ACLU Urges Quick Resolution of Elian Gonzalez Case; Says Child Should Have Access to Courts

Affiliate: ACLU of Florida
February 22, 2000 12:00 am

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MIAMI — At a news conference here today, the American Civil Liberties Union of Florida announced the filing of a friend-of-the-court brief that supports Elian Gonzalez’s right of access to the courts to challenge actions of the Immigration and Naturalization Service.

The ACLU’s brief urges the U.S. District Court not to adopt arguments put forth by both the Miami relatives of Elian Gonzalez and the U.S. government to dismiss the case for lack of jurisdiction.

“The Government cannot argue that the court lacks jurisdiction to conduct a review that it has essentially invited,” said John de Leon, President of ACLU’s Greater Miami Chapter. “In arguing for dismissal of the case without judicial review, the U.S. government is seeking to place its conduct outside the purview of any court. The government cannot be permitted to adopt such a deplorably authoritarian posture.”

The ACLU brief also urges the Court to respect the long-standing constitutional principle that parents have a presumptive fundamental right to the custody of their own children.

“Few rights or values are more firmly entrenched than those of parents,” said ACLU Cooperating Attorney Brenda Bernstein Shapiro. “The damage already caused to the parent, to the child, and to the familial relationship by the failure to return Elian to his father over the last three months is substantial and irreparable. Those considerations should weigh heavily in the Court’s analysis of this matter.”

The ACLU also urged the Court to reject the analysis supported by Elian’s Miami relatives that his ultimate custody should be determined by the “best interests of the child” standard.

The ACLU brief notes that no federal court precedent exists that allows for interference in a fit parent’s decisions about child-rearing based simply on a “best interest of the child” showing.

The “best interest of the child” standard has historically been reserved for cases involving conflict between two parents who are dissolving their relationship in state court proceedings, or cases in which there is not a fit parent to care for the child.

In this instance, the ACLU argues, the Court is being asked to act on behalf of a third party to override the judgment of a fit parent about what is best for his child. Under such circumstances, application of a family court best-interest test is itself an unconstitutional intrusion into the parent-child relationship.

The ACLU urged the Court to adopt a special procedure for the resolution of this matter, saying that an attorney ad litem should be appointed to advise on whether Elian Gonzalez has a colorable claim for political asylum.

The ACLU also said that further delay in the reunion of Elian with his father can be justified only if the Court is satisfied that Elian may have independent interests that are sufficiently compelling for the Court to consider overriding parental rights to permit the INS to proceed with Elian’s asylum application.

The ACLU has long taken action to defend the rights of parents and children. The organization has appeared in the United States and Florida courts, both as direct counsel and as amicus curiae, in numerous cases involving constitutional issues relating to family autonomy and familial relationships.

For example, the ACLU of Florida appeared in the two current leading cases in Florida on parental rights, Von Eiff v. Azicri and Beagle v. Beagle, in which it advocated positions that were adopted in whole by the Florida Supreme Court.

The ACLU also has a longstanding interest in the rights of immigrants, including due process rights to judicial review of administrative acts and decisions of the U.S. Immigration and Naturalization Service.

Copies of the ACLU amicus brief are available from the ACLU or the U.S. District Court. The brief was prepared by ACLU Cooperating Attorney Brenda Bernstein Shapiro and ACLU of Florida Legal Director Andrew Kayton.

The ACLU of Florida is a statewide affiliate of the American Civil Liberties Union, a nationwide, non-partisan and not-for-profit organization with nearly 300,000 members dedicated to advancing principles of liberty embodied in the U.S. Constitution and the Bill of Rights. The ACLU of Florida has specific responsibility for initiating ACLU participation in litigation arising in Florida.

The Greater Miami Chapter of the ACLU of Florida is the statewide affiliate’s local chapter, and has a proud record of involvement and legal activism in civil liberties matters that have arisen in South Florida over more than the last 50 years.

The ACLU of Florida’s brief can be found online at:

An ACLU of Florida letter to the Miami and Metro-Dade Police Departments about police action at Elian Gonzalez demonstrations can be found online at:

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