by John M. Curtis
(310) 204-8700

Copyright January 10, 2000
All Rights Reserved.

rumping the INS’s ruling to return 6 year old boat-wreck survivor Elian Gonzalez to Cuba, Rep. Dan Burton (Rep. Ind.) subpoenaed the boy to appear before his committee on February 10th, delaying the boy’s expected Jan. 14th return. Cuban-Americans in south Florida protested violently against Elian’s return, remembering all too well the painful but deep fulfillment of winning their own freedom. Fighting for young Elian Gonzalez, Rep. Burton did his utmost to take this matter out of the hands of the Clinton administration and place it under the protective wing of the court. Burton’s actions quelled protesters and gave new hope to their cause of saving Elian. No one knows better than refugees from communist regimes the sacrifices and, yes, price paid for freedom. Already paying the ultimate price, Elian’s mother drowned trying to find a better life for her son. Following this logic, how can the INS doom Elian to a life of broken dreams?

       Answering the question, "The INS applied immigration law to the facts and came up with the right decision," said Atty. General Janet Reno. "I believe the INS made the right decision . . . but, if some people disagree, that’s what courts are for," said president Clinton, trying to soften the appearance of a political controversy. When you apply pure logic, international family law rules in the direction of reuniting children with their parents. "I am the father of Elian and Immigration has said that I am the only one who can speak for him," said Elian’s biological father Juan Miguel Gonzalez, showing exasperation that his son’s return is now on hold. Mr. Gonzalez’s paternity claims now have to be weighed against whether he has expressed his true wishes without coercion. Coercion goes hand-in-hand with totalitarian regimes. That’s why Rep. Burton and others would like to see Mr. Gonzalez answer questions on American soil. But even here, Mr. Gonzalez won’t be able to speak his mind [unless he doesn’t return].

       Taking Elian’s father at his word still leaves unanswered questions. Since Elian made it to the mainland and is entitled to political asylum, can the INS return him—despite being a minor—against his will? As Elian’s Cuban-American relatives have argued, on purely child custody issues, where is Elian’s safety most assured? Some have even suggested that if the father really had the child’s best interests at stake, he’d support Elian’s new life in America. That’s hard to swallow, especially if Mr. Gonzalez honestly wants to reunite and care for his son. Unlike the cold logic of family law, Cuban-Americans seized Elian’s cause with passion and resolve. Only they know what life’s really like back on that island.

       Answering the child custody issue, namely, what’s best for Elian, is a difficult call. While most child custody experts agree that an orphaned child belongs with his biological parents, they’re still grappling with Elian defying the odds and floating safely to the beaches of Ft. Lauderdale. Making it to the mainland assured him his ticket to freedom, political asylum and a new life in America. Returning the boy, to many, makes a mockery of his mother’s sacrifice. Whether Elian’s 6 or 106 he still made it to the promised land and is entitled to asylum. When his mother made that fateful decision to escape Cuba, she rolled the dice and hoped for the best. Did she or the others expect to have the survivors shipped back to Castro’s island prison? While it’s true that 6 year old are incapable of making adult decisions, it’s also true that Elian’s custodial parent made that choice.

       Becoming a cause celebre is neither the fault of young Elian Gonzalez nor the Cuban-American community. Using Elian as a poster boy for Castro’s repression doesn’t erase protesters’ legitimate right to seek permanent sanctuary from the communist regime. For more than forty years since the revolution, Cuba has seen endless streams of refugees seeking freedom. Whether it was burrowing holes in the Berlin Wall, fleeing to the demilitarized zone in South Korea or paddling their way 90 miles across the Atlantic to south Florida, escaping tyranny has always been a coveted American value. If Elian’s fate is decided in court, the court must comprehend what’s at stake returning Elian to, yes, communist Cuba. Having survived his harrowing boat wreck, the 6 year old is at least entitled to some measure of protection against the regime from which he escaped.

       Resolving this problem is no easy matter. Simply putting Elian on another boat doesn’t deal with whatever rights he earned by virtue of making it safely to the United States. Having loving relatives willing to assume custody in Miami is only one small part of the picture. His father’s rights for reunification have to be weighed now against Elian’s rights to political asylum. Few can argue where he’d have a better life, but legitimate issues of Elian’s rights under U.S. law need further clarification. Even if Elian’s father sincerely wishes to reunite with his son, then some protection needs to be afforded to Elian should the custody arrangement not work out. Before Elian’s returned to Cuba, Castro must pony up an irrevocable agreement granting Elian the option of immigrating to the U.S. on his 18th birthday. If the State Department can secure this condition, then Elian and his father’s rights can be guaranteed.

       If such an agreement is unfeasible, then the INS must reconsider its position of recognizing only the father’s rights. Elian already lost his mother and stepfather, can he also afford to lose his newly found freedom? Without these protections, the court will be placing an already vulnerable child into harms way. All the logic and precepts of immigration law can’t protect Elian against Castro’s 41 year old failed experiment in socialism. No matter how much Castro blows hot air, the court must decide what’s truly in Elian’s best interests. Let’s face it, Elian and his father can always write, talk on the telephone, or one day, trade e-mail. Who knows, by the time Elian turns 18, maybe Fidel will be out of the picture!

About the Author

John M. Curtis is editor of OnlineColumnist.com. He’s also the director of a West Los Angeles think tank specializing in human behavior, health care and political research and media consultation. He’s a seminar trainer, columnist and author of Dodging The Bullet and Operation Charisma.

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