Elian Case Turns INS Policy Inside Out

It was about 10:40 last Thanksgiving morning when Edward Agundez’s phone rang at the U.S. Immigration and Naturalization Service in Fort Lauderdale.

The call seemed routine: “Minor was rescued by two fishermen three miles out to sea from the Port Everglades port of entry,” supervisory immigration inspector Agundez noted in a 12-line handwritten report later that day.

He hung up and headed over to the hospital where the young rafter had been taken, suffering from dehydration and hypothermia. Agundez indicated in a sworn declaration that it took him less than three hours to do the interviews and paperwork and consult with his supervisor to make the decisions that his agency would spend more than five months trying to undo.

And, by the INS’ reckoning even now, he did it all by the book.

INS Found Tables Turned

But what happened in the next 48 hours turned the book upside-down. For the first time in the 41 years since Fidel Castro’s revolution, the INS was faced with a Cuban parent--the sole parent--who wanted his son sent back home.

Privately, U.S. immigration and Justice Department officials concede they were blindsided by the case of Elian Gonzalez--a case that ultimately led to a startling predawn INS raid to return the 6-year-old boy to his father and a bitter, ongoing court battle.

And legal experts and immigration officials say that the saga has caused many lawyers and lawmakers to reexamine what appears to be a glaring double standard in U.S. immigration policy--one that some attorneys label an anti-Communist relic of the Cold War and that Castro calls an immoral invitation to thousands of Cubans to risk life and limb for prosperity.

INS officials insist that the actions and decisions of Agundez and his supervisor, Simon Nader, the day Elian landed in America were no different from what they would have been for a Haitian rafter or Dominican stowaway in Florida or a boatload of Chinese children landing illegally in California.

In all cases, those officials say, inspectors first seek to place unaccompanied minors with relatives before placing them in foster care or temporary relief shelters. They did acknowledge, however, that the odds of a Cuban child having a relative in South Florida--home to about 800,000 Cuban Americans--far exceed those of other nationalities.

But they also conceded that the policy immigration officials must enforce that allows virtually any Cubans--and only Cubans--who arrive illegally in the United States to automatically remain here accounts for much of the confusion and inaction in the months after Elian’s arrival.

Informally dubbed “wet foot/dry foot,” the policy is grounded in the Cuban Adjustment Act of 1966, legislation that assumes that any Cuban landing in America is a political refugee. But the policy, which also requires the U.S. Coast Guard to detain and repatriate virtually all Cubans caught at sea, grew more directly out of two immigration accords signed by the U.S. and Cuba in 1994 and 1995.

Ironically, those accords were meant to defuse the rafter crisis that had sent tens of thousands of Cubans across the Florida Straits in 1994, when Castro lifted government restrictions on migration. During the 11 months before Elian’s boat journey, more than 2,000 Cubans had made it to U.S. shores and nearly 1,400 others were turned back en route. And at least 59 died trying.

Amid such sharp increases in the numbers of Cuban rafters during the last few years--a phenomenon driven largely by for-profit smugglers and economic migration--the Cuban leader has been railing against the “wet foot/dry foot” policy, asserting that it encourages illegal boat journeys by Cubans simply seeking better economic lives. But the Elian Gonzalez case has given Castro an emotional lightning rod to refocus public attention on the underlying 1966 law.

“I regard it as institutional racism,” said Ira Kurzban, who has practiced immigration law in Miami for more than 25 years. “If this boy was Haitian or Dominican, clearly it would have been handled much differently. The wheels are greased in some sense for certain groups--especially Cubans.”

Kurzban is among those here who say the 1966 law and the pro-Cuban immigration policy it spawned affected the INS’ handling of the case from Day 1.

“The INS can’t just turn a child over to a family,” he said. “They have to determine who these people are.”

But court records on file in Elian’s now-voluminous federal case indicate that Agundez and Nader decided to do just that after only a few hours of investigation at the hospital that day.

No one but a handful of relatives in the waiting room and the boy’s attending physician in Fort Lauderdale had ever heard the name Elian Gonzalez when Agundez took the case the morning of Nov. 25.

“One of the individuals, Mr. Lazaro Gonzalez, stated that he was the child’s uncle,” Agundez recalled in his sworn declaration, adding that Lazaro then identified Elian in a photograph that federal agents showed him of the boy.

“Lazaro Gonzalez then produced his own photograph of the child with his natural parents purportedly taken in Cuba,” Agundez stated. INS officials later said Agundez also checked the Miami relatives’ residence cards and driver’s licenses.

And on that alone--far less proof, some immigration attorneys here assert, than other nationalities would require--Nader advised Agundez by phone to give Elian to his great-uncle.

Among the fiercest critics of that process was the boy’s father, Juan Miguel Gonzalez, who was required to produce scores of documents and sit for two lengthy interviews with an INS official in Cuba to prove his right to speak, act and care for his own child.

“What bothers me the most is that I must prove paternity of my son, and what have they [INS] asked the relatives in the U.S. to present as proof of relationship?” an incredulous Juan Miguel Gonzalez asked the INS official during the second interview Dec. 31.

“They just showed up at the hospital and stated that they were relatives without any proof or evidence, and INS grants them custody of my son,” he said. “I, on the other hand, have to prove my relationship.”

INS spokeswoman Maria Cardona justified the apparent contradiction. “What we did for Lazaro did not amount to a grant of custody. It was a temporary-care decision.”

She added that it was far more humanitarian to place with relatives a boy who had just suffered the trauma of two days at sea after a shipwreck that killed his mother rather than turn him over to the Catholic Charities Unaccompanied Minors Program that the INS contracts to care for children who arrive illegally, alone and without relatives in America.

“No one could have foreseen that first day where this case would end up,” Cardona said. “You would have had to have a crystal ball.”

The court record also suggests, however, that Agundez should have known that Elian had a father in Cuba, although he stated in his declaration that the decision to turn the boy over to his great-uncle was made partly “because the location and identity of the child’s parents were unknown.”

The boy’s attending physician, with whom Agundez had spoken that day, knew precisely where Elian’s father was because he had called Juan Miguel Gonzalez in Cardenas, Cuba, that day. Both Juan Miguel and Lazaro Gonzalez later stated that the doctor knew where to reach Elian’s father because the boy himself gave the doctor the phone number.

Lazaro Gonzalez’s version in his statement to the INS: “When the kid arrived, the doctor called Cuba to find out if the kid was allergic to anything. I spoke to the father.”

Juan Miguel Gonzalez told the INS that the doctor’s Nov. 25 call was his first confirmation that his boy was in the U.S. “I returned home from work and, at that moment, the phone rang,” he told the INS. “On the phone was the doctor from the hospital in Miami asking for me. Elian had already given him his full name, his date of birth, my address and phone number.

“By the time Lazaro Gonzalez and family arrived at the hospital, my father and I had already talked to the doctor.”

Elian Case Seemed Like Any Other

Cardona said that even if Agundez had known the boy had a father in Cuba, it wouldn’t have changed the decision to give Lazaro temporary care over Elian.

“To us, on that first day, this was your normal case of an unaccompanied minor,” she said. “We get thousands of cases like this every year.”

And in thousands of those cases involving Cubans in the past, she added, parents living in Cuba have wanted their children to stay in the United States. Never before, she said, has a parent asked for a child to come back to the island.

“Cubans who do get to our shores are treated differently because of the Cuban Adjustment Act of 1966,” she concluded. “The presumption is, yes, that he would have wanted to stay.”

Cardona said the agency eventually will take a hard look at how it implements its own policies in light of Elian’s case.

“There’s always room for improvement.” But she added that it’s too early to predict any changes: “This remains a very unique case.”