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.