The New York Times, April 20, 2000
While Elián Waits
Editorial. April 20, 2000
A federal appellate court further complicated the Elián González case yesterday by giving new life to the idea that the young Cuban boy may be eligible on his own to seek asylum in the United States. A definitive judgment on that issue awaits further court deliberation, a process
that may take many weeks. But while Elián remains in the country -- the appellate court barred his departure until the asylum issue can be decided -- he should be returned to the custody of his father, Juan Miguel González.
The case is now unfolding along two related but distinct legal tracks. The question of whether Elián, at the age of 6, is entitled to seek asylum will be reviewed by the 11th Circuit Court of Appeals in Atlanta. Three judges from that court took the preliminary step yesterday of
prohibiting Elián's return to Cuba while the court considers the matter, which it is expected to do next month. In surprisingly strong language, the court complained that the Immigration and Naturalization Service had rejected the asylum application without ever interviewing Elián
himself. Whether that presages an eventual ruling that permits Elián to seek asylum is impossible to know, as the court itself cautioned.
But adjudication of the asylum issue, which is likely to wind up before the Supreme Court, need not, and should not, prevent Elián from being reunited with his father. Juan Miguel González is in Washington, and before yesterday's court order had promised to remain in the United
States until the asylum issue was resolved.
The appellate court's limited injunction does not prohibit the government from transferring care of Elián from his Miami relatives to his father. Though the court declined to order the transfer itself, its action leaves the I.N.S. and Attorney General Janet Reno free to reunite father and
son. Elián's Miami relatives have no legal right to hold Elián. Their status as temporary caregivers has been revoked by the I.N.S.
Ms. Reno has shown commendable restraint, and is wise to avoid a confrontation in Miami between federal authorities and Cuban-Americans who oppose Elián's return to his father. She must continue to apply the pressure of the law against the family. She should seek an affirmative court
order from a federal district judge to direct the relatives to turn Elián over to the I.N.S. for transfer to his father. If they defy such an order, they could be held in contempt of court and face serious legal sanctions. It now seems clear that Elián is likely to remain in America
for some time. It is time he should spend with his father, not his great-uncle.
Cuban Boy Stays in U.S. for Now, a Court Decides
By Rick Bragg.
MIAMI, April 19 -- Champagne and exhilaration washed along the street in Little Havana today, as a federal appeals court not only extended an order that will keep 6-year-old Elián González in the United States until the court hears the full appeal of his case but also criticized
the way government officials handled his request for asylum.
The United States Court of Appeals for the 11th Circuit, in Atlanta, today barred anyone from taking Elián from the country until it heard the child's case on May 11, and, in pointed language, suggested that his Miami relatives' efforts to have his request for asylum heard in court should
not have been ignored.
It was, in a legal sense, only a ruling on an emergency injunction to keep the child in this country for a few more weeks, but the language seemed to chastise the government for asserting that only the boy's father was legally entitled to speak for him. Elián's father lives in Cuba and
came to this country early this month to take the boy back with him. The ruling ensures that questions of who rightfully speaks for the boy and whether he is entitled to apply for asylum will be fully aired.
A three-judge panel of the court concluded unanimously that they "doubt that protecting a party's day in court, when he has an appeal of arguable merit, is contrary to the public interest."
The ruling lent credence to the Miami family's argument that the boy is a bona fide candidate for political asylum.
But in their conclusion, the judges wrote that the "true legal merits of this case will be finally decided in the future," adding, "We need to think more and hard about this case for which no sure and clear answers shine out today."
The government could try to have the stay lifted by the full circuit court or a Supreme Court justice, or take no action until the hearing in May.
"We will continue to pray," said Lázaro González, Elián's great-uncle, who defied a federal order last week to give up the boy and produce him at an airport for an eventual reunification with his Cuban father.
Around the house, demonstrators celebrated with geysers of Champagne and quiet prayers over clenched rosaries. The festivities continued into the night, bringing disruptions of traffic into the area.
The ruling did not answer a key question: who should have custody of Elián while the legal process plays out.
The Justice Department and the Immigration and Naturalization Service have insisted that Elián be reunited with his father, Juan Miguel González, who is waiting for his child at a Cuban diplomat's house outside Washington.
By avoiding the issue, Attorney General Janet Reno said, the court left her the option of removing the boy from his uncle's home -- as she has threatened to do for days. But Wednesday night, it remained unclear whether she would take such a step and officials at the Justice Department indicated
they had been surprised by the court's decision and were confused about how to proceed.
"The court's order does not preclude me from placing Elián in his father's care while he is in the United States," the attorney general said as she stepped off a plane in Oklahoma City. She was in that city to attend a memorial service for victims of the bombing of the federal
building there five years ago.
Tonight, a lawyer for Lázaro González, Linda Osberg-Braun, said on ABC's "Nightline" that Mr. González was ready to take the boy to meet with his father. "They want to meet immediately, under any circumstances, without conditions," she was quoted by
Reuters as saying. "The most important thing is that the families get together."
Almost five months after the boy was found floating on an inner tube off the coast of Florida after a failed crossing from Cuba drowned his mother and 10 others, Elián remained encircled tonight by demonstrators at his uncle's house in Miami, many of whom have said they will not allow the
boy to be moved.
Ms. Reno, said, "We are going to take and consider all our options and take the course of action that we deem appropriate under the circumstances."
A month ago, the reunion of father and son seemed assured. In March, a Federal District Court judge in Miami upheld an Immigration and Naturalization Service order to return Elián to his father, without a formal hearing on Elián's request for asylum.
The Justice Department and the immigration service have said only the boy's father can speak for him, stressing that common sense dictates that a 6-year-old cannot understand the complex issue of asylum.
But the appellate court seemed critical of the way both agencies had treated the case.
"Not only does it appear that plaintiff might be entitled to apply personally for asylum, it appears that he did so," wrote the panel, referring to a request for asylum signed by Elián. "According to the record, plaintiff, although a young child, has expressed a wish that
he not be returned to Cuba.
"It appears that never have I.N.S. officials attempted to interview plaintiff about his own wishes. It is not clear that the I.N.S., in finding plaintiff's father to be the only proper representative, considered all of the relevant factors, particularly the child's separate and independent
interests in seeking asylum."
The panel went on to write that, under the Immigration Service's own guidelines, a minor can, under some circumstances, apply for asylum even against "the express wishes of his parents."
In Washington, Gregory B. Craig, a lawyer for Juan Miguel González, said the ruling allowed the Miami family to continue to turn the boy against his father in what he has referred to as brainwashing.
"If the government does not act immediately to remove Elián from the care of Lázaro González and return him to his father, it will bear responsibility for the harm that continues to be inflicted on Juan Miguel's beloved son," Mr. Craig said.
The ruling was another setback for the federal government in a case that saw the attorney general travel to Miami in person to try and work out a deal to reunite the father and son.
The trip that ended with Lázaro González saying that if federal officials wanted the boy they would have to come into his home and take him.
"They have the legal right to remove him, but politically speaking, it puts his removal very much in question," said Pamela Falk, a professor of international law at the City University of New York, who has argued cases similar to Elián's.
But she and other political experts said the ruling may also bode well for the family's full appeal.
"The decision scolds the I.N.S. for not considering Elián's interest and scolds them for not ever speaking to Elián," Professor Falk said. "This decision gives a great boost to the possibility of the success of the appeal."
Even if the family wins the appeal, it only means that the boy's asylum request returns to the immigration service, and Ms. Reno is, ultimately, in charge of that agency.
For now, the fight in Miami goes on to keep the child in the house and away from a father that many people here see as an agent, or a puppet, of the Fidel Castro government.
Justice Department officials said today that reuniting Elián with his father would not mean that they leave the country until after the May 11 hearing. A federal order would prevent that, the officials said, and Mr. González has said he would stay with the boy until the appeal is
heard.
But lawyers for the family seemed hopeful that they, and an army of Cuban-Americans, could keep the boy in Miami.
"We're delighted," said Jose Garcia-Pedrosa, a lawyer for the relatives. "Had the boy been taken out of the country and we had won the appeal, what would we have won?"
Elián, he said, would never have come back from Cuba.
At the house on Northwest Second Street, demonstrators let down their vigil long enough to joyously celebrate one more victory over the United States government.
"This might be a small step, but it is in the right direction," said Ramón Saúl Sánchez, who led the demonstration outside the house since the standoff began five months ago.
The crowd chanted, "Fidel, crazy man, you have little time left."
"The law is working," said Miguel Saavedra, president of Vigilia Mambisa, an exile group.. He uncorked a bottle of Champagne, soaking several people.
Not everyone in Miami is happy. Overhead, a plane droned by trailing a banner that said "Send Elian Home -- The Taxpayers." The banner was apparently in reference to the millions of dollars the standoff, and the demand for added police and other municipal services, is costing Miami and
Miami-Dade County.
And, the police said a cameraman was stabbed with a pen by a woman identified as Maria T. Alvarez, who is a reporter for The New York Post. She was charged with aggravated battery and simple battery. The Post was quoted by The Associated Press as saying the charges were unfounded.
Nothing seemed to dampen the mood of Cuban-Americans here, who see the return of Elián to Cuba as a victory for Mr. Castro. They either discount or ignore the wishes of relatives there for the boy's return, and view their pleas for his return as Communist propaganda.
"He's just a little kid," said James B. Exposito, 16, a freshman at Miami High School. "Over there he doesn't have nothing. He won't have the love of his family there. They take care of him here. Everybody will take care of him here."
A Court With a Conservative Bent
By Christopher Marquis.
ASHINGTON, April 19 -- The United States Court of Appeals for the 11th Circuit, which ruled today that Elián González must remain in the United States pending a political asylum claim on his behalf, defies easy categorization, academics and lawyers say.
Although it was widely viewed as a liberal court that advanced a civil rights agenda and, more recently, rose to the defense of gays, the 11th Circuit, based in Atlanta, has in recent years displayed a more conservative bent, notably in immigrant rights cases.
In a 1992 ruling, the court upheld President George Bush's order to intercept Haitian refugees at sea and return them to their homeland without the benefit of political asylum hearings. At the time, the court held that only aliens who reached the United States had the right to apply for asylum.
Ira Kurzban, a Miami immigration lawyer who has defended Haitian refugees, said the appeals court "generally is considered pro-government on immigration cases."
Larry Klayman, chairman of Judicial Watch, a conservative legal watchdog group in Washington, said the court was "by and large a conservative circuit."
The judges who ruled unanimously to keep Elián in the United States represent a diverse group, each sent to the court by a different president.
J. L. Edmondson, a Reagan appointee and a former law professor, is the longest-serving member of the three and a law-and-order conservative who tends to side with prosecutors in capital cases.
In 1996 he upheld a state law mandating drug testing for office seekers, a decision later overturned by the Supreme Court.
Judge Joel F. Dubina, a former district judge from Alabama who was put on the appeals court by President Bush, is perceived as more of a centrist. He has weighed in on two prominent cases involving gay rights.
Judge Dubina pleased gay activists by striking down a statute barring public funds from going to a gay college group, but he pleased their critics when he upheld a move by the state's attorney general to withdraw a job offer to a lesbian.
The judge faced criticism in his confirmation process for his reported membership in an all-white country club in Montgomery, Ala.
Judge Charles R. Wilson, the only African-American member on the 12-member court, was appointed by President Clinton last year. As a United States attorney in Tampa, Fla., he handled a flood of drug-trafficking cases, and was active in prosecuting health care fraud.
Praise for Court Ruling and Prayer From a Jubilant Crowd Gathered in Little Havana
By Peter T. Kilborn.
IAMI, April 19 -- In the crisp, navy blue T-shirts of the private Our Lady of the Rosary School, 16 children, 3 to 5 years old, fidgeted with their beads today and pressed their hands in prayer at the chain-link fence in front of Elián González's home in Little Havana.
"We pray for the children of all nations," Teresa Hernández, the school's director of the evangelization program, said into her bullhorn. "We pray for President Clinton to be guided and enlightened by the Holy Spirit. We pray to the Lord."
Then at 2:45 p.m., before the children could say "Amen," a deafening, joyous roar rose from the 200 or 300 Cuban Americans keeping vigil on the street.
A federal appeals court had determined that Elián could remain in the United States at least a while longer, until an asylum hearing next month. The ruling, upholding an earlier stay granted by one of the court's judges, was the latest in a series of victories for Elián's Miami
relatives.
Two men in the crowd, the first to hear of the ruling, leaped from the barricades and hugged. "He is saved!" someone cried. Members of Mothers Against Repression, clad in black and wearing straw hats to fend off the sun, wiped tears and linked hands in a circle to pray. Horns blared.
People formed a procession and chanted, "Elián no se va"-- Elián will not go -- and "Fidel loco."
To cheers, Elián's great-uncle, who has defied federal officials by refusing to turn the boy over to his father, bounded out of the patch of lawn inside his fence.
The great-uncle, Lázaro González, a part-time car mechanic, about 5-foot-6, broad-shouldered and compact, was wearing a red form-fitting T-shirt tucked into the waist of his jeans.
"The González family continues to believe in the laws of the United States," Lázaro González told the crowd. "We will continue to pray."
Elián was nowhere in sight at first, but soon he came out, played on his swing set and high-fived his cousin, Marisleysis, Lázaro González's 21-year-old daughter.
As the news circulated, people saw this as another skirmish won, not the war. Attorney General Janet Reno could still try to turn the child over to his father, Juan Miguel González, who has been waiting in Bethesda, Md., to regain custody of the boy.
The ruling today was by a three-judge panel of the United States Court of Appeals for the 11th Circuit, in Atlanta. The federal government could seek to have the stay lifted by the full court or by a Supreme Court justice. Or it could wait until a scheduled May 11 hearing before the federal
appeals court on the asylum request by the Miami relatives. The Immigration and Naturalization Service had denied that request.
"But this is all we've been asking for -- his day in court," said Luis Montoto, 42, who emigrated from Cuba when he was 11.
Henry Fernández, a 38-year-old teacher who arrived here when he was 8, said, "This is a small victory in this long battle. All the time people have said that we don't have a leg to stand on, but this proves our system of government works."
But something else might be at work here, too, many vigil keepers said. As the cheers for the ruling subsided, Ms. Hernández lifted her megaphone again to give thanks. "Praise the Lord!" she said. "Praise the Lord! Praise the Lord!"
Justice Dept. Is Uncertain About Next Step
By David Johnston.
ASHINGTON, April 19 -- The Federal appellate court ruling today preventing the return to Cuba of 6-year-old Elián González caught the Justice Department by surprise and left officials there uncertain about how to proceed in the highly politicized case.
Despite what the officials acknowledged was a setback, they said they could still remove the child from the custody of his Miami relatives and turn him over to his father. Today's ruling only blocks the child from leaving the United States.
Attorney General Janet Reno noted that the ruling, by a three-judge panel of the United States Court of Appeals for the 11th Circuit, in Atlanta, "does not disagree with my determination" that the boy should be returned to his father, who is now in the United States.
"It does not say that the boy cannot be reunited with his father in this country," Ms. Reno said upon arriving in Oklahoma City for a ceremony honoring those killed in the truck bombing there five years ago today. "In fact, the court said we need not decide where or in whose
custody the plaintiff should remain while this appeal is pending."
At the same time, however, Justice Department officials said there was no immediate plan to remove the child forcibly from the house in Miami, although they said discussions about such an action would go forward in coming days. What has made those discussions so difficult is the constant
presence of dozens of demonstrators outside the house where the boy has been living.
"We are still reviewing the court's decision, for I have just had the chance to look at it as I have come off the plane," Ms. Reno said. "We are going to take and consider all our options and take the course of action that we deem appropriate under the circumstances."
Most Justice Department officials had seemed confident that the appellate court would lift its temporary injunction, and the panel's ruling to keep the order in place left officials there appearing uncertain about how to proceed. Ms. Reno, too, seemed caught off guard after she had
unsuccessfully sought the peaceful transfer of the child and ordered his transfer to federal custody, a directive that Elián's Miami relatives refused to obey.
Pressure has been mounting on Ms. Reno to end the impasse over the child's custody, and may intensify now that the legal debate over whether Elián's relatives have standing to apply for his political asylum appears likely to go on for weeks.
The Justice Department can appeal any decision the circuit court ultimately makes about that asylum question.
But, as Ms. Reno noted today, there are two issues involved in the legal process. "One," she said, "is whether an asylum application can be brought by distant relatives over the objection of a father who is the sole surviving parent. The other issue is who cares for the child
while he is in the United States."
Today's ruling "addresses only the asylum issue, not the care issue," she said, adding, "The immigration laws clearly call for a child to be placed in the care of a parent, in preference to a more distant relative, while the child's immigration status is being resolved."
But whether she will move to retrieve the boy is uncertain, given the atmosphere in the neighborhood where he has been living.
At a news conference earlier today, Ms. Reno said, "No child should be in that kind of never-never land for that long. Every day that goes by in which Elián is not reunited with his father and this matter brought to a conclusion can be disruptive" for the child.
She added: "Pressure should not be the issue. What is right should be the issue."
Copyright 2000 The New York Times Company |