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Burden of Proof

Elian Gonzalez Case: Reno Calls it an Immigration Issue, but Cuban Exiles in Miami Fight to Keep 6-Year-Old in the U.S.

Aired January 13, 2000 - 12:30 p.m. ET



JANET RENO, ATTORNEY GENERAL: I think the process that was used by INS is a fair, good process. We are just trying to make sure that people understand that what is at issue is a father who wants his son home, and grandparents who want their grandson's -- grandson home. And these are bonds that should be honored.

JOSE GARCIA-PEDROSA, GONZALEZ FAMILY ATTORNEY: We're not going to turn over the boy. The boy's under federal subpoena by the Congress, he's under a court order in a state court, which is a valid order saying that he's not to be removed. If the attorney general wants to challenge that order, she should come here and do so. That's the legal way.


ROGER COSSACK, HOST: Today on BURDEN OF PROOF: The future of the 6-year-old Cuban child. The attorney general calls it an immigration issue for the federal government, but Cuban exiles in Miami are fighting to keep Elian Gonzalez in the United States.

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

COSSACK: Hello and welcome to BURDEN TO PROOF. Greta is off today.

The lines are being drawn in the case of Elian Gonzalez. Attorney General Janet Reno says a court ruling in Florida earlier this week has no bearing on the case. Reno defines the issue as an immigration case and not a custody battle.


QUESTION: Would the family need to cooperate -- wouldn't they need to cooperate and actually turn over the boy? And if they don't do that, is there any contingency plan for enforcement?

RENO: What should be done here with the little 6-year-old boy is that people let the law take its course and then appropriately work together to see that what the law determines is right is done.

QUESTION: But what if the family stands in the way of that? What is the government willing to do?

RENO: We don't do "what ifs," we assume, or at least I assume, everybody's better nature and everybody's desire to comply with the terms of the law.


COSSACK: And joining us today from Miami is Roger Bernstein, an attorney representing the Gonzalez family in the United States; from Charlottesville, Virginia, former general counsel of the INS David Martin; and here in Washington, Matt Silverman (ph), constitutional law professor Viet Dinh, and executive director for the Federation of American Immigration Reform, Dan Stein. And in the back, Stephen Thomas (ph), Barbara Zimmerman (ph) and Brian Jones (ph).

Roger, let's go right to you. It is said that you are going to go to federal court to settle this matter. What is the -- why is your side going to federal court, and what do you expect to accomplish?

ROGER BERNSTEIN, GONZALEZ FAMILY ATTORNEY: Well, let's start from the very beginning. We filed on December 10 an application for asylum for young Elian, and the attorney general had a choice: She could schedule the asylum interview and properly notice the -- Elian's father and the family in Cuba and have them have an opportunity to be at the hearing, or she could take the course which she did, which is to deprive Elian of the right to counsel, deprive him of that hearing and really railroad Elian back to Cuba without any due process.

COSSACK: But, Roger, who -- when you filed for asylum for young Elian, who was the person that spoke on his behalf?

BERNSTEIN: INS gave custody to Elian's great uncle, and we filed applications on Elian's behalf from the great uncle, and we also filed an asylum claim from Elian individually. And the question here is: Can a 6-year-old child claim asylum? And the INS guidelines clearly provide that a 6-year-old child can. They look -- if a person isn't of sufficient mental capacity to articulate his claim, you look to objective evidence.

The attorney general has recognized that in her letter, and he has a constitutional right to apply. We should not unilaterally look to the father for this decision. The child has rights and we seek to protect those rights in the proper forum, which is an asylum hearing.

COSSACK: Roger, in light of the fact that the INS has decided that the proper individual to speak for Elian is his father, how can you go ahead into court and not use his father as someone to speak for him -- or as the proper person to speak for him?

BERNSTEIN: Right. Good question. The INS has rules and regulations that they have to comply with, and any time that the INS doesn't comply with their own rules and regulations, you can go to federal court on a mandamus action and challenge the constitutionality of their actions and challenge their violation of their own regulations, and that's what I...

COSSACK: And let me...

BERNSTEIN: Go ahead.

COSSACK: I was going to say, let me just say for our viewers that at mandamus action is when you go to court and you ask the court to do something to force, in this case, the INS, Roger, would say, to follow its own rules.

But let's go to David Martin.

David, is Roger right? Has the INS not followed its rules?

DAVID MARTIN, FORMER GENERAL COUNSEL, INS: No, he's not right. The INS is following the procedures that apply in this case. It's an unusual sort of case, doesn't arise very often, but the main step to be taken is to find out whether there are parents of an unaccompanied child who are in a position to speak for him, and then to look and see if there's any reason why the natural parent shouldn't be in a position to speak. They did that; they did that through a very careful process; they offered an opportunity for the Miami relatives to be heard in that process, and they were heard.

BERNSTEIN: Absolutely not true, absolutely not true.

MARTIN; Well, there was...

COSSACK: Roger, let me ask you to let David finish, and then we're going to go back and let you respond. Go ahead, David.

BERNSTEIN: OK; sorry, David.

MARTIN: There was an input on that; there was sufficient input to try to determine whether there was any further reason to allow more of a hearing there, but basic due process requirements are noticed in an opportunity to be heard. It doesn't require elaborate proceedings on that, particularly when the determination results in a finding that there's a natural father. He's a fit father, he's quite a caring father -- I don't think anybody has objected to that -- and he gets to speak for the child. That was in accordance with the procedures, and the attorney general reemphasized that in her letter.

COSSACK: Roger, you know, INS regulations may not give us as much due process as a courtroom would and may not give as much due process as we lawyers would like, but those are the regulations. You know, how do you get around that?

BERNSTEIN: Right, the regulations are very specific. If someone -- if an alien wishes to apply -- withdraw his application for admission, it must be done voluntarily. There's a number of other provisions that were violated, and we will bring this up in our federal court action. I'm not going to play my entire hand here on national television, but I will say that, in this case, the underlying premise of INS's actions is that Elian's father is able to speak freely, and this ignores the political realities of Cuba.

When an asylum seeker files a petition, the normal course is to notice -- and there's an adverse action against a parental right -- the normal course of action is to notice that person and have him submit himself to the jurisdiction of the court, not to unilaterally make a decision on the child's behalf, totally ignoring his rights. The INS has never, never interviewed Elian. He is a child who can -- who has the ability to speak and to be heard, and all we're asking for is a venue to be heard. It is an entirely reasonable request.

And, as a matter of fact, the state court, after listening to our evidence, made a preliminary finding that he is entitled to due process, that someone should speak on his behalf...

COSSACK: Roger, let me just interrupt you just one second. You know, I've heard this accusation several times from your side that the father is a puppet of Castro. But what evidence can you present that would indicate that a father saying, I would like -- I want my son back -- I mean, what part of, I want my son back, don't you believe it?

BERNSTEIN: Hey, we don't want to prevent the father from being with his son. That's the furthest thing from our minds. We want the family to be reunited. We just want him to have a fair opportunity to express his views. I mean, let's be serious: He can't say in Cuba -- the father cannot say in Cuba: I want my boy to live in freedom. He can't say that. If he did, he'd be thrown in jail, he'd be stoned. There's no -- the State Department has issued country-conditions reports on Cuba, and they recognize that freedom of speech is not doable in Cuba. How can they, then, say that he is capable of speaking freely?

COSSACK: Well, Roger...

BERNSTEIN: It's a very logical argument that INS is ignoring. There is also an inherent conflict when a person applies for asylum to go back to the country from which his mother and he fled and conduct an investigation and say there's no conflict of interest.

COSSACK: All right, Roger, let me ask you this: Let's suppose -- let me just ask. Suppose that you go to court and the court goes against you, and you fulfill all your obligations and now it's time for the INS, and the INS has said that you should cooperate and return the young boy to Cuba. Will your side cooperate, and will you cooperate to return the boy to Cuba if, in fact, you go through all the due process you asked and you do not succeed?

BERNSTEIN: Absolutely. We're going to work within the confines of the law. I'm sure our clients have every respect for the law. We just want a fair hearing. It's a simple request.

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

Attorney General Janet Reno reiterated her belief that Juan Gonzalez should be reunited with his son. But how will the federal government enforce the reunion? Stay with us.

(BEGIN VIDEO CLIP) QUESTION: Can you give us a sense of timing in terms of when you would like to see this resolved, particularly because the boy is going to school, he's making friends, he has a dog, a puppy, he's got relatives? Is there some concern about the psychological...

RENO: Now, what does the dog and the puppy have to do with it?

QUESTION: In the sense of, you know, feeling at home in Miami. Is there some sense that there could be trauma to the child?

RENO: Whatever happens with respect to the little boy, it should be done soon so that he can get on with his life with the puppy.



On this day in 1992, Jeffrey Dahmer pleaded guilty but insane to the 17 murders he confessed to committing over a 13-year period. A jury found him sane and guilty for 15 murders, and he was sentenced to 15 consecutive life sentences. He was killed in prison.



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. And if you miss that live show, the program is available on the site at any time via Video On-Demand.

Well, what you will be seeing soon is a live shot from the -- from a court from Pontiac, Michigan, of Attorney Geoffrey Fieger arguing on behalf of Nathaniel Abraham. There's Geoffrey right -- Geoffrey Fieger right now. He is arguing the sentence of young Nathaniel Abraham, who is 13-years-old now, was 11 at the time of the act, who was convicted of a jury of second-degree murder.

The issue is, today, of course, what sentence should he receive. Mr. Fieger, I believe, is arguing for probation. the prosecution has argued for a blended sentence in which young Nathaniel Abraham would spend from 13 to 21 in a juvenile detention and then the court will decide whether or not he deserves further incarceration.

But let's go back now to David Martin.

David, I want to pick up where we left off last time regarding the processes of the INS and the issues as opposed to the state court. Now, we have the state court finding in which a judge has issued a temporary restraining order, in effect keeping the young boy here in this country. How does that work with the federal INS hearing?

MARTIN: Well, Attorney General Reno's letter made it clear that that is not binding on the Justice Department. I think that was a very carefully-constructed and shrewd letter indicating that the state court proceedings had no force or effect on the immigration decisions, but she did it in a way that made it clear she was not objecting to some sort of judicial process here. She said the Justice Department is prepared to meet these issues, these claims in federal court, and so she's not certainly trying to insist on just a pure administrative decision in this area.

If I could say one thing about what Roger said before -- before the break.

COSSACK: Yes, go ahead.

MARTIN: INS did pay attention to the claim that the father could not speak his mind or was not really expressing his true wishes. They even went back for a second interview with the father, arranged it in a neutral site, in the home of a U.N. official, away from government officials, and went through these issues very carefully and decided that he was expressing his true wishes and that he, therefore, should be seen to be speaking for Elian. This kind of decision is not a referendum on human rights in Cuba. Clearly, Cuba is a serious human rights violator, but I think it would be a very dangerous doctrine to say that fathers lose their rights over their young children at a time when the mother has died until such time as free speech comes back to Cuba. That simply can't be the doctrine.

COSSACK: Viet, let's talk about this conflict a little bit between the state court of Florida and the federal INS -- what the INS has done. It's clear that in these kinds of issues where there's state-federal conflict, federal usually wins. But you yourself have had a kind of a personal experience in this, and I'd like you to weigh in on that and talk about the federal-state conflict.

VIET DINH, CONSTITUTIONAL LAW PROFESSOR: Right. Before I start on the constitutional analysis, I have to admit to a bias in this case, because I was not much older than Elian right now; I was 10 years old when we crossed the seas in order to seek freedom here in America, and thank God that life turned out better for our family than it has for Elian and his family. And so my heart goes to him, my heart goes to -- also to his father.

But this is a case that is very hard. and I agree with David only to the extent that he said that Attorney General Reno's letter was very shrewdly crafted. It was very shrewdly crafted. It also happens to be contradictory on a number of grounds with the Justice Department's earlier statements in this case and the Justice Department's early positions in other related cases with respect to international law, federal law and state law. Most significantly, the Breard case, last year, with respects to the execution of a Paraguayan national allegedly in violation of international treaty norms, the Justice Department argued to the Supreme Court that the federal government does not have any power in order to intervene in those state court action.

In this case, prior to the current onslaught of litigation, INS officials said to Elian's family that custody matters belong in state court and they do not have the jurisdiction in order to decide whether Elian should have custody with the relatives here in this country. Now they have taken a reverse position, saying that state court custody proceedings do not matter at all with respect to the INS proceedings.

It seems to me this, like many big cases, is a matter of characterization: Who has custody determines who speaks for him in the INS federal law arena. In that case, it seems to me that the state law question is anterior, is -- has to be answered earlier than the federal law question as to who speaks for Elian.

COSSACK: All right, let's take a break. Is this a custody case, because if it is, one can argue that the Florida courts should have jurisdiction? But is it an immigration case and then the federal courts will have jurisdiction. We'll discuss that when we come back.

Stay with us.


Q: Why have the parents of former British au pair Louise Woodward been ordered to stand trial in Massachusetts?

A: They were charged with defrauding their daughter's defense fund and have pleaded innocent. The Woodwards' trial date is February 14.



COSSACK: The case of Elian Gonzalez continues to pit Cuban exiles against the Justice Department. This morning in Washington, Attorney General Janet Reno was clear in her position: A 6-year-old boy is too young to speak for himself.

Well, Dan, there is a conflict among experts. Is this a custody case, is it an immigration case, your description?

DAN STEIN, EXEC. DIR., FEDERATION FOR AMERICAN IMMIGRATION REFORM: Well, it's an immigration case with some family law considerations, which were already dealt with properly, in our view, by the Immigration Service.

Roger, we're talking about a 6-year-old boy who has a natural father in another country, where we do have routine charter flights and to which we have repatriated thousands of Cubans without incident over the years.

Are you telling me that this father is never going to have a chance to eat a hot dog, take his kid to a baseball game, throw him a football because of this geopolitical battle we have got going on here? The federal issues raised here, to the extent there are federal issues, can be resolved very quickly in federal court. The INS did follow its procedures correctly. They made a proper determination, they identified the father, perhaps they shouldn't have even released Elian into custody of his relatives here. But they are and should issue a determination to take the child back into custody and arrange for his return to Havana very quickly because we are creating all kinds of precedents, not only are we telling Haitian that you get sent back, but if you are Cuban you get special treatment, we are also sending a signal. Suppose my ex-wife took my own son or daughter to another country, to Iraq, and said: Well, she died, but you are going to have to go fight for the right to your own kid in some ayatollah-controlled court. That is the kind of precedent we are establishing here. This child belongs with his father.

COSSACK: David, there has been some criticism of the INS because of what is perceived as inconsistencies in treatment of different groups; is that a valid criticism?

MARTIN: Well, the statutes themselves are different, as between Cuba and every other country. I mean, that was one thing that was clear to me, immigration rules have a special spin on them when they are applied to Cubans, partly because of the political situation. That is unfortunate. And I hope some day we will get back to a more unified situation.

But I think there's been consistency here, I think this has been dealt with in the appropriate way, and looking at the father's rights. And with regard to family law, sometimes INS does defer to family law determinations, but only when there is a really complicated issue, if there is a custody fight between two parents, if there is an issue about a need for wardship of a child whose parents can't be identified. That's the kind of situation in which there may be some referral to state court, but that's with the consent of the Justice Department after making a preliminary federal decision. That didn't happen here. That gives rise to some murkiness here, but it is just because it is, in fact, a complicated issue.

STEIN: But there is no constitutional legal issue involved at all.

COSSACK: Viet, I want to give you a chance to respond on that particular point.

DINH: I agree with David that the interplay between family law and federal immigration law is very complicated here. If that is the case, and in some cases the federal law does defer, as David acknowledged. If that's the case, then what is the harm of waiting for the state court processes to finish? It may turn out, if the case is that easy, that custody is awarded to the father, in which case there is no state or federal law conflict.

COSSACK: Doesn't that set a precedent that shouldn't be of saying that, in this particular case, we're going to let a state court decide something that is traditional federal?

DINH: No, the Supreme Court has decided a number of years ago case called Younger v. Harris, in which it says that federal courts have the discretion to abstain federal proceedings in order for state court proceedings that are ancillary and related to finish. It seems to me, that may be the perfect resolution in this case.

STEIN: The state court cannot tell the federal Immigration Service: You got to give this kid a green card. That state court cannot bind the federal Immigration Service to order that that child had to stay. So the relative meaning -- the legal meaning of the order is: State court order is zip.

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

Last month, Columbine High School was forced to close early for the holiday vacation because of threats received over the Internet. Tomorrow, I'll talk to the lawyer defending the suspect in this case, as well as prosecutors. Join us then for another edition of BURDEN OF PROOF. We'll see you then.


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