Court rules Elian stays, temporarily

Judges say wishes of the Cuban child should be weighed

Joy reigns in Little Havana

A final decision on issue of asylum is expected in May

April 20, 2000|By Lyle Denniston and Jean Marbella | Lyle Denniston and Jean Marbella,SUN NATIONAL STAFF

A federal appeals court, in a sweeping -- though temporary -- victory for the Miami relatives of 6-year-old Elian Gonzalez, ordered yesterday that he remain in this country for several more weeks and indicated that it may later force federal officials to consider granting him asylum.

The three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta sharply questioned decisions by federal officials not to let the Cuban boy speak for himself and not to interview him to determine whether he wants asylum in the United States or to return to Cuba.

In Miami's Little Havana, where Elian has become the most celebrated of the thousands of Cubans who have adopted the neighborhood as their home, joy erupted immediately and noisily after the midafternoon announcement of the ruling.

Drivers took honking, flag-waving victory laps around the neighborhood. Several hundred demonstrators sang and cheered outside the house of Lazaro Gonzalez, the great-uncle with whom Elian has lived since being rescued off the coast of Florida on Thanksgiving Day. The boy, floating in an inner tube, was a survivor of a boat capsizing that killed his mother and 10 other Cubans escaping their homeland.

"We continue to pray so all this can come true for Elian -- that he can remain where his mother wanted him to be, in a life of freedom," Lazaro Gonzalez said.

The ruling, a surprise to most legal analysts, seemed to assume that the boy has the capacity to decide what he wants, even if it contradicts the wishes of his father, Juan Miguel Gonzalez.

The appeals court stressed that it was not issuing any final ruling on the boy's fate, and cautioned against predicting what it will ultimately decide. The court did say, however, that the Miami relatives had put forth "a substantial case on the merits" in challenging the government's refusal to consider asylum for the boy.

No part of the ruling barred federal officials from removing the boy from his Miami relatives and transferring him to his father.

Attorney General Janet Reno, on a trip to Oklahoma City, said that "the court order does not preclude me from placing Elian in his father's care while he is in the U.S." Reno said nothing, however, about the timing of any such move, or how it might be done.

The father's U.S. lawyer, Gregory Craig, called on Reno "to take immediate action" to transfer the boy.

`Only cause more harm'

"It is unconscionable to wait one day longer," Craig said. "To do so will only cause more harm to Elian."

One of the Miami relatives' attorneys, however, called on federal authorities not to remove the child from his home of 4 1/2 months while the appeals process continues. The court has scheduled a hearing for May 11.

"We call upon the [Immigration and Naturalization Service] to take no precipitous action between now and when the appeal is heard," said attorney Kendall Coffey. "It is so clear the rights of the child need to be heard without any further disruption, without any further dislocation, without any further trauma of any sort."

The court ruling emboldened at least one Cuban-American exile leader to predict violence if government agents should try to take the boy from Little Havana before the appeals process concludes.

`Would not want to be here'

"If the child receives proper treatment and arguments on both sides are heard and a wise decision is made, I think the community would accept" removing Elian from his great-uncle's home, said Jose Basulto, leader of the exile group Brothers to the Rescue. "But your guess is as good as mine if Reno comes to get this child. I sure would not want to be here. ... It would be great if the father came here. However, the father is under the control of the government of Cuba. He is a puppet of Fidel Castro."

Reno, INS criticized

The 16-page appeals court opinion was pointedly critical of Reno and U.S. immigration officials for how they have interpreted federal law governing Elian's future. And the court's comments, though not binding conclusions, appeared to set the stage for a potential conflict between Elian and his father.

Reno and officials of the Immigration and Naturalization Service have insisted that only the father can speak for the boy. They have said they will honor Juan Miguel's

jv0 decision not to seek asylum for Elian. The father has reaffirmed that decision since coming to this country. He has also said he intends to return to Cuba once he and Elian are reunited.

The appeals court said its view of the law -- subject to change after further legal arguments -- is different from the government's. Federal immigration law, it noted, allows "any alien" present in the U.S. to ask for asylum and that there is no exception even for very young children like Elian.

Congress takes priority

"To some people," the court said, "the idea that a six-year-old child may file for asylum in the U.S., contrary to the express wishes of his parents, may seem a strange or even foolish policy."

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