Judges grill lawyers in Elian asylum case

In questioning, the lawyer for Elian's father appears to have the edge.

By DAVID ADAMS

© St. Petersburg Times, published May 12, 2000

ATLANTA -- Almost three weeks after Elian Gonzalez and his father were reunited, the court battle over where the 6-year-old should be brought up -- Cuba or the United States -- goes on.

But the long saga of Elian may have reached its final stage.

Lawyers and family members returned to court Thursday. But this time it was a different setting, the 11th U.S. Circuit Court of Appeals in Atlanta, far away from the screaming crowds of Cuban exile protesters in Miami.

For 80 minutes, a three-judge panel grilled lawyers in the bitter case that has pitted the rights of Elian's sole surviving parent against those who object to sending the boy back to his communist homeland.

The judges, J.L. Edmondson, Joel Dubina and Charles Wilson, are not expected to issue a ruling for several weeks.

The legal arguments were all too familiar. But the dramatic events of the past few weeks appeared to have shifted the balance.

For months it was the Miami relatives who had the upper hand while Elian was in their custody and his father refused to come to a U.S. court to claim the boy.

But the arrival in the United States of Juan Miguel Gonzalez, Elian's father, followed by last month's predawn raid to remove the boy from Miami, has turned the case upside down.

Elian and his father were not in court, opting to remain in the Maryland retreat where they are waiting out the legal proceedings.

But for the first time in this case, Miami family members found themselves looking across the courtroom not just at a phalanx of government attorneys, but perhaps the more intimidating presence of a high-powered lawyer representing Elian's father.

Despite a small demonstration by Cuban-American protesters outside the courthouse, the conduct of the hearing also reflected the new circumstances surrounding the case. Seeming to depart from a previous ruling last month in which the appeals court gave great weight to Elian's right to asylum, the judges saved their toughest questions for the lawyer representing the Miami relatives.

Although Judge Edmondson admonished reporters not to read anything into the questions posed, it was hard not to detect a leaning.

Only moments after the family's attorney, Kendall Coffee, launched into an attack on the Immigration and Naturalization Service's alleged violations of Elian's rights, he was interrupted by Judge Wilson, a former U.S. district attorney in Tampa.

Wilson, 45, the youngest member of the appeals panel and a recent Clinton administration appointee, wanted to know if Elian knew what he was doing when he signed a request for asylum several months ago.

Could a 6-year-old boy reasonably be deemed competent to read, let alone comprehend, wording testifying to his fear of persecution if returned to Cuba?

"I'm sure Elian Gonzalez is a very bright and intelligent 6-year-old, but he didn't even have the ability to sign his last name on the asylum petition," Wilson said.

"I'm sure he's a very bright child . . . but he didn't have the ability to sign his own petition," Wilson said, appearing to refer to Elian's childish scrawl on the document he signed months ago.

Detecting the hidden hand of the Miami relatives and their lawyers, Wilson went on: "Doesn't it appear it is really the expression of fear of persecution by someone other than the petitioner himself?"

To emphasize his point, Wilson read a passage from an asylum claim form where the petitioner is asked to document political, religious and military activities that might be grounds for retribution.

"Are you telling me that a 6-year-old is capable of answering a question like that?" Wilson asked.

Coffee was stumped.

"This is a first-time-ever special," he replied, recognizing he was in difficult legal territory.

Lawyers for the Gonzalez family are seeking to create a legal precedent in the case, arguing that current immigration legislation makes no specific age definition for people seeking asylum. Although the 1996 Immigration Act refers to the right of "any alien" to request asylum, government lawyers insist it was never Congress' intention that this be used to revoke the rights of a loving parent.

When it was the government's turn to be interrogated, the judges were less severe. There were probing questions nonetheless. Edmondson asked whether there was a contradiction in sending a boy back to a country that the U.S. government has denounced as "a communist totalitarian state."

The Miami lawyers have argued that Elian would be subjected to psychological pressures and political indoctrination if he returned, including denouncing his mother as a counterrevolutionary traitor for illegally trying to leave the country. Elian's mother and 10 other Cubans drowned in the Straits of Florida in November. Elian was one of three survivors.

But the government's lead attorney, Deputy Solicitor General Edwin Kneedler, contended there was no concrete evidence that Elian might suffer physical harm in Cuba. Anyway, he added, "the sacred bond between parent and child is not determined by the place where they reside."

Having to choose between freedoms enjoyed in the United States and the communist system was not a standard for negating the rights of a father.

"Under our Constitution, difficult choices, as well as easier choices, are vested in the parent," Kneedler said.

Gregory Craig, the Washington lawyer hired by Elian's father, used his first appearance in the court battle to issue a plea on behalf of the boy's family in Cuba.

"There is a real family. It is a close family, it is intact," he said, dismissing allegations that Elian's father and grandparents in Cuba were being manipulated by Fidel Castro's government.

"My plea to the court is on behalf of this family to lift the cloud of doubt, to do it quickly and to set them free."

Craig's role in the case has been pivotal. Best known for steering President Clinton out of the Monica Lewinsky scandal, his involvement did not sit well with the Cuban-American demonstrators outside the courthouse. He was loudly booed as he walked to a street corner to address the media, his subsequent comments drowned out by chants accusing him of being a communist lapdog.

When Elian's Miami relatives appeared, they were greeted with loud cheers. But they were solemn-faced, and drove away without making their customary remarks to the media.

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