Appeals Court Considers Elian's Case
Published Friday, May 12, 2000, in the Miami Herald
The three federal appeals court judges who heard arguments yesterday about whether Elian Gonzalez can seek asylum in the United States commendably drilled directly to the heart of the case: Can we sanction a process where a child can be sent back to a totalitarian Cuba without even the benefit
of a hearing?
It is foolhardy to predict the outcome of a case based on the questions posed by the judges, as Judge J.L. Edmondson warned at the outset. Yet it seems clear that the judges are properly skeptical of the simplistic argument that only Elian's father can speak for the child.
That was precisely the position taken by lawyers representing the U.S. Justice Department and by Gregory Craig, representing Elian's father, Juan Miguel Gonzalez. Absent information to the contrary, they argued, Mr. Gonzalez is presumed to be a fit father and entitled to custody. He has said he
intends to return to Cuba with Elian.
But as Judge Edmondson noted, it's not unusual for courts to overrule parental decisions in cases where parents -- say, for religious reasons -- refuse to provide medical care. And, he asked, would the government also send a female child back to a parent in a country that practiced genital
mutilation? In such cases, the judge noted, the parent's actions -- however sincere -- aren't seen as being in the child's best interest.
The government lawyer dismissed this comparison, insisting that Cuba is ``different.'' What mattered in sending children to live with parents in countries like Cuba, China and Iraq is only the fitness of the parent, he argued. And, he said, the Immigration and Naturalization Service had
determined Mr. Gonzalez to be fit.
But that's exactly the problem. The INS is an agency completely unequipped to determine the fitness of any parent. Mr. Gonzalez, as his attorney insists, may indeed be a loving father. But right now, that has to be taken on faith.
Without a process to determine the child's best interest -- such as in a family-court proceeding -- nobody has had the opportunity to raise this question: Is Mr. Gonzalez's fitness undermined by the personal interest that Fidel Castro has taken in Elian or by the fact that this child will be
raised in one of the seven countries the U.S. State Department labels terrorist?
That may not evoke the horrific image of genital mutilation, but a legitimate argument can be made that Elian faces psychological mutilation. This appeal asks that INS, at least, hear the arguments for granting political asylum and not reject summarily the child's petition.
That's a small request. To rule contrary is to give INS sole discretion to decide arbitrarily that, while mutilation may be grounds to stay, living under the thumb of a dictator in a terrorist state isn't.
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