Statement of Congresswoman Sheila Jackson Lee

Senate Committee on the Judiciary

Hearing on Cuba's Oppressive Government and The Struggle for Justice
March 1, 2000, at 10:00 a.m. in Room 226

Senate Dirksen Office Building,

My statement for this hearing will be limited to Sen. Mack's bill to make Elian Gonzalez a citizen of the United States, For the relief of Elian Gonzalez-Brotons, S. 1999.  I am the ranking member of the Subcommittee on Immigration and Claims in the House of Representatives. 

Many people have asked me why the Immigration and Naturalization Service wants to deport a little boy to Cuba.This is a misunderstanding.  The Immigration Service does not intend to deport Elian.  He is not in immigration proceedings; he has never been in immigration proceedings; and the Immigration Service has no intention of ever putting him in immigration proceedings. 

Elian was paroled into the United States for emergency medical treatment and then placed in the physical care of his great uncle, Lazaro Gonzalez.  Although Elian is in the United States physically, he is technically still at the border.

The Immigration Service can permit him to remain in the United States in parole status, or it can revoke his parole status and return him to his father.

I have been assured by representatives of the Cuban government that Elian's father can have an exit permit to come to the United States for the purpose of taking Elian home, and I am confident that his wife and child in Cuba; would be allowed to go with him to dispel any concern about whether he would be free to speak and act freely while he is here.

I have also been asked whether a private bill is necessary to make it possible for Elian to remain in the United States permanently.  This is based on a misunderstanding too. The Department of Justice has been willing from the beginning to permit Elian to remain in the United States. With his father's permission, he would be permitted to stay here and become a lawful permanent resident of the United States under the Cuban Adjustment Act.

If Elian returns to Cuba, it will be because his father decided that he should return.  There is only one way to keep Elian Gonzalez in this country and that is to prevent his father from being the person who decides where Elian will live.  Elian's great uncle, Lazaro Gonzalez, is trying to do that right now in federal court proceedings.

I filed an amicus brief in that case last week with the Children and Family Justice Center from the Northwestern University School of Law. We appreciate the fact that Lazaro Gonzalez and his family love Elian and want him to be able to stay in the United States, but that does not justify what they are doing to Elian's father.  All of the great uncle's arguments are predicated on the assumption that he has a legal right to speak on behalf of another man's six-year-old child.  In the words of Attorney General Janet Reno, the issue in this case is "Who speaks for the child?" "No credible authority on child development would sanction ceding responsibility for critical decisions about his future to a child of such tender years." See Bellotti v. Baird, 433 U.S. 622 (1979).  That question was properly addressed and answered by the Immigration Service.

We agree with the Immigration Service's decision that Elian's father, Juan Miguel Gonzalez, and only Juan Miguel Gonzalez, should be allowed to speak for Elian.  I want to add now that I do not think Congress should weigh in and try to overrule the Immigration Service's decision.  I am concerned about the risk we take when we interfere with the right of a father; to speak for his young son.  We must guard that right.   It is a fundamental tool for safeguarding the family unity values of our society.  I know some people believe that interference is justified in this case  to prevent this little boy from be returned to Cuba.  Frankly, I do not know what is in Elian's "best interests." I do know, however, that his father should decide what is in his best interests, not me, or Lazaro Gonzalez, or the Congress.

The "best interest" standard only applies to dispute between two parents.  The Supreme Court held in Santosky v. Kramer, 455 U.S. 745 (1982), that before a court can even explore the subject of a child's so-called "best interests" when the dispute is not between two parents, it must first determine through a finding of parental unfitness that the parent has failed to meet minimally acceptable standards for the care of the child.  Moreover, the Court in Santosky sets a particularly high standard for ending the legal relationship between a parent and a child, requiring that the initial showing of parental unfitness must be supported by "clear and convincing evidence." Id. at 769.

This high standard derives from the basic tenet of family law, presuming that the individuals best suited to nurture and protect a child will normally be the child's parents.  Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925).  The purpose of such safeguards is to ensure that children are not separated from their families for reasons that have more to do with the racial, religious, or cultural biases of the decision maker than with legitimate concerns for the protection of the children. Our laws have created a standing doctrine and other gatekeeping devices that regulate incursions into parent-child relationships not only protect parents from decisions that could ultimately strip them of their authority without just cause, but also shield families from the unnecessary burden of expensive, intrusive, and protracted legal proceedings.

The history of family law is replete with examples of the harm caused when children are forcibly removed from parents for reasons inappropriately laden with subjective and culturally-based value judgments. For example, in Roe v. Conn, 417 F. Supp. 769 (M.D. Ala. 1976), a federal district court struck down a state statute that permitted the removal of a child from his mother for "neglect" based solely on the fact that she was living with a man of a different race.

The passage of the Indian Child Welfare Act is another example. It was the result of decades of pernicious cultural and ethnic stereotyping that led to the decimation of many Native American communities through the forcible removal of their children by non-Indian child welfare authorities.  The sanctity of the family is central not only to U.S. law but to international law as well. The United Nations Convention on the Rights of the Child, Preamble and Articles 5, 10 & 18, recognize the fundamental importance of the rights of parents regarding care of their children and the duty of participating states to treat applications to reunify children with their parents in a positive, humane, and expeditious manner.

The main thing that you would achieve by making Elian a citizen of the United States would be to take away the Immigration Service's responsibility to decide who should speak for him. As a citizen of the United States, that decision would be made by a state court judge.

However, this is not at all likely to change the outcome of the dispute over whether Elian will be returned to his father.  Lazaro Gonzalez has already brought an action in state court to obtain the right to speak on Elian's behalf.

The issue in that suit will not be whether it is in Elian's best interests to stay in the United States. Lazaro Gonzalez will have to show by clear and convincing evidence that Elian's father is an unfit parent, and he cannot prove that Elian's father is an unfit parent simply because he is a Cuban who wants to raise his children in Cuba.  Elian is being harmed by the delay in returning him to his father and his grandmothers.

I want to reunite this family as soon as possible.  I have not met his father, but I have met his grandmothers. They begged me to do what I can to return Elian to his family.   I was so moved by their tears when they pleaded for my help that I cried too.

I submitted a letter from Dr. Bennett L. Leventhal with my amicus brief.  Dr. Leventhal is a Professor of Psychiatry and Pediatrics at the University of Chicago. He believes very strongly that it is wrong to prolong the agony of Elian's present situation.  According to Dr. Leventhal, "it would appear that prior to November 1999, Elian lived in stable, reasonably healthy environment." He observes that, "Since that time, he has been exposed to grave dangers, the death of his mother and a horrendous struggle over him and where he is to live. His privacy has been violated. ... He has been directly and persistently exposed to an apparently interminable and incomprehensible, intense dispute amongst adults. And, his current situation is so unstable that he does not know where he will live, and who can and will take care of him." Dr. Leventhal emphasizes that,"Any one of these circumstances would place any child at great risk for developmental disturbance but the combination of so many problems must be an overwhelming stress for this child." Dr. Leventhal concludes that, "The duration and intensity of the conflict and his exposure to them must end immediately."

I urge you to respect the right of Elian's father, Juan Gonzalez's, to decide where Elian will live and not to prolong this stressful situation unnecessarily by making an unsolicited grant of citizenship

Congresswoman Shelia Jackson Lee
March 1, 2000