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Burden of Proof

Federal Appeals Court Rejects Asylum Hearing for Elian Gonzalez

Aired June 1, 2000 - 12:30 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: A federal appeals court hands down its decision in the Elian Gonzalez case, rejecting a request for an asylum hearing.

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

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. I'm in Atlanta and behind me is the United States Court of Appeals for the 11th Circuit where, 90 minutes ago, the court handed down a decision in the Elian Gonzalez case.

ROGER COSSACK, CO-HOST: Now, the three-judge panel ruled against a request by Elian Gonzalez's Miami relatives, rejecting a request for an asylum hearing.

And joining us today from New Orleans is George Fowler, attorney for the Cuban American National Foundation. And here in Washington is Mandy Mathis (ph), former INS general counsel Paul Virtue and immigration attorney Jose Pertierra. And in the back row, Virginia Camerons (ph), Denny Sumpter (ph) and Trent Goins (ph).

VAN SUSTEREN: And joining us outside the Department of Justice is our Justice correspondent, Pierre Thomas.

Pierre, what's the reaction to this decision by the Justice Department?

PIERRE THOMAS, CNN JUSTICE CORRESPONDENT: Greta, Justice Department officials are elated. They're very happy with this particular decision. They feel like they've been vindicated. There have been a number of missteps in this particular case, but they say now, for the second time, a major ruling in their favor holding that the father speaks for the boy. They're very, very happy, Greta.

COSSACK: Pierre, what is the plans that the Justice Department have right now. I mean, are they expecting that there'll be an appeal from the Miami family, or do they expect that this case is pretty well over?

THOMAS: Well, most of the officials I talked to expect an appeal. They're waiting on this scheduled press conference, which we think will be coming momentarily, to see exactly what the attorneys for the Miami relatives will do. The ball is in their court, the Justice Department is waiting. They expect that they will seek an appeal.

COSSACK: Pierre, in terms of the 14-day rule that we've heard about, that what the 11th Circuit has sort of shortened the appeal, how does the Justice Department feel about that, and how do they interpret it?

THOMAS: Well, one of the things they pointed out is that this was an expedited appeal in the first place. So they're not totally surprised that the court would, in its ruling, try to move this process along. So they're hopeful that this process will wind down much more quickly than anticipated. Earlier, they were saying that if they had not heard from the court specifically, they would expect a 52-day period for the family to have a chance to appeal. The court has obviously decided they would like to move this along much quicker than that.

COSSACK: All right, George Fowler joins us.

George, this is not a happy day for you and your group. What are your plans and your reaction to the decision?

GEORGE FOWLER, CUBAN AMERICAN NATIONAL FOUNDATION: Well, it's not a happy day for us, it's not a happy day for America, and it's not a happy day for the principles that America stands for. We respect the decision of the court of appeals. We believe it's wrong. We have lodged an appeal before the United States Supreme Court.

But I cannot understand how this administration, or Justice Department officials, could be happy about sending a little boy back to a totalitarian regime where he will be told what to say, what to do, what job he will go to, what right to a religion he will have, and he will have no right to religious beliefs. It's a communist dictatorship. It's a sad day for America. It's -- I've never seen this in my lifetime, that we have sent back a person, in this case a child, back to a communist dictatorship.

You know, Elian Gonzalez will never be able to enjoy the right that foreigners do in his own country. Foreigners can go to hotels and enjoy the beautiful beaches and the Cuban sun. Cuban people are not allowed to go there.

COSSACK: George, let me...

FOWLER: And I -- let me say one thing, because I was very upset at CNN. You all did a program on the young pioneers in Cuba and made it look like Elian Gonzalez was going to be in a day camp. That is an atrocious distortion of the truth, Roger.

COSSACK: All right, George, let me just interrupt you. And I understand you have your opinions, but let me take us back a little bit on a legal course, if I could, for a second.

FOWLER: All right, let's do it. COSSACK: All right, you have -- your group has filed an appeal with the United States Supreme Court. The 11th Circuit Court of Appeals has said you have 14 days if you want to appeal with us. Is it your appeal with the Supreme Court -- does that indicate that you're not going to go back and ask the 11th Circuit for a rehearing or an en banc hearing, or you're going directly to the Supreme Court?

FOWLER: No, Roger, we filed it today, this morning, before the decision. We didn't -- excuse me -- we lodged it with the United States Supreme Court. We did not file it. And we are now weighing our options and making a decision as to where, you know, where this appeal goes. Obviously, we were waiting to see what the decision was. It went against Elian Gonzalez. The likelihood is that we need to weigh whether we go directly for the Supreme Court or ask for a rehearing en banc before the 11th Circuit Court of Appeals.

Yes, Greta.

VAN SUSTEREN: Let me ask you, it's a 3-0 decision. I've been on the receiving end of 3-0 decision. That's very bad news when the issue is abuse of discretion. Do you have any expectation you could win in the United States Court of Appeals or the United States Supreme Court?

FOWLER: Yes, we do. We feel very strongly that our case is correct. In fact, we took solace in the statements made by the 11th Circuit Court of Appeals that they were somewhat reluctant to send a child back to a communist dictatorship, a totalitarian regime. But they said it was within the ambit of the -- of the discretion of the Immigration and Naturalization Service. We respectfully disagree with that. We believe that we should get relief on that.

And let me tell you one thing. Be very clear: All right- thinking Americans should be abhorred by this decision and the result that it could lead to, and that is to send this little boy back to a country where he will be a prisoner. And we will do everything within our power within in the rule of law, all right? We don't use guns. We do not use guns. We go through the court system. We're going to respect the decisions, but we're going to take this up to the United States Supreme Court, to the highest court of the state until Elian Gonzalez has the right to live in the United States and enjoy the opportunities and the freedom that all the rest of the people in the United States...


COSSACK: George, let me just interrupt you a second.

Jose, let me ask you this question: There does seem to be an internal conflict in this decision, and let me point out to you what it is. The court talks about special circumstances. They say, look, a 6-year-old can't file. He's not able enough to do that. Unless there's some kind of special circumstances, he should be represented by his father. But then they go on to say that Cuba is a totalitarian government, but that's not a special circumstance. Well, what is? JOSE PERTIERRA, IMMIGRATION ATTORNEY: Roger, I think what you have to be clear about is that the court is not deciding this case as a tabula rasa in terms of who is best able to speak for this child. What the court is deciding is a very narrow legal issue, which is whether the attorney general acted unreasonably when she decided that only the boy's father could speak on his behalf. That's why the court in its first paragraph makes it very clear that this case is really about separation of powers.

COSSACK: Let me interrupt you a second.

The Miami family is holding a news conference now. We take you there immediately.


In a case that has been defined by miracles as well as heartbreaks, this is a very painful moment. We're obviously disappointed by the appellate outcome. But at the same time, I have to tell you how appreciative we are to the appeals court for the way they have handled this matter, allowed us full opportunity to present our arguments. And while we may disagree with the outcome here, I can tell you it feels mighty good to be in the court system of this country rather than dealing with whatever they call justice 90 miles from our shores.

To talk a little bit specifically about the opinion and what it means is going to take perhaps a few days to absorb, but I'd like to talk about a few preliminary observations, give you a sense of where I think the case stands right now and what we might be looking toward, and at the same time give some others a chance to talk to you.

I think it's fair to say that this decision does not constitute a resounding endorsement about the way the INS has handled this matter. To the contrary, in the final paragraph of the case, they point out very specifically that this is a matter of deferring to political will, and that the decision the INS made was within the outside border of reasonable choices.

They also take very square exception with a notion that's been put out by the administration that in their decision to deny this child any sort of hearing, any sort of day in court, that that was not an INS decision that was required by the law.

To the contrary, they made it clear that that was a political decision that the INS made within its discretion. And they couldn't have been more specific in stating that the premise that the INS or the administration is, quote, "following the law" is wrong. Indeed, they say: "It has been suggested that the precise policy was required by law. That characterization of the case is inaccurate." And what they go on to say, bottom line to the decision, page 15, is that choice was the sole prerogative of the executive branch.

So I want to make it clear about what this opinion says and what it does not say. It says that there's a whole lot of room that the INS has to make decisions but this was not the necessary outcome, there could have been other outcomes, that this was a decision, a call, that the executive branch made, and it was within the outside border, outside border of reasonable choices.

There are some other things in this opinion that are also important. I don't want to tell you what a privilege it's been to represent this man and his family. And I also want to tell you that the court itself said that this child has been ably represented. Those are the court's words, ably represented by Lazaro Gonzalez. And this family, I have never been prouder of clients and people I have worked with in my life, deserve recognition by this entire community and nation of the selfless, courageous, inspiring battle that they have made on behalf of this child. And in saying that Lazaro Gonzalez ably represented Elian, they rejected, as they have, the request of Juan Miguel Gonzalez that he replace Lazaro as the child's representative in this litigation. And that has significance in a lot of ways that we will continue to talk about and absorb in the next few days.

One of the important things is, with the declaration that Juan Gonzalez's move right after the raid, predictably right after the raid, to replace Lazaro so he could take control of the case, and obviously drop it, we now know that Lazaro is the able representative of this child who has been validated in that capacity.

And so, we demand that the INS and that the father's attorney open the doors that have been shut to this child's U.S. family, to his clergy, to medical representatives. This family and Lazaro have been validated as the proper adult representatives. It is high time that their attempts to hide the child from U.S. family, from U.S. clergy, surround him with communist government officials, and put a blue bandanna and a communist youth pioneer uniform on this child, that has gone on too long. And we do intend to, over the next few days, pursue steps to assure access by U.S. relatives and U.S. clergy is no longer denied.

A few other points that I will address quickly, and then I would like others to have a chance to speak to you as well. Just so you know, they emphasize in this opinion that there could indeed be a valid asylum claim. There's been a lot said about whether a 6-year- old child could have a valid asylum claim. They say that it could reasonably be found that he does. It could reasonably be said that he faces persecution in Cuba, but that the decision to effectively disallow his application was within the broad discretion of the executive agency.

There are a lot of points in this opinion that I want you to read through because you are going to agree that this is not stand up and applause day for the INS; that this an occasion where the courts state, as a matter of the separation of powers, that there is such a broad discretion within the executive branch, within the administration itself, that they simply cannot overrule on the basis of this record, those decisions made by the INS.

Now, where the opinion stands today, and the case stands today, is that there is a 14-day period allowed for any motions that we might file seeking rehearing either before the same three-judge panel or before the entire appeals court. During that 14-day period, the injunction will remain in effect. And the court is very specific that the injunction against removing Elian from this country will continue until the mandate is issued, and what that means in every day terms is until either the 14-day expires, or if we seek rehearing until that rehearing motion is resolved.

We have made no decision at this time as to whether to seek rehearing. We have made no decision at this time as to what further relief we might seek from the United States Supreme Court. But I want to emphasize something, although this case is about Elian, and about a family, indeed about this community that we live in and that we love, a community that has been itself attacked and challenged by virtue of this case, this is also a case, though, that affects refugee children around the country, and indeed around the world.

This is also a case that will affect the constitutional rights of every alien on U.S. soil who seeks asylum. This court, the Atlanta court, has previously, for over 15 years. taken the position that aliens who seek asylum on U.S. soil do not have a constitutional right; other courts disagree, courts in New York, 5th Circuit in New Orleans.

And because of the profound disagreement on such an important point that affects literally hundreds of thousands of people every year, we will indeed be giving serious consideration as to whether this matter should be presented to the only court that can decide a difference of opinion, a conflict, between the federal appeals court and that is the Supreme Court of the United States.

I again want to reiterate the honor it has been to work with this family, and the brilliant legal team that I've had a privilege of serving on. This court, the federal appeals court, the district court before it have been very fair, and I'm very proud to be in this country. I'm very proud to be part of a legal system that has at least given us our chance, and I still believe that that legal system may yet allow this child, at long last, to have a day in court before he is relegated to a totalitarian regime, where there are no rights of any kind and there is nothing like the legal system that we cherish in this country.

I want to step...

QUESTION: What did you ask Justice Kennedy to do today...

COFFEY: I will available to answer questions, but what I would like to do is to allow others to have their say, and then I will step back up.

COSSACK: That was Kendall Coffey, one of the attorneys for the Miami family, indicating his view of what the decision from the 11th Circuit Court today. He initially indicated that he felt that the court, while ruling against him, did find that this was on the outside parameters of what the INS could do. He further indicated that they had not yet made up their mind whether or not they are going to appeal to the Supreme Court, but they do feel that they do have a good case to take to the Supreme Court because, as he indicates, he believes there is a conflict between the courts in the lower courts, and that is the kind of thing the United States Supreme Court would normally decide.

He further indicated how proud he was to represent the family and he issued a warning about what this decision meant for all others who apply for asylum in this country.

We will come back to the news conference, CNN will bring you back to the news conference if and when there are further discussions by the Miami family. And I want to thank Pierre Thomas for helping us in this.

Greta, are you there?

VAN SUSTEREN: I'm still here, Roger.

COSSACK: Greta, your reaction.

VAN SUSTEREN: I'm still here.

Well, actually, you know, the one thing that is so surprising. I mean, obviously, you know, the family has seized upon the language that is very favorable to them. The court basically said: Look, you know, we may disagree, meaning all Americans, about whether this should happen or should not, but that it was not unreasonable for the lower court to reach its decision that it did.

But in terms of talking about persecution, I think very important words from the decision says: Not all exceptional treatment is persecution. Persecution may have a legal definition, and no one out there is applauding any type of communism or any type of communistic government, but the problem is here, was it an abuse of discretion when the INS said, no asylum hearing. The trial court said: We agree with INS. And the United States court of appeals say: Look, we may disagree, but it is not an abuse of discretion to reach that decision.

COSSACK: You know, Greta, one of the things I found interesting in this matter was they sort of, as you know, they articulated there is four grounds that they kind of reviewed it on, and they said, you know, a child -- a father should speak for the child unless there is special circumstances. And then they go on to talk about, you know, Cuba is a totalitarian government, but they don't say that that's a special circumstance. They sort of say that's just unfortunate. Is that surprising to you?

VAN SUSTEREN: I think -- well, you know, Roger, what I think it was is I think it was an aide to the United States court of appeals judge, speaking on behalf of the court, maybe venting a little bit about his belief about Cuba. But the bottom line is he's got to examine the law and the way the courts of appeals look at these issues is on abuse of discretion, not whether communism is good, not whether they want Elian Gonzalez to stay in this country, but simply: Was the lower court wildly outrageous, was the decision so bizarre, was it an abuse of discretion? And they are not saying they agree, but they are saying it simply wasn't abuse of discretion; and by law, they are required to affirm that decision.

COSSACK: Yeah, I think, Greta, that once they narrowed that issued down to whether or not the INS abused their discretion, I think the Miami family's status in this case was pretty well cooked.

Because to define that the INS abused the discretion is a very difficult standard. And I think once they narrow it to that issue, it's well all over. Don't you agree?

VAN SUSTEREN: I agree, Roger.

COSSACK: Oh, boy, that's a first.

All right, let's take a break. When we come back, more on the 11th Circuit decision, when we return. Stay with us.


COSSACK: The news conference in progress in Miami by the Miami family. Let's listen.


MARISLEYSIS GONZALEZ, ELIAN'S COUSIN: And above all, faith in the man that let Elian get to this country safe and sound, which is God. I will keep my faith and I think the battle is not over with yet. He's still here. He's still in this great country.

And I hope that the laws of this country favor him and give him the opportunity that we've always asked for, for him to seek asylum or to let this go to a family court.

I also wish to be able to see him again. I don't see why we're not allowed to see him. We took care of him for five months, and we did the best we can. And I feel that we, as a family, should be able to see this little boy.

I happened to call the house where he was staying in Maryland and I spoke to one of the mothers of one of the little girls, the pioneer that came from Cuba. And I asked her to please let me speak to the boy. She said: "Who's Calling?" I did not deny myself and I said: "It's his cousin, Marisleysis."

Right there and then she started laughing and saying: "Oh, no you cannot talk to him." And I said: "Why not?" And she says: "From everybody, you are the one that can't talk to him." I kept asking: "Why not me?" She just laughed and said: "No, not you, you no, no way, not you."

So,I hung up the phone and I tried calling back again to see if Elian will be the one to pick up the phone. The next day I called around 10:00 in the morning. One of the little classmates picked up the phone. And as soon as I was going to ask her to please let me speak to him, she picked up the phone on the other line and she said, screaming at her, arguing with her to please hang up. And the little girl said: "No. Who is it? Who is it?" So, I hung up the phone. And I don't see why -- they are not even family members. I respect his teacher and so, but I took care of him with my family for five months. And now they're bringing classmates, who practically only spent with him maybe a year in class, did not go with him home, did not take care of him.

And now I stand here and, not only me, but the press are not allowed to see the boy; have not tried to do something possibly to see the boy, I think. Because whenever they wanted to see him in my house they would insist a lot. They would insist a lot. I haven't seen them insist in Washington. And I think if you guys could help out in that I would really appreciate it.

And I'm looking forward in being able to see Elian again. And I still keep my faith. And that's something that I won't lose. I will always keep that to the end. I think that there's nothing more powerful than God, and I could still see that because God has given him strength and he's a very strong boy.

And I think they should allow us to see the boy. They shouldn't be afraid of giving us the opportunity. I think the reason why they don't let us see the boy is because they're scared of the boy's reaction when he sees us, because they know he's going to run to us.

We've all seen pictures; we've all seen him in the (INAUDIBLE). The face is not the same. The pictures are not the same. You don't see the same little smile. You don't see the same little boy you saw when he was in my house.

And, if there's something I could say, it's that I love him and I'm looking forward in seeing him for once more.

And thank you.


COSSACK: We're now going to take you to Dallas, Texas to CNN's Charles Zewe, for the latest update on the Billy McGinn death penalty appeal -- Charles.

CHARLES ZEWE, CNN CORRESPONDENT: Well, Roger, after 131 executions here in Texas during his term as governor, Governor George Bush has apparently decided to go ahead and recommend a reprieve for Ricky McGinn, who was set to be executed tonight. Now, technically, because Bush is out of the state campaigning and the lieutenant governor is also out of the state, the decision -- the final decision on this falls toe State Senator Rodney Ellis, a Democrat from Houston. That announcement on reprieve from McGinn is expected at about mid- afternoon here.

McGinn claims he's innocent of murdering his 12-year-old step- daughter Stephanie. In 1993, he is accused and was convicted of raping, kidnapping and then murdering the child near West Texas, near Abilene. He has said he is innocent of all of that. DNA tests done shortly after the time of the conviction showed that there was no conclusive proof that he did it one way or the other. McGinn and his lawyers have been pushing for an additional testing on a semen stain found on the child's shorts. That will now presumably happen once a reprieve is granted. But again, Ricky McGinn, set to die tonight by lethal injection in Texas, has been granted -- or will be granted a stay shortly here by the governor.

Charles Zewe, CNN, live, Dallas.

COSSACK: All right, our thanks to Charles Zewe.

There will be more on the Miami family's news conference carried today live on CNN. Please stay with us. That's all today on BURDEN OF PROOF. We will see you tomorrow.



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