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Burden of Proof

Florida State Court Steps in to Prevent Reunion of Elian Gonzalez with his Father

Aired January 11, 2000 - 12:30 p.m. ET



JUDGE ROSA RODRIGUEZ, MIAMI-DADE CIRCUIT COURT: The minor child, Elian Gonzalez, shall not be removed from this jurisdiction pending a full hearing on the verified petition for temporary custody and other relief. In furtherance of this court's exercise of an emergency authority, and in order to effectuate the requirements of this court's order, petitioner is granted such limited legal authority as is necessary to preserve the status quo and prevent the child's removal from this jurisdiction.

SPENCER EIG, GONZALEZ FAMILY ATTORNEY: Today is a great day for Elian Gonzalez, and a great day for the Constitution of the United States. Today's order by the court which granted emergency, temporary custody to Lazaro Gonzalez and the Gonzalez family, a family which has taken very good care of Elian here, will permit Elian Gonzalez his day in court.

IRA KURZBAN, IMMIGRATION ATTORNEY: The attorney general has the authority to step forward and say that they have no right, or what we call no jurisdiction, to hear the matter.


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: A Florida state court steps in to prevent the reunion of a Cuban son with his father.

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

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

Yesterday in Miami, a Miami-Dade County judge granted emergency custody of 6-year-old Elian Gonzalez to his great uncle in America. The ruling prevents this Friday's scheduled reunion between the boy and his Cuban father. In the wake of Monday's court action, immigration officials say they have no plans to forcibly remove Elian from the home of his Miami relatives. Judge Rosa Rodriguez said those relatives showed that Elian would face, quote, "imminent and irreparable harm," unquote, if he were returned to his native land.


EIG: Now, under the laws of the United States, not under the laws of Cuba, Elian Gonzalez has a spokesman, someone to speak for him: Lazaro Gonzalez. This will enable the U.S. Department of Justice to determine in a fair and open process whether or not Elian Gonzalez is entitled to political asylum and the privileges of a refugee here in the United States.


COSSACK: And joining us today from Miami is Republican Congresswoman Ileana Ros-Lehtinen; in New Orleans, attorney for the Cuban American National Foundation, George Fowler; here in Washington, Clio Berney (ph); former general counsel to the INS, Paul Virtue; executive director of the Federation for American Immigration Reform, Dan Stein. And in the back, Steve McClure (ph), Marlene Crooks (ph) and Scott Barry (ph).

George, there was a -- the Florida court yesterday decided that there was enough of an emergency put forward by the petitioner that a temporary order should be put in place keeping the young boy here. Tell us about that court decision.

GEORGE FOWLER, CUBAN AMERICAN NATL. FOUNDATION: That's a perfectly correct decision. I don't understand why there's such confusion. Our Constitution set forth that certain matters, such as international law, maritime law, are ruled by the federal courts. But others matters, such as divorce and custody, are reserved to the state courts. So, yesterday, a state court decided to act upon the custody issue, which they have jurisdiction over.

The Immigration Service allowed the boy to come into the country, into Florida State. And, therefore, the Florida state court has the right to decide that issue, the issue of custody. Thereafter, the Immigration Service will have to address the issue of whether or not Elian is entitled to political asylum as we believe he's entitled to, and for an opportunity to live like the rest of our children, in freedom and in good health here.

COSSACK: All right, Congresswoman, what steps do you -- are you going to take and what step do you believe Congress should take?

REP. ILEANA ROS-LEHTINEN (R), FLORIDA: Well, I think that we're doing everything that we can through the three branches of government, executive, judicial and legislative, to try to give the legal protection for Elian so that his day can be heard in court, so that the family here in the United States is able to present their side. And we invite Elian's father and his family to come here and present their case as well. And we hope that the ruling will be in the judicial hands on the basis of what is in the best interests of the child.

In the legislative branch, I will be helping to file a bill to grant U.S. citizenship to Elian. I'll be presenting that bill along with many colleagues in the House, and we hope that that will give the legal protection that Elian needs so that all of these cases can be decided in their proper venue.

Certainly, Elian has become a celebrated case, but when all is said and done, we're dealing with a 6-year-old and what is in the best interest of the child. So we hope the executive branch reconsiders their position and they do not intervene in this matter and they let the process take its proper course.

COSSACK: Congresswoman, many, many people come from Cuba to the United States. And have you, in the past, ever acted on a special bill to grant citizenship for just one individual like what is -- you're attempting to do for this young boy?

ROS-LEHTINEN: Well, it certainly is an unusual circumstance. And, as you can see, this case has garnered a lot of attention and a lot of international attention because it deals not just with a 6- year-old child -- and most importantly, that should always be foremost in our minds -- but there are sort of many other complications. We like to go back to the basics. And what we have seen is that there's a hungry executive branch eager, seemingly, to deport him and not let the matters take its proper course. That's why we are taking this unusual course by filing a -- what is called a private bill.

They are very difficult bills to pass. They first have to go through the Judiciary Committee, then to the House and the Senate. Trent Lott and Connie Mack will be presenting it on the Senate side. So it is an unusual circumstance, and quite often we don't see those.

COSSACK: Can I just interrupt -- let me just interrupt you for one second...


COSSACK: ... and, perhaps, if I could draw you out on why you believe this is such an unusual circumstance. This, after all, is a young boy that does have father in Cuba; he has a relatives here. This, perhaps, is not unlike many Cubans who come to this country, and yet I don't understand -- I don't see why anybody -- or in the past, why no one has filed a special bill on their behalf.

ROS-LEHTINEN: Well, unless you are a criminal, here in the United States, no one has been deported to Cuba except for criminals. Unfortunately, we have an executive in the White House, wants to treat Elian as if he were a common criminal. He is the only boy who would be deported in this way. He is already here on land. To take the extraordinary steps to deport him is what makes this a special case.

Were it any other case, I think that it would be fine for Elian to stay, and we would not see this eagerness of the executive branch to deport him. In the past, the only people who have been deported are criminals. To treat Elian like a criminal is the White House making this an unusual case, and I think that that's why we've had these unusual circumstances taking place.

COSSACK: All right, let me just interrupt you for one...

ROS-LEHTINEN: If it were anyone else in the White House, perhaps he wouldn't be thinking about being deported.

COSSACK: All right, Congresswoman, let me interrupt you for just one second.

Paul Virtue, is that exactly what the Immigration has done, is treat him like a criminal and is deporting him?

PAUL VIRTUE, FORMER GENERAL COUNSEL, INS: I think we have to put this into context. We have to remember that what is happening -- the Immigration Service decision was wholly outside of a deportation context. The INS has decided that the child has a -- is voluntarily deciding to return to Cuba, and so he's effectively withdrawing an application for admission. And the way they decided that was to honor the wishes of the father. So this is outside of the deportation context.

COSSACK: All right, let's take a break. Up next, yesterday's ruling was heralded in Miami as a popular court decision, but was it legal? We'll have more on the case of Elian Gonzalez when we come back.


Scott Falater, who never denied killing his wife but said instead that he had been sleepwalking when he stabbed her 44 times and held her head under water, was sentenced to life in prison without parole.



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.


REP. DAN BURTON (R-IN), GOVERNMENT REFORM CHAIRMAN: I'm happy that the courts agreed to hear the case. It makes it clear that the boy is not going to be immediately sent back to Cuba, and I think that's good. All of the issues ought to be aired completely in the court, and they should make a decision on what's best for the boy.


COSSACK: Congressman Dan Burton says his subpoena of Elian Gonzalez remains in effect, but with Florida courts becoming involved in the case of this six-year-old congressional -- of this six-year-old boy, congressional involvement is probably a moot cause.

Dan, the notion of issuing a subpoena for a six-year-old boy from a congressional committee I find rather troubling. After all, a -- you know, a subpoena is an official court document, it's an official court process, and the notion that you're going to order this six- year-old boy to come testify when in fact everybody knew that you weren't is something that I find, you know, a bit troublesome.

DAN STEIN, EXEC. DIR., FEDERATION FOR AMERICAN IMMIGRATION REFORM: Well, I do, too. I mean, the purpose of the congressional subpoena power is to aid Congress's investigative power, to actually take testimony in furtherance of its legislative goals, not to try to trump the INS' decision that a father can control the whereabouts and custody of his own son. In this case, it's possible that if the father had legal representation in this country, and goodness knows he needs legal representation now in this country, that subpoena could be quashed.

Beyond that, of course, the family court decision cannot bind the federal immigration service on the question of whether the child stays in this country. The father could come to the country still under INS law, under federal authority, and take the child away. And the very notion that a family court in Florida could overrule federal immigration decisions on whether the child stays in this country or not is simply ludicrous. But, you know, if the immigration service decides it's not going to enforce the law and just going to let the child stay for as long as he wants, then Elian's father may as well kiss his child good-bye; he'll never see him again, and that looks like what may be going on here, and it may well be that the father will never see his son again.

COSSACK: Congresswoman, the argument is made, and I'm sure you've heard it, that in fact this seems to be a stacked deck. I mean, you have the father, who everybody agrees is the young boy's father, living in Cuba, and yet possession, I suppose, being nine- tenths of the law, he's here and dealing in American courts. Is this -- is this a fair process?

ROS-LEHTINEN: Well, you've got to get back to what happened in this case. The parents are divorced, the mother brought Elian over to life here in the United States, to freedom and democracy. It was her last, dying wish to get her son living a life where he can breathe free.

And I think that perhaps many of your viewers don't understand what life is like under communist Cuba, and they think, well, how irresponsible of this mother to take such a brash action, yet it takes place on our shores all the time where people risk what little they have, their lives, to come and reach these shores. As a Cuban refugee myself, whose parents, I know, underwent some very critical decisions about whether we should leave our homeland and come here, you've got to understand what life is like for Elian in Cuba, what life could be like for him here.

And yes, we're -- no one is saying here that he should be separated from his father. We welcome the father to come and partake in this country of laws, where he can come and he can testify and the judge can decide on the basis of what is in the best interest of Elian. And the family here does not want to take him away.

COSSACK: Let me play -- let me be the father for a just second, Congresswoman. Let me be the father for just a second, and let me respond to you by this way: Why should I have to come to a country not my own when my child was taken away from me without my approval and taken to another country that I don't approve of, right or wrong. And let me -- how do you answer that argument.

ROS-LEHTINEN: Because -- well, because this is a custody battle. The parents are divorced, that's a sad situation. The mother died trying to bring Elian to freedom, that's a sat situation. When there's a divorce and when one of the -- one of the parents is no longer alive, very often the remaining family members file for custody. They believe that they could offer more, they believe that there could be a better life, they want what is best for that child. This is not a rare case for custody battles where the parents are divorced and one of the remaining parents wants the child but yet another family wants the child as well.

Let's let the process take its place. We have a wonderful program here in the United States, the guardian ad litem process, where the person will speak not on behalf of the father, not on behalf of this family but on behalf of the child, and they will take the best interest of Elian at heart. And that's what the process that we want to happen here in our state courts: a guardian ad litem program where they can present their evidence and let the judge in an unbiased manner decide what is in the best interest of Elian.

COSSACK: George Fowler, do you have any proof that Elian's father is a bad father?

FOWLER: Absolutely not. What we have proof of is that Elian wanted his son to come to the United States before Castro put his hand around his neck and threatened him and his family in Cuba. We have proof that the father himself said he wanted to come to the United States. For goodness sakes, most parents in Cuba want their child to live in freedom and in a land of opportunity, not in Cuba.

So, we have the mother, who risked her life and gave it to bring the child to the United States, wants her child here. She may be in heaven but she wants her child here. We've heard from Elian, who has said repeatedly he wants to stay in this country, he wants his daddy to come to the United States. We want the father to come to the United States and be here with Elian in the land of the free and the home of the brave, and the last person we need to hear from is the father. He's a 20-minute flight away from Miami to Cuba. He won't take this flight. If he really loved his son and had the freedom to come here, he would have been here months ago. But he hasn't come because...

COSSACK: Let me just interrupt you for one second. Dan, I want a quick response to that.

STEIN: Well, again, as a matter -- look, first of all, this is obviously a battle with the Cuban community in Miami that doesn't believe anybody, under any condition, should ever be sent back to Castro. That's their political agenda. As a matter of family law, obviously, if the -- whether or not the father is coerced, whether or not he's being prevented from coming, as a matter of the common law and our cultural traditions in Western civilization of a thousand years, can you prejudice the rights of the father's custody of own son simply because he's constrained to come to a Florida court to fight for him? I think the answer's no.

COSSACK: All right, let's take a break. When we come back, Juan Miguel Gonzalez says he wants his son back in Cuba. Can a Florida courtroom require him to come to the United States? Stay with us.


Q: Two men in Massachusetts have separate suits in federal court alleging excessive force by police. What is the specific complaint the suits have in common?

A: Both men were bitten by a police dog named "Shadow."



COSSACK: Yesterday in Miami, Cuban exiles called a court ruling affecting 6-year-old Elian Gonzalez a victory for the U.S. Constitution, but the Cuban government condemned the court's decision.

Congresswomen, there is an argument that is made that goes like this. that what this really is is not an exercise in law, but an exercise in politics; that what this -- what is going on really reflects the power of the Cuban community and South Florida, who absolutely hates Castro, and therefore has a lot invested in this, and cannot afford to have this child sent back to Castro because he is the "great devil," how can we send him back to Cuba?

ROS-LEHTINEN: Well, there is no doubt that there's a great deal of hatred. And I think, if you were to lose your homeland to communist oppression, and you would have to leave your country, and you would see 11 million people unable to express their opinion, unable to vote in a free election, unable to exercise their rights that perhaps we may take for granted, I think that you would take that sort of personally.

COSSACK: I would take that personally, congresswoman...

ROS-LEHTINEN: But you could say that it is all politics...

COSSACK: ... but the argument is, I suppose, that that really is about politics and not about what's the best interest for the young boy.

ROS-LEHTINEN: It's about freedom, it is about democracy, it is about living in a free country, and that's what we want for Cuba to be, but that's on another subject.

But if you want to talk about law that you say this case is about politics and not law, there was a precedent for this case, a mother who tried to bring her two children to freedom, she rammed a truck, along with other mothers desperate for freedom, through the base -- Guantanamo Base. One of her children was able to make it through the fence, another one stayed behind. That child that made on the base eventually came to the United States. That mother went to jail because any expression is against the law in Cuba.

The father in Cuba petitioned to get his daughter back. And they went in a custody hearing, which should have always taken place with Elian. And what happened in that case: The judge determined that on the best interest of the child, that child should stay in the United States. Because that judge said that the life that that child would face in Cuba, without any opportunity, without any freedom, without any hope, and here in the United States she had forged a new life and new bond and that judge ruled in the favor of her staying in the best interest of her child in the United States. Sometimes it is about politics, sometimes it is about freedom and democracy and the right to free expression.

COSSACK: Congresswoman, let me let Dan Stein respond to that.

STEIN: I respect the congresswoman very much. But what the substantial of her argument is: Nobody, nobody should have to live in Cuba under Castro. Obviously, none of us want to live under Castro in Cuba, But nevertheless, we have a process for bona fide political societies (ph) and refugees. If nobody stays back in Cuba to fight for change and fight for improvement and fight for the future, if everyone who disagrees with Castro winds up living in Miami, I mean, that's what this fight is all about.

And it is a fight against the Clinton administration's interdiction program, been in place since the early '90s that has returned thousands of Cubans interdicted on the high seas without any incident so far as we are aware. And that's really what I think the political agenda here is.

COSSACK: Paul, political asylum, would this young boy be able to apply for political asylum? and what are the criteria?

VIRTUE: Well, the criteria are if a person a fear of persecution on political opinion or membership in a particular social group, race or nationality. The child is -- that is a question that the INS, I think, has had to answer, and they answered it in the negative, that the child was not applying for asylum because the INS is considering the wishes of the father in determining what to do in this circumstance.

I think it's created a problem that this is all outside of a deportation context. The INS has made a discretionary decision to let the child go back.

COSSACK: And in this contest between a state Florida court and a decision, which was a judicial hearings, and a decision by the INS, which is I suppose an administrative hearing, who would have priority?

VIRTUE: Well, it really depends, Roger, on the issue. And if the issue is the immigration law, then the federal agency would have priority. The INS, right now, not withstanding the state court decision, could take Elian back into federal custody. I doubt that they will do that. We don't know what the reaction is going to be. But that would be a possibility.

STEIN; As a matter of law, the child is at the door. The child has never been legally admitted into the United States under immigration law. And therefore, his presence here is totally at the sufferance of the attorney general.

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

Should politicians be getting involved in the case of this 6- year-old child? You'll have your chance to weigh-in on the case of Elian Gonzalez on CNN's "TALKBACK LIVE." That's at 3:00 p.m. Eastern time, noon Pacific.

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


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