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Burden of Proof

Elian Gonzalez Case: Federal Judge Sides Attorney General, Dismisses Lawsuit Filed by Miami Relatives

Aired March 21, 2000 - 12:30 p.m. ET



JANET RENO, ATTORNEY GENERAL: What they took into consideration is who, under the law, can speak for this 6-year-old boy who really can't speak for himself. He has a father, and there is a bond between father and a son that the law recognizes and tries to honor. We have no information that would indicate that that legal connection, that bond, should not be honored.


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: A Miami federal judge sides with the attorney general of the United States and dismisses a lawsuit filed by the Miami relatives of Elian Gonzalez.

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.

This morning in Miami, a U.S. District Court judge ruled against the Florida relatives of 6-year-old Elian Gonzalez. In a 50-page decision, Judge Michael Moore ruled, quote: "The determination to grant asylum is a matter within the discretion of the attorney general." The ruling continued, quote: "She has decided the issue of who may speak for the plaintiff."

Throughout much of the dispute surrounding Elian Gonzalez, Attorney General Janet Reno has said the boy belongs with his father.


RENO: Can you remember when you were 6? There were some days I wanted to run away from home, and there were other days I wanted my mommy so bad I couldn't stand it. And just remember what it was like when you were 6, or try to, and I think you will understand what the range of emotions of a child are. And I think the law has indicated, and it's certainly, I think, the experience of most people that 6 years old is too young to speak for themselves.

(END VIDEO CLIP) VAN SUSTEREN: Joining us today from New Orleans, Louisiana is George Fowler of the Cuban American National Foundation. In Charlottesville, Virginia, David Martin, former general counsel of the INS. Here in Washington, Ray Harris (ph); immigration and international law professor Alexander Aleinikoff; and Dave Louni (ph).

And in our back row, Cleve Meisador (ph), Susan Harris (ph) and Stuart Harris (ph). And also joining us from the U.S. District Courthouse in Miami is CNN correspondent Susan Candiotti.

Susan, what's the reaction down in Miami to this decision earlier today?

SUSAN CANDIOTTI, CNN CORRESPONDENT: Well, Greta, you remember that the attorneys representing the interests of Elian Gonzalez and his Florida relatives here have maintained all along that no matter how young a child is, that once anyone plants their feet on U.S. soil, they have the right to file a claim for political asylum. They even went so far as to claim that this boy at age 6 fully understands the application and -- when he signed it.

However, the judge pointed out that because U.S. Attorney General Janet Reno has discretionary power granted to her by statutory act and by U.S. Congress to decide what's what when it comes to immigration matters, and after twice interviewing the father of this child, Juan Miguel Gonzalez, in Cuba and, in fact, she says he has the sole authority to speak for his child in immigration matters, and the judge agreed with that discretionary power.

Now, as far as the reaction from the Justice Department, we understand that it is not full speed ahead. They are going to slowly review this decision in its entirety and then begin, as they put it, an "orderly reunification of father and son."

However, not if the attorneys representing Elian Gonzalez have anything to say about it. They held a news conference just a little while ago and said that while the son is -- while Elian Gonzalez is continuing to attend school here, they are going to be filing appeals to try to call a halt to all this. They stand behind their arguments and they say that one day they hope they will be able to let -- allow Elian Gonzalez have his day in court. They say that's all they want, and they say he hasn't had it yet.

Now, in terms of reaction from the exile community, we have this early count from one leader who has organized in the past demonstrations on behalf of Elian Gonzalez staying in the United States, and he says that, at this point, they too are going to be reviewing the decision. And unless the authorities come in to try to sweep the boy up and take him home, they're not planning anything at this time. And to add to that, the U.S. Justice Department, a spokesman said that, don't expect to be looking for U.S. Marshals dropping out of helicopters on the front lawn of the great-uncle of Elian Gonzalez any time soon -- Greta.

VAN SUSTEREN: Susan, what is the young boy doing now? We saw very early on pictures of him going to Disney World, and we'd see sort of these photo ops in the front yard. What's he been doing?

CANDIOTTI: Day in and day out, his relatives here have tried to maintain, at least as of late, since everything has calmed down a little bit -- they have taken him to school each and every day. For example, however, yesterday there was a field trip scheduled by the school to the Miami Seaquarium and we understand that the family decided that they would not allow the youngster to go on that journey, they say, without one of them present because they said that it might be upsetting to him, the implication being that it might remind him of the trip that he took at sea, a very tragic trip which he survived, of course.

However, in the past few months, you will remember that they have made him -- they have put him out in front of the public at every possible opportunity, at one point even parading around a congressional subpoena. So they have put him out in the foreground, but not as of late. They've tried to keep him out of the spotlight recently.

VAN SUSTEREN: Let's go to New Orleans, George Fowler.

George, what is your reaction to the judge's decision?

GEORGE FOWLER, CUBAN AMERICAN NATIONAL FOUNDATION: It's very sad for me. I'm very sad for Elian. I've been with Elian several times. I came to this country as a refugee many years ago like Elian as a little boy. He understands the situation. He does not want to go back to Castro's Cuba. He understands that his father is under duress. His father was called when I was there once and he refused to take his father's call.

This is a sad day for that little boy. That little boy has the right to live in liberty and freedom. And for the rest of us from Cuba that live here in exile, we're frustrated. We've tried to explain to the government, to this administration that the Castro government exercises absolute and total control over the Cuban people.

VAN SUSTEREN: George, let me ask you a question: When you came to this country as an exile, did you come with your father and mother?

FOWLER: Yes, I did, Greta. I came with my father and mother. Thankfully, they were with me. And Elian came with his mother, but she didn't make it all the way. And the idea -- Attorney General Janet Reno knows very well the situation because she arranged the meeting when the grandmothers came at the home of the nun, Sister Jeanne O'Laughlin, president of Barry University, one of her good friends. When that nun saw the horror inflicted by the Castro government upon those grandmothers, the coercion upon them -- and she was a person that wanted the little boy to go back. In fact, she kicked me out of the house next door where I was at the insistence of the Castro government. She went and spoke to Janet Reno, her good friend, twice and said, look, do not send that little boy to Cuba because I have seen the terror inflicted by the Castro government. Do not do that.

And notwithstanding that, Attorney General Janet Reno, for reasons that totally escape me, continues to press to return this little boy back to Castro's prison. This is an outrage.

VAN SUSTEREN: All right, well, we're going to take a break. When we come back, we're going to talk to two lawyers who know an awful lot about immigration law. Stay with us.


On this day in 1804, the Napoleonic Code was approved in France. This civil code gave France its first coherent set of laws pertaining to property, family, colonial affairs and individual rights. Under the code, men had strong rights over their families, women had no individual rights, and colonial slavery was reintroduced.




VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to 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. You can also interact with our show and even join our chat room.


RENO: I think his father should be able to speak for him, and I think he should be with his father. His father might be halfway around the world, his father might be in Miami, his father might be in Cuba, but the father has expressed a wish for the child to be with him and for the process to return him, and I think that's what the decision should be.


VAN SUSTEREN: A federal judge has dismissed a lawsuit filed by the Miami family of Cuban Elian Gonzalez. The complaint requested an asylum hearing for the 6-year-old boy. But the U.S. district court ruled that any decision relating to asylum is up to the attorney general, Janet Reno, who has said the child belongs with his father in Cuba.

We're joined now on the telephone by Lucia Newman, who is the bureau chief for our Havana bureau.

Lucia, has the decision reached Cuba yet, do the people seem to be reacting to it?

LUCIA NEWMAN, CNN HAVANA BUREAU CHIEF: It is just beginning to reach Cubans here, Greta. And, in fact, I'm speaks to you from the street right now. I am talking to you from a cell phone, and I have been talking to a lot of the people here, and they are unanimous in their reaction. They say that this was the correct decision by the judge. One man said, "This is not a victory for Juan Miguel Gonzalez -- the child's father -- this is his right, the child should be brought back right away."

However, there is a feeling of frustration here, that while this decision was the one they had hoped and been waiting for, it does not mean that little Elian Gonzalez will be returning immediately back to this country and to his father. There are likely to be long court proceedings still ahead. So far, the Cuban government says that it is reviewing the decision. So it has had no official reaction as of yet. That is likely to come after U.S. Attorney General Janet Reno speaks publicly.

The Cuban government, as I say, wants to be very cautious before putting out any official comments and Juan Miguel Gonzalez, the child's father, has not said anything yet. We understand that he is consulting with his American lawyer at this moment.

VAN SUSTEREN: All right, thanks to Lucia Newman, who is our bureau chief in Havana, speaking to us from Havana.

Alex, looking at the decision, what's your reaction to it?

T. ALEXANDER ALEINIKOFF, PROFESSOR, IMMIGRATION AND INTL. LAW: Well, it's a very measured decision. The judge didn't accept everything the government had said. The judge said, I have jurisdiction to decide the case and the uncle is an appropriate person to actually bring the case on behalf of Elian, Elian has standing to request a decision, but then when it got to the attorney general's actual decision, he said that her decision was not an abuse of discretion and he would uphold it.

VAN SUSTEREN: David, like Alex, you used to be a general counsel for the INS, are you surprised at all by anything in that 50-page decision?

DAVID MARTIN, FORMER GENERAL COUNSEL, INS: Well, I think it's a little bit of a surprise that the judge did go ahead and reach the merits as Alex mentioned.

VAN SUSTEREN: Meaning what?

MARTIN: That there were a lot of objections to jurisdiction, the Justice Department made several different arguments that the court really didn't have jurisdiction to hear this case at all. Then it went ahead and said, well, but even if you decide there is jurisdiction, you should go ahead and uphold the attorney general's decision.

I think it is, in a way, very fortunate for the government that the judge did not accept those first claims on jurisdiction, because that would have seemed like a much more hollow victory for the government. The judge said, no, we are able to go ahead and reach the merits here, and on the merits, we will go ahead and sustain the attorney general's decision. She's entitled to decide that the father speaks for the child, and therefore, there is no need to consider the asylum application that was filed by the relatives in Miami.

VAN SUSTEREN: Alex, do you guess the sense -- I mean, it is 50 pages long, which is not a short opinion -- do you get the sense that the judge was making sure that he was dotting all his Is and crossing all his Ts, because he knew that this decision is a hot potato. I mean, it is part of a diplomatic feud, if nothing else?

ALEINIKOFF: Absolutely, it is a careful opinion. And his concluding paragraphs are rather remarkable. He talks about a well- intended lawsuit, and then describes the attorney general as a well- intended attorney general. And then he has a paragraph that says that even this well-intended litigation -- "even well intended litigation has the capacity to bring about unintended harm."

And what he means is, it's time to resolve this issue, and work for ways to have the boy returned and not to keep the proceedings going.

VAN SUSTEREN: George, I know that you are dissatisfied with the result of the opinion, but aside from sort of the historic and emotional aspect, which certainly captures your attention, what about the legal reasoning of the judge, do you disagree?

FOWLER: No, I read the decision very carefully, and he was heading in the right, found jurisdiction, capacity, standing, the right to Lazaro, the grand uncle, to speak on behalf of Elian. He found that Elian, as a child, has a right to due process, and then, made a right turn, a quick right turn, we never got to the merits, I respectfully disagree.

The merits would have been a political asylum hearing, where Elian would have had the right to show the fact that, in Cuba, he would be subject to intimidation, coercion, torture, et cetera. We never got there.

The judge basically decided that Janet Reno's decision that the two little interviews that she conducted of Elian's father in Cuba, under the threat of Fidel Castro, that was enough for her to come to the conclusion that the father spoke freely for the child.

Of course, at that time, she didn't realize that four months would lapse and the father has never been allowed to come to Cuba. I presume that the father of Elian loves this child, like all fathers do. But why isn't he here? Four months have come. Cuba is 90 miles from the United States...

VAN SUSTEREN: Let me ask David that.

David, is the father obliged to come to the United States? Is that really an element of this?

MARTIN: No, he's not obliged to come here, he certainly is in a position to speak through counsel, and he has been -- he has engaged an American counsel. I would really disagree with George, though, I think we have to say that this is a decision on the merits. A big part of the merits on the asylum claim is, first, to see whether there is a valid claim even pending. You have to reach that matter first. That is something that the court went into carefully, and the Justice Department went into carefully, and decided that it's the father who gets to make that decision, therefore there is no claim.

This is really reaching sufficiently into the merits that it ought to be taken as a substantial affirmation of the position that the Justice Department took.

VAN SUSTEREN: We're going to take a break.

He's been the focus of an international custody dispute since his rescue at sea on November 25. Now Elian Gonzalez may be headed back to Cuba. But when? Stay with us.


QUESTION: Which of the following was NOT a topic of inquiry for John and Patsy Ramsey in an Internet chat last night?

A. lie detector tests B. child beauty pageant advice C. accusations they are misleading the public D. the $25M libel suit they settled yesterday

ANSWER: D. the $25M libel suit they settled yesterday



VAN SUSTEREN: Six-year-old Elian Gonzalez was rescued from the Atlantic Ocean last November. And since then, the issue surrounding where he'll be raised has become an international dispute.

Alex, let me ask you this: Could you have taken this fact pattern and the law, as it stands, and written a decision, which was intellectually honest but came out with a different result than what the judge wrote this morning?

ALEINIKOFF: It's possible. I mean, the arguments that were being put forward by Elian and his relatives were not frivolous. One could have written an opinion that accepted them. But I think most people think that the judge reached the right decision on the law.

VAN SUSTEREN: Given the fact that, you say, the judge may have -- that he reached the right decision, where does this -- where can the case go from here?

ALEINIKOFF: Well, obviously, it can be appealed. The question is whether or not the Department of Justice will seek to revoke the parole of Elian and have him delivered up to the INS for return to Cuba without waiting for the appeals to go ahead. And then the question would be: Would the -- would Elian and his relatives go into court and seek a stay of the INS's action? I think that's the next battle here.

VAN SUSTEREN: David, Alex said that he could have written an intellectually correct decision with a different result, although he accepts this decision and believes it to be right. Could you have written a decision, given these facts and the law, with a different result?

MARTIN: With a different result?

VAN SUSTEREN: Yes, with a completely -- so that the family won here in the United States.

MARTIN: Well, on that particular issue that was set forth in this case, I think it was possible. There are provisions in INS procedures for hearing asylum applications from children, even in a case where there is a conflict with the parent. That was really designed for much older children, but it would have been possible for a court, I think, to find there was enough in that to say that at least that INS should go ahead and give a more formal hearing to the asylum claim that was given here.

Now, I don't think that would have been the right result. I think the court reached the right result here. But that was possible based on that particular section of the guidelines, new guidelines that deal with asylum claims from children.

VAN SUSTEREN: Yet, David, I assume that you would agree that, even in light of the fact that another decision could possibly have been written, when this goes up to the United States court of appeals, that's not what the court of appeals will look at in reviewing this, right?

MARTIN: Well, I mean, that could be a part of the claim and a part of the issue there. I do think we are at a crucial stage right now, though. And the Justice Department needs to decide whether it's going to initiate a somewhat more forceful procedure to reclaim custody of the child.

I know they don't want to be seen to be interfering with possible rights of appeal on behalf of the Miami relatives here. But I think it is time for them now, having gotten this important court affirmation, to move to end the assignment of the child to the relatives and then let them go into court, put the burden on them to go into court to get a stay of any demand for the child to be turned over.

They clearly don't want to see a scenario where people in uniforms arrive to claim the child. But I don't think it has to come to that. It is time, though, for something more direct than those earlier letters that just said: We hope this can be worked out. It's time for them to say...


MARTIN: ... to set a date, and to say the kid should be turned over.

VAN SUSTEREN: George, in the 25 seconds we have left, what do you think is going to happen with this young boy?

FOWLER: I think he's got to -- we're going to take an appeal to the court of appeals. And I think they're going to decide that Attorney General Janet Reno abused her discretion, and that the child is entitled to a political asylum hearing because he arrived in the United States.

I believe that the court is going to be reversed. And I believe that Elian Gonzalez is going to stay in the United States and enjoy the freedoms and liberties that we're entitled to. And hopefully, his father will come and join him.

VAN SUSTEREN: And you get the last word on a continuing legal dispute; they never seem to end.

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

Stay tuned to CNN tonight for "LARRY KING LIVE." I'll be interviewing Trevor Rees-Jones, who's the former bodyguard for Dodi Fayed, the only survivor of the car crash, which claimed the life of Princess Diana. That's at 9:00 p.m. Eastern time, 6:00 p.m. Pacific.

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



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