Elian's Saga. Published Friday, May 12, 2000, in the Miami Herald
Excerpts of the appeals court discussion
What follows are excerpts from the exchange between the three-judge appellate court panel hearing the Elian Gonzalez case and attorneys arguing the case. The judges are James Edmondson, Charles Wilson and Joel Dubina. The lawyers are Kendall Coffey, for the Miami relatives; Edwin Kneedler, the
deputy solicitor general of the United States, for the government; and Gregory Craig, for Elian's father, Juan Miguel Gonzalez. The transcript from which these excerpts were taken was prepared by Donna C. Keeble, the official court reporter.
Questions for Kendall Coffey
EDMONDSON: Mr. Coffey, come around and speak to us, please.
COFFEY: Good morning, your honor. This is Kendall Coffey for the appellant.
Few things can be more compelling in either law or life itself than the cause of a child, and before you this morning for the rights of a young boy to be protected from potentially serious harm of a police state.
The United States Congress has, without qualification, or reservation of any kind, established asylum laws with arms that enforce young children within their protection.
The mandatory will of the Congress and the mandatory statements of the regulations should have been enough for any responsible agency but, instead, the INS has done everything possible to avoid the required hearing.
WILSON: Mr. Coffey, is it your contention that the INS has absolutely no discretion whatsoever to determine whether an asylum application is properly submitted?
COFFEY: Your honor, it does not. . . .
WILSON: No discretion whatsoever?
COFFEY: None, you honor. In fact --
WILSON: Well, let me pose a hypothetical to you. . . . Let's say a teenage baby sitter for a 2-year-old alien child takes that child downtown to the INS office while his parents are at the movies and has him scribble his first name on an asylum application and the parents come running down an
hour or two later screaming, ``I speak for my child, this baby sitter doesn't speak for my child,'' you're telling me that the INS doesn't have any discretion whatsoever, they have to go through the time and the expense of having a formal asylum hearing?
COFFEY: Your honor, if the form is facially sufficient, on its face, their own regulations say that there shall be a hearing. . . .
WILSON: Can there be an application, though, if the child does not have the capacity to fill out the form?
COFFEY: Well, your honor, of course, that's not the case. We have a 6-year-old and I think the guidelines, the INS's own announced procedures, are very clear that a 6-year-old can seek asylum. . . .
DUBINA: It seems to me that the government in its brief has conceded that the district court got the statutory interpretation wrong and that any alien could include a child such as Elian. . . . The problem then is, though, and as they framed the issue in their brief, did he apply in this case.
Do you agree that that is the way the issue ought to be framed?
COFFEY: That's the issue now, in their brief.
DUBINA: Do you agree that's the way the issue ought to be framed?
COFFEY: No, your honor, I don't. I think he did apply. . . .
WILSON: What if you have multiple applications on behalf of a child, someone has got to decide who speaks for the child, right?
COFFEY: That's right, your honor.
WILSON: Well, then who makes that decision?
COFFEY: You look at the guidelines. And what the guidelines say is that the child can speak for the child if the child is acting voluntarily. . . . This child, according to the evidence, was more than sufficiently competent to express his desire to invoke a chance to stay in this country.
WILSON: But I've reviewed this asylum application and 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 that asylum petition.
COFFEY: Your honor, many aliens, many aliens have to rely on adults, lawyers, Catholic services, a range of folks to help them with the process . . .
WILSON: I'm going to read one of the questions or one of the questions on a standard form asylum application. . . . One of the questions is, ``Have you or any member of your family ever belonged to or been associated with any organization or groups in your home country such as, but not limited
to, a political party, student group, labor union, religious organization, military or paramilitary group, civil patrol, guerrilla organizations, ethnic group, human rights group or press or the media?''
You're telling me that a 6-year-old is competent to answer that?
COFFEY: Your honor, I don't think a 6-year-old can answer in detail all of the questions, but what the law says is that there is an age-appropriate process for 6-year-olds. . . .
WILSON: Well, I've read the answers, the answers on this asylum application, and they all appear to be written in the third person and reflect maybe a fear of persecution on behalf of someone else, like maybe the person who is submitting the asylum application on behalf of Elian Gonzalez.
Doesn't it appear that this is really an expression of a fear of persecution on behalf of someone other than the petitioner himself?
COFFEY: Well, your honor, you can certainly have, in a sense, situations where a child can be subjected to harm because of identification with family members . . . and here you have a child who was identified with a stepfather, a mother who gave her life to bring him to this country, as well as
now the U.S. relatives, all of whose actions are crimes in Cuba . . .
WILSON: Well, the Supreme Court ruled . . . that an asylum seeker . . . must offer evidence of four things: Number One, that he has been a victim of persecution; secondly, that he holds a political opinion; thirdly, that his political opinion is known to his persecutors; and fourth, that the
persecution has been or will be on account of his political opinion. And you're telling me that the INS does not have the discretion to take a look at this asylum application and determine that this 6-year-old is unable to meet those four prongs of the test?
COFFEY: Your honor, they can't do that. . . .
WILSON: So the INS's hands are tied? If a kidnapper brings in a 6-month-old child, they got to go through the time and the expense of an asylum hearing?
COFFEY: Your honor, I think that if a kidnapper comes in with a 6-month-old child --
WILSON: And a prior criminal record.
COFFEY: And a prior criminal record, then the INS officer can make . . . a determination that this is not the will of the child . . . But that is far from the case here.
WILSON: Well, there is some discretion on the part of the INS then?
COFFEY: Your honor, I guess what I would say is the issue is did this child seek asylum? . . . The evidence that we have before you is that this child did want to stay here. . . .
Questions for Edwin Kneedler
EDMONDSON: Mr. Kneedler, would you come up and speak on behalf of the government, please?
KNEEDLER: Thank you, your honor.
EDMONDSON: Let me call your attention to a couple of things that worry me.
KNEEDLER: Yes, sir.
EDMONDSON: Let's assume for the sake of argument, that the INS has considerable discretion about determining what is an application at all. And let's assume, for the sake of argument, that the INS has some discretion as to who may file on behalf of a 6-year-old child. . . . The first problem I
have is this: . . . the adult who applied for Elian Gonzalez is not some stranger; he is a blood relative. . . . The parent, on the other hand, resided out of the country altogether. I have a question . . . about the idea that the INS can have a discretionary policy that where the sole natural
parent is not within the jurisdiction of the United States himself, that he does not have the exclusive right to file, or that he does have. I guess your policy is, as I understand it, absent certain special circumstances, the sole surviving parent has the exclusive right to either apply or not
apply.
The problem we're talking about [is] . . . in American courts, I think a wider variety of people can act as next of friend other than the natural parent, even if the natural parent is present. . . .
Here is what the other problem I have is: I worry about whether there is inherently a conflict of interest that is substantial where the child is within the jurisdiction of the United States and the sole parent is not only beyond the jurisdiction of the United States but is a resident in what I
understand our State Department calls a communist totalitarian state. . . .
KNEEDLER: With respect to the first, on whether the parent who is outside the country . . . you look to the relationship of parent and child and you look to the relationship under the law of the domicile, or the law where the relationship arose. . . . I think both in U.S. law and in the
international community the sacred bond between parent and child does not depend on where the parent or the child happens to be at any particular moment in time. . . .
It is true that people other than parents can be next friends when circumstances require but the sequence under the law and under practice is that the parent presumptively speaks for a young child in making life decisions.
EDMONDSON: Let me tell you what I think . . . that there are a wide variety of relations that may come into a court and claim to be next friend and can lawfully serve without even accounting for what the natural parent's wishes are. . . . OK. So let's talk about the conflict of interest.
KNEEDLER: I do not think that that . . . is not the sort of conflict of interest that would disqualify the parent from presumptively having a say. . . . Under our constitutional system, difficult choices as well as easy choices are vested in the parent.
DUBINA: You seem to concede in your brief that the district court erred in its interpretation of any alien. So then we get to the question of the capacity, did Elian have a capacity. . . . What did the INS base its decision on that Elian did not have the capacity to file a petition for asylum?
KNEEDLER: What it based its decision on is that Elian at age 6 was far below the range of age suggested in the Polavchak decision. . . . And then secondly . . . there has been no indication in the evidence that was submitted to her [INS Commissioner Doris Meissner] that Elian Gonzalez possessed
or articulated . . . subjective fear of persecution on the grounds identified within the statute; and the third, that Elian Gonzalez was unable to swear or affirm to the truth of the contents of the application on which the asylum was sought.
DUBINA: If Elian's mother had survived this tragic journey, is there any doubt in your mind that her petition as well as her son's petition for asylum would have been granted by the INS?
KNEEDLER: If his mother had survived, it probably would not have been necessary to invoke the asylum process, because there is a special statute in the Cuban Adjustment Act and parole policies that build on that that would have allowed them to stay, because there, you would have had a parent who
said, ``I want to stay here.'' And the great majority of Cuban Americans who have come to this country and gotten protection under that general statute, not under the asylum statute. And, in fact, those that are interdicted, the great majority of them are found not to be refugees within the meaning
of the Act and are returned.
WILSON: The appellant relies very heavily upon the fact that there are certain INS guidelines that are in effect that were not followed in this particular case.
KNEEDLER: Those guidelines . . . presuppose that there has been an application filed and they discuss what an asylum officer should do. . . . They do not speak to the antecedent question of whether there has been a valid asylum application filed. . . . They . . . do not speak to the situation of
whether a minor child can apply for asylum over the objections of the parent.
Questions for Gregory Craig
EDMONDSON: Mr. Craig, would you come up and speak to us, please?
CRAIG: Thank you, your honor . . .
DUBINA: I have but one question and then I'll leave you alone. . . . Will you explain to us why it took your client five months to leave Cuba, to come to the United States to see his son, after he learned that his son had survived?
CRAIG: His position throughout this was that if I was confident that I would be given my son the day I arrived in the United States, I would have been there immediately. . . . The ground rules of the battle had been set within two or three days after this poor boy's arrival and the politics had
intruded into what should have been essentially a family affair, and it may well have deterred Juan Miguel's willingness to go. I begin with that little history that the signals that were coming down to Cuba from Miami were, ``We're not going to let this boy go, no matter what.''
The second thing to point out is that these are two very hostile bureaucracies and this is a simple man who lives in Cardenas. It is not an easy thing for any Cuban national to get a visa approved either by his government or the government of the United States. . . .
Lively debate fills street outside Atlanta court
By Andres Viglucci. aviglucci@herald.com
ATLANTA -- It was all here in the narrow street before the stately old U.S. courthouse: the familiar chants behind the metal barricades, the flag-waving, the shouted insults, the TV cables snaking down the sidewalk, the jousting of a mob of cameras and reporters. Even a bunch of bananas tossed
in the street.
Elianville, and all its attendant passion and weirdness, came north from Little Havana to downtown Atlanta on Thursday, albeit in miniature form, and, perhaps to Atlantans' relief, only for the day.
Inside, before an ornate courtroom packed with reporters and lawyers, three federal appellate judges soberly heard oral arguments from attorneys for the government, for Elian Gonzalez's Miami relatives, and for the boy's father, locked in fierce legal combat over the child's fate.
Outside was all street theater, noisy but peaceful in the main. Some 50 demonstrators, most of them local Cuban Americans, but a few from Miami and Tampa, vented anger at the federal government through voice and placard. They implored the court to allow Elian to stay in the United States over
the objections of his father. Some showed up before dawn for the 9 a.m. hearing.
``Freedom for Elian!'' they chanted, loosely marching in circles before the courthouse doors.
SIDEWALK DEBATES
They verbally sparred with, and sometimes shouted down, a small number of besuited fathers' rights activists who want the court to bless Juan Miguel Gonzalez's return home to Cuba with his son. They engaged in heated sidewalk debates with passing Atlantans, including Gary Crosby, an African
American, who, pushing a stroller with his three young daughters, angrily defended Juan Miguel Gonzalez's wishes for his son.
``You are making a spectacle here,'' he told one elderly Cuban-American protester. ``Why don't you listen to the feelings of true Americans?''
The demonstrators bravoed the arrival of Elian's cousin, Marisleysis Gonzalez, of the family's retinue of lawyers, and, almost at the last minute, of Elian's great uncle, Lazaro Gonzalez, and his spokesman, Armando Gutierrez, swarming them as they might movie stars.
And they lustily booed the arrival and departure of Juan Miguel's lawyer, Gregory Craig, whose brief comments to the press were drowned out by catcalls from the crowd: ``Communist, communist, communist!''
Juan Miguel, ensconced in a private Maryland retreat with Elian and his family, did not attend the hearing.
NO ARRESTS
Demonstrators on both sides of the Elian divide, however, were far outnumbered by the hordes of reporters and federal and Atlanta police officers who patrolled on foot, horseback and bicycle. The police cordoned off several blocks around the courthouse and kept a wary eye on the free-flowing
crowd of demonstrators, media and curiosity-seekers that filled one block of Forsyth Street in the historic Fairlie-Poplar district, now on the upswing after years of neglect.
Aside from some minor jostling, there were no problems and no arrests. Just to be sure, police confiscated any sticks or flagpoles carried by demonstrators.
The hubbub, muffled by heavy red drapes, filtered into the high-ceilinged Courtroom 338, where the presiding judge made an unusual acknowledgement of the unusual scene within and without the usually quiet courthouse.
``I want to thank all of you for coming. Truth is, we don't get many visitors here,'' said U.S. Circuit Judge James Edmondson with a small smile.
IRRESISTIBLE SCENE
So irresistible was the spectacle that it stopped passersby in their tracks and glued children in a second-story day-care center across the street to the windows for much of the morning.
A young couple, Alice Chen and Jim Wolbrink, prompted an uproar from some Cuban exile demonstrators when they unfurled a homemade banner that read: ``Free Elian from CANF,'' a reference to the Cuban American National Foundation, a key player in the Miami relatives' battle to keep Elian. Some
demonstrators held back others who tried to strike the couple.
Chen, from Boston, then dumped several bananas in the street, in imitation of protesters who have done the same on the steps of Miami's City Hall as a comment on the political fallout from the April 22 government raid that reunited Elian and his father.
While Chen and a demonstrator exchanged shouts, just behind them a smiling local man, headphones over his ears, eyes shut to his own world, put hands on hips and gyrated funkily to a private beat.
RELATIVES SILENT
Only one vital element was missing from the mix: The usually voluble Miami relatives and their lawyers maintained a subdued silence, a posture they have adopted since shortly after the government raiders knocked open the family's front door and took Elian away.
Marisleysis Gonzalez, looking thin and tired, mustered only a small wave of the hand for her cheering supporters as she entered the courthouse. The family left Atlanta for Miami shortly after the hearing, issuing no statements and giving no interviews.
Complete transcripts of court proceedings
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