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Court of appeals to consider who speaks for Elian

Protestors gather early outside the 11th Circuit Court of Appeals in Atlanta

May 10, 2000
Web posted at: 7:28 p.m. EDT (2328 GMT)

In this story: Factual background Arguments from the Miami relatives Juan Miguel's position Case could end soon or drag on RELATED STORIES, SITES

By Raju Chebium
CNN Interactive Correspondent

WASHINGTON (CNN)--Does Elian Gonzalez have a right independent of his father to file for political asylum under U.S. law, or is the 6-year-old too young to make that decision on his own?

ALSO • Appeals court in Atlanta hears Elian's asylum bid     CASE FILE: • Boy in the Middle     TRANSCRIPTS: Michael Wald discusses the legal rights of a 6-year-old     MESSAGE BOARD U.S./Cuba relations

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Who speaks for Elian--his distant relatives in Miami, who want to keep him in the U.S., or his father, who wants to take him back to Cuba?

Was the U.S. Immigration and Naturalization Service correct in refusing to consider the asylum claim filed by the boy's great-uncle, Lazaro Gonzalez? Did the agency err in insisting that only Elian's father, Juan Miguel Gonzalez, can speak for the child in immigration matters?

And what about the agency's own guidelines, which say that the INS can, in some cases, consider asylum claims filed by relatives other than a child's parents even if the parents object?

Legal experts said Wednesday those are the key questions that a three-judge panel of the 11th U.S. Circuit Court of Appeals will have to answer after hearing arguments Thursday from the lawyers for Lazaro, Juan Miguel and the Clinton administration. The court's ruling is expected in a few weeks.

"The family in Miami thinks the issue is that (under) the asylum laws in this country, any alien, regardless of age, has the right to apply for asylum and the INS has the obligation to adjudicate the case," said Jose Pertierra, a Washington immigration attorney.

"INS and, to a large extent, Juan Miguel, would like to see the issue framed differently: Who is legally authorized to speak on behalf of Elian?'' said Pertierra, who described himself as Juan Miguel's acquaintance.

Elian arrived in the United States on Nov. 25, 1999, Thanksgiving Day. A pair of fishermen found him clinging to an inner tube off the south Florida coast and the U.S. Coast Guard brought to the boy to Miami. The boy survived a boat wreck, in which his mother drowned in her bid to flee communist Cuba.

Elian's great-uncle Lazaro arrives at the courthouse Thursday morning

Elian's great-uncle Lazaro and other Miami relatives, who got temporary custody of the boy, argue that Elian should stay in the U.S. because that was the wish of his mother. They also say the boy will be persecuted if he returns to Cuba.

Juan Miguel, who by many accounts a responsible, loving father, is adamant in his opposition to anyone filing for asylum on behalf of Elian. He has been steadfast in his desire to return to Cuba with his son. He came to the United States on April 6 to get custody of his son.

He did not get custody of Elian until April 22, when Attorney General Janet Reno authorized government agents to forcibly remove the boy from his temporary Miami home. Juan Miguel, Elian, and Elian's stepmother and stepbrother are living temporarily in Maryland.

Lazaro's attorneys will argue Thursday that U.S. law allows "any alien who is physically present in the United States" to file for political asylum, a term they say includes Elian, said David Martin, a University of Virginia law professor and former INS lawyer who has followed the politically-charged case.

Martin said Lazaro's attorneys have indicated in court papers they will point to December 1998 INS guidelines that "contemplate that a minor, under some circumstances, may seek asylum against the express wishes of his parents."

The attorneys, led by former South Florida U.S. Attorney Kendall Coffey, also will argue that the INS arbitrarily rejected Elian's application, and that the government incorrectly ruled that only Juan Miguel can file an asylum claim for Elian.

The attorneys will ask the judges to "send (the matter) back to the INS and order them to have a full asylum hearing," Martin said.

A three-judge panel will have to decide whether 6-year-old Elian Gonazalez is able to speak for himself on the issue of political asylum

Juan Miguel's attorney is former White House Special Counsel Gregory Craig. The Justice Department is represented by Ed Kneedler, a deputy solicitor general who Martin said usually argues the agency's position before the U.S. Supreme Court.

The government has indicated in its filings that it will not dispute that Elian can file for asylum, but it will maintain that only Juan Miguel can speak for the child.

Martin said the government will argue that despite INS regulations allowing exceptions, the INS was correct in rejecting the petition from Lazaro because Juan Miguel is a loving father and there is no evidence that the boy will be persecuted if he returns to Cuba.

Another important point that will be raised is that a 6-year-old child is not mature enough to decide for himself where he wants to spend the rest of his life, Martin said.

The Miami relatives, who sued the government to get an asylum hearing for Elian, turned to the Atlanta appeals court after losing their case in front of a Miami federal judge in March. The lower court ruled that the attorney general, not the courts, has the power to decide the validity of Elian's claim.

On April 19, granting the Miami relatives a temporary injunction, the appeals court ordered Elian to remain in the U.S. and barred anyone from removing him until the court rules on the appeal.

The scenario under which the Elian case could be over quickly, according to the experts, is: Juan Miguel wins, the appeals panel lifts the ban on Elian leaving the U.S., Juan Miguel returns to Cuba with his son.

However, if Lazaro wins his appeal, the government could appeal to the Supreme Court, with no guarantee that the justices would accept the case. Alternatively, the government could arrange for an asylum hearing for Elian, and if Lazaro prevails there, the government could turn to the immigrations appeals court, Martin said.

If Juan Miguel prevails, Lazaro's attorneys could turn to the Supreme Court, as they have said they will. Because the Supreme Court has finished hearing oral arguments this year, that scenario raises the possibility of the boy remaining in the U.S. at least until October, when the court begins the next term -- if the justices accept the case.

In the meantime, on Nov. 26 Elian will have been in this country for a year and one day, making him eligible for a permanent residency card, or "green card", under the Cuban Adjustment Act, Pertierra said.

That legislation gives green cards to Cubans who have been "inspected, admitted or paroled" to the United States and remain here for at least one year, said Dale Schwartz, an immigration attorney in Atlanta and former president of the American Immigration Lawyers Association.

"This kid could be out of college before this thing is resolved," Schwartz said.

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April 24, 2000

U.S. Attorney General
U.S. Immigration and Naturalization Service
U.S. Department of Justice
Executive Office of the Governor of Florida
Eleventh Circuit Published Opinions
United States Court of Appeals, Eleventh Circuit
LibertyForElian.org - Foundation to Help Save Elian
Granma Internacional Digital, Cuba
  •  Kidnap in Miami
Cubaweb
Cuban American National Foundation

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