It Took a Boy to Expose Our Cuban Dilemma

An Atlanta appeals court ruled Wednesday that Elian Gonzalez may not be removed from the United States before he gets “his day in a court of law.” The appeals court wants to know why Atty. Gen. Janet Reno short-circuited the usual asylum process by refusing to hold an asylum hearing. While Reno has championed the importance of extending the protection of federal laws to children in other fields, she continues to refuse to allow an asylum adjudicator to consider the facts of Elian’s case. Since U.S. and international law allows every alien to make his or her case for protection as a refugee, why has the government not allowed Elian to make his?

The answer is that either recognizing or not recognizing Elian as a “refugee” entitled to protection would create impossible political problems for the Clinton administration.

In all probability, Elian does not meet the definition of a “refugee.” To do that, he would have to show that he faces not simply general hardship or lack of opportunity in Cuba but actual “persecution” because of his race, religion, nationality, social group or political opinion. It is hard to imagine that Elian would meet this test.

But if he is denied refugee status, that will expose the fallacy of the Cuban Adjustment Act and a companion 1997 law under which Cubans are presumed to deserve the benefits of refugee status without having to meet the usual strict legal test. Under these laws, Cubans who can prove they have been in the U.S. for at least a year are allowed to stay without their having to show any risk of persecution in their home country.

If Elian were found not to be at risk of persecution in Cuba under the generally applicable asylum rules, the U.S. government would be hard-pressed to explain why it continues to admit all Cuban asylum-seekers with no investigation of their claims. The Cuban Adjustment Act would be exposed for what it is--a Cold War relic that unfairly discriminates against the nationals of other countries where conditions are far worse than those in Cuba. Yet abolition of the act would enrage not only Cuban Americans but many other constituencies that would see such a move as “going soft on communism.”

But if the adjudicator decided that Elian is a refugee, that would also be messy for the Clinton administration. Having proclaimed parental rights to be supreme, the administration would then have to strike a balance between Elian’s need for protection and the custodial rights of his father, who, we presume, would continue to reside in Cuba.

Equally important, a finding in favor of asylum for Elian would expose the U.S. government’s efforts to keep most Cuban refugees from leaving their own country.

Even as we continue to admit every Cuban who arrives in the United States, the Clinton administration is working hand-in-hand with the Castro government to make it difficult for asylum-seekers to reach us. Under the terms of a 1994 communique, the U.S. secured Fidel Castro’s agreement to “take effective measures in every way [Cuba] possibly can to prevent unsafe departures using mainly persuasive methods.” This has given Castro carte blanche to forcibly crack down on would-be refugees, which, ironically, has led to refugees who want to leave by boat taking even greater chances in their urgency to set sail without detection. Elian’s own mother, who drowned while trying to get to the U.S. with her son, may have been the victim of this policy.

If a Cuban boy arriving by boat were found to be a genuine refugee, this policy of encouraging Castro to stop the exit of Cubans bound for the United States by “mainly” persuasive methods would be politically unsustainable. With the genuineness of the boy’s need for protection clearly established, how could the government justify a treaty that prevents Cubans from escaping their persecutors in the first place?

The appeals court decision in the Elian Gonzalez case may force us finally to confront the schizophrenic nature of our policy toward migrants from Cuba.

There is no principled basis for exempting Cubans from the usual asylum process, nor for cooperating with the Castro government to prevent them from fleeing the island. Yet principle is easily misplaced in the quagmire of Cuba-U.S. relations.