Elian's fate now in hands of 3 judges

Father's lawyer asks court to speed case

May 12, 2000|By Jean Marbella | Jean Marbella,SUN NATIONAL STAFF

Both sides in the stay-or-go battle over Elian Gonzalez took their last shots yesterday before an Atlanta federal court that will decide, perhaps in the next several weeks, whether the 6-year-old boy should be allowed to seek asylum in the United States or return to Cuba.

As protesters outside the courthouse called for Elian to remain in this country, a three-judge panel of the 11th Circuit Court of Appeals questioned lawyers for Juan Miguel Gonzalez, who says he wants to take his son home to Cuba, and those representing the boy's Miami relatives, who have been fighting to keep him here.

Neither Elian nor his father attended the hearing, remaining instead on a secluded estate on the Eastern Shore. Elian's great-uncle Lazaro Gonzalez and cousin Marisleysis Gonzalez - who cared for the boy from his rescue Thanksgiving Day off the coast of Florida until federal agents snatched him from their home April 22 - sat in on the hearing.

Kendall Coffey argued their case, saying Elian would be persecuted if returned to Cuba because his mother tried to escape with him from their homeland. She was one of 11 Cubans who died after their boat capsized. Elian, who clung to an inner tube for two days, was one of three survivors."Before you this morning are the rights of a boy to be protected from a police state," Coffey said."There is no parent in Cuba who controls what happens to his or her child, and there is no power in this country that can protect this child if he is removed to Cuba," he said.

His plea seemed to find a willing listener in one judge, J.L. Edmondson, who twice referred to Cuba as "a communist, totalitarian state." Edmondson also noted that courts in the past have overridden a parent's rights in favor of the best interests of the child.

But Juan Miguel Gonzalez's attorney, Gregory Craig, argued that "common sense, common law" dictate that Elian's surviving parent is the only one who can speak for the boy."He knows this child better than anyone in this courtroom, or anyone else on the face of this planet," Craig said.

Saying the drawn-out custody battle was harming Elian and his family, Craig asked the court to expedite its ruling."This family is in jeopardy of being destroyed if this case goes on much longer," Craig said.

The Miami relatives are asking the appellate court to order the U.S. Immigration and Naturalization Service to give the boy an asylum hearing. The relatives filled out an asylum petition and had Elian sign it, which he did by printing his first name in big block letters.

But the INS, backed by the Justice Department and upheld by a federal judge in Miami, determined that only Elian's father could speak for him. Juan Miguel Gonzalez has asked that the asylum petition be withdrawn.

Yesterday, Judge Charles R. Wilson also questioned the validity of a document signed by such a young child."I'm sure Elian Gonzalez is a very bright and intelligent 6-year-old, but he didn't even have the ability to sign his last name on the asylum petition," Wilson said.

Wilson also read aloud a question that applicants for asylum would be asked: Have they been associated with a political, paramilitary or human rights group?"Are you telling me a 6-year-old is competent enough to answer questions like that?" Wilson said. The judges asked Coffey, Craig and a lawyer representing the federal government some hypothetical questions: What if a baby sitter got a 2-year-old to write his name on an asylum application? What if Elian's mother had lived, or if she had been trying to escape East Berlin for West Berlin during the Cold War?

The hearing, initially scheduled to last 40 minutes, took about twice that long because of the number of questions the judges asked.

The proceedings began on an unusual note - Edmondson, wearing a suit rather than judicial robes, entered the courtroom and warned lawyers and spectators not to read anything into the questions that he and the other two judges might ask."It is entirely possible that a judge may make a statement or ask a question that is the exact opposite of what he is thinking, because he may want to see how the lawyers respond to it," Edmondson said.

No consensus

And indeed, despite the judges' extensive questioning, there was no consensus among legal observers as to how the appellate panel might rule."It's very hard to divine which direction the three judges are going to go," said Bernard Perlmutter, a lawyer who heads the University of Miami Child and Youth Law Clinic.

But Perlmutter was struck by the tenor of questions regarding life in Cuba and how the government might affect parents' ability to do what's best for their children."Because you are a parent in communist Cuba, you are ipso facto an unfit parent?" he said.

Still, he and other lawyers noted, the 11th Circuit Court of Appeals has a reputation as conservative, meaning it tends to favor the government and is reluctant to set precedent.

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