By Rick Bragg. The New York Times. May 12, 2000
ATLANTA, May 11 -- In pointed questions to lawyers for both sides in the battle over the future of Elián González, three federal judges wondered today how a 6-year-old who cannot even sign his full name could apply for political asylum but questioned whether sending him back to
communist Cuba was in his best interests, regardless of his father's fitness as a parent.
Judge J. L. Edmondson, a conservative judge appointed to the United States Court of Appeals for the 11th Circuit by President Ronald Reagan, noted that it was not uncommon for courts to rule that a child's best interests override the rights of a parent, as in the case of parents who refuse their
child a doctor's care because of their religious beliefs.
Judge Edmondson, who twice referred to Cuba as a "communist, totalitarian state," said it was not that such parents did not believe they were acting in their child's behalf, but that their actions seemed "so conspicuously in conflict with the needs of the child."
During lulls in the arguments, some 100 protesters outside the courtroom could be heard chanting, "Free Elián!" Later, as lawyers for the government and for Elián's father left the courtroom, the protesters shouted, "Communist!" over and over. The outbursts,
which have been commonplace in Miami for months now, puzzled many in Atlanta as they walked past the protesters.
Judge Edmondson, the senior member of the three-judge panel that heard the appeal of a decision by a federal district judge in Miami that, in effect, denied a request by Elián's relatives in that city for a political asylum hearing, said before today's hearing that a decision would
probably come in a few weeks.
Lawyers for the Immigration and Naturalization Service have repeatedly argued that Elián is simply not old enough to understand the application for political asylum that he signed in a childlike scrawl after it appeared that federal officials were planning to send him back to Cuba to be
with his father, Juan Miguel González. And, the lawyers for the government argued again today, only the father can speak for his son.
This hearing may be the last chance the Miami relatives have of keeping Elián in the United States in defiance of his father's wishes, legal experts said.
United States immigration officials and the federal district court in Miami have already rejected the request for any asylum hearing filed on Elián's behalf by his great-uncle Lázaro González, who took care of the boy after he was found clinging to an inner tube in the
Atlantic.
Elian was rescued on Nov. 25 after his mother drowned in an effort to cross from Cuba to Florida.
"I'm sure Elián González 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," said Judge Charles R. Wilson, an appointee of President Clinton.
The panel, whose third member is Judge Joel F. Dubina, who was appointed by President George Bush and is considered a moderate, has several options, legal experts and lawyers for both sides say. It could rule that immigration officials were correct in denying the boy an asylum hearing based on
his age, even though immigration laws guarantee an asylum hearing for "any alien."
Or it could order immigration officials to give Elián a hearing, even though the boy is now in the legal custody of his father in a secluded federal retreat in Maryland. The reunion followed an armed federal raid on the relatives' home in Miami in the predawn hours of April 22.
Or it could ask immigration officials to speak with the boy about his wishes, but not in a formal hearing.
If the court rules against the Miami relatives, it could also lift an injunction imposed by the same three judges on April 20 barring Elián from leaving the country. That action would allow father and son to return to Cuba.
There is no guarantee that the full court -- there are 12 active judges on the 11th Circuit bench -- or the United States Supreme Court will hear the case if the three-judge panel rules against the Miami family.
In an unusual address to the crowded courtroom just minutes before the hearing, Judge Edmondson, not yet dressed in his robe, cautioned lawyers and onlookers that they should not try to draw conclusions from the panel's questions.
"It is entirely possible that a judge may make a statement or ask a question that is the exact opposite of what he is thinking, because he may want to see how the lawyers respond to it," Judge Edmondson said.
But in the hearing, which lasted less than an hour and a half, it seemed at least that lawyers for Lázaro González had found a sympathetic ear in Judge Edmondson.
He compared the case, in theory, to that of a child who had been rescued from a communist country in the former Soviet Union by a mother who gave her life to deliver him to freedom.
Kendall Coffey, a lawyer for the Miami family, said Elián would be paraded around Cuba, more a trophy than a boy growing up in his old life there, and his father would have little to say about the child's life.
"There is no parent in Cuba who controls what happens to his or her child," Mr. Coffey said, "and there is no power in this country that can protect this child if he is removed to Cuba."
But Gregory Craig, a lawyer for Juan Miguel González, said the boy's father was not being manipulated by the government of President Fidel Castro and was free to "openly express his feelings and his opinions."
Asked by the panel why it had taken his client five months to come to the United States to seek the return of his son, Mr. Craig said Mr. González tried to work through his own government to get Elián returned to him.
Judge Wilson seemed skeptical of how Elián could have understood a complicated form requesting an asylum hearing.
He also questioned whether, considering the fact that Elián is now in the custody of his father, immigration officials could even accept an application filed by someone who no longer has custody of the child.
The question of Elián's request for asylum may be moot if the judges accept the premise that he never filed for asylum, that he only scratched his name on the form because he was told to do so.
"It really wasn't Elián who filed an asylum application; it was Lázaro González who filed the application for him," said Bernard Perlmutter, director of the University of Miami Children and Youth Law Clinic. "People other than the father were making claims on
behalf of the child."
"I would think the court has to be swayed by the paramount interest of the child," Mr. Perlmutter said. "Are the facts in this case sufficient to warrant an intrusion in the father's rights to speak for his son? I don't think there is sufficient evidence that anyone other than
Juan Miguel González can speak for Elián in this case."
To ultimately win, even if the case does wind up in an asylum hearing, lawyers for the boy's Miami relatives must prove that Elián was being persecuted for political reasons and that he was afraid of that persecution, legal experts said.
That, for a 6-year-old boy, would seem unlikely.
"There is no objective basis for an independent asylum claim," a spokesman for the Justice Department said.
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