Elian Redux

[Michael Rappaport]

        Michael Masinter writes that “although we cannot know with certainty the
true feelings of Juan Miguel,” we “ought to accept that, however irrational
we may think it, the man wants to return to Cuba” not out of fear from
Castro’s threats but because he just prefers it there for his family and
himself.  Professor Masinter bases this conclusion on his view that Castro
does not appear to (severely) punish the relatives of persons who illegally
exit Cuba or else Miami would be a much smaller city.

        I am quite baffled by this argument.  This argument ignores the main
reasons I gave for believing that Juan Miguel is being coerced.   Juan
Miguel is not like the ordinary Cuban who has a relative that illegally
leaves the country.  To briefly repeat the points made in my earlier post:
Juan Miguel cannot easily defect.  His wife has a 7 year old child in Cuba
and therefore is unlikely to want to defect.  Thus, to defect, Juan Miguel
must be willing to abandon his wife (and infant child?).  Now Juan Miguel
might want Elian to remain in the country, even though Juan Miguel must
return to Cuba.  But Juan Miguel cannot do this.  Whatever Castro does
about the ordinary Cuban whose relative’s exit illegally, this situation is
different.  If Juan Miguel were to publically state that he wants Juan
Miguel to remain in the US, he would be expressly and voluntarily allowing
Elian to remain, before the whole world.   Castro would no doubt treat this
quite harshly (and it would appear to be a violation of Cuban law).

        The point is that we cannot know what Juan Miguel actually thinks.  He is
unavailable; it is as if he were in a coma.  Thus, someone else must speak
for him and the child – either the Court or the Miami relatives.  By
assuming that Juan Miguel is not being coerced, we run the risk of allowing
Fidel Castro to speak for Elian by putting words in the mouth of Juan
Miguel.


Michael Rappaport
Univ of San Diego School of Law



At 10:18 PM 4/20/00 -0400, you wrote:
>I agree that one cannot know with certainty the true feelings of Juan
>Miguel.  But if the fear that Castro would harm those relatives who remain
>to punish their children who defect were well founded, Miami would be a
>much smaller city, and Cuba would have far fewer elderly adults.  The
>parents who sent their children over in Pedro Pan were not executed; the
>elderly relatives of those who came in the 1970's and during Mariel were
>not executed.  If Juan Miguel wished to defect, I rather doubt that his
>fear for the well being of his mother would dissuade him from protecting
>himself, his wife and their son by asking for asylum; many thousands of
>others have already made that choice.  And unlike them, he would be
>welcomed in Miami as a hero.
>
>Please do not misunderstand me; I am no apologist for Castro.  But there
>are already hundreds of thousands of former Cubans who live in Miami who
>are testament to the freedom Juan Miguel has to defect.
>
>I think we ought to accept that, however irrational we may think it, the
>man wants to return to Cuba, and that the choice to do so is his choice,
>freely, albeit unwisely made.  Of course, that does not answer the
>question of whether the law *should* interfere with that choice, but I
>think it clear that were he and his son already U.S. citizens, he would be
>free to emigrate with his son to Cuba.
>

Michael Rappaport
Professor of Law
University of San Diego School of Law
(619) 260-2329