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Statutory Foreign Affairs Preemption (2001)
| Citations: | 25 - 0 self |
BibTeX
@MISC{Goldsmith01statutoryforeign,
author = {Jack Goldsmith and Jack Goldsmith},
title = {Statutory Foreign Affairs Preemption},
year = {2001}
}
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Abstract
In November 1999, Florida fishermen found the six-year old Cuban boy Elian Gonzalez drifting at sea off the coast of Florida. The boat carrying Elian, his mother, and eleven others from Cuba had capsized two days earlier. The Immigration and Naturalization Service (“INS”) took custody of Elian and then paroled him into the custody of his Miami uncle, Lazaro Gonzalez. Lazaro sought political asylum on Elian’s behalf, but Elian’s Cuban father represented that he wanted the application withdrawn. The INS eventually determined that the father, not the uncle, had the exclusive rights to control the asylum application. Because Lazaro’s control over Elian extended only to the extent granted by the INS parole, Lazaro filed an action in a Florida state court seeking temporary custody over the child. Family law is at the core of the states ’ reserved powers. Supreme Court jurisprudence suggests that Congress lacks the authority to regulate many aspects of family law, including the law of custody. 1 Moreover, nothing in the federal immigration statutes or regulations speaks to the validity of state power to award custody over an unaccompanied minor alien. Nonetheless, the Florida court had little difficulty in concluding that federal immigration law preempted Lazaro’s state law custody action. The essence of the court’s reasoning was as follows: “While
Keyphrases
statutory foreign affair preemption family law temporary custody elian cuban father regulation speaks little difficulty state power in parole federal immigration statute many aspect lazaro gonzalez florida fisherman asylum application florida state court elian behalf political asylum supreme court jurisprudence federal immigration law lazaro state law custody action unaccompanied minor alien application withdrawn exclusive right naturalization service miami uncle florida court
