ELIAN: A MIDDLE WAY

By NEAL KUMAR KATYAL

Monday, May 03, 2000

Most people believe that the Elian Gonzalez case forces a choice between two camps. You either believe in the "scary picture" of Elian at gunpoint, forced out of his relatives' house by the INS, or the "happy picture" of Elian reunited with his father. You are either for Elian's father, Juan Miguel Gonzalez, or for Elian's other relatives (his great-uncle Lazaro Gonzalez and others). You are either for Cuba, or for America.

This dichotomy is false. There is a middle way.

The Apparent Impasse

Elian's father's camp rightly emphasizes the bond between father and child. In America, a parent generally has the legal right to raise his child as he sees fit. Thus, American law does not, and should not, permit six-year olds to decide where they want to live. It commits that decision to a child's parents instead.

Elian's great-uncle's camp reasonably contends, however, that our government must send a strong signal against the oppressive Castro regime. They have even produced a videotape in which poor Elian (having tasted freedom, American-style) implores his father not to send him home to Cuba.

Both camps' arguments are powerful and legitimate. They appear to confront us with a Hobson's choice ö between stripping a child from his father and stripping a child from freedom. But there is another way.

A Solution

Immigration law offers precedents for similar, time-deferred grants of citizenship. (Think, for example, of instances where permanent resident status is converted, after a time, to citizenship, or where immigrants file intentions to naturalize.) Moreover, this citizenship would be a "vested" right, meaning that no subsequent Congress or court could take it away from Elian ö particularly if he relied on it by returning to Cuba.

This solution should satisfy Elian's father's camp, because it would mean that (as a court has already ruled) Elian's father would have immediate custody. He could thus raise Elian as any other father would ö deciding where his son would live and, possibly, bringing him back to Cuba if he chose to do so.

This solution would also offer some comfort to Elian's great-uncle, and others who want Congress to send a signal against the Castro dictatorship. Should Elian return to Cuba with his father, he would do so armed with the weapon of choice. If he so chose, he would be able to return to the United States at the age of eighteen as a full-fledged American citizen.

One might object that this solution would set a bad precedent, forcing Congress for consistency's sake to give citizenship to any other Cuban seeking to escape from Castro's oppressive regime. But Elian is different. Not only has he lived among us for months, enjoying freedom, but the Truman-Show-like mayhem that has surrounded his case is unique. What he and all the members of his family have endured justify special treatment, and recognition of the unique circumstances of this case (as the Attorney General did when she personally traveled to Miami to attempt to broker a solution).

One might also object that Castro might attempt to "brainwash" Elian should he return to Cuba, and that he (or his successor) might not permit Elian to leave when he turns eighteen. Although these are serious concerns, the degree of international attention the case has generated make these risks fairly modest. Once Elian is 18, for Castro (or his successor) to prevent him from returning here would be a hostile act, and one contrary to international principles of justice ö for it would constitute preventing a person from traveling to a country of which he is a citizen. What's more, it is unlikely that Cuba's hostility to freedom and individual rights will survive over the next 12 years, given the spread of information technology and the seeds of democracy that have already been planted there.

Elian's great uncle, and the Cuban-American community in Miami, would doubtless prefer that Elian stay in the U.S. and become a citizen immediately. But they lost a great deal of power when Elian was taken into federal custody, and their legal position has always been weak because American law properly respects parental rights. During this lull in the case, they should embrace deferred citizenship as a second-best solution, one that is in Elian's long-term best interest.

Elian's father might also agree to this compromise to speed Elian's return to Cuba. And, if he believes Elian will prefer life in Cuba to life in the United States, he has nothing to fear from this solution, which would simply give his son (eventual) dual citizenship ö and another life option.

Prospective citizenship might not be perfect, but perhaps it is the best we can do in this tragic situation. Congress should vote, as soon as possible, to make Elian a citizen, effective when he reaches the age of 18.


Neal Kumar Katyal is an Associate Professor of Law at Georgetown Law Center. Previously, Mr. Katyal was National Security Advisor to Deputy Attorney General Eric H. Holder.

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