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Burden of Proof

Elian Gonzalez Case: Cuban Exiles Protest INS Ruling; Congressional Subcommittee May Buy Some Time

Aired January 7, 2000 - 12:30 p.m. ET



BO COOPER, INS GENERAL COUNSEL: One of the cardinal principles of immigration law is family reunification. Here we have a small child who is too young to make legal decisions for himself about his immigration status, and he has a living father, the sole remaining father. And in these situations, the views of the surviving parent are normally the views that -- to which we give effect.

MARISLEYSIS GONZALEZ, ELIAN'S COUSIN: I feel that if they gave us the opportunity and they gave us at least almost a parole to take him out of the hospital, that they were giving us the right to shelter him, they should give us the right to speak for him now, because we were there for him at the first time when he most needed someone.

IRA KURZBAN, IMMIGRATION ATTORNEY: Why should we assume that the father's feelings are not genuine simply because he lives in Cuba? Are we really saying that everyone who lives in Cuba doesn't agree with the political system? and is under the thumb personally of Fidel Castro? I think that's kind of a silly position to take.


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: Cuban exiles protest an INS ruling concerning a 6-year-old boy and his father, and a congressional subcommittee may be buying some time for Elian Gonzalez's immigration resolution.

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

COSSACK: Hello and welcome to BURDEN OF PROOF, Greta is on assignment today.

Aides to Congressman Dan Burton, chairman of the House Government Reform Committee, have confirmed a request to subpoena 6-year-old Elian Gonzalez. Such a move could delay a reunion with his Cuban father. According to the INS, Juan Gonzalez was, quote, "very vivid and very clear he wants his son back."

But his relatives in Miami are fighting to keep the boy in the United States. Attorney for those relatives plan to go to court to oppose this week's INS ruling that Elian should be reunited with his father.

This morning, the president was asked how the boy's U.S. relatives should respond to the INS ruling.


WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: I believe that they followed the law and the procedures. This is a volatile and difficult case, and those who want to challenge it will have to follow the law and the procedures. I think that's the only way to do this. We need to keep this out of the political process as much as possible within the established legal channels.


COSSACK: Joining us today from New Orleans is George Fowler, attorney for the Cuban-American National Foundation. Here in Washington are Charlie Nicodemus (ph), former INS general counsel Paul Virtue, and executive director the Federal for American Immigration Reform Dan Stein. In the back, Lauren Hodges (ph), Steve Brady (ph) and Rachel Morgan (ph).

And joining us from Miami, Florida is CNN correspondent Mark Potter. And from Capitol Hill, CNN congressional correspondent Bob Franken.

Mark, let's go right to you. What's the latest score coming out of Miami on this?

MARK POTTER, CNN CORRESPONDENT: Well, Roger, it is pretty quiet here in Miami today, especially compared to yesterday when there were more than 100 arrests, several protests. It's pretty quiet today. Police are on standby, extra police are here, but so far they are reporting no incidents.

Now, a short while ago we heard from a spokesman for the Gonzalez family, that is the family here in Miami's Little Havana neighborhood that is caring for 6-year-old Elian. And the spokesman said the family thanks the protesters for their support, but is urging them to be calm and to be careful and not to go overboard.

We also heard, shortly before that, a slightly different message from a Cuban political leader -- an exile leader, whose name is Ramon Saul Sanchez, he is the man who led that demonstration yesterday in downtown Miami that got out of hand, and he was arrested. He is back out and he came here and said that he is -- and other exile political leaders are continuing to urge civil disobedience, acts of disobedience today, including traffic slowdowns. He said they are calling for a rally tomorrow in this general area. And on Monday, he's urging members of the exile community to, in essence, shutdown the Miami International Airport by driving slowly or stopping traffic all together at the airport.

And that particular call is one that has raised the hackles of local police. And I have one here with me today. He is Lieutenant Bill Schwartz from the Miami Police Department. Thanks for joining us. You were standing here when he said that. What did you think about that?

LT. BILL SCHWARTZ, MIAMI POLICE: In all due respect to Mr. Sanchez, that sounds like one of the dumbest things I've ever heard. It is a giant contradiction. On one hand, you want to win converts over to your cause; on the other hand, you are going to inconvenience everybody.

POTTER: What kind of problems will that cause here at the airport?

SCHWARTZ: Well, this is one of the most busy airports in the world, and this is a tourist town. How would someone feel in they have 20 minutes to catch a plane and people have stopped their cars preventing them from doing that. I don't think they would be too happy or too willing to go over to the cause of the other side.

POTTER: And how will the police respond, do you think?

SCHWARTZ: We are going to respond very quick and very sure. We are not going to permit it. So, if they are looking to be arrested, they are coming to the right place.

POTTER: You had some incidents yesterday, you had to use tear gas last night. How bad did it get?

SCHWARTZ: It got pretty bad. You know, we got the pure issue, where people who really care about the cause are protesting, and that's what America is all about, that's great. But you have got hoodlums who are also getting into the mix, people who are trying to work the crowd up, actually gang members. A good percentage of our arrests last night were gang members, just there for one reason, that was to cause problems.

So, you know, we lose the message. So the message right now that we've got to get out of the people of Miami and to these people who are protesting is: If you have got a cause, that's what America is all about. Go ahead and protest, but you better do it peacefully.

POTTER: You had an officer who was hurt last night. How is he doing?

SCHWARTZ: He is doing fine. He was banged up a bit. A protester actually bumped into him with a car. But he is going to be all right. He has some damage to his leg, but he will be all right.

POTTER: And are you expecting any problems today. So far, it has been pretty quiet.

SCHWARTZ: Yes, it's been quiet today. But you know, it started off quiet yesterday too, and then all of a sudden the floodgates opened. You know, it was like a tidal wave hitting us at once. But I think today we're a little bit more prepared for that. We have more officers in place to move a little more quickly than we did yesterday. And the message we're trying to get across is we don't want to use those officers for anything more than standby for an exercise. But if you push us, you push us.

POTTER: OK, lieutenant, thank you very much.

SCHWARTZ: My pleasure.

POTTER: Appreciate it. Thank you, sir.

All right, Roger, that's the situation here in Miami. Everybody on standby waiting to see what happens next. Back to you.

COSSACK: Mark, one more question. Do we have any information as to what the young boy knows, and whether or not he knows what's going on and what the INS has ruled?

SCHWARTZ: Yes, he does know. The family's spokesman said that he heard it the other day on television after the announcement was made. The family has talked to him. The family spokesman said that the little boy, in the words of the spokesman, was very upset when he learned that.

We saw the boy a short while ago today. He was in the yard here behind me playing with his dog, playing with his great uncle. He too, indirectly, has been effected by the commotion. He was supposed to go to school today. That was the plan. But they held him back. The family is saying that they just wanted to make sure that he was safe.

So he is in the house behind me. And by all accounts, he knows what's going on, at least the bare minimum. He probably has no idea of the scope of the storm that surrounds him. But he does know, according to the family spokesman, that a decision has been made that he should go back to Cuba.

COSSACK: All right, Mark Potter.

Let's now go up to Capitol Hill with CNN's congressional correspondent Bob Franken.

Bob, Congress is starting to get involved in this.

BOB FRANKEN, CNN CONGRESSIONAL CORRESPONDENT: Well, right now, we have the chairman of the House Government Reform and Oversight Committee Dan Burton and his lawyers asking each other: Now what do we do?

They really don't know what their legal options are in responding to the request to subpoena the young man in an effort from the people who want to keep him in this country to keep him in the country long enough for legislation to be introduced, which would grant him either private citizenship or permanent residence status.

So right now there's a question about whether there would be any impact if a subpoena was issued. They have confirmed that, in fact, the request came from some Miami-area Republican members of Congress, Senator Connie Mack, who is also a Republican from Florida, is coordinating an effort to come up with the legislation called private legislation for an immigration matter, in this case, of course, the one that is so prominent.

But right now, Congressman Burton is turning away requests for interviews because quite plain and simply they don't know how to respond to this.

COSSACK: Bob, is part of their consideration that they actually are thinking about issuing a subpoena for this 6-year-old boy in the sense of having him come testify?

FRANKEN: Well, that would at least be the theory that he would be under subpoena, called to testify, whether he actually came or not would be another matter. They are really trying to stretch this out until the 24, when Congress comes back, and the legislation could be dealt with about making him a citizen.

Now comes the question, even if that legislation passed, and that's not a sure thing, but even if that legislation passed, would that effect any decision to send him back to Cuba?

So a lot of this is very much up in the air. Every time somebody asks a question, the answer is: Well, we really don't know yet.

COSSACK: All right, let's take a break. Up next: The legal course for fighting for those fighting for custody of Elian Gonzalez in the United States. And the effects of the Justice Department's denial to become involved in this case. Stay with us.


Despite fear and hype for New Year's terrorism, the FBI says it did not open any more investigations of computer crime and physical threats or violence last week, than during a normal seven-day period.



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 you 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.


RAMON SAUL SANCHEZ, DEMOCRACY MOVEMENT: What we are asking for is for the president of the United States to allow Elian to have his day in court. If even the worst criminal gets a chance to be in court, why not this innocent boy whose mother lost her life to see him free. We do not understand why the president has refused to allow this very American concept of a person having his day in court.


COSSACK: Attorney General Janet Reno said yesterday that she stands behind the decision of the INS regarding six-year-old Elian Gonzalez. So, in which court of law should U.S. relatives of the boy turn?

Paul, I want to start with you as a former director of the INS. What -- has he -- has this young boy been denied his day in court? That seems to be the main claim of those opposing the decision.

PAUL VIRTUE, FORMER GENERAL COUNSEL, INS: No, he really hasn't. The decision by the INS was a very limited one, that is, who speaks for Elian. And the -- the considerations they -- the issues they considered were who was in the best position to do that. And their determination as that the father was. And the question that INS was asking for an answer on was, will the son withdraw his application for admission to the United States, which is a matter of law, he's considered an applicant for admission, or should the INS parole him in the United States. The INS considered the father to speaking for this young boy and made a determination consistent with his wishes. It's not an unusual circumstance for the INS to be in.

COSSACK: But what about the notion that there wasn't a court hearing, that there wasn't testimony that we traditionally associate with the American judicial system?

VIRTUE: Ordinarily, there wouldn't be a court hearing in this type of a case. The INS has to make a determination will they permit Elian or somebody speaking in his behalf to withdraw his application for admission to the United States, or are they going to parole him into the United States to reside here for a year with extensions beyond that, and...

COSSACK: And this is done all without testimony being taken?

VIRTUE: And it's done -- it's done routinely. It's not unusual for INS to find itself with the custody of an unaccompanied minor. It happens on the southern border all the time.

COSSACK: George, your arguments are that there should have been a court hearing, well, at least one of your arguments are. How do you respond to this?

GEORGE FOWLER, CUBAN AMERICAN NATL. FDN.: Absolutely. There should have been a court hearing. The idea that this little boy's father has been able to tell the truth about what he really feels is false. This is a decision by the Clinton administration, this is not a decision by the immigration service. I believe that the concept of reproachment with Cuba is what Bill Clinton wants. I don't believe that this has been a case where due process has been accorded.

The question is who speaks for Elian? Well, right now it appear that Fidel Castro is the one who speaks for Elian, because we have not heard the father speak to us in a free country.

COSSACK: But George, Paul says that this is the traditional way that INS goes about making these decisions...

FOWLER: Please...

COSSACK: ... there's nothing new here...

FOWLER: Oh, please...

COSSACK: ... this is what they have to do.

FOWLER: Please! There is nothing traditional about flying to a dictatorship country to interview the father. This is an entirely unorthodox case, this is a political case, this is the decision made by the Clinton administration, and this -- the proper way to handle this thing is to bring the father to the United States with his entire family, because Castro threatened families, Castro kills families, so -- and then we can hear the father tell the truth. We have already heard from the -- the Elian's family in Miami that the father wanted to come here to the United States himself.

COSSACK: All right, let me just interrupt you a second. Paul, is -- you heard what George said in terms of what the procedure should have been. Is this what the INS should have done?

VIRTUE: I just disrespectfully disagree. I think if you strip away the politics from the situation, you strip away the emotions, it's no different than having a Central American child show up on the southern border, the family back home is contacted, their wishes are determined and actions are taken consistent with that. It's no different than that situation.

COSSACK: But what about the argument that the mother, that I've heard, that his mother died while trying to bringing him to this country and shouldn't her wishes be respected?

VIRTUE: Well, that is certainly the case, and that has certainly created some emotions here. But unfortunately, and it's very unfortunate, the mother did in fact die, and she didn't leave a -- instructions for what to do with Elian, and so we have to look to people who can speak on his behalf, and I think that's what the INS has tried to do.

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

Is this a political battle or a legal battle. More on this when we return. Stay with us.



Q: Florida's legislature has approved a bill allowing death row inmates to choose lethal injection instead of electrocution. Gov. Jeb Bush is expected to sign it. How many of the 38 states with capital punishment require electrocution?

A: Four states require electrocution: Florida, Georgia, Alabama and Nebraska.



COSSACK: We're back talking about 6-year-old -- young 6-year-old Elian Gonzalez.

Dan, some would argue that this is really a political battle and really has very little to do with the welfare of this young boy, but really is so that others can benefit politically. Your views on that?

DAN STEIN, EXEC. DIR., FEDERATION FOR AMERICAN IMMIGRATION REFORM: There's no question about the fact that the boy's interests are no longer being considered by any of the primary players in this. Now we see the presidential candidates getting involved. Republican presidential candidates are trying to make an issue out of this, gain, obviously, the votes of the Cuban community in Miami in November.

Clinton administration has made the right decision because the Constitution gives the executive branch a very high degree of discretion in deciding these issues. As in foreign affairs and trade, certainly on immigration matters in a case like this, the INS and the attorney general have almost exclusive authority to determine a custody issue for a child who is legally at the port of entry. Al Gore being put in the very difficult position during this campaign of having to try and thread the needle and not be burned by the prospect of losing South Florida, effectively, over the politics over this child.

If the father really believed that the child was going to be in some serious injury or death as a result of being returned to Cuba, I believe the father would sacrifice himself to protect the interest of the son and come out and tell the truth, if in fact he were being coerced. But we cannot take -- we cannot go down to Cuba and essentially kidnap the father, make him come to Florida if he doesn't want to. And we can't have Congress stripping a father of custody of his own child through what would effectively be a bill of attainder.

So, in the end, Congress ought to back off and let the process work the way it should constitutionally.

COSSACK: All right, I want to give George a chance to respond to that.

George, go ahead.

FOWLER: I don't think there's been any process that's worked in this case. This is a political decision made by the Clinton administration. The flight from Havana to Miami is a very short flight. If the father wanted to come here to speak for his son, he could do that, except Fidel Castro will not let him come, and that's the problem.

We're not speaking to the father, we're not hearing the father, we're hearing Fidel Castro who has the father by the neck. Every time we -- I've seen the father, he seems very perturbed and very scared because Fidel knows -- those people that work for Fidel are surrounding him. So he has not been able to tell the truth. We are now hearing from the people in Miami that the father knew and wanted the child to come to the United States, to the land of the free and the home of the brave. Why would he want his son to be...

COSSACK: George, what reason is there to believe that the father in Cuba, when he says he wants his son back home with him, is not telling the truth?

FOWLER: Because he already told the family members in Miami that he expected his son to go over there, that they knew that the father knew that...

COSSACK: Well, let's assume that he did say that and let's assume that he's now changed his mind, that he wants his son back home with him. I mean, what reason do we have to disbelieve that?

FOWLER: Just watch the television and CNN. You see Fidel Castro towering over him every time the man is about to speak on the subject. He's surrounded by Castro, he's surrounded by protesters organized by Castro to parade in front of CNN. For goodness sakes, the concept of duress is not unknown to us in the legal profession. That is a witness who is under duress. Bring him here to a free country and let him speak freely with his entire family and then we'll know the truth.

COSSACK: Paul, is there any process that the INS could do that even if they wanted to?

VIRTUE: Well, they could certainly permit the father to come to the United States and be with the child, to reunite and make a determination, you know, independent of being in Cuba. They could certainly permit the father to come to the United States.

STEIN: Even if the child is given U.S. citizenship by the United States Congress, the father could still come and take the child home. Congress cannot prevent the father from coming here voluntarily and taking the child, regardless of whatever immigration benefits the Congress were to provide through a private bill.

COSSACK: All right, I'm afraid that's all the time we have for today. Thanks to our guests, and thank you for watching.

Today on "TALKBACK LIVE," your chance to weigh in: Should Atlanta Braves Pitcher John Rocker undergo psychological testing? That's at 3:00 p.m. Eastern time, noon Pacific.

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


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