By Kathryn Jean Lopez, NR associate editor-lopezk@ix.netcom.com. National Review. 6/29/00 10:20 a.m.
Grover Joseph Rees was the general counsel of the Immigration and Naturalization Service from 1991-1993. He is currently staff director and chief counsel of the Subcommittee on International Operations and Human Rights in the House of Representatives.
Lopez: Is Elian back in Cuba a major victory for Fidel Castro?
Rees: Oh, of course it is. Yes. Enormously. As all of the commentary accompanying the vote on Cuba trade has indicated — against what many of us though would happen — Castro has actually been able to turn the Elian issue to his advantage across a broad field of ways.
Lopez: What accounts for the congressional movement?
Rees: The public-opinion polls. I think that if the public-opinion polls — as some thought they might have — suggested that 70 or 80 percent of the people were appalled by the pre-dawn raid in Miami, you would have seen a different reaction in Congress.
Lopez: There was a lot of back and forth in the courts. At what point did the Miami family of Elian Gonzalez have a chance? Did they ever?
Rees: I was never optimistic about their chances because the attorney general has such broad discretion under the immigration laws — until that decision from the 11th Circuit three-judge panel came down. And Judge Edmundson, who wrote the opinion, just got it exactly right in almost
every way when he commented on the different contentions by the government and by the relatives. Of course, Edmundson was careful to say in the opinion that just because we are granting a stay no one should read into what our final decision is going to be. And of course that's true, that's
black-letter law. You are supposed to grant a stay if there is a significant chance that the side seeking the stay is going to win and if irreparable harm would be done by giving them the stay. So, he was right about that. Nevertheless, from the way he wrote the opinion, I felt quite strongly that
those thoughts would find their way in the opinion on the merits. That didn't happen.
But, really, that was the only moment — that period between the 11th Circuit's decision to grant the stay of Elian's return to Cuba and the time when they issued their final decision on the appeal &#!51; is when we all thought that the relatives had a chance.
Lopez: Was this ever a case the Supreme Court would have taken up?
Rees: I think it's unlikely. Usually when the Supreme Court takes an immigration case it's to slap down the 9th Circuit and tell them that they've gone too far in constraining the attorney general's powers. It doesn't necessarily tell you what the Supreme Court thinks about immigration.
The one thing we know the Supreme Court thinks about immigration is that the Executive has broad discretion.
Lopez: Was this case an anomaly? Or is it an accurate indicator of U.S. immigration policy?
Rees: Well, ironically, I think that if the facts had been a little different — if the country had been some place other than Cuba — the Justice Department might have taken a different position in the first place. If this were a seven-year-old girl whose mother had brought her
to the United States from a country in Africa where they practice female genital mutilation, in order to save her from that, and the mother had died on the plane on the way over, I think Janet Reno would have given her an asylum hearing.
So, you would think it would set a precedent — and a dangerous one — because if there is any way to violate the attorney general's broad discretion in immigration matters, surely letting someone in a country withdraw an asylum application for someone who has escaped from that country,
when the application claims they will be persecuted if they go back, would be a way to violate the attorney general's discretion. Strictly from the standpoint of refugee policy, that is a dangerous precedent, even when it is a parent, because you don't know if the parent is acting freely. And the
child's interest may not be identical to those of the parent. But having said that, this doesn't say that the child always has to go back. This just says that the Justice Department is going to have discretion. And, if you look at INS's own guidelines, which they arguably didn't follow in this case,
in fact there may be opportunities for hearings in other cases where it might be bad to let children go back to tyrannical countries. It's just that the courts won't enforce that right. That will have to be enforced by INS.
Lopez: What guidelines did the INS not follow?
Rees: There are INS guidelines on the way that you handle juvenile asylum seekers. And they make very clear that the child can have a claim of asylum apart from a claim that his parents would have. And they make quite clear that someone should interview the child. Frankly, all of the
things that a lot of us wish had been done in the Elian case. Somebody should interview the child, the parent should be notified if granting the child asylum would have the effect of severing the parental-child relationship, or the legal right of the parent. But the very fact that they say that the
parent should be notified tells you that they don't think that the parent has an absolute right to say it can't happen.
Lopez: Why wasn't the public outraged by this — especially the early morning, Easter weekend raid.
Rees: Well, of the course, there was the drumbeat of the big networks and the big newspapers — people who frankly don't believe in parents rights in any other situation I can think of. Media outlets who would support a 12-year-old girl's right to have an abortion without her
parents' being informed of it, nevertheless believe that the only right parents do have is to bring their child back to a Communist country. Their portrayal of this Norman Rockwell picture — the fact that Juan Miguel did turn out, as far as we can tell to be a loving parent, and to be
reasonably photogenic. The fact that so soon after the raid, there were those pictures of Elian hugging his father. There were a lot of things that broke right for Fidel Castro.
Lopez: Is the demogoging of the Cuban American community, particularly in Miami, going to have long-term effects?
Rees: I think it probably will. They were always doing it. The media always had that cartoon of the Cuban-American community in Miami, its just they never quite had the platform to broadcast that cartoon until now.
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