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excerpted from Kevin R. Johnson, Comparative Racialization: Culture and National Origin in the Latina/o Communities , 78 Denver University Law Review 633-655, 647-655 (2001) (153 Footnotes)

The Case of Elian Gonzalez

An influential critical Latina scholar, Professor Berta Hernndez analyzes one of the most newsworthy events of the year 2000 in the United States, perhaps only overshadowed by the presidential election. She shows how the Elian Gonzalez case implicated two deeply held Cuban American values--the rule of law and family--that called for Elian Gonzalez's return to his father in Cuba when partisan anti-Castro politics did not. Analyzing the court of appeals decision in that case, Professor Hernndez demonstrates that the rule of law compelled the result. As Legal Realists and Critical Race Theorists might hypothesize, Professor Hernndez's interviews with Cuban American law professors confirm that their migration experiences from Cuba, including whether they left with the nuclear family intact, shaped their views on the U.S. government's response to the Elian Gonzalez case.

A. The Cuban Migrant Experience

Professor Hernndez observes that Cuban Americans historically have been viewed as an immigrant success story, with the community known for its work ethic and economic, social, and political mobility. As political commentator Linda Chavez has stated, Cuban American "accomplishments in the United States are attributable in large measure to diligence and hard work."

The conventional wisdom about Cuban Americans is complex, however. Throughout the 1960s and 1970s, the U.S. government embraced Cuban migrants as refugees from Fidel Castro's communist Cuba. With the rising Cuban population, south Florida experienced growing pains. African Americans voiced concerns that Cubans received preferential treatment. The increased public use of Spanish by Cuban refugees led to English-only laws in Dade County, Florida.

Nonetheless, as Professor Hernndez suggests, the first wave of Cuban migrants who fled the 1959 revolution were widely considered to be a model Latin minority. Other Latina/o national origin groups, such as Mexican-Americans and Puerto Ricans, were extolled to work hard like the Cubans. Frequently ignored was the fact that, as Professor Hernndez acknowledges, this first wave of Cuban immigrants was largely white, middle and upper class, professional, and educated. U.S. citizens more easily accepted this immigrant cohort into the mainstream than other Latin American immigrants. Consequently, many Cuban Americans over time successfully integrated themselves into south Florida socially, economically, and politically.

For its part, the law fully supported Cuban refugees, offering them advantages unavailable to other migrant groups. At least until 1980, the U.S. government classified Cubans as "political refugees" and virtually all that reached the United States were allowed to remain in this country. In addition, Cuban migrants received special immigration benefits, including refugee resettlement assistance, under congressional legislation enacted specifically for their benefit.

B. Changing Demographics, Changing Law Enforcement

Popular perceptions, and the legal response to Cuban migrants, changed dramatically in 1980. In that year, the Mariel boatlift brought many poorer, Afro-Cubans to the United States; media characterization of the Marielitos as criminals, mentally ill persons, and homosexuals provoked public concern, even within the Cuban American community in south Florida. Depictions of crime brought by Cuban migrants, exemplified by the movie "Scarface," starring Al Pacino as a murderous Cuban American drug kingpin, reflected popular views about the new refugees. In response, the U.S. government's open embrace of Cuban refugees shifted to mass detention and slow admission of Cuban migrants.

In the 1990s, with the threat of a mass migration looming on the horizon after an influx of rafters from Cuba, the U.S. government offered even harsher treatment. In 1994, "the U.S. and Cuban governments signed an unprecedented agreement . . ., whereby the two governments 'recognized their common interest' in preventing Cubans from leaving by sea" and allowing for interdiction, repatriation, and return of Cubans; the United States also agreed to accept a minimum of 20,000 Cubans per year.

Beginning in 1994, the U.S. government has interdicted Cuban rafters before reaching U.S. shores. Under the U.S. Coast Guard's "feet wet/feet dry" policy, only Cubans who make it to shore (feet dry) are permitted to pursue their rights to apply for asylum while those interdicted (feet wet) are returned to Cuba. In the summer of 1999, the Coast Guard was captured on camera using pepper spray and force, to keep Cuban rafters from making it to land and asylum in the United States. The Supreme Court's 1993 decision upholding the Haitian interdiction policy served as the principal legal precedent for the feet wet/feet dry policy.

The changing racial demographics of the Cuban migrants unquestionably affected their shifting legal treatment by the U.S. government. Viewed more recently as economic migrants than political refugees, class, fears of mass migration, and related political concerns also came into play. Consequently, for better or worse, the U.S. government now treats Cuban migrants more like other Latin American immigrants.

C. A Comparison: Mexican, Central American, and Haitian Migrants

Over the last half of the twentieth century, Mexican and Central American migrants have been classified as "economic migrants," not political refugees, and consistently been subject to harsh border enforcement measures. In the 1980s, for example, the Immigration and Naturalization Service (INS) detained Salvadorans and Guatemalans fleeing political violence and affirmatively encouraged them to forego their legal claims to apply for political asylum and return "voluntarily" to their homeland. The 1990s saw a dramatic escalation of the use of military force along the border resulting in the death of hundreds of Mexican migrants, which has provoked little public concern. Similarly, Haitians, classified as economic migrants even though they fled the political turmoil of their homeland, historically have been subject to much harsher treatment than Cubans.

Interestingly, the U.S. government has begun to treat Cuban migrants in the way that it long has treated those from other Latin American nations. This has been facilitated by the changing demographics, and racialization, of Cuban migrants.

D. Elian Gonzalez

Against this historical backdrop, the Elian Gonzalez controversy arose. After months of controversy, negotiations, and political hand-wringing, the United States government returned Elian Gonzalez, a young boy whose mother tragically died at his side as they traveled by raft to the United States, to his father in Cuba. The Cuban American community's history of special treatment under the immigration laws inevitably influenced views on the matter. The fact that in the wake of Castro's revolution some Cuban parents sent their unaccompanied children to the United States in the hopes that they could live a better life, surely did as well. To many Cuban Americans, it must have been a rude awakening to see Elian Gonzalez suffer the indignities at the hands of the U.S. government that it regularly doles out to otherimmigrant groups.

In some ways, however, Elian Gonzalez's extended family's request that the child remain with them in the United States received extraordinary treatment. Observers have noted that, if Elian Gonzalez were from any other Latin American country, he would have been returned to his father in a matter of days, if not hours. The sensitive nature of Cuban American politics in south Florida resulted in more deliberate action by the INS, under the watchful eye of Attorney General Janet Reno, than one typically would see. The Cuban American vote, generally in the pocket of the Republican Party, was cherished in a Presidential election year. Despite the care taken in the decision, the negative political fallout with Elian Gonzalez's return to Cuba may have cost Vice President Al Gore the 2000 Presidential election. The dawn INS armed raid in which Gonzalez was taken from his uncle's home, outraged vocal segments of the Cuban American community.

The vociferousness of the Cuban American political resistance to the return of Elian Gonzalez to his father in Cuba, which was out of step with popular public opinion, may have permanently damaged Cuban American political power. At least during the time of the controversy, Cubans were marginalized by the media and the general public, thus moving away from being perceived as the "model" Latina/o minority.

E. Future Latina/o Coalitions

A silver lining may exist to the Elian Gonzalez controversy. The Cuban American reaction to the INS conduct in the Elian Gonzalez matter, as well as unhappiness with Coast Guard conduct in the Cuban interdiction program, demonstrates that Latina/os share common ground in addressing immigration as a civil rights issue.

In the past, some Cuban leaders stated that the "'Mexican problem"' with immigration in the southwest had nothing to do with Cubans in Florida. Recent events shed new light on such assertions. In these times, the U.S. government often focuses immigration enforcement on persons of Latin American ancestry. Conduct like that seen in Elian Gonzalez's case-- namely, use of force--occurs with regularity in immigration enforcement against Mexican and Central American immigrants. Over the course of the 1990s, Cuban Americans have begun to get a glimpse of how harsh the U.S. government can be if it wants to focus its power on a particular immigrant community. Organized politically, Cuban Americans may join forces with other Latina/os to challenge the inequities inherent in INS enforcement policies.

F. Immigration Law and Racial Formation

The sea change in popular attitude toward different groups, and the law's response, reveals volumes about racial formation. Specifically, immigration law and its enforcement affects the differential racialization of various Latina/o national origin groups. Efforts to keep some groups out of the country while welcoming others reinforce popular conceptions about the groups. At least at one time, positive stereotypes about Cubans as a "model minority" justified their generous treatment under the law. When viewed as white, educated, middle and upper class, and refugees of communism, Cubans fared well. When the popular construction of the migrants changed around the time of the Mariel boatlift--as Blacker, poorer, and undesirable, the legal treatment became stricter. Similarly, the racialization of Mexican immigrants as dark, poor, and uneducated, long has rationalized their harsh treatment under the immigration laws. Thus, over time, we see the evolving racialization of Cubans in a way that makes them more resemble Mexican migrants. Changes in the racialization of Cubans creates the potential for future political coalitions challenging immigration law and enforcement.

[a1]. Associate Dean for Academic Affairs and Professor of Law and Chicana/o Studies; Director, Chicana/o Studies Program, 2000-01; J.D. Harvard University; A.B. University of California, Berkeley.