Elian case reaffirms parent rights

US court removes a major hurdle to the boy's return to Cuba with his dad.

Elian Gonzalez will return to Cuba.

It may not happen immediately, but that prospect is considerably closer now that a federal appeals court in Atlanta has ruled that the boy's father has the legal authority to decide where and how his son should be raised.

In a major victory for the rights of parents to direct the lives of their young children without second-guessing from the government, the 11th US Circuit Court of Appeals unanimously ruled that six years old is too young for a child to decide to seek political asylum in the US.

"The message of the decision is that there is a certain sanctity to family relations that is above politics," says Julia Sweig of the Council on Foreign Relations.

In reaching its decision, the appeals court affirmed that Attorney General Janet Reno has the necessary discretion to determine prior to any hearing whether an immigrant of such a tender age may be excluded from seeking US political asylum.

The ruling does not end the six-month legal dispute, but it is a substantial victory for Elian's father, Juan Miguel Gonzalez. Elian's Miami relatives, who are seeking to keep the boy in the US, are expected to appeal the decision to all 12 judges on the 11th Circuit, or to the Supreme Court. They have two weeks in which to do so.

The heart of the legal dispute is whether a six-year-old boy may apply for US political asylum over his father's objections.

Ms. Reno determined that in Elian's case, his father was legally entitled to decide whether his son should remain in the US or return to Cuba to live with him.

Attorneys for Elian's Miami relatives have waged a vigorous legal battle to keep the boy in the US. They say Elian's mother died trying to win American freedom for her son and that her wish should be honored.

But lawyers for the US government and for the father, Juan Miguel Gonzalez, argue that the legal authority to make such decisions resides with the surviving parent.

At issue in the appeals case was whether Elian was entitled to an asylum hearing, or whether that process could be cut short by the US attorney general.

Justice Department lawyers argued during a May 11 hearing in Atlanta that Congress granted the attorney general and immigration officials the discretion and authority to make such decisions.

Lawyers for the Miami relatives countered that the issue isn't the discretion of the agency but whether the government was following its own regulations. They point to US immigration law which states that "any alien" may apply for political asylum in the US.

Government lawyers countered that Elian's situation was different because no valid application was ever submitted in his case. They say that Elian was too young to apply for asylum and that his great uncle, Lazaro Gonzalez, does not have standing to file an application in the face of objections by Elian's father.

The saga of the little Cuban boy began on Thanksgiving Day.

Elian was rescued by two fishermen after his mother and 10 other Cuban rafters died in the treacherous Florida Straits while trying to reach US shores. The then five-year-old boy had been drifting alone in the open ocean in an inner tube.

After a short stay in a south Florida hospital, US immigration authorities turned the boy over to his great uncle in Miami. At the same time Elian's father, who lives in Cuba, asked that the boy be returned to him.

Rather than immediately taking action in the case, US immigration and Justice Department officials took roughly a month to decide that Elian's father - as his sole surviving parent - had a right under both US and international law to decide whether his son would seek political asylum in the US or return to Cuba.

In the meantime, the debate over the boy's future became a major rallying cry within the Cuban-American community in Miami. Many saw the case as an opportunity to shine a spotlight on the Communist government of Cuban President Fidel Castro.

In Havana, Mr. Castro sought to use the international tug-of-war over the boy to try to discredit the Cuban-American community, which he calls the Miami Mafia.

But the controversy didn't stop there. It also became a focal point for a wide range of special-interest groups in the US. Father's rights groups backed Juan Miguel's attempts to return his son to Cuba. Children's rights advocates argued that the father's interests should be secondary to Elian's own interests.

They maintained that a guardian should be appointed to determine what's best for the boy regardless of his father's wishes. Anticommunists in the US argued it would be immoral to return a young boy to a totalitarian regime that would subject him to brainwashing.

Even the presidential candidates weighed in on the subject, seeking to win the approval of the politically active Cuba-American community. Both Vice President Al Gore and Texas Gov. George W. Bush opposed the Clinton administration's decision to return the boy to his father. But that stance backfired on Mr. Gore, who was seen as pandering to the Cuban-American community.

In a broad sense the entire debate over Elian has harmed the Cuban exile community. Rather than gathering support for a tougher stance against Cuba and Castro, the case has struck a chord with many US parents, who sympathize with the Cuban father's plight.

And that has sparked renewed interest in reassessing US-Cuba relations, including the 40-year embargo of Cuba.

"We're entering a very, very new debate," says Ms. Sweig. The question among Americans increasingly is: "Why shouldn't we lift the embargo?"

The debate over Elian has also raised questions about US immigration policy and the special status granted to Cubans. Unlike immigrants from any other nation, Cubans who reach US shores are automatically entitled to apply for permanent residence in the US a year after their arrival. Some analysts ask whether it is fair to grant such rights to Cubans while denying the same to Haitians and other would-be immigrants.

Critics say the decision will have deleterious effects far beyond this case.

"There are children from all over the world who come to America seeking asylum. This decision could adversely affect the lives of those children," says Cheryl Little of Florida Immigrant Advocacy Center.

(c) Copyright 2000. The Christian Science Publishing Society