By Mike Dorning. Tribune Staff Writer. Chicago Tribune, May 12, 2000
ATLANTA -- A three-judge federal appeals court panel intensely questioned lawyers in the Elian Gonzalez custody dispute on the independent rights of young children and the limits of parental authority as the court prepared Thursday to issue a pivotal ruling in the long-running saga.
Presiding Judge J.L. Edmondson wondered aloud whether there might be "an inherent conflict of interest" between a father who is the subject of a communist regime and a child on free soil.
An attorney for the Justice Department, which has decided the 6-year-old Cuban boy should be returned to his homeland at his father's request, asked the appeals court to respect "the sacred bond between parent and child."
That bond "predates law" and "does not depend on where the parent and child happen to be at the time," said Deputy Solicitor General Edwin Kneedler, who argued the case for the government.
The appeals court proceeding ushered into a courtroom a controversy that for more than 51/2 months has aroused noisy political debate, near-constant news coverage, a spectacular predawn raid by federal agents and protests in Miami.
The appeals panel is expected to take a few weeks to issue a ruling.
Juan Miguel Gonzalez, Elian's father, did not attend the hearing, instead remaining at the private estate in Maryland where he and Elian have been living since shortly after federal marshals seized the boy from the home of his Miami relatives on April 22. But Elian's great-uncle Lazaro Gonzalez
and his cousin Marisleysis Gonzalez were in the courtroom, along with several other relatives seeking to keep him in the United States.
Legal experts expect the case to hinge on how the appeals court interprets a law allowing "any alien" to apply for asylum in the United States.
When ruling on a preliminary injunction last month, the court surprised many observers with a strongly worded opinion challenging the government's handling of the asylum claim. The judges suggested they were troubled that the Immigration and Naturalization Service's refusal to grant a hearing on
the asylum application might not conform to the "plain meaning" of the law.
In particular, the appeals court must consider how to balance the possibility that a young child might have an independent reason to claim political asylum against the traditional deference given a parent's wishes.
An attorney for Elian's Miami relatives, who submitted an application for political asylum in his behalf, asked the court to protect the boy from being "purged of illegal thoughts."
Among them, the attorney asserted, is an adoration of a mother who rebuffed the regime of Fidel Castro in Cuba by fleeing for Florida, only to die at sea.
"They have got to make sure this kid is clammed up and says the right things at the parades," said Kendall Coffey, who represents the Miami relatives, referring to the propaganda value Castro's communist government attaches to the custody dispute.
"Of course, that is going to cause psychological harm." Coffey added.
Edmondson said he did not anticipate the panel would render a decision for "a few weeks." And even if theappeals panel upholds a lower court ruling in favor of the Justice Department, final resolution could be delayed further by possible appeals to the full panel of judges on the 11th
Circuit Court of Appeals and to the U.S. Supreme Court.
Refugee advocacy organizations filed a brief with the court arguing that a lower court's opinion was too sweeping in its backing of the INS. The federal district court ruled that the INS had the discretion to decide a sole surviving parent could speak for a child in immigration matters.
The organizations contend the result could weaken the protection of young asylum-seekers in cases in which parents might be complicit in persecution of their children, such as the genital mutilation some societies force upon girls.
Questioned by Edmondson on whether the INS should defer to a parent's wishes in such a case, Kneedler said the agency need not "if there is an objective basis to believe there is harm" to the child.
The INS has maintained that Elian is too young to speak for himself and, as his sole surviving parent, his father, is the only adult qualified to do so. The INS also has concluded there is no independent basis to believe Elian will be persecuted if he is returned to Cuba.
Asked how the government could conclude Elian does not have the capacity to speak for himself in an asylum proceeding without ever interviewing him, Kneedler responded that the agency could do so based on "common experience" on the capabilities of 6-year-olds. He also said the asylum
application did not appear to contain any information directly from Elian.
Kneedler cited the precedent-setting case of Chicagoan Walter Polovchack, who at the age of 12 sought asylum to avoid returning to the Soviet Union. His asylum application ultimately was allowed over the objections of his parents but the 7th Circuit Court of Appeals said that 12 was "presumably
near the lower end of an age range" of maturity to assert rights separate from his parents.
In its written briefs, the Justice Department asserted such a "threshold inquiry" was necessary to protect families from intrusive governmental proceedings in the event an outsider files an asylum claim on behalf of a child.
But Coffey contended that, in doing so, the department was inventing a new "prescreening procedure" that hampers a child from receiving the protection of the asylum law because it does "not even tell you when you submit an application."
Gregory Craig, the attorney for Juan Miguel Gonzalez, asked the judges to quickly throw out the asylum application so the family could pursue "a destiny of its own designs." |