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Burden of Proof

Family of Elian Gonzalez May Take Case to Federal Court

Aired January 6, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

DORIS MEISSNER, INS COMMISSIONER: This little boy, who has been through so much, belongs with his father. We urge everyone involved to understand, respect and uphold the bond between parent and child and the laws of the United States.

SPENCER EIG, GONZALEZ FAMILY ATTORNEY: INS issued a decision stripping Elian Gonzalez of his right to an attorney, and of his right to request political asylum. It was an unconstitutional and unfair decision. It was a decision that was reached on the basis mainly of secret meetings with Elian's father in Cuba and not in accordance with due process of law.

JANET RENO, ATTORNEY GENERAL: Commissioner Meissner did consult with me prior to making her decision, and I fully agree with her determination that the father has the legal right and the legal authority to speak for his child in immigration matters.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: An INS decision about the fate of a child prompts protest in Miami and celebration in Havana.

Today on BURDEN OF PROOF: The story of a boy and his father and an international custody dispute.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

Lawyers for relatives of 6-year-old Elian Gonzalez have threatened to go back to federal court to attempt to block his return to Cuba. They contend that his father doesn't speak for Elian.

ROGER COSSACK, CO-HOST: A spokesman for his family in the United States said Elian heard news reports that he was being sent back to Cuba. That spokesman earlier told the press that Elian was at school this morning, but it was later discovered that he was kept away from his first-grade class because news crews surrounded the school.

Attorney General Janet Reno says she sees no evidence to persuade her to reverse the decision of the INS.

(BEGIN VIDEO CLIP) RENO: The father has evidenced a real relationship with the son. I don't think anybody really disputes that, and there is something about a 6-year-old boy and his father. There is a relationship that the law recognizes, that morality and the sense of right of all people recognize.

(END VIDEO CLIP)

VAN SUSTEREN: Joining us today from Miami is Linda Osberg-Braun, she is representing the Gonzalez family here in the United States. And here in Washington, Donna Wren (ph), public affairs professor Rita Simon, and immigration attorney Ira Kurzban.

COSSACK: And in the back, Margo Kaplan (ph), Mike Robinson (ph) and Margorie Wassom (ph).

Let's go right to Linda. Linda, what -- you have -- Commissioner Meissner has ruled against the family, what are your next plans and what are you going to do in court?

LINDA OSBERG-BRAUN, GONZALEZ FAMILY ATTORNEY: The next step is clearly going to federal court and filing our action in front of the federal district court judge, effectively taking any continued decision making process away from the Department of Justice and into the wise hands of the district court judge.

VAN SUSTEREN: All right, we do have live pictures out of Miami to show the viewers which represents some of the protests that are going on in Miami today about the decision of the INS to direct that the child go back to Cuba on January 14 or beforehand.

Linda, let me go back to you, what is your specific objection that you intend to present to the court that gives the court the authority to block the INS decision?

OSBERG-BRAUN: The objection is that INS is not following its own rules and regulations. Elian Gonzalez, regardless of his age and regardless of his father's statements, is entitled, constitutionally, to apply for political asylum. What that doesn't mean is that the father is not important. He is important.

VAN SUSTEREN: Let me stop right there. To apply for political asylum -- and correct me if I'm wrong -- that you have to be able to make the decision, and I presume that the law does not recognize that a 6-year-old can make the decision and that the first step would be to find someone who has the lawful authority to make a decision for a child. Is that right or wrong?

OSBERG-BRAUN: The law does recognize the rights of even a 6- year-old child, and INS does and even has its own guidelines in dealing with a 6-year-old child. Obviously, experts and other professionals will have to be involved in the decision and his father needs to be involved in the decision as well, preferably in the United States, but possibly from Cuba.

COSSACK: Linda, let me just follow up on that. Hasn't all the INS really decided in a very narrow decision that it was Elian's father that is the best person to make the decision for his son and, therefore, it's not even a question of getting into federal court, it's an INS decision over who best speaks for the child?

OSBERG-BRAUN: They have made that decision, and we disagree with it, especially since Juan Miguel is in Cuba, and we don't know that his statements are not coerced. We have people saying that they don't think he's being coerced, but we don't know. Our objective is to air all of the issues to find out if he is being coerced.

COSSACK: You mean coerced into saying he wants his child back?

OSBERG-BRAUN: Coerced -- yes, absolutely. He should be here in the United States. The United States has opened its doors, provided a visa, for him to come here. Why is he not here?

VAN SUSTEREN: Ira, does the law permit a 6-year-old to make the decision or is the first step in this process, whether it be this case or another, is to first to find who has the lawful authority to make the decision?

IRA KURZBAN, IMMIGRATION ATTORNEY: I think when you are dealing with a 6-year-old, and of course there are differences here, there are some shades of difference. If a child, for example, was 17 years old, we might have a very different situation than we have with a 6-year- old.

I think they have an uphill battle -- Linda and the other attorneys representing him have an uphill battle -- because of his age. I don't think a 6-year-old is going to be deemed to be eligible or able to file an asylum application on his own. And then the question is: Who represents him?

And I think it's clear that the attorney general makes that custody decision, he is in the custody of the attorney general. She has now said that the proper custodian is the father.

VAN SUSTEREN: You know, typically, you know, when there is a child with some question about who is going to make decisions, and we have these hearings in court where we bring the parties to court, people speak up and both sides can ask questions. Would it not have been a correct policy to first to make the decision in even a Florida state court, a family law court, to see if it is the father who should speak for the child because the father is out of the country or someone else. And then, from that point, have that person make the decision on asylum or not?

KURZBAN: Well, I don't think this is a typical custody kind of situation. You know, what I've heard a lot about is the best interest of the child. That is not an issue in this case, maybe it should be, but it's not an issue in this case because that's when parents are, you know, divorced and they are fighting over, you know, what parent has the best interest of the child and so forth.

This is a matter where somebody comes to the United States and is in the custody of the attorney general. There is no question about that. Then, the question becomes: What does the attorney general do with the child? The reality, of course, is, if this was any other child coming from any other country, the child probably would have been deported already or certainly would have been sent back to their parent without any question.

COSSACK: Rita, does the federal court even have jurisdiction to hear this matter?

RITA SIMON, PUBLIC AFFAIRS PROFESSOR: It's my understanding that the federal court does have jurisdiction.

COSSACK: On what grounds?

SIMON: Because it is an immigration issue, it is federal court.

COSSACK: And what would they be asked to be doing, to review whether or not the Immigration Department followed procedure?

SIMON: Yes, to review the INS decision. That is my understanding of it.

VAN SUSTEREN: Is it to review the procedure or the decision?

SIMON: I thought to review the decision.

VAN SUSTEREN: Ira?

KURZBAN: I don't think so, quite honestly.

SIMON: Well, you are the attorney. I am not an attorney.

KURZBAN: I think, in this case, they do have jurisdiction if there is somebody in front of them who is representing Elian. I think the first question is going to be for this judge is: Does Linda, who is a fine attorney and who I know for many years when she was working for the Immigration Service, whether she and the other lawyers really have the right to go in and represent Elian? Because if they don't, then they have no standing to bring this. And I think that's going to be the first issue.

The second issue is: I don't think a judge has the right to determine the asylum application. He may compel the Immigration Service to determine it, and then seek to review it. But I don't think you can go into federal court and simply ask a judge to determine political asylum.

COSSACK: All right, let's take a break.

Up next, the INS hopes that Elian can be reunited with his father by January 14, but the child's family in the U.S. says it hasn't received any specific notification. Stay with us.

(BEGIN VIDEO CLIP)

MEISSNER: After careful evaluation of the relevant facts, INS has determined that Mr. Juan Gonzalez of Cuba has the sole legal authority to speak on behalf of his son, Elian, regarding Elian's immigration status in the United States.

EIG: They made their decision based on a couple of secret interviews with Elian's father in Cuba. If they want to base their decision on the best interests of the child, which Commissioner Meissner stated yesterday, they should at least receive a full panoply of psychological and psychiatric evaluations, which we have prepared and are ready to be submitted to the attorney general today.

(END VIDEO CLIP)

(BEGIN LEGAL BRIEF)

A 15-year-old Illinois hockey player has been charged with two counts of aggravated battery after checking an opponent, causing paralysis from the chest down.

The Waukegan boy pleaded not guilty to the charges, stemming from a game on November 3. Lake County prosecutors say they has a "responsibility under the law" to bring the charges.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log onto www.cnn.com and click your way to the BURDEN OF PROOF link. We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video-on-demand.

(BEGIN VIDEO CLIP)

EIG: INS based their decision yesterday, in which they stripped Elian of his rights to representation and to asylum, on Cuba custody law. I wasn't really aware that Cuba had laws. But if they do, they should not be the basis for determinations of important issues in this country.

RENO: We all hope the day will come when this won't be an issue anymore between Cuba and the rest of the hemisphere. But this is a little 6-year-old boy.

(END VIDEO CLIP)

COSSACK: We're back. Joining us now by telephone is CNN's Mark Potter.

Mark, there are protests going on in Miami. Describe them for us.

MARK POTTER, CNN CORRESPONDENT: Well, this is a protest that got out of control, and it was set up as a relatively small protest, organized by a Cuban exile group in the heart of downtown Miami near the federal building. About 20 minute ago, it got out of control. The protesters decided to start moving east through the police barriers on Flagler Street. They walked for several blocks, several hundred people, down Flagler Street east to Biscayne Boulevard in the area where the Orange Bowl parade is traditionally run, and they are still moving. They haven't stopped.

The parade permit was to be only at the federal building. The police tried to stop them -- the police on horseback, the police on foot, but they were unable to stop the crowd which just surged through.

Now, there has been no real violence. It doesn't appear that anybody has been hurt. No one seems to be in danger of being hurt. The police do have this under control, at least as a moving parade, but it's not what they planned to have. It's what they have now, and they're clearing traffic on Biscayne Boulevard ahead of the crowd as it heads north, and it's a little different than what it was originally seen as by the police and those who gave a permit only for a stationary location.

COSSACK: All right, our thanks to CNN's Mark Potter.

Let's go to Linda now.

Linda, the INS has ordered a transfer, a -- that (AUDIO GAP) his father. If that is to be accomplished, how would you see it being done?

OSBERG-BRAUN: Well, the statement, the mandate is disturbing in the first place. I see going to federal court and having that reversed in the first place. I don't see it materializing in nine days. However, when and if there's a final decision, it will be done in compliance with the law.

VAN SUSTEREN: Rita, what's the standard? Is there a standard?

SIMON: Well, I was going to say that I was talking to some people at INS and they said that they really made great efforts and are satisfied in talking with the father in Cuba privately that he and his son have had a very good relationship, that there was really, in fact, joint custody, and that the son is very close to the father and to the father's wife, and there's another child involved.

And, therefore, it seems to me -- well, I'm amazed at myself, but I reluctantly think that you look at the relationship between the child and the existing, living parent, and the child goes back. The reason I say amazed is because I've spent some time in Cuba and, obviously, the kid would have a better life in the United States.

VAN SUSTEREN: Rita, I tell you, that's what is probably the -- one of the most disturbing aspects of it. And I'll go back to Linda on this because, typically, when you're resolving sort of disputes, there's always a -- usually a legal preference in favor of the natural father. But both sides get to be there and it's done openly and it's done in a recorded fashion. It's a sort of -- I mean, the lawyers are obviously using the code word secret, but, I mean -- but the truth is that both sides usually get to discuss these issues.

Linda, do you want to weigh in on this?

OSBERG-BRAUN: That's exactly right. You've just hit the key to this whole case. And Ira mentioned that, under normal circumstances, this is not a normal situation, this is no longer a normal boy because of what Castro has done to him. We need to air everything in open court, in an administrative setting, and we will compel INS to follow those rules so all of the issues can be aired.

If the father is not being coerced, then that will come out. I can't believe that he's not being coerced, though, and meetings with the father with private organizations in private do not protect Elian's best interests. Only...

VAN SUSTEREN: All right, we're going to take a break, Linda. Hold that thought. We'll be right back.

Elian Gonzalez shied away from the cameras and school today as two nations watched this case unfold. We'll have more on this explosive international custody dispute when we come back.

(BEGIN Q&A)

Q: A federal judge in St. Paul, Minnesota has ordered the union of Northwest Airlines' flight attendants not to stage a mass sickout because of stalled contract negotiations.

According to Northwest lawyers, how many flights has the airlines canceled since December 30 because of flight attendant sickouts?

A: More than 300.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Lawyers for the U.S. family of Elian Gonzalez vow to fight in court to keep him in the United States. But Attorney General Janet Reno stands behind the decision of the INS to reunite the boy with his Cuban father.

Linda, you know, I must confess that the old-fashioned lawyer in me doesn't like the idea of the government doing one-sided interviews in secret without both sides having an opportunity. But what if the father came to the United States and says -- goes to court and says: I'm a communist, I am close to Fidel Castro, he gives me lots of things because of this whole dispute. I'm a good father, I love my son, and under the law there is a preference for the natural father. Based on that, are you willing to say: OK, send that child back?

OSBERG-BRAUN: We have been trying from the onset of this case to get the father here.

VAN SUSTEREN: No, but my question is, based on that -- based on that, are you willing to say that the law has now been satisfied. This is a fit father, good-bye to the child? OSBERG-BRAUN: If he comes to the United States and talks from his heart about the true best interests from his heart of Elian, then I would look at what is Elian returning to.

VAN SUSTEREN: So it's not strictly for you, then, a decision who should speak for the child. If the law has a preference for natural father, and the father says, you still take it beyond some other step.

OSBERG-BRAUN: I think there is custody and there is political asylum immigration arena. They are on two separate tracks, and before we send anyone back, regardless of custody, the United States has to make sure that they're not sending that individual back to harm; not harm from the father, harm from the whole situation. Aren't we...

COSSACK: I am sorry, let me interrupt for a second.

Ira, in light of the facts as we know them and the procedure that has gone on that the INS has followed, is there any chance that this situation will be reversed in the federal court?

KURZBAN: No, in fact, there is a United States Supreme Court case directly on points called Reno versus Flores where they challenge the detention of children, in fact, where they said children shouldn't be detained. They should be sent to any relative that they had. It went up to the Supreme Court, and the supreme court has said -- unfortunately, I think, but nevertheless has said -- that these, even though they have due process rights, those rights are diminished because they are children.

And, you know, this is not a tough legal issue. I mean, unfortunately it's not, I say, but it really isn't. It is not a tough legal issue. This child has been in the custody of the attorney general from day one.

VAN SUSTEREN: Yes, but there still is the issue, I think...

KURZBAN: No, it's only an issue because it's Cuba...

VAN SUSTEREN: ... whether -- who can make the decision about it.

KURZBAN: ... it is only because it is Cuba. This happens every single day in America.

VAN SUSTEREN: Rita, you want to get in.

SIMON: I want to say, look, suppose the father comes, I can imagine that Castro would let the father out. But he's got a wife and a baby in Cuba. If the father comes, he is not likely, whatever his true beliefs are, he is not likely to say: I want my son to remain in Miami. He is most likely to say: I would like to take my son back.

VAN SUSTEREN: But is that really the, I mean, the issue in a sense? I mean, the real issue, to me, starts with the fact of who makes the decision for the child? The INS has said: We're satisfied the father does. I simply think, though, that, you know, air in a court here. And if he comes here, no matter what his views are, whatever his political beliefs are, if he's the natural father and he is fit, then he should make the decisions, even if they're unpopular here.

SIMON: Especially if you see the son and the father together, and it's obvious that the son and the father have a good relationship.

KURZBAN: Let me ask the other question: What evidence does anybody have anywhere that this father is not unfit. The press has gone to Cardenas to investigate it. The United States Immigration Service has gone to Cardenas investigate it.

VAN SUSTEREN: It is a one-sided investigation, come on, Ira.

COSSACK: What do mean it is one sided...

(CROSSTALK)

COSSACK: ... that this father is anything but a good father.

VAN SUSTEREN: But the problem is, you have an unaccompanied minor in this country. And typically what we do is we have some sort of procedure because...

KURZBAN: No, we do not, Greta.

VAN SUSTEREN: In domestic.

KURZBAN: In domestic matters -- In immigration matters, the attorney general typically and always makes that decision. Now whether that is right or not is another matter. But what you are really saying here is: We should make an exception because this child is coming from Cuba.

And you know, the next time this happens when the child is from Haiti or from Iran or Iraq or Afghanistan or anywhere else, you have got to decide: Are you going to give that child the full due process hearing? There are thousands of kids who come from Mexico every year. Are you going to give everyone of those children a full due process hearing?

(CROSSTALK)

COSSACK: I'm afraid that's all the time -- I have to cut us off because that is all the time we have for today. Thanks to our guests and thank you for watching.

Now if you would like to join in on an interactive debate on this topic, join my co-host, Greta, at 2:00 p.m. Eastern time. Just log on to www.cnn.com/chat.

VAN SUSTEREN: And guess what, we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

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