Is a Communist Father Still a Worthy Father? Ins Discretion and Miami Asylum Politics

Posted: 12 Feb 2001

See all articles by David Abraham

David Abraham

University of Miami - School of Law


This paper reviews various court rulings in the well-known case of Elian Gonzalez. The opinion by the consistently conservative 11th Circuit relied on the power of administrative discretion as elaborated in the Chevron doctrine. Appparently even those who are persuaded of Cuba's "totalitarian" nature and who "may disagree" with INS choices and decisions, were compelled to defer to agency actions that were "not unreasonable, not capricious, and not arbitrary, but were reasoned and reasonable." There is little doubt that, without such insulation, the INS would have succumb to the extraordinary pressures of right-wing politics driving the case. Right wing publicists and politicians, usually adamant in defense of family and parental rights, felt it essential that a boy be taken from his Communist father and raised in America. Joined by a tremendously resilient and powerful ancient regime establishment in Miami, one dependent on such symbolic struggles to sustain its domination over an entire community, it was only a strong form of administrative discretion that prevented the unjustifiable removal of a child from his parent.

Suggested Citation

Abraham, David, Is a Communist Father Still a Worthy Father? Ins Discretion and Miami Asylum Politics. Available at SSRN:

David Abraham (Contact Author)

University of Miami - School of Law ( email )

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