Immigration

• Author: International Law Group

In Cuba, plaintiff Elian Gonzalez was born in December 1993 to Juan Miguel and Elizabeth Gonzalez who separated when plaintiff was three. Elizabeth kept custody of plaintiff although Juan Miguel had regular and meaningful contacts with him. On November 22, 1999, Elizabeth left Cuba to take plaintiff to the U.S. along with twelve other Cuban nationals. But when strong winds and rough seas capsized their small boat off the coast of Florida, eleven of the passengers died, including plaintiff's mother. Plaintiff survived by clinging to an inner tube for two days. Florida fishermen rescued plaintiff at sea and took him for treatment at a Miami hospital. At the instance of Miami resident and great-uncle, Lazaro Gonzalez, INS officials put off plaintiff's immigration inspection and paroled him into Lazaro's custody and care.

Aided by a Miami attorney, Lazaro filed two applications for asylum on plaintiff's behalf and plaintiff signed a third request himself. The applications alleged that the Castro government had persecuted many members of plaintiff's family for opposing the communist government, e.g., by imprisoning two of plaintiff's great-uncles for their political activity. Moreover, if the U.S. sent plaintiff back to Cuba, the complaint alleged that the government would exploit him as a "propaganda tool" and would involuntarily indoctrinate him in communist dogma.

When an INS official interviewed Juan Miguel at his Cuban home, the latter spurned any claim for asylum by his six-year-old and demanded plaintiff's immediate return to his custody. INS officials in Miami next met with Lazaro and several lawyers. Lazaro continued to maintain that the Cuban government was coercing Juan Miguel to demand plaintiff's return to Cuba. An INS official again talked to Juan Miguel in Cuba and concluded that he genuinely and freely wanted plaintiff to come back to Cuba.

In January 2000, the INS Commissioner turned down plaintiff's applications for asylum as legally void for lack of plaintiff's capacity to file his own applications against the wishes of his father. Acting by and through Lazaro as next friend, plaintiff sued in federal court to compel the INS to rule on the merits of his applications. The district court, however, summarily dismissed the complaint and plaintiff appealed. Preliminarily, the Circuit Court enjoined Elian's removal from the U.S. pending the appeal [see 2000 International Law Update 59].

Plaintiff contended that the lower court had...