- The Washington Times - Tuesday, January 11, 2000

The Clinton administration's decision to compel 6-year-old Elian Gonzalez's return to a life of grim privation devoid of human rights in Fidel Castro's communist Cuba will prove infamous in the annals of the United States, like the cold shoulder the refugees onboard the St. Louis received on the eve of World War II.
"But what about the right of the divorced father to raise his child?," it may be asked. It is a cherished family value, and should not be trumped for light and transient causes. All rights, however, are matters of degree, and the case for Elian remaining in the United States free to choose his destiny upon maturity seems overwhelming.
Take a closely analogous hypothetical. A mother flees Taleban rule in Afghanistan with her infant daughter to the United States to escape unforgiving repression and subjugation of females. The mother dies in an auto accident, and her intimate friends apply for asylum on behalf of the daughter. The father in Afghanistan, who celebrates the fundamentalist Islam of Taleban, demands the return of his infant. His affection is sincere, his choice is voluntary, and he believes the girl will cherish the Islamic culture practiced and enforced by Taleban. Does anybody think the Statue of Liberty would smile and shine if the United States bowed to the wishes of the father?
That Mr. Castro's Cuba holds for little Elian an oppressive existence comparable to Taleban's abasement of women is substantiated by volumes of evidence. His mother, who enjoyed custody of the boy under Cuban law, fled the country (although Mr. Castro makes unapproved flight criminal) for the United States and was martyred for her heroism in part to liberate Elian from Cuba's ubiquitous chains: no freedom of speech, press, association, religion, property rights, due process, rule of law, independent courts, etc. The memoir of human rights icon, Amando Valladeros, "Against All Hope," offers a chilling narrative of the commonplace brutalities visited on any Cuban demanding more than a cowlike existence.
During the handful of days in 1980 when Mr. Castro offered an opportunity for free flight, approximately 120,000 raced to United States shores in the so-called "Mariel boatlift" to escape Cuba's appalling miseries. A staggering 500,000 Cubans apply for the annual 20,000 legal immigrant visa quota for the United States despite the risk of official retaliation. And in the 1980s, Mariel boatlift detainees held in the United States and denied permanent admission because of criminal activity rioted in prison when rumors spread they would be returned to Mr. Castro's communist utopia. In other words, Cubans with firsthand experience prefer prison in the United States to freedom under Mr. Castro.
Irreversibility also counts. If Elian remains in the United States, emigration to Cuba will be a genuine option when he reaches maturity. If he is returned, in contrast, Cuban law would make criminal any later attempt to emigrate to the United States, unless he chanced upon a rare immigrant visa.
During the Reagan administration, a 16-year-old Polish boy, Walter Palevchek, resisted a return to communist Poland when his immigrant visa expired. Legal skirmishing kept him in the United States until he turned 18, making him unarguably the legal master of his fate. He chose to cling to American soil.
Finally, I would wager that not a single proponent of Elian's return to Cuba would consider for a nanosecond swapping life in the United States for himself or his child for the unrelieved bleakness of Mr. Castro's communism.
In sum, objective evidence beyond a reasonable doubt proves that Elian in mature years would choose to remain in the United States; that as a child his best interests dictate the same; and, that returning him to Cuba would shock the consciences of all but the flint-hearted or ideological fanatics.
To override the wishes of Elian's father would not mean that any child immigrant from countries with substandard human rights credentials (for example, Mexico, Peru, or Algeria) should be permitted to stay despite a conflict with parental desires. The decision requires a balancing of family values and the parental right of child-rearing against saving a child permanently from a mentally, economically, and politically stunted life. The balancing occasionally may prove problematic, but not in the case of Elian Gonzalez and Cuba.
Fidel Castro himself has tacitly championed a balancing test that contemplates subordination of parental rights. According to an Outlook article in The Washington Post (Jan. 9, 2000) by Ann Louise Bardach, he resorted to duplicity to obtain physical custody of his son, Fidelito, in Mexico City in 1956. He then bequeathed the child to a wealthy couple who were his patrons, not to Fidelito's mother, in the event of his death in the impending Cuban Revolution. Mr. Castro explained: "Because my wife has proven to be incapable of breaking away from the influence of her family, my son could be educated with the detestable ideas that I now fight… . And I leave my son also in Mexico, to grow and be educated in this free and hospitable land… . He should not return to Cuba until it is free or he can fight for its freedom."
So what should be done to overcome the Clinton administration's myopia and callousness? Congress should enact a statute both granting Elian U.S. citizenship and specifically overriding the decision of the Immigration and Naturalization Service that directs his return to Fidel Castro's embrace. A pending lawsuit in Florida state court and a congressional subpoena for Elian should enable Congress to act before he is removed from the United States.
By reciting the unique and compelling facts of Elian's plight, the federal law would avoid establishing a precedent that would run roughshod over parental rights or create an immigration or foreign policy nightmare. There would be no risk of a "slippery slope."

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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