HEATED DEBATE SURROUNDING CUBAN CUSTODY CASE CONTINUES

When Congress reconvenes on January 24, 2000, one of their first orders of business may be to introduce legislation to grant Elian Gonzalez US citizenship. The move would place the boy in the company of only a few other people who have received citizenship through a congressional act.  This legislation would take the INS out of the custody dispute, which, supporters hope, would then be heard by a Florida family court.  This hearing is scheduled for March 6.  While this move would remove the INS from the dispute, it would not guarantee that Elian would remain in the US. His fate still depends on the outcome of the custody decision.  US citizen children routinely are forced to leave the US with parents who are deported if the deported parent has custody of the child.

Over the past few years, many politicians have advocated taking steps to normalize relations with Cuba.  While Cuba is still subject to the strictest economic sanctions the US enforces against any country, there have been significant changes in the relations between the US and Cuba.  For example, airline passenger flights between the two countries have grown more numerous recently, and increasing numbers of US business have called for lifting of restrictions on trade with Cuba.  In an odd twist, this incident could help in the continued development of better relations if the US does not bow to political pressure exerted by the Miami Cuban community.  According to Wayne Smith, a former Chief of the US Interests Section in Havana, the real dispute over Elian is not between two governments, but between two groups of Cubans, those in Cuba and those in Miami.

Normally, the success of a private bill to grant Elian citizenship is doubtful.  Private bills are very difficult to pass, in part because they are seen as personal favors.  Moreover, the bill would ordinarily have to pass through the immigration subcommittees of both the House and Senate, and then the Judiciary committees of each, and then be voted on by the full Congress.  Unless the bill to grant Elian citizenship is able to bypass this standard process, it may not have much chance of success. 

Elian’s relatives in Miami have filed a lawsuit in federal court in an effort to keep him from being returned to Cuba.  This comes after the INS said it would not heed the ruling of a state family court awarding temporary custody of the child to an uncle in Miami and dismissed a second asylum application filed on behalf of Elian by his uncle.  No hearing date has yet been set, but all sides have expressed their wish to have the matter before the court as soon as possible.

The suit claims that the INS has violated Elian’s due process rights by deciding administratively that he should be returned to his father.  According to one of the attorneys for the Miami family, the family is asking the court “not to decide the issues in the case, not to take custody away from Elian's father, not to decide whether or not Elian should go back to Cuba, simply to compel the U.S. government to give Elian a fair hearing and his day in court.”