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Burden of Proof

Elian Gonzalez Case: Will the Cuban Boy's Fate be Settled in the Courts or on Capitol Hill?

Aired January 26, 2000 - 12:30 p.m. ET



ROBERT WALLACE, INS: The meeting between Elian and his two grandmothers will be a private visit in which they will be able to spend some time alone. Elian's grandmothers are under no expectation that they will be able to leave with the child at this time.

SPENCER EIG, ATTY. FOR GONZALEZ FAMILY IN MIAMI: One fear that the family has today in this today is that these grandmothers, who still have family back in Cuba, are being manipulated by the long arm of Fidel Castro; that they'll be made to have a press conference after this meeting, and claim that Elian said he wants to go back to Cuba. All of this would be very unfortunate and very sad.


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: Two Cuban grandmothers head to Miami for a family reunion. Will the fate of Elian Gonzalez be settled in the courts or on Capitol Hill?

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

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. Roger is off today and I'm in Atlanta.

This afternoon, Elian Gonzalez will meet with his Cuban relatives for the first time since he was rescued by the U.S. Coast Guard last November. Thanks to an order by the Immigration and Naturalization Service, Elian's two grandmothers will head to Miami for a visit at 4:00 p.m. Eastern time. The meeting will take place at the home of the president of a Catholic college.


SISTER JEANNE O'LAUGHLIN, BARRY UNIVERSITY: I hope that somehow he will experience the fact that many people love him, and these two women, grandmothers, do love him, and the family that he's with, that he has a loving environment, so that he can come to grips pretty soon with an ending that's going to hurt one or the other of them.

(END VIDEO CLIP) VAN SUSTEREN: Joining us today from Miami, Eduardo Rasco, who is an attorney for Elian's family in the U.S., and immigration lawyer Ira Kurzban. And in our Washington bureau, we're joined by former INS general counsel Paul Virtue.

Paul, let me go first to you. What is the INS order that has been issued, which has permitted this meeting to occur?

PAUL VIRTUE, FORMER GENERAL COUNSEL, INS: Well, Elian is in the United States by virtue of a parole. And the INS can place any conditions, reasonable conditions on that parole. And so what they have done here is because of the difficulties in the grandmothers meeting with Elian, they have directed that the great uncle bring Elian to a neutral location for this meeting.

VAN SUSTEREN: Paul, what happens if the order is ignored? I mean, what theoretically can the INS -- what can they do?

VIRTUE: Well, it's not clear what they would do, but what they can do is to revoke the parole because this -- attending the meeting is a condition of that parole. They could revoke the parole and take Elian back into custody. That is one possibility.

I don't really see that happening, but certainly the INS has that authority.

VAN SUSTEREN: Eduardo Rasco, you represent the family of Elian, and the family wants him -- the family here in the United States wants him to stay here. What is the status of the proceeding in state court, having to do with guardianship?

EDUARDO RASCO, GONZALEZ FAMILY ATTORNEY: We have, as you are well aware, filed a petition for temporary custody in state court, and the court has granted an interim order allowing a state -- custody to the great uncle, Lazaro Gonzalez.

I'm in the process of obtaining a service of process by publication. We have filed affidavits in court regarding our attempt to have personal service upon Juan Miguel Gonzalez, and at this point we have been unable to personally serve him. And therefore, in accordance with the Florida statute, we are serving him by publication, which is constructive service.

VAN SUSTEREN: Eduardo, is the statute in the state of Florida such that it would give preference to a permanent guardian, one who is closer in relationship to Elian than a great uncle. For instance, would -- does the statute provide that the grandmothers would have a preference over the great uncle?

RASCO: Well, the great uncle is the petitioner, and unless and until someone else would petition for temporary custody, that would not even be before the court. Certainly, the grandmothers are free to do so, as Juan Miguel is free to do so. He has, I believe, the obligation to respond to the state court action, and he should do so, and he, of course, is closer in kin to Elian and the court will, of course consider it. Notwithstanding the determination of who has temporary custody is not by necessity who is the closest relative. But it's an issue which is decided by the court.

VAN SUSTEREN: Eduardo, as a procedural matter, if the grandmothers wanted to sort of step in and try to get permanent custody of their grandchildren. I realize there is a hearing set up for March for permanent custody. But would the grandmother's file, pleading to intervene. Is that the technical way it's done in Florida, to intervene and ask that the court consider them?

RASCO: Yes, that is something that they could do, which we would have absolutely no problem with. We are prepared to have the biological father, Juan Miguel Gonzalez, on the other side, certainly a grandmother on the other side would not be as strong for the father's case as he himself. If we are prepared to meet with the father.

VAN SUSTEREN: Would the great uncle of Elian oppose having one of the grandmothers appointed as a guardian, as the permanent guardian?

RASCO: Well, that depends on whether he's here or there. We believe that it would be detrimental to Elian to return to Cuba, and so, therefore, we would oppose anybody having temporary custody of him while in Cuba. We believe that there will be great harm to Elian if he returns.

VAN SUSTEREN: Ira, as a matter of Florida law, what is your understanding as to who would be the preferred guardian on a permanent basis? Would it be the great uncle, would it be the grandmothers, and what factors does the state court have to look at by law?

IRA KURZBAN, IMMIGRATION ATTORNEY: Well, I think under the United States Constitution, as well as under Florida law, there is no question but that the father has the right to have his child with him absent clear and convincing evidence that the father has engaged in any kind of abuse. And notwithstanding all of the litigation and all of the talk, no one has yet come forward with any evidence that would suggest in any way whatsoever that Juan Miguel Gonzalez is an abusive father. In fact...

VAN SUSTEREN: But set aside the issue, Ira, of the father. The father is not here in the United States. The father is not going to go to court, at least not in the next 24 hours and say: Look, I want my son. We have got a great uncle and we have got two grandmothers in the United States. Under Florida law, how does a court determine who's the appropriate guardian? and does it matter that the grandmothers are closer in relationship to the grandson than a great uncle?

KURZBAN: I think there is a misunderstanding as to whether or not the father has to appear at all. That's not how the statute reads, the statute says, absent evidence that the father is abusive by clear of and convincing evidence, if there is no evidence of that, the child is returned to the father. He doesn't have to appear to have a judge make that finding.

VAN SUSTEREN: But as a technical matter, Ira, it would not be irrational for a judge to say: Look, if the father doesn't even both to come to court, then I am more likely to give the guardianship to the grandmothers who are here or the great uncle. I mean, there is nothing irrational. You may not agree with it. I may not agree with it. But there is nothing wrong with the judge reaching that conclusion; right?

KURZBAN: Well, I think, under these circumstances, they would have to show that the father has abandoned the child and has no interest in the child, and I think that's not the case here.

In terms of the question with respect to who has preference between the grandmother and the petitioner, obviously, the grandparents are closer, although the statute again makes it very clear and the Constitution of the United States makes it very clear that a child in this circumstance gets returned to his father. It's not a technical matter, it's a matter when a child is taken from his father without his consent, and without his knowledge, the Constitution demands that the child be reunited with his parent. It's the only living parent.

VAN SUSTEREN: Paul, does the federal law in this case trump the state custody action?

VIRTUE: I think it really does, Greta. Unless the decision that has been made by the immigration service has changed under immigration law, then the state court process is of no moment. The federal decision would trump in this case because you still have an immigration issue. Now Congress could change that.

VAN SUSTEREN: But what about the fact, Paul, what if you have an adult who is appointed a guardian by the state of Florida to step in the shoes of that child and then said: I'm the guardian, the child can't make a decision because the child is underage. I make the decision that we are going to apply for asylum. Then what happens at that point?

VIRTUE: I think the Justice Department can consider that determination, but it need not, and it is certainly not bound by that state court decision.

VAN SUSTEREN: All right, we're going to take a break.

Up next, according to Elian's grandmothers, when he was plucked from the sea last November, he was able to give his dad's name and telephone number, but legislation could disconnect Elian's connection to his father. Stay with us.


REP. JOSE SERRANO (D), NEW YORK: They didn't come to lobby us on any trade mission, but they came to ask us to send back their loving grandson. REP. SHEILA JACKSON-LEE (D), TEXAS: We must not place the burdens of the adversity between the United States and Cuba on the shoulders of Elian Gonzalez.



A Los Angeles Superior Court judge has dismissed a lawsuit filed by Rodney King, alleging that a lawyer mismanaged his $3.8 million settlement stemming from a police beating caught on videotape.

The judge ruled that King's 1996 lawsuit was filed after a one- year statute of limitations had expired.



VAN SUSTEREN: 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. And if you miss that live show, the program is available on the site at anytime via Video On-Demand.


QUESTION: Could you possibly veto any bill that would grant Elian Gonzalez U.S. citizenship?

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: Yes, I have not decided what to do and I wouldn't rule that out. I just haven't decided what to do. Let me just say for the moment, if you take it out of the combustible, emotional nature of our relationship with Cuba and particularly the Cuban-American community in south Florida's relationship with Cuba, and you think about the issue, one of the things that I think we all need to think about is this could happen again.


VAN SUSTEREN: Two months after his arrival in the United States, it's still not clear if the fate of Elian Gonzalez will be handled by the INS, the courts or even Congress, but any legislative measures could be met with a presidential veto.

Joining us now from Capitol Hill is Democratic Congresswoman Sheila Jackson-Lee from Texas, and in our Washington bureau, Democratic Congressman Robert Menendez from New Jersey.

Congressman Menendez, first to you. Do you think that Elian Gonzalez will get American citizenship? Will it be granted to him by Congress?

REP. ROBERT MENENDEZ (D), NEW JERSEY: Well, my personal view in preference and the legislation I'm supporting is permanent residency, and I think that that does several things: It accomplishes the goal of trying to set a precedent in this case for other children who may be fleeing from countries, whether it be political persecution, religious persecution, ethnic cleansing, female genital mutilation, a variety of oppressions, that we should consider the totality of the circumstances in determining what's in the best interests of the child...

VAN SUSTEREN: But Congressman...

MENENDEZ: ... the family relationship and those issues as well. So, whether that be done by permanent residency, which under existing U.S. law Elian would be entitled to within another 10 months, all I'm doing is accelerating that. Or whether it's done by U.S. citizenship, I think the ultimate question that we want to establish is setting a precedent here as to how we're going to treat children who come to us from oppressed countries and whether we're just going to send them back with a birth certificate.

VAN SUSTEREN: Congressman Menendez, I'm struck by the fact that you say you seek permanent residency status for him instead of citizenship. Why? What is the practical effect of getting one, and why not citizenship if you're going to take that step anyway?

MENENDEZ: Well, I think, number one is, as I say, under existing law -- there's something called the Cuban Adjustment Act -- within a year and a day Elian would be eligible for permanent residency. He's already got two months here, so all I'm doing is accelerating the time in which he'd have that right. Number two is, it would give him an opportunity to make a decision for himself when he grows up as to whether he wants to be a U.S. citizen and apply or stay a Cuban citizen. And lastly, I think it's more practical in terms of getting it through the House and the Senate.

VAN SUSTEREN: Congressman...

MENENDEZ: But it ultimately accomplishes the legal goal that we want, which is to have this decided in a court and not by the INS, which I think is not capable of deciding what's in the best interest of the child.

VAN SUSTEREN: What's interesting, Congressman, that you say you want it decided by the court. Suppose that the Florida state court, which has now given temporary guardianship to the great uncle, suppose it accelerated that hearing for permanent guardianship to tomorrow or the next day and gave it to one of the grandmothers, and one of the grandmothers said, I'm stepping into the shoes of my grandson, he wants to go home, I'm taking him home. Do you have any objection to that?

MENENDEZ: We're going to -- we're going to ultimately accept what a court decides. What we seek is the totality of the circumstances to be considered in this case and in all future cases, and I don't believe that that's what's being considered here. To simply say -- we don't know, I have no reason to disbelieve this father has a good relationship with the child, but we really don't know that. We're not in a court of law under oath and cross- examination. We don't have the circumstances laid out before us. We have information that we're obtaining through the news. We need to have people in a court of law. And then beyond that parental relationship, we need to have the opportunity to establish what's the nature of going back to Cuba, or, for that fact, a child -- for example, we had children who were of Jewish descent from the Soviet Union. We didn't many times send them back even though their parents were in the Soviet Union because we felt that that was against the best interest of that child. That's the standard we're trying to create.

VAN SUSTEREN: Congressman Jackson-Lee, what is your reaction to any bill that would seek to give this young boy permanent residency or even citizenship?

REP. SHEILA JACKSON-LEE (D), TEXAS: First of all, Greta, I'd like to echo the comments made by the sister who hopefully will be hosting the grandmothers today, who I had a wonderful opportunity to meet with yesterday, and that is this is a special day for Elian, and what we look for is unity and healing and a wonderful experience.

But frankly, I think that Congress is inappropriately intervening in a relationship that is already established between Elian, his grandmothers and, as well, his natural father. Clearly, I believe, although the immigration services, natural -- Immigration and Naturalization Services is not well-versed particularly in family law. They did do an independent assessment of the family. They visited with the family. There are no allegations of abuse, there are no allegations of the father being unfit, and he is the natural father and he has indicated his desire to have Elian returned.

So, I think that Congress by intervening with movement more for the citizenship approach, if citizenship is granted to Elian, what court do you believe, family court or not, would deport a United States citizen? And so just by the nature of the way the court balances the interest, the Cuban family will be unfairly prejudiced, because they will be going up against someone who has been granted citizenship. I would just ask my colleagues to have an opportunity to meet with the grandmothers who are making themselves available, I believe, possibly later on in the week. But certainly all the comments they've made are available, and I think we should step out of the way of any legislative initiative that would grant citizenship or permanent residency.

VAN SUSTEREN: Congressman, is this -- is this a legal matter or is this a political matter? It seems to have become both, but which should it be?

JACKSON-LEE: Are you speaking to me?

VAN SUSTEREN: Yes, yes, Congresswoman.

JACKSON-LEE: Thank you.

Well, I think that if you look at the facts, there was probably a different approach that could have been taken when Elian came ashore. He obviously falls under certain laws that deal with Cuban refugees, but he gave his father's full name and telephone number at the hospital. The INS simply gave him parole without inspection, which is a status which says that he's not deportable if he's found to have no papers.

So we really have an opportunity to follow through on the January 5 order of the INS that he should be returned to his father. That should have occurred. I'm sorry for the intervention. This is no reflection on the family members' love for him in Miami. But we have made this a political issue, it should not be. We should return Elian to his loving father and his grandparents in Cuba. And we've made it a political issue, unfortunately, as I've said, with all great respect and admiration for those who have a deep sense of concern about Cuba and its political posture. That is not -- this is not the place to resolve those issues.

VAN SUSTEREN: All right, we're going to take a break.

Up next: How can we avoid cases like this in the future? and how could any "Elian laws" affect 21st century immigration? Stay with us.


Q: Prosecutors in Salisbury, Maryland dropped theft charges against a police officer. What was he accused of stealing from a convenience store?

A: Surveillance video showed the officer taking candy and beef jerky. His lawyer said police are often given food to keep them near stores on their beat.



VAN SUSTEREN: The fate of 6-year-old Elian Gonzalez has captured the interest of the INS, Congress and the courts. But actions on this case could affect immigration laws of the future.

Paul, we've got a situation where lines have been drawn in the sand, and we've got a political legal mess to find ourselves out of at this point. What about the future? Is there something that you would suggest so we don't run into this problem again?

VIRTUE: Well, one thing is, in terms of law, whether we grant citizenship or permanent residence, it's very important that Congress focus on the distinction. Because in order to avoid abandoning permanent residence, a person has to actually take up physical residence in the United States. So if Elian were to go back to Cuba, he would risk losing permanent residence, and I think that could affect the state court's consideration of this case. So I think there is an important distinction there to focus on and be careful of.

VAN SUSTEREN: Ira, is this something that happens to children from other countries, and this story has just come on our horizon because it's Cuba, is this an important issue for others? KURZBAN: I think it's an extremely important issue. There are children, as we are on TV right now who are detained in jail by the Immigration and Naturalization Service. There are thousands of children who are similarly situated. And that's why, you know, one has to say in this kind of case, this could only happen in Miami, with this case, involving Cuba, because the truth is the INS does this every day. They probably shouldn't do it every day, they should probably have a much more humane policy than they do. But the reality is that there are many children in detention, there are many children who they place in custody of relatives, and there are many children who they deport. And quite frankly, if Elian Gonzalez were Haitian, he would probably be deported and already back to Haiti.

VAN SUSTEREN: Congressman Menendez, how do you face that tough question when people say: Look, other children get sent back and deported if you are Haitian, what about them?

MENENDEZ: Well, that's why I'm trying to establish a standard here that talks about children fleeing from oppressive countries. I am not talking about economic standards, I am talking about children fleeing from oppressive countries, whether that oppression is political, religious, ethnic, female genital mutilation, I think those are the things we should consider before we send a child back. And this would not be a question of whether you are Cuban or Haitian, I would want that standard applied to all. And Elian's case presents us that opportunity.

And if we don't do it in this case, we are going to have a set of standards in which children who come to us from oppressive countries will ultimately find themselves just sent back without really determining that parental relationship in a court and without determining the circumstances of that country, in which we are sending that kid back to.

VAN SUSTEREN: And that's all the time we have for today. Thanks to our guests and thank you for watching. You can weigh-in on the Elian Gonzalez case on "TALKBACK LIVE." Will the family reunion change anything? That is today 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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