URL: Php.indiana.edu/~erasmuse/_Elian/elian.htm. Eric Rasmusen, Indiana University, Dept. of Business Economics and Public Policy, Kelley School of Business, Room 456, 1309 East Tenth Street, Bloomington, Indiana 47405-1701, (812)855-9219. [email protected] , Php.indiana.edu/~erasmuse.
In November 1999, a group of Cubans, including six-year-old Elian, his mother, Elisabeth Brotons, and his stepfather (not "mother's boyfriend") Lazaro Munero set off in a boat for Florida. Elian's mother, had been married once before, and her first husband, Juan, was Elian's biological father, but Elian was conceived after the divorce. The boat foundered and the mother and stepfather drowned. Elian was picked up by two fishermen, and then transferred, still at sea, to the U.S. Coast Guard. Two other people, Arianne Horta and Nivaldo Fernandez, made it to land before being picked up by U.S. government officials (reports are contradictory of how exactly they got there).
The Coast Guard took the Cubans to land to the INS (Immigration and Naturalization Service). The INS released Elian on parole to his great-uncle on his father's side, Lazaro Gonzalez, telling him to return in December for immigration proceedings.
Lazaro began proceedings in the Florida state court to gain legal custody over Elian, and succeeded. He also helped Elian to file a request for political asylum. Ordinarily, such a request is followed by a hearing, after which the INS decides whether asylum is warranted or not and the alien is either allowed to stay or deported.
The U.S. Justice Department, reversing its earlier position, said in January 2000 that the state court proceedings were irrelevant and made an official determination that only Elian's father was entitled to file an asylum application for him, not Elian or anyone else. Rejecting the application, the INS said no hearing would be held, but the INS continued to let Elian stay on parole with Lazaro.
Lazaro objected to this determination, and filed suit in federal court, asking that Elian's application be accepted and a hearing be held. The Federal District Court judge, Michael Moore, ruled against Lazaro in March. Lazaro made an appeal to the 11th Circuit Court of Appeals. They agreed to hear the appeal on a special expedited schedule. He also asked for an injunction to prevent the INS from deporting Elian before the 11th Circuit made its decision. A temporary injunction was granted by a single 11th Circuit judge, and this was later confirmed by the three-judge panel.
A large number of people began to congregate around Lazaro's house in support of his effort to keep Elian in America, kept well away from the house by police barriers.
Elian's two grandmothers both visited him in Miami together with Cuban government employees, and then returned quickly to Cuba. Later, Juan Gonzalez, his wife, and one of their two children came to Maryland, but refused Lazaro's invitation to visit Elian in Miami.
On April 13, Miami-Dade Circuit Judge Jennifer Bailey overturned the earlier (January 10) state court temporary award of custody to Lazaro Gonzalez, saying that the federal government's decisions superseded state authority to hold a custody hearing.
The INS told Lazaro to bring Elian to Miami airport on April 13, after which Elian's parole would be transferred and the boy would be flown to his father in Maryland. Lazaro ignored this command.
On April 19 the 11th Circuit 3-judge panel confirmed the temporary injunction against flying Elian back to Cuba, with strong language hinting that Lazaro had a strong case and might win his appeal.
Lazaro, Juan, and the Justice Department engaged in lengthy three-way negotiations regarding physical and legal custody.
The mayor of Miami said that the Miami police department would not help federal agents remove Elian from Lazaro's house.
The day before Easter, the Justice Department raided Lazaro's home and captured Elian. A large number of Justice agents, accompanied by a high-ranking Miami city policeman, arrived at 5 a.m. in mini-vans. Carrying automatic weapons and making explicit threats to shoot people, they knocked down the front door and various people, including two NBC cameramen and a man in the yard of Mary Gills, behind the Gonzalez house, whom she had authorized to be there. They quickly found and took Elian. Some people got past the police barricades and tried to interfere, but they were repulsed with little difficulty and nobody was severely injured.
Elian was flown to Maryland to his father and various Cuban government employees.
Lazaro asked the 11th Circuit to allow him to visit Elian and to appoint an independent guardian for him. Juan asked the 11th Circuit to drop the case entirely. The court rejected both requests.
We are waiting to hear what the 11th Circuit has to say. If Lazaro wins there, that only means that the INS must hold a hearing and consider Elian's asylum application. They still can turn him down for asylum, and they have said they will do so.
INTERESTING LEGAL ISSUES.
The substantive issue in this case is whether Elian should get to stay in the United States. That is not the focus of this website. Instead, the focus is on violations of the law by the Clinton-Reno Justice Department. These have arisen because they have been unwilling to exercise their legitimate power to deny Elian asylum after a hearing, preferring to hide behind a false procedural facade.
Clinton could have sent Elian back to Cuba legally very simply. He could have accepted Elian's application for asylum, held a hearing, and then rejected asylum. The immigration law is written to give the government wide discretion on who gets asylum, if only the government follows basic procedural rules. Thus, it would be easy for the INS either to grant or not grant asylum, and courts would be highly unlikely to overturn either decision. This would mean, however, that the INS would have to take public responsibility for the decision.
Asylum having been denied, the INS could have revoked Elian's parole to Lazaro and sent an INS agent to pick Elian up. Lazaro said in writing that he would not fight this, though he would not himself force the boy out of his house. If the crowd outside of Lazaro's house made taking the boy away impossible, the INS would be justified in coming back in greater force and using violence on anyone in the crowd who used violence. If Lazaro would not let the INS into his house, the INS would be justified in getting a court order, after which they could enter by force.
Clinton and Reno did not follow this procedure, which everyone would have to grant to be legal, even if unfair, unwise, or evil. Instead, they refused even to accept the application for asylum and raided Lazaro's house without a court order, and possibly without even a search warrant.
Here are legal issues that have arisen:
Also, I have my own comments on the June 1 decision of the 11th Circuit to defer to the INS.
The best public sources of information are the Washington Times , the Associated Press, NATIONAL REVIEW, the Washington Post, Yahoo's Elian news coverage page, the Drudge Report, and, first and foremost, the Miami Herald.
I've put together a page of assorted links.