From Elian's Saga, published Friday, May 19, 2000, in the Miami Herald
Fed proposal rejected by Elian's Miami family
By Jay Weaver. jweaver@herald.com
The U.S. government and a team of local lawyers still seem far apart in their letter-writing negotiations to bring about a family reunion between Elian Gonzalez, his Cuban father and the boy's Miami relatives.
The Department of Justice wants its mental-health experts to meet with the child's Miami relatives first before allowing them to see the 6-year-old with his father Juan Miguel Gonzalez, who are now staying at a private residence in Maryland.
But lawyers for Elian's great-uncle Lazaro Gonzalez said Thursday in a letter to the Justice Department that such a screening process by the government-hired trio of psychiatrists was unacceptable.
``It is obvious that your present panel of paid consultants will prejudice any interaction involving Elian's American relatives,'' Miami attorney Manuel Diaz wrote. ``For obvious reasons, that is neither productive nor acceptable.''
Instead, Diaz proposed that the government follow a previous plan for a Gonzalez ``family reunification'' that was considered the day before federal agents raided the great-uncle's Little Havana home to grab Elian so he could be reunited with his father nearly a month ago.
The Miami relatives wanted Elian's father to live with them in a temporary residence with no government officials and lawyers in the picture. And they wanted ``facilitators'' -- probably a psychologist and a priest picked by a panel of local civic leaders and Attorney General Janet Reno -- to
help the families ``get together.''
``These facilitators could provide the same services in relation to working out any issues which may exist between Juan Miguel and his Miami relatives prior to the Miami family's meeting with Elian,'' Diaz wrote.
An Immigration and Naturalization Service official said the counteroffer was unacceptable.
``Our offer is a good-faith effort that, according to our experts, would be the best way to approach a meeting between Elian and the Miami relatives,'' INS spokeswoman Maria Cardona said.
``It's our hope that they will avail themselves of that opportunity. It would be a shame if they don't.''
Elian's fate is now in the hands of a federal appeals court, which will soon decide whether the government should grant the child a political asylum hearing.
State Department takes to task Elian's schooling
By Frances Robles . frobles@herald.com
WASHINGTON -- The impromptu school set up for Elian Gonzalez and his Cardenas classmates at the Wye Plantation is the newest cause for contention between the U.S. State Department and Cuban diplomats, who were told Thursday that the boy's study sessions are ``counterproductive and reckless.''
``It's sticking a thumb in our eye,'' one State Department official said.
Each morning at 8:30, Elian dons his Cuban school uniform and spends mornings learning math, gymnastics and other subjects. He's joined by four friends and taught by a familiar face: his kindergarten teacher from last year in Cuba.
Cuban diplomats were called to the State Department Thursday and told that the school setting was inappropriate. It followed an earlier warning that Elian's teacher, Agueda Fleitas, should not educate children unless she has a valid teaching certificate -- from this country, State Department
sources said.
Publicly, at least, the State Department is at odds in the Gonzalez case with other government agencies, whose officials have declared the goings-on at the Wye Plantation none of its business. In fact, the Cubans responded to the State Department by brandishing newspaper articles quoting an
Immigration and Naturalization Service spokeswoman dismissing the issue.
``How Elian is educated is up to his dad,'' INS spokeswoman Maria Cardona said.
Officials say the INS and Justice Department do fear that the existence of the school could hurt their case before the 11th U.S. Circuit Court of Appeals, but they are unwilling to take any action because they do not believe the school is illegal.
That position dismays the State Department. ``So, what, anybody can set up a school anywhere?'' a State Department official said. ``The state of Maryland has not thought this through.''
How Elian should be schooled is yet another issue raised by those who oppose his father's desire to return him to Cuba and are critical of the way the case is being handled. Elian's Miami relatives and their lawyers have complained bitterly about the so-called indoctrination they believe Fleitas
is performing at the Wye Plantation.
`INDOCTRINATION'
The family's attorneys filed an addendum to the court record showing photos of Elian at Wye in his Cuban school uniform, with the blue scarf of the Pioneers youth organization.
``Anybody would be better than the indoctrination he's getting now,'' attorney Jose Garcia-Pedrosa said of the teacher. ``Whether that's in the form of public schools of Maryland I don't know. Our main concern is the brainwashing.''
Cuban Interests Section spokesman Luis Fernandez said he knew nothing about the matter. Juan Miguel Gonzalez's attorney, Greg Craig, did not return telephone messages.
Thursday's edition of the Communist Party newspaper Granma said the school was arranged to keep Elian from falling behind in his studies and to free him from the Cuban exile community's grip.
It's ``to save Elian not only from the clutches of the empire and the Miami Mafia but also from the clutches of ignorance, lack of culture and selfishness,'' the paper said. ``The teacher went there, with her books and other educational materials, to keep the boy -- who had been detained in
Miami for five months -- from missing any more classes and falling behind in his education.''
TUTORING CLEARED
The INS, the U.S. Department of Education and the Maryland Department of Education gave clearance to Elian's private tutoring. They argue that he is not an official resident of the United States subject to state laws which would require him to attend public school.
``This is not something Queen Anne County or the state has any ability to enforce. The question is, where is he a resident of?'' said Neil Greenberger, a communications specialist for the Maryland Department of Education. ``It's not something the state is compelled to answer in May, with two
weeks left in the school year. School starts the last week of August. The state of Maryland would hope Elian Gonzalez is somewhere else by then.''
But if a lengthy court battle keeps Elian here for months, would Juan Miguel Gonzalez be bound to check his son in with the Queen Anne County Board of Education? Nobody seems to know.
Home schooling is perfectly legal, but state law says a parent or guardian must sign a contract showing that the child is being taught curriculum appropriate for his grade. Nobody from the Wye Plantation or the federal government has contacted the local school board in regard to Elian's classes,
Greenberger said.
WAIT AND SEE
Had Elian enrolled in the 7,000-student district, he would have been assigned to Centreville Elementary School, a half-hour bus ride away where the principal already has a Spanish-speaking playmate in mind for him.
``Let him get a little bit of peace,'' groused Dominic Romano, the district's supervisor of pupil services, who said he had no interest in taking on the issue. ``He's been subjected to too much already. Let's see what happens with the courts.''
INS spokeswoman Cardona said Elian's instructor does not need Maryland teaching certification.
``If she were purporting to teach American children, or non-Cuban children, of course it would be different,'' Cardona said.
Maryland education officials say they may view the situation differently if the boy is still here in the fall, when he would be scheduled to start second grade.
``It's not as simple as moving your car from state to state, where they tell you that within 60 days, you better get new plates,'' Greenberger said. ``That law is clear. This is not clear. We can't just put a license plate on Elian Gonzalez.''
Elian's right to asylum hearing gains support
By Ana Acle. aacle@herald.com
Weighing in on the legal dispute over Elian Gonzalez, three organizations from across the country have asked the appellate court judges to recognize a child's right to apply for asylum.
Currently, the final decision rests with the attorney general.
``It is essential that the U.S. asylum process remain as open to children fleeing persecution as it is to adults,'' said Mary Diaz, executive director of the New York City-based Women's Commission for Refugee Women and Children, adding that the decision in the Elian case will have a far-reaching
effect.
Her organization filed one of four briefs accepted by the 11th U.S. Circuit Court in Atlanta, which heard oral arguments last week. Three argue for children's rights to asylum, another stresses a fit parent's right to speak for a minor.
``You can't pretend that just because a child crayoned his name on the application there wasn't an adult behind it,'' said Bruce Boyer, supervising attorney for the university's Children and Family Justice Center.
The Court rejected an unknown number of other briefs on technicalities.
PROVIDING INSIGHT
Legal briefs seek to persuade judges to rule in their favor. Just how much the briefs will influence the judges is unknown, but they do provide insight into how the case is being watched by organizations around the country.
The four briefs accepted were sent by Miami lawyer Martin Feigenbaum; Atlantic City lawyer John Geraghty Jr.; Northwestern University School of Law's Children and Family Justice Center in Chicago in conjunction with U.S. Rep. Sheila Jackson Lee, D-Texas; and collectively, the Lawyers Committee
for Human Rights in New York City, the Florida Immigrant Advocacy Center and the Women's Commission for Refugee Women and Children.
BAD PRECEDENT
On the side of children's rights, the collective brief argues that leaving the fate of refugee children up to the discretion of the attorney general sets a bad precedent. They say INS has guidelines that apply to cases involving unaccompanied minors.
The Northwestern University brief supports a parent's right to speak for a minor child.
``There's no question that kids of any age have the right to have their applications of asylum considered,'' Boyer said. ``The problem is figuring out when an application on behalf of a very young child has been properly filed, and you can't get around the central issue of who speaks for the
child.
``My other point is that none of this really matters because neither the courts nor the government has the right to keep Juan Miguel Gonzalez from returning to Cuba, except while the legal proceeding is pending in the court,'' Boyer continued. ``So what if he's given asylum? If his father wants
to take him home and has custody rights, he can take him to Cuba.''
COMPELLING STORY
Both the Miami and Atlantic City lawyers said the boy's survival story at sea compelled them to file the briefs.
Geraghty, an Atlantic City immigration lawyer, said he wanted to make this point: ``If he does return to Cuba with his father, what are the possibilities of him coming back to the United States if he chooses to do so? What are the freedoms for him to do so?''
His three-page brief said state law, not federal, usually determines a child's ``best interests'' and the court failed to recognize Elian's right to apply for asylum while he was in the jurisdiction of the United States.
Feigenbaum, a former appellate judge's clerk who is married to a Cuban-American woman, formulated his brief after studying a copy of U.S. District Judge K. Michael Moore's decision.
JUDICIAL ERROR
Among his arguments, Feigenbaum said that Judge Moore erred in his ruling by failing to conduct a broader inquiry to determine if the immigration service had more information surrounding Elian's case or whether Congress would have approved Attorney General Janet Reno's decision.
He wouldn't say whether he believes the child should stay in the United States or return to Cuba with his father.
``I feel that the child is entitled to much more due process than he has received before I would be able to formulate an opinion as to what's best for him,'' he said.
One of the rejected briefs was filed by the Cuban American Bar Association (CABA). The group argued that, under Cuban law, children are wards of the state -- and not their parents. The brief was rejected because it was filed after the expedited deadline, said Oscar Marrero, CABA president.
However, much of that legal argument was incorporated into the Miami relatives' 25-page response on Tuesday to a motion requesting that Elian's father replace the relatives as his son's representative.
Copyright 2000 Miami Herald |