Portland Immigration Attorney Says INS Has Gone by the Book Since Day One with Elian Gonzalez Case

Attempt by relatives to gain asylum for the boy a long shot as well

PORTLAND, Maine -- Immigration attorney George D. Hepner III says the Elian Gonzalez case illustrates the disturbing result when politics gets in the way of federal immigration policy.

"The INS (Immigration and Naturalization Service) had legal custody of Elian when he was found in the waters off the coast of Florida and would ordinarily have been able to make a smooth transition to reunite him with his father," said Hepner, an immigration specialist at the statewide law firm of Bernstein, Shur, Sawyer & Nelson.

"The Miami branch of the family sought delay after delay - a typical child custody litigation tactic - hoping that eventually Elian would feel more at home in Miami than Cuba and strengthen the argument for awarding custody to them. But the switch of physical custody, effected by the INS execution of the search warrant, eliminated that argument," Hepner said. "Once Janet Reno revoked Elian's parole status, the Miami relatives had no temporary custody authority over Elian. Whether the search warrant had a valid legal basis is open to discussion, but no court is going to return custody of Elian to the relatives."

Hepner finds it ironic that some of the most vocal critics of the INS, Reno and the raid are the same political leaders who made sweeping changes to immigration law in 1996, making coming to the United States and gaining residency, political asylum or refugee status more difficult.

"The actual asylum case, which the Miami relatives now seek to file, stands little chance based on current law," said Hepner, who has handled a number of asylum cases in his career. "There does not appear to be any evidence that Elian will suffer or has suffered political, religious or social group persecution or that he has a well-founded fear of such persecution in Cuba. More importantly, Elian's father has withdrawn the application for asylum. But the boy's Miami relatives are now trying to assert a legal right to act on the boy's behalf over the fatherâs objection, thus keeping the asylum case alive. The legal fight could take a long time to resolve."

An injunction prevents anyone from removing Elian from the U.S. while the appeal process continues. "It's a weak case, but it can still take time to resolve," Hepner said. "If the courts allow the asylum process to go forward, Elian would have to be interviewed by an INS agent, and even if the case is denied it could be appealed and presented to an immigration judge. Then it can be appealed to the Board of Immigration Appeals and then appealed again to the 11th Circuit Court of Appeals and ultimately to the United States Supreme Court. The legal battle could then drag on for years."

Recent changes to immigration law, made by Congress in response to legitimate concerns about illegal immigration, have split apart families for no other reason than a family member having overstayed his or her period of authorized residence as permitted by his visa, Hepner added. "There are thousands of cases every bit as compelling as the Elian Gonzalez matter, but they have not received any media attention," he said.

Hepner has handled a number of complex immigration cases in his 12-year legal career. He is co-chair of the 12-member International Practice Group at Bernstein, Shur, Sawyer & Nelson, one of northern New England's largest law firms with 60 lawyers in offices in Portland and Augusta. A resident of Gorham, Hepner is fluent in Spanish, German, Italian, and French and has a functional command of Japanese and Russian. He is a member of the American Bar Association, the American Immigration Lawyers Association, the Maine International Trade Center and the Forum Francophone des Affaires.


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