Reno upheld on refusal to hear Elian asylum case

Federal appeals court says deferral to parent is not unreasonable

A father wins decisive victory

June 02, 2000|By Lyle Denniston and Jean Marbella | Lyle Denniston and Jean Marbella,SUN NATIONAL STAFF

WASHINGTON - Moving the legal saga of 6-year-old Elian Gonzalez nearer to a close - and nearer to his return to Cuba - a federal appeals court ruled yesterday that the government has no duty to consider asylum for the boy.

In a decisive victory for the boy's father and for Attorney General Janet Reno, a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta unanimously upheld Reno's decision in January to refuse to consider asylum because Elian's father opposes it.

The court said, "We accept that the policy at issue here comes within the range of reasonable choices," and concluded that the policy of deferring to a parent's wishes does not violate U.S. immigration law.

The boy's father, Juan Miguel Gonzalez, speaking in Spanish to reporters, said the time had come to allow him and his son to "finally go back home together." But further legal maneuvers by the boy's Miami relatives could delay their return to Cuba for several weeks at least.

Gregory B. Craig, the father's attorney, said: "There is no longer any doubt about the ultimate outcome. It is now time to end this chapter of Elian's life and to let this family go in peace."

In Miami, the boy's disheartened relatives vowed to continue their legal challenge, with the ultimate aim of gaining an asylum hearing for Elian despite his father's wishes and despite Reno's resistance to any effort to overrule those wishes.

Lazaro Gonzalez, Elian's great-uncle, who has tried in three courts to keep the boy in the United States, said in Miami: "We will keep fighting with the laws, so Elian Gonzalez can live in a free country like his mother wanted."

Elian's mother died when their boat sank in November after she, the boy and 12 others fled Cuba, headed for the United States.

In yesterday's decision, the appeals court avoided any sign of endorsing Reno's decision as the correct one. Noting that the decision was within the attorney general's powers and that the authority of the court was limited, the panel said it "neither approves nor disapproves" Reno's choice.

The court said it was "not untroubled by the degree of obedience that the policy appears to give to the wishes of parents."

Reno told reporters: "We are pleased that the court has upheld our decision that only Juan Miguel Gonzalez can speak for his son, Elian, on federal immigration matters.

"This is a very important step in achieving the goal we have sought from the very beginning - to give Juan Miguel and his family the opportunity to return to a life together."

By upholding Reno's decision, the ruling also provided a victory for parents' rights - including the rights of parents who live in countries hostile to the United States whose children wind up in this country, perhaps hoping to stay.

The Reno policy grants the natural parent of an alien child who is at least as young as Elian the sole right to decide for or against asylum while the child is in the United States.

The policy bars a child of 6 or younger from making his or her own request for asylum, except in rare situations - as when a totalitarian government coerces a parent into opposing asylum for a child. Such factors did not exist in Elian's case, according to Reno's decision.

The attorney general had concluded that even if she did consider asylum, Elian would not have been eligible because he could not show that he would face persecution if he were returned to Cuba.

Though the appeals court ruling was clear and unambiguous, it was probably not the last word. The court left the Miami relatives with a brief opportunity to take other legal steps, indicating that it would not put its ruling into effect for two weeks.

The relatives' lawyers seemed unsure about their next step. In the morning, they rushed to the Supreme Court with a request for an order to block Elian's return to Cuba until a new appeal can be filed with the justices, within 10 days.

But by the end of the day, they had asked the court to take no action on their plea for now. They appeared to be weighing first a plea for a rehearing before the full 12-judge appeals court. They could, however, return to the Supreme Court at some later point.

Even so, it did not appear yesterday that further steps in the courts would long delay a final resolution of the dispute. Even if the case is taken to the Supreme Court, the justices might not agree to hear it, in part because two lower courts - the appeals court and a federal district court in Miami - have upheld Reno's decision.

The justices might also regard Elian's case as extremely unusual, thus not requiring an ultimate resolution by the highest court.

The decision yesterday in Reno's favor had not been predictable in the form that emerged, because the appeals court in preliminary rulings had been sympathetic to the Miami relatives in their desire for asylum for the boy and critical of some of the government's handling of the case.

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