2 sides rebuffed in fight for Elian

Court denies visits by Miami kin

dad can't speak for son

April 28, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Rebuffing both sides in the legal battle over 6-year-old Elian Gonzalez, a federal appeals court refused yesterday to give his Miami relatives any access to the boy and blocked -- for now -- the father's chance of quickly ending the fight and taking the boy back to Cuba.

So long as the boy is not returned to Cuba, or otherwise put out of its reach, the 11th U.S. Circuit Court of Appeals indicated that it would allow no intrusions in Elian's life by the Florida relatives.

This first significant defeat for the relatives in that court came in a denial of these demands: compelled visits with Elian for his uncles and cousins, access to him by their attorneys, regular visits by doctors who have treated the boy and the appointment of a guardian to oversee Elian's relationship with his father, Juan Miguel Gonzalez.

Hours after issuing that order, the court issued another, giving Gonzalez a victory and a temporary defeat. By a 2-1 vote, the court allowed the father to become involved in the pending court case -- but to speak only for himself.

The case involves the Miami relatives' plea that the Immigration and Naturalization Service be ordered to consider asylum for Elian so he can stay in the United States, perhaps permanently.

The court majority permitted the father to intervene because "he is [Elian's] father."

At the same time, the three-judge panel unanimously refused to rule now on Gonzalez's request to speak for Elian in that case. It said it would face that issue after it holds a hearing May 11.

Had the father been given that controlling role now, he could have moved to scuttle the case entirely by saying Elian no longer wants asylum.

The postponement of that issue keeps the case focused where the Miami relatives want it -- on whether an asylum hearing must be granted for Elian.

Though the Miami relatives no longer have custody of the boy, and yesterday were denied compelled access to him, the appeals court is allowing them to proceed on the assumption that Elian's great-uncle, Lazaro Gonzalez, speaks for him.

The practical effect of the two orders yesterday was that Juan Miguel's right to look after the boy without disruption was reinforced, but the Miami relatives were left free to continue the court case for several more weeks.

Those somewhat contradictory results illustrated the appeals court's bent for surprising rulings -- which makes it difficult to predict how it will rule on Elian's fate.

The new orders put Elian in a legal limbo. The attorneys who have been speaking for him and pressing the Miami relatives' asylum claim lost their access to him under the first order. Yet under the second order, his father's attorneys are not in a position to act on his behalf.

That situation seemed likely to continue well into next month as a result of yesterday's court actions.

Gonzalez's entry into the case was allowed at this stage to permit him to assert his rights as the father, but not Elian's rights. He can argue, in his role as the parent, that the court should not order an asylum hearing.

The court declined to act on the father's request to remove the great-uncle as the boy's legal representative. The Miami relatives were told to reply to that request by May 16, five days after the hearing on the case.

Among its other actions yesterday, the appeals court granted the Miami relatives' request to renew two earlier orders that temporarily bar Elian's return to Cuba and forbid anyone to take him to any site under the control of the Cuban government, out of the court's reach.

Attorney General Janet Reno offered an emotional defense of the federal agents' armed raid on the relatives' home Saturday to retrieve Elian.

And she again argued that the family had given her no choice but to order the seizure because of its resistance to turning over the boy peacefully.

"It wasn't going to get any better," Reno said at her weekly news conference. "Clearly, the agents had to be in force. Elian was being held by this person, and there had to be a show of force, not a use of force, to show that we were in control."

Reno said the family had tried to block the agents from coming into the house by pushing a couch against the door and that people outside the house tried to throw a rope around the agents to keep them from entering.

She also said that the agent who confronted Elian with an automatic weapon had the safety lock on.

Elian and his father remained at Wye Plantation on Maryland's Eastern Shore, awaiting the arrival from Cuba of Elian's cousins and school playmates.

The appeals court's order denying all of the new demands of the Miami relatives pushed them and others working with them farther to the sidelines, with no ensured access of any kind to Elian.

That denial of access was the hardest blow in the orders for Lazaro Gonzalez and Elian's cousin, Marisleysis, who says she has become the boy's "mother figure." The court gave no explanation for the denial.

The rejection of the relatives' plea to name a guardian to watch over Elian while the court case continued eliminated the possibility of friction between such a legal agent and the father.

Instead of a guardian, the court said it would accept a Justice Department proposal to have a social worker monitor Elian's "care and condition" while with his father and report to the court twice a month.

The father does not oppose the use of a social worker but has refused to give permission for the Miami relatives, or anyone associated with them, to visit him and the boy.

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