The Washington Post. June 2, 2000
For the Record
Friday, June 2, 2000; Page A32
From remarks by Attorney General Janet Reno at a press conference yesterday in Washington:
Janet Reno: We are pleased that the court has upheld our decision that only Juan Miguel Gonzalez can speak for his son, Elian, on federal immigration matters.
These three federal appellate judges have now joined with a federal district court judge and a Florida state court judge in recognizing the authority of the INS to make this determination. . . .
I am hopeful that this matter will soon reach a final resolution so that Elian, his father and the family may resume their lives away from the scrutiny of the media and the uncertainty that the legal battle has caused for his entire family. . . .
Elian remains in his father's care, but he and his family will not immediately depart the United States. The injunction put in place by the 11th Circuit will remain in effect until the court's mandate in this case is issued. The INS departure control order, put in place on April 22nd, will
remain in effect until the injunction is no longer in effect.
Q: . . . In his emergency application to the Supreme Court this morning, Lazaro Gonzalez says Elian will be subjected to irreparable harm if he's returned to Cuba, citing brainwashing and forced labor for the children of dissidents. How do you respond to the fact that this really isn't in the
best interest of Elian, sending him back to his home country?
A: I respond by pointing to Elian. . . . He is . . . a strong little boy.
Elian Asylum Appeal Dismissed
By Karen DeYoung. Washington Post Staff Writer. Friday, June 2, 2000; Page A01
A federal appeals panel ruled yesterday that the Immigration and Naturalization Service acted within the law and its policymaking rights when it refused to consider political asylum petitions filed for 6-year-old Elian Gonzalez by his Miami great-uncle.
In a major government victory that could mark the beginning of the end of the international custody battle that began six months ago, a three-judge panel at the 11th U.S. Circuit in Atlanta unanimously dismissed great-uncle Lazaro Gonzalez's appeal of a lower court ruling earlier this year. It
gave him 14 days to ask the panel to rehear it, to ask that all 12 judges of the 11th Circuit consider it, or to appeal to the U.S. Supreme Court.
Under federal rules, the panel's earlier injunction prohibiting Elian from leaving the United States remains in force until one week after that 14-day deadline. Even if the relatives do not appeal, Elian, his father and family, currently living on an estate in Northwest Washington, will not be
able to return to Cuba until near the end of this month. If the full appeals court or Supreme Court agreed to hear the case, the departure prohibition could be extended.
Attorney General Janet Reno said she was "hopeful that this matter will soon reach final resolution," and President Clinton said he was pleased that the Justice Department's actions in the case had been upheld.
The father's attorney, Gregory B. Craig, called on the Miami relatives to give up their struggle to keep the young shipwreck victim from returning to Cuba and "to accept this result with grace and dignity." Juan Miguel Gonzalez, Elian's father, said all he wanted was "to go home
as soon as possible, with my son and my whole family."
Although attorneys for the Miami relatives said they had not yet decided how to proceed, the relatives themselves made clear they were not ready to concede defeat. "The battle is not over yet," said Lazaro Gonzalez's 21-year-old daughter, Marisleysis. Elian "is still here . . .
he's still in this great country," she said, "and I hope that the laws of this country" will prevent him from returning to a place where the relatives have alleged he will be persecuted.
The court began its 33-page ruling saying that "this case, at first sight, seems to be about little more than a child and his father. But, for this Court, the case is mainly about the separation of powers under our constitutional system of government." What they had to decide, the
judges said, was how much discretion the executive branch had in implementing applicable immigration law, and to what extent the court could review the use of that discretion.
The court did not endorse the INS's decision not to process Elian's asylum applications--in fact, it noted that "the choices . . . that the INS made in this case are choices about which reasonable people can disagree." The ruling, written by Judge J.L. Edmondson, a Reagan appointee,
said the judges themselves might personally have preferred different choices.
But, the court said, the decisions made in this case were a matter of "policy and the application of policy," and were within the prerogatives of the executive branch.
The court did appear to reject one determination made by the lower District Court in Miami. In that ruling, Judge K. Michael Moore said that federal law allowing "any alien" to apply for asylum was "evidently not intended by Congress to include all aliens" because the law
listed some exceptions.
The appeals court held that the law was "neither vague nor ambiguous. The statute means exactly what it says: 'any alien . . . may apply for asylum.' " But while the meaning of the word "any" was clear, yesterday's ruling said, the statute did not define the word "apply."
"From this gap" in the statute, it said, "springs executive discretion."
The legal question in the case, it said, "is not whether the Plaintiff may apply for asylum. . . . The ultimate inquiry, instead, is whether a six-year-old child has applied . . . when he, or a non-parental relative on his behalf, signs and submits a purported application against the
express wishes of the child's parent."
"We cannot say that . . . the INS determination that six-year-old children necessarily lack sufficient capacity to assert, on their own, an asylum claim--is unreasonable," the appeals court found. The INS decision that such an application is valid only when it is filed by a parent "also
comes within the range of reasonable choices," it said.
On the question of whether an otherwise adequate parent can be rejected because of where he lives, the court acknowledged that returning a child to a "communist-totalitarian state," as defined by the State Department, "worries us some." But, it said, "in no context is
the executive branch entitled to more deference than in the context of foreign affairs."
"Something even close to a per se rule--that, for immigration purposes, no parent living in a totalitarian state has sufficient liberty to represent and to serve the true, best interests of his own child in the United States--likely would have significant consequences for the President's
conduct of our Nation's international affairs," it said. "Such a rule would not focus on the qualities of the particular parent, but on the qualities of the government of the parent's country."
Overall, the court said, the INS "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."
In addressing other legal matters raised in the case, the court said the claim that Elian's constitutional due process rights were violated by the INS decision "lacks merit," because it has previously ruled that aliens seeking U.S. admission have no such rights. It rejected Lazaro
Gonzalez's request to name an outside guardian to represent Elian's legal interests, saying the boy had been "ably represented" in the appeal by Lazaro himself.
It also rejected Juan Miguel Gonzalez's request to substitute himself for Lazaro as Elian's representative before the appeals court--a request that, if granted, would effectively have mooted the case.
In a clear indication of the political and foreign policy overtones of the issue, a number of major political figures yesterday issued statements on the ruling.
Vice President Gore, who was criticized within his own party when he broke with the administration and said the Elian matter should be decided in a family court, repeated that position, but seemed willing to cede the matter. "I have long felt, as I said early on, it should have been
referred to a family court and decided according to due process, which is the normal venue where disputes like that are resolved," Gore said. "However, now that it is in the federal court, this decision today must be accepted with respect and we all wish the boy well."
Texas Gov. George W. Bush (R) said: "I continue to believe that it is in the child's best interest for the decision to be made in the family courts, a court whose job it is to decide the best interest of the child."
Neither presidential hopeful referred to a Florida family court ruling that, under state law, Lazaro Gonzalez was too distant a relative to file a custody suit over Elian.
Sen. Patrick J. Leahy (D-Vt.), who has strongly supported sending Elian back to Cuba, said the appeals court had acted correctly. "Every mother and father knows that parents speak for their children," Leahy said, "and this 6-year-old boy belongs with his father."
But Rep. Ileana Ros-Lehtinen (R), who represents Miami, said she remained "cautiously optimistic about Elian's fate and the ability that the American judicial system affords him to pursue further legal action. . . . I believe the court's recognition of the political factors influencing the
actions of the executive branch sheds light on the use of Elian as a pawn by the Clinton administration to appease the Castro regime."
The appeasement charge was repeated by the Miami relatives and their spokesmen, who accused the administration of manipulating the original INS decision to stay in good favor with Cuban President Fidel Castro. Clinton was assisted in this, they said, by Craig, who served as Clinton's attorney in
last year's impeachment trial.
They cited the court's repeated reference to the INS decision as a matter of policy rather than law. "I read the opinion to suggest that the court itself thought there were a lot of close questions here," said Kendall Coffey, one of the Miami lawyers. "I think they made it very
clear that this is not about the INS following the law."
But the ruling noted that "although the courts should not be unquestioning, we should respect the other branches' policymaking powers." In this case, the court said, "the INS decision did not contradict" applicable federal statute.
While they mull the possibilities of appeal, the relatives said they would continue to press for the right to visit Elian, along with their attorneys, physicians and a Catholic priest they described as Elian's "spiritual adviser."
Marisleysis Gonzalez said Elian's father was "afraid" to let the relatives see him. "I think . . . they know he's going to run to us."
Armando Gutierrez, a spokesman for the relatives, said that Juan Miguel Gonzalez had written the relatives early last month to say that he would agree to such a meeting if the relatives would drop their legal case.
Craig acknowledged that Gonzalez had sent "a handwritten letter" to his uncle, saying "a meeting of all members of the family was difficult when one part was suing the other part." He said that Lazaro Gonzalez had not replied to the letter.
"Juan Miguel Gonzalez is Elian's father," Craig said yesterday. "If they want to talk to Elian they should approach Juan Miguel or Juan Miguel's representative and ask to see him. They have never done that."
Juan Miguel Gonzalez, who traveled here from Havana in April with his wife and infant son to reclaim Elian, told reporters in Spanish that he was "happy with the court's decision. It's what I've always wanted from the bottom of my heart. . . . What I really want now is an end to all of
this, and to be able to go home as soon as possible."
Speaking in English, Gonzalez said: "I want to thank the American people. Thank you."
In its own statement on the ruling, the Cuban government called the 14-day deadline for further appeals a "prolonging of the injustice and the crime," the Associated Press reported from Havana. In what would be the largest single rally since the custody dispute began, the government
called for a march of a half-million mothers and grandmothers to protest the delay.
Staff writers Sylvia Moreno and Ceci Connolly contributed to this report.
Cuba Expresses Doubts About Court's Decision
By Andrew Cawthorne. Reuters. Friday, June 2, 2000; Page A20
HAVANA, June 1 –– President Fidel Castro's government said today there were "worrying elements" in a U.S. appeals court ruling that Elian Gonzalez is not entitled to a political asylum hearing.
The government acknowledged in a statement that the thrust of the Atlanta court's lengthy ruling backed its demand that the 6-year-old be returned home, according to his father's wishes.
But it objected to certain "concessions to the Mafia"--Havana's term for anti-communist Cuban American groups fighting for Elian to stay in the United States--within the ruling.
These included the description of Elian's great-uncle and would-be guardian Lazaro Gonzalez as "a close friend" and the 14-day continuation of an injunction barring Elian from leaving the country, the statement said.
"There are, without doubt, worrying elements in this ruling that require more clarification," the statement said.
Havana has demonized Lazaro Gonzalez as the main "kidnapper" of Elian. The continuation of the injunction has allowed the great uncle and other U.S. relatives time to seek access to Elian and try other legal maneuvers to prevent his return to Cuba.
On the streets of Havana, Cubans said they were pleased that the court supported Elian's father's position and urged U.S. authorities to seize the moment to end the six-month custody dispute.
"It's excellent, fantastic, this decision. What we need now is for them to bring the boy here, back to us," said security guard Diego Jimenez.
Cubans have been swept up since the end of 1999 in a large state-organized, patriotic campaign to have Elian reunited with his father and returned to Cuba.
The government announced plans for a new protest march onFriday to the U.S. diplomatic mission in Havana to demand the boy's return.
"Our people have the right to demand the immediate liberation and return of all of them to Cuba," said the government statement, which was read on state TV.
In Little Havana, Mourning
By Sue Anne Pressley. Washington Post Staff Writer. Friday, June 2, 2000; Page A20
MIAMI, June 1 –– The waving Cuban and American flags were back. So were the T-shirts with the slogan, "Elian, My Friend, Miami Is With You," the Elian license plates for sale, the prayer huddles in the middle of the street.
But this time, the tone was different. Many in the crowd of about 75 milling around today outside the empty Little Havana house where young Elian Gonzalez lived for five months seemed almost resigned to losing the boy to communist Cuba and Fidel Castro. Many said they no longer trusted the U.S.
government or the American judiciary to do what they considered right, and they had not really expected the 11th U.S. Circuit Court of Appeals to grant the child an asylum hearing.
"I just wanted to be here no matter what happens," said Lazaro Astengo, 27, an unemployed security guard and karate teacher who came to the United States 20 years ago. "You can see people have lost hope here today. Everything is going opposite of what we thought. What else can we
expect? Only the worst."
Elian's great-uncle Lazaro Gonzalez, his 21-year-old cousin Marisleysis, and the other relatives who cared for the boy in the small white rental house on Northwest Second Street vacated the house shortly after the April 22 raid in which federal agents seized the youngster. The family's memories
of the time there with Elian were too painful, said spokesman Armando Gutierrez.
Elian has been staying with his Cuban father in Washington awaiting the court's decision.
For Cuban American supporters who kept vigil round the clock during the long months of legal wrangling over the shipwrecked child's future, the house has become a focal point for frustration and sadness. Today, they mourned what could only be described as a resounding defeat.
Cuban exile leaders and Miami police, however, said they did not foresee a repeat of the mass demonstrations that rocked Little Havana on April 22. The protests, which led to rock throwing and angry skirmishes with police, resulted in more than 350 arrests.
Many in the crowd had feared the boy would board a plane for Cuba as early as today, but that possibility was forestalled when the appeals court extended an order prohibiting Elian's departure for 14 days to allow Miami relatives time to appeal.
"I do not expect any violence at this point," said Jose Basulto, leader of the exile group Brothers to the Rescue. "This is going to generate deep resentment. . . . But we're calling for people to remain calm."
Miami Police Lt. Bill Schwartz also urged restraint, saying police were taking a "laid-back" approach.
"It's calm," Schwartz said. "It's about what we expected. Well, some people are upset, of course."
Those people turned toward the waiting television cameras, shouting angrily in Spanish and jabbing the air with their index fingers. One new group, calling itself the Cuban Force, urged Cuban Americans to withdraw their funds from U.S. banks. But by late afternoon, many of them had packed up and
left the vicinity of the house, dispirited.
"My parents taught me what it is like in Cuba," said Jennifer Guerra, 18, a student at Miami-Dade Community College. "We've been standing here for five months, screaming, to tell the American people what is going on. And they came here [on April 22], and they gassed us, and they
treated us like pigs. They care more about diplomatic affairs than the freedom of a child."
Special correspondent Catharine Skipp contributed to this report. |