The Tragedy of Elian
January 21, 2000

Behind most interesting news stories there usually exists some form of human tragedy. Clearly this is the case with the story of Elian Gonzales, the young Cuban boy who floated to the shores of the United States just before Thanksgiving last year. To get to this point, Elian has survived what must have been a journey of sheer torture. Clinging to a raft, watching loved ones, including his mother, fight for their lives, in brutal, shark infested water-wondering each minute if you and your loved ones will make it through the nightmare.

Well, miraculously, Elian (although without his mother) made it through that nightmare. Little did he know, however, that he would shortly be thereafter stepping into a more subtle nightmare, a nightmare that is being played out daily in print and electronic media, with despicable, opportunistic behavior being displayed on many fronts, from Castro and his well orchestrated to South Florida’s own mass gatherings and “religious” Elian vigils. Around the world Elian’s tragedy is played out daily on the evening news and in newspapers and magazines.

Being an attorney focusing on immigration matters, people seem to want to know what I think of Elian’s tragedy, and how it should be resolved. In attempting to share both a legal and moral perspective, I began thinking about writing this column, although the plentiful supply of perspectives in today’s media made me think twice. Do I have any new insight to offer? Hasn’t this poor boy’s tragedy been exploited enough for the public’s viewing and reading consumption?

Given the legal and emotional complexities involved and the attentive listening of those posing the questions, I have come to realize that my perspective as an immigration attorney must be of some value, regardless of the listener’s ideological bent. And when discussing Elian, it seems that knowing the appropriate questions is just as important, if not more important, than obtaining answers.

The Legal Issues – A Tangled Web

This is the only way to describe the unique legal landscape in this case. In Elian’s case, the worlds of family law, immigration law, international law and constitutional law converge. Just when a question appears to be resolved within one of these realms, a new question arises in a different legal context.

Immigration and Constitutional Law:

Had Elian been of age of majority, he clearly would be able to secure permanent residence in the U.S. merely by virtue of his being Cuban and our nation’s policy of presuming that he would face persecution upon returning to Cuba.

But Elian is not of majority, so who should speak for him? The U.S. government believes that his surviving parent back in Cuba should be turned to-and in their investigation of Mr. Gonzalez’s stance in the issue, the U.S. Immigration & Naturalization Service concluded that Elian should return home to his father. According to the INS, it is Elian’s father that has the most standing to speak for Elian.

This conclusion did not sit well with Elian’s extended family in Florida who have cared for Elian since his rescue. Most recently they have sought the intervention of federal courts to review the INS’ decision and the process by which their conclusion was arrived at. Was Elian granted “due process of law”? Was Elian’s father speaking of his own free will when he pleaded with U.S. immigration authorities to return his son?

The lawsuit will allow a federal judge to address these questions, although traditionally the INS is accorded great deference in all decisions relating to an individual’s immigration status. But again, with Elian’s case we are not dealing with a traditional type of case. It is unique and highly charged case, both politically and emotionally. And in such circumstances judges often throw the law out the window and arrive at the decision they feel is morally correct, justifying it with after-the-fact legal reasoning.

Regardless of what transpires in federal court, the efforts of certain members of our country’s legislative branch may render meaningless any steps taken either by the INS or the federal judiciary. If senators such as Dan Burton from Indiana have their say, the U.S. Congress will take the highly unusual step of enacting a private bill to grant Elian either U.S. permanent residence or honorary U.S. citizenship. With this step, the question of his immigration status will be resolved, and it will be left up to the domestic relations state court in Florida to either grant or deny Elian’s U.S. relatives’ request for guardianship or custody.

Family Law:

Absent clear evidence of abuse or unfitness, a surviving biological parent will be granted custody of a child when one of the parents die. This principle generally governs custody hearings taking place in state courts in all of our 50 states. However, again, we are not “generally speaking” in the least bit when discussing Elian’s case, as “supporters” both in Cuba and Miami obnoxiously parade around huge placards with Elian’s photo, and U.S. family showcase for display Elian at Disney world or Elian with federal congressional subpoena in hand (which effectively put to a halt any efforts to deport Elian).

How fair will the custody hearing be? Will witnesses from Cuba be able to testify, and if they do, how honest and free will their testimony be? (that is, will guns be held to the heads of other relatives remaining in Cuba, while the visiting Cuban witnesses are expected to discuss how great things will be for Elian in Cuba).

What if Elian is not granted the right to stay in the U.S. by either the federal courts, U.S. legislature or the INS, but it is determined by the state court that custody should be granted to the U.S. relatives? Great questions-and one that will take more than a few months to resolve. And just so there is no mistake, there is truly an endless stream of “great” legal questions in Elian’s case, a stream that could take several lifetimes to resolve.

From a moral and psychological perspective, most people seem to agree that this child should be returned to Cuba to be with his father, regardless of the fact that his mother died while trying to give Elian the American dream. Should we defeat the significant bonds between a father and his son in order to give effect to his mother’s apparent intentions. Most people seem to think not, including one prominent child psychiatrist I spoke with. The importance of the emotional and developmental benefits Elian will reap growing up with his father cannot be overstated, especially in light of the severe pain he is now experiencing as a result of losing his mother.

The supply of questions is endless, as is the supply of answers. Whatever the decision regarding Elian’s fate, it will carry negative consequences in one way or another. A “victory” for Cuba, or maybe a victory for the politically connected Cuban-Americans in Miami who may be willing to sacrifice Elian’s well being for the good of their cause. However, no matter how this issue is resolved, let’s just hope that the courts decision will be guided by the law and Elian’s best interests and not by extraneous political agendas as to what is best for America or America/Cuba relations.