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Burden of Proof

Elian Gonzalez Case: 11th Circuit Court of Appeals Hears Petition to Grant Asylum Hearing for Boy

Aired May 11, 2000 - 12:30 p.m. ET



DAVID COLE, GEORGETOWN LAW CENTER: The Justice Department concedes that any alien can apply for asylum. They simply say where the alien is a minor, then you have to look to who can speak for the minor.

TAMMY FOX-ISICOFF, IMMIGRATION ATTORNEY: They'll address whether or not a 6-year-old without his father's permission has a right to pursue an application for asylum.

SPENCER EIG, ATTORNEY FOR MIAMI RELATIVES: In Cuba, Elian's father is not going to be able to protect him. If Castro wants to brainwash Elian, to send him to a reeducation camp, Juan Miguel, as much as he might love his son, is not going to be able to protect him there.


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: The Miami relatives of Elian Gonzalez are in court fighting to gain asylum for the boy. But do they have the legal right to speak on behalf of Elian? Lawyers for his father say only he can speak for his son.

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

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. The case of Elian Gonzalez was heard today at the United States Court of Appeals for the 11th Circuit in Atlanta. The 6-year-old's Miami relatives have petitioned a three-judge panel to grant an asylum hearing for the boy.

ROGER COSSACK, CO-HOST: But Elian's Florida family isn't the only party before the court today. His father's attorney is in Atlanta. Last month, Juan Miguel Gonzalez asked the court to declare him the only person to speak on behalf of Elian.


JAMES CASTELLO ASSOCIATE DEPUTY ATTORNEY GENERAL: Juan Miguel Gonzalez, the father of Elian who has legal authority over him and who has a close and loving relationship with him, has made it very clear that he does not want to apply for asylum on behalf of his son.

GREGORY CRAIG, ATTORNEY FOR JUAN MIGUEL GONZALEZ : Juan Miguel Gonzalez is a loving father who has a right to determine the destiny of his family and has the right to speak for his son, who is a 6-year- old boy and too young to make decisions that are of such gravity as an application for asylum.


VAN SUSTEREN: Joining us today from Atlanta is law professor Richard Freer, and joining us here in Washington, Jose Cardenas of the Cuban American National Foundation, former general counsel for the INS Paul Virtue, and immigration attorney Jose Pertierra.

COSSACK: And in the back, Anna Corpeting (ph) and Lauren Fasset (ph). And joining us outside the U.S. District courthouse in Atlanta is CNN national correspondent Susan Candiotti.

Well, Susan, you were at the court today and inside. Tell us how the arguments went.

SUSAN CANDIOTTI, CNN NATIONAL CORRESPONDENT: Well, this was not unfamiliar territory for the judges, first of all, because up to this point, this three-judge panel has received hundreds and hundreds of pages of extensive legal briefs, so now it was time for them to hear oral arguments. And there was a rapid-fire give and take between these judges right off the bat as they asked questions and got answers from attorneys representing the U.S. government, the Miami relatives of 6-year-old Elian Gonzalez and the attorney for Elian's father, Juan Miguel, who was not in court this day and did not legally have to be.

The question at hand is, of course: Does 6-year-old Elian Gonzalez deserve the right to a political asylum hearing? Attorneys for the Miami relatives say that he does, that this child has never had his full day in court and it doesn't matter how old you are, that any alien should have that right to a political asylum hearing.

The U.S. government's arguments remains the same, and that is that the father has the sole legal authority to speak on behalf of his son, that this child lacks the legal capacity to make such important decisions for himself. And, of course, Gregory Craig, making his very first court appearance in this case, speaking on behalf of Juan Miguel, arguing that the father has the right to speak for his son, and that he asked the judges to make a decision as quickly as possible because, he said, this family is in jeopardy.

VAN SUSTEREN: Susan, we lawyers always try to read the tea leaves when one particular lawyer gets questioned in a particular fashion or gets grilled so that we can try to read the tea leaves. Did any one of the three sets of lawyers get grilled in particular, have more questions sent in his direction?

CANDIOTTI: Really, in my opinion, Greta, it seems as though the judges sprinted out equally this time around. They grilled everyone and had some very key questions to ask of each and every one of them. For example, they wanted to know, well, you know, if the mother had died - actually had survived this journey, would her asylum claim have been heard. Well, of course, the government said, well, naturally, it would have and that many other Cubans, the majority of them, are - have their asylum claims heard and are allowed to stay, but it's a different circumstance here.

And then one of the attorneys, a government attorney, was asked, "Well, what if the child was being sent back to a country where children are regularly mutilated? Would you be sending a child back to that country? Would an asylum claim be heard in that case?" And the government said, but that's not the situation here. However, they compared it to maybe being sent back to Iraq or to China, and the government argued that in that case, they would still have to defer to the father in the absence of any objective evidence that the father was abusive in a case like that.

They spread the questions equally out...

VAN SUSTEREN: Was anyone - were any of the lawyers stumped on a particular question?

CANDIOTTI: I don't think anyone was stumped. They were able to answer each question thoroughly. And the judge - one of the judges made it clear before any of this began that they said, "Don't be looking to try to read any tea leaves in our questions because sometimes we'll do that just to throw you all off. So we might be thinking one thing and agreeing with the lawyers but ask you a question in the opposite direction."]

COSSACK: Richard, explain to us the procedure now of what happens in this courtroom. We know about the hearing. What will the judges do? How will they decide on what their decision is going to be?

RICHARD FREER, FEDERAL JURISDICTION SCHOLAR: Well, I think right now, there are three people in the world who know exactly how this case is going to come out, and that's the three-judge panel. After the oral argument, they retire to conference, only they attend the conference - no one else is there, not even the law clerks - and the judges will decide the case. At that point, the senior most judge on the majority side will assign the opinion. Either he will draft it himself or he will assign it to somebody else in the majority. It may be a three-to-nothing opinion, it may be a two-to-one split. There may be a dissenting opinion.

But what the public needs to realize is that this court just doesn't announce the result. It does so but it's in the context of an opinion that lays out the legal reasoning for that result for that conclusion. It's going to take a while to draft that. The 11th Circuit, ordinarily, you'd expect to wait a couple of months to hear from them on their final opinion, but I think they're aware this is an expedited case. They expedited oral argument on it. Apparently, the discussion by Judge Edmundson before the oral argument even began today indicated that he realized this is a special case. So it wouldn't surprise me if we got an opinion in a matter of weeks. I would say weeks rather than months but I would also say weeks rather than days. COSSACK: All right, let's take a break. When we come back, Elian Gonzalez signed the asylum application filed by his great uncle, but is he mature enough to make such a decision? Let's find out what the law says about his maturity when we come back.


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.


CRAIG: We have a real family here. It is a close family. It is a loving family. It is a unit. It is intact. It is functional. And it is also in jeopardy, threatened by this court who we hope will relieve it from that threat soon and by Lazaro Gonzalez's indefensible claims to speak for Juan Miguel's son without Juan Miguel's consent and over his objection.


COSSACK: Dueling family members of Elian Gonzalez were in a U.S. Circuit Court this morning. The Cuban boy's Miami relatives were arguing for an asylum hearing but his father's attorney wants the court to declare him, Juan Miguel, the only person who may speak for Elian.

Paul, got you in the middle here so let me first start off and ask you to sort of define the issues that the 11th Circuit is going to decide today.

PAUL VIRTUE, FORMER GENERAL COUNSEL, INS: Well, it's - I think the parties are characterizing the issue differently but if I can point to the Justice Department's brief, the Justice Department has basically characterized the issue as whether Elian has effectively submitted an application for asylum, not whether the law would permit a 6-year-old child to apply for asylum but whether in this case, the boy has indeed applied for asylum through his uncle or directly.

COSSACK: And let me just ask you...

VAN SUSTEREN: Paul, is that issue down below, though? I mean...

COSSACK: Well, what's the other side? I just want to find out what the other side is saying. How is the other side going to phrase the question?

VIRTUE: Well, the other side is saying that the law, a strict reading of the law requires a hearing if any alien submits an application or submit what purports to be an application for asylum. So they're saying the law is clear, he deserves a hearing. VAN SUSTEREN: OK, we've got two different issues, where they frame the issues differently. The trial court judge decided a particular issue. Was it the Justice Department's issue or was it the issue raised by the Florida family?

VIRTUE: Well, the court really didn't frame it in exactly the way the Justice Department or the family did either. Basically, the court has said that the attorney general, in applying the guidelines in determining whether there should be an asylum hearing or not - and the court has said she has the discretion to make that determination - acted reasonably. And so the court upheld that determination.

VAN SUSTEREN: But why isn't that the issue before - because that's the complaint, that the trial court judge was wrong about that particular decision. So why in the U.S. Court of Appeals are the two parties seemingly framing different issues?

VIRTUE: Well, I think they're just characterizing it a bit differently but that really is the issue before the 11th Circuit. The question is: Did the attorney general, in applying the guidelines that the INS has published and indeed that are based on the United Nations guidelines for refugee children, did the Justice Department act reasonably and responsibly, or was it an abuse of discretion in how they went about making a determination that this boy has - lacks the capacity to make that application.

VAN SUSTEREN: But do you agree it's important, I mean, at least to decide what the particular is before the court?

VIRTUE: Oh, it's critical.

VAN SUSTEREN: I mean, whoever wins in terms of putting the issue before the court is likely to be the winner in the end.

VIRTUE: Sure. And the court may come up with its own formulation of the issue.

COSSACK: All right, Jose Cardenas, now, I want you to argue for me why and justify for us why and how a 6-year-old child, even though he printed his name on application, can make these kinds of decisions in light of the fact that there is a father who is apparently a good father, who stands ready to make decisions for him. And I don't think you can just say, well, it's wrong to send someone back to Cuba.

JOSE CARDENAS, CUBAN AMERICAN NATIONAL FOUNDATION: Well, Roger, the law is that any alien can apply. Now whether - you know, good people can disagree as to how - where the age of reason is reached and where it can be cut off. But until the law is changed, I think that we have to go by the law as it is written: Any alien can apply for asylum.

And I want to make clear that we have to also understand that, you know, this is not a - this is not happening in a vacuum, this is not a classroom in a law school. Cuba is a real place that exists and it, for the last 40 years, has been singled out as a systematic and major violator of human rights. So... VAN SUSTEREN: So you take into consideration where he's going as a factor in making the determination to the U.S. Court of Appeals? Is that right?

CARDENAS: Absolutely.

VAN SUSTEREN: Jose, is that -- Jose Pertierra, is that a relevant factor? When you look at the issue, does it matter where the child goes, whether it's back to, you know, France or to Cuba? Is that for the court to decide or to look at?

JOSE PERTIERRA, IMMIGRATION ATTORNEY: No, Greta, I don't think it's at issue at all. This case is not about putting Cuba on trial even though some people in the Miami-exiled community would want it to be so. The issue in this case, as Paul Virtue has said so clearly, is really a battle of the issues, if you will. However, in order to reach the issue of whether a 6-year-old child may apply for asylum, you have to first decide a threshold issue, or you want to call it a meta-issue, which is: Who are the litigants in this case and who's speaking on behalf of these litigants?

VAN SUSTEREN: But, Jose, there's another issue, though, too, is they're not - and this may be the middle ground how the United States Court of Appeals decides this. Instead of saying, you know, the family wins, the father wins, is the INS should interview the child and see what his intellectual development is, what he understands.

PERTIERRA: That's a good point, Greta, and I think the INS should have interviewed this child to determine legal capacity. They didn't, I believe, because it is axiomatic, as Judge Bailey said in her Miami dismissal of the Miami lawsuit for custody. It is axiomatic that 6-year-old children cannot make life-altering decisions. But I think INS should have interviewed him for...

VAN SUSTEREN: But there's precedent, unfortunately, where...

COSSACK: Jose Cardenas, if, in fact, you get to that point where the INS interviews the 6-year-old Elian Gonzalez, don't you lose? I mean, wouldn't the INS - isn't it a foregone conclusion that they're going to say that, we don't believe that he can make this decision?

CARDENAS: Well, I think that the Clinton administration has rigged this game from the beginning, that they want this boy going back to Cuba. But I want to make a point that the issue of who speaks for Elian. Unfortunately, what the 11th Circuit is not going to discuss is who's speaking for Juan Miguel. Since he has been in this country, he has been under the absolute control of the Cuban government and...

VAN SUSTEREN: Which is a wholly other issue not before the court...

CARDENAS: Exactly...

VAN SUSTEREN: ... but we need to take a break. If Elian's Miami relatives lose their case for an asylum bid, is this their last stand? Find out where this case goes from here when we come back.


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VAN SUSTEREN: If a three-judge panel in Atlanta rules against the Miami relatives of Elian Gonzalez, there's no guarantee that the full court or that the United States Supreme Court will consider an appeal. The court ordered that Elian should remain in this country until they rule in today's hearing.

Rich, let me go to you. You studied the United States Court of Appeals 11th Circuit. That's your area. What can you tell me about these three judges?

FREER: Well, Judge Edmondson, of course, is the senior judge on this panel and is probably the easiest to typecast as a conservative judge. He's a 52-year-old Reagan appointee, was very active in the Reagan campaigns here in Georgia politically. He went directly from private practice to the 11th Circuit. He's seen as the leader of the conservative wing on this court and his judicial philosophy has been likened to that of Justice Scalia in terms of plain meaning and the like.

Judge Dubina has been on the bench just a little bit shorter period. He's also 52-years-old, a Reagan appointee and much tougher to characterize. He, like most of the 11th Circuit, is seen as somebody who's basically deferential to the government in immigration matters.

Judge Wilson, 45-year-old Clinton appointee is the only black member of the 11th Circuit. He's only been on the bench for a year so there's not much of a track record with him. He is the only judge from Florida but he is not from Miami. He's from Tampa. I believe he was the U.S. attorney in Tampa.

VAN SUSTEREN: You know, Paul, the interesting thing about this case, I think - and tell me if it's true - is that Rich says that what the judges will do over the next few weeks or months is lay out legal reasoning in support of their decision. Is this the type of case where a reasonable person could conclude that the child should have an asylum hearing and a reasonable person could conclude that he's not entitled to an asylum hearing so you can write an opinion either way?

VIRTUE: Well, I think it is. And probably most cases are like that. I think you have reasonable and competent attorneys, you know, who have written briefs on both sides of this issue.

COSSACK: It's not unlike most cases in that way. VAN SUSTEREN: But then do politics play a bigger role?

VIRTUE: Well, not necessarily politics but I think...

VAN SUSTEREN: Let me interrupt for one second. We have to go to Jeanne Meserve here in Washington.




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