"Elian": Should the Justice Dept. be involved?

Okay, evidently the “Elian Gonzalez” thread (here’s a link) http://boards.straightdope.com/ubb/Forum7/HTML/001631.html

is only concerning itself with expressing opinions. That’s fine. I still just wanna know how come Janet Reno and the Justice Dept. are involved in the whole thing in the first place. Nobody has ever explained this to me. I was flabbergasted when I heard on the news that she’d stepped in. What’s her rationale? “We have to make the world safe for capitalism”? Sorry, I don’t buy that anymore.

IMO, the whole thing is a custody dispute that should have been resolved in the appropriate court, with perhaps a little input from the INS.

Should the Justice Dept. be involved at all? Or is it just that Janet Reno has some kind of personal interest? If it is just a personal interest, is it a Good Thing that she’s using the office of the Attorney General of the United States to get air time?

“Why, sometimes I’ve believed as many as six impossible things before breakfast!” - the White Queen

The Justice Department and the INS are inextricably linked. If it is an immigration issue Justice is pretty much automatically involved.

Buffalo: The conspiracy widens…

First of all, I posted a fairly full explanation of my understanding of Elian’s legal status in a thread in GQ. In short, Elian’s legal status is like someone stopped at a border crossing (even though he was paroled into the custody of his U.S. relatives).

As such, he is legally under the control of the Immigration and Naturalization Service, an agency of the Department of Justice, the government agency headed by Janet Reno, the Attorney General. This control is just like the control that the INS (and its boss, the Attorney General) has over someone found attempting to illegally enter the country at say, an international airport. Such people can be detained pending adjudication of their legal status or deportation.

The INS and the Attorney General (who is the nation’s highest law enforcement official) have decided that under international law, custody of the boy should go to the father, the sole surviving parent. The federal district court in Florida has agreed, and this decision is on appeal to the 11th Circuit Court of Appeals. Until such time as the 11th Circuit rules differently, the INS has control of the boy.

Hope this helps.


You don’t have a thing to worry about. I’ll have the jury eating out of my hand. Meanwhile, try to escape.

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Yes, it does. Thank you, Billdo.

The media, in its haste to get to the standups in front of the weeping relatives, has never bothered to explain exactly why the Dept. of Justice was involved.

“Why, sometimes I’ve believed as many as six impossible things before breakfast!” - the White Queen

Well, the Appelate Court has ruled. Elain stays (for now), until a custody hearing can be held. The Justice Dept is out of the Picture, now.

Where’d you get that blurb from, Danny? AS it turns out, the court of which you speaks said it absolutely would not address the custody issue itself and said not a word about where the child stays until then.

As it is, the Justice Department still has a valid order requiring the relatives in Miami surrender Elian to his father. Now interject a thought here: What with the crowd (rabble) in Miami calling the kid’s father a traitor, do you really think it’s safe for him to visit that house?

Monty: The courts ruling was to accept the lower courts ruling that Elain stays in the US, until a proper court (ie a custody hearing) makes a decision. As far as I know, the Appelate court did NOT rule on where Elain should stay until the hearing (as long as it was in the USA). So I do not know whom should have custody until then, I assume the family court will make an interim ruling. The normal thing would be to divide custody 50-50 until then. If the Miami relative refuse to let Sr. Gon. have any temp custody, they can de ruled in contempt, and it will weigh against them. I really have no especially feelings as to Elain stay/Go, as long as a fair hearing is given, instead of politically motivated bureacratic rulings.

The ruling was that Elian stays in the US until his asylum hearing, not until he gets a custody hearing.

Ah, but you might recall, Danny, that the custody decision had already been made by the court which granted the divorce–in Cuba! The custodial parent, in fact, was the child’s father. The mother had the child for 2 days out of 7; the father is the one who had custody the majority of the time.

But let’s look at what happened under this “joint custody.” (And “joint” implies deciding between the two of them what will happen to/for the child.) First, the father honoured the custody agreement; second, the mother violated the agreement and absconded with the child.

With respect, folks, there is no real issue of custody before the courts, other than the temporary issue of who gets to look after the child until the courts decide the real issue – Elian’s right to apply for asylum.

First of all, yesterday’s ruling (link available in this story) is just a temporary injunction. The holding of the 11th Circuit was to order that the child be required to stay in the country until it could decide the underlying issue. Yesterday’s ruling only served to preserve the status quo, because if Elian were removed from the country, it would render the appeal moot.

The INS (and therefore by implication its parent organization, the Justice Department) remains heavily involved.

The underlying legal issue is whether Elian (or his Miami relatives on his behalf) can apply to the INS for asylum. Several applications for asylum were submitted to the INS, including one signed by the Miami relatives and one signed by Elian himself. The INS refused to process any of them. The Miami relatives sued the INS in district court in Florida to require the INS to process the applications.

The district court held that the decision of whether a six-year old child could apply for asylum should be made by that child’s legal guardian, and that the appropriate legal guardian to make such a decision was the surviving parent, his father.

The Miami relatives have appealed the decision to the 11th Circuit, which should rule on it in May. The temporary injunction is just to preserve the 11th Circuit’s jurisdiction to hear this appeal.


The 11th Circuit rules yesterday. It held in part: “(we) doubt that protecting a part’s day in court, when he has an appeal of argueable merit, is contrary to the public interest”. Basicly the slammed Reno & the INS for making a decision without a proper hearing. I have felt all along that a hearing will solve this issue properly & fairly.

Oh, and for those who feel that a Cuban court should have juristiction, is suppose when someone asks for asylum in the USA, but there is a death sentence against them for making statements aginst the regime, we should shoot them, eh?

Daniel, I really don’t see what’s so hard about this. The Justice Department took the position – based, I might add, on extensive precedent and accepted legal principles – that a six-year-old child as a matter of law did not have the capacity to request asylum. He’s just too little. The Justice Department also took the position, for the same reasons, that the only person with the ability to request an asylum hearing on his behalf is the legal custodial parent – his father. Not the person who has actual custody of him, but the person who has the legal right to speak for him. The judges for the Eleventh Circuit, in holding that Elian could and did request asylum himself, departed from the generally-accepted presumption that a child of that age is unable to do so. What they slammed Justice for, just so we’re clear, is not interviewing Elian or attempting to discern his wishes – which you can see they would have no reason to do if they believed that he was as a matter of law too young to participate in the decision-making. I mean, if he’s too young to have any say, why ask him what he thinks? What if he were four? Or two? Do you still have to ask him? Essentially, the court implicitly determined that a six-year-old (or at least this six-year-old) is old enough to voice an opinion about his future and have that opinion considered. That’s what Justice was “slammed” for.

There’s no asylum hearing until you’re dealing with a person competent to request one; to date, the Justice Department’s opinion has been that Elian is not competent to request one, because he’s too young. The judges of the Eleventh Circuit apparently disagree, but I fail to see how the Justice Department could have anticipated such a ruling. While you are correct that a grant of asylum would effectively settle custody (assuming Elian’s father doesn’t want to stay in the U.S.), that doesn’t mean that an asylum hearing and a custody hearing are the same thing. People who allege that the matter should be handled by a Cuban court are talking about the matter of custody – which is reasonable, since the boy and his custodial parent are both Cuban. A Cuban court obviously would have no ability to determine whether any person receives asylum in the U.S.


Fiat Justitia

Of course an asylum hearing & a custody hearing are not the same thing, and I hope I have not given that impression. In this case only, it ALMOST amounts to the same thing.

I am saying that the Court dinged the Justice dept for not granting a hearing, you are saying they dinged them for not asking Elian, and thus not granting a hearing. We really are agreeing. I just left out a bit, in the interests of brevity.

The same “justice” department that murdered civilians at Waco (using military hardware to kill American children)?

The same “justice” department who murdered Randy Weaver’s wife by shooting her through the neck while she was standing on a porch holding nothing more lethal than a baby?

That “justice” department?

Give me a freaking break.


Oh Moderator! I detect a highjack! AND a rant.

Just a quibble, Jodi. The 11th Circuit did not hold that Elian (or any 6 year old) could apply for asylum, or required a competency hearing. What the court ruled was that the question of whether Elian validly applied for asylum was strong enough (and the other reasons were compelling enough) that he shouldn’t leave the country before the court decided the question.

Daniel, custody and asylum are entirely different things. One possible outcome of the 11th Circuit decision is that it may hold that Elian may be able to apply for asylum despite what the custodial parent thinks. (In fact, as the 11th Circuit mentioned, if he were 14 or above he could apply for asylum in his own right without the consent or agreement of his parent or legal guardian).

Maybe you should re-evaluate which media you rely on for information. I’ve seen this point explained clearly in newspapers.

What game are YOU playing?

I subscribe to a local newspaper that arrives on Saturday and Sunday. Events of national importance such as the death of singer Pearl Bailey make it onto the front page. Events of lesser importance, such as Hurricane Andrew, get a paragraph on page 2. Elian got a front page sidebar when he was pulled out of the water back in November, and ever since then he’s been relegated to an occasional update paragraph on page 2. Thus, unfortunately, most of my information about the case comes from such journalistic bright lights as Charlie Gibbons and Good Morning America.

I suppose I could cut into my valuable SDMB time by going over to latimes.com and reading the paper, but they don’t seem to have nearly as much fun over there.

“Why, sometimes I’ve believed as many as six impossible things before breakfast!” - the White Queen