- The Washington Times - Thursday, April 20, 2000

Elian Gonzalez will have his much-deserved day in court. In America, this may seem a foregone conclusion. But if Elian's supporters hadn't mustered the considerable courage necessary to defy a Justice Department order, Elian would likely be irretrievably in Cuba right now, undergoing an intensive "re-education" session.

The 11th U.S. Circuit Court of Appeals panel yesterday ruled that no one may take Elian out of the country until it reviews the merits of an asylum petition before it. The panel's order is tremendously important for Elian, since Attorney General Janet Reno had already taken measures which would have sealed the child's fate before his due process had come to a close. In doing so, Miss Reno placed herself above the law. The Justice Department last week ordered Elian's Miami relatives to hand the boy over to his Cuban father, Juan Miguel Gonzalez, and claimed that she couldn't ultimately prevent Mr. Gonzalez from leaving the country with Elian if he chose to do so.

Although the panel's order simply guarantees judicial review of an Immigration and Naturalization Service (INS) decision denying Elian the right to apply for U.S. asylum, it defies some of the more extraordinary contentions the Justice Department has made in the case. Arguing before a federal court last month, the Justice Department held that the courts don't even have the jurisdiction to judge an INS decision regarding Elian. In addition, the Justice Department argued that an existing U.S. law granting any individual the right to petition for U.S. asylum wouldn't apply to Elian since he is a minor. U.S. District Judge K. Michael Moore ruled that the law is ambiguous enough that he couldn't strike the INS decision.

The Atlanta Court of Appeals hinted Wednesday that it sees the Elian case quite differently. "We doubt that protecting a party's day in court, when he has an appeal of arguable merit, is contrary to the public interest," the court said. The court seems to feel that it does have the jurisdiction to review the INS decision. Even more dramatically, the court said, "Not only does it appear that plaintiff might be entitled to apply personally for asylum, it appears that he did so. According to the record, plaintiff although a young child has expressed a wish that he not be returned to Cuba." The court then lodged a thinly veiled criticism of INS handling of the Elian case. "It appears that never have INS officials attempted to interview plaintiff about his own wishes," the judges wrote. "It is not clear that the INS, in finding plaintiff's father to be the only proper representative, considered all of the relevant factors particularly the child's separate and independent interests in seeking asylum."

The court appears to believe that the U.S. law granting any individual the right to apply for U.S. asylum is not ambiguous. This augurs very well for Elian and his right to due process. Presumably, the White House won't be talking about the rule of law in regard to Elian anytime soon.

The court's ruling doesn't by any means, however, deny Elian's parental rights to his child. When the Atlanta court begins hearing oral arguments on May 11, it will make a ruling strictly on Elian's rights to asylum. In order to appeal to public opinion, the White House has made considerable effort to couch the debate on Elian in terms of a father's right to custody of his child. But the courts haven't come close to considering the question of custody, only Elian's right to apply for asylum. The White House has irresponsibly grouped together the question of custody and asylum when they should be judged separately.

Even if Elian is ultimately given U.S. asylum, a family court could very well decide that the boy belongs with his father. That question should be settled by the courts, not by bureaucrats eager to appease an aging dictator. Regardless of who should take custody of Elian, the child deserves his day in court. After all, this is America.

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