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Burden of Proof

Elian Gonzalez Case: Stunning Defeat for Justice Department Keeps Boy in U.S. for Now

Aired April 20, 2000 - 12:30 p.m. ET



JANET RENO, ATTORNEY GENERAL: The court's order does not preclude me from placing Elian in his father's care while he is in the United States. The immigration laws clearly call for a child to be placed in the care of a parent in preference to a more distant relative while the child's immigration status is being resolved.

GREGORY CRAIG, ATTORNEY FOR JUAN MIGUEL GONZALEZ: If the government does not act immediately to remove Elian from the care of Lazaro Gonzalez and return him to his father, it will bear responsibility for the harm that continues to be inflicted upon Juan Miguel's beloved son.

JOSE GARCIA-PEDROSA, ATTY. FOR ELIAN'S MIAMI FAMILY: His door is open. His home is open. He wants to have the family meet there, but if that's not acceptable to Juan Miguel, and let's not try to score debater's points on this issue. Let's bring this family together. Almost anyplace, obviously, we're not going to go to the Cuban Interests Section, almost anyplace, any time, the sooner the better.


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: A stunning defeat for the Justice Department. Elian Gonzalez must remain in the United States, but where?

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

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

An appeals court ruling will buy some time on U.S. soil for Elian Gonzalez. Yesterday, in Atlanta, the U.S. Court of Appeals said that the 6-year-old Cuban boy must stay in the country until the court decides if he should get an asylum hearing.

ROGER COSSACK, CO-HOST: But the court ruling does not impede a reunion between Elian and his father, Juan Miguel Gonzalez. Elian's Miami relatives have already defied a Justice Department order to turn the child over to federal authorities.

VAN SUSTEREN: Elian's father came to the U.S. two weeks ago to retrieve his son, but has yet to see him except for on television.

Joining us today from Miami is Jose Garcia-Pedrosa, an attorney for Elian's Miami relatives.

COSSACK: And joining us here in Washington: Suzanne Philion (ph), Michael Hethmon, staff counsel of Federation for American Immigration Reform, asylum and international law attorney George Doumar. And in the back: Jennifer Elder (ph), Aaron Flint (ph) and Gayle Dornak (ph).

Let's go right to Jose. Jose, yesterday, the 11th Circuit came down with an order which was on your side. You are the winner. But it left it open about whether or not Elian would have to return to his father. What plans do you or your client have for that eventuality?

GARCIA-PEDROSA: Well, the government asked the court to order Lazaro Gonzalez to turn over the boy, and the 11th Circuit did not enter that order. So we think the matter stays where it's always been. Lazaro has said he will not defy the law, he never has defied the law, let's make that clear. If the attorney general sends in marshals to pick up the boy, he will not oppose them or resist them in any way.

VAN SUSTEREN: Jose, we talked earlier before we went on camera, and you sort of expected this decision, which frankly I was a bit surprised at. But look into your crystal ball, and tell me, how is this all going to play out? Since you were so successful in predicting the U.S. Court of Appeals, what do you predict is going to happen?

GARCIA-PEDROSA: No, I don't want to say that I was successful in predicting the court of appeals' decision. First of all, it is a temporary decision and we have to be careful about that. The appeal has not been decided on, and it won't be for several weeks. I felt that the government had overreached that by threatening with having the boy removed to Cuba, and thereby rendering the appeal moot, there would be an emasculation of our right to an appeal, which don't sit well with people, and obviously did not sit well with this court. And it is for that reason that I felt the government had overreached and deserved to be told what it was told.

VAN SUSTEREN: But given the decision, what do you see as going to happen during this temporary stay, in terms of the child must remain in this country, until the May hearing on the appeal, and the decision that will come some time after. Do you see the child spending time with his father, do you see him living up temporarily in Bethesda community where his father is. Bethesda, Maryland? or is he going to stay there? what do you foresee?

GARCIA-PEDROSA: Well, of course, we can't control what the attorney general would do. We just hope that she respects the legal and judicial process, as we have, and waits for the appeal to run its course.

What we hope is that, particularly in this time of Passover and Easter, when families in this country get together, that this family gets together without these preconditions that the government set before, that they spend time together, that is not to say that the custody has changed. This is a child who has expressed credible information about his father's abuse of him and of his deceased mother, who is afraid to be with his father. And frankly, now that we know he is going to stay in this country for several weeks, there is no excuse for not testing him, just like we test every child, by an expert when that child makes accusations against an adult. That is what should happen next.

COSSACK: Jose, in light of the fact that the Justice Department does have the right, as it stands right now at least, to come and take Elian, why is it so important that the families get together without anybody else present in the room? I mean, what would you attempt to accomplish in that meeting?

GARCIA-PEDROSA: Well, even when we have a situation of an abusive parent, we don't cut off all communication and all contact with the child. And you know what, we have always understood and said this is the boy's father. They should have time together. We just don't want to expose the boy to more abuse, and he doesn't want that either.

COSSACK: What is the abuse?

VAN SUSTEREN: And let me just interrupt for one second. I have -- you know, I have followed this story pretty closely, Jose, I have yet to see, other than statements coming out of Miami, any evidence of the abuse. There have been statements, but in fact there have been, you know, some indication to the contrary, people have talked to Jose -- not Jose, but to Juan Miguel, and thought that he was a fit father.

COSSACK: What abuse are you talking about? I mean, be more specific.

GARCIA-PEDROSA: Well, I will tell you what we have put out. I don't think we should get into -- I should get into discussions between the boy and the treating psychiatrist, and I will not do that. But, for instance, just last week, we presented an affidavit from a neighbor of Juan Miguel's and Elizabeth's in Cardenas, in Cuba, where he detailed his knowledge of the abuse to the point that Elizabeth, at one point, he says in his affidavit, had to be taken to the hospital.

We have said, and the government knows this, because it was told to him, that when Marisleysis -- she told him himself -- that when Marisleysis told the boy recently that he would have to go see his father, his response was, well, I'm only going to see my father, if you go with me, and a police officer goes with us. There have been...

VAN SUSTEREN: Let me turn the corner for one second, Jose. I want to talk about the court's decision yesterday and the law. And Mike, I want to talk to you about it. I am going to put on the screen for benefit of the viewers what the court said in part yesterday in terms of whether or not Elian would get an asylum hearing or not, or whether the attorney general is right in denying it.

And here is what the court says: Is says Section 1158(a)(1) provides that "any alien ... irrespective of such alien status may apply for asylum." The court then went on a little bit further and said, "If Congress had meant to include only some aliens, perhaps Congress would not have used the words 'any alien.'"

VAN SUSTEREN: Is the court's decision right, Mike?

MICHAEL HETHMON, FEDERATION FOR AMERICAN IMMIGRATION REFORM: No, I mean, what the judge is doing is saying we are looking at the plain meaning of the law, and in fact he is only looking at a very small portion of this statute.

VAN SUSTEREN: Well, then let me tell you another part of it. The court also, in a footnote in the decision, talks about Congress's work in enacting this immigration statute. And the court says there -- and let me put this on the screen for the viewers -- "But this court does not make immigration policy, and we cannot review the wisdom of statutes duly enacted by Congress."

And what the court was saying then, Mike, and maybe you can disagree with me, but saying, if Congress intended that children couldn't speak for themselves, they wouldn't said "any alien," they would have said any alien over the age of 18. If you are under 18, you must have someone else speak for you.

How do you respond to that?

HETHMON: Well, the INA, the statute, is full of phrases notwithstanding any other portion of law. And usually that would be put into this section, if that was the case. So to say that we look at this one phrase, and we don't look at the phrases which say the attorney general has absolute discretion on these issues, which is repeated both in this section and in several other sections, is a political decision.

COSSACK: But discretion always means to we lawyers that, in fact, you can't abuse your discretion. She has to act within reason and within what the statute means.

HETHMON: Yes, it would have to be...

COSSACK: And what the court has said is that, in fact, this statute can be interpreted by saying "any," meaning a 6-year-old.

VAN SUSTEREN: Which brings it back to what the court also says in issuing its temporary order that Jose was...

COSSACK: Let me ask you to hold off a second because I've got to take a break, and then we can talk about this. Up next, a look at U.S. family law and whether Elian's age makes a difference in deciding his fate. Stay with us.


The parents of Columbine shooting victim Daniel Rohrbaugh filed a federal lawsuit Wednesday alleging that the Jefferson County Sheriff's Department is responsible for their son's death. The Rohrbaughs and other parents obtained a court order to see investigative records of the massacre. The lawsuit claims someone acting on behalf of the sheriff's office fired the bullet that killed their son.



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: The appeal addressed only the asylum issue, not the care issue. The court's order does not preclude me from placing Elian in his father's care while he is in the United States. The immigration laws clearly call for a child to be placed in the care of a parent in preference to a more distant relative while the child's immigration status is being resolved.


COSSACK: The Justice Department is continuing its efforts to reunite Elian Gonzalez with his father, but when it comes to immigration and family law in the United States, does the age of the child make a difference?

George, most experts, before this decision was written, felt that there was really no chance that it would come down this way. Suddenly it seems now that the court of appeals is saying that a 6-year-old, on his own, or on her own, may have the right to ask for asylum in this country without their parent's consent.

GEORGE DOUMAR, ASYLUM AND INTL. LAW ATTORNEY: Well, that is a change in the law up to now in the asylum area, parents make decisions for children, that children do not ask for asylum on their own. In fact, there is very little chance that a child can make out a credible case for asylum, which requires a well-founded fear of persecution for political or other similar reasons.

VAN SUSTEREN: George, you say it is a change in law, but one thing I think we have to be careful to emphasize, all of us, is what the court did say is: Look, we are not telling you how we are ultimately going to rule on this, and this is just a temporary thing, but at least they are giving some credible weight to that argument.

But George, let ask you this, I was surprised that a child could ever speak for himself or herself in any court of law. But what it says here in the decision is that the existing INS regulations, and also the guidelines have certain instances when a child can speak for himself. So the court suggested it is not such a big departure.

DOUMAR: Well, in the asylum area, it is a big departure because I'm not aware of any case where a 6-year-old or anyone who is not a teenager has been granted asylum or applied for asylum successfully. The statute does says that any alien can apply for asylum. There are other provisions in the regs that provide that the parents can get derivative asylum for children, if the parents are subject to well- founded fear of persecution.

VAN SUSTEREN: But it even says here, though, that in -- what they quote in a footnote is that in some instance -- It says, for instance. quote, "However, a parent or a legal guardian may sign for a person who is less than 14 years old," and the underline "may," which is sort of the implication to me is that they don't have to, but under 14 can sign for himself sometimes.

DOUMAR: Well, I read that differently than the court of appeals, obviously. Someone else may sign for that person under 14 as well, but the parent or guardian can. Maybe it is possible, under some circumstances, and I know the INS does have discretion. There have been circumstances where teenagers have been allowed to apply for asylum, I believe, against the wishes of their parents, where the teenager's has been educated here, brought up here, has some fears of going back to a country where their Americanized views would subject them to some harassment or potential persecution.

COSSACK: Michael, in terms of, you know, we think of this as just a case having to do with Elian Gonzalez, but in fact, these kinds of decisions are much broader than just having to do with Elian Gonzalez. What does this means in terms of immigration policy? or does it mean anything?

HETHMON: Yeah, we are quite concerned that the 11th Circuit may take this as an opportunity to look at the whole broad scope of asylum and perhaps change it by judicial fiat from a discretionary determination based on humanitarian grounds to perhaps propounding some kind of universal due process right that applies to every person on the planet.

COSSACK: In other words, people who get denied suddenly then, who traditionally have not had the right to go to court, will now have the right to go to court, and say: Show why I'm denied.

HETHMON: Yes, this is an immigration lawyer's dream because the fundamental basis of immigration law for your client is delay, delay, delay, and the more appeals, the more due process you get...

VAN SUSTEREN: Except in theory, Mike, is that if they do clarify the law, the we are going to have to be litigating about this particular issue, and it will shorten that aspect.

But let me go back to Jose.

Jose, let me talk about the petition for asylum. Did Elian actually sign his own petition?

GARCIA-PEDROSA: Yes, he did.

VAN SUSTEREN: And was that the only petition filed on behalf of him?

GARCIA-PEDROSA: No, there were two petitions, one signed by Elian himself, and one signed by Lazaro. I would like to say that the INS's own general counsel, Bo Cooper, issued a memorandum about this very issue you have been discussing before we filed our federal lawsuit. And he concluded that the section of the statute, I believe these are almost exactly his words, does not impose age-based restrictions on the right to petition for asylum. So INS has a problem in this, in that its own general counsel has opined the other way.

VAN SUSTEREN: And that's, I guess, why the United States Court of Appeals, when it issues its final decision on whether or not someone under the age of 18 can apply for himself or herself, we will finally get it resolved. But we need to take a break.

Up next, we are going to talk to CNN Justice correspondent Pierre Thomas about the attorney general's next move. Stay with us.


Q: Which 42-year-old lawyer spurred Chief Justice William Rehnquist to stray from his usual swearing-in speech for attorneys practicing before the U.S. Supreme Court?

A: His daughter, Janet Rehnquist, a federal prosecutor in Alexandria, Virginia. "I'm very proud," the chief justice announced.




And joining us now here in Washington is CNN Justice correspondent Pierre Thomas.

Pierre, what is the attorney general -- are there any plans at the Justice Department now as to what to do?

PIERRE THOMAS, CNN JUSTICE CORRESPONDENT: Well, there's a meeting ongoing today, Greta, in which this is topic number A. Sources tell me the attorney general is still committed to reuniting Elian Gonzalez with his father, that she's still trying to work out a way to do that -- to cause as little trauma to the boy as possible, but that she's committed to doing it.

I had a very interesting conversation last night with a pretty senior official who said, look, we want to make this happen, but you've got to think about the endgame: What happens when we get to that house and what happens with the crowd? What happens if, you know, the crowd spills into the street and the cars can't move? that this is a very, very weighty, serious decision and the attorney general will make the call when she's ready to do it.

VAN SUSTEREN: Or if the child clutches at his Miami family and is screaming and crying and we've got our cameras there, as well.


Jose, in terms of -- let's say you get this hearing for political asylum for Elian. How do you intend to make out a case for political asylum? I mean, are you really going to articulate that you think that Elian -- 6-year-old Elian Gonzalez is going to be politically persecuted if he goes back to Cuba?

GARCIA-PEDROSA: Well, I think the threshold issue there is the definition of persecution which, if one takes it as a very narrow issue, which is literally -- political persecution is if you had a dissident thrown in jail or something like that, then obviously that's not the situation we have here.

But we have two of the nation's top experts on asylum on our team, Roger Bernstein and Linda Osberg-Braun, who are prepared to argue that the definition of political -- of persecution -- it's not political persecution -- of persecution is broader than that and, in this case, fits very well into it.

VAN SUSTEREN: George, according to my study, persecution under asylum refers to race, religion, nationality, membership in a particular group or a holding in unpopular political opinion. If you were the lawyer for young Elian, how would you plead this case?

DOUMAR: Well, I'd ask for help and pray if I'm the lawyer for Elian. But what I would do if I was Elian's lawyer is probably start advising the family to educate Elian as to political views, to sensitize him to political opinions, to make him an anti-Castro little boy.

COSSACK: At 6-years-old?

DOUMAR: I think that's the way he's going to win his asylum case because when he petitions for asylum, he's going to be in there with an interview with an officer in a small room. That officer has enormous discretion to make a decision as to whether the asylum applicant has made out a case.

VAN SUSTEREN: But is it enough to say that -- when you talk about -- usually when I think of membership of a particular group, you know, it's a very organized group. Is it enough to say that I'm a member of, now, the Miami -- Cuban-American Miami group and they have been at odds with Castro for an awful long time? Is that enough of a group? And that group does have -- some of their relatives have had a history of being persecuted directly.

DOUMAR: Well, I've seen similar cases where people come to this country, become active in a political opposition of a country back -- of a movement involving government back home and are able to use that to bootstrap into a successful asylum application. That's rare, and it's done, though, and I think that's what they're going to try to do. And if I were advising them, that's what I'd try to do with Elian. But Elian has to show that he himself has participated in a way that leaves him subject to persecution.

COSSACK: Right. And, Michael, isn't this exactly the problem. I mean, how can you -- explain to me, if you can, how you can take a 6-year-old and say, I'm the one that's frightened, I'm the one that's going to be persecuted. I know that Jose feels you can broaden this definition, but explain to me.

HETHMON: Yes, what we've done is we're turning this little boy, basically, into a hostage. I mean, they want him to act like Patty Hearst, you know. I mean, they say, well, if we can brainwash this little boy and get him to say these statements after he's been in the country for six months, that this is going to be used as evidence in an asylum hearing. This is horrifying.

VAN SUSTEREN: George, very briefly: Even if -- let's say Elian is incapable because of his age of actually believing those things against Castro. By merely saying them and offending Castro, would that be enough?

DOUMAR: It might be. What you have to show is that it's a well- founded fear of persecution back home if he offends the government.

VAN SUSTEREN: What if he doesn't have the fear but others have the fear that that's going to happen for him?

DOUMAR: Well, that's not sufficient. He has to have the fear himself under the law.

COSSACK: And they have to find that the 6-year-old understands and does have it.

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

Today on "TALKBACK LIVE," the state of our nation and its children one year after the Columbine tragedy. That's at 3:00 p.m. Eastern time, noon Pacific.

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



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