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Sunday, 16 January, 2000, 08:07 GMT
Analysis: Politics cloud Elian case
By BBC News Online's Kevin Anderson in Washington
The law surrounding the case of Elian Gonzalez is clear, but the political situation between the United States and Cuba clouds the issue.
Alex Aleinikoff, immigration law professor at Georgetown University, says that legally and politically, the case is complicated by two factors.
"One, he is a 6-year-old, and two he comes from Cuba."
Immigration law is quite clear about cases such as Elian's.
With no papers for entry into the United States, under the Immigration and Naturalisation Act, Elian has no legal status in the US, says Bernard Perlmutter, with the University of Miami Children and Youth Law Centre.
Who speaks for Elian?
The first legal question that had to be answered was who legally spoke for Elian.
Although his relatives in the US state of Florida were granted physical custody, they were not granted legal custody.
"Under state, federal and international law, the parent of a child is the natural guardian of a child," Mr Perlmutter says.
Although Elian's mother died in the crossing, his father still retains the right as guardian.The family went to state court to sue for legal custody of the child, and a judge in Florida family court granted his relatives in the US temporary custody.
But "the state has no legal standing. The boy was in the legal custody of the INS [Immigration and Naturalization Service]," Mr Perlmutter said.
Traditionally, states have supremacy in the area of domestic relations, but when the case involves immigration, there is a federal pre-emption.
Under the US Constitution, the federal government has the responsibility of regulating borders.
Furthermore, in accordance with a 1997 amendment to the Immigration and Naturalisation Act, the US attorney general must specifically consent to a state family or juvenile court gaining jurisdiction over a child in a case such as Elian's.
Attorney-General Janet Reno has invited the family to file a suit in federal court, and the family is expected to file such a claim next week.
The family is expected to assert that the boy has been denied due process under the US Constitution in being denied his right to file for political asylum.
But, the case still turns on who has legal right to speak for the boy, and the father still holds that right.
Only his father can file for political asylum for the boy, which he has declined to do.
Ms Reno has promised to vigorously fight any suit, and her legal team is expected to challenge the case early, saying that only the boy's father has the right to file a case on his behalf.
The political arena
However, while the law is relatively clear-cut, the situation is complicated by the acrimonious relationship between the US and Cuba.
"Legally, in a nutshell, the family in Miami is trying to buy enough time until Congress reconvenes later this month," says Jose Pertierra, an immigration lawyer in Washington and a Cuban-American.
Congress could enact a law that would grant the boy permanent residency or citizenship.
But this strategy has its own complicating factors.
The bill would have to be passed by both houses of Congress, and if President Clinton were to veto it, a two-thirds majority vote by each house would be required to override the veto.
And some congressman or senator might object to this boy's life becoming a political football, which could doom efforts in Congress, he said.
The White House is trying to avoid such a showdown.
This is the last thing it wants in an election year, especially in Florida, which is very important in the electoral process.
If a bill granting the boy permanent residence or citizenship passed Congress, that would take the matter out of the hands of the INS.
At that time, the case could return to Florida for a full-blown custody battle, Mr Pertierra says.
But the family in Florida still faces a very difficult case. To terminate the parental rights of Elian's father, the family would have to prove abuse, abandonment or neglect.
The family believes that sending the boy back to Cuba would harm Elian, and politically, "an elected judge in Florida would love to put Cuba on trial."
But there are legal problems with the strategy of putting a country on trial, Mr Pertierra says.
"The law is only concerned whether the father is a fit parent, not whether he lives in a country we like or don't like," he added.
Cold War law
But in another wrinkle, the case may be further complicated by a 1960s law passed to address the influx of Cuban refugees to the US after the Communist revolution.
In 1966, the US passed the Cuban Adjustment Act.
The law allows any Cuban national, no matter the means of the entry into the US, to receive a green card after being in the country a year, says Georgetown University's Alex Aleinikoff. A green card allows them to legally remain in the US.
It is a special rule that applies solely to Cubans.
Although passed to specifically address the 'freedom flights' of the 1960s, the law has continued to be applied, he said.
The net effect has been that most Cubans who arrive in the US do not apply for asylum, he added. They simply stay in the US for a year and then apply for a green card.
If the INS seeks to remove them, they apply for political asylum. "There is sort of a wink and a nod about this," Mr Aleinikoff says.
They either gain political asylum or the process takes about a year, and either way, they receive their green card.
Legal experts said the politics surrounding the case have complicated it far beyond the complexities of the law involved.
Mr Pertierra said that the boy should be with his father, and he said that his son recently cut through all of the political and legal issues surrounding the case.
His 10-year-old son told him, "most children would rather be with their papas than Mickey Mouse"
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