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The Disappearance of Elian’s Rights

by Roger Noriega | March 1, 2000

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Wherever Elian Gonzalez goes, the improbable happens. Plucked from the sea last Thanksgiving, he has been dubbed a miracle child by Cuban-Americans. Across the Straights of Florida, Fidel Castro organizes mass rallies of Cubans chanting “liberation” without the usual baton blows and trips to jail. But perhaps the greatest sleight of hand has been the disappearance of Elian’s legal rights through the shameless manipulation of the Clinton administration.

This should have been a straight-forward asylum case. Instead, the Elian affair magically morphs between custody battle and immigration case. To defeat Elian’s quest for asylum, this administration has encouraged the public misperception that children cannot apply for asylum without parental consent and that the INS has the authority to assign parental custody and parental rights. Both assertions are absolutely false as matters of long standing policy and law.

Initially, the INS was content to give the boy the fair hearing he was due under U.S. law. A week after Elian Gonzalez was rescued from the sea, the INS declared that it had “no role in the family custody decision process” and that “the issue of legal custody must be decided by [Florida's] state court.” In the meantime, Elian would be in the custody of his U.S. family.

On December 5, 1999, Castro issued a 72-hour “ultimatum” to President Clinton demanding the boy’s return to Cuba. Not coincidentally, two days later the Clinton administration ordered the INS to reverse its claim to non-jurisdiction and began a relentless, extra-judicial campaign to expel Elian. After secret interviews with the boy’s father in Havana, the Justice Department stated that the INS had “determined that [the father] has the sole legal authority to speak for his son on immigration issues.”

Elian petitioned for asylum in the United States on December 15. But on January 6, without even scheduling the required interview, the INS unilaterally returned Elian’s petition for political asylum and application for admission.

Miami-Dade County Court granted Elian’s uncle temporary custody of the boy on January 10 and “such limited legal authority as necessary to preserve the status quo . . . including, but not limited to, the authority to assert and protect such rights as the child may have under United States immigration law. . . .” The following day, the boy’s guardian submitted an asylum claim to the INS.

With lightening speed for which the federal government and INS are not renown, Attorney General Janet Reno declared on January 12 that the Florida court’s order had “no force or effect,” and the INS refused to receive the application for asylum. Plain and simple, the Clinton administration denies that Elian Gonzalez or his guardian have traditional immigration rights under U.S. law.

First, the administration has tried to deny his rights as an alien, but both statute and case law support his right to due process and asylum. Section 208 of the Immigration and Nationality Act states, in part, “An alien who is physically present in the United States or who arrives in the United States (. . . including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum. . . .” Moreover, over one hundred years of case law supports due process for undocumented or unadmitted aliens; U.S. courts have held that even “excludable” aliens must be granted the rights set out by Congress.

Second, the administration has tried to deny his rights as a minor, but the law is quite clear that Elian has an undeniable right to claim asylum under U.S. law. Indeed, the INS’s own “Guidelines for Children’s Asylum Claims” (December 10, 1998) states: “Asylum Officers should not assume that a child cannot have an asylum claim independent of the parents.” The guidelines lays out 22 specific measures that INS officers must take to protect a child’s right to seek asylum. These guidelines stress the importance of “creating a ‘child-friendly’ asylum interview”–painfully ironic given this bitter political battle.

Third, the Clinton administration has placed the rights of the father over the son in violation of U.S. law. By empowering the father to withdraw Elian’s asylum petition, the INS has given the father custodial rights that it has neither the authority or competency to give. In 1993, the Supreme Court confirmed that child welfare determinations are beyond the INS’s administrative expertise, though this is their rationale for granting his father this prerogative. In contrast, Elian’s Cuban-American family wants the custody decision made by a court, which will hear from witnesses and put the child’s interests first.

Now that the executive branch has broken with law and tradition and created a diplomatic nightmare, the other two federal branches have been forced to step in. Elian’s legal team is asking a federal court to instruct the INS not to deport the six-year-old until it has considers his asylum petition on its own merits. In Congress, two bills have been introduced to grant Elian Gonzalez U.S. citizenship or permanent residency. As a citizen, he could still be returned to Cuba, but at least he would be sure to get a fair hearing, which even criminals receive once setting foot on U.S. soil.

After all of that Elian Gonzalez has been put through, first by Castro and then by Clinton, respecting his right to a fair hearing would be the greatest miracle of all.

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