Elian's Case Goes to Court / The Washington Post
By Sue Anne Pressley. Washington Post Staff Writer. Friday, March 10, 2000; Page A02
Judge Withholds Decision
MIAMI, March 9—For the first time, 6-year-old Elian Gonzalez had his day in federal court today, as lawyers for his Miami relatives argued that the boy is entitled to a political asylum hearing and federal government lawyers argued that the case is an administrative matter that does not
belong in court.
U.S. District Judge K. Michael Moore did not issue a ruling, recessing after three hours of largely technical arguments without indicating when he will decide whether his court has jurisdiction over the case. He can choose either to intervene and order a full political asylum hearing, or to let
stand the decision by the Immigration and Naturalization Service (INS) that the boy belongs with his father in Cuba.
Afterward, attorneys for both sides said in news conferences that they were encouraged by the proceedings.
"It is our hope that the court's resolution will make it possible for this little boy to go home," said Patricia Maher, a deputy assistant U.S. attorney general.
The government's argument is based on the January INS decision that only the boy's father in Cuba, Juan Miguel Gonzalez, can speak for him and file a political asylum petition on his behalf. Both the father and Cuban leader Fidel Castro have demanded Elian's return to Cuba.
Attorneys representing Lazaro Gonzalez, the Miami great-uncle who took Elian in after his rescue at sea in November, countered that the child has the right, accorded any arriving alien under the U.S. Immigration Act, to apply for asylum regardless of his age.
"Any alien physically here has the right to apply for asylum and the INS is obligated to hear that claim," attorney Linda Osberg-Braun told the court. "They have refused to do this where Elian Gonzalez is concerned. It's clearly obligatory. It's not discretionary."
Some of Moore's questions during the proceedings indicated an understanding of, if not an agreement with, their argument. "Where does it say in the statutes that [an asylum petitioner] can't be under six?" Moore asked deputy U.S. solicitor general Edwin S. Kneedler.
Moore also asked the government attorneys why the INS did not send the boy directly back to his father instead of turning him over to Lazaro Gonzalez.
"You didn't put him in the custody of his father," Moore said.
Kneedler explained that Attorney General Janet Reno still retains custody of the child, but that, traumatized after his two-day ordeal at sea, the boy was put in the care of the Miami relatives who showed up at the local hospital to claim him.
"This emergency arrangement did not affect the agency's legal authority," Kneedler said, or Juan Miguel Gonzalez's authority.
Elian's fate has been in limbo since Thanksgiving, when he was discovered floating in an inner tube off South Florida, one of three survivors of a shipwreck in which his mother and nine others died as they tried to enter the United States. Since then, an international custody battle has spawned
mass demonstrations in Miami and Cuba, and become a political flash point. In recent weeks, the case had taken a rare low profile as both sides agreed to wait for the court's ruling.
An INS order to send the boy back to Cuba, supported by Reno and President Clinton, has been in place since January, but INS officials have held off enforcing it.
Elian was at school today and was not present in court. Lazaro Gonzalez and other Miami relatives occupied a front row of the courtroom, while outside about 50 demonstrators, most of them supporting Elian's stay in the United States, waved Cuban and American flags and snarled downtown traffic.
Staff writer Gene Weingarten contributed to this report.
© Copyright 2000 The Washington Post Company
Cubans Surprised by Court's Delay / AP
HAVANA, 10 (AP) - Cuban reporters and attorneys appearing on state television expressed surprise that a U.S. federal judge did not immediately rule on a political asylum request for 6-year-old Elian Gonzalez.
During a televised roundtable discussion Thursday attended by President Fidel Castro and Foreign Minister Felipe Perez Roque, reporters and attorneys said they worried that U.S. District Judge K. Michael Moore's final decision could be affected by the passionate politics of South Miami.
``Elian was unlucky enough to arrive in the middle of an election period,'' said Nidia Diaz of the Communist Party's daily Granma. ``His tragedy has been politicized to the benefit of the organizers of the different campaigns.''
Although the opinions expressed did not come directly from the government, the views of reporters who work for state media issued on national television and in Castro's presence gave some sense of the communist leadership's initial reaction to the court hearing.
Most Cubans here had expected Moore to immediately accept or reject the U.S. Immigration and Naturalization Service's earlier determination that Elian should be returned to his father on the island.
Instead, after three hours of testimony, Moore recessed the hearing without setting another court date or offering any indication of when a decision could be issued.
Cubans have closely followed the case since the boy was rescued at sea by fishermen who found him lashed to an inner tube, floating off the coast of South Florida, on Nov. 25. Elian's mother and her boyfriend were among 11 people who perished when their boat sank.
The boy quickly became the subject of an international tug-of-war, with his father in Cuba demanding his return and his relatives in Miami fighting to keep him in the United States.
Journalists for Cuba's state-run media have come out repeatedly for the boy's return and typically refer to his relatives in Miami as ``kidnappers.''
AP-NY-03-10-00 0453EST
Copyright 2000 The Associated Press
Judge Hears Arguments in Elian Case / AP
By Alex Veiga. .c The Associated Press
MIAMI, 10 (AP) - The fate of Elian Gonzalez remains undecided while a federal judge weighs arguments on whether to interfere with a decision by federal immigration officials to send the 6-year-old back to his father in Cuba.
As flag-waving demonstrators tied up traffic outside, U.S. District Judge K. Michael Moore heard arguments Thursday in a lawsuit filed by Elian's great-uncle, Lazaro Gonzalez.
The U.S. government asked the judge to dismiss the case, which asks the court to compel the Immigration and Naturalization Service to give the boy a political asylum hearing.
Moore recessed the hearing after three hours and gave no indication of when he might rule.
Georgina Cid Cruz, Elian's cousin, said family members were optimistic about how the judge would rule.
``We are very satisfied with the judge's reaction to all this,'' she said after the hearing. ``Elian is going to get a fair (hearing) after all.''
The boy's fate has been debated since he was found clinging to an inner tube off Florida on Nov. 25. His mother and 10 others drowned when their boat capsized during an attempt to reach the United States.
The INS in early January ordered that Elian be returned to his father in Cuba, a decision backed by President Clinton and Attorney General Janet Reno. The order was put on hold pending the court fight.
Attorneys for Lazaro Gonzalez argued that the INS violated the boy's rights by refusing to grant him a political asylum hearing when he was rescued.
``Any alien that is within the United States ... is entitled to apply for asylum and INS is obligated to hear that claim,'' said attorney Linda Osberg-Braun.
Edwin Kneedler, a government attorney, said the boy's father, Juan Miguel Gonzalez, opposed asylum for his son, and that his wishes should be respected over those of the boy's great-uncle.
``This is a father closely involved in the child's life,'' Kneedler told the judge. ``This was not an absent father; this was a present father.''
INS officials acknowledged that any alien may apply for asylum, but said Elian is too young and only a parent or guardian can file an application for him.
Moore asked why the INS did not simply reject the asylum application filed on Elian's behalf by the great-uncle and return him to his father.
Kneedler said the boy already was traumatized - he had been floating in the Atlantic for two days - and it made sense to release the boy to the custody of relatives who showed up at the hospital.
``It was a fast-moving situation, and it was a perfectly human response,'' Kneedler said.
He said INS officials conducted a thorough investigation, which was reviewed by Reno, and found no basis for an asylum claim.
He also argued that Congress gave the attorney general the power to administer immigration laws, and ``the decisions of the attorney general are subject to only narrow judicial review.''
Attorneys for Lazaro Gonzalez argued that the INS' actions are not exempt from court review.
Kendall Coffey, another attorney representing the boy's Miami relatives, argued the government had no basis to disqualify Lazaro Gonzalez as a fit representative of Elian.
``What this family has been through to give this child a shot at getting an asylum hearing speaks volumes,'' Coffey said.
As the hearing took place inside the packed courtroom, about 60 demonstrators, most of them supporters of Elian's staying in the United States, snarled traffic as they marched outside the courthouse waving huge Cuban flags. Police had closed the street in front of the building, anticipating the
demonstrations.
On the Net: INS home page: http://www.ins.usdoj.gov
Web site launched by the son of the Miami relatives' spokesman: http://libertyforelian.org
The official daily of the ruling Communist Party newspaper, Granma: http://www.granma.cu/sitioelian/indexing.html
AP-NY-03-10-00 0455EST
Copyright 2000 The Associated Press.
Elian Judge Hints At Long Battle / Chicago Tribune
By Laurie Goering. Tribune Staff Writer. Chicago Tribune, March 10, 2000
MIAMI Elian Gonzalez's twisting custody saga has produced no shortage of surprises, but a federal judge hinted Thursday that a stunning one may be on its way: The 6-year-old might be given permission to make his own application for asylum in the United States.
U.S. District Court Judge K. Michael Moore failed to make an immediate ruling after a Thursday hearing focused on whether the boy's Miami relatives have grounds to seek asylum for him.
But in intense questioning, the judge suggested that he may not agree with long-established cultural norms that give parents the right to speak for their young children, and may let Elian make his own application, over the objections of his father in Cuba.
That would set Elian on the same path as Walter Polovchak, the Ukrainian immigrant who at age 12 sought asylum in the United States when his parents chose to return to the Soviet Union.
"Any alien physically present in the United States . . . may apply for asylum," Moore said, reading from federal statues Thursday. "Where does it say 6 or under (is excluded)?"
A shocked Edwin Kneedler, the deputy solicitor general of the United States and lead attorney representing the Immigration and Naturalization Service, agreed that "anyone of any age can apply" for asylum.
A 6-year-old, however, would be "typically unable to express a fear of persecution," the basic grounds for granting of asylum, he said, and presumably unable to grasp the concepts involved in making an appeal.
U.S. cultural and legal norms, and in fact those across the world, give parents the right to speak for their young children and make "life-determining decisions," Kneedler told the judge, and the boy's father, Juan Miguel Gonzalez, clearly appears to be a "legally competent
adequate parent," he said.
For the court to order an asylum hearing would be "an affront not just to the law but to the father," Kneedler added.
But Barbara Lagoa, an attorney for Elian's great-uncle Lazaro Gonzalez, insisted Thursday that "a child's right to seek asylum independent of his parents is well-established."
"Whether the boy can speak for himself has never been evaluated," said Linda Osberg-Braun, another family attorney.
Perhaps the best-known case of a child seeking asylum despite parental objections is that of Polovchak. His case was eventually denied, but only five years later, on the verge of his 18th birthday. He was allowed to stay and lives in the Chicago area.
At the time of his asylum bid, judges ruled that 12-year-old Polovchak represented the low end of the age of consent for such an appeal.
Moore, however, appears to be considering the possibility of granting Elian similar status, or more likely allowing his Miami relatives to take on the role of guardian ad litem, or temporary, court-appointed guardian, on the grounds that the boy's desires or best interests are at odds with his
father's wishes.
Outside the courthouse Thursday, Lagoa insisted Elian had already effectively filed his own asylum request, saying the boy "signed and understood" the papers filed on his behalf. That contention raised snorts of derision among bystanders. The documents, observers noted, were in
English; Elian speaks only Spanish and is just learning to read.
"You can't escape the fact that Elian is too young to make up his mind. Children of that age don't have the capacity to make critical judgments. They can't even read the forms," said Bruce Boyer, supervising attorney for the Children and Family Justice Center at Northwestern University
Law School.
That means "some adult or collection of adults must make decisions for Elian" and under the law that should be his father, Boyer said.
In cases of abuse or neglect, parents can be replaced as decision-makers for their children by a court-appointed guardian. But for Elian's father to be replaced "you need concrete evidence he can't be counted on to protect the interests of his son," Boyer said.
The INS, after meeting with Elian's father in Cuba, determined that the father wanted his son returned to the island, a sentiment the agency said didn't seem to be made under coercion. Family members in Miami, however, insist that the father cannot speak freely under Fidel Castro's Communist
regime and has hinted to them he wants the boy to remain in Miami.
"To speculate that the father is saying something that's not consistent with what he really wants for the child requires making credibility judgments no one is qualified to make," Boyer said.
Family members, however, said they were encouraged by Thursday's three-hour hearing.
"I think Elian is going to get a fair trial after all," one of his cousins, Georgina Cid, said afterward.
Moore recessed the hearing without setting a day or time for his ruling on the family's appeal, but lawyers involved in the case said they expected it might come by the end of the day Friday or early next week.
Legal analysts believe Moore's ruling will play a decisive role in resolving the bitter international custody dispute over Elian, who in November was rescued at sea in an inner tube, one of three survivors of an ill-fated sea journey that killed his mother and 10 other would-be immigrants to the
United States.
If Moore rules against the request for an asylum hearing, the child might be rapidly returned to Cuba by the INS, which ruled in January that he belongs with his father.
If the judge orders an asylum hearing, however, most legal analysts believe he would be effectively shutting the door on sending Elian home. The hearing and potential appeals could take years, as in the Polovchak case, effectively destroying any relationship between the boy and his father in
Cuba.
Lawyers for Elian's Miami family admitted Thursday that they will do everything they can to keep the boy in the United States for as long as possible, including filing any available appeals.
"There's no need to rush Elian back to Cuba," said Spencer Eig, one of the family's attorneys, after the hearing. "No one has presented one piece of evidence as to how (staying in Miami) is harming Elian."
Federal Judge Fails to Rule on Fate of Cuban Youngster / NY Times
By Rick Bragg. The New York Times. March 10, 2000
MIAMI, March 9 -- In a federal hearing that could be the first step in determining the future of Elián González, lawyers for relatives of the 6-year-old boy argued today that he had been denied the due process granted to all other aliens who come to this country seeking asylum.
Lawyers for the government countered that Elián was too young to read or understand an application for asylum and that his father in Cuba, who demands the boy's return, had the legal right to speak for his son.
That is how such cases are traditionally decided, in this country and around the world, based on common sense, Edwin S. Kneedler, the deputy United States solicitor general, said this morning in a hearing on a lawsuit filed by Elián's relatives in Miami, who seek an asylum hearing by the
Immigration and Naturalization Service for the boy.
Judge K. Michael Moore of Federal District Court here, who is also considering whether his court, and not just the immigration service, has jurisdiction in the custody case, did not rule on anything today, and would not say when he would rule.
It was an anti-climactic end to three hours of courtroom wrangling about who has the legal right to speak for the boy. The judge must decide whether to dismiss the relatives' lawsuit outright and leave the case in the hands of the immigration service, removing a major obstacle to the boy's
return to Cuba, or order the immigration service, which has already denied Elián an asylum hearing, to grant him one.
But that, said lawyers for the government, would ignore a principle in American and international law: that it is the parent who represents the interests of the child.
"Elián González has a legal representative, and that representative is his father," Mr. Kneedler said. "The surviving parent is the sole legal representative."
Speaking about Elián's father, Juan Miguel González, a doorman in the resort city of Varadero, Cuba, Mr. Kneedler added that "this is a universal, expected norm" and that to ignore it in Elián's case could put American children in jeopardy around the world.
With such a precedent, relatives in countries unfriendly to the United States could keep visiting American children from leaving , ignoring the parent's rights to their child.
"Parents speak for their children," Mr. Kneedler said.
But lawyers for the boy's Miami relatives argued that there was no age limit in immigration laws for someone seeking asylum, and that Elián, who was found floating on an inner tube off South Florida on Thanksgiving Day, had formally requested asylum.
He has signed a request for asylum, "and he understands it," said Barbara Lagoa, a lawyer for the boy's great-uncle Lazáro González.
Elián, whose mother, Elizabet Brotons, drowned along with 10 other Cubans in their effort to reach the United States, has said that he wants to remain in Miami, and understands that a request for asylum would allow that, said lawyers and relatives here in Miami.
Ms. Lagoa, one of eight lawyers gathered around the plaintiff's table, used immigration law as a hammer to pound out her argument for an asylum hearing.
"Any alien may apply for asylum, without exception," Ms. Lagoa said. "The statute applies to any alien, and a child's right to seek asylum is well established. The statute is as inclusive as Congress could have made it."
Judge Moore pressed Mr. Kneedler on the way the immigration service has handled the case, asking him why, if Juan González is the only one who can speak for the boy's legal rights, did the agency turn Elián over to Lazáro González in the first place.
"You didn't put him in the custody of the father," Judge Moore said.
Mr. Kneedler said Elián was already traumatized by his ordeal -- he had drifted in the Atlantic for two days, terrified and dehydrated -- and it just made sense to parole the boy into the care of relatives who showed up at the hospital in Hollywood.
"It was a fast-moving situation, and it was a perfectly human response" to place the child in the care of family, Mr. Kneedler said.
The family's lawyers asked that if the father was in legal control of his son's immigration status, why was he not here in court, fighting for him.
Juan González, who has the backing of President Fidel Castro of Cuba, has said he would not plead for his son in what he called a corrupt American court.
In Havana, the father told the Cuban news agency Prensa Latina that he was confident that Elián would soon be coming home. "In spite of everything, I am sure the boy will come back," Mr. González said.
Many people here had expected the judge to rule simply that his court had no jurisdiction, which would have almost certainly led to the boy's return to Cuba, without an asylum hearing.
But Judge Moore, who ran the hearing on a tight time schedule, seemed sympathetic to the plaintiffs while directing hard questions at the government's lawyers.
"The judge asked the same questions I had," said Jose Garcia Pedrosa, a lawyer for the family. "I think it was a productive hearing."
As the two sides argued inside the beautiful old federal courtroom in downtown Miami, about 50 supporters of the family's lawsuit sang and waved Cuban flags and signs just outside. In Miami's exile community, many people believe it is Mr. Castro who really wants the boy returned, and that the
boy's father is a puppet.
"He's under the thumb of the regime," said Linda Osberg-Braun, a lawyer for the family.
Copyright 2000 The New York Times Company |