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Burden of Proof

INS: Father of Cuban Boy Has Right to Determine Residence

Aired January 5, 2000 - 12:30 p.m. ET



DORIS MEISSNER, INS COMMISSIONER: After careful evaluation of the relevant facts, INS has determined that Mr. Juan Gonzalez of Cuba has the sole legal authority to speak on behalf of his son Elian regarding Elian's immigration status in the United States.


COSSACK: Today on BURDEN OF PROOF: The U.S. Immigration and Naturalization Service rules on an international custody despite, a 6- year-old Cuban boy will be returned home to his father.

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF.

U.S. authorities have decided that Elian Gonzalez should be returned to his father in Cuba. Elian became the focus of an international custody dispute when he was rescued from the Atlantic Ocean, clinging to an inner tube. His mother was one of 11 people who died trying to reach the Florida coast. His relatives living in Miami say he's a political refugee, but protesters in Havana have called for his return since the rescue six weeks ago.


MEISSNER: There is no question that Mr. Gonzalez is Elian's father. Moreover, Mr. Gonzalez has had a close and continuous personal relationship with his son. During INS's interviews with Elian's father, the father provided vivid details about his parental relationship with his son and about the nature of the bond that they share as father and son.

He provided extensive documentation about Elian's schooling, and his medical and health histories, as well as photographs depicting the activities in which he and his other family members frequently participated with Elian.


COSSACK: Joining us today in our New York bureau is Democratic Congressman from New Jersey Robert Menendez. And here in Washington, Yeah Afolabi (ph), Dan Stein, the executive director of the Federation for American Immigration Reform, and law professor Alex Aleinikoff. And in the back, Rebecca Nemiroff (ph) and Mia Cristofaro (ph). And also joining us from Miami is CNN correspondent Susan Candiotti.

Susan, was this decision unexpected?

SUSAN CANDIOTTI, CNN CORRESPONDENT: Not unexpected among most legal experts I would say, and I think that the family members here, including the great uncles and the cousins, would tell you that as much as they did not want to hear this decision, I don't think it comes as a total surprise to them. They were saying all along they were trying to prepare themselves for any eventuality, but they certainly don't expect it by any means, Roger.

COSSACK: Susan, it was a rather narrow decision -- I'm sorry, Susan, it was a rather narrow decision that the INS made their ruling on, based on who was best able to speak for the young boy; isn't that true?

CANDIOTTI: That's exactly right. The immigration authorities say that, as they put it, that the father has the sole legal authority to speak on behalf of his son in immigration matters, and that's what they say is at the heart of this case where the boy should be. They believe that, as they call it, they say the core issue is the bond between father and son, and because there is clear evidence that there is a bond between both, they believe that the father's wishes should be upheld in this case. And they also cite that that goes along with a U.S. law and international law in a situation like this, where the mother has passed away and the father survives.

COSSACK: Susan, The immigration decision was not made upon where it would be best for the young boy to be raised or to go to school, but was based solely on the fact that the father was the best one to speak for him; isn't that right? I mean, immigration hasn't decided what's a better place for him.

CANDIOTTI: That's correct. They say that is not within their purview, that this is not what they call a custody matter, this is a matter they say as to who has the legal authority to be the one to talk on behalf of this child. And they say, quite clearly, once establishing that the father has that kind of relationship with a son, is indeed the father, and has proven it through various pieces of evidence, that there is no question in their mind that that's what this boils down to, not something that should be battled out as to who should have custody of the child or where he would be able to live in the best economic fashion, or even for that matter politically speaking in a communist country or in a democracy.

COSSACK: Susan, Director Meissner pointed out that the INS had done some extensive investigation into this -- these facts before they made their decision. What did she point out that they had done? Had the INS spoken with the father?

CANDIOTTI: They had at least two meetings with the father, both immigration authorities and members -- representatives of the U.S. State Department in Cuba met with him most recently on New Year's Eve, and at this time, at that meeting, rather, they also said that they came armed with information provided to immigration, claims by the relatives here in Miami that the father was not able to speak freely; that he was acting under duress. Immigration here had asked the family here that if they had information, any proof of that evidence, to provide it to them.

Immigration authorities say that they are satisfied in their own mind that the father is speaking clearly, and from his heart, and that he is not under duress when he says that he wants to have his boy back with him.

The question, of course, is whether the father will be willing to come to the United States. And now that this decision has been made, to escort his boy back.

COSSACK: Representative Menendez, your reaction to the INS ruling.

REP. ROBERT MENENDEZ (D), NEW JERSEY: Well, I think it is a terrible ruling because, in a variety of ways, I think we have violated the core principles of some of our own laws, which is what is in the best interest of this child? I mean, INS is trying to take a very narrow approach, but by the same token, everything they put out in their press release, and that the commissioner said, is wrapped around in the language of a custody determination.

And the fact of the matter is to believe that Elian's father is not under duress in communist Cuba under the dictatorship of Fidel Castro, who has ratcheted this up to a national campaign, is just not to know the realities of Cuba, which more repressive than Ceausescu was in Romania. I mean, that is the reality.

So we should have offered this father and his wife and other child there, a visitor's visa to come to the United States, to go to a custody court, and make a determination. And yes, biological parents' rights are incredibly strong. But they are not absolute.

For example, we wouldn't give a child back to someone who was abusive or neglectful or who had abandoned their child. And we can only determine what's in the best interest of a child in a family court.

So we have an INS decision here that they want to focus on a narrow basis, but they have wrapped it all in the words and language of a custody determination. We have the complications here of a nation which we have consistently voted in the U.N. Commission on Human Rights for violations of human rights, and we have a father who is clearly under duress.

This man cannot say anything different than what he is saying in Cuba and Survive inside of Cuba.

COSSACK: Dan, the objection you heard from Representative Menendez, do you agree or disagree?

DAN STEIN, EXECUTIVE DIRECTOR, FED. FOR AMER. IMMIGRATION REFORM: I don't agree. We would like to applaud Doris Meissner's very difficult decision. We think she has done it thoughtfully, responsibly, after a proper analysis of all the evidence, and exercising her due proper legal authority to make a determination as to who will have the right to speak for the child in immigration proceedings.

It's time for the spectacle to end, to stop making this child some kind of a tool of these cross-border political wars of an old cold war battle.

This child belongs with his father. Now, Doris Meissner has made the decision as to who has legal custody under U.S. immigration law, but as an old legal adage said: Well, you know, Ms. Commissioner Meissner, you made your decision, now let's see you enforce it. The question then becomes: Who is going to come and take the child back to the father or is the father going to be allowed to come in.

Cuba said they are going to let the father come, if he wants to, and take the child back. But can and will the U.S. government guarantee the father's safety, if he comes and tries to take the child. Will he get any kind of state action in support of his effort to regain custody of the child, if he does come to Miami. I mean, these are the open questions. This case is far from over, Roger.

COSSACK: All right, let's take a break.

Now that this child has been officially released to his father, what procedure should he follow to pick up his son? And what can his Miami relatives legally do to stop this reunion.

Stay with us.


In a case stemming from the investigation of the president, an appeals court reaffirmed the laws of secrecy surrounding grand jury proceedings.

Media organizations had sought a public docket of the 1998 federal grand jury probe conducted by then-independent counsel Ken Starr.



COSSACK: Good news for our Internet-savvy viewers: you can now watch BURDEN OF PROOF live on the Worldwide Web. Just log on to and click your way to the BURDEN OF PROOF link. We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern Time. If you miss that live show, the program is available on the site at any time via Video On-Demand.


MEISSNER: During INS' two meetings with Mr. Gonzalez his wishes for Elian were discussed at some length. The father made it very clear during both of these meetings that he wants Elian returned to him as soon as possible. Based on these meetings, INS believes that the father is expressing his true wishes, and therefore, we have determined that Elian should be reunited with his father, Mr. Juan Gonzalez.


COSSACK: Today in Washington, American officials announced that a six-year-old Cuban boy should be released to his father, but the courtroom battles in this international dispute may be far from over.

Alex, first I want to ask you about this decision that was made. It seemed like that in fact what the INS was deciding that the father was the proper person to make the decision for his minor son, but yet as the representative points out, and I think quite correctly, they seem to wrap it in almost the kinds of language that we make custody decisions over.

ALEX ALEINIKOFF, LAW PROFESSOR: I don't think so. I mean, I think normally in immigration law, the parent speaks for the kid, particularly a minor kid here, and what the INS had to do was determine that in fact there was a close family relationship, and to the best that they could make the determination, the father wasn't being coerced. And I think the congressman is correct to say that there are times when child won't be returned, if the father is abusive, if there's no relationship. But I think that's why there were the two interviews in Havana and why the family here was given the opportunity to present any evidence that there was coercion going on, and I guess the INS found that there was none.

COSSACK: Once you find, as a matter of principle, the INS finds that Mr. Gonzalez is the father of young Elian, is there anything more to look into? I mean, assuming that he's not an abusive father, but suppose that there was no relationship between the father and the son, does it really make any difference? Isn't his father always the one that would have the ability to speak for him?

ALEINIKOFF: I don't know. If there were no relationship there might be a problem here, but here the INS had pictures and tapes of the father and the son together, so we don't even have that situation. Once you determine that there's a bona fide relationship between father and son, then that ends the case from the INS' perspective.

COSSACK: And what kind of -- if -- let's suppose that relatives in Miami wish to appeal the INS' decision. Could they?

ALEINIKOFF: It's unlikely. I think they're likely to go to court, either to federal or to state court. There could -- there's never been a custody case brought in state court. Conceivably they would try to bring one, although it would be difficult...


... then said, I don't want any applications filed for the child, and so the INS dismissed the asylum claim. Conceivably they could -- the family here could go to court and say that was an abuse of the INS' discretion. Whether they intend to do so we'll have to see.

COSSACK: Representative Menendez you have argued forcefully that it's impossible to return young Elian to Cuba because the father is under pressure to say the things that he said. What kind of evidence do we have to back those claims up?

MENENDEZ: Well, look, the specific realities of Elian's father have to be looked in the context of the documentation that exists between human rights organizations across this country and the world and by the constant votes of the U.N. Commission on Human Rights about the life inside of Cuba. The fact of the matter is, when the INS conducted these interviews at his home, those meetings were surveillanced, they were taped. This man could not say anything different.

In every street, in every village, in every hamlet, there's someone who's called to be part of the Committee to Defend the Revolution, which is a block-watch organization. This man's whole private life has been turned inside out publicly by Fidel Castro. If he were to say anything different, I can assure that you he, in fact, in time would be in jail.

That -- if we look at so many other individuals inside of Cuba that Fidel Castro has wanted to make an example of -- in this case it's about making an example of Elian being returned -- the father has no other choice here. I mean, to believe that the INS in two interviews with a wink and a nod can try to come to some time of understanding as to whether or not he truthfully really wants in the best interests of his child to go back to Cuba in the set of circumstances that that child would find themselves there is incredible.

You know, the mother had custody of this child. The mother made a conscious decision not to say, look, let me keep you, Elian, and I'm going to take this risk to the United States, and if I achieve it I'll claim him. That's not the relationship that they had. The mother made a conscious decision to bring this child and take the risk to bring him to the United States, and from her tomb I think she speaks volumes to us about what she thought was the best interests of this child.

COSSACK: All right, Representative Menendez. Dan, should the political atmosphere between the two countries, assuming that what the representative says about Cuba is correct, should that be the consideration that the INS should take in when they're making their decision?

STEIN: Nobody is more quick to criticize Fidel Castro in lack of political freedoms then fair would be. But let's fact it, at some point this comes down to basic respect and whether or not the Cuban community in this country is going to respect the larger political and legal system that we've established as a nation and the inheritor of the common law traditions which recognizes the ancient bond of a father and a son to take precedence over everything else in determining what's in the best interest of a child. It's time for the communities to back off and give the chance -- the process a chance to work. Those -- these are the basic political freedoms that we enjoy, that make our country great as it is today. If the Cuban community in Miami will not relinquish custody of the child to the father, the church officials or the Immigration Service, then it is speaking volumes about the kind of thrall that the Cuban community in Miami and Castro are in, this deadlock to the exclusion of the broader national interests that enable this country to be what it is today.

And I hope that doesn't happen. I think that the politicization of this has got to stop. If Elian, when he's an adult, wants to come back to this country, he can apply for a visa. If his father wants to bring him back on a rickety boat, under current U.S. law he can do that and he'd be allowed to stay, but if his father wants to live in Cuba with his son, he has that right.


COSSACK: Representative Menendez, I'm going to give you an opportunity to respond. We have to take a break. More on the story of Elian Menendez when we come back -- Gonzalez, I'm sorry.



Q: In addition to murder and conspiracy, what charge was added to the indictments against football player Rae Carruth and three others?

A: Using a state statute designed to punish unlawful abortions, the grand jury added a charge of trying to kill the unborn child of Cherica Adams.


COSSACK: The case of Elian Gonzalez is probably not over, but even after his status is resolved, the effects of this case could have a bearing on future immigration cases.

Well, Representative Menendez, I promised you a chance to respond. Please, go ahead.

MENENDEZ: Well, I'm getting a lot of other interference in here, but let me just say I can't let Dan's comments go without a response. We are a community that believes in the rule of law. Number one is, we believe in the right to appeal of an adverse decision by the INS. We believe, in fact, of the ability of political asylum, which is part of our law. We believe, in fact, in a custody determination to be determined by virtue of a court. And we believe, ultimately, in the international law concept of human rights. And we think anyone could take judicial notice of the violations of human rights in Cuba, the duress that Elian's father is under.

So I reject the view of Dan that our ability to exercise our rights as American citizens under the law is, in fact, somehow less of a standard than anyone else in the community at large.

COSSACK: Dan -- let me just interrupt you just a moment.

Let's go to Susan Candiotti in Miami.

Susan, what is the response of the Cuban community in Miami?

CANDIOTTI: Well, first and foremost, we can tell you the early response of the family from supporter of theirs. The family has arrived back at their home in Little Havana and they are said to be very, very upset with the decision. They plan to make a public comment about that at some point later this day.

Meantime, from among members of the very active anti-Castro community here, there is a relatively small crowd that is here waving flags and the like outside Immigration headquarters here in Miami. They are calling upon supporters of theirs to begin to carry out acts of civil disobedience around town. They say they're not quite sure where they plan on carrying those out and exactly when, but they do expect a sort of lull in the action until about four hours from now when attorneys representing the boy's interests will be filing that court challenge at federal court in Miami.

COSSACK: Alex, the INS has made its decision: How will it be enforced?

ALEINIKOFF: Well, the commissioner left that open. She said either the father could come pick the child up or the family could go to Cuba and bring the child back -- that seems unlikely -- or a third party could intervene. But I think it's problematic that the INS has made this decision with no real end game in place. I think the thinking is that they would announce the decision and then public pressure would build on the family to follow the law, obey the law here and have the child returned.

But they've made clear that one thing the INS has not done, which they could do, is to actually revoke the parole of the child to the custody of the family. They have not done that. They've left the status quo and said they hope the family works this out together.

COSSACK: Let's suppose that they don't work it out. This is obviously a highly emotional issue: What happens then?

ALEINIKOFF: I don't think the INS has -- knows at this point it. I think, ultimately, it may require some kind of intervention of a third party that could reach some agreement between the family members.

COSSACK: All right.

STEIN: Maybe a religious official of some kind.

COSSACK: OK, that's all the time we have for today. Thanks to our guests and thank you for watching.

"TALKBACK LIVE" at 3:00 p.m. Eastern time, noon Pacific, will continue CNN's coverage of the INS decision to return Elian Gonzalez to his father in Cuba.

And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.


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