Whoa! Leave for a few days to go to trial (and lose), and the entire Board changes! I’m not going to try to block quote things, because I’m not yet sure how, but anyway . . .
DANGEROSA asks:
“Let’s say the courts grant the kid asylum…that doesn’t mean his father looses custody - right? And since the father has custody, it is the father’s right to raise the boy where he sees fit - Cuba, Miami, the South of France, correct? At least according to US law, perhaps he doesn’t have that right in Cuba, but our courts run under our laws. So what are we accomplishing here? The US Government does not keep people in this country against their will (unless they are incarcerated). And since Elian is six, his father’s will is his will.”
Well, that’s the the question the Court is trying to decide. If Elian, at tender age of six, has the ability and capacity to ASK for an asylum hearing (which I personally would assume he does not, but the court is at least going to take a look at that question), then he presumably has capacity to invoke his right to asylum, should the court find he can petition for it. In other words, the court would be determining that this particular six-year-old CAN ask for (and, one assumes, then accept) asylum without his father making the decision for him. Frankly, I’ll be really surprised if that’s what the court decides. But the question under debate at this point is whether “his father will is [Elian’s] will,” and if the court decides it is NOT, he arguably can stay here regardless of his father’s wishes.
MILROYJ asks:
“As I understood it, when Elian first arrived in the US, either the AG or the INS had custody (I believe it was the AG.) Then she granted temporary custody to Lazaro Gonzales, which has since been revoked. Am I ok on the facts so far?”
More or less. The INS is a division of the Department of Justice, which is run by the Attorney General. So the Attorney General is the Big Boss who can, if she chooses (as she has here), involve herself in INS affairs. I’m not sure whether it was her personal decision to place Elian temporarily with the Gonzaleses; I kind of doubt it, though, since I would assume she didn’t become involved until it became clear what a mess it was becoming. But I could be wrong.
“I assume that when Lazaro’s custody was revoked, custody reverted back to the AG.”
To the INS. The Attorney General never personally had custody of Elian.
“My question is, has legal custody of Elian been give back to Juan Miguel, and if so, at what point did this occur?”
This is sort of hard to respond to, because there was no specific time. Let me try to explain: The INS had custody of Elian because he arrived in the U.S. as an unaccompanied minor illegal alien. He almost literally washed up on our shores as an apparent orphan and, under such circumstances, responsibility for his welfare rested with the INS, which handles immigration issues. As such, the INS had the right to decide custody for him IN THE U.S. and SO LONG AS he remained an unaccompanied minor. Once he was something other than an unclaimed (ie, orphaned) minor, then the rationale for the INS to be in charge of his care no longer existed. In other words, the INS only had charge of him in the first place because one of his parents was dead and the other was not in a position to act as his parent (because he was at that time in Cuba). But once Elian’s father arrived in the U.S., ready and willing to parent Elian, the rationale for the INS to claim custody evaporated. And, since the INS has no real interest in dealing with custody issues or raising children, I’m sure they were perfectly happy to have Juan Miguel take charge of the boy’s care once again. The monkey wrench in the works, of course, was the Gonzaleses’ refusal to give the boy back.
“When Juan Miguel arrived in the US? sometime before? or when the two were physically reunited at the Air Force base?”
Juan Miguel ALWAYS had the right to custody of his child, at least under U.S. law. The question has never been whether he was entitled to custody, but who would have TEMPORARY authority to speak for the boy and care for the boy in his father’s absence. But his father isn’t absent anymore, so the justification for anyone other than the father to speak for the boy no longer exists.
DANIEL says:
“JODI that sect of Federal law I cited (TITL 18) seems to give the FEDS the authority in this case, if the was an act of “kidnapping” (which there wasn’t).”
I have explained why the actions in question do not meet the Federal definition of kidnapping (no transportation of the victim across state lines). I have also explained that the actions appear to meet the State definition of kidnapping, and further would constitute “kidnapping” under most lay-people’s definition of that term. I’m done arguing about this point.
“The 11th Circuit, has decided there will be some sort of hearing re asylum. They believe Elian had the right to PERHAPS ask for it himself. IF they decide on May 11th to have an Asylum hearing, the asylum hearing will bring up who is empowered to speak for Elian.”
Correct, except possibly for the last sentence. If Elian can ask for the asylum hearing himself, then presumably he can speak for himself during the course of the hearing. I find that pretty unlikely, but we’ll see.
“If the hearing rules Elian gets Asylum (doubtful, but who knows) then, they have DE FACTO decieded custody, as no asylum= Elian goes back to Cuba w/ father, ASYLUM= Elian stays in US, thus not w/ father, thus w/ Maimi relatives. TRUE, the Courts dec will only say asylum/no asylum, that is USA/Cuba, but the real end is that custody is decided. (I am not considering the slight poss of Sr. Gonzalez asking for asylum himself).”
I see your point, and it is not necessarily wrong. It might well shake out that way. It is not, however, necessarily right. If Elian were granted asylum without his father’s consent (highly unlikely), and if Juan Miguel then decided to return to Cuba without his son rather than stay in the U.S., Juan Miguel would arguably still have the right to transfer guardianship of his son to a person of his choosing, since he cannot raise the boy himself if he goes back to Cuba and Elian stays. It’s difficult to imagine that after his relatives’ behavior he would consider them as candidates for guardianship of Elian, even under those circumstances. In any event, the point is that an asylum hearing and a custody hearing are NOT the same thing. Even if you theorize a de facto determination of the latter through the former, that does not transform them into the same, or even similar, proceedings.
Looking foward to your educated opinion.