The Miami Herald
April 20, 2000

ELIAN MUST STAY IN U.S.

Miami relatives willing to meet with father

 Lawyers for Elian Gonzalez's Miami relatives said this morning they're willing to
bring the boy to a meeting with his father, but the father's attorney says any such
meeting must start with the boy being handed over to his father.

 The meeting could be anywhere in the country, the Miami relatives' lawyers said.

 "It's time that the family got together to deal with this as a family - no preconditions,
no government, no lawyers,'' Miami family attorney Kendall Coffey told ABC's
"Good Morning America.''

 But he also said the family still prefers to meet within close driving distance of
Miami because Elian is frightened about being returned to Cuba.

 Gregory Craig, an attorney for Elian's father, Juan Miguel Gonzalez, said any
meeting must begin with Juan Miguel being given custody of the boy.  "It is long
past time for this boy to be reunited with his father,'' Craig told NBC's "Today'' show.

 "The only meeting that we really care about is the reunion with the son.'' After that
occurs, the family can talk, he said.

 The boy's great-uncle, Lazaro Gonzalez, decided to offer to bring the boy to a
meeting with his father after being assured by an appellate court ruling that the boy
could stay in the country, attorney Linda Osberg-Braun said Wednesday.
Previously, the Miami relatives had said they would meet the father only if it was
without the boy.

 A federal appeals court handed Elian Gonzalez's Miami relatives a victory of
unexpected scope Wednesday, when it not only barred the boy's immediate return
to Cuba, but also appeared to embrace the family's argument that the 6-year-old
can apply for political asylum against his father's wishes.

 In a 16-page decision that surprised experts and even the Miami relatives'
lawyers, a three-judge panel of the 11th Circuit Court of Appeals in Atlanta
ordered in unusually pointed language that Elian remain in the United States while
his relatives pursue a pending federal court appeal on the asylum question.

 The order does not prevent the government from reuniting Elian with his father,
who is in Washington, D.C., to reclaim custody of his son.  The judges explicitly
left that decision to U.S. Attorney Janet Reno, who has ordered the Miami
relatives to turn over the boy. Reno said late Wednesday she would study her
options, but declined to elaborate.

 But Reno pointed out that the government and Elian's father had already agreed
to keep the boy in the United States while the appeal was concluded, and
maintained that Wednesday's ruling changed little in her view.

 ``I believe Elian should be reunited with his father, and I've said that all along,''
 Reno said at a press conference. ``The court's order does not preclude me from
 placing Elian in his father's care while he is in the United States.''

 Elian's father, through his Washington attorney, Gregory Craig, late Wednesday
 reiterated his demand for an immediate transfer of custody.

 ``We call upon the United States government to take immediate action,'' Craig
 said in angry tones. ``It is unconscionable to wait one day longer.''

 But the court decision set off a joyful celebration among the Miami relatives and
 dozens of demonstrators outside their Little Havana home, where many called it
 ``a miracle'' that bodes well for their fight to keep Elian in the United States.

 ``As you all can see, the Gonzalez family still believes in the laws of the United
 States and we will continue to pray so all of this will come true for Elian and he'll
 be able to remain where his mother wanted him to be -- in a life of liberty,'' said
 the boy's great-uncle, Lazaro Gonzalez, who has spearheaded the battle to take
 custody of Elian from his father in Cuba. Elian survived a November tragedy in
 which his mother drowned while fleeing Cuba.

 Until Wednesday's ruling, Reno seemed to be moving closer to a decisive move to
 reunite Elian and his father. Earlier in the day, she said she still intended to do
 so, by force if necessary.

 HARDER FOR RENO

 Though only an intermediate step, however, Wednesday's ruling may make it
 harder for Reno -- who clearly hoped the court would endorse her decision to
 reunite Elian and his father -- to justify the use of force.

 The judges did not address a request by the government to order Lazaro
 Gonzalez to turn over the boy. Government sources who have been involved in the
 case, while stressing they were speaking speculatively, said they believe Reno is
 unlikely now to attempt to move the child.

 A Justice Department official, however, said a forcible removal remains under
 active consideration.

 In effect, Wednesday's ruling said that even if Elian has no case for political
 asylum, he may have the legal right to apply for it, regardless of his age.

 The appellate court must still decide those questions, but the tenor of
 Wednesday's ruling suggests the judges believe the law may in fact allow even
 small children to apply for asylum, and even over the objections of their parents.

 The ruling challenged the government's handling of the case as well as its legal
 posture -- that because a 6-year-old boy lacks the intellectual capacity to apply
 for asylum on his own, only his father can speak for him on immigration matters.
 A federal judge in Miami earlier had upheld Reno's reading of the law.

 NEW PRECEDENTS?

 Legal experts said the appeals court's argument, if it survives into the final ruling,
 would upset established immigration policies and procedures and set new
 precedents for the rights of minors under immigration law. The INS routinely
 returns unaccompanied minors who have entered the country illegally on the
 presumption that they are too young to apply for asylum.

 Some experts were agog at the court's reasoning, saying they were baffled by its
 suggestion that children as young as 6 could understand the import of a political
 asylum application.

 The court was careful to say, however, that it was not passing final judgment.

 ``This order sets out more questions than answers,'' the panel wrote. ``No one
 should feel confident in predicting the eventual result in this case . . . We need to
 think more and hard about this case for which no sure and clear answers shine
 out today.''

 The three judges on the panel are Joel Dubina, appointed in 1990 by President
 Bush; Charles Wilson, appointed by President Clinton in 1999, and James
 Edmondson, appointed in 1986 by President Reagan.

 `ANY ALIEN'

 Their decision questioned the basis for the government's legal position, which
 hinges on its interpretation of a statute that permits ``any alien'' to apply for
 asylum. U.S. District Court Judge K. Michael Moore, in his decision backing
 Reno, said immigration law effectively gives the attorney general discretion in
 deciding whether a minor can do so.

 But the appeals court noted the statute mentions no age limit, and that two
 applications on Elian's behalf were filed, with the boy signing one himself. The INS
 rejected both, saying Elian's father did not want them filed.

 The appeals judges suggested that the INS' rejection might have been improper
 for another reason: The law requires the agency to consider all complete
 applications, and both applications filed on Elian's behalf were complete.

 If Congress had intended to exclude aliens from the right to file for asylum, the
 judges said, it would have written the exception into the law.

 ``To some people, the idea that a 6-year-old child may file for asylum in the
 United States, contrary to the express wishes of his parents, may seem a
 strange or even foolish policy,'' they wrote. ``But this Court does not make
 immigration policy and we cannot review the wisdom of statutes duly enacted by
 Congress.''

 The court also raised the possibility that Elian's interests and his father's may not
 be the same. The judges seemed to give considerable weight, moreover, to
 statements from a relative and a psychologist that Elian had expressed a wish
 not to return to Cuba, even as they said such a desire may not be relevant in an
 asylum case.

 `It appears that never have INS officials attempted to interview plaintiff about his
 own wishes,'' the judges wrote.

 RULING HAILED

 Miami Commissioner Tomas Regalado said the Gonzalez family considered the
 ruling decisive.

 ``The family really believes that they have a victory,'' Regalado said. ``I was talking
 to Lazaro, right after the decision, and he told me, `I always had faith. I always
 had faith. I know that we are on the right side of God.' ''

 Other supporters were more cautious, noting that even a victory at the appeals
 court would mean further appeals by the government, and that even if Elian wins
 an asylum hearing, there is no guarantee he could persuade an immigration judge
 that he merits it. To win asylum, an applicant must show he will likely suffer
 persecution on account of race, religion, national origin, membership in social
 group or political opinion.

 One leading expert, Miami immigration lawyer Ira Kurzban, said he believes an
 asylum claim by Elian would be tenuous at best.

 ``Given the situation, it would be the opposite with this child. He will be a hero in
 Cuba,'' said Kurzban, whose litigation on behalf of Haitian refugees in the 1980s
 established the right of aliens to apply for U.S. political asylum.

 But it now appears that, barring a move by the government to remove Elian from
 the house or a successful challenge of Wednesday's order, it could be weeks, if
 not months, before the boy's fate is decided.

 ``We feel good. The family feels good. But the war is not over,'' said Armando
 Gutierrez, the Miami family's spokesman.

 Said Jorge Mas Santos, chairman of the Cuban American National Foundation, ``I
 would hope and I would implore the Justice Department and this administration to
 not come in and raid this home and remove that boy now.''

 Herald staff writers Andres Viglucci, Jay Weaver, Manny Garcia, Ana Acle, Karen
 Branch, Tyler Bridges, Paul Brinkley-Rogers, Frank Davies, Marika Lynch,
 Sandra Marquez Garcia and Frances Robles, Herald translator Renato Perez,
 Herald writer Mireidy Fernandez, Online News Reporter Madeline Baro Diaz and
 wire services contributed to this report.