Elian is coming home
Jose G. Perez
jg_perez at SPAMbellsouth.net
Sun Jun 25 13:47:12 MDT 2000
> Is this notice true? Is Elian returning home?
It is *possible* that Elián González and his family could be back
in Cuba as early as Wednesday night, but that is, as yet, far from
On Friday, the 12 judges of the Atlanta Federal Circuit (Appeals)
Court unanimously turned down an appeal filed by lawyers for one of
Elián's great uncles and the Miami anti-Cuba Mafia.
At issue were identical political asylum petitions filed on
Elián's behalf by great uncle Lázaro González and supposedly by Elián
The INS had refused to hold a hearing on the petitions, saying
Elián was too young to act on his own in such a matter and that, under
the circumstances of this case, only Juan Miguel González, Elian's
father, was entitled to speak on behalf of the boy, and Juan Miguel
was not asking that Elián be given political asylum.
The District (lower federal) court in Miami found that the INS had
not abused its discretion in making such a ruling, and a 3-judge panel
of the Atlanta appeals court upheld this decision.
The new appeal the Miami lawyers had filed asked the three judge
panel to re-hear the case or, alternatively, for the entire circuit
(appeals) court to re-hear the case en banc (with all 12 of its
regular full time members participating). This is the petition that
was denied on Friday.
The court further ruled that its decision would issue on Wednesday
at 4 p.m., instead of in three week's time, that no extensions to that
date would be countenanced, and that it also would not issue a
temporary restraining order preventing Elian and his family from
returning to Cuba pending a further possible appeal to the U.S.
The practical effect of that is that Elián and his family will be
able to return to Cuba on Wednesday evening as the injunction that has
prevented them from leaving will dissolve when the appeals court
decision issues at 4 pm that day.
This is an important technical point. The Supreme Court is
scheduled to go into recess on Friday. After Friday, it is relatively
easier for one supreme court justice to freeze matters until the court
reconvenes in October.
Newspapers quote legal experts saying it is extremely unlikely
that the Supreme Court would accept Lázaro's appeal, as it does not
present any significant issues of constitutional law nor are there
conflicting rulings in similar cases from the courts below, the two
main categories of cases the court usually takes up.
However, nothing in the Elián González case so far has been
handled in a routine, lawful way by the American authorities. There
are literally thousands of cases of unaccompanied children who arrive
in the U.S. every year. The Immigration Service routinely handles such
cases by finding out who has custody of the child, and returning the
child to them. This case, where the express wishes of a sole surviving
custodial parent that the child be immediately returned to him were
ignored for five months, and where the parent was forbidden from going
home with his son for an additional two months (so far), is unique.
The unique handling of the case comes not from any complicated
legal questions, but simply from the fact that Cuba is involved, and
that the father is a Cuban communist.
The whole federal judicial process has been, in effect, a
challenge to Juan Miguel's legal custody of his son disguised as an
immigration case, and thus constitutes an affront to Cuba's
sovereignty and well-established international and U.S. legal
principles that say the courts in the child's "habitual place of
residence" have jurisdiction in custody matters. It has also been an
attack on the right of parents to raise their children as they
This was also true of an earlier local family court case in which
Lázaro González was awarded temporary custody of Elián and Juan Miguel
González --who at the time remained in Cuba-- was ordered to present
himself before the local Miami court and, in effect, explain why his
son should not be taken from him since he is a communist.
That local suit brought by Lázaro González was dismissed in April,
around the time when the judge who issued the ruling was charged with
corrupt fund-raising practices in an election campaign for the
judgeship she held. A new judge handling the case threw out Lázaro's
suit, on the grounds that a) distant relatives like great uncles have
no standing under Florida law to directly challenge the custody of a
parent in this way and b) Federal government action pre-empts local
action, even if Lázaro had been entitled to file the suit. The ruling
did not, however, cite the most obvious reason for throwing out the
case, which is that such a case belongs not before the Miami judicial
authorities, but those of Cárdenas, Cuba, Elian's "habitual place of
We can anticipate that the lawyers for the Miami Mafia will wait
until the last minute before filing an appeal with the Supreme Court,
and then ask for an injunction to prevent Elián and his family from
going home until the court has had an opportunity to rule.
People from the right-wing cabal that for years have been trying
to drive Bill Clinton from office are also intervening in the case,
with the novel theory the contacts between the U.S. executive branch
and Cuba means that the original lower court ruling was obtained by
"fraud," since the lower court wasn't kept appraised of these
On its face, the argument could not be more absurd. The U.S.
Constitution charges the executive branch of government with
conducting foreign policy; the courts have consistently and
systematically refused to intervene in what the executive branch does
in this regard. But all it takes is one district court judge somewhere
in Miami or Washington (possibly with political aspirations) to seize
on this kind of muddle-headed argument or some other equally
ridiculous legal "theory" to prevent Elián and his family from going
That's why Fidel in his message to 400,000 Cubans who rallied in
Holguín on Saturday warned that Cuba must not let down its guard. I'll
repost Fidel's message in Spanish (and English if I can get it)
----- Original Message -----
From: "Julio Fernández Baraibar" <julfb at sinectis.com.ar>
To: "Marxism list" <marxism at lists.panix.com>; "Leninist International"
<leninist-international at buo319b.econ.utah.edu>
Sent: Sunday, June 25, 2000 9:34 AM
Subject: Elian is coming home
> Is this notice true? Is Elian returning home?
> Julio FB
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