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Burden of Proof

Elian Gonzalez Case: Federal Court Ruling Temporarily Blocks Removal from U.S.

Aired April 14, 2000 - 12:30 p.m. ET



GREGORY CRAIG, ATTORNEY FOR JUAN MIGUEL GONZALEZ: Lazaro Gonzalez and those who assist him now are in violation not only of federal law, but also of state law. Elian Gonzalez is being held unlawfully in Miami against his father's wishes.

MANNY DIAZ, ATTORNEY FOR ELIAN'S MIAMI RELATIVES: After seeking the assurance of the government that Elian would not be removed from the United States during the appendency of the appeal and the government's refusal, continual refusal, to give us assurances that that would not happen, we were once again forced to file a motion with the court.

JANET RENO, ATTORNEY GENERAL: I am prepared to enforce the law, but I want to be clear that if we are compelled to enforce our order, we intend to do so in a reasonable, measured way.


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: the case of Elian Gonzalez. A federal court ruling temporarily blocks his removal from the United States, but it doesn't prevent a reunion with his Cuban father.

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

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. Roger is off today.

Yesterday at 2:00 p.m. Eastern time, the federal government's deadline passed, and 6-year-old Elian Gonzalez is still in the physical custody of his Cuban-American relatives in Miami. The latest legal battle takes place in U.S. district court, where a temporary order forbids the removal of Elian from the United States. But that ruling does not prevent a handover to the federal government or a reunion with his father.

Joining us today from Charlottesville, Virginia, is former general counsel of the INS David Martin. Here in Washington, Jose Cardenas of the Cuban-American Foundation, Jenny Lee Keefe (ph), and immigration attorney Jose Pertierra. And in our back row, Melissa Inzerillo (ph) and Tracie Holmberg (ph).

And also joining us here in Washington is CNN Justice correspondent Pierre Thomas, and from the United States district courthouse in Washington, CNN correspondent Bob Franken.

Pierre, first to you, the government has now met -- has filed a response on that temporary order. What's the government saying?

PIERRE THOMAS, CNN JUSTICE CORRESPONDENT: Well, about an hour ago, Greta, the Justice Department filed a request to the court asking the court to seek a federal order that would force Lazaro Gonzalez, the great-uncle, to turn over the boy. Also, they issued an order requesting the court to, if Lazaro turns over the son, that the Justice Department would require Elian to stay in the country. So it's a double-tiered action by the Justice Department, on the one hand saying they want to force Lazaro Gonzalez to turn over the boy, by the power of a court order. Then they are saying that Elian Gonzalez cannot leave the country until the appeals process is over.

VAN SUSTEREN: Pierre, I don't mean to split hairs, but the order yesterday from the court said they were supposed to file at 9:30. Why the delay? I mean, why didn't they meet their 9:30 deadline? How did they get this court to slide for a later filing?

THOMAS: Well, at the Justice Department, they are known for being a little bit slow from time to time. This is a pretty lengthy filing of more than 50 pages or so. That might have had something to do with it. But they put it into filing, and again, it is interesting that they are trying to seek the weight of the court order. So if the court rules in the Justice Department's favor and Lazaro Gonzalez does not turn over the boy, he would face potential contempt of court, fines and possible jail time.

VAN SUSTEREN: Pierre, do they have any sort of plans for this reunion at this stage?

THOMAS: Well, the Justice Department is preparing to enforce the law. Now, we are being told by sources that INS agents and federal marshals were being prepared to go in and get the boy, if it came to that. The Justice Department, with this tactic, is now saying -- asking the court to do the work for them in some sense.

VAN SUSTEREN: Jose Cardenas, how much of a victory was this temporary order that was issued yesterday by the U.S. court of appeals for the family in Miami?

JOSE CARDENAS, CUBAN-AMERICAN NATL. FOUNDATION: Well, Greta, as we can see, events are moving rather quickly in this whole affair. I think that it was successful in calming some of the tension that has been building up in Miami around the boy's home.

But I think it's important to note that, up until right now, as we speak right now, nobody is in violation of any law, as Greg Craig has absurdly asserted there. What the letter to Lazaro Gonzalez said was that, as of 2:00 p.m. yesterday afternoon, he had to either bring the little boy to the Opa-Locka Airport or go to the airport with the boy and come to Washington, or thirdly, handover Elian to any marshals that come to his door. Nobody has to force Lazaro Gonzalez to turnover the boy. He has said repeatedly that his front door is open from anyone from the U.S. government or Juan Miguel Gonzalez to come into his home and take the boy.

VAN SUSTEREN: David, let me go to you on that point about whether Lazaro Gonzalez is in violation. I agree with Jose. You know, since when -- I mean, there is this order out there that physical or the custody belongs with the attorney general of the United States. But what makes Lazaro -- Why does he have to be the transit service for the government? Why is that a violation of the law?

DAVID MARTIN, FORMER GENERAL COUNSEL, INS: Well, the law clearly provides that a person can be paroled in the United States on the conditions that the attorney general establishes, and then it also says when, in the opinion of the attorney general, the purposes of the parole are over, the person must be returned to the custody of the attorney general.

VAN SUSTEREN: So is that your -- is your position he's actually got to physically move the boy to wherever the attorney general wants? I mean, I don't understand how that's a requirement imposed upon him. I see how the requirement he's got to if they show up?

MARTIN: Well, I mean, certainly there is a reasonableness limit on the kinds of conditions that could be imposed. But it's clearly part of the agreement, when custody is transferred, in this situation, that the person will agree to the conditions for ending that when the attorney general determines that it should be ended.

I'd like to emphasize, the earlier point is simply wrong, there is a violation of the law. The lawful authority for the uncle's custody ended as of 2:00 yesterday. And to the extent there might be any possible claim under a state court order that also disappeared yesterday.

VAN SUSTEREN: Here's where I disagree with you, and I'm with Jose Cardenas on this, is the fact that I don't see there being a violation unless someone has come for the child -- I don't mean to split hairs -- but somebody has come for the child and he said no. According to Jose, he is willing to do it, and the only issue is, you know, is whether or not he has to physically transfer the boy.

MARTIN: Well, no. It is -- it's clear and it was clear, I believe, from the initial papers transferring custody of the boy, that they are subject to reasonable and lawful orders from the attorney general. And look at the situation, the attorney general did -- attempted and INS attempted, over many weeks, to try to work out some kind of other arrangements, something that would be more suitable.

VAN SUSTEREN: But that's another issue.

MARTIN: And went to the extraordinary extent of the attorney general going down there to deal with those people, and they did not agree to that. They can't set the terms of this. This is very clear. The attorney general is controlling the authority to do that, and she exercised that authority.

VAN SUSTEREN: You know, David, I don't disagree with you that she has the lawful custody. I don't disagree with that. The only thing is, I don't think Lazaro has to become the bus department for the Justice Department. I don't think that you can compel someone to do that.

But let me go a second to Jose Pertierra.

Jose, was it a loss for Elian Gonzalez's father when this temporary order was issued yesterday?

JOSE PERTIERRA, IMMIGRATION ATTORNEY: It was a temporary loss, yes, but you have to put this in the context. Yesterday, the family court threw out the custody case that had been presented in family court in Miami. That was a victory. This temporary restraining order, if we can call it that, is only temporary until the three-judge panel convenes, deliberates about the matter, and makes a decision.

I think the filings today by the Immigration Service are quite reasonable. It's a quid pro quo. We will agree, we being the federal government, we will agree to order Juan Miguel Gonzalez not to take the boy out of the United States, if Lazaro Gonzalez agrees to turn over custody to Juan Miguel Gonzalez.

And you know, on this point of the illegality of Lazaro Gonzalez holding the boy, you have to place that also into a context. We have a situation here that is very much taking the look of a hostage situation. It's not simply Lazaro Gonzalez sitting at home.

VAN SUSTEREN: But they haven't even come after -- I mean, like, the point is, what is it that compels the great-uncle? I mean, I agree that the great-uncle, if someone shows up, has to turn the child over. But where is it that requires that great-uncle to move that boy even 10 feet? That's the problem that I have.

PERTIERRA: It is in the discretion of the attorney general that custody or care was temporarily given to Lazaro Gonzalez. At her discretion, she can ask, particularly because of the tension-filled situation in Miami.

VAN SUSTEREN: And Jose, she can ask and she can have. The only dispute that I have is whether you can compel Lazaro to do. But we need to take a break.

Up next, the Miami relatives of Juan Miguel Gonzalez videotaped his son and released it to the media yesterday. Who really speaks for Elian? Stay with us.


The Supreme Court will launch a Web site next week at

The site will provide the public with access to its decisions, argument calenders, bar admission forms, and other court information. (END LEGAL BRIEF)


VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log onto 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.


WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: We have a legal system and it has been followed. And the decision that was made, that Elian Gonzalez's father was a devoted and fit father and could properly speak for his son and therefore to make decisions for his minor son, was ratified in a district court and is now on appeal to a court of appeals. But none of the courts have granted any kind of interim relief which would justify opposition to the plain rule of law.


VAN SUSTEREN: Yesterday, the Miami relatives of Elian Gonzalez released a videotape of the boy saying he does not want to return to Cuba. The family says the tape was recorded late Wednesday night after negotiations with the Justice Department broke down. The video shows Elian on a bed looking into the camera and delivering a message to his father. It's not clear who was in the room with Elian or whether the boy was coached.

Jose Cardenas, let me go out on a limb even though everyone else says it's not clear exactly what happened. To me, it looked staged, it looked coached. I find it very hard to believe that a young boy spontaneously decided to do a videotape. What are the facts. Who was behind this videotape?

CARDENAS: Well, I can understand the frustration of the Miami family because they have been arguing for the past four months that nobody is listening to the little boy and what the little boy wants. And I think that this was their attempt to bring that to the broader American public.

VAN SUSTEREN: But, you know, I defend Lazaro in not having to be, as I say, the transit service for the attorney general, but there is a lawful order out there. When you talk about, sort of, the best interest for the child, do you think it's in the best interest of the child to make him sort of -- into a sort of a -- almost like a -- I mean, this is staged. I mean, this is creating more problems and not less, I would think, between the family, the father, the son.

CARDENAS: Well, Greta, I think you really have to understand the depth of feeling and emotion in this issue. This family is playing for basically the highest stakes right now, and that is whether Elian is going to be forcibly deported back to a communist tyranny or whether he's going to have an opportunity to live in a land of freedom.

VAN SUSTEREN: Let me go -- David, yesterday -- moving to another topic -- a state court threw out the request that -- by the great- uncle to be the custodian for the young boy. Are you surprised by that decision?

MARTIN: Well, I guess I'm just surprised about the thoroughness and the finality of it. It did seem to me that's the correct outcome. The judge said both that there's federal preemption here, the federal authorities have jurisdiction, and also went ahead and ruled under the state law that had been invoked initially and said she didn't have jurisdiction under that either because great-uncles are not among those who can make that sort of filing.

And she made a very important further point that has a bearing on the use of that video. She said it is axiomatic in family court that 6 years old is too young to make life-altering decisions. This theme we've been hearing from the family about, oh, well, Elian doesn't want to go back. Elian's views count for something. I'm very sympathetic to Elian, but 6-year-olds really are not in the position to make that sort of judgment. Here we have an authoritative statement to that effect by a family court judge.

VAN SUSTEREN: Jose Pertierra, we now have the state court decision which says that the father is the custodian for his own son, which is not a big surprise to anybody, I don't think, who's looked at the Florida law. We have this pending matter in the U.S. Court of Appeals which is an appeal as to whether the trial court judge was correct when he said that the attorney general is the one who makes the decisions for the child. Give me an idea of how you think the federal court of appeals is going to play out, which way you think it's going to resolve?

PERTIERRA: Greta, I think the law has been absolutely clear in this case from day one that only the father is legally authorized to speak on behalf of a 6-year-old child. And I think the issue on appeal being that whether any alien -- as it has been framed by Kendall Coffey -- any alien includes Elian, that is an incorrect way of framing the appeal. He wants to argue that an alien can apply for asylum no matter the age. But that begs the question of the appeal: Can a child...

VAN SUSTEREN: Let me ask you this, then. Let me take it to an extreme.

PERTIERRA: All right.

VAN SUSTEREN: I mean, you know, when we try to figure out, you know, how to resolve this and look at the law, sometimes we take it to the extreme. Suppose this child were going back to a country where we were absolutely 100 percent certain that he would be tortured. Would the decision -- or should the decision be different, or you would you look at it differently?

PERTIERRA: Well, first of all, there's no evidence in this case... VAN SUSTEREN: No, and I concede that. But hypothetically, when you figure out like how you analyze this, shouldn't we be looking at the father-son relationship within the confines of Florida state law, should we be looking strictly at the federal law, or should we look at what the family? -- the family claims it's a bad environment but let's just ignore -- we don't know what the environment is for sure. But let's take it hypothetically. Should the environment be a factor?

PERTIERRA: The environment is weighed in terms of whether or not the father is an abusive father. Now, you could conclude that a father who would take a child back to a country we're 100 percent sure he's going to be tortured is an abusive father. But that is not the case in this particular situation. There is absolutely no evidence that this child would be mistreated in Cuba. In the country, he's been declared a boy hero of the revolution by no less a person than Fidel Castro. So, you know, to claim that this boy will be tortured or mistreated in Cuba is a stretch.

VAN SUSTEREN: Which I only used for a hypothetical. I have no evidence of it, but just merely for the discussion of the law. Jose, I'll get back to you, but we need to take a break.

And up next: Late yesterday, the Cuban National Foundation went to court in Washington, D.C. and filed a civil lawsuit in the Elian Gonzalez case. Find out why when we come back.


Q: Why did a Drug Enforcement Administration dragnet include an inquiry into Federal Express?

A: The DEA was investigating a narcotics ring which had been allegedly bribing FedEx drivers to distribute marijuana?



VAN SUSTEREN: The battle over Elian Gonzalez has made its way into civil court. The Cuban-American Foundation has filed the lawsuit and it's here in the United States district court in Washington.

And joining us from the courthouse is CNN's Bob Franken.

Bob, what is this filing about, and what happened this morning in court?

BOB FRANKEN, CNN CORRESPONDENT: Taking the last question first, nothing.

VAN SUSTEREN: That's a typical Bob Franken response.

FRANKEN: Bob Franken, CNN, at the federal courthouse.

What happened was is that normally, of course, the temporary restraining order is sought because there is some urgency, but because of some delays that are now built into the matter in the appeals court in Atlanta, the judge -- the lawyers said: We don't have to argue this so quickly, and set a hearing for next Wednesday.

Now it's a fairly exotic argument. They are arguing, in a civil lawsuit, that there should be no deportation because the United States participation in human rights treaties does not allow it under this circumstance. Quoting from their filing: "The United States participation in those agreements" -- they mean the Universal Declaration of Human Rights and the Convention Against Torture -- "the U.S. participation in those agreements prohibits the summary deposition -- or deportation rather, of Elian to Cuba in the face of specific congressional and State Department findings that Cuba is engaging in flagrant, mass, gross human rights violations."

So it's a variation on the argument they have made outside of court, which is that you should not send a child back to a situation which is dangerous, which has a country that violates human rights. Now they are saying that there are treaties that would prevent that from happening. That is what they are seeking ultimately a permanent injunction against. But starting with a temporary restraining order.

Nothing happened today, the arguments are now scheduled for next Wednesday.

VAN SUSTEREN: Bob, this is a TRO, so you don't have to get the other party which is here, the attorney general and the INS commissioners and other members of the government, you don't have to bring them into court for this early initial temporary proceeding. But did anyone show up from the government today?

FRANKEN: As a matter of fact, a whole team of lawyers showed up and all they said was: We have no objections to continuing it.

VAN SUSTEREN: All right, Jose Cardenas, this is a filing that has been done by your organization on behalf of Elian Gonzalez and his great uncle. Where do you intend to go with this? How do you intend to show these abuses?

CARDENAS: Well, I think that the record is legion in documentating -- documenting the egregious violation of human rights. I guarantee you, Greta, that if any American read the State Department's own report -- own annual report on violations of human rights in Cuba over only one year, that those numbers you would see turn around.

VAN SUSTEREN: Give me an example -- give me an example of a human rights violation that's there? We oftentimes hear, you know, these statements, but -- about the human rights. Can you give me an example of one?

CARDENAS: Well, freedom of speech, there exists none in Cuba. There exists no freedom of assembly.

VAN SUSTEREN: If you do speak out, what happens to you? Do you go to jail? CARDENAS: You go to jail and most of the time they'll throw away the key. But I'll give you another example. A few years ago, there was a refugee boat, they commandeered a tugboat. They were trying to leave, a boat full of refugees. The Cuban government patrol boats caught up to them and they opened up fire hoses on a 100-year-old vessel, and even when children were screaming on top of the deck, they kept those hoses going. The boat was swamped and you had about 14 children that went to their deaths, their drowning deaths.

VAN SUSTEREN: David, that sounds pretty horrendous, I mean it is horrendous, doesn't just sound it. When you were at INS, did you ever see any successful civil lawsuit, like this, where there was an allegation and proof, ultimately proof, of human rights violations getting the relief they're seeking here?

MARTIN: Well, the normal way to do that is through an asylum claim. That's being litigated in the other forum. I have read those human rights country reports, and I would agree to a large extent with Jose, there. There are extensive human rights abuses in Cuba, nobody should blink that fact. But the real issue here is not a deportation, nobody is proposing a deportation to Cuba. There is a proposal to reunite a boy with his father and let the father make those particular...

VAN SUSTEREN: Unless we go back to -- we loop it to back where the discussion started and I'm going to get the last word on this; is whether or not the human rights violations are so egregious that bringing a child to that would make a parent unfit where you terminate parental rights and then we are back to square one.

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

Tune in to "TALKBACK LIVE" this afternoon for an update on the Elian Gonzalez case. That's at 3:00 p.m. Eastern time, noon Pacific.

And join us again Monday for an interview with Boulder District Attorney Alex Hunter. Our focus: the ongoing investigation into the murder of JonBenet Ramsey. Join us then for another edition of BURDEN OF PROOF.



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