Reno: Elian must return

Affirming INS ruling, she says Cuban child belongs with father

Boy's deadline extended

Attorney general says U.S. immigration, not family law, applies

January 13, 2000|By David Folkenflik | David Folkenflik,SUN NATIONAL STAFF

WASHINGTON -- Attorney General Janet Reno affirmed the decision yesterday of federal immigration officials to send young Elian Gonzalez back to his father in Cuba, in effect ignoring a Florida judge's decision to award temporary custody to the boy's great-uncle in Miami.

"The question of who may speak for a six-year-old child in applying for admission or asylum is a matter of federal immigration law," Reno wrote yesterday in a letter to lawyers for the boy's great-uncle. "The Florida court's order has no force or effect."

In her letter yesterday, Reno -- a former district attorney in Miami-Dade County -- agreed to delay Elian's return to Cuba long enough to allow his great-uncle's lawyers to challenge her ruling in federal court.

Doris Meissner, commissioner of the Immigration and Naturalization Service, had indicated this week that Elian's return would occur more swiftly.

"Obviously, the attorney general is trying to reach a compromise," said Stuart Gerson, a former acting attorney general under President George Bush. "There is an understandable political element to all of this."

Elian was found Thanksgiving Day clinging to an inner tube off Florida. His mother, stepfather and eight other Cubans trying to flee their nation drowned when their boat capsized during a storm.

Juan Miguel Gonzalez, who was divorced from the boy's mother, said he wanted his son returned to him in Cuba.

Elian's Florida relatives sought custody of the boy and enrolled him in a local school. Last week, the INS declared that Elian had to be returned to Cuba by Jan. 14, saying that interviews with Elian's father show him to be actively involved in the boy's upbringing.

On Monday, Miami-Dade County Circuit Judge Rosa Rodriguez defied the INS, ruling that the boy must stay in the United States until a March 6 custody hearing. Yesterday, Reno extended the deadline for Elian's departure but upheld the decision to send him back to Cuba.

The boy's plight has stirred strong emotions on both sides of the Florida Straits.

Cuban President Fidel Castro has used the dispute to whip up anti-American fervor as a way of solidifying his popularity. In much of vote-rich Florida, where Cuban exiles make up a potent political force, it has become commonly accepted that Elian's father cannot speak openly because of the repressive Castro regime.

To varying degrees, all of the Republican and both Democratic presidential candidates have expressed sympathy for the idea of Elian's remaining with relatives in the United States.

Republican presidential hopeful John McCain, campaigning yesterday in New Hampshire, condemned Reno's decision. Saying the boy's mother "gave her life" for Elian's freedom, the Arizona senator added: "Only criminals, up until this time, have been returned to Cuba."

A letter Tuesday from a bipartisan group of lawmakers, including House Majority Leader Dick Armey, a Texas Republican, and Sen. Robert G. Torricelli, a New Jersey Democrat, asked Reno to delay sending Elian home until all legal questions have been resolved.

During an interview yesterday, one of the lawyers for Lazaro Gonzalez, the boy's great-uncle, said he would seek a temporary restraining order in a Miami federal court.

"The United States government is denying Elian's right to apply for asylum," said Miami lawyer Roger A. Bernstein. "The state court found that Elian's due process rights were being violated."

However, the federal court is widely seen as likely to be receptive to Reno's opinion.

"The attorneys for the child would much rather be in state court, because they'd get a much better review of the matter," said Gerson, who added that he favors letting the case be heard in state courts.

The attorney general is essentially saying that the Florida courts are not binding on the federal officials in this case. Because Elian has never been formally admitted into this country, Reno contends, his case is a matter of immigration law -- a federal question -- not family law, which would fall into state court.

"This is a simple case on the law," said David Cole, a Georgetown University law professor who has argued immigration cases before the Supreme Court. "It's simply a question of who speaks for the child. The parent speaks for the child.

"The fact that the parent is in Cuba -- that's what makes this into a politically salient question," Cole said.

What Elian wants is unclear. Relatives in Miami and other Cuban exiles have paraded the shy boy before the news media at amusement parks and public events to show what fun he is having in America. Yet, he was quoted by a Florida television station yesterday as expressing the desire to return home to his father. That quote was disputed by a spokesman for his great-uncle.

Federal rulings have given children as young as 12 the right to decide whether to seek asylum. But federal immigration law gives parents the right to determine whether a child should seek admission to the United States, unless there is compelling evidence of abuse or imminent threat to the child's health.

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