Published Tuesday, June 20, 2000, in the Miami Herald
U.S., father urge court to let Elián go back
ATLANTA -- (AP) -- The U.S. government and Elián González's father urged a federal court today to reject an appeal by the boy's Miami relatives, end ``the excruciating delays'' and let him return to Cuba.
Attorneys for Juan Miguel González asked the 11th U.S. Circuit Court of Appeals to immediately dissolve an injunction keeping him and his son in the United States.
They accused Elián's great-uncle Lázaro González and his other Miami relatives of stalling, exhausting the appeals and taking as much time as possible to keep the boy in the United States.
``Now we urge the court to see through Lázaro's charade, stop the excruciating delays, and allow this family to go home,'' attorneys for Juan Miguel wrote.
In a four-page filing, attorneys for the father said a three-judge appeals panel's ruling earlier this month that only he could speak for 6-year-old Elián was ``indisputably a reasonable choice.''
The government agreed in a separate filing Tuesday, saying Lázaro González was ``wide of the mark'' in asking the full appeals court to hear the Miami relatives' appeal.
The Miami relatives had made the request Thursday, and the court gave the father and the U.S. government until Tuesday to respond. Seven of the 12 judges would have to agree to hear the case for it to come before the full court. A court clerk said Tuesday there was no timetable for that
decision.
If the full appeals court rejects the rehearing, the Miami relatives would have seven days to take their case to the Supreme Court.
In its ruling June 1, the three-judge panel of the 11th Circuit said the INS acted within reason when it decided only Elián's father -- not the Miami relatives -- could apply for asylum on his behalf.
The panel said no federal law addresses whether a child as young as Elián can seek asylum against his parents' wishes. Citing a 1984 Supreme Court ruling, the panel said courts cannot interfere if a federal agency makes a reasonable interpretation of an ambiguous law.
The Miami relatives argued the panel gave too much deference to the INS. They also said aliens like Elián have a constitutional right to seek asylum.
The government argued Tuesday that the three-judge panel was correct in its ruling, saying the INS gave the Miami relatives a fair hearing and decided appropriately that Juan Miguel was acting in Elián's best interest.
Juan Miguel González's lead attorney, Gregory Craig, argued in his filing that the Miami relatives' prolonged fight to keep the boy in the United States was a ``powerful reason'' for the appeals court to reject their appeal immediately.
``The driving force behind Lazáro González's petition for rehearing is to prolong Elián González's stay in this country as long as possible,'' the filing said. ``Every day, of course, is another day of interference with Juan Miguel's ability to raise his child as he
sees fit.''
Juan Miguel González arrived in the United States in April, hoping to take Elián back to Cuba and end the saga, which now has stretched to nearly seven months.
Elián was rescued off the Florida coast after his mother and 10 others drowned in November when their boat sank en route to the United States. The INS decided the boy should be returned to his father. But the Miami relatives, who cared for Elián since his rescue, refused to
relinquish the boy, and federal agents seized him April 22 and reunited him with his father near Washington.
On the Net: Appeals Court: http://www.ca11.uscourts.gov
Court ruling ends Dade's Cuba policy
Massachusetts case on Myanmar prevents county from enforcing law
By Amy Driscoll, Jordan Levin And Frank Davies. adriscoll@herald.com
A Miami-Dade policy that prohibits the county from doing business with anyone who has dealings with Cuba came to an abrupt end Monday under a broad ruling by the U.S. Supreme Court in a Massachusetts case.
``Today's ruling precludes Miami-Dade County from enforcing our Cuba policy,'' said Miami-Dade Mayor Alex Penelas. ``While disappointed with today's decision, we will, of course, follow the law.''
Assistant County Attorney Robert Cuevas said the ruling means the county can no longer prohibit the use of public facilities by Cuban artists or deny contracts to companies with ties to Cuba. Nor can it require them to swear in a ``Cuba affidavit'' that they have never had dealings with the
island nation.
The effect of the ruling on Miami-Dade is sweeping. Since the 1996 policy went into effect, Miami-Dade has kept Cuban artists out of publicly subsidized venues and denied funding for events that might include Cubans. It's a practice that this year caused Miami-Dade to lose the prestigious Latin
Grammy Awards to Los Angeles and put Miami out of the running for the Pan Am games in 2007.
Companies with subsidiaries doing business in Cuba also have been prohibited from business dealings with the county, although exceptions were made for such corporate giants as Carnival Cruise Lines and AT&T.
Monday's Supreme Court ruling involves a Massachusetts law that nearly mirrors the Miami-Dade policy. The Massachusetts law required state agencies to boycott companies that do business in Myanmar, also known as Burma, which is ruled by a military dictatorship known for human rights abuses.
The National Foreign Trade Council, representing many U.S. companies involved in trade, sued the state and won, but the case was appealed to the U.S. Supreme Court.
On Monday, the court ruled unanimously that the law was unconstitutional because the state law conflicted with U.S. foreign policy. Congress had already passed its own sanctions against Burma, preempting state law, the justice said.
Justice David Souter wrote the opinion, finding that the Massachusetts law ``undermines the president's authority by leaving him with less economic and diplomatic leverage.''
In other words, foreign policy should be left to the federal government.
A nearly identical conflict existed in Miami-Dade. The federal government has already imposed an embargo against Cuba, yet the county passed its own, tougher policy.
The county's Cuba policy was enacted in 1996 after the Cuban military shot down two Brothers to the Rescue planes, killing four people.
It became a contentious issue as arts groups were turned away from public facilities and lost funding.
Miami's arts community celebrated Monday's ruling as a victory for free speech. Beth Boone, executive director of the nonprofit arts group, the Miami Light Project, called the court's decision the dawn of a new era: ``It's a good day and a new day for Miami-Dade County.''
In April, Boone's organization and four other local arts groups and producers, including GableStage and the Cuban Cultural Group, sued the county in federal court, challenging the policy as unconstitutional. Represented by the American Civil Liberties Union, they won a temporary order that
allowed them to apply for county cultural grants without having to sign the affidavit.
At the time, U.S. District Judge Federico Moreno predicted ``there is a substantial likelihood that the `Cuba affidavit' will be found unconstitutional'' primarily because of conflicts with U.S. foreign policy.
Monday's decision did just that, said attorney Bruce Rogow, a lawyer representing the arts groups.
``This effectively puts Miami-Dade County out of the foreign policy business,'' he said.
He and co-counsel Beverly Pohl plan to file motion for summary judgment, asking the judge to declare the arts groups the winners in their lawsuit.
``You have very parallel kinds of situations here,'' said Pohl. ``You could remove the name Massachusetts and insert Miami-Dade County, and take out Burma and replace it with Cuba, and it's pretty much the same.''
In Miami's cultural circles, the effects of the ruling began to be felt Monday. Impressaria Judy Drucker, for example, had been concerned about the effect the Cuba policy might have on her plans to bring American Ballet Theater to Miami next year. One of the principal dancers is Cuban.
``It makes it easier because I'm planning things for next season with Cuban dancers and now I can do it with peace of mind,'' Drucker said. ``I think the Cuba affidavit was un-American and offensive. I'm thrilled, absolutely thrilled.''
Drucker said she had already turned down an offer to present the National Ballet of Cuba in Miami next season because of the county policy. Now she plans to reconsider.
``I was afraid, but now I might just say I'll do it,'' Drucker said.
Debra Ohanian, one of the plaintiffs in the Miami-Dade suit, has brought Cuban bands to her South Beach club, Starfish, and also brought the group Los Van Van to the Miami Arena last fall.
``I don't think it means that it's easier to bring Cuban bands here,'' she said cautiously. ``It's just that legally they can't stop us. I think because of sentiment in the community it will take a long time to work on these issues. But we won't have all these legal issues, which is half the
battle.''
Ohanian said she now hopes to resurrect plans for a festival of Cuban music at the American Airlines Arena. She had shelved the idea because of the requirement that promoters at the county-owned arena sign the Cuba affidavit.
Other institutions, like Florida International University, also have significant financial stakes in a new, unrestricted Miami. The county rescinded almost $50,000 in grants to the FIU Miami Film Festival after it showed a Cuban film in February. The university is appealing.
And for Alberto Sarrain, director of theater ensemble Cuban Cultural Group, the court's decision sent an important message to the Cuban community. ``It's a way of educating our community that there are democratic and constitutional values above our personal interests,'' said Sarrain, who spent
three years in a Cuban jail for trying to leave the island. "And these are values that we definitely have to learn.''
Let Cuba ordinance die
Supreme Court: no state foreign policies
The Supreme Court minced no words declaring unconstitutional a Massachusetts law imposing sanctions on Myanmar (formerly Burma).
The court held that the act ``undermines the president's capacity . . . for effective diplomacy. It is not merely that the differences between the state and federal acts in scope and type of sanctions threaten to complicate discussions; they compromise the very capacity of the president to speak
for the nation with one voice in dealing with other governments.''
That is a concise, clear summary of provisions in the Constitution that empower the president to set and conduct foreign policy in consultation with Congress. If states have no role, cities and counties, including Miami-Dade County, have no role. The unanimity of the Supreme Court in voiding the
Massachusetts law -- Justice David Souter wrote for seven members and Justice Anthony Scalia concurred in a separate opinion with Justice Clarence Thomas -- suggests the wisdom of the decision and the certainty of the law. Take heed, Miami-Dade.
The capriciously enforced Miami-Dade ordinance has a broader reach than was attempted by Massachusetts' Myanmar law, or by Congress's Helms-Burton law dictating Cuba-trade policy. U.S. District Judge Federico Moreno last month temporarely prohibited the county from enforcing its ordinance while
waiting for the Myanmar decision. Now the American Civil Liberties Union, which sued the county on behalf of five local arts groups and producers, rightly will seek to make the ban permanent.
Will that change local attitudes toward the Cuban government of Fidel Castro? Not a wit. The communist dictator is a hated man here -- and for good reason. What the lawsuit can do is return Greater Miami to the national fold, opposing Castro but in ways that are consistent with national policy
and law. It may also spare South Florida the costly embarrassments of losing such events as the Latin Grammy Awards and Junior Pan Am Track and Field Championship.
Granted, some distinctions can be made between the Massachusetts law and the local ordinance. Even so, urging the Supreme Court to give deference to a Miami-Dade ordinance when it could find no deference to give to the state of Massachusetts is likely to be a waste of breath. No such demands
should be made on county government.
It's better to focus on ensuring effective national sanctions that can be used to change Cuba and on winning commitments from presidential and congressional candidates to to employ such sanctions.
INS interviews 24 Cuban sailors
Only three on ship seek U.S. asylum
By Marika Lynch. mlynch@herald.com
After two Cuban sailors expressed fear of persecution Monday, U.S. immigration officials interviewed the other 22 crew members aboard the ship docked at the Port of Miami-Dade.
In the end, though, only three of the Cuban sailors aboard the Malta-registered MV Laridea said they were afraid of returning to Cuba. They spent the night at the Krome Detention Center and will get an asylum hearing, said Maria Elena Garcia, an Immigration and Naturalization Service
spokeswoman.
The remaining 21 went back to the ship, which is scheduled to leave for Tampico, Mexico, early Wednesday.
The INS took the precaution of returning to the Laridea to interview the remaining crew, Garcia said, because the original two asylum seekers said others had wanted to request asylum but were ``unsure of how to approach'' immigration officials.
``That's when we went in there and talked to everybody,'' Garcia said.
Garcia said there was nothing unusual about the decision by the INS, though one prominent immigration attorney expressed surprise.
``That immigration would go back on a ship and interview the other people without being requested to do so, where somebody has not affirmatively come forward to seek asylum, is extraordinary,'' Ira Kurzban said. ``One can't imagine them doing that on a Haitian freighter.''
It was unclear Monday whether the Cubans had been living abroad or on their native island before the voyage. A representative of the shipping agent, Oceanic Steamship Co., could not be reached Monday night.
What is known is that the Laridea, a 493-foot vessel registered in Malta and carrying wood from Brazil, arrived at the Port of Miami-Dade at 7:30 a.m. Monday. It was the ship's first-ever South Florida stop.
When INS inspectors boarded the ship, as they do routinely, two men asked for asylum, Garcia said.
The pair were taken off the ship to be interviewed at the seaport in a ``neutral'' building where they could speak freely and privately, Garcia said.
Throughout the afternoon, the other 22 Cuban sailors stayed aboard the Laridea. INS explained at the time that they didn't have visas to legally enter the United States.
None of them had asked to get off, either, Garcia said at the time.
Then, at 5 p.m., Garcia said: ``There has been a change.'' That's when the decision was made for INS inspectors to interview the remaining crewmen, who walked off the ship in their work clothes, including one in a chef's hat and white coat. Only one decided to stay on board.
Monday's situation was an anomaly in Cuban immigration. In at least the past two years, no Cuban crew member of a freighter has sought asylum in a U.S. port. Most Cubans who arrive in the United States without visas come on rafts or are smuggled in on boats.
Reconciling U.S.-Cuba
Max Castro
Wherever gallons of blood have been spilled, deep wounds inflicted and the adversary verbally assassinated, it's excruciating to move from violence, hatred and diatribe to reason, negotiation and reconciliation. Yet recent history shows it is possible. The Poles got there. The South Africans,
the Chileans, the Spaniards, the Guatemalans, the Salvadorans and the Nicaraguans have done it. The Americans and the Vietnamese managed it despite mountains of dead. The Irish, Catholic and Protestant, seem on their way. The Palestinians and Israelis still hold out hope, despite many setbacks. Now
even the Koreans North and South, have met, struck agreements and seem headed toward reconciliation. Why not Cubans?
It's a question without an easy or obvious answer. Conflicts even more intense and entrenched have been resolved. The Palestinian-Israeli conflict reflects historical traumas on a scale far greater than anything that has happened in Cuba. The roots of the Irish struggle go back centuries rather
than decades. A million died in the Spanish Civil War. Oppression based on color was so institutionalized in South Africa many found it impossible to imagine how apartheid could end in anything other than a racial bloodbath. With terrorist bombs killing civilians on a regular basis, before the
diplomatic breakthroughs Israelis and Americans viewed Yasser Arafat in an even-more negative light than Fidel Castro.
It's clear that a change in generation can help pave the way for change and reconciliation. That generational change has yet to occur in Cuba, but it has in communist North Korea. It's doubtful that what is happening in Korea today would have taken place under the long rule of Kim Il Sung. Yet
Kim Jong Il, the current North Korean leader, has shown surprising flexibility despite being the son and heir of the late North Korean leader.
SPECIAL CHALLENGE
Changes in anti-communist South Korea have helped, too. After decades of hard-line, authoritarian rule, the rise of Kim Dae Jung, a democrat speaking a new language and willing to extend an olive branch to the regime in Pyongyang, was crucial. In the Cuban context, in recent years moderate
opposition groups for reconciliation have sprung on the island and the diaspora. But the Cuban government ignores them when it does not harass them while in the United States traditional exile groups, which continue to have the power and cling to the same hard-line policies and language, treat them
as the enemy.
But perhaps the main reason the Cuban case poses a special challenge is that, rather than a simple conflict between two opposed parties, the situation increasingly has become a tangled triangle with three players -- the Cuban government, the United States and the exiles. The geometry of the
Cuban problem makes the resolution of conflict that much more difficult, as any one of three parties can always throw a wrench in the works.
Is there a way out of these dilemmas? The road of confrontation has not worked with Cuba in 40 years. Waiting for the inevitable is not a good policy either. Joaquin Balaguer recently played the role of spoiler in the presidential elections in the Dominican Republic. The Dominican leader is
94-years-old, exactly 20 years older than Fidel Castro will be in a couple of months. Moreover, the other three communist countries that did not become dominoes when the Soviet bloc collapsed -- Vietnam, North Korea and China -- have weathered the death of the top leader without a political
collapse. Despite all the traumas and difficulties, the best road is still the one that leads to negotiations and reconciliation on all sides, starting now. A bill currently before the U.S. Congress to lift restrictions on the sale of food and medicine is a good first step to take, hard-line exile
opposition notwithstanding. Positive steps also are needed from the Cuban side, but there are disturbing signs that Havana is overplaying its hand in the Elián González affair. It's a key time in U.S.-Cuba relations, and the world will know which players tried to spoil the show.
maxcastro@miami.edu
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