- The Washington Times - Monday, March 27, 2000


Elian Gonzalez will probably be leaving Miami soon. After putting up an emotionally-wrenching fight, Elian's Miami relatives have been unable get the six-year old Cuban boy the U.S. asylum hearing he deserves. That prospect looks distant now.
Elian was rescued after his U.S.-bound boat capsized off of Florida's shore. His mother and stepfather drowned after the boat accident. His father in Cuba, Jose Miguel Gonzalez, has insisted he wants his son returned to him and doesn't want him to apply for U.S. asylum. His Miami relatives, on the other hand, have been pushing for an asylum hearing on his behalf. Many Americans would welcome Elian's reunion with his father in Cuba, but the boy's Miami family and most Cuban-Americans ardently oppose returning Elian to Fidel Castro's island dictatorship.
Last week, the Justice Department told Elian's Miami relatives that they have until noon today to agree to a speedy appeal of a Tuesday federal court ruling or the agency would "immediately move to revoke" Elian's status in this country. The Justice Department's deadline follows U.S. District Judge K. Michael Moore's ruling dismissing a lawsuit requesting a political asylum hearing for Elian. Mr. Moore upheld an Immigration and Naturalization Service (INS) decision that only Elian's father may speak for his son.
"In the absence of congressional intent indicating otherwise, courts hold the agency findings and decisions unlawful only if they are 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,'" said Mr. Moore in his ruling. Only under these circumstances would the court overturn an INS decision. Elian's Miami relatives, therefore, faced a high standard of proof.
Although it would be difficult to prove that the INS, which is part of the Justice Department, abused its discretion, the agency's handling of the Elian case does leave unsettling questions. Although the INS had initially maintained that the Elian case should be arbitrated by a family court, it later reversed course with little explanation and said it would decide the boy's fate. In a Dec. 1 statement, the INS had said "Although the INS has no role in the family custody decision process, we have discussed this case with State of Florida officials who have confirmed that the issue of legal custody must be decided by its state court. However, Elian will remain in the U.S. until the issues surrounding his custody are resolved." The Justice Department has since stripped family courts of jurisdiction over Elian.
In addition, even though the INS gave Elian temporary parole and put him in the temporary custody of his Miami relatives, the Justice Department later argued that since Elian was taken directly to a hospital, he was therefore never formally paroled into the country and therefore had no legal right to seek asylum. During a three-hour hearing earlier this month, Judge Moore noted the Justice Department's ambivalence and asked why the INS did not simply review or reject out of hand the asylum application filed on Elian's behalf.
And while the INS contradicted itself and failed to establish clear policy, Elian's relatives struggled to protect Elian's best interests. They want Elian to be reunited with his father in the United States. They are convinced Jose Miguel Gonzalez is not free to express what he truly wants for his son in Cuba.
Cuba's dictator has made Elian's return the island's cause celebre. Given Mr. Castro's flair for brutal repression, Mr. Gonzalez isn't at liberty to speak of his real wishes for his son. Mr. Gonzalez won't be free to speak until he is allowed to travel to the United States with his infant son and new wife. It is undoubtedly too much to ask of Janet Reno's Justice Department that it set aside politics for long enough to contemplate these arguments. Still, that is exactly what is needed.

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