When a boat carrying Elian Gonzalez, his mother, and 12 other Cuban nationals sank off the coast of Florida in November 1999, Elian's mother drowned and he found himself at the centre of an international custody battle. It made countless front-page newspaper headlines through April 2000. Substantial media coverage extended well beyond April. And President Fidel Castro of Cuba was giving Elian headline status in October during the course of a televised interview on the CBC.
After seven months of bitter recrimination, dubious decision-making, and intense legal struggle, Elian Gonzalez and his father returned to Cuba. Despite their euphoric welcome in Havana, the haunting question remains: Was justice done to Elian? Let's try to find some answers.
On 1 June 2000, a three-judge panel of the United States Court of Appeals in Atlanta, Georgia, ruled that Elian was not entitled to a hearing on asylum in the United States. His Miami relatives were given two weeks to appeal the decision to the same panel, to the full Court of Appeals, or to the United States Supreme Court. Counsel for the relatives left little doubt that they would pursue every available avenue of appeal. Indeed, on 15 June they filed a request that the full, 12-member Court of Appeals reverse the decision of the three-judge panel. At least a majority of the Court would have had to vote in favour of rehearing the case. On 23 June, the Court ruled unanimously against the Miami relatives.
On 26 June, the relatives appealed to the Supreme Court for an emergency stay of an earlier extension that was due to expire on 28 June at 4:00 pm. Lawyers for the relatives asked that the justices be given at least two weeks to consider the appeal `on a very, very fast timetable.' (1) The key contention was that the `overwhelming weight of federal appellate decisions in [the United States] would have given Elian Gonzalez the absolute constitutional right to an asylum hearing five months ago.' (2)
On 28 June, the Supreme Court issued a 26-word statement: `The application for stay presented to Justice [Anthony] Kennedy and by him referred to the court is denied. The petition for a writ of certiorari [appeal] is denied.' (3) The reasons for this decision were not revealed. Elian and his father departed for Cuba 41 minutes after the Atlanta Court's stay had expired.
In fact, the Miami relatives' prospects had become dim as soon as the three-judge panel of that Court ruled unanimously against them. And, given the prior appellate record, the Supreme Court was not likely to intervene.
Still, the Elian case was unique. And the last two appeal decisions could reasonably have gone the other way in response to the following arguments, among others: (1) the three-judge panel did not affirm the lower court's view that a six-year-old child does not, under any circumstances, have a right to an asylum hearing; (2) on at least 11 occasions, the panel suggested that the Immigration and Naturalization Service (INS) might have made wrong decisions; (3) the three appeal judges acknowledged that `some reasonable people might say that a child in the United States inherently has a substantial conflict of interest with a parent residing in a totalitarian state when that parent - even when he is not coerced - demands that the child leave his country to return to a country with little respect for human rights and basic freedoms'; (4) (4) the panel's decision was an extremely narrow one that turned on excessive deference to the policy of an administrative agency; (5) a further erosion of the constitutional principle of separation of powers occurred when the administration of President Bill Clinton ignored congressional legislation that gives preferential treatment to Cuban escapees and pays special attention to Cuban totalitarianism; (6) rejecting further appeals would prevent Elian from gaining effective legal redress for unforeseen physical or psychological harm in totalitarian Cuba. …