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Supreme Court Refuses to Hear Gonzalez Family Appeal

Aired June 28, 2000 - 12:30 p.m. ET


JEANNE MESERVE, CNN ANCHOR: I'm Jeanne Meserve in Washington, in a terse one-page statement, the U.S. Supreme Court has closed this chapter of the case of Elian Gonzalez. The 6-year-old Cuban boy will be free to return to Havana today. The Supreme Court decided not to hear an appeal of the case, and decided not to extend the order which has kept him in the U.S., meaning that Elian, his family and friends can return to their homeland after 4:00 this afternoon.

For the latest on this story now, to Roger Cossack and Greta Van Susteren.


We are going to pick up the coverage and go to two constitutional scholars, we have Akil Amar from Yale Law School and Ron Rotunda from the University of Illinois Law School.

Akil, first to you, is this the type of decision, by the United States Supreme Court, that could have gone the other way, or is this a bright-line one?

AKIL AMAR, CONSTITUTIONAL LAW PROFESSOR: I would have been surprised if the court wanted to hear the case. Because the legal issues are narrow, they involve this particular person. They are very fact specific and I don't think they were -- that the justices want to extend everything.

VAN SUSTEREN: But Akil, let me ask you this: What was raised in the petition, by the family in Miami, there are four issues, but the two that I thought were the very significant ones, is one, they say: Look, the circuits, the federal circuits around the country disagree with each other, and when there's a conflict between circuits oftentimes the Supreme Court will step in and make a decision. Secondly, they said it's of great national interest, is great national interest a reason for the Supreme Court to consider a case?

AMAR: Both of those are important reasons. This may not have been the best factual vehicle to get at the deep underlying legal issue. So even if a case has important legal issues, is this a good case that illustrates those issues and exemplifies them and warrants, this is a family law case in part, that warrants sort of a delay. That may have also weighed with the justices.

COSSACK: All right, joining us now from the Supreme Court is Charles Bierbauer.

Charles, the order has just come down, it came down a little while ago, was this an expected order and does this mean can he leave immediately?

CHARLES BIERBAUER, CNN SR. WASHINGTON CORRESPONDENT: Well, I think it was an expected order for some of the same reasons that Akil is citing: that there was no compelling reason for the court to hear this. The issue had been decided uniformly both in the district court and the circuit court of appeals, and then the circuit court denying a rehearing. That's not the sort of track record that leads the Supreme Court to take up a case.

And though there was a question raised as to whether a recent court opinion, in a case known as Christensen, required the court to look into the deference element, whether INS should have been able to make this kind of a decision. It was not as well-formulated as it probably should have been. So I don't know that anyone up here was particularly surprised that the court denied both the appeal and denied any extension of the injunction.

VAN SUSTEREN: All right, well, let's go to Miami...

BIERBAUER: ... the answer to your question is, I think, he's 4:00. His flight plan is probably filed, and he'll up in the air shortly thereafter.

VAN SUSTEREN: All right, well, let's to Miami with CNN's Mark Potter who is standing by -- Mark.

MARK POTTER, CNN CORRESPONDENT: Well, Greta, here in Miami's Little Havana, at the house where Elian stayed with his relatives, there's been a strong reaction from the very small crowd that's here. I want to be clear it's not a lot of people, but they're quite vocal. When the word came that the Supreme Court decided that Elian could leave the country, people began expressing themselves loudly, screaming, cursing in some ways. There was some people weeping.

You can see -- well, I don't know if you can see it here with the car. There's a line of signs and flags there in support of Elian. A woman was there a moment ago tearing down the signs, tearing down the flags. There was a woman here just a moment ago expressing her concern towards CNN, because we cover news from Cuba and she was quite angry with us. A number of people have come by yelling at members of the media for our coverage of this case. So it is a loud expression of concern and anger over this ruling.

Now again, I want to stress, it's a very small group here in this one-block area in Little Havana. Community leaders are saying that this is a widespread feeling, in terms of the anger, but not they are not expecting widespread demonstrations. They and the police say they are not expecting violence, no major demonstrations have been planned. There may be some impromptu demonstrations, and I think it's pretty likely that it would be here at the house. This would probably be the focal point later today as the word spreads. Now we saw some of the family members a short while ago leaving this house. Only Delfin Gonzalez, Elian's great uncle, spoke to us briefly, at that time leaving the house before we heard word from the Supreme Court. He said he thought that the Supreme Court would rule in their favor, he said this is in the hands of God. Later, however, at a church nearby, where they went to pray, after receiving word, we saw them leaving the church and the family members appeared upset. To my knowledge. they have not yet spoken publicly to anyone since we got the ruling.

Again, we are expecting a widespread feeling of sadness, of anger in the Cuban-American community here, but I must say this was not a surprise. This has long been anticipated. People have been prepared by the political leaders, by the political activists. They know very well that the courts have been ruling again and again against the family. So this is not a surprise but we can expect some outpouring of emotion today now that it is clear that Elian Gonzalez is going back to Cuba.

This has been for months a highly emotional issue in Miami. It has split the community along cultural ethnic lines. People are talking about the need to try to bring the community back together. That explains the depth of the emotional feeling here, and in a very small way, here at the house, we are seeing some of that now.

Back to you.

VAN SUSTEREN: All right, Mark, standby in Miami for a second.

Let me go to you, Ron, this is a very emotional case, as Mark has just described. But the issue presented the United States Supreme Court today wasn't whether the family in Miami should win or whether Elian Gonzalez's father should win, it was whether they should hear the case. Could reasonable minds differ? was the Supreme Court wrong today?

RON ROTUNDA, CATO INSTITUTE: I think Supreme Court, what they did, was frankly appalling. Because what Elian's relatives asked for was a hearing, that is elemental due process, notice or right to be heard.

VAN SUSTEREN: But you're talking about a hearing, you're not talking about the asylum hearing. You're asking them to entertain, you're asking them to make a decision whether to consider the case.

ROTUNDA: That's right, whether to have an asylum hearing. And some years ago we had a Ukrainian boy, a 12-year-old boy, also from Florida, who sought asylum and got it, even though his parents didn't want him to come. This case does conflict with other circuits. It is -- seems to be contrary to a recent Supreme Court case that dealt with what's called the "Chevron Doctrine," how much deference you give to administrators. And the 11th Circuit basically said: We're not saying you're right but we're going to defer to you.

And the Supreme Court didn't take the case, maybe because they're anxious to go home for the summer. We know the administration has taken a very firm position on this, and has pushed it forward. But I don't think this is good news for anybody who would seek asylum in this country who wants a hearing. Now see maybe if we had a hearing, we'd find out the boy shouldn't get asylum, that's not what he really wants or he wasn't in danger of persecution back home. But what the Supreme Court did is allow the boy to be sent back without ever having a hearing on the question of asylum.

COSSACK: But Ron, can you have a hearing with a 6-year-old child? I mean, isn't that really what the...

VAN SUSTEREN: Did they ever hear from him? But the whole point, Roger, the Miami family is raising is hear from the boy. It may turn out that they gave the child an asylum hearing, he wasn't even eligible.

ROTUNDA: Look, look, we have a 6-year-old boy...

COSSACK: The fact of the matter is is that it's just ludicrous whether you have 6-year-old to have a discussion about political asylum.

ROTUNDA: Actually, we have 6-year-old boys that can send people to jail when they testify about sex abuse. And we have the INS, the Immigration Naturalization Service pamphlet says when a minor asks for asylum make sure that the minor really knows what's going on and you have to take care of their youth. And then they give the example of a 6-year-old boy. I mean if the INS did what they purport to do in their pamphlet, he would have had a hearing a long time ago. Now when you have the hearing maybe you decide he doesn't really know what he wants, you listen to the father and so on, but we never got to first base.

COSSACK: All right, let's take a break. We are looking at live pictures now of Rosedale, the estate where Juan Miguel Gonzalez and Elian Gonzalez have been staying, presumably will be leaving this afternoon. We'll take a break now. When we come back, more on the Elian Gonzalez case. Stay with us.


COSSACK: Since we've gone to break, there has been some new breaking news, let's go immediately to Jeanne Meserve -- Jeanne.

MESERVE: Roger, a man claiming to have a hand grenade has entered the offices of the San Antonio archbishop, Patrick Flores. Flores and his secretary are inside. At this point, it is not clear whether or not the man actually does have a hand grenade. It is not clear whether Flores and his secretary are there voluntarily, or whether they are being held against their will. The rest of the building has been evacuated.

According to a police officer, the man walked into the chancery reception area, and there was an agitated conversation between him and either Flores or someone else on his staff before Flores and his secretary went back to the room with the man. Archbishop Patrick Flores, when he was named auxiliary bishop in San Antonio became the first Mexican-American Catholic bishop in the United States. His diocese is a large one with about one million Catholics.

We're following the story closely. We will bring you the latest.

Right now, back to Greta.

VAN SUSTEREN: Thank you, Jeanne.

Now, let's go to the Justice Department, where Pierre Thomas is standing by.

Pierre, it wasn't just the 11th Circuit that was holding Elian Gonzalez in this country. The Justice Department had previously issued a departure control order. What happens to that? Has that now been lifted?

PIERRE THOMAS, CNN JUSTICE CORRESPONDENT: Well, sources are telling me that, upon 4:00, when the 11th circuit injunction holding Elian is no longer in effect, the Justice Department departure control order would expire as well, that Elian will be free to leave as of 4:00.

VAN SUSTEREN: And what is the Justice Department, have they made any sort of informal statements to you -- anything about Castro? I mean, is there any discussion about Castro?

THOMAS: Well, you know, I had a number of conversations throughout this incident, and people were talking about the fact, look, they are not supporters of Castro, they have serious problems with the communist regime, but they kept coming back to the father -- they had to respect the father's right, that when the father said that he wanted to speak for his son, and that he wanted his son to come back to Cuba with him, that that was the overriding factor, that they should -- no one should read this as them being in support of Cuba.

COSSACK: All right, joining us from Miami is constitutional law professor Don Jones.

Don, did you see in this case a constitutional issue that would have caused the Supreme Court to act differently?

DON JONES, CONSTITUTIONAL LAW PROFESSOR: Well, I think that this whole case has been constitutional wishful thinking on the part of the relatives. It is a political argument masquerading as a constitutional case. Much as one might sympathize with their emotional sincerity, there weren't any, in my view, any major legal issues to address.

Perhaps we could regret that the power of the INS has grown as it has in the last 10 years, I do, but it has grown, and the conservatives on the court have been the architects of this expansion of the INS's power. It has become kind of a sovereign place and...

VAN SUSTEREN: Akil, is this the kind of decision, and maybe I'm wrong, but I have always thought from the very beginning it could go either way. Have you had that thought or do you think it is just so certain? AMAR: Well, at the Supreme Court level what you need to remember is that there are thousands and thousands of petitions asking the court to hear a case, very few are granted. The odds are very much against it, any one petition being granted. That's especially so when the government basically is not asking that a case be heard.

VAN SUSTEREN: So the cards are stacked against them, if it comes up against the government.

AMAR: The odds are very very long when your case has lost in the courts below, without a dissent, and the United States government isn't asking the court -- the solicitor general isn't saying: Supreme Court you've got to get involved here because there is a mistake. The Supreme Court -- the government of the United States has actually a separate color for all of their documents, it is a gray cover. And the Supreme Court pays a little bit more attention when the government is asking, if someone else is asking the odds are really low.

COSSACK: Telling it the way it is.

VAN SUSTEREN: All right, well, let's go back to the Supreme Court where our Charles Bierbauer is standing by -- Charles.

BIERBAUER: Well, on the merits of this case, there was very little that really seemed to compel the court to take it, but if there was any hint of how the justices might have felt that was given here, it was given just a few weeks ago, when the court ruled in the case known as Troxel versus Granville on the question of grandparents' right, that parents' rights superseded the rights of someone else. So if there was some sympathy or some signal sent, maybe it was in the court's opinion in that particular case, being very much and very strongly in favor of parents' rights. And of course, that would apply to Juan Miguel Gonzalez in this instance.

VAN SUSTEREN: All right, we are going to take a break. We will be right back. Stay with us.


VAN SUSTEREN: Welcome back. We are talking about the decision, which come out of the United States Supreme Court, in which the Supreme Court has rejected the family in Miami's request that the case be considered by the Supreme Court in a stay issue holding Elian Gonzalez in this country.

Now we are going to go to CNN's Bob Franken, who is outside the Rosedale Estate, where the child has been staying with his father -- Bob.

BOB FRANKEN, CNN CORRESPONDENT: Well, right now, you can see in back of me, Greta, the evidence that something is going to happen fairly soon, the evidence in the person of several motorcycle policemen, who have arrived suddenly. We are seeing a lot of activity, a lot of metropolitan police cars showing up that hasn't been here to supplement the U.S. marshals, who have been guarding the Rosedale Estate for the last several weeks. This is an area of Northwest Washington, a very opulent area, where the family has been staying, the Cuban entourage. Its main advantage: it was just around the corner from attorney Greg Craig's residence. That made it convenient for him to consult with his client.

Now we are expecting that it will not be long after the stay is done that they will actually be departing the United States. We know that they will leave from Dulles Airport. I should remind you that nobody goes in and out of the United States without handling the bureaucratic paperwork. And I suspect that there will no exceptions made here. But after seven months, and three days, life for this family will probably return to some semblance of normalcy, although we don't exactly know what kind of reception they are going to get in Cuba.

And more importantly, for the people in this area, after several weeks, they will be rid of the hated media.

COSSACK: All right, Ron Rotunda, I want to ask you to respond to what Don Jones earlier said about this really not being any constitutional law issues, this is really a political issue. In fact, it wasn't the family's main argument that, look, taking a child back to Cuba, by definition, is an evil, bad thing to do and should be stopped?

ROTUNDA: Well, I think more than that it was elemental due process, which is very constitutional. And what you have, you have some lower court cases that saying that any processes, due process, as far as an alien is concerned. But our Fifth Amendment applies due process to all persons, whether or not they are alien. I think it is a very important constitutional issue here, and the Supreme Court has left it for another day.

VAN SUSTEREN: Akil, do you think that the reason we've gotten into this sort of legal mess, I mean it has consumed the courts for the last seven months, as Bob told us, is it because there is so much discretion when you talk about immigration law?

AMAR: The Constitution, it has sometimes been said, it stops at the water's edge, and the Immigration Service has tremendous discretion, especially over aliens who are not lawfully in this country. The Haitian refugee case, for example, from several years ago, really demonstrated this.

COSSACK: And in fact, the key word here was the word "reasonable." That's really all the courts had to decided, whether or not the Immigration and Naturalization Service was acting reasonable or unreasonable...

VAN SUSTEREN: ... but it was any alien...

COSSACK: ... once they decided it, it is pretty much all over.

VAN SUSTEREN: But wait a second. The statute said any alien can apply, and the question is: What is any alien? Is it a 6-year-old child.

COSSACK: But once the INS decided -- once the courts decided that the INS wasn't acting unreasonable in excluding Elian that was the end of the discussion.

VAN SUSTEREN: But had the statute been written differently, for instance, if it were more precise, saying any child under the age of 18 can't unless the father or whatever...

COSSACK: But that's the way Congress wrote it.

ROTUNDA: Well, actually, you know, that was the issue, you see, because if you look at the statute and the regulations in the INS handbook, it looks like Elian ought to get his hearing. But what the 11th Circuit said is, if you start looking at opinion letters, and very informal INS-type rulings, we will defer to them.

You know, when a cop arrests you, and gets a confession from you, we don't let it in if it is, quote, "reasonable." It still has to comply with the Constitution. And what is unfortunate about this case is, that we make now INS almost a law into itself that they can act what is, quote, "reasonable," even when there is no federal statute that authorizes it.

COSSACK: But there is still review. So they are not a law unto them self.

ROTUNDA: Well, the review says: Do whatever you want. The 11th Circuit, ultimately, abdicated in this case. And I say the issue is going to be left for another day, but it is a very important constitutional issue. The circuits disagree, and I hope at some point the 11th Circuit will be -- this case won't be reversed, but that its ruling will be overturned by a Supreme Court law that will do what it does in every other case, which is to say that the Constitution does not stop at our nation's shores.

And Elian entered this country lawfully. A federal statute allows Cubans to escape to this country. It is not a crime to come to this country. My parents came to this country lawfully when they escaped fascism many years ago. That's something we are allowed to do.

COSSACK: I don't think there's an argument whether or not he came to this country legally. The question really was whether or not it was unreasonable for his father to come to this country and return him back to the country of his father.

VAN SUSTEREN: No, that wasn't the question. The question that the court grappled with is: The INS said, look, he's not entitled to a hearing, and the rub that the Miami family says is, look, the statute says "any alien." And all of a sudden we, the court system, got into this in an attempt to sort it out to sort of define what the statutes were -- what they meant.

COSSACK: Let me interrupt for a second, and recap for a second. This morning, the United States Supreme Court has decided not to grant a hearing to the Miami family who has asked them to review the 11th Circuit hearing. And by doing that of course, 4:00 this afternoon, the stay, which keeps Elian Gonzalez and Juan Miguel Gonzalez, his father, in this country, will expire. And we can expect then that they will be leaving this country.



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