Agency Discretion and the Concept of Deference Essay

In a paper of 1,500-1,750 words, address the following:Assess deference and the discretion that is afforded in an agency’s interpretation of its own rule, such as outlined in the Chevron decision.Use the Elian Gonzales case in Chapter 3 to help explain the concept of deference and how it was applied in that case.Assess the benefits and detriments of agency discretion as it relates to outcomes of administrative decisions.
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212 F.3d 1338 (11th Cir. 2000)This case, at first sight, seems to be about little more than a child and his
father. But, for this Court, the case is mainly about the separation of powers under our consti-tutional
system of government: a statute enacted by Congress, the permissible scope of executive discretion
under that statute, and the limits on judicial review of the exercise of that executive discretion.Elian
Gonzalez (“Plaintiff”), a six-year-old Cuban child, arrived in the United States alone. His father in Cuba
demanded that Plaintiff be returned to Cuba. Plain-tiff, however, asked to stay in the United States; and
asylum applications were sub-mitted on his behalf. The Immigration and Naturalization Service (“INS”)—
after, among other things, consulting with Plaintiff’s father and considering Plaintiff’s age—decided that
Plaintiff’s asylum applications were legally void and refused to consider their merit. Plaintiff then filed
this suit in federal district court, seeking on several grounds to compel the INS to consider and to
determine the merit of his asylum applications. The district court dismissed Plaintiff’s suit. . . .In
December 1993, Plaintiff was born in Cuba to Juan Miguel Gonzalez and Elizabeth Gonzalez. When
Plaintiff was about three years old, Juan Miguel and Elizabeth separated. Elizabeth retained custody of
Plaintiff after the separation. Juan Miguel, however, continued to have regular and significant contact
with his son. Plaintiff, in fact, attended school in the district where his father lived and often stayed at
Juan Miguel’s home.In November 1999, Elizabeth decided to leave Cuba and to take her son to the
United States. In the pre-dawn hours of 22 November, Plaintiff and Elizabeth, along with twelve other
Cuban nationals, left Cuba aboard a small boat. The next day, the boat capsized in strong winds and
rough seas off the coast of Florida. Eleven of the passengers, including Elizabeth, died. Plaintiff, clinging
to an inner tube, endured and survived.Two days later, Plaintiff was rescued at sea by Florida fishermen
and was taken to a hospital in Miami for medical treatment. While Plaintiff was receiving medical
treatment, the INS was contacted by Plaintiff’s great-uncle: Miami resident Lazaro Gonzalez. INS officials
decided, upon Plaintiff’s release from the hospital, not to remove Plaintiff immediately to Cuba. Instead,
the INS deferred Plaintiff’s immigra-tion inspection and paroled Plaintiff into Lazaro’s custody and
care.Soon thereafter, Lazaro filed an application for asylum on Plaintiff’s behalf with the INS. . . . The
applications [three applications for asylum were filed] stated that Plaintiff “is afraid to return to Cuba.”
The applications claimed that Plaintiff had a well-founded fear of persecution because many members
of Plaintiff’s family had been persecuted by the Castro government in Cuba. . . . The applications also
alleged that, if Plaintiff were returned to Cuba, he would be used as a propaganda tool for the Castro
government and would be subjected to involuntary indoctrina-tion in the tenets of
communism.Plaintiff’s father, however, apparently did not agree that Plaintiff should remain in the
United States. Soon after Plaintiff was rescued at sea, Juan Miguel sent to Cuban officials a letter, asking
for Plaintiff’s return to Cuba. The Cuban govern-ment forwarded this letter to the INS.Because of the
conflicting requests about whether Plaintiff should remain in the United States, INS officials interviewed
both Juan Miguel and Lazaro. An INS official, on 13 December, met with Juan Miguel at his home in
Cuba. At that meet-ing, Juan Miguel made this comment:[Plaintiff], at the age of six, cannot make a
decision on his own. . . . I’m very grate-ful that he received immediate medical assistance, but he should
be returned to me and my family. . . . As for him to get asylum, I am not allowing him to stay or claim
any type of petition; he should be returned immediately to me. . . .On 31 December, an INS official again
met with Juan Miguel in Cuba to investigate further Lazaro’s claim that Juan Miguel’s request had been
coerced. At that meeting, Juan Miguel repeated that he desired Plaintiff’s return to Cuba. Juan Miguel
also reasserted that he was under no undue influence from any individual or government. The INS
official—taking Juan Miguel’s demeanor into account— determined that Juan Miguel, in fact, genuinely
desired his son’s return to Cuba.[Plaintiffs claimed that the INS abused its discretion by not adjudicating
the asylum claim.] The INS Commissioner, on 5 January 2000, rejected Plaintiff’s asylum applications as
legally void. The Commissioner—concluding that six-year-old children lack the capacity to file personally
for asylum against the wishes of their parents—determined that Plaintiff could not file his own asylum
applications. Instead, according to the Commissioner, Plaintiff needed an adult representative to file for
60 Chapter 3asylum on his behalf. The Commissioner—citing the custom that parents generally speak
for their children and finding that no circumstance in this case warranted a departure from that
custom—concluded that the asylum applications submitted by Plaintiff and Lazaro were legally void and
required no further consideration. . .Our consideration of Plaintiff’s statutory claim must begin with an
exami-nation of the scope of the statute itself. . . . “First, always, is the question whether Congress has
directly spoken to the precise question at issue. 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.”. . . We turn, therefore, to the plain language of the statute.Section 1158 provides, in
pertinent part:Any alien who is physically present in the United States or who arrives in the United
States (whether or not at a designated port of arrival and including an alien who is brought to the United
States after having been interdicted in inter-national or United States waters), irrespective of such
alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b)
of this title.[This statute] is neither vague nor ambiguous. The statute means exactly what it says: “[a]ny
alien . . . may apply for asylum.”. . . The important legal question in this case, therefore, is not whether
Plaintiff may apply for asylum; that a six-year-old is eligible to apply for asylum is clear. The ultimate
inquiry, instead, is whether a six-year-old child has applied for asylum within the meaning of the statute
when he, or a non-parental relative on his behalf, signs and submits a purported application against the
express wishes of the child’s parent.About this question, more important than what Congress said in
section 1158 is what Congress left unsaid. In reading statutes, we consider not only the words Congress
used, but the spaces between those words. Section 1158 is silent on the precise question at issue in this
case. Although section 1158 gives “[a]ny alien” the right to “apply for asylum,” the statute does not
command how an alien applies for asylum. The statute includes no definition of the term “apply.” The
statute does not set out procedures for the proper filing of an asylum application. Furthermore, the
statute does not identify the necessary contents of a valid asylum application. In short, although the
statute requires the existence of some application procedure so that aliens may apply for asylum,
section 1158 says nothing about the particulars of that procedure. See 8 U.S.C. § 1158.Because the
statute is silent on the issue, Congress has left a gap in the statu-tory scheme. From that gap springs
executive discretion. As a matter of law, it is not for the courts, but for the executive agency charged
with enforcing the statute (here, the INS), to choose how to fill such gaps. . . . Moreover, the authority of
the executive branch to fill gaps is especially great in the context of immigration policy. . . . Our proper
review of the exercise by the executive branch of its discretion to fill gaps, therefore, must be very
limited. . . .The INS, in its discretion, decided to require six-year-old children—who arrive
unaccompanied in the United States from Cuba—to act in immigration matters only through (absent
special circumstances) their parents in Cuba. The INS could have shaped its policy in a different fashion,
perhaps allowing relatives (for example, those within the fourth degree of relationship) in the United
States to act for such children. But it did not, and we cannot. That choice was the sole prerogative of the
executive branch. According to the principles set out in Chevron, we can only disturb that choice if it is
unreasonable. . . .That the courts owe some deference to executive policy does not mean that the
executive branch has unbridled discretion in creating and in implementing pol-icy. Executive agencies
must comply with the procedural requirements imposed by statute. . . . Agencies must respect their own
procedural rules and regulations . . . and ISBN 1-323-25497-8Administrative Law: Bureaucracy in a
Democracy, Sixth Edition, by Dr. Daniel E. Hall. Published by Prentice Hall. Copyright © 2015 by Pearson
Education, Inc. asylum on his behalf. The Commissioner—citing the custom that parents generally speak
for their children and finding that no circumstance in this case warranted a departure from that
custom—concluded that the asylum applications submitted by Plaintiff and Lazaro were legally void and
required no further consideration. . .Our consideration of Plaintiff’s statutory claim must begin with an
exami-nation of the scope of the statute itself. . . . “First, always, is the question whether Congress has
directly spoken to the precise question at issue. 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.”. . . We turn, therefore, to the plain language of the statute.Section 1158 provides, in
pertinent part:Any alien who is physically present in the United States or who arrives in the United
States (whether or not at a designated port of arrival and including an alien who is brought to the United
States after having been interdicted in inter-national or United States waters), irrespective of such
alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b)
of this title.[This statute] is neither vague nor ambiguous. The statute means exactly what it says: “[a]ny
alien . . . may apply for asylum.”. . . The important legal question in this case, therefore, is not whether
Plaintiff may apply for asylum; that a six-year-old is eligible to apply for asylum is clear. The ultimate
inquiry, instead, is whether a six-year-old child has applied for asylum within the meaning of the statute
when he, or a non-parental relative on his behalf, signs and submits a purported application against the
express wishes of the child’s parent.About this question, more important than what Congress said in
section 1158 is what Congress left unsaid. In reading statutes, we consider not only the words Congress
used, but the spaces between those words. Section 1158 is silent on the precise question at issue in this
case. Although section 1158 gives “[a]ny alien” the right to “apply for asylum,” the statute does not
command how an alien applies for asylum. The statute includes no definition of the term “apply.” The
statute does not set out procedures for the proper filing of an asylum application. Furthermore, the
statute does not identify the necessary contents of a valid asylum application. In short, although the
statute requires the existence of some application procedure so that aliens may apply for asylum,
section 1158 says nothing about the particulars of that procedure. See 8 U.S.C. § 1158.Because the
statute is silent on the issue, Congress has left a gap in the statu-tory scheme. From that gap springs
executive discretion. As a matter of law, it is not for the courts, but for the executive agency charged
with enforcing the statute (here, the INS), to choose how to fill such gaps. . . . Moreover, the authority of
the executive branch to fill gaps is especially great in the context of immigration policy. . . . Our proper
review of the exercise by the executive branch of its discretion to fill gaps, therefore, must be very
limited. . . .The INS, in its discretion, decided to require six-year-old children—who arrive
unaccompanied in the United States from Cuba—to act in immigration matters only through (absent
special circumstances) their parents in Cuba. The INS could have shaped its policy in a different fashion,
perhaps allowing relatives (for example, those within the fourth degree of relationship) in the United
States to act for such children. But it did not, and we cannot. That choice was the sole prerogative of the
executive branch. According to the principles set out in Chevron, we can only disturb that choice if it is
unreasonable. . . .That the courts owe some deference to executive policy does not mean that the
executive branch has unbridled discretion in creating and in implementing pol-icy. Executive agencies
must comply with the procedural requirements imposed by statute. . . . Agencies must respect their own
procedural rules and regulations . . . and Agency Discretion 61the policy selected by the agency must be
a reasonable one in the light of the statu-tory scheme. . . . To this end, the courts retain the authority to
check agency poli-cymaking for procedural compliance and for arbitrariness. But the courts cannot
properly reexamine the wisdom of an agency-promulgated policy. . . .We accept that the INS policy at
issue here comes within the range of reason-able choices. First, we cannot say that the foundation of
the policy—the INS deter-mination that six-year-old children necessarily lack sufficient capacity to
assert, on their own, an asylum claim—is unreasonable. . . . Because six-year-old children must have
some means of applying for asylum, see 8 U.S.C. § 1158(a)(1), and because the INS has decided that the
children cannot apply personally, the next element of the INS policy—that a six-year-old child must be
represented by some adult in applying for asylum—necessarily is reasonable.The INS determination that
ordinarily a parent (even one outside of this country)—and, more important, only a parent—can act for
his six-year-old child (who is in this country) in immigration matters also comes within the range of
reasonable choices. In making that determination, INS officials seem to have taken account of the
relevant, competing policy interests: the interest of a child in asserting a non-frivolous asylum claim; the
interest of a parent in raising his child as he sees fit; and the interest of the public in the prompt but fair
disposition of asylum claims. The INS policy—by presuming that the parent is the sole, appropriate
representa-tive for a child—gives paramount consideration to the primary role of parents in the
upbringing of their children. But we cannot conclude that the policy’s stress on the parent-child
relationship is unreasonable.We are not untroubled by the degree of obedience that the INS policy
appears to give to the wishes of parents, especially parents who are outside this country’s jurisdiction.
Because Congress has decided that “[a]ny alien” (including six-year-old children) may apply for asylum, 8
U.S.C. § 1158(a)(1), Congress has charged the INS—when it promulgates policy and fills gaps in the
statutory scheme—with facilitation, not hindrance, of that legislative goal. . . . We recognize that, in
some instances, the INS policy of deferring to parents—especially those residing outside of this
country—might hinder some six-year-olds with non-frivolous asylum claims and prevent them from
invoking their statutory right to seek asylum. But, consid-ering the well-established principles of judicial
deference to executive agencies, we cannot disturb the INS policy in this case just because it might be
imperfect. . . . And we cannot invalidate the policy—one with international-relations implications—
selected by the INS merely because we personally might have chosen another. . . . Because we cannot
say that this element of the INS policy—that, ordinarily, a parent, and only a parent, can act for a sixyear-old child in immigration matters—is unrea-sonable, we defer to the INS policy.The final aspect of
the INS policy also worries us some. According to the INS policy, that a parent lives in a communisttotalitarian state is no special circumstance, Elian Gonzalez with Cuban President Castro in
2005.(continued)ISBN 1-323-25497-8Administrative Law: Bureaucracy in a Democracy, Sixth Edition, by
Dr. Daniel E. Hall. Published by Prentice Hall. Copyright © 2015 by Pearson Education, Inc. Agency
Discretion 59consider their merit. Plaintiff then filed this suit in federal district court, seeking on several
grounds to compel the INS to consider and to determine the merit of his asylum applications. The
district court dismissed Plaintiff’s suit. . . .In December 1993, Plaintiff was born in Cuba to Juan Miguel
Gonzalez and Elizabeth Gonzalez. When Plaintiff was about three years old, Juan Miguel and Elizabeth
separated. Elizabeth retained custody of Plaintiff after the separation. Juan Miguel, however, continued
to have regular and significant contact with his son. Plaintiff, in fact, attended school in the district
where his father lived and often stayed at Juan Miguel’s home.In November 1999, Elizabeth decided to
leave Cuba and to take her son to the United States. In the pre-dawn hours of 22 November, Plaintiff
and Elizabeth, along with twelve other Cuban nationals, left Cuba aboard a small boat. The next day, the
boat capsized in strong winds and rough seas off the coast of Florida. Eleven of the passengers, including
Elizabeth, died. Plaintiff, clinging to an inner tube, endured and survived.Two days later, Plaintiff was
rescued at sea by Florida fishermen and was taken to a hospital in Miami for medical treatment. While
Plaintiff was receiving medical treatment, the INS was contacted by Plaintiff’s great-uncle: Miami
resident Lazaro Gonzalez. INS officials decided, upon Plaintiff’s release from the hospital, not to remove
Plaintiff immediately to Cuba. Instead, the INS deferred Plaintiff’s immigra-tion inspection and paroled
Plaintiff into Lazaro’s custody and care.Soon thereafter, Lazaro filed an application for asylum on
Plaintiff’s behalf with the INS. . . . The applications [three applications for asylum were filed] stated that
Plaintiff “is afraid to return to Cuba.” The applications claimed that Plaintiff had a well-founded fear of
persecution because many members of Plaintiff’s family had been persecuted by the Castro government
in Cuba. . . . The applications also alleged that, if Plaintiff were returned to Cuba, he would be used as a
propaganda tool for the Castro government and would be subjected to involuntary indoctrina-tion in the
tenets of communism.Plaintiff’s father, however, apparently did not agree that Plaintiff should remain in
the United States. Soon after Plaintiff was rescued at sea, Juan Miguel sent to Cuban officials a letter,
asking for Plaintiff’s return to Cuba. The Cuban govern-ment forwarded this letter to the INS.Because of
the conflicting requests about whether Plaintiff should remain in the United States, INS officials
interviewed both Juan Miguel and Lazaro. An INS official, on 13 December, met with Juan Miguel at his
home in Cuba. At that meet-ing, Juan Miguel made this comment:[Plaintiff], at …
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