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Burden of Proof

Elian Gonzalez Case: Will Miami Family Take its Case to the Supreme Court?

Aired June 2, 2000 - 12:30 p.m. ET



JANET RENO, ATTORNEY GENERAL: This is a very important step in achieving the goal we have sought from the very beginning: to give Juan Miguel and his family the opportunity to return to a life together.

LAZARO GONZALEZ, ELIAN'S GREAT UNCLE (through translator): We will keep fighting with the laws that are pertaining to Elian Gonzalez, so Elian Gonzalez can live in a free country like his mother wanted.

GREG CRAIG, ATTORNEY FOR JUAN MIGUEL GONZALEZ: We appeal to Lazaro Gonzalez and to the members of his family to accept this result with grace and with dignity. The time has come to let this family go without further interference or delay.


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: The Elian Gonzalez legal battles are not over. Will the Miami family take its case all the way to the Supreme Court?

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

VAN SUSTEREN: Welcome to BURDEN OF PROOF. Roger is off today, and I'm in Atlanta.

It's been more than six months since Elian Gonzalez was rescued off the coast of Florida, and two months since his father came from Cuba to retrieve the 6-year-old boy. Well, yesterday, Juan Miguel Gonzalez took another legal step towards a Havana homecoming, as a federal appeals court in Atlanta rejected a request by Elian's Miami relatives for an asylum hearing.

Joining us today from Washington is the general counsel of the INS, Bo Cooper.

Bo, thank you for joining us today.

BO COOPER, GENERAL COUNSEL, INS: I am glad to. VAN SUSTEREN: Bo, is there any similar case, since you've been at the INS, where a young boy has asked for political asylum and has done so independent of a parent?

COOPER: We've not had a case that is configured just like this, where there is a parent who wishes the child not to seek asylum and the child has other relatives who wish him to seek asylum. No, it is quite unique in that respect, to my knowledge.

VAN SUSTEREN: What's the closest factual case that you have seen as general counsel of the INS?

COOPER: The closest factual case I've actually seen in reading the authorities in the federal case law to try to figure how to deal with this one, and that was a case in which a 12-year-old child was permitted to apply for asylum independent of his parents' contrary wishes.

VAN SUSTEREN: What makes that different from a 6-year-old child? is it the six years in age?

COOPER: That's a major part of it, although it is not the entire -- it is not dispositive. In that case, the court said that it reckons that 12 was at the very bottom of the range of ages in which a child could have maturity to advance his or her own asylum claim, despite the wishes of a parent to the contrary.

But we don't treat that as an absolute rule, and we try to take into account as carefully as we could all the circumstances in this case, including the situation in Cuba, the relationship of the father with his child, and the ability of the father to be able to independently decide whether or not he wanted his child to seek asylum.

VAN SUSTEREN: What country was that case, Bo?

COOPER: I think that case was the Ukraine.

VAN SUSTEREN: All right. Well, let me ask you this about the decision yesterday. Yesterday, the United States Court of Appeals for the 11th Circuit said that Section 1158, which is the section that we are talking about in this dispute between the Miami family and Juan Miguel, said that the statement "any alien has right to apply for asylum," that the court basically said that Congress wasn't particularly clear, and went beyond the language of the statute, and looked to the policy of the INS. Is that your understanding of what the court did yesterday?

COOPER: Yes, that's basically it. I mean, we have agreed from the very beginning that any alien, regardless of age, may apply for asylum. That was made crystal clear in our decision -- in the INS's decision in January. The question that gets harder is whether any alien who is a 6-year-old child with adults making competing claims has applied for asylum, and that was the question that we were deciding. VAN SUSTEREN: Well, you know what is so curious is that the court said yesterday, because the statute -- they said, because Congress was silent in the statute as to the age that they went behind to look at the policy of the INS. But on April 19, the same court had a very different statement, it said that the statute "plainly says that such an alien may apply for asylum." Why the difference now?

COOPER: Well, that was a statement that was made, number one, in the course of the courts deciding whether to issue an injunction that would require Elian to remain here. In other words, to keep the status quo while the case could be litigated. Number two, that was a statement that was made very early in the process, and the court I don't think had had nearly as full an opportunity to read the papers that both sides submitted and to hear oral argument on the matter.

VAN SUSTEREN: How does a statute, though, be so plain on April 19 to the court, even as sort of a preliminary review, it is a very simple statement, "any alien." And then suddenly, approximately five weeks later, the court seems to have a different view, and suddenly decides not quite so plain and want to get behind it and go to the INS for, basically, its political view of the statute. Why the difference, how do you explain that to the viewers?

COOPER: It has to do with what it is that is so plain in the statute. What is plain is that the statute says that any alien may apply for asylum. We have always taken that to be the case, and that is independent of age. No matter what age the person is, the statute gives you a right to apply for asylum.

The question that the court had to dig into, and that we had to dig into, it was a hard one for us as well, is under what circumstances has a child of six in this case applied for asylum? And addressing that somewhat more complicated question I think accounts for the difference.

VAN SUSTEREN: Well, in addressing that particular question, Bo, as I recall, Elian did sign a petition, himself, as one time, yet the court's opinion yesterday doesn't mention that at all. What do you make of that?

COOPER: I think that the court probably considered that in the same way that we did, that the signature of a 6-year-old child on a very complicated piece of paper is not what is going to guide you one way or the other about whether or not this is a person whose asylum claim ought to be evaluated.

VAN SUSTEREN: Do you think, though, there should have been some sort of hearing to determine what Elian Gonzalez, as a 6-year-old, thought or knew or suspected when he signed his name to that petition? whether he might be an exceptional child or not?

COOPER: No, I don't think that an interview was necessary or would have been helpful to process. It, by no means, reflected a decision to try to cut corners in figuring out whether Elian had applied for asylum. In fact, we went through an extraordinary process involving meetings -- repeated meetings with the father in Cuba, special procedures there to try to make sure the father's wishes were not coerced by the government in Cuba; meetings with the family -- with the relatives in Miami; evaluations of Cuban law. We tried very, very carefully to look for any indications that would help us figure out whether or not the child had applied for asylum.

VAN SUSTEREN: When the United States Court of Appeals granted the injunction on April 19, it said that the injunction would be pending appeal. When does pending appeal stop?

COOPER: Here is when it stops, the court said -- the court shortened the normal period of time that the Miami relatives have to seek a rehearing in the 11th Circuit to 14 days. Assuming that they don't do anything within that period, the mandate of the court would issue, and that is the decision would then take effect seven days after the expiration of that 14-day period; or, conversely, if there is a request for a rehearing by the circuit court, then, seven days after that request is dealt with is when the injunction would end.

VAN SUSTEREN: Bo, if the family elects, the family in Miami elects to go to the United States Supreme Court, it seems to me very unlikely the Supreme Court will take this case unless it can be demonstrated to the United States Supreme Court that another federal appeals court has reached a contrary decision in a sort of similar case. Do you know any sort of similar case where the United States Court of Appeals court has taken a different view than this court?

COOPER: Oh, I don't believe that there is a significant circuit court split on this particular question, when a child of this age can apply for asylum independent of the parent's wishes? But that's a matter for the Supreme Court.

One thing I ought to say, Greta, is that I noted with some surprise this morning that one of the themes that's arisen in a lot of the public commentary on this is that yesterday's decision somehow was bad for children asylum-seekers. I think it would be a mistake -- a bad mistake to understand the decision in that way. One thing about which the INS has been clear from the beginning is that any child can apply for asylum, regardless of age. A second thing is, that that can be true even when the parent wishes to the contrary. But you've got to evaluate the circumstances under which that can be the case, and I think that's a fair approach to asylum-seekers, regardless of their age.

VAN SUSTEREN: Bo Cooper, thank you very much from joining us today from Washington.

And up next, the pulse of Miami and an attorney for Elian's American relatives. Stay with us.


Three years ago today, Timothy McVeigh was convicted of 15 counts of murder and conspiracy for his role in the 1995 bombing of a federal building in Oklahoma City. He is currently on death row.


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


WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: I was very pleased with the decision of the 11th Circuit Court of Appeals in the Elian Gonzalez case, upholding the decision of the Justice Department that he should be with his father.


VAN SUSTEREN: After yesterday's court ruling in the Elian Gonzalez case, an attorney for the Miami family petitioned Justice Anthony Kennedy to keep the boy in the U.S. while the family prepares an appeal to the U.S. Supreme Court. But late in the day, Kendall Coffey asked Justice Kennedy to disregard the request as the family considers its next legal move.

Kendall Coffey joins us now from our Miami bureau. And in Washington, immigration attorney Jose Pertierra. And also joining us from where Elian has been living since his father-son reunion is CNN correspondent Bob Franken.

Bob, first to you. Have we seen any activity coming out of that house to indicate there may be any news on that end?

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: As a matter of fact, what we are told is that they're waiting inside impatiently. We're told that they have considered some other field trips. Remember, they're in one of the nation's tourists meccas here. But what they're really looking forward to, we're told repeatedly, is going back to Cuba. And now they feel that the clock is counting down. Of course, they're waiting for the other side to make its move, whatever it will be. But at the moment, it's sort of watch and wait. They are very happy, of course, but they say they'll be much happier after this is all over.

VAN SUSTEREN: Bob, is there any sort of hint or any sort of idea, do you have any sort of thought that perhaps Juan Miguel might think the United States isn't such a bad place and maybe he might want to stay here with his son? Is there any indication of that at all?

FRANKEN: No indication of that, although that, of course, is the fondest hope that's expressed by the other side every chance it gets.

Remember that at the core of this debate was a claim that he would be returning to a country where human rights were not respected, that type of thing. And there's always been a hope, there's always been a plea from the Miami relatives that he should reconsider and stay in the United States or defect to the United States. But by every indication, everybody who has spoken to us said that he's really homesick, he wants to get back to Cuba, and he really, really wants to get back to Cuba.

VAN SUSTEREN: Kendall Coffey, what is your next stop? You lost 3-0. I've lost 3-0 before in a federal court of appeals. It's not a very good position to be in. What are you going to do?

KENDALL COFFEY, ATTORNEY FOR ELIAN'S MIAMI RELATIVES: Well, we're still absorbing the opinion. The key issue now is whether or not to, first of all, go back to the entire 11th Circuit to seek the en banc reconsideration, to go to the United States Supreme Court directly, or perhaps whether there is any further legal steps forward at all.

Right now, the family's still absorbing those issues. I'm quite sure that we'll be making preliminary decisions within a few days. And whatever legal avenues we might pursue, we will proceed promptly. There is a very large issue that affects children around the nation, that affects aliens around the nation, and that is: Is there a constitutional right to seek asylum in this country? The 11th Circuit's position for 16 years has been no, but other circuits, including the 5th Circuit, have the completely contrary view. And if this case had been brought in the United States 5th Circuit, for example, I believe we would have won at the district court level and won on appeal.

VAN SUSTEREN: Well, you know, Kendall, you raise, I think, what was the ultimate issue: The only way you're going to get in the door of the United States Supreme Court, since it's there by permission -- you have to petition the United States Supreme Court -- is if you can demonstrate that two federal appeals courts would reach completely different opinions, that the 11th Circuit is different from another. What you're telling me seems to be an invitation to the Miami family to go to the United States Supreme Court.

COFFEY: Well, what we're doing, as lawyers should do, is evaluating the law around the country to make a determination as to whether this is the kind of case that the Supreme Court might have a possible interest in. Obviously, it's up to the Supreme Court to decide, but our question is: Are there inconsistencies among the circuit courts around the country? The 2nd Circuit, like the 5th Circuit, seems to find a constitutional right to a hearing. Of course, as we know, this child was never allowed a hearing, and the position of the 11th Circuit has been for years that there is simply no constitutional right on U.S. soil to seek asylum. That's a big issue.

VAN SUSTEREN: Jose, explain something to me so I -- that I can figure out how to explain to people who ask me. On April 19, the United States Court of Appeal in the injunction said the language of the statute was plain: Any alien can apply for an asylum hearing. Now in their decision yesterday, they're saying something different. They're saying that the statute isn't plain. They went behind it to see how INS interprets it. Why the difference? JOSE PERTIERRA, IMMIGRATION ATTORNEY: I didn't think there really is a difference, Greta. The statute is plain: Any alien can apply for asylum, but you have to determine whether a particular alien has actually applied for asylum.

VAN SUSTEREN: OK, let me stop you there. They have the signature of Elian on that petition. Whether it's forced or coerced or fraudulent or whatever, they still have it. And they never went back to Elian to say, is this your signature? Do understand it?

PERTIERRA: Well, there's also the issue of whether it is, in fact, the signature. I would tell you that it's really a drawing of a name, it's not really a signature. And INS has made the determination that he is too young to really understand what it is that he signed. It's virtually the identical I-589, or application for asylum, that Lazaro Gonzalez himself signed.

VAN SUSTEREN: Well, let me ask Kendall.

Kendall, do you know if Elian signed the petition? And what are some of the facts and circumstances surrounding his name appearing on it?

COFFEY: Well, he did sign. And, of course, the INS guidelines, which were promulgated on Human Rights Day in 1998, make it very clear that 6-year-old children, 5-year-old children, all have an independent right to seek asylum under the INS's own guidelines.

VAN SUSTEREN: Were you there or do you know whether or not he understood what he was signing? What can you tell us about it?

COFFEY: I was not there, but as the court indicated in this opinion, as the INS's own guidelines establish, as is the case every week when very small children come forward to seek asylum, they don't need to be able to debate the issues of democratic values versus Marxist values. If they have a fear of returning to a country, that's enough. And it's the lawyers that analyze the immigration issues. And, of course, that applies, frankly, most of the time, to adults too. You don't have to be an expert on immigration law at any age to apply for asylum.

VAN SUSTEREN: Go ahead, Jose.

PERTIERRA: Greta, you know, the most troubling sense -- the most troubling thing about a precedent in this case is if the Miami relatives had won this case, then you would have a situation where small children coming to this country to visit could be taken by a distant relative or even a stranger to the INS office and apply for asylum ostensibly on behalf of these children, and INS would have to go through this long procedure of adjudicating an asylum claim and keeping the nuclear family of the child in the United States while this is going on. And that's what was troubling INS, and I think it's what troubled the court when the court found that INS had not abused its discretion when it decided that only the father in this case may speak on behalf of the boy.

VAN SUSTEREN: All right, we're going to take a break. We'll be right back. Stay with us.


Q: Yesterday, Texas Governor George W. Bush granted his first death penalty reprieve to inmate Ricky McGinn. How many executions has Bush presided over since being elected governor in 1994?

A: 131.



VAN SUSTEREN: The case of Elian Gonzalez and its high-profile media coverage could have far-reaching effects on similar immigration cases in the United States. It may also set precedent for the rights of minor children.

But before we talk about that let's first go to Havana, and get a live report from CNN's Havana bureau chief Lucia Newman.

Lucia, what is happening in Cuba now?


Just a very short while ago, an enormous rally wound up, or is winding up. Since early this morning, tens of thousands of Cuban women have been marching out on the street, they were called by the Cuban government, by the Cuban Communist Party and all the organizations affiliated with it, to go out and protest against the fact that Elian Gonzalez remains in the United States and is still not free to come home to Cuba. They were calling out the latest catch cry here which is: Down with the hoax, liberate Elian.

The Cuban government says it is outraged and furious that the boy can't come back now, and that the Miami relatives are still being allowed an opportunity to have another appeal. And that is certainly what is happening now, the Cuban government and President Fidel Castro are mobilizing as many people as possible to denounce this as what they call another sign of the abuse of Yankee imperialism against Cuba -- Greta.

VAN SUSTEREN: You know, Lucia, that's rather a curious description, a protest rather than a celebration. Juan Miguel, yesterday, before microphones, praised the American court system because he's winning.

Is there any sort of sense of celebration that Cuba viewpoint is at least winning in American courts?

NEWMAN: Well, exactly, I mean, one would have expected at least some kind of a sense of relief or celebration. But while many ordinary Cubans say that that was the court decision that they expected and that they wanted, there is also a very strong sense of frustration because it is not all over yet. And certainly from the point of view of the Cuban government and the family of Juan Miguel Gonzalez, until he's back here in Cuba, whatever happens isn't just good enough. And the fact that it could be delayed indefinitely, while another appeal goes forward, is something that they do not want.

VAN SUSTEREN: Kendall Coffey, in the 20 seconds we have left, give me an idea of the timetable, when is this going to end, you think?

COFFEY: We'll be deciding within a few days and whatever decisions we make, we will move as quickly as possible. We have never done anything but try to move quickly, but there should be due rights, this -- due process, this country is not Cuba. We have rights here, we have are a real legal system.

VAN SUSTEREN: All right, well, that's all the time we have for today. Thanks to our guests, and thank you for watching.

Tune in tonight for a special edition of "LARRY KING LIVE," Larry will be looking back on 20 years of stories on CNN and I'll be one of his guests; that's at 9:00 p.m. Eastern time, 6:00 Pacific.

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



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