MeDroogies
RE YOUR "NO SAY" POST:
"Based on the current laws concerning immigration (regardless of whether we agree or disagree with the way they are), Elian's relatives have NO SAY in what is in his best interests because his father is still alive."
I think that you really shouldn't opine on the "current laws concerning immigration" unless you are a lawyer. Are you?
I am not one, but I found this interpretation of the 11th CIrcuit's ruling stimulating. I think you'll change your mind when you read this. It clarified a lot of issued for me.
In essence, the 11th circuit court held that it is Elian who is the plaintiff and has rights to seek asylum, but he is joined by his uncle as "next best friend" on the petition as "temporary LEGAL custodian". And as such custodian, Lazarro does have legal standing to instigate the petition for asylum on Elian's behalf. Ironically, the court seemd to ignore both Lazarro's rights of temporary legal custodianship AND Juan Miguel's as well. The Court's decision was based on the UN's Rights of the Child convention and its decidedly antifamily tenor (courtesy of Hillary ).
So I think it is you who is incorrect. They do have a "say" regarding Elian's welfare because they initiated the asylum petition on Elian's behalf before the 11th Circuit that was favorably ruled upon even though the court only opined on Elian's rights, not Lazzarro's.
Please see the discussion infra.
Respectfully, Daniel
11th Circuit Court Decision on Elian Follows UN Convention on Rights of the Child
Parental Rights, Ignored by UN, Also Ignored by 11th Circuit Court in Elian?s Case
By: Mary Mostert, Analyst, Original Sources (www.originalsources.com)
April 20, 2000
As I read the 11th Circuit Court decision on Elian Gonzalez last night there was something about the wording that seemed familiar to me. In reading the decision it is abundantly clear to me that the Court has taken the view that the plaintiff, listed in the document as "ELIAN GONZALES, a minor, by and through LAZARO GONZALEZ, as next best friend, or, alternatively, as temporary legal custodian, Plaintiff," is, in fact, Elian. It has shown almost no interest in the right of Elian?s father or even Elian?s great Uncle, Lazaro Gonzalez, who was chosen as temporary guardian by the INS.
The decision basically ignores Lazaro Gonzalez AND Juan Miguel Gonzalez and it scolds the INS which, in the words of the court, never have "attempted to interview Plaintiff about his own wishes." The court then points out that there is no age restriction in the law as passed by Congress on aliens applying for asylum. In fact, it points out, the INS has a guidebook entitled, "Guidelines for Children's Asylum Claims (Dept. of Justice, December 1998), ("Guidelines") envision that young children will be active and independent participants in the asylum adjudication process."
The court states: "The INS has not pointed to (nor have we found) statutory, regulatory or guideline provisions which place an age-based restriction on an alien's ability to apply for asylum. And we have found no preexisting requirement that a minor, in submitting an asylum application, must act through the representative selected by the INS.[13] "Not only does it appear that Plaintiff might be entitled to apply personally for asylum, it appears that he did so."
What has occurred in this court decision is a clear case of simply ignoring not only the parental rights of Juan Miguel Gonzalez but also the rights of temporary guardianship of Lazaro Gonzalez given to him by the INS and rescinded last week. The family, clearly doesn?t matter. What the court believes must be determined is what the child wants.
And, why did this look so familiar to me? Because it is in direct compliance with the United Nations Convention on the Rights of the Child, Article 12 which states:
"The views of the child (art 12): Children should be free to have opinions in all matters affecting them, and those views should be given due weight "in accordance with the age and maturity of the child". The underlying idea is that children have the right to be heard and to have their views taken seriously, including in any judicial or administrative proceedings affecting them.
Although the UN Convention on the Rights of the Child has not been ratified and accepted by the U.S. Senate, it was signed by the Clinton Administration and announced by Hillary Clinton. Most of its requirements already have been incorporated, during the Clinton Administration, in the fabric of our public approach to children and their rights. In fact,? Clinton?s Executive Order 13107 issued December 10, 1998 and entitled "IMPLEMENTATION OF HUMAN RIGHTS TREATIES" orders all in the federal government to implement "relevant treaties concerned with the protection and promotion of human rights to which the United States is now or may become a party in the future. One of those treaties is the Convention on the Rights of the Child.
Michael Farris, who is the president and founder of the Home School Legal Defense Association and Susan Roylance, who has been sounding the alarm about the wording of UN documents for the last five years since attending the UN Conference on Women in Beijing, have both tried to warn the American people that their unalienable rights as parents, protected by the U.S. Constitution, are being rapidly undermined by UN actions, such as the UN Convention on the Rights of the Child. Those nations that have signed the UN Convention on the Rights of the Child are now subject to periodic "reports" on their compliance by the United Nations ten-member Committee on the Rights of the Child. The United Kingdom was cited for violating Article 12 (see above) since "the right of the child to express his or her opinion is not solicited" concerning parental decisions to withdraw a child from sex education in the public school or to choose an alternative to the public schools.
Nations that permit spanking or fail to aggressively prosecute spanking are held to have violated the treaty. Nations cited for violating this section of the Rights of the Child convention include Austria, Belize, Canada, Belgium, Yemen, Spain and Poland.
Article 3 of the Rights of the Child Convention says:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
Michael Farris calls this provision the most dangerous provision in the document because, unlike American law which uses that standard only when the family has broken down by divorce, neglect, juvenile delinquency, etc., the Rights of the Child Convention totally ignores the rights of parents in deciding cases - such as that of Elian. People who have clamored that Cuba considers all children the "property of the State" and who want to ignore Juan Miguel?s? rights as a father in this case, have walked into a well set trap. People like Senator Jesse Helms and Rep. Roscoe Bartlett, who are sworn enemies of the United Nations and the Rights of the Child intrusiveness, have not only accepted the notion of stripping Juan Miguel of his parental rights, but have stridently, if perhaps unwittingly, demanded that the provisions of the UN Convention of the Rights of the Child be fully implemented in Elian?s case!
It appears to me that the trap is about to be sprung. The Clinton Administration, which has played both sides of the Elian issue, is about to realize a major goal - de facto implementation of the United Nations Rights of the Child document. The 11th Circuit Court ruled in part "Even if the INS is correct that Plaintiff needs an adult, legal representative for his asylum application, it is not clear that the INS, in finding Plaintiff's father to be the only proper representative, considered all of the relevant factors ? particularly the child's separate and independent interests in seeking asylum."
That is about as clear a ruling as possible. Juan Miguel Gonzalez has no special authority, under the UN Rights of a Child Convention, to direct the upbringing of his son. Juan Miguel is only one of, presumably, many possibilities to direct Elian?s upbringing. Clearly, the court is saying, Elian is a ward of the State and his wishes, not his father?s, his great Uncle?s or even Janet Reno and the IRS are the controlling factor.
U.S. Supreme Court rulings over the years, such as Meyer vs Nebraska (1923), Pierce vs the Society of Sisters (1925), Prince v Massachusetts (1943), Wisconsin v Yoder (1972) and many other decisions have made it very clear that the 14th Amendment, along with the concept of unalienable, and unlisted rights, that clearly established the rights of parents in the upbringing of their children is now established "as an enduring American tradition."
That role of parents, we can clearly see in the unfolding Elian drama, has been usurped almost totally at this point by the notion of the child belonging to the "village," as Hillary Clinton claims. Michael Farris at the November 14-17, 1999 World Congress of Families II observed:
"The UN Convention on the Rights of the Child invades every sphere of family life: religion, discipline, education, health care and provision."
"If it were submitted and if two-thirds of the Senate were to vote to ratify The UN Convention on the Rights of the Child, Farris observed, "this treaty would become legally enforceable in the United States by virtue of the Supremacy Clause of the Constitution that gives binding legal status to all ratified treaties. A county prosecutor could use the treaty to go to a local court and prosecute a dad for spanking his child."
A timely warning. Unfortunately, it appears that formal ratification is not necessary. The UN Convention on the Rights of the Child IS being implemented at this point through Elian Gonzalez and the 11th Circuit Court. And, that implementation is being APPLAUDED by the very same people who have fought the formal implementation of the UN Convention on the Rights of the Child.
As recently as yesterday I was confident that the American court system would honor the many U.S. Supreme Court decisions on the rights of parents and give Elian back to his father. That is not what they ruled yesterday. They ruled, although not citing the UN Convention of the Rights of the Child, in total compliance with the United Nations? most anti-family document.
In closing his talk at the World Congress of Families last November, Michael Farris said: "I believe it is up to this generation of parents to act for the generations to come to ensure that we protect the family in the black and white of our Constitution, lest the global village overtake our homes."
The Global Village has already invaded our homes and has already overtaken many of them. It appears to be about ready to gobble up the home of Juan Miguel Gonzalez with the assistance of many gullible conservatives who have been blinded by the argument that it?s OK this time because the father is a Cuban and taking his child away from him is a great way to get back at Fidel Castro.
The time now is very critical. Either those who claim they want to save the family must begin to support basic principles for all, including even the parental rights of Juan Miguel Gonzalez, or they will find they have lost those basic principles for themselves. |
