By Tom Carter
THE WASHINGTON TIMES

Published 12/10/99
 
 

Justice Department uses loophole to allow child back with father.

The Clinton administration invoked a legal loophole Thursday that clears the way for the return of a 6-year-old boy to his father
in Cuba, despite the wishes of relatives in Miami to keep him in the United States.
     In a reversal of policy, U.S. officials said the Justice Department rather than state courts in Florida will decide the future of
Elian Gonzalez, who was rescued Thanksgiving Day after a small boat capsized killing his mother and 10 others.
     “I don’t think we anticipate that it would go to the state courts at this time,” said Deputy Attorney General Eric Holder, who
told a press conference the law favored Elian’s return to Cuba as long as the father could prove his relationship and that he was
a suitable parent.
     He said authorities have sent a letter to the father, Juan Miguel Gonzalez, outlining the steps he should take in order to get
his son back.
     The Clinton administration —should the boy return to Cuba —would likely infuriate Cuban-Americans in Florida who wield
considerable political clout and have made the case a cause celebre.
     President Clinton urged this week that the outcome be determined by “what would be best for the child” and not influenced
by politics.
     The decision for the Justice Department to decide the boy’s fate is likely to be challenged in court by the boy’s relatives in
Miami, who want him treated as a political refugee in hopes of raising him in the United States.
     The case has inflamed public opinion both in Miami and in Cuba, where mass demonstrations have been held for his return.
     Hundreds of thousands of Cubans flooded Havana’s coastal highway Thursday to press for the boy’s return in the largest
pro-government demonstration seen on the island in recent years.
     Until Thursday, U.S. officials had said the child had a right to remain in the United States under American immigration law
but that the custody issue — pitting the father against the relatives in Miami —would have to be decided by state courts in
Florida.
     However, Mr. Holder said Thursday that the Immigration and Naturalization Service would decide the boy’s fate, and an
INS spokesman said the earlier statements were “a mistake.”
     Cubans who reach U.S. soil normally are interviewed and “paroled” into the United States, a procedure that permits them
to live in the country for one year before their immigration status is finally decided.
     But Justice Department officials said Elian was taken directly to a hospital and therefore was never formally paroled into the
country — even though he was later turned over to relatives with whom he has been living in Miami.
     “That is correct,” said Carole Florman, a Justice Department spokeswoman. “Technically, he was not paroled in the usual
sense.”
     Mr. Holder said at a press conference that under U.S. law, Cuban law and international law, a parent’s wishes tend to be
given great weight, assuming the parent has a good relationship with the child.
     He said the INS wants to know whether Mr. Gonzalez can “prove that, in fact, he is the father of the child, what is the
nature of his relationship, and expressed a desire on the part of the INS to interview him at the American Interests Section in
Havana.”
     “You have to make sure that the parent has not abandoned the child, has not in any way abused the child, that return of the
child to the parent would be in the best interest of the child,” he said. The father claims the child was kidnapped by his
estranged wife.
     Mr. Holder said the father has been advised in a letter sent Wednesday night that he can use birth certificates, baptismal
records, family pictures or the testimony of neighbors or other relatives to prove that he is the father. He was divorced from the
boy’s mother.
     INS officials said they were not legally obliged to let the boy remain in the United States because he was given only
temporary entry after his rescue.
     “He was paroled in for a deferred inspection that has yet to take place. It is set for the end of December,” said INS
spokesman Mike Gilhooly.
     Mr. Gilhooly said that he knew of no previous case where a Cuban refugee had been given a deferred inspection and the
INS later decided to return the person to Cuba.
     The father has demanded the boy’s return and Cuban President Fidel Castro has been orchestrating mass protests outside
the U.S. Interests Section in Havana to pressure the United States.
     In Miami, the boy’s lawyers are surprised by the turn of events.
     “Typically, a person coming into the United States has the right to ask for asylum. We have notified the Justice Department
that we intend to apply for asylum and protection from torture,” said Roger Bernstein, a lawyer retained by Elian’s relatives in
Miami.
     “We expect the Justice Department to honor that right. Due process demands that Elian be given the opportunity to assert
his claim.”
     He said the Miami relatives take the legal view that Elian was paroled into the United States, and they will take legal action
to stop his deportation.
     “We believe this case should be decided by the courts and that Elian’s father should be allowed to come before the courts
to present his case,” said Fernando Rojas, spokesman for the Cuban American National Foundation in Miami.
     “If the Clinton administration returns the boy without due process, it shows Clinton has no more respect for the rule of law
than Fidel Castro,” he said.