Published Thursday, June 1, 2000, in the Miami Herald
Court rules: No asylum hearing for Elián
Compiled By Madeline Baro Diaz . mbaro@herald.com
A three-judge panel of the 11th U.S. Circuit Court of Appeals today ruled on behalf of the government in the case of 6-year-old Elián González, rejecting a request by the boy's Miami relatives that he be granted an asylum hearing.
In its ruling, the 11th Circuit said the INS developed "a policy to deal with the extraordinary circumstances of asylum applications filed on behalf of a six-year-old child, by the child himself and a non-parental relative, against the express wishes of the child's parents (or sole parent)."
The court said it did not approve nor disapprove of the INS decision to reject the asylum request on behalf of Elian.
"The policy decision that the INS made was within the outside border of reasonable choices. And the INS did not abuse its discretion or act arbitrarily in applying the policy and rejecting Plaintiff's purported asylum applications," according to the ruling.
Minutes after the ruling, lawyers for the boy's Miami relatives sought help from Supreme Court Justice Anthony M. Kennedy, who handles emergency matters from that judicial circuit for the nation's highest court.
The request urged Kennedy's help îîto assure that Elian will remain in the United States'' until the full Supreme Court can consider a formal appeal of today's appeals court ruling.
"No child, whatever may be his immigration status, deserves fewer judicial rights than hardened criminals. Surely, this traumatized and innocent child deserves the court's consideration and protection,'' the request said.
Kennedy has the authority to act on the request himself, but he is more likely to refer it to the full Supreme Court.
The court decision came a little more than six months after Elián's dramatic rescue from an inner tube off Fort Lauderdale on Thanksgiving Day. The child's survival of a shipwreck that killed 11 Cuban migrants, including his mother, and his Miami relatives' attempt to keep him in the
United States captured the world's interest.
This morning, about 35 flag-waving demonstrators gathered outside the Little Havana home where Elián spent five months with his Miami relatives, although the relatives now have a new home. The demonstrators had U.S., Cuban, and British flags as well as flags from other Latin American
countries. They were also holding banners calling for Elián to remain in the United States.
By the time the decision was announced, the crowd had grown to around 60 demonstrators. Many held small, portable radios to their ears, waiting for news. Others had babies in strollers. Some sat in the strreet around a boom box.
When the news broke about Elián, many of the women broke into tears.
Sonia Ruiz of Miami, 36, said she was at the home all night.
"Why are they going to give him to that Communist dad? Our government has betrayed us again. Why are they letting Castro win?'' she said.
Police and others monitoring the public pulse weren't expecting a repeat of the angry street protests that erupted in April after federal agents removed Elián from his great uncle Lázaro González's Little Havana. Still, community leaders from all ethnic groups put plans in
place to lessen the chance of violence if the court decides that Elián is not entitled to an asylum hearing.
Business leaders enlisted commitments from Miami-area clergy to keep their churches and synagogues open from 6 p.m. until midnight the day of the ruling to provide easily accessible gathering spots where people can pray and vent.
During the 11th Circuit appeal, brought by Elián's Miami relatives because a lower court in Miami ruled against them, the three judges barred the child's removal from this country until their ruling. Now, Lázaro González would have to seek another stay from the appeals court
or from the Supreme Court to prevent his immediate departure.
Participating in a Washington Post online chat on Tuesday, the father's attorney, Gregory Craig, said: ``Before Juan Miguel came to the United States, he agreed voluntarily that if he had custody of Elián he would remain here during the pendency of the appeal. He will keep his word.''
INS officials have said they would review the ruling before making a statement.
Herald staff writers Eunice Ponce, Jay Weaver, Alfonso Chardy and Frances Robles, Herald translator Renato Pérez and Herald wire services contributed to this report.
Put Cuban Americans' unity to work
Our greatest asset is the innate fairness of the American people in the face of injustice.
Víctor M. Díaz Jr., a Miami lawyer and independent columnist, is a visiting member of The Herald's Editorial Board.
As a Cuban American, I take great pride in the unity of purpose that our community is demonstrating. We are united in believing that Elián González's rights should be established in a court of law and not through unilateral decisions made by the Immigration and Naturalization
Service.
A great majority of our community also believes that excessive force was used to remove Elián from his Miami relatives. The attorney general could and should have exhausted all mediation efforts before resorting to armed force.
The unprecedented level of derogatory rhetoric directed at Cuban Americans has awakened in many of us, especially in our youth, a renewed sense of cultural identity.
Whether a majority shares our views is not as important as how we present them. We are at risk of alienating our allies if we are not deliberate and measured in presenting our case.
I offer these observations:
Respect the American flag: Cuban Americans, as well as all other naturalized U.S. citizens, owe a great debt of gratitude to the United States. This sense of gratitude is shared with the same fervor as are our opinions regarding the Elián González case. However, are we properly
acknowledging this gratitude in our public comment and protest? Whenever we display the Cuban flag (as an expression of our opposition to the Castro dictatorship and pride in our heritage), we also must display the American flag (as an expression of our respect and love for this country).
Avoid racism: The greatest polarization on the issue of Elián is between the Cuban-American and African-American communities. We must address this schism by understanding its root cause, not by succumbing to the temptation of racist rhetoric and stereotypes. Cuban Americans' success in
pressuring elected public officials to be responsive to our concerns only underscores for African Americans their sense of political alienation.
The Cuban-American community should have joined long ago with the African-American community in asking that the serious allegations of excessive use of police force by the Miami Police be addressed.
Similarly, the economic success of Cuban-Americans in this community stands in stark contrast to the ongoing economic and racial discrimination against African Americans. We did not create the poverty in Overtown and Liberty City, but we should accept our share of responsibility for not having
done more to address these problems.
Build a coalition: The significant economic and political influence of the Cuban-American community has caused some to believe that we can exercise our collective clout effectively, even if in a unilateral manner. However, the issue of greatest concern to Cuban Americans, the nascent attempt to
normalize U.S. relations with the Castro dictatorship, will be played out on a national stage.
We need to build political alliances and sway popular opinion with the merits of our grievances. This will require us to shape our message in an inclusive manner. We should not expect non-Cubans, including other Hispanics, to be concerned with ``Cuban issues.'' When we oppose the Castro
dictatorship because of its human-rights violations, we are defending a basic precept of U.S. foreign policy. Our concerns for the lack of free speech, free press and free elections in Cuba are expressions of American values. We must never let our opponents strip us of our American identity, even as
we advocate for freedom in communist Cuba.
Stay positive: We must avoid becoming defensive in the face of the divisive rhetoric that is directed at us. We need to engage our friends, neighbors and colleagues and explain to them the deeply emotional trauma caused by the loss of one's native homeland. We must relate the stories of
sacrifice and loss at the hands of an inhumane regime. We must educate our community about the repressive nature of the Castro regime, including the basis for Cuba's condemnation by the United Nations Commission on Human Rights, the Inter American Press Association and the U.S. State Department. The
facts are on our side. Our greatest asset is the innate fairness of the American people in the face of true injustice.
Let us engage in a critical examination of our tactics moving forward. Let us show the essence of Cuban Americans: our passion, intelligence and determination, tempered by our fierce love for the United States, overriding humanity and law-abiding nature.
The spies among us
Mariano Faget guilty as charged
An espionage case of money, not ideology.
What is there to be learned from the strange case of Mariano Faget, found guilty Tuesday of violating federal espionage laws?
This case has had several twists since February, when the FBI announced spying charges against Faget, a 34-year employee of the Immigration and Naturalization Service. There were fears then that Faget had influenced the outcome of some Cuban immigration requests. There was also a sort of sad
vindication expressed by many concerned that Cuban spies operate here. In 1998 the FBI did uncover a Cuban spy ring in Miami that resulted in 10 arrests, five guilty pleas and a pending trial.
But in March the FBI said that Faget did not pass secret information to the Cuban government -- as in most spy cases, but that he did violate the U.S. Espionage Act. He was charged with four counts: disclosing classified information, converting it for his own gain, lying to the FBI and failing
to disclose foreign-business contacts on his security clearance application.
In other words, this espionage case was about money, not ideology. Faget, an INS supervisor, joined a business venture with friend Pedro Font and other Miami investors in 1993. America Cuba Inc. anticipated the lifting of the U.S. embargo against Cuba and wanted to help U.S. businesses open
there once sanctions were lifted. Such a plan is not unusual now. Many Miami Cubans have similar visions for when democracy and its economic partner, capitalism, return to their homeland.
But Faget was a federal employee with security access. As such, he needed to be open about his private business dealings and cautious with whom he associated. He was neither. So it was that the FBI, while following Cuban Interests Section officials suspected of spying, watched Faget several
times meet with two of them.
In a ``dangle'' operation, an FBI agent told Faget that a Cuban official he knew -- and said he had met only once -- was defecting. Faget immediately notified Mr. Font of the defection, which was phony information planted by the FBI. Faget claimed he wanted only to protect his friend and
business. Not so, said the jury.
Faget could face five years in prison and will lose his pension. Appropriate punishments. Faget broke the law by using his access to government information illegally and lying about it. But he was never charged with that most egregious act: giving away secrets to the enemy.
What was revealed in this case of good sense blinded by misguided loyalties is a relief, no treason was committed. But it does give pause: What of the real spies among us?
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