INS Controversial Decision in the Elian Gonzalez Case
Posted Jan 17, 2000

On January 10, 2000, as we were getting ready to send out the Immigration Law Bulletin to you, our subscribers, a Dade county, Miami, Circuit Court Judge issued a Temporary Protective Order for Elian Gonzalez to remain in the U.S. I was invited to provide my insights and comments on the evening of January 10, 2000, from the Immigration law perspective, for the CBS affiliate night news.

On January 5, 2000, Doris Meissner, the Commissioner of the Immigration and Naturalization Service, released the decision of the INS with respect to the highly publicized case of Elian Gonzalez. Although this case may not be useful for your particular immigration matter, the Law Office of Sheela Murthy believes that understanding the framework of U.S. immigration law and how the INS operates, is helpful and part of the education process for many intending immigrants.

Meissner explained that the case of Elian Gonzalez has been a difficult one. Elian Gonzalez is a six-year-old boy, too young to make legal decisions for himself. The INS had to decide who could legally speak for him. A great uncle as well as three lawyers claimed to represent Elian as well.

The INS met with Elianās father in Cuba, and separately, with the great uncle and the Miami based lawyers. INS decided that since the father, Mr. Juan Gonzalez of Cuba has the sole legal authority to speak on behalf of his son, Elian, his decision and desire to have his son with him in Cuba will govern this case. INS advised both Mr. Gonzalez and Elianās great uncle in Miami of this decision on January 5, 2000, and was prepared to work with all the parties to make the arrangements for Elianās return to his father in Cuba by January 14, 2000.

INS cited both U.S. law and international law, both of which recognize the unique relationship between a parent and child. Since family reunification has long been a cornerstone of both American immigration law and INS practice, returning the child to his father was in the best interest of the child according to the INS.

Immediately after the INS decision, key legislators of the U.S. Congress rallied for and against the decision of the INS. Surprisingly, it appears that many Democrats are supporting the INS decision to return Elian to Cuba, while the Republicans are criticizing the Administration and the INSās decision and demanding that this case be treated as any other custody battle under State family law. The Miami based lawyers have criticized the INS for failing to follow due process of law and not affording them an opportunity to present witnesses or have a court hearing.

On January 10, 2000, as we were ready to send out the Immigration Law Bulletin to you, our subscribers, a Dade county, Miami, Circuit Court Judge issued a Temporary Protective Order for Elian to remain in the U.S. I was invited to provide my insights and comments on the evening of January 10, 2000, from the Immigration law perspective, for the CBS affiliate night news.

INS is considering whether the Miami Circuit Court has any jurisdiction in this case at all. Cuban exiles in Miami are delighted that Elian will have his day in court, even if the final decision may be to send him back to Cuba. After all, the greatness of America and what distinguishes us from totalitarian regimes is our democratic Constitution and due process rights afforded to all, whether citizens or residents. The court hearing on Elianās case is set for March 6, 2000.

We do not yet have the last word on this case!