The Saga of Elian. June 2, 2000
No Asylum For Elian
BY Andres Viglucci And Jay Weaver . aviglucci@herald.com
A federal appeals court Thursday upheld the U.S. government's authority to deny Elián González a political asylum hearing, dealing the boy's Miami relatives the biggest setback to date in their six-month battle to prevent the child's return to Cuba with his father.
In unanimously dismissing an appeal by Elián's great-uncle, Lázaro González, a three-judge panel of the 11th U.S. Circuit Court in Atlanta concluded it could not legally second-guess U.S. immigration officials because their decisions in the passionately debated case were
``not capricious and not arbitrary, but were reasoned and reasonable.''
While Thursday's decision brings Elián and his father, Juan Miguel González, significantly closer to a return home to Cuba, it does not mean that their departure from Washington, D.C., where they are living until the court tussle ends, is imminent.
The appeals court left in effect a temporary order barring Elián's return to Cuba for 21 more days to give the relatives time to appeal Thursday's decision.
Members of the family's legal team indicated they would likely do so, but had not decided whether to go back to the appellate court for reconsideration or to file an appeal directly with the U.S. Supreme Court.
``We are going to keep fighting for Elián's freedom,'' said the boy's great-uncle, Lázaro González, who has led the battle to keep him in the United States.
The appellate court gave the relatives one small victory: The judges refused Juan Miguel González's request to replace Lázaro González as the ``next friend'' suing the government on Elián's behalf. Juan Miguel would presumably then have withdrawn the suit, ending the
case. The court said it found no ``powerful reason'' to make the change at such a late point in the litigation.
Even so, independent legal experts say the relatives' chances of prevailing, never great to begin with, were largely exhausted by Thursday's ruling -- the third adverse decision in the case.
``The attorneys have made bold claims about the law, but at every point, state and federal courts have rejected them,'' said Alex Aleinikoff, a former INS general counsel now teaching immigration law at Georgetown University. ``I think the clock has run out on them.''
Neither the appellate court nor the Supreme Court is obligated to hear the appeal. Should either court decide to accept it, Elián would likely be bound to remain in the country until the process is concluded. If the courts decline to take it up, however, Elián and his dad could be
free to leave within a few weeks.
PLEA TO RELATIVES
In a brief statement to reporters in Washington, Juan Miguel González pleaded with his estranged relatives to drop their legal case and end what he called ``these unnecessary delays.''
``I am very pleased today with the decision that the court has made,'' he said in Spanish. ``It's what I have always felt from the depth of my heart: a boy simply should always be with his father.''
He paused, stammered, and said, in English, a language he barely speaks: ``I want to thank the American people; thank you.'' He then turned away without taking questions.
Reaction to the appellate decision among Miami's Cuban exiles was muted.
A crowd of fewer than 100 of the relatives' supporters gathered outside their now-vacant former home in Little Havana to decry the decision, but most dispersed after the family's lawyers said they were mulling over a legal response. Exile leaders said they had no plans for protests, and none
expected a repeat of the disturbances that followed the April 22 government raid in which armed agents removed Elián from the home.
NOTHING BUT CALM
Miami Mayor Joe Carollo drove through Little Havana Thursday morning to monitor exile reaction to the court decision and reported nothing but calm.
``It is very hard and difficult, but at least if people see this was a legal process, it makes it somewhat different than April 22,'' Carollo said from City Hall. ``Everything's quiet. I want to make sure the city remains peaceful.''
In Berlin on a state visit, President Clinton reiterated his support for U.S. Attorney General Janet Reno's position that Elián's father was the person ``best suited'' to speak for the boy.
``I think the Justice Department and the attorney general did the right thing, and I'm very pleased that the 11th Circuit upheld their decision today,'' he said.
On the presidential campaign trail, both major candidates also reiterated their views that Elián's case would be best heard in family court. A family-court judge in Miami already has dismissed as groundless a custody petition filed by Lázaro González.
In Nevada, Republican front-runner George W. Bush called on Vice President Al Gore to urge the administration to move the custody battle to a family court. Gore seemed resigned to Thursday's court decision, even as he expressed his own wish for a solution in family court.
REACTION IN CUBA
Official reaction in Cuba, where the government has turned Elián's return into the country's dominant political issue, was cautious. In an official statement read on television, the government derided the ban on Elián's immediate return as a ``concession to the Miami mafia,'' the
phrase it uses to refer to Cuban exiles.
Late Thursday in Havana, a message from ``the revolutionary leadership'' read on Cuban television called for ``a colossal demonstration'' today to protest against the ``cruel and interminable wait'' being imposed in Washington upon Elián, his family and friends.
The 11th Circuit is the third court to reject the relatives' legal arguments. The first was U.S. District Judge K. Michael Moore, who concluded that federal immigration officials acted within their broad legal powers when they decided that only Elián's father could speak for him on the
issue of asylum. Miami Dade Circuit Judge Jennifer Bailey then rejected Lázaro González's custody petition.
Thursday's ruling, which affirmed Moore's decision, marked a major victory both for Juan Miguel González and Reno, who have argued that Elián is, at six years of age, too young to apply for asylum over his father's objections. That position, the judges wrote, ``comes within the
range of reasonable choices.''
THREE WEEKS
The 33-page decision was issued three weeks after the three judges -- J.L. Edmondson, Joel Dubina and Charles R. Wilson -- heard oral arguments in Atlanta. The same panel had earlier shocked many legal experts when, in issuing the order barring Elián's departure from the United States, it
appeared to embrace the relatives' legal arguments, suggesting the INS might have erred in denying the boy a hearing in violation of a statute allowing ``any alien'' on U.S. soil to request asylum.
But the ruling, written by Edmondson, a Reagan appointee, agreed with the government's argument: That while even young children may under certain circumstances request asylum over a parents' wishes, the INS acted properly in deciding that three applications filed by his relatives on Elián's
behalf were not valid.
In reaching its decision, the court wrote, the INS reasonably concluded after twice interviewing Elián's father in Cuba that he was not being coerced by the Cuban government into demanding the return of his son, and that Elián had no basis for claiming a ``well-founded fear of
persecution'' if he were returned to Cuba, the standard for asylum. ``We . . . conclude that the INS adequately considered these circumstances in reaching its ultimate decision,'' the ruling said.
UNUSUAL ASIDES
But in several unusual asides, the judges said the INS could also have legally taken an approach more sympathetic to the relatives' position -- an approach the judges seemed to prefer.
They noted, for instance, that if Elián is returned to Cuba, ``re-education, communist indoctrination and political manipulation of plaintiff for propaganda purposes'' are entirely possible. They also said that a ``reasonable adjudicator'' might regard such indoctrination as persecution
in an asylum hearing.
And they said nothing in the law would prevent INS from adopting a policy under which children from Cuba and other totalitarian states could press asylum claims independently of parents still residing in their native lands.
But in the end, the judges concluded that nothing in the law required the INS to reach such conclusions. And under ``the separation of powers under our constitutional system of government,'' they wrote, such questions are beyond the court's purview.
BROAD LATITUDE
The crux of the issue: The ``any alien'' statute doesn't specify how the agency is to administer it, effectively granting the executive branch broad latitude. Only if the agency had abused its discretion by acting arbitrarily would the court be empowered to overturn the INS' decision, the ruling
said.
Furthermore, the court wrote, long-established legal precedent holds that the authority of the executive branch in deciding matters that touch on foreign policy, such as immigration regulations, gives it ``especially great'' powers in deciding how to address such gaps in the law.
``Considering the well-established principles of judicial deference to executive agencies, we cannot disturb the INS policy in this case just because it might be imperfect,'' the judges wrote. ``And we cannot invalidate the policy -- one with international-relations implications -- selected by
the INS merely because we personally might have chosen another.''
Herald staff writers Karen Branch-Brioso, Alfonso Chardy, Eunice Ponce and Frances Robles, Herald translator Renato Pérez, and Herald wire services contributed to this report.
Legal team's chances are fading, analysts say
Jay Weaver . jweaver@herald.com
The Miami lawyers for Elián González vowed to carry on their fight to win an asylum hearing for the Cuban boy, but immigration experts said their chances of taking his case all the way to the U.S. Supreme Court are slim after their latest legal loss Thursday.
The experts stressed that the three-judge panel of the 11th Circuit Court of Appeals broke no new legal ground with its ruling, which reinforced the federal government's refusal to hear the 6-year-old's asylum application because his Cuban father wants him to return home.
They said the ruling provided little reason for the full 11th Circuit Court or U.S. Supreme Court to consider any appeal by the Miami relatives' lawyers because the case's fundamental question is a narrow one with limited impact. The question -- does an alien child as young as Elián have
a right to apply for asylum? -- is not likely to interest the high-court justices, they said.
The Supreme Court tends to consider only cases, such as abortion-rights disputes, that have broad effects on American lives or raise conflicts in the law.
``The Supreme Court doesn't spend their precious time with issues that are not likely to arise again and where there are no conflicts among the [appellate] courts,'' said Yale University Law Professor Peter Schuck.
Schuck and other immigration experts, who have questioned the boy's right to apply for asylum since he was rescued off the Florida coast in November, said his legal team's arguments have failed to hold sway over the courts.
``They have the same options that they had before as far as legal arguments are concerned, so in that sense their legal options have not run out,'' Schuck said. ``But since those arguments were not terribly persuasive to begin with, I doubt their arguments would be upheld on further appeal.''
LONG BATTLE
Alex Aleinikoff, a professor at Georgetown University Law Center, said the boy's case was destined to die before the Supreme Court because of the persistence of his Miami lawyers in what he and others see as a hopeless legal battle.
``The informed legal observers from beginning of this case said they would have a hard time in the state court and in the federal court,'' Aleinikoff said. ``Both of those predictions came true.''
Aleinikoff, a former INS general counsel, described the 11th Circuit's ruling as ``ordinary.''
While the three-judge panel recognized that immigration law allows any alien to apply for asylum, it acknowledged the INS has the power to interpret its meaning on a case-by-case basis -- especially because the law says nothing about any age restrictions.
The 11th Circuit Judges James Edmondson, Joel Dubina and Charles Wilson supported the INS's ``executive discretion'' on immigration laws passed by Congress. They upheld U.S. District Judge K. Michael Moore's March 21 decision.
David Martin, another former general counsel of the INS, said the 11th Circuit ruling was in ``the great tradition'' of federal courts deferring to agencies when it's not clear how a law should be administered. In this case, the ``gray area'' was how, and in what circumstances, a juvenile can
apply for asylum.
TEAM'S ARGUMENT
The Miami legal team argued that the INS did not follow the law, but made up policy as Elián's case unfolded over the past six months. But legal experts said that argument has failed them so far.
Kendall Coffey, one of the lead attorneys for Elián's Miami relatives, said the legal team will consider a few alternatives for its appeal. The lawyers will either ask the three judges or all 12 members of the 11th Circuit Court to rehear their case within a two-week deadline. Or, they
will take their appeal directly to the U.S. Supreme Court.
On Thursday, the lawyers asked the Supreme Court to grant a preliminary injunction to block Elián's return with his father to Cuba during further appeals. But they put that request on hold after learning that the appellate court's previous order barring the boy's return will be in effect
for another 21 days.
TWO APPROACHES
Coffey said the lawyers can argue that the appeals court erred in siding with the INS in denying Elián's asylum applications, or they can claim the agency violated Elián's due-process rights under the Constitution.
But the three-judge panel concluded that Elián's ``due process claim lacks merit and does not warrant extended discussion.''
The judges cited a previous 11th Circuit opinion, affecting thousands of Haitian refugees, that they say settled the question in 1984. The ruling in Jean vs. Nelson read: ``Aliens seeking admission to the United States . . . have no constitutional rights with regard to their applications.''
The following year, the Supreme Court consider the appeal and affirmed that decision, but not on constitutional grounds. The justices looked narrowly at immigration law passed by Congress.
Coffey said that Elián, who is only allowed to stay in this country at the discretion of the INS, has a constitutional right to apply for asylum. ``We believe it's a live question that needs to be answered by the [high] court,'' Coffey said.
Some legal experts questioned Coffey's reasoning.
``I don't know what constitutional rights have been violated in Elián's case,'' said University of Miami Law Professor David Abraham. ``The rights of unadmitted aliens are limited in matters involving immigration.''
Ira Kurzban, who represented the Haitians in the 1984 case, said he would argue that an alien has a constitutional right to request asylum on grounds that the 11th Circuit never did away with that right.
But Kurzban, a respected immigration lawyer whose textbook was cited by the three-judge panel in their opinion, observed that the Miami legal team already conceded that argument to Moore in the federal district court.
``They never pursued this and it was a big mistake,'' Kurzban said.
Herald staff writer Frank Davies contributed to this report.
Family makes appeal for reunion
By Ana Acle . aacle@herald.com
Her light brown hair tied in a ponytail with a leopard scarf, a subdued Marisleysis González on Thursday made what could be a last attempt to visit her cousin Elián.
``I hope to see him again,'' she said. ``I don't see why we're not allowed to see him. We took care of him for five months and we did the best we can. And I feel that we as a family should be able to see this little boy.''
From the moment Marisleysis laid eyes on Elián six months ago in a Broward County hospital, she grew close to the little shipwreck survivor. Some people say perhaps too close.
The two slept in separate beds in her bedroom, mainly because the house had only two rooms, and played together often -- in a kiddie pool, on a swing, with the black Labrador puppy. Elián played with her hair and ear, and sat on her lap. Sister Jeanne O'Laughlin called the 21-year-old
cousin a ``surrogate mother.''
Divided by ideology and governments, both sides of the González family publicly feuded. But what happens now to a family that used to send shoes and other supplies to their Cuban relatives? Is the division forever? Do the Miami relatives have a legal right to visit the boy they took in?
``There are some legal avenues the family's attorneys are researching,'' said family spokesman Armando Gutierrez, without giving details.
The attorneys will write to the Justice Department asking for a reunion based on an opinion by psychiatrist Dr. Pauline Kernberg that there should be an amicable meeting for the sake of the boy.
The U.S. government says it cannot force a reunion if the father does not want it.
Would Elián's father ever agree to meet? Juan Miguel González said in a May 9 letter that he'd agree to a reunion if the relatives dropped their lawsuit, Gutierrez said Thursday. He did not distribute copies of the letter, addressed to Tio Lachi (Uncle Lachi), a nickname for Lázaro
González.
Marisleysis said Thursday she called the Wye Plantation home twice -- but someone who answered the phone hung up after she identified herself. Gutierrez said the phone number is listed.
Elián and his father have since moved to a private home in Washington, D.C.
Gutierrez, however, believes blood is thicker than an international custody fight.
"Castro has divided a lot of families over 41 years, but a lot of those families have come back together, so you never know what tomorrow will bring.''
Lázaro González, who said he'd keep fighting for the boy in order to honor his mother's memory, declined to be interviewed after a press conference: "Talking about this case is affecting me.''
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