By: Mary Mostert, Analyst, Original Sources (www.originalsources.com)
March 23, 2000
Judge K. Michael Moore ruled Tuesday that Elian Gonzalez’s great uncle in Miami does not have the authority to represent the child in a petition asking for political asylum. Agence France-Presse reported: "By not considering the petition, Moore has effectively upheld the Immigration and Naturalization Service (INS) decision of January 5 which acknowledges the exclusive parental custody of the child's father, Juan Miguel González, who is demanding the return of his six-year-old son to Cuba."
UPI Reported that "Judge K. Michael Moore in Florida ruled Tuesday against the Miami family of 6-year-old refugee Elian Gonzalez, saying the child has no right to a political asylum hearing.
And, just who IS the "Miami family" of Elian? According to a February 9th edition of the New York Times they are a family with mild to serious problems with the law. Lázaro González, the Elian's paternal great-uncle who is trying to keep Elian from returning to his father in Cuba, and who has been pictured as the hero of this battle by some members of Congress and news outlets has been convicted four times in the last 10 years for driving under the influence of alcohol.
One of Lázaro's brothers, Delfín, also has a drinking problem and has received a similar number of convictions in the same period for drunk driving. A 13 year sentence on robbery, forgery and parole violation hangs over José Cid, one of Elian's cousins. Another cousin, Luis, appeared in a Miami court on February 18th for a robbery committed last September. The Times observed that the American family's problems with the law "could influence the decision on any jury at the moment of granting that family custody of Elian."
I would certainly hope so. However, none of that seems to have made any impact whatsoever on the hysterical movement to keep Elian in the United States against the wishes of his father in Cuba. I was sent a 10 page fax on the Elian situation from a member of Congress which gave no information at all on why the Judge ruled as he did, but quoted a lot of politicians opinions on the subject.
"Today is a sad day for the Rule of Law in the United States," Rep. Lincoln Diaz-Balart and Ileana Ros-Lehtinen, both Florida Republicans who undoubtedly got elected with anti-Castro Cuban votes. "To begin with, Judge Moore admitted that the Federal Court has jurisdiction to hear Elian's case and that Elian has legal standing to sue, and yet the Judge then precipitately ruled on a five count Federal lawsuit without granting Elian the opportunity to even be heard contesting a Motion for Summary Judgment."
Diaz-Balart and Ros-Lehtinen conclude that "this is a shocking case...rejection of his (Elian's) petition for political asylum must have been reviewable by an Immigration Judge and the Board of Immigration Appeals...Elian was not permitted any such administrative due process as called for by the law..Judge Moore, shockingly and incongruously proceded to rule that Elian has no rights."
They want the "custody dispute between Elian's father and his relatives in the United States" to be "decided by Florida Family Court." So, in effect, we have a group of people claiming to be conservatives who want the United States government to take control of Elian, and ignoring the unalienable rights of his father to raise his child. . What does both U.S. and Cuban law say in a case such as this for a 6 year old child? I downloaded the 50 page decision by Judge Moore from the Havana, Cuba paper, and read it. So far, I haven't found it on the "free press" in the United Sates. What the two members of congress are saying Moore said and what his decision says isn't at all the same thing.
The following points, some of which I've never heard before, were in that decision:
1. Elian was rescued at sea on November 25, 1999. On November 27, 1999 his father, Juan Gonzalez, sent a letter to the Cuban government requesting that his son be returned to him in Cuba. That letter was immediately forwarded to the United States Interests section in Havana -the same day.
2. Two days later an application for asylum for Elian was submitted by Elian's great-uncle, Lazaro Gonzalez. The alleged grounds for asylum were "membership in a particular social group and/or political opinion." A footnote in the decision observed "There are only five permitted grounds for the granting of asylum: race, religion, nationality, membership in a particular group, and political opinion. 8 U.S.C. §1158 (a)(42)(A)defines a refugee as "any person...who is unable or unwilling to return to his home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."
What the lawyers for Lazaro and the Anti-Castro pressure group financing the lawsuit needed to prove was: (1) They had the authority to speak for Elian and (2) That he would be persecuted if he returned to his father in Cuba.
3. On December 13th, Juan Gonzalez was interviewed in Havana by an INS official. He asked that any application for admission to the United States on his son's behalf be withdrawn. Gonzalez' statement said: "Elian, at the age of six, cannot make a decision on his own...I'm very grateful that he received immediate medical assistance, but he should be returned to me and my family. As for him to get asylum, I am not allowing him to stay or claim any type of petition; he should be returned immediately to me."
4. INS did another interview with Juan Gonzalez and asked him to respond to written questions. In that interview Juan reiterated he did not want Elian to remain in the United States and "expressed offense that the INS was 'questioning my paternity over others that have no rights ...and giving more rights to others...although they have no authority over Elian.
5. The General Counsel for INS on January 3rd prepared a Memorandum which asked if Elian 'may apply for asylum in direct opposition to the expressed wishes of his father?" Florida law would not allow a six year old to bring a lawsuit in defiance of his only remaining parent, and neither would Cuban law.
6. On January 10th a Florida state court granted Lazaro Gonzalez "limited legal authority...to assert and protect such rights as the child may have under United States immigration law." Lazaro filed another asylum application. Lazaro Gonzalez claimed that Juan Gonzalez had once said that "if the boy made it to this country safe and sound that we should protect him by whatever means available." Juan of course denies he ever said any such thing.
7. The General Counsel for INS concluded that Elian "lacks the capacity to raise an asylum without the assistance of his parent. Further, neither the applications submitted nor any other information available indicates that Elian would be at risk of harm in Cuba such that his interests might so diverge from those of his father that his father could not adequately represent him in this matter."
Janet Reno would have had to invent law in order to rule other than she did. She pointed out in her letter that "Commissioner Meissner has determined that under applicable law, Elian is too young to make legal decisions for himself and that his father has the legal authority to speak for him in immigration matters." While the INS did not "rule out" the possibility of a case for asylum from a young child against the wishes of a parent, it "found no credible information indicating that the child would be at risk of torture or persecution if returned to his father and thus concluded that it had no reason to question the father's decision not to assert an asylum claim."
The INS "found no conflict between Elian and his father." It has not found that Lazaro Gonzalez, who has a police record, is an appropriate substitute for his father - under the law of the land. The use of Elian as a political football for what certainly appears to me, in reading their material, as an Anti-Cuban hate group whose only real interest involves trying to make all Cubans on the Island, starting with Fidel Castro into monsters.
This is ridiculous. Elian should have been returned to his father months ago. He should have been returned in November. There is no legal basis for him to be in the home of a man who has four convictions of driving while intoxicated against the wishes of his father. Juan Gonzalez asked that Elian be removed from Lazaro's home and given to another uncle in Miami who is sympathetic with the father. This has not been done. The U.S. Government has made all the decisions about Elian, ignoring Juan Gonzalez's rights as a father.
Today is not a sad day for the Rule of Law in the United States, Congressman Diaz-Balart. Today is a great day for the Rule of Law in the United States. Judge Moore ruled the only way any judge COULD rule who was paying attention to the law. Now we will see if the Clinton Administration is going to abide by the law, or continue to keep Elian in the home of a drunk driver against the wishes of the child's father.
Elian is not somebody's symbol. He is a flesh and blood little boy. American law demands that he be returned to his father. If the U.S. Government can take control of Elian's life, against the wishes of his only parent, simply because a group of strangers want to use him for their political endeavors, it won't be the Fidel Castro government that is controlling the child. It will be the Bill Clinton government that is controlling the child. The law in this matter is very clear. Whether or not the Clinton Administration abides by that law appears to be up in the air.
To comment: mmostert@originalsources.com
The Court Decision by Judge K. Michael Moore may be found at: http://www.netside.net/usdcfls/publications/elian.pdf
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