas that are under the purview of the
President and the Department of State. In areas where an overlap of responsibility occurs, the
section sets forth a rule granting the Attorney General the last word in matters of law. This rule,
applying only to controveries between executive departments, cannot apply to the Elian
Gonzalez
situation, because no controversy between executive departments existed. Nevertheless, Judge
Moore pulled this rule out of context, and uses it throughout the remainder of the decision as
cornerstone of his reasoning. All of his reasoning was based on this false foundation. This is
gross error in language interpretation.
B. Section 1158(a)(1) - Judge Moore repeatedly left off two (2) crucial words, i.e.
"In General", that are essential to a proper interpretation of this section, allowing him to reach an
incorrect conclusion concerning a) the supposed inadequacy of guidance contained therein, and
b)
the appearance of contradiction between paragraph (1) and paragraph (2). When all of the words
of the section are taken into account, the meaning is clear, and there are no contradictions.
Nevertheless, his erroneous conclusions regarding this section form additional false supports for
his ruling. This is at least a gross error in language interpretation, and at worst a bold attempt to
amend the law itself, creating ambiguity and contradiction where none previously existed.
C. Section 1252 (b)(4)(D) - This section generally applies to the review of orders of
removal. Subsection (b) paragraph (4) clause (D) applies to that general activity, i.e. the review
of
orders of removal. Notwithstanding the fact that no order of removal was ever issued in regards
to Elian Gonzalez, Judge Moore applies the directives and criteria in this section to Elian
Gonzalez anyway, 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. This is a gross
error in language interpretation.
D. Precedents Generally - The judge cited several precedents in support of his
authority to hear this case. Several of those precedents had direct bearing on several of the most
fundamental issues in this case. The judge showed a very high degree of narrow self interest by
applying those precedents very effectively to support his own authority to hear the case, while at
the same time sweeping those precedents off of the radar screen whenever they might have
something to say in support of the plaintiffs interests. This represents the gross blindness of a
bigoted mind.
Judge K. Michael Moore had an agenda, at root, to
make
the statement that life can be normal under Communism, that people can be happy under
Communism, and therefore the hearts of the American people can legitimately bleed for the
painful seperation between Elian Gonzalez and papa Castro's loving arms, and in this respect, the
heart of this Judge meshed with the heart of Bill Clinton, and his Attorney General Janet Reno.
Make no mistake about it. When America reaches the
bottom of this slipperly slope of relativism, and we are faced with the real prospect of an
absolute
dictatorship in America, a very large segment of the population will have already been prepared
to
accept it, and those of us who champion the right of Elian to live in the land of freedom today,
will
be seen as their enemies in that day. Just as the true friends of freedom in Cuba appear to
be powerless when it comes to turning back the tide of Communism there, so too, will that day
come to America, when those who love freedom will be marginalized by the propaganda of the
state, to the status of outlaw and outcast.
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What do you think and feel about what you have just read? Please put your thoughts and feelings
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Version 1.0, posted May 19, 2000
© Copyright 2000 Homeward Bound
The Journal of Ascended Master Devotion
all rights reserved
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