Asylum - EliÁn gonzÁlez




On Thanksgiving Day 1999 a five-year-old Cuban boy, Elián González, was found floating on a tire tube in the sea off Florida. His mother, stepfather, and ten others had drowned when their small boat had capsized during the hazardous voyage. The rescue was un milagro (a miracle) in the eyes of many Cuban Americans, especially the powerful Cuban American National Foundation. For the next seven months the fate of Elián filled the media and involved at least four different courts, all three branches of the federal government, and lobbyists nationwide, as family members in Greater Miami and in Cárdenas near Varadero in Cuba struggled over the wellbeing of the Cubanito. Human interest aside, Elián's story showed the workings of the immigration and asylum system in dramatic form.

Initially, as an undocumented alien and a minor, Elián was paroled formally by the attorney general into the care of Miami relatives, who unsuccessfully used the Florida courts to gain long-term legal custody. The state court determined that the matter was properly within the federal remit of the Immigration and Naturalization Service, to which the local family applied for asylum status for Elián, and was not a matter of state family law. (In Cuba, Elián's father, Juan Miguel González, opposed these actions, later coming to the United States to plead for the return of his son.) The INS meanwhile refused an asylum application, filed both by Elián and on his behalf by a great-uncle, Lázaro González, adjudging that Elián did not qualify under any statutory provisions, specifically the likelihood of persecution and torture if returned to Cuba. This executive decision, supported by Attorney General Janet Reno, was upheld first at the local level by a U.S. district judge and then by the U.S. Court of Appeals for the Eleventh Circuit sitting in Atlanta.

In the several judicial decisions it was reiterated that the discretionary though delegated powers of the executive over immigration are virtually plenary; and even a paroled alien does not enjoy the constitutional protections of a U.S. citizen. (Bills were introduced in Congress to confer citizenship upon Elián.) The Eleventh Circuit also emphasized that if there was an issue about Elián's age (born 6 December 1993), then this made the role and wishes of his father, Juan, that much more important—rather than the counterclaims of Lázaro and his cosuitors. (For jurisprudential guidance the INS had examined even the Cuban Family Code as well as the 1989 UN Convention on the Rights of the Child, though the United States is not a party to the CRC.) Furthermore, the Eleventh Circuit accepted the appropriateness of the INS's considering the foreign policy aspects of any decision. Thus, by late June 2000 state and federal courts had moved to retain the jurisdiction of Elián's status within the INS under the higher authority of the Department of Justice—a sequence confirmed on 28 June, when the U.S. Supreme Court announced it would not take cognizance of the controversies. Later that same day, Elián was flown back to Cuba in the company of his father, having been seized nine weeks earlier—by armed federal agents—from his Miami relatives, whose temporary guardianship had been revoked by the INS. The federal operation, technically authorized or not, shocked even supporters of Elián's reunion with his father.

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