Immigration: Federal judge asks whether pressure from Cuban government could affect father's legal authority to speak for the 6-year-old castaway.
By Esther Schrader, Times Staff Writer. Chicago Tribune. Friday, May 12, 2000
ATLANTA--A federal appeals panel questioned Thursday whether the father of Elian Gonzalez is subject to coercion from the communist government of his native Cuba and asked if that could compromise his legal authority to speak for his 6-year-old son.
The provocative line of questioning emerged during a court hearing on whether the U.S. government should be compelled to consider an asylum request filed on behalf of the young castaway over the objections of his father. Lawyers for the boy's Miami relatives argued that the boy, whose
mother died trying to bring him to America, faces political persecution if he returns home.
But the government and lawyers for the boy's father, Juan Miguel Gonzalez, say that a parent is the best person to make decisions on behalf of a child so young.
The long-awaited oral argument before a three-judge panel of the U.S. 11th Circuit Court of Appeals brought the dispute over the boy's future to a critical juncture. If the court rules that the child's request for asylum must be heard, he could be in the United States for months or years
while his case wends its way through immigration courts.
If the court rules that the Immigration and Naturalization Service was right to refuse three times to hear asylum petitions filed on Elian's behalf, he could return with his family to Cuba in fairly short order.
The boy's Miami relatives attended the hearing, the first since the April 22 raid by federal agents that returned Elian to his father. The raid took place at the home of Elian's great-uncle, Lazaro Gonzalez, in Miami's Little Havana community, where the boy lived for almost five months
after he was found on an inner tube off the coast of Florida. He was one of three survivors of a tragedy that killed his mother and 10 others.
Elian and his father were not at the hearing, keeping instead to the grounds of the Maryland estate where they have been staying with family members and friends under federal government protection.
The judges are not expected to rule on the case for about two weeks.
If the court decides against the Miami relatives, they can appeal to the full 12-member appeals court and to the Supreme Court. However, there is no guarantee that the Supreme Court would hear the case.
At Thursday's hearing, Chief Judge J. L. Edmondson seemed particularly worried about whether Juan Miguel Gonzalez could be considered to be speaking freely, since he is a citizen of communist Cuba. He noted that it took Gonzalez nearly five months to come to the United States to claim his
child.
Edmondson said it is not uncommon for courts to rule that the best interests of a child override parental rights, comparing the 6-year-old boy to children whose parents reject medical care for religious reasons.
It's not that the parents are insincere, Edmondson said, "but it seems to be so conspicuously in conflict with the needs of the child."
Gregory B. Craig, the attorney for Elian's father, argued that his client has not been coerced by Fidel Castro's government. He cited interviews with Gonzalez by Atty. Gen. Janet Reno and other top government officials, conducted out of the presence of Cuban authorities.
"He has been free to express openly his feelings and his opinions throughout," Craig said, adding that the father wants to decide what's best for Elian "free from any kind of manipulation from Miami or coercion from Havana."
Kendall Coffey, attorney for the Miami relatives, said that the father's best intentions will not matter if Elian is forced to return to Cuba.
"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," Coffey said.
But while the conservative 11th Circuit panel was clearly interested in questioning government attorneys on the issue of coercion, they asked equally aggressive questions of the Miami lawyers. Judge Charles Wilson, in particular, asked how a child so young could be capable of applying for
something as complex as political asylum.
Wilson questioned Coffey about whether Elian could understand the contents of his asylum request and whether immigration officials would be required to accept it without his father's approval.
"I'm sure Elian Gonzalez is a very bright and intelligent 6-year-old, but he didn't even have the ability to sign his last name on the asylum petition," Wilson said, referring to what the family has referred to as Elian's "signature" on the petition. Actually, it is his
first name, written in block letters.
Reading aloud a list of questions from the asylum petition about the applicant's political beliefs, Wilson asked Coffey, "Are you telling me that a 6-year-old is competent to answer questions like that?"
Coffey replied that, under his interpretation of INS regulations, Elian, like any other immigrant applying for asylum, has the right "to his day in court."
Some outside experts on immigration law said discussions about Cuba being a "communist, totalitarian state" seemed inane in the context of Thursday's hearing. U.S. immigration law, they said, does not grant special status to people landing on American shores from authoritarian
regimes unless they can show a legitimate claim for asylum.
Mark Krikorian, executive director of the Washington-based Center for Immigration Studies, said that the "quality of life" for Cubans may not compare with that of the United States, "but that's also true for millions of people in China."
"The law, however, says you must have a plausible claim for asylum--a fear of persecution in your homeland based on your political beliefs, your religion or ethnic origin," Krikorian said. "And that's simply not the case for Elian. There's no basis for asylum for him."
David Cole, a Georgetown University law professor and authority on immigration, said that Cuba's regime "has little or no relevance to the question before the court, which is who shall speak for Elian on whether he's applying for asylum."
Stephen Legomsky, a professor of international law at Washington University in St. Louis, while agreeing with Cole, said that the type of government from which someone is fleeing "could be relevant to the merits of an asylum claim." But he added that "the issue here is
whether Elian's father has the right to speak for him, because a 6-year-old is too young to understand the situation."
Times staff writers Robert L. Jackson in Washington and Michael Coren in Atlanta contributed to this story. Researcher Edith Stanley in Atlanta also contributed.
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