Fate of Cuban boy argued in U.S. court

No date set for decision on where child will live


MIAMI -- In a federal hearing that could be the first step in the return of Elian Gonzalez to his father in Cuba, lawyers for the 6-year-old boy argued that he had been denied the due process granted to other aliens who came to this country seeking asylum.

Lawyers for the government countered that he was too young to read or even understand an application for asylum and that his father in Cuba, who is demanding the boy's return, had the legal right to speak for his son.

That is how such cases are traditionally decided, in this country and around the world, based on common sense, said Edwin S. Kneedler, deputy U.S. solicitor general, in a hearing yesterday on a lawsuit filed by Elian's relatives in Miami, who seek an asylum hearing by the Immigration and Naturalization Service for the boy.

Judge K. Michael Moore of U.S. District Court in Miami, who is also considering whether his court, and not just the INS, has jurisdiction in the emotionally charged custody case, did not rule on anything yesterday, and would not say when he would.

Moore could dismiss the relatives' lawsuit and leave the case with the the immigration service, removing a major obstacle to the boy's return to Cuba. Or he could order the immigration service, which has already denied Elian an asylum hearing, to grant him one.

But that, said lawyers for the government, would ignore an established principle in U.S. and international law: It is the parent who represents the interests of the child.

Speaking about Elian's father, Juan Miguel Gonzalez, a doorman in the resort city of Varadero, Cuba, Kneedler said, "Elian Gonzalez has a legal representative, and that representative is his father."

To ignore this "universal, expected norm" in Elian's case could put American children in jeopardy around the world, Kneedler argued.

Relatives in countries unfriendly to the United States could, with such a precedent, keep visiting American children and ignore parents' rights to their children. "Parents speak for their children," Kneedler said.

But lawyers for the boy's Miami relatives argued that no age limit is set in immigration laws for someone seeking asylum, and that Elian, who was found floating on an inner tube off South Florida on Thanksgiving Day, has formally requested asylum.

He has signed a request for asylum, "and he understands it," said Barbara Lagoa, a lawyer for Lazaro Gonzalez, the boy's great uncle.

Many people in Miami had expected the judge to rule simply that his court had no jurisdiction, which would have almost certainly led to the boy's return to Cuba, without an asylum hearing.

But Moore, who ran the hearing on a tight time schedule, seemed sympathetic to the plaintiffs while asking the government's lawyers tough questions.

The boy's great-uncle Lazaro Gonzalez was also hopeful after hearing the arguments and the judge's reaction to them.

"We thank the judge," he said. "All this is in the hands of God."

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