By Edward Wong. The New York Times . May 11, 2000
In a long-awaited legal showdown in the Elián González custody battle, lawyers for the two feuding sides of the boy's family, as well as those for the United States government, argued their cases in an Atlanta federal court this morning.
The lawyers distilled five months of an international struggle that has embroiled two governments, thousands of Cuban-Americans in exile and a family bitterly divided by politics to an hour and a half of legal arguments at the 11th Federal Circuit Court of Appeals.
As more than 100 supporters chanted and waved banners outside the courthouse, lawyers for Elián's Miami relatives tried to persuade a three-judge panel to make the Immigration and Naturalization Service grant the 6-year-old boy an asylum hearing. But Elián's father, Juan Miguel
González, and the Justice Department believe the boy should be returned promptly to Cuba.
Several months ago, the immigration agency returned Elián's asylum application to his Miami relatives without reading it, saying that only the boy's father could speak for him.
"The bond between a parent and his child is not only recognized in our constitutional order, but is recognized throughout the world," James Castello, a lawyer for the government, said in a news conference following the hearing.
But in an earlier ruling, the judges in this case indicated that immigration laws do not set a minimum age for an asylum applicant. The relevant statute says that "any alien" may apply for asylum. In the courtroom, lawyers for the Miami relatives stressed this point over and over. They
also argued that the Cuban government would persecute Elián because the boy's mother had fled from the country.
"There is no parent in Cuba who controls what happens to his or her child, and there is no power in this country that can protect this child if he is removed to Cuba," Kendall Coffey, a lawyer for the Miami relatives, told the court, according to The Associated Press.
But Gregory Craig, the lawyer for Mr. González, said that the ongoing custody battle has taken a heavy toll on Elián's family, and that the boy's asylum application cannot be taken seriously because a 6-year-old is too young to hold informed political beliefs. Many child
psychologists have agreed on that point.
"This family is in jeopardy of being destroyed if this case goes on much longer," Mr. Craig said.
The judges threw pointed questions at both sides. They asked government lawyers what would have happened if Elián's mother had survived, or if she had been a woman who died trying to cross from East Berlin to West Berlin during the Cold War.
In that case, the government lawyers said, the child should still be reunited with his father.
The judges also asked Mr. Craig whether the fact that Elián's father is living under a Communist government compromises his abilities to be a parent.
"He has been free to express openly his feelings an his opinions throughout," Mr. Craig said.
The judges grilled the lawyers for the Miami relatives about whether Elián understood the contents and gravity of his asylum application. The lawyers insisted that the boy knows he does not want to return to Cuba.
Lázaro González and Marisleysis González, Elián's great-uncle and cousin, arrived at the gray stone edifice of the courthouse in downtown Atlanta at 8 a.m., one hour before arguments were scheduled to begin, according to The Associated Press. They were greeted by
cheering supporters waving both Cuban and American flags and carrying placards with slogans like "Give Elián His Day in Court." Like thousands of Cuban-Americans in this country, the Elián's Miami relatives do not want to see the boy returned to a Communist nation headed by
President Fidel Castro.
The lawyer representing Elián's father, Gregory Craig, strode into the courthouse to the jeers of Cuban-American protesters. His client, Juan Miguel González, did not show up.
Elián is staying with his father, as well as Mr. González's wife, 6-month-old son and several schoolmates and a teacher from Cuba, on a farmhouse on the 1,100-acre Wye River conference center, which the government has used previously for Middle East peace talks.
The father and son were re-united on April 22 after Attorney General Janet Reno ordered a pre-dawn raid on Saturday in which federal agents brandished automatic rifles in front of Elián and his Miami relatives. The boy was flown to Washington and placed in the care of his father, who had
arrived from Cuba on April 6 to claim his son.
The two had been separated since last November, when the Elián's mother, Elizabet Brotons, took him on an ill-fated attempt to reach the United States on a smuggling boat. When the vessel capsized, Ms. Brotons and 10 other Cubans drowned. But fishermen discovered Elián clinging to
an inner-tube on Nov. 25 off the Florida coast.
The boy was given "parole" status by the Immigration and Naturalization Service and placed in the custody of Lázaro González, in Miami. Days before the raid, Mr. González defied government orders to hand over the boy, hoping to stall federal officials until the
Atlanta court could decide on the asylum hearing.
The three-judge panel, made up of Judges J.L. Edmondson, Joel A. Dubin and Charles R. Wilson, is expedite their decision and announce it within two or three weeks.
If the Atlanta court sides with the boy's father, lawyers for the Miami relatives have 45 days to ask all 12 judges of the federal court to hear the case. If the court denies that request, the lawyers have 90 days to appeal to the United States Supreme Court.
Even if the Atlanta court does force the I.N.S. to look at the boy's application, legal experts say there is little chance that the agency will actually grant asylum to Elián. Successful asylum seekers must prove that they have been persecuted or that they have a "well-found fear"
of persecution if they are returned to their homeland. So far, experts say, there is no evidence that Elián would meet those standards.
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