What follows are excerpts from the exchange between the three-judge appellate
 court panel hearing the Elian Gonzalez case and attorneys arguing the case. The
 judges are James Edmondson, Charles Wilson and Joel Dubina. The lawyers are
 Kendall Coffey, for the Miami relatives; Edwin Kneedler, the deputy solicitor
 general of the United States, for the government; and Gregory Craig, for Elian's
 father, Juan Miguel Gonzalez. The transcript from which these excerpts were
 taken was prepared by Donna C. Keeble, the official court reporter.

 Questions for Kendall Coffey

 EDMONDSON: Mr. Coffey, come around and speak to us, please.

 COFFEY: Good morning, your honor. This is Kendall Coffey for the appellant.

 Few things can be more compelling in either law or life itself than the cause of a
 child, and before you this morning for the rights of a young boy to be protected
 from potentially serious harm of a police state.

 The United States Congress has, without qualification, or reservation of any kind,
 established asylum laws with arms that enforce young children within their
 protection.

 The mandatory will of the Congress and the mandatory statements of the
 regulations should have been enough for any responsible agency but, instead, the
 INS has done everything possible to avoid the required hearing.

 WILSON: Mr. Coffey, is it your contention that the INS has absolutely no
 discretion whatsoever to determine whether an asylum application is properly
 submitted?

 COFFEY: Your honor, it does not. . . .

 WILSON: No discretion whatsoever?

 COFFEY: None, you honor. In fact --

 WILSON: Well, let me pose a hypothetical to you. . . . Let's say a teenage baby
 sitter for a 2-year-old alien child takes that child downtown to the INS office while
 his parents are at the movies and has him scribble his first name on an asylum
 application and the parents come running down an hour or two later screaming, ``I
 speak for my child, this baby sitter doesn't speak for my child,'' you're telling me
 that the INS doesn't have any discretion whatsoever, they have to go through the
 time and the expense of having a formal asylum hearing?

 COFFEY: Your honor, if the form is facially sufficient, on its face, their own
 regulations say that there shall be a hearing. . . .

 WILSON: Can there be an application, though, if the child does not have the
 capacity to fill out the form?

 COFFEY: Well, your honor, of course, that's not the case. We have a 6-year-old
 and I think the guidelines, the INS's own announced procedures, are very clear
 that a 6-year-old can seek asylum. . . .

 DUBINA: It seems to me that the government in its brief has conceded that the
 district court got the statutory interpretation wrong and that any alien could
 include a child such as Elian. . . . The problem then is, though, and as they
 framed the issue in their brief, did he apply in this case. Do you agree that that is
 the way the issue ought to be framed?

 COFFEY: That's the issue now, in their brief.

 DUBINA: Do you agree that's the way the issue ought to be framed?

 COFFEY: No, your honor, I don't. I think he did apply. . . .

 WILSON: What if you have multiple applications on behalf of a child, someone
 has got to decide who speaks for the child, right?

 COFFEY: That's right, your honor.

 WILSON: Well, then who makes that decision?

 COFFEY: You look at the guidelines. And what the guidelines say is that the
 child can speak for the child if the child is acting voluntarily. . . . This child,
 according to the evidence, was more than sufficiently competent to express his
 desire to invoke a chance to stay in this country.

 WILSON: But I've reviewed this asylum application and I'm sure Elian Gonzalez is
 a very bright and intelligent 6-year-old but he didn't even have the ability to sign
 his last name on that asylum petition.

 COFFEY: Your honor, many aliens, many aliens have to rely on adults, lawyers,
 Catholic services, a range of folks to help them with the process . . .

 WILSON: I'm going to read one of the questions or one of the questions on a
 standard form asylum application. . . . One of the questions is, ``Have you or any
 member of your family ever belonged to or been associated with any organization
 or groups in your home country such as, but not limited to, a political party,
 student group, labor union, religious organization, military or paramilitary group,
 civil patrol, guerrilla organizations, ethnic group, human rights group or press or
 the media?''

 You're telling me that a 6-year-old is competent to answer that?

 COFFEY: Your honor, I don't think a 6-year-old can answer in detail all of the
 questions, but what the law says is that there is an age-appropriate process for
 6-year-olds. . . .

 WILSON: Well, I've read the answers, the answers on this asylum application,
 and they all appear to be written in the third person and reflect maybe a fear of
 persecution on behalf of someone else, like maybe the person who is submitting
 the asylum application on behalf of Elian Gonzalez. Doesn't it appear that this is
 really an expression of a fear of persecution on behalf of someone other than the
 petitioner himself?

 COFFEY: Well, your honor, you can certainly have, in a sense, situations where a
 child can be subjected to harm because of identification with family members . . .
 and here you have a child who was identified with a stepfather, a mother who gave
 her life to bring him to this country, as well as now the U.S. relatives, all of whose
 actions are crimes in Cuba . . .

 WILSON: Well, the Supreme Court ruled . . . that an asylum seeker . . . must
 offer evidence of four things: Number One, that he has been a victim of
 persecution; secondly, that he holds a political opinion; thirdly, that his political
 opinion is known to his persecutors; and fourth, that the persecution has been or
 will be on account of his political opinion. And you're telling me that the INS does
 not have the discretion to take a look at this asylum application and determine
 that this 6-year-old is unable to meet those four prongs of the test?

 COFFEY: Your honor, they can't do that. . . .

 WILSON: So the INS's hands are tied? If a kidnapper brings in a 6-month-old
 child, they got to go through the time and the expense of an asylum hearing?

 COFFEY: Your honor, I think that if a kidnapper comes in with a 6-month-old child
 --

 WILSON: And a prior criminal record.

 COFFEY: And a prior criminal record, then the INS officer can make . . . a
 determination that this is not the will of the child . . . But that is far from the case
 here.

 WILSON: Well, there is some discretion on the part of the INS then?

 COFFEY: Your honor, I guess what I would say is the issue is did this child seek
 asylum? . . . The evidence that we have before you is that this child did want to
 stay here. . . .

 Questions for Edwin Kneedler

 EDMONDSON: Mr. Kneedler, would you come up and speak on behalf of the
 government, please?

 KNEEDLER: Thank you, your honor.

 EDMONDSON: Let me call your attention to a couple of things that worry me.

 KNEEDLER: Yes, sir.

 EDMONDSON: Let's assume for the sake of argument, that the INS has
 considerable discretion about determining what is an application at all. And let's
 assume, for the sake of argument, that the INS has some discretion as to who
 may file on behalf of a 6-year-old child. . . . The first problem I have is this: . . . the
 adult who applied for Elian Gonzalez is not some stranger; he is a blood relative.
 . . . The parent, on the other hand, resided out of the country altogether. I have a
 question . . . about the idea that the INS can have a discretionary policy that
 where the sole natural parent is not within the jurisdiction of the United States
 himself, that he does not have the exclusive right to file, or that he does have. I
 guess your policy is, as I understand it, absent certain special circumstances,
 the sole surviving parent has the exclusive right to either apply or not apply.

 The problem we're talking about [is] . . . in American courts, I think a wider variety
 of people can act as next of friend other than the natural parent, even if the natural
 parent is present. . . .

 Here is what the other problem I have is: I worry about whether there is inherently
 a conflict of interest that is substantial where the child is within the jurisdiction of
 the United States and the sole parent is not only beyond the jurisdiction of the
 United States but is a resident in what I understand our State Department calls a
 communist totalitarian state. . . .

 KNEEDLER: With respect to the first, on whether the parent who is outside the
 country . . . you look to the relationship of parent and child and you look to the
 relationship under the law of the domicile, or the law where the relationship arose.
 . . . I think both in U.S. law and in the international community the sacred bond
 between parent and child does not depend on where the parent or the child
 happens to be at any particular moment in time. . . .

 It is true that people other than parents can be next friends when circumstances
 require but the sequence under the law and under practice is that the parent
 presumptively speaks for a young child in making life decisions.

 EDMONDSON: Let me tell you what I think . . . that there are a wide variety of
 relations that may come into a court and claim to be next friend and can lawfully
 serve without even accounting for what the natural parent's wishes are. . . . OK.
 So let's talk about the conflict of interest.

 KNEEDLER: I do not think that that . . . is not the sort of conflict of interest that
 would disqualify the parent from presumptively having a say. . . . Under our
 constitutional system, difficult choices as well as easy choices are vested in the
 parent.

 DUBINA: You seem to concede in your brief that the district court erred in its
 interpretation of any alien. So then we get to the question of the capacity, did
 Elian have a capacity. . . . What did the INS base its decision on that Elian did
 not have the capacity to file a petition for asylum?

 KNEEDLER: What it based its decision on is that Elian at age 6 was far below
 the range of age suggested in the Polavchak decision. . . . And then secondly . . .
 there has been no indication in the evidence that was submitted to her [INS
 Commissioner Doris Meissner] that Elian Gonzalez possessed or articulated . . .
 subjective fear of persecution on the grounds identified within the statute; and the
 third, that Elian Gonzalez was unable to swear or affirm to the truth of the
 contents of the application on which the asylum was sought.

 DUBINA: If Elian's mother had survived this tragic journey, is there any doubt in
 your mind that her petition as well as her son's petition for asylum would have
 been granted by the INS?

 KNEEDLER: If his mother had survived, it probably would not have been
 necessary to invoke the asylum process, because there is a special statute in
 the Cuban Adjustment Act and parole policies that build on that that would have
 allowed them to stay, because there, you would have had a parent who said, ``I
 want to stay here.'' And the great majority of Cuban Americans who have come to
 this country and gotten protection under that general statute, not under the
 asylum statute. And, in fact, those that are interdicted, the great majority of them
 are found not to be refugees within the meaning of the Act and are returned.

 WILSON: The appellant relies very heavily upon the fact that there are certain INS
 guidelines that are in effect that were not followed in this particular case.

 KNEEDLER: Those guidelines . . . presuppose that there has been an application
 filed and they discuss what an asylum officer should do. . . . They do not speak
 to the antecedent question of whether there has been a valid asylum application
 filed. . . . They . . . do not speak to the situation of whether a minor child can
 apply for asylum over the objections of the parent.

 Questions for Gregory Craig

 EDMONDSON: Mr. Craig, would you come up and speak to us, please?

 CRAIG: Thank you, your honor . . .

 DUBINA: I have but one question and then I'll leave you alone. . . . Will you
 explain to us why it took your client five months to leave Cuba, to come to the
 United States to see his son, after he learned that his son had survived?

 CRAIG: His position throughout this was that if I was confident that I would be
 given my son the day I arrived in the United States, I would have been there
 immediately. . . . The ground rules of the battle had been set within two or three
 days after this poor boy's arrival and the politics had intruded into what should
 have been essentially a family affair, and it may well have deterred Juan Miguel's
 willingness to go. I begin with that little history that the signals that were coming
 down to Cuba from Miami were, ``We're not going to let this boy go, no matter
 what.''

 The second thing to point out is that these are two very hostile bureaucracies and
 this is a simple man who lives in Cardenas. It is not an easy thing for any Cuban
 national to get a visa approved either by his government or the government of the
 United States. . . .

                     Copyright 2000 Miami Herald