USA TODAY. June 2, 2000
Elian Gonzalez, the Cuban castaway whose fate has obsessed much of Miami's Cuban community for six months, is not entitled to a hearing for political asylum, according to a three-judge panel of the 11th U.S. Circuit Court of Appeals. To this, there are two appropriate responses. The first is:
Whew. And the second is: No kidding.
The idea that a 6-year-old from any nation could express a valid, independent desire for political asylum is simply not credible. The law does not set age thresholds for children seeking to make such choices. But if a child's political allegiances can be purchased with ice-cream cones, you can
never be sure it isn't the sugar buzz talking. That's why Elian's fate should ultimately be decided by his father Juan Miguel Gonzalez.
Likewise discreditable is the suggestion that a distant relative, in this case a great uncle, can sponsor a child's claim against the expressed wishes of the parent. As a matter of state law, international treaty and simple family values, the authority of a parent trumps all comers, absent
evidence of child abuse or neglect. In this case, Juan Miguel has undisputed custody, based on a complete lack of evidence of abuse. Why should anyone else speak for the child?
Imagine if Elian's application had been upheld. For one thing, the number of asylum cases would skyrocket, as other children, whose cases are usually heard with their parents' cases, file independent applications. Meanwhile, the thousands of American parents trying to retrieve children abducted
overseas by ex-spouses would be placed at an even greater disadvantage, as other countries adopted similar standards.
More broadly, a decision favoring Elian's uncle would have conflicted with two key legal notions. One is the separation of powers. Congress has the right to assign certain authority to federal agencies -- in this case, asylum claims to the Immigration and Naturalization Service -- without
interference from the courts. The other is the tradition of deferring to agencies with respect to unclear statutory language. In this case, Congress did not put an age limit on asylum applications. The INS was thus the legitimate interpreter.
None of which is likely to matter to the Miami protesters who accused the court of selling out the Constitution. Nor, apparently, to the presidential candidates. Both Gov. George W. Bush and Vice President Al Gore said the matter belongs in Florida's family court. News flash to the campaigns:
This resembles a custody case, but it's an immigration case. That makes it federal.
The judges ordered Elian and his father to remain in the United States for at least 14 more days to give the Miami relatives time to file appeals. That takes care of the criticism that the relatives are being denied due process, and it's an essential nicety. But the gist of the court's message
is clear: The claims are frivolous. Elian must stay until the case is played out. But as the judges have signaled and as the nation broadly knows, it's time for Elian's dad to make his own call.
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