Court: Elian may not seek U.S. asylum
By Frank J. Murray.The Washington Times .
A federal appeals court ruled Thursday that Cuban castaway Elian Gonzalez may not seek asylum from Fidel Castro over his father's objections.
The pleas of the boy's Miami relatives to keep him in the United States were rejected.
However, the unanimous ruling of a three-judge panel prevents Elian from being taken from the United States immediately. His Miami relatives won a delay of 14 days to appeal to the Supreme Court.
That sparked an instant appeal to the Supreme Court for an emergency order to bar removal to Cuba on June 15 — 14 days hence — of the child his attorneys describe in court papers as "the most famous six-year-old in the world."
Thursday's decision, which becomes final on that date, hinted broadly the three judges unanimously wished the law allowed them to rule the other way.
"No one should doubt that, if [Elian] returns to Cuba, he will be without the degree of liberty that people enjoy in the United States. Also, we admit that re-education, communist indoctrination, and political manipulation of [him] for propaganda purposes, upon a return to Cuba, are
not beyond the realm of possibility," said the 11th U.S. Circuit Court of Appeals panel comprising appointees of Presidents Reagan, Bush and Clinton.
In the absence of a law specifically covering the extraordinary situation, however, they deferred to the Immigration and Naturalization Service's discretion in refusing asylum requests signed in a child's block letters and submitted by his great-uncle, Lazaro Gonzalez, and a cousin,
Marisleysis Gonzalez, who cared for the boy after two fishermen found him floating offshore in an inner tube last Thanksgiving Day — two days after his mother drowned trying to reach the U.S. shore.
"Make no mistake about what happened today," said the father's attorney, Gregory Craig. "This case has been decided, and in our view there is no longer any doubt about the ultimate outcome.
"It is now time to end this chapter of Elian's life and to let this family go in peace," said Mr. Craig, who urged the Miami relatives to drop the appeals.
"Their love and their concern are best expressed today by calling a halt to this legal battle," he said at a press conference outside his Washington office, accompanied by Elian's father, Juan Miguel Gonzalez.
Said Mr. Gonzalez: "I love him very much. And, really, I want all this to end and, for once and for all, to leave, to go home, along with my son and all my family. And for this unnecessary delay to end." He has said he would leave the country with Elian immediately whether the
11th Circuit ruled for or against him.
Attorney General Janet Reno, who orchestrated an armed pre-dawn raid of the Miami relatives' house to seize the boy, said she was "pleased" the court had "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," she said. "This is a very important step in achieving the goal we have sought from
the very beginning — to give Juan Miguel and his family the opportunity to return to a life together."
She said, however, Elian would remain in his father's care and he would not be able to leave the country until an injunction by the appeals court ordering him to stay in the United States is lifted.
Administration officials praised the decision, led by President Clinton, who expressed satisfaction in Berlin that his policies were not overturned.
"I have supported the Justice Department's conclusion that Elian's father, Juan Miguel Gonzalez, is the one best suited to speak for his child, and I am pleased that the court has upheld the Justice Department's determination," Mr. Clinton said.
Both major-party presidential candidates said the custody issue should be resolved in family court and Republican George W. Bush called on Vice President Al Gore to persuade the president to allow such a hearing.
About 100 demonstrators screamed, cried and swooned outside the house on Northwest Second Street in Miami, where Elian stayed five months with relatives until the infamous April 22 raid when armed and masked Border Patrol officers led the search party that served an arrest warrant for Elian
and brought him to his father in Maryland.
"The Constitution is dead," said Roxana Rodriguez, a secretary in the crowd outside the house. "There is no justice. Democracy and freedom have been thrown to the trash."
Less than 15 minutes after the ruling was made public, Miami lawyer Kendall Coffey, representing the Miami relatives, asked Supreme Court Associate Justice Anthony M. Kennedy to issue an emergency order preventing his father or the Immigration and Naturalization Service from shipping him "to
Cuba, truly a land of no return for U.S. purposes." He said he "lodged" the request with the high court early yesterday morning to be certain Elian could not immediately depart the United States.
"The rights of Elian have been violated, rights that even a small alien boy enjoys under our Constitution," Mr. Coffey told the Supreme Court, arguing that his young age requires more consideration, not less.
After digesting the 11th Circuit order in which a footnote said no action could be taken before June 15, Mr. Coffey said, he sent a letter informing the Supreme Court "there is no immediate necessity to rule on the application."
"We're at least a day or two away from having a clearer sense of what to do. Everything is under active consideration right now," Mr. Coffey said in an interview.
Mr. Coffey, who was U.S. attorney in Miami early in the Clinton administration, said he now must decide whether to seek a review by the full 11th Circuit or follow through on his promise to file a formal request for Supreme Court review within 10 days in pursuit of an expedited hearing
before the summer recess.
To win a stay, he must demonstrate imminent, irreparable harm and a likelihood that the Miami relatives eventually will win their case.
"A child's right to seek asylum independent of his parents is well established," Mr. Coffey said as the basis for a belief he will prevail.
He claimed the irreparable harm to be avoided is the prospect of allowing Elian to become a Havana trophy.
"Whatever may be the true wishes of his actual father, Elian's future as a prized trophy of the Castro regime will not be within his father's control," Mr. Coffey told the Supreme Court. "No possible statement by the Clinton administration, nor even an order of any U.S.
court, could prevent further abuse and harm in Cuba."
All three 11th Circuit judges acknowledged that prospect as a reality in a sometimes-sympathetic opinion that said their hands were tied.
"It is the duty of the judicial branch not to exercise political will, but only to render judicial judgment under the law," Circuit Judge James L. Edmondson, the Reagan appointee, wrote for himself and for Circuit Judges Joel F. Dubina and Charles R. Wilson, respectively
appointees of Presidents Bush and Clinton.
"Because the pre-existing law compelled no particular policy, the INS was entitled to make a policy decision. The policy decision that the INS made was within the outside border of reasonable choices," the opinion said.
"The court neither approves nor disapproves the INS' decision," the judges said, adding that "reasonable people can disagree" about INS' choices.
"The important legal question in this case, therefore, is not whether plaintiff may apply for asylum; that a six-year-old is eligible to apply for asylum is clear. The ultimate inquiry, instead, is whether a six-year-old child has applied for asylum within the meaning of the statute
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," the court said, upholding the INS decision not to allow that.
"The INS determination that ordinarily a parent (even one outside of this country) — and more important, only a parent — can act for his six-year-old child (who is in this country) in immigration matters also comes within the range of reasonable choices," the court said.
Elian's dad lauds court custody ruling
By David Sands. The Washington Times.
Elian Gonzalez's father Thursday pronounced himself "very happy" with a federal court decision giving him clear custody of his son, but braced himself for weeks of legal wrangling before he can take the boy back to Cuba.
In a rare public appearance, Juan Miguel Gonzalez left the Cleveland Park compound, in Washington, D.C., where his family has been living.
With his attorney, Gregory Craig, at his side in front of Mr. Craig's downtown office, the two appealed to Elian's Miami relatives to drop their appeals.
"I've always felt from the bottom of my heart that a child belongs with his father," Mr. Gonzalez said in Spanish, adding in English: "I want to thank the American people."
Said Mr. Craig, a $400-an-hour lawyer who was a key part of President Clinton's impeachment defense team: "Elian's relatives in Miami say they love Elian, they say they are concerned about his future. But their love and their concern are best expressed today by calling a halt to this
legal battle."
The Miami relatives have been prevented from seeing the boy since he was seized.
Granma, the official Cuban government newspaper, reported that the Castro government may not send Elian Gonzalez to a special indoctrination boarding school because his "recovery" — his indoctrination at Wye River and in Washington under tutelage of Cuban teachers — is
well along. The Castro government may allow him to return to his former home in Cardenas, a resort town about 60 miles east of Havana.
Watching the father's press conference Thursday, Mercy Viana, a Cuban-American whose father was jailed for six years in Cuba for speaking out against Fidel Castro, predicted that the "re-education" of Elian Gonzalez will nevertheless proceed in earnest if the boy is sent back to
Cuba.
"As he grows up, he'll be such an important symbol to the Cuban government that he will never be allowed to speak his mind or have an independent thought," Miss Viana said. "The psychological abuse will really begin when the kid gets back."
Neither Mr. Craig nor his client would answer questions after making their statements.
The Cuban government, which has taken an intense interest in the case and in the movements of Juan Miguel Gonzalez, reacted more warily.
There are "worrying elements" in the Atlanta appeals court decision, the government said Thursday, in particular the injunction that bars Elian Gonzalez from leaving the United States in the next few weeks as the appeals are heard. Such appeals to an independent judiciary are
unknown in Cuba.
Except for outings such as an early May cookout at the fashionable Georgetown home of Democratic power broker Smith Bagley and a supervised trip this week to Baltimore's Inner Harbor, the Gonzalez family has been kept out of the public eye, first at the Wye River Plantation retreat in
Maryland and more recently at the Cleveland Park property that is part of the 6 and 1/2-acre Youth for Understanding compound.
While Cuban diplomats have had free access to the family, the Miami relatives who cared for Elian in the months after his Thanksgiving Day rescue from the sea have been prevented from seeing the boy.
The isolation has even become an issue in the custody wars.
Kendall Coffey, an attorney for the Miami family, Thursday accused the father and Mr. Craig of "trying to hide the child," noting the court decision acknowledged the role of Miami great-uncle Lazaro Gonzalez and the South Florida family in the boy's life.
Elian backers blast decision for father
By Sean Scully. The Washington Times.
Reaction to the Atlanta ruling on Elian Gonzalez swept quickly across the country Thursday, from Capitol Hill to Miami and even to Nevada, where George W. Bush weighed in on the matter.
Congressional backers of the Cuban boy deplored the court decision that opens the way for his return to Cuba.
"It can never be in a child's best interests to live under communist tyranny, and I hope that the appeals process will ultimately result in providing Elian Gonzalez with a life of liberty," said House Majority Whip Tom DeLay, Texas Republican.
Some Democrats shared the view. Rep. Robert Menendez of New Jersey said he would push the House to allow children a hearing when they are fleeing repressive countries.
"I believe the appeals court decision has sealed Elian's fate to a life under a dictatorship that does not share our freedoms and our family values," Mr. Menendez said. "It also sets a dangerous precedent for children fleeing dangerous regimes worldwide."
The current law does not specify an age limit for an asylum hearing, saying that any alien can request a hearing before being sent back to his home country. The INS, however, took the position that the law could not apply to a child, who is generally assumed to be too young to make
important legal decisions.
Mr. Menendez said that interpretation was "clearly not the intent of Congress," which passed the asylum law in its broader form.
He said he will try to make that clear by changing the law.
Said Sen. Bob Graham, Florida Democrat: "We need to change that unacceptable status quo. . . . A cruel combination of fate and law has made a tragedy of Elian Gonzalez's life.
"If Elian's plight and today's court decision teach us anything, it is that our immigration laws do not account for the special needs of children. These laws do not treat children fairly or with proper sensitivity."
Sen. Connie Mack, Florida Republican, said the ruling mars the rule of law under which the United States was established.
"Our democracy should work to make the journey to freedom easier, not more complex. The denial of a court hearing either on custody or asylum leaves a black mark on our democracy," he said.
But Sen. Patrick J. Leahy of Vermont, the senior Democrat on the Judiciary Committee, agreed with the ruling.
"The court underscored common sense in deciding that a little 6-year-old boy belongs with his father," he said.
Meanwhile, Mr. Bush called on Vice President Al Gore to urge the Clinton administration to move the Elian custody battle to a family court.
Campaigning in Nevada, Mr. Bush criticized the decision and urged Mr. Gore to take action to change the venue for the custody dispute.
"I continue to believe that it's in the child's best interests for the decision to be made in a family Florida court, a court whose job it is to decide the best interests of the child," Mr. Bush told reporters.
"The vice president has made a similar statement, and I would hope that he would call on the attorney general to take this ruling and for her to allow the decision to be made in a family court," he said.
But Mr. Gore seemed resigned to Thursday's court decision, even as he described his own wish for a family court solution.
"I've long believed that the best way to have handled it would have been to have put it in a family court," Mr. Gore said as he campaigned in Atlanta.
"However, now it's in the federal courts," he said. "I think this decision must be accepted with respect as the appeals process continues, at least for a short time, and we all hope for the best for this young boy who's been through so much."
In Miami, the boy's relatives said they would battle on to win the castaway a political asylum hearing.
"We're going to keep fighting for the liberty of Elian," his great-uncle, Lazaro Gonzalez, said. "We will keep fighting with the laws . . . so Elian Gonzalez can live in a free country like his mother wanted."
Mr. Lazaro's daughter, Marisleysis Gonzalez, alternately defiant and fighting back tears, said she had recently phoned the home where Elian is staying but that a schoolmate's mother who answered refused to let her speak to Elian.
Outside the home where Elian lived with the Gonzalez family in Miami's Little Havana neighborhood, four dozen protesters wept, chanted "Liberty for Elian" and waved American and Cuban flags. Some wore T-shirts saying "The Devil Snatched Elian."
One woman collapsed, screaming and shaking uncontrollably when the ruling came, and was taken away by paramedics.
• This article is based in part on wire service reports.
Back to Cuba?
EDITORIAL • June 2, 2000
The Elian Gonzalez saga appears to be coming to a close. While many Americans have been pleased to see the small boy reunited with his father, it has to be considered what kind of life Elian — and his immediate family — will be returned to. Cuban dictator Fidel Castro has been a
tireless and significant actor in the Elian affair from the start, exploiting the case for political gain. Should Elian return to Cuba, as now seems more likely, Mr. Castro will continue to hold considerable sway over the life of every one of them.
Yesterday, a three-judge panel from the 11th U.S. Circuit Court of Appeals in Atlanta ruled that, as a minor, Elian was not entitled to an asylum hearing since such a proceeding would go against the wishes of his father, Juan Miguel Gonzalez. The court upheld a January decision by the
Immigration and Naturalization Service that said only Mr. Gonzalez could speak for his child. The INS decision "was within the outside border of reasonable choices," the court said elliptically.
The court's ruling wasn't exactly a ringing endorsement of the INS decision, noted Kendall Coffey, a lawyer for Elian's Miami relatives, who have tried to keep Elian in the United States. It simply stated that the INS had the authority to make policy on the Elian case and that the courts
didn't have the jurisdiction to reverse it.
President Clinton said Thursday the case was "about the importance of family and the bond between a father and son." Mr. Clinton's observation is misleading, since granting Elian U.S. asylum would have given Elian the option of living in the United States, not the requirement to
do so.
The court's ruling deals a blow to the relatives' efforts to win Elian U.S. asylum. Although they now have 14 days to ask the full court to reconsider yesterday's ruling, it seems unlikely the court would reverse the unanimous panel decision. The Miami relatives could also appeal the court
ruling to the Supreme Court. For the time being, Elian's relatives have asked Supreme Court Justice Anthony M. Kennedy for an order keeping the boy in the country until the high court reviews his case.
No one should underestimate the bond between father and son. And yet, consider the kind of world Elian will now grow up in if he does go back. In April, the U.N. Human Rights Commission condemned Cuba for its "continued violation of human rights and fundamental freedoms." As a
child, Elian's education would mainly consist of indoctrination to the Castro system. He will be rigorously denied freedom of thought. In about four years, Elian would have to spend three months of the year away from home in forced-labor and military-training camps. Venereal disease and teen
pregnancy run rampant in these camps. If he is raised as an ordinary Cuban child, Elian would be denied access to vital medications, since Cuba's health care apparatus is suffering severely from lack of funds.
It is a grim childhood. As an adult, the Cuban model hardly allows families to provide for their most basic needs. Religious people, including children, indure severe repression. The regime is the ultimate arbiter of what career one may choose.
In Cuba, only the regime has rights, and those rights are vast indeed. In order to ensure its own survival, it coerces its people into compliance, reaping power from their fear and grief. Indeed, the only happy ending to the Elian saga is for Mr. Castro to disappear.
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