Judge upholds decision to return boy to Cuba

Justice Department ruling on reunion with father backed

relatives to appeal

March 22, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Urging everyone to put aside their own agendas and think first of the needs of a 6-year-old Cuban boy, a federal judge in Miami upheld yesterday the government's decision to send Elian Gonzalez back home to his father.

U.S. District Judge K. Michael Moore ruled that Attorney General Janet Reno had the power to refuse to consider political asylum for Elian, on the theory that only his father can speak for him and his father opposes asylum.

"Each passing day is another day lost between Juan Gonzalez and his son," the judge declared. "The court can only hope that those on each side place the interests of Elian Gonzalez above all others."

It was unclear how soon -- or whether -- the boy might be returned to Cuba. It also was uncertain how the Justice Department could arrange that without stirring up further trouble among Cuban-Americans in South Florida, who are bitterly opposed to the boy's return to live under the Fidel Castro government.

Reno praised the ruling and said, "It is time for this little boy, who has been through so much, to move on with his life at his father's side." She provided no details of what her next move would be.

Some of Elian's Miami relatives immediately began an appeal of Moore's ruling, which could add another delay to a case that has taken two months to reach the first court decision.

Although an attorney for the relatives, Kendall Coffey, told re porters in Miami that Elian has not had "his day in court," the judge's actions disputed that. He ruled that the boy had a right to be in court to seek asylum, and he provided a judgment on every legal point the lawsuit raised.

Spelling out his ruling in a 50-page opinion, the judge said the boy offered "a profile of survival and courage in the face of adversity and the loss of his mother at sea." Elian was found Thanksgiving Day, floating in an inner tube off the Florida coast after his mother died in a boating accident while fleeing with him and others from Cuba.

Elian has since become the center of roiling legal, political and foreign policy disputes, and the competing demands of Miami relatives, who want him to stay in the United States, and of the Justice Department, which wants him reunited with his father in Cuba.

A state judge in Miami also got involved, issuing a ruling that gave temporary legal custody of the boy to a great-uncle in Miami, Lazaro Gonzalez. The Justice Department ignored the decision.

Congress, too, stepped into the controversy, discussing the possibility of passing a law to make Elian a U.S. citizen so he could stay. Castro's government encouraged anti-American demonstrations in Cuba.

The dispute has spilled over into presidential politics. Yesterday, Texas Gov. George W. Bush, the likely Republican nominee, urged Reno to withdraw her decision to return the boy and let a Florida court decide who has custody. Vice President Al Gore, the apparent Democratic nominee, had no immediate comment.

The Miami federal judge took no account yesterday of any of the political and foreign policy implications of Elian's situation, basing his ruling solely on his interpretation of U.S. immigration law and the attorney general's role in enforcing it.

Congress, he wrote, has control over immigration matters, and "Congress did not intend to provide for much second-guessing" of the attorney general's decisions about how to implement the law dealing with asylum for aliens coming to the United States or seeking to come.

The issue of whether to consider an asylum application for Elian, Moore said, is a question of law left to Reno's discretion. "Congress has made sweeping delegations of authority to the attorney general in the context of immigration matters," he declared.

Reno, he said, has no legal duty to consider every request for asylum for an alien child. Since the Justice Department has sent back the asylum applications filed for Elian by his Miami relatives, there is nothing for Reno to consider at this point, the judge concluded.

He said the lawsuit challenging Reno was "well-intended" but that Reno also was "equally well-intended" in making her decision.

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