Kevin R. Johnson
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 Hernández
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 Hernández demonstrates that the rule of law compelled the
result. As Legal Realists and Critical Race Theorists might hypothesize,
Professor Hernández'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 Hernández 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 Hernández 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 Hernández
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
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
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
[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.