by Scott Harris
-year-old Elian Gonzalez survived the capsizing of a small boat that left
Cuba for Florida during Thanksgiving week by hanging onto an inner tube for
two days. Before being rescued, the boy's mother and ten others were
drowned. Since being brought to Florida, the child has become a political
football with distant relatives in Miami resisting the demands of his father
and the Cuban government that the boy be immediately returned to his home in
Despite the pleas of the boy's father and all four grandparents, the U.S. government bowed to pressure from Florida's right-wing Cuban community and placed the 6-year-old's fate in the hands of Florida's court system. But the U.S. State Department has since reversed direction and directed the Immigration and Naturalization Service to handle the case. The boy's father, Juan Miguel Gonzalez, was recently interviewed in Cuba by INS representatives in Havana.
Between The Lines' Scott Harris spoke with Michael Ratner, an attorney with the Center for Constitutional Rights based in New York City, who examines the legal and ethical issues in this tragic case.
Michael Ratner: The law is, generally that if you're picked up on the seas between Cuba and Florida, that you get taken back to Cuba. The Cubans had notified the U.S. about the boat, but apparently the U.S. never located it, which was unfortunate for the people who died when it capsized.
The boy gets taken to the United States, so the first thing you hear about the law is that he should have been taken back to Cuba from a U.S. law-justice/immigration point of view. He could be taken to the hospital obviously, but eventually, taken back to Cuba. So the U.S. was violating that law.
He comes into Miami, and at that point he has been essentially abducted illegally from Cuba. He's taken by his mother, illegally -- from what it sounds like to me -- but whether he was or not, at this point, he only has one surviving parent, and that's his father, who's living in Cuba and wants his kid back.
And the second point is that generally, in the courts of the United States, as well as the courts in Cuba, parents always have a right to custody, unless there is something wrong with the parents. No one has alleged that there's anything wrong with the father, he's not an alcoholic, he doesn't beat the kid, there's no allegation like that.
According to the courts and the people in Cuba, the father should get the child. So, as a general matter of the matrimonial law, the father should get custody of Elian.
As a third matter of law, the Hague Convention on the Rights of the Child was passed in 1974. The U.S. is a signatory to that convention. That convention basically says that children that are abducted from their home country must be returned immediately upon the legitimate demand of that nation.
The U.S. is not only violating its own immigration law, general law on custody that every state in the U.S. itself and Cuba has with regard to the child going back to their parents, but it's also certainly violating the Hague Convention on the Rights of the Child.
On the legal matter, there's no issue. But, just think about it as a personal matter. The kid just lost his mother. He's five years old, just turned six. He's coming into Miami and his father's back in Cuba. You have to think, what should happen to this kid? He should be allowed to be taken back to be in his father's custody in Cuba. That's obviously completely clear. So there's no issue here.
Imagine another situation, imagine if this child came from Bolivia and came into the U.S., and the father is in Bolivia still. There wouldn't be any question. The U.S. would send this kid back to Bolivia in two seconds. Even though Bolivia has much worse health conditions, education system, and is much poorer, the Cuban Americans are arguing (Elian) isn't going to be decently treated in Cuba. Of course he's going to be treated decently with a good health and educational system, and a father who loves him. But it's just politics.
The Cuban (right-wing) community really demonstrates to me how little it really cares about people, and how much more it cares about slogans and righting past wrongs. If they really cared about human beings and they really cared about this child, they would say he really does belong legally, morally and politically with his father.
Between The Lines: At the core of this is the double standard inherent in the U.S. immigration policy toward Cuba, the so-called "wet-feet, dry-feet policy" where people struggle to get anywhere on land in the U.S. and Florida so they can claim political asylum and later on, citizenship. Tell us a little bit about your view of the flaws inherent in this immigration policy.
Ratner: There's two problems. The initial policy before recent changes a couple of years ago, was that anybody who was picked up in a boat by the Coast Guard would be taken to the United States and would automatically get a right to stay here for a year, and within one year could apply for a green card. That's a special policy that's only applied to Cubans.
After the huge waves of immigration started coming, the U.S. made a deal with the Cuban government that they would try and organize the people who wanted to come in a more legitimate way. So the U.S. gives 20,000 visas a year by lottery to Cubans who apply at the U.S. interest section in Havana to come to the United States. And of course there's a lot of people who do, because there's a million-and-a-half Cubans in Miami and most of the people in Miami have relatives in Cuba who want to join them in some fashion. So there's 20,000 people orderly immigrating to the U.S. every year.
The people picked up on the high seas are technically now supposed to be brought back to Cuba. Most of the time, they are; this policy has discouraged a massive influx of immigration out of Cuba. But the rule is, if you get your feet onto dry land when you hit the beach, you're then automatically in the U.S. and after you're here for a year, you get a green card. So people try and hit the beach. The Cuban government has complained that this rule is what's caused people like Elian Gonzalez' mother and smugglers to leave Cuba because they know once they can hit land, they can make it into the U.S.
So the Cuban government blames the United States very heavily for allowing that policy to continue. It basically attracts people out of Cuba and into taking risks with their lives. And this policy kills people, as in the case with Elian's mother and others on their boat. That's what this policy did and does -- kills people -- and that's a bad policy.
And of course, it's a policy that still favors Cubans much more any other nationality. There's no other nationality (for which this policy says) that, the minute you step foot into this country, that you can get political asylum and then a green card in one year.
December 31, 1999 (http://www.monitor.net/monitor) All Rights Reserved. Contact firstname.lastname@example.org for permission to use in any format.
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