SPENCER MICHELS: Elian Gonzalez began his second day of school in Miami today, just before officials in Washington announced that the first-grader should return to his native Cuba. The six-year-old boy's fate has been the subject of controversy since he was rescued by a fisherman off the coast of Florida, clinging to an inner tube on Thanksgiving Day. He was one of three survivors on a boat fleeing Cuba.
The boat capsized, and his mother and stepfather and eight others died. Ever since, Elian has been living in Miami's Little Havana neighborhood, in the care of his great uncle. His relatives in the U.S. and anti-Castro Cuban Americans have been trying to have him stay in this country, claiming his life would be better than in communist Cuba.
But his father, a hotel worker in Cuba, has been demanding the boy's return, and Fidel Castro's government joined the custody battle, calling on thousands of demonstrators throughout the island nation to march on the father's behalf. The protests lasted for several days and nights. Today, the U.S. Immigration and Naturalization Service said the father has custody over the boy.
DORIS MEISSNER, Commissioner, INS: Both United States and international law recognize the unique relationship between parent and child, and family reunification has long been a cornerstone of both American immigration law and INS practice.
SPENCER MICHELS: INS Commissioner Doris Meissner was asked if Castro's government had influenced Elian's father in pushing for the boy's return.
DORIS MEISSNER: Clearly coercion has been a concern. However, as I said, we interviewed the father twice. We are convinced that the father is expressing his true wishes regarding his son. His father provided us with exceptional detail. Those reports came and the recommendations of the father's true wishes came to me from our interviewing staff officers. I have reviewed all the material myself.
I am convinced that the father expressed to us his true wishes for his son. We are talking about the most important relationship that exists in our human experience, and we are also asking that people respect the laws that are involved. We will work with all parties to try to achieve that kind of respectful resolution.
SPENCER MICHELS: Members of Elian's family held a news conference late today.
SPENCER EIG, Gonzalez Family Attorney: We have immediately sent a letter to Attorney General Janet Reno and to the White House requesting that the attorney general review and reverse this decision, that the attorney general review the process under which it was determined and that the attorney general and the White House assure Elian Gonzalez of due process of law.
JIM LEHRER: Margaret Warner takes it from there.
MARGARET WARNER: For more on today's decision, we turn to Alexander Aleinikoff, a professor at Georgetown University Law Center. He served as general counsel for the Immigration and Naturalization Service during President Clinton's first term. And Jorge Mas, chairman of the Cuban American National Foundation, a Miami-based nonprofit group that opposes the Castro regime in Cuba.
Mr. Aleinikoff, as you saw, the family is challenging the entire legal basis of this decision. Did the ISN follow the law here?
ALEX ALEINIKOFF, Georgetown University Law Center: I think they did. When the boy was brought to the United States, he was technically an applicant for admission to the United States and he was given to the family for custody purposes for the period of determining whether or not he could enter the United States. Obviously the boy can't speak for himself as a 6-year-old.
So the INS has to determine who can speak for the child. Under usual INS procedures and under family law principles, the natural parent is the one who presents the case for the child. So the INS had to decide if there was a bona fide relationship between the parent and the child. And once they did that, and determined that there was that relationship, then the father had the authority to withdraw that application for admission is how the INS talks about it and say he would like him returned home.
At the same time because the father was seen as having the authority to speak for the child, then the asylum application filed by the lawyers was dismissed by the INS because it was only the father who could make that asylum claim if he wanted to and obviously didn't want to.
MARGARET WARNER: Mr. Mas, I know you disagree. You met with the family this afternoon. On what grounds are they challenging this decision?
JORGE MAS, Cuban American National Foundation: Well, the family disagrees because I think the child's most basic human right has been violated which is that of due process. In fact, I know that the INS has not followed their own guidelines which usually calls for when deciding whether to permit the minor to withdraw his or her application for admission and this reads from the INS manual "officers must make every effort to determine whether the minor has a fear of persecution or return to his or her country.
If the minor indicates a fear of persecution or intention to apply for asylum or if there is any doubt - and that's the case of Cuba -- especially in the case of countries with known human rights abuses or where turmoil exists, the minor should be replaced in removal proceedings under Section 240 of the Act."
And all we've asked for since day one is due process and that this go through the proper route and that specifically that custody be determined in a court of law that it not be a political decision made by the INS or by political appointees. And what we feel is that the Clinton-Gore administration, unlike what they said when they came into office in '92, they would not coddle to a dictator is they're coddling to the Castro regime.
MARGARET WARNER: And how long are you going to give President Clinton and Attorney General Reno to respond to your letter before you go into court or before the family goes into court?
JORGE MAS: Well, I think the family and their lawyers are evaluating today after the INS ruling what is the best course of legal action, but more importantly I think that we have to talk about what's going on here politically and the reality of what's happening on Cuba because we have to speak for the mother.
MARGARET WARNER: Okay. But let me stop you right there. Mr. Mas, let me get back to the legal and then to the political, because I want to get the response on your due process argument. I am hearing - at least in my ear -- some interference. We're going to work on that for our viewers. All right. Why not, Professor Aleinikoff, why not have an asylum hearing, a full hearing as the Miami family is asking?
ALEX ALEINIKOFF: Well, I think the regulation that was just read applies only when there's not a parent in the picture. But if there's a parent in the picture, the parent normally speaks for a young child. And I think the INS could have brought the father here if he had been permitted to leave to make the case. They could have gone to a third country but I think the service acted reasonably here to do the interviews in Havana. And they seem to have been fairly thorough in determining the existence of a relationship and the true wishes of the father.
MARGARET WARNER: But what does it tell you that the father hasn't come here?
ALEX ALEINIKOFF: Well, the father may come here to pick up the child now. But the service didn't require that and under normal INS procedures there's no requirement that a parent in another country make a personal appearance to request the return of the child with whom they have a bona fide relationship.
MARGARET WARNER: Mr. Mas, I know the family is arguing the fact the father isn't here suggests maybe he's being coerced. Is there any other evidence that he's being coerced?
JORGE MAS: Oh, he's definitely being coerced. I think and I speak, as a father having two young children, my first concern after the plight of that boy who only got here because of a miracle and is alive today because of that would have been to have been next to his son.
Obviously, Fidel Castro is dictating what Elian's father can and cannot do. He said he cannot travel to this country. Now they're changing their tune somewhat and changing their story everyday in terms of if he can come and pick up the child. But the father does not have to come here in an airplane and pick up his child. His father should come here and testify so that under proper jurisdiction and proper court it can be determined what is in the best interest of the Elian.
Is it being with his father who he was not together with during these last few years remembering that his mother paid the ultimate price with her life to reach this land of freedom? She perished as thousands of Cubans have done, fleeing Cuba's Castro; and there's other cases. I want to elude to something that was said before. This is not a case when a child loses their parent.
There's many cases one of a Ukrainian boy who was granted asylum here having his parents outside the U.S. This boy would not have been returned to Hitler's Nazi Germany, would not be returned to Milosevic, or other dictators. And Fidel Castro is no different. So, all we ask for, again, is due process and that the law be followed in this case. That's what we're supporting the family on.
MARGARET WARNER: Okay. So, Professor, let's say these appeals don't work either to the administration, either to the President or to the court, then what's the procedure for getting this boy back?
ALEX ALEINIKOFF: Well I think one of the interesting things is what the INS didn't do today. When Elian came into the country, he was paroled into the custody of his relatives here. The Immigration Service could have revoked that parole today and ordered that he be turned over to the INS.
The INS has not done that. And in not doing that, it's clearly a signal that they're hoping the family both in Havana and Miami will come to a resolution peacefully that will permit the return of the child. It seems clear the Immigration Service has no interest in forcibly removing the child from the family.
MARGARET WARNER: All right, and, again, Mr. Mas, I know you've met with the family. Is the family prepared, if the appeals fail, to follow the INS ruling, to comply with it and facilitate the return of the boy home?
JORGE MAS: Well, I think the family wants to exercise all their appeal process in the courts. We have to remember-- and I think everyone needs to know what will happen to Elian in Cuba-- he'll be a trophy for Fidel Castro, he'll parade him around the island. It will be his victory over the great United States, we, the imperialists, the Yankees, the capitalists. And that will ruin Elian's life. And that needs to be taken under consideration, so if that's taken under consideration, that's what we, that's why we want the courts involved because all of that has to be taken into account.
MARGARET WARNER: Okay. But what I'm asking you is if the court... if that doesn't work out for the Miami branch of the family, then what?
JORGE MAS: I believe obviously the family is a law-abiding family. After all is, you know, all the appeals are exercised and we go through this process, we think that there's still a long process with this.
When that happens, we'll see what happens. I think it would be speculating now what may or may not happen. This is a family that loves Elian. They've nurtured him; they've taken care of him; and I know that they'll do what's in the best interest of the child.
MARGARET WARNER: All right. And briefly, Professor, you said clearly it's clear the INS doesn't want to get into enforcing this but does it have the legal authority to do that?
ALEX ALEINIKOFF: It would have the authority to revoke the parole. That could be challenged in court as well. But, yes, it could revoke the parole, order the child be returned to its custody and seek a court order enforcing that. I don't think it will come to that.
MARGARET WARNER: All right. Well, thank you both very much.