Published Saturday, June 3, 2000, in the Miami Herald
Elián's great-uncle: 'I'm going to appeal'
By Jay Weaver And Ana Acle. jweaver@herald.com
Despite a plea from Elián González's father to let him and his son return to Cuba, the boy's great-uncle in Miami said Friday he will challenge a major federal court loss in the hope of keeping the 6-year-old in the United States.
Lázaro González said he has every intention of appealing Thursday's ruling by a three-judge panel of the 11th Circuit Court of Appeals, which sided with the federal government's decision not to hear Elián's political asylum application.
''Of course, I'm going to appeal,'' González told The Herald, saying he must meet with his lawyers in a few days to decide the next legal move. Then he joked: ''That's the secret of warfare.''
Meanwhile, the Washington, D.C., attorney for the child's father again urged the great-uncle to simply end the family legal feud so Juan Miguel González and Elián can return to Cuba. Court appeals could hold up their departure for weeks, if not months.
''Right now, it's in the power of the Miami relatives to release them,'' attorney Gregory Craig said Friday on CNN. ''There's no reason to prolong that moment.''
Most major newspapers in the country urged the Miami relatives to give up their legal battle to keep Elián in the United States because they believe it has become a lost cause. Even singer Gloria Estefan, who has supported the relatives' legal effort, said there seems to be no purpose to
continue the fight.
''As a mother, a woman and a Cuban American, I guess it's time for Elián to go back -- I have a feeling,'' Estefan told NBC's Today.
Lawyers for the boy's great-uncle have until June 15 to appeal the 11th Circuit's ruling, which upheld a lower court's decision saying the Immigration and Naturalization Service acted reasonably in deciding that only Elián's father can speak for the boy on his asylum application. The
father, who is now staying with Elián in Washington, D.C., has said repeatedly that he wants to return with him to Cuba.
But the great-uncle's lawyers can still ask the three-judge panel or all 12 members of the 11th Circuit to reconsider their challenge. They could also file their appeal directly with the U.S. Supreme Court. If the Miami legal team did nothing, an earlier 11th Circuit injunction that bars the
boy's removal from this country would be lifted June 23.
But lawyers for Lázaro González said they are ready to pursue all remaining legal avenues. They plan to huddle with the great-uncle within a few days to make that decision.
They argue that the INS violated Elián's due process rights under the Constitution when the agency refused to review his asylum application.
The lawyers say a serious conflict exists in previous rulings on the asylum rights of refugees by two federal appeals courts in the South.
''That's a huge question that needs to be answered,'' said Kendall Coffey, one of the Miami relatives' attorneys.
''When you have at stake the constitutional right for aliens to apply for asylum, it's something worth fighting for,'' added Roger Bernstein, another family attorney. ''But in the end, it's the family's call on how they want to proceed.''
But several independent legal scholars counter that the relatives' legal team faces a daunting challenge of persuading the Supreme Court to accept any appeal on constitutional grounds. They say there is no conflict on the question of an alien's constitutional right to seek asylum, so the
high-court justices would not be interested in Elián's case.
''I don't know of any constitutional rights that have been violated here,'' University of Miami law professor David Abraham said. ''The rights of unadmitted aliens are limited in immigration matters.''
Herald writer Mireidy Fernandez contributed to this report.
Ruling sparks debate over children's asylum
Advocates claim bad precedent
By Andres Viglucci. aviglucci@herald.com. Published Saturday, June 3, 2000, in the Miami Herald
The federal appeal court ruling that denied Elián González a chance at political asylum has spurred a sharp debate among immigration-law experts, some of whom contend the decision will harm the rights of other children seeking U.S. protection from persecution.
Some scholars and the Immigration and Naturalization Service say the opinion merely reaffirms longstanding precedents and does nothing to change how the government handles children's asylum claims. The court upheld the INS' authority to reject a request for an asylum hearing filed by 6-year-old
Elián's Miami relatives on his behalf.
But others, in particular immigrant-rights advocates, say the court set a worrisome precedent by vesting virtually unfettered power in the government to decide which of the thousands of unaccompanied children who enter the country each year get to apply for asylum. The judges concluded that INS
acted within its powers when it decided that, absent credible evidence of abuse or political persecution, the boy was too young to pursue asylum against his father's wishes.
One advocate predicted the INS will use it as justification for rejecting asylum claims from children without considering them.
``Before they would have at least had to take that application from a child,'' said Tammy Fox-Isicoff, a former INS trial attorney now in private practice in Miami. ``Now they don't have to.''
Cheryl Little, director of the Florida Immigrant Advocacy Center in Miami, said the INS typically takes a hard line on enforcement and will likely view the ruling as one more tool in its arsenal to contest asylum claims.
``They've raised the bar for children's asylum claims,'' she said. ``There will be many vulnerable children who will desperately need our protection and won't get it.''
Other experts called those fears unwarranted, saying the opinion's impact will be limited. They said the three-judge panel of the 11th Circuit Court produced a narrow decision tailored to a unique case.
RULES UNCHANGED
``It does not change the ground rules on children's asylum at all,'' said David Abraham, professor of immigration law at the University of Miami. ``What this opinion does is restate what we've already known -- that Congress has delegated authority to the administrative branch, and unless they
have acted capriciously, the courts are not there to second-guess them.''
Another expert said that for the court to have ordered the INS to consider every application filed by or on behalf of a child, regardless of age or circumstance, would have led to absurd results.
``It can't be that if a child is visiting the United States, some adult can walk into the INS with an application for asylum, and the INS has to start a lengthy process irrespective of the wishes of the parents,'' said Alex Aleinikoff, former INS general counsel and law professor at Georgetown
University.
OFFICERS TRAINED
Typically, the INS places unaccompanied minors who enter the country illegally in deportation proceedings. The agency says its officers are trained to question and to observe children for evidence that they fear returning home.
``We have been at the forefront of putting together children's asylum guidelines,'' said María Cardona, spokeswoman for the INS. ``Our asylum officers are trained to deal with young children. We take every case very seriously on a case-by-case basis.''
Cardona noted that the court recognized that INS did not make the decision in Elián's case solely because of his age, but considered other factors as well, ultimately deciding that his father was not coerced by the Cuban government and that the boy faced no persecution at home.
SOME CIRCUMSTANCES
Experts say those children who win asylum usually do so because of ``immutable characteristics,'' such as race or religion, that place them in jeopardy at home, such as Tutsis in Rwanda during the massacres there, or Jewish children in Hitler's Germany. Others can win asylum if they could face
reprisals because their parents have been persecuted.
Sometimes though, children can win asylum for other reasons, for instance if they are victims of persecution as members of a particular social group. Recently, a court awarded asylum to two small homeless Honduran children who fled officially tolerated murder squads at home that targeted street
children, Fox-Isicoff said. The INS has appealed.
In 1996, a teenage girl from Togo became the first to win asylum after fleeing to escape having her genitalia cut off in a tribal ritual.
Advocates, in fact, have drawn parallels between the female genital mutilation cases, in which parents often want their children back, and Elián's case. They contend the court's decision now would allow the INS to reject such applications.
But other experts say Elián's case differs in important aspects. Girls fleeing genital mutilation often clearly clash with their parents who want them to undergo the ritual and face physical harm.
In Elián's case, arguments that his father did not have his best interests at heart because he intended to take him back to a communist country, or that the boy would face political persecution in Cuba, were thin at best, they said.
``You can't say that because we don't like the politics of the father, we'll take the kid away,'' Abraham said.
Cuban display protests delay
A half-million gather in Havana to march, call for Elián's return
Published Saturday, June 3, 2000, in the Miami Herald
HAVANA -- (AP) -- Shouting ''Bring back Elián!'' and ''Down with the lies!'' a half-million women answered President Fidel Castro's call to flood Havana's main coastal highway Friday to protest another delay in Elián González's return to his Communist-ruled homeland.
The mothers and grandmothers waved small Cuban flags and marched soldier-like, in step with a uniformed military band, in one of the largest mobilizations of the Cuban president's six-month campaign to bring the 6-year-old boy home.
In a rare appearance at a large outdoor event, Castro showed up to greet the women and listen to political speeches by children in school uniforms and folk music performances by young adults.
''We Cubans are accustomed to fighting!'' a female teacher in her 20s shouted to the marchers from a stage erected in front of the U.S. Interests Section, the American mission in Havana. ''People of Cuba: We cannot grow faint in combat!''
Leading the march were Elián's grandmothers: Raquel Rodríguez and Mariela Quintana. They were accompanied by Vilma Espín, president of the Cuban Women's Federation and the wife of Defense Minister Gen. Raúl Castro, Fidel Castro's brother.
The 500,000 women from Havana -- which has a total population of 2 million -- flowed down the Malecón coastal highway to the U.S. Interests Section as a Cuban television helicopter hovered overhead. Many carried umbrellas to protect themselves from the tropical sun.
Copyright 2000 Miami Herald |