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Government Lawyers, Attorney Representing Juan Miguel Gonzalez Make Their Case Outside Atlanta Appeals Court

Aired May 11, 2000 - 10:29 a.m. ET


BILL HEMMER, CNN ANCHOR: Want to update you on the very latest that we have around the Elian Gonzalez matter. An asylum hearing on whether or not to have an asylum hearing was held this morning in Atlanta.

Let's check in with Susan Candiotti and get an update from there.

Susan, what do we know from inside the courtroom?

SUSAN CANDIOTTI, CNN CORRESPONDENT: Well, the hearing lasted for about an hour and a half. And right out of the box, there were very interesting questions by the three judges who were asking questions of attorneys representing -- an attorney representing the Miami relative of 6-year-old Elian Gonzalez. The government's representative, who is the deputy solicitor general, and even Gregory Craig, who is in court to represent the interests of Elian's father, Juan Miguel Gonzalez.

And the three judges asked very pointed questions right off the bat. The issues of course are familiar ones to all of us. The main question is: Does 6-year-old Elian Gonzalez have the right to a political asylum hearing. And to that end, the attorney, for example, for the Miami relatives, Kendall Coffey, was asked that: Why couldn't this youngster -- how could this youngster make application if he is only 6 years old. For example, the judge wanted to know, isn't he too young to understand the question you would have to answer to qualify for political asylum. For example, would you be persecuted if you belonged to any religious or political group for which you could be persecuted?

Kendall Coffey kept coming back to a main point. He said, look, at least a child, no matter how old you are, because the statutes say, no matter how old you are, any alien can apply for political asylum, that at least the child should have had his political asylum application reviewed. The child should have been interviewed, and at least he should have had a hearing.

In other words, it's the arguments that these lawyers had been making all along that this child was denied due process, in their opinion. Kendall Coffey made the point before the judges that if this child were returned to communist Cuba, Mr. Coffey said, quote, "This child is going to be purged." He went on to say, quote, "There is no way that this child, that this regime would allow this child to walk around in Cuba," end quote, and be allowed to say, quote, "that the U.S. is a great place to be."

The government attorneys were also questioned by the three-judge panel, and they were asked, for example: Well, what would happen if there were a case where a situation where a child would be removed from a country in which children are regularly mutilated, for example. Would the U.S. government want to return a child to a country like that?

And the government's response was, that is a wholly different scenario than what is in place here, involving communist Cuba. And the government stressed the point that this is a different scenario, that in a case like, for example, Iraq or China, that the U.S. government would have to give deference to a father's rights in the absence of any evidence that the child would be abused if returned to that country. For example, if the child's father was abusive, or the mother was abusive for that matter.

And then, Gregory Craig got up to speak, and thank the court for the opportunity to do so. And he said that he was there to say that a father's rights should be respected, and that he repeat that in the absence in any evidence that this family is abusive in any way, that this family, as he put it, should be made whole again. He said that this family is in jeopardy of being destroyed if this case goes on much longer.

Now, at the end -- actually before the hearing even started we got a very good indication of what would happen next. And the judge who is leading the panel, Judge Dale Edmonson, told everyone in the courtroom that the judges are taking this matter very, very seriously. He said that this matter would be expedited, and he said that I can tell you one thing for sure, and that is there will be no decision today. He said, I promise you that there will be no decision this week, but I do promise you that the decision will be expedited, and we'll get word to you one way or the other what our decision is just as soon as possible. But he refused to put a time frame on it.

In the courtroom, finally, we can tell you that it was packed. There were a few seats reserved for the news media. The rest were taken up by observers who stood in line here all night, as you are well aware. And there are a number of people outside here as well. But the courtroom was very quiet. You could hear a pin drop on there.

Representing the Miami relatives of 6-year-old Elian Gonzalez are his 21-year-old cousin, Marisleysis Gonzalez, and the boy's great uncle, Lazaro, and another great uncle, Delfine Gonzalez, along with some of their Miami supporters. No one said a word, they listened, and afterwards got up and quietly filed out of the courtroom.

Back to you.

HEMMER: Susan, given all that as background, many times in these cases you can judge the theme that judges are looking for by the questions they ask. And based on the information you just gave us, did you pick up any particular theme or concern that maybe the judges had together which may indicate or portend where this case may be headed? CANDIOTTI: Yes, the main questions were directed as I think the following issues that included this, for example, does age matter? Can a child's intellect matter in terms of whether he must have a clear understanding of what is at issue? And does someone, no matter how old they are, deserve the right to a hearing? or does the U.S. attorney general, does the head of U.S. Immigration have certain discretion in matters where a child is so young to make a decision, as the government did in this case, that a father has the sole discretion to speak on behalf of this child., a child so young, when it comes to such an important decision as to where that child should live, presumably or possibly for the rest of his life.

Now the judges stressed at the very beginning of this hearing that no matter what types of questions they asked or what tenor you might think they were taking, that we in the audience should not take anything from that. That oftentimes the judge admitted that they ask certain pointed questions, that maybe quite the opposite from the way the judges felt, just to get the attorneys to respond in a way to make their argument, to make their case as best as they can.

HEMMER: That is a very important clarification at the end there too, Susan. We were led to believe the hearing would last 40 minutes, you say it went about an hour and a half. Does that indicate anything? Were the judges giving more leeway to present arguments?

CANDIOTTI: Well, they were watching the clock very judiciously. However, there were occasions where the judge would give rather a very lengthy question, or frankly make a statement, and then perhaps, with a bit of humor, say: I don't want to take any time away from you, however, and so they would extend the time that each individual attorney had to speak. So I don't think that necessarily anything is to be read from that except that these judges did appear to bend over backwards to be as fair as possible to all the parties involved.

HEMMER: OK, Susan Candiotti in downtown Atlanta. As you can hear in the background, there are several protesters have gathered there outside the 11th Circuit Court of Appeals to wage their opinion this morning.

These now are government lawyers coming to the microphone. The set of microphones set up there. We will listen now and see what we can gauge. Again, this is the government lawyers who talked a short time ago.

JAMES CASTELLO, ASSOC. DEPUTY ATTY. GEN.: The question before the 11th Circuit today is whether the commissioner of Immigration and Naturalization Service acted within her authority when she determined that Elian Gonzalez has not applied for asylum.

As we told the court today, the commissioner she based her decision on three factors. First, Juan Miguel Gonzalez, the father of Elian, who legal authority over him, and who has a close and loving relationships with him, has made it very clear that he does not want to apply for asylum on behalf of his son. Second, a 6-year-old child is too young to make these kinds of legal decisions on his own, an adult has to make them on his behalf, and under the immigration law, that adult is Elian's father. Third, there is no objective basis for an independent claim of asylum on behalf on Elian that would warrant overturning or disregarding the father's judgment about what is best for his son.

The commissioner's determination that a child's sole, surviving parent has the right to speak for him in these circumstances and that a child of 6 years old lacks the capacity to make these kind of life- altering determinations for himself, is consistent with principles of our legal system about the capacity of minors and about the authority of parents.

The bond between a parent and his child is recognized not only in our constitutional order, but is also recognized throughout the world. There is nothing in the text of the Immigration and Nationality Act, which was the law that governs the decision here that subjects that Congress intended to depart from those time-honored principles in immigration matters.

We will now await the court's decision in this case. We very much hope that the special bond between Juan Miguel Gonzalez and his son Elian will be upheld.

Thank you.

HEMMER: Government attorneys there again stating their case in front of microphones. As you see, the woman at the front handing out press releases probably reiterating what we just heard. Two main points: Juan Miguel Gonzalez does not want his son to seek asylum, does not, in other words, want an asylum hearing here in the U.S. And also, the government lawyers arguing that a 6-year-old is entirely too young, in their words, to request such an asylum hearing and request asylum here in the United States.

While we were listening to that, we also sir -- saw, rather, Marisleysis and an attorney for the Miami relatives come out and walk in front of the crowd and, again, the protesters quite boisterous.

Let's go back down to Susan Candiotti and pick up some more things from there.

Susan, were you able to hear the government lawyers? And if so, was that a similar thing that you heard inside the courtroom?

CANDIOTTI: Yes, a very similar theme that was echoed by the government attorneys as they made their case before this three-judge panel.

There were some other interesting questions that the lawyers were asked. For example, Gregory Craig was asked by one of the judged right away -- he said -- the judge asked why it was that it took almost five months for the father of this child to come to the United States once he learned that his child had survived this great tragedy. And Gregory Craig responded by explaining to the judges that -- he said that, right away the father said that if he could be confident that if he came to the United States and be able to retrieve his child immediately, that -- Gregory Craig said that Juan Miguel Gonzalez would have come to the United States right away.

However, Mr. Craig stated that the very next day after learning that his child was alright, that there were immediate news reports quoting the relatives of the child in Miami that they would not let him go back to Cuba, that there was no way that they were going to let that happen, and that attorneys were hired immediately to prevent the child from going back to Cuba.

Let's go to Gregory Craig right now who's speaking to the crowd.


GREGORY CRAIG, ATTORNEY FOR JUAN MIGUEL GONZALEZ: ... over the objections of a fit and loving father, can force the INS to accept and process an asylum application which, if granted, could conceivably destroy Juan Miguel's parental rights and dismantle his family, and which, if denied, could conceivably cause such lengthy delays, up to six years, as to transform the father and his family into virtual prisoners of the administrative and appellate process associated with the asylum laws.

Juan Miguel Gonzalez is a loving father who has the right to determine the destiny of his family, and has the right to speak for his son who is a 6-year-old boy and too young to make decisions that are of such gravity as an application for asylum. Juan Miguel Gonzalez is a free man capable of making free decisions, and he has not been coerced in any way in the decisions that he has made to want to be reunited with his son.

This is an issue of family and parents, not politics. We have a real family here. It is a close family, it is a loving family, it is a unit, it is intact, it is functional, and it is also in jeopardy, threatened by this court, who we hope will relieve it from that threat soon, and by Lazaro Gonzalez's indefensible claims to speak for Juan Miguel's son without Juan Miguel's consent and over his objection.

My plea to this court earlier today on behalf of this wonderful family was to lift the cloud of doubt and uncertainty from their lives, to do it quickly, and to return -- to let them go free, to return to paths of their own choosing and destinies of their own design.

Thank you very much.

HEMMER: Greg Craig, the attorney there, almost drowned out by boos from the number of protesters who have surrounded him and surrounded that building just a few blocks from here at the CNN Center in Atlanta.

Greg Craig reiterating that Elian Gonzalez, at the age of 6, is too young to request asylum, him saying today that this is an issue for family and not politics.

Back now to Susan Candiotti.

We should make word of the very boisterous protesters there today.

Susan, they are louder than we have heard in some time. Can you give us an estimate of the crowd down there? We can hear them quite well, but we have not seen them just yet.

CANDIOTTI: Well, Bill, I'm not very good at crowd estimates so I hesitate to say, but I can gauge it, I would say, at least 100 people out here, and, as you said, very vociferous. In fact, it's been difficult to hear at times what those attorneys were saying during the course of those news conferences.

It appears to me that many of the people here, from what they were shouting about, was that Elian should be free to remain in the United States. I'm -- there may be other voices here, but I've been unable to see many of these people because, of course, I've been inside of the courtroom.

However, getting back to some of the pointed questions that the attorney's were being asked, one of the judges asked one of the government attorneys what would have happened if, for example, a parent had escaped, had crossed over the Berlin Wall and did not make it, died in the process, and if the parent, who still lived on the other side of the Berlin Wall wanted to have the child back, what would happen then? And the government attorney said that it would be very clear at that point that, in the absence of -- again, a theme that was repeated -- objective evidence that the father or surviving parent would be abusive, that the child should go back.

Well, there was another pointed question by one of the other judges that what had happened -- what would have happened in this case, the government was asked, that if the mother of 6-year-old Elian Gonzalez had actually survived this journey, would the U.S. Immigration and Naturalization Service, then, have listened to a political asylum claim, even if the father wanted the child to go back? And the government said, well, that's a wholly different case because if the mother had made it to U.S. shores with her child, that she would be treated like any other Cuban under the Cuban Adjustment Act and her asylum application would have been accepted. And the great majority of Cubans, the attorneys said, are indeed granted asylum and granted residency after they are here for a year and a day.

However, the government attorneys stress that, in this case, because the mother did not survive, it's a whole different scenario, and then, in fact, if the mother had not made it all the way to U.S. shores but had survived, the attorney pointed out that, in those cases, as you are well aware, Cubans who are interdicted at sea are, in fact, sent back to Cuba.

But it kept coming back to the lawyers for the Miami relatives, who stressed that, again, age being the important issue here. And they argued time and again that the INS did not follow its own guidelines which, in the opinion of the Miami relatives, are that no matter what your age, you should be allowed to have your asylum claims heard.

So, a very difficult issue before this three-judge panel. And, of course, what happens next, if the judges rule that, in fact, the child deserves a political asylum hearing, then the next step would be for this child to appear before -- to be interviewed by an asylum officer. And if the child was denied at that stage, the matter could be, theoretically, taken before an immigration judge in yet another hearing.

On the other hand, if the Miami relatives do not prevail here in court, they could try to appeal it to a higher court, as high as the U.S. Supreme Court.

So, a lot of options lie ahead.

Back to you, Bill.

HEMMER: Indeed they do.

Susan Candiotti in a very boisterous downtown Atlanta.

Susan, thanks for hanging in there.

To our viewers who may be joining us in progress, just to let you know, that hearing, the hearing on whether or not Elian Gonzalez should be granted a hearing to seek asylum, has been concluded. And, again, attorneys and relatives of the family from southern Florida met inside the 11th Circuit Court of Appeals building here in downtown Atlanta for about an hour and a half; about 90 minutes.

And, again, we heard Susan go throughout the issues for us over the past several minutes. We have heard from the government lawyers. We have not heard from the relatives in Miami. We have not heard from the attorneys either, for the family of the relatives in Miami. When they come out to the microphone, if indeed they do, we'll have it for you live.



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