The Miami Herald
January 14, 2000
 
 
Legal sides in Elian saga fine-tuning next moves

 BY JAY WEAVER AND ANDRES VIGLUCCI
 

 U.S. immigration authorities, suspicious that lawyers for Elian Gonzalez's Miami
 relatives will try to avoid directly challenging a decision to return the boy to Cuba,
 are devising strategies to force the family into federal court, where the government
 is certain it will prevail.

 Publicly, U.S. Attorney General Janet Reno sounded a conciliatory note on
 Thursday, once more appealing to the boy's relatives in Miami to cooperate in
 reuniting Elian with his father in Cuba.

 ``I think it is so important that people of goodwill come together, work through the
 processes of law as soon as possible, and get the boy home to his father,'' she
 said, declining to spell out the government's options while reiterating that she has
 ruled out seizing the boy.

 But behind the scenes, Justice Department officials said, government lawyers are
 readying a plan to call the family lawyers' bluff if they fail to fulfill their threat to go
 to federal court next week to block Elian's return.

 Legal strategists believe the Miami lawyers are reluctant to take the matter to
 federal court because they recognize the chances of winning there are slim.
 Federal courts have long deferred to the attorney general's broad powers in
 enforcing immigration laws.

 ``Clearly we want to give the family in Miami an opportunity to carry out what they
 say they have wanted to do, which is to take the matter into court,'' one Justice
 official said. ``However, if their public statements are not backed up, and they
 engage in stalling tactics, we will certainly not let the matter just sit.''

 Precise tactics have not been decided, the official said. The Immigration and
 Naturalization Service has clearly been at pains to avoid coming off as
 heavy-handed.

 But the INS set the stage for one possible scenario late Thursday when it rejected
 a second request for political asylum filed on Elian's behalf by his great-uncle,
 Lazaro Gonzalez. The agency again ruled, as it had last week, that only Elian's
 father in Cuba, Juan Miguel Gonzalez, can act for the boy.

 The agency believes the rejection may trigger a challenge in federal court by the
 Miami relatives' attorneys, who called the INS decision ``another example of
 violating Elian's civil rights.''

 ``We intend to do it,'' said Spencer Eig, a member of the family's legal team.
 ``This case evolves every day.'' He declined further comment.

 If they don't, the agency could force the Miami lawyers' hand by issuing a demand
 that the family turn over the boy at a precise date and time, knowing full well they
 are unlikely to do so. The family's lawyers have already said they would disregard
 an INS request to surrender the boy.

 But legal experts say a demand to produce the boy, if ignored, could lead to a
 swift federal court order forcing the family to comply.

 ``In the absence of cooperation from the relatives, the INS could go to federal
 court to have a judge make Elian appear so that he can be reunited with his
 father,'' University of Miami law professor David Abraham said.

 Alternatively, a request to produce the boy could prompt the family's lawyers to
 seek to block it in federal court, the only venue for such a challenge.

 In any case, legal experts and the government believe, INS is likely to prevail: ``At
 the end of the day, the world will see they didn't have much of a case, but at least
 they got a chance to make it in court,'' Abraham said.

 Justice strategists believe that neither the family nor its lawyers would risk
 defying a federal judicial order.

 ``There is a great deal of rhetoric, but the reality is that we believe everyone
 involved in this process will respect the final outcome under the law,'' the Justice
 official said.

 After saying he would discuss the team's strategy, Roger Bernstein, an attorney
 for the Miami relatives, failed to return phone calls from The Herald to his office.

 LAWYERS DISAGREE

 There has been disagreement among the lawyers representing Elian's relatives
 regarding when or even whether to go to federal court, recognizing they could be
 walking through a legal trapdoor.

 Earlier in the day, another of the family's lawyers, Jose Garcia-Pedrosa, said in
 defiant tones that he had advised Lazaro Gonzalez not to turn over the boy.

 Garcia-Pedrosa contended in an interview that an emergency protective order
 granted by a Miami-Dade Circuit Court judge legally keeps Elian here until a
 March 6 hearing on temporary custody sought by his great-uncle, even though
 Reno on Wednesday rejected the judge's authority to do so.

 Garcia-Pedrosa also maintained that a congressional subpoena for Elian, issued
 by U.S. Rep. Dan Burton, R-Ind., also prevents the boy from leaving the country.

 ``My advice now to Lazaro is, `If they come to get the boy, the answer is no,' ''
 Garcia-Pedrosa said. ``We have a state court order and we have a congressional
 subpoena that say the boy should not be taken from this jurisdiction. INS has no
 right to take this boy from here. We are not going to surrender him.''

 Supporters of Elian's Miami family have all but conceded that their principal goal
 is to delay the boy's return until Congress can reconvene Jan. 24 and consider
 several proposals to grant him legal status in the United States.

 WEIGHING OPTIONS

 U.S. Rep Ileana Ros-Lehtinen, R-Miami, said Thursday that several members of
 Congress are trying to hammer out a single piece of legislation to grant Elian
 legal standing. That would likely remove the INS' jurisdiction over the case.

 ``It's difficult to accomplish, but it's a bipartisan group of folks working on it, said
 Ros-Lehtinen, who said the group is now focusing on plans other than granting
 Elian citizenship. U.S. Rep. Bob Menendez, D-N.J., has suggested that
 permanent legal residency status for Elian would be more viable.

 In the meantime, Miami street-protest leaders said they would not call any new
 demonstrations to allow time for the expected court battle. Activist Ramon Saul
 Sanchez said exiles would join marches by African Americans on Saturday and
 Monday in observation of Martin Luther King Day.

 ``A lot of people wanted to continue to protest, and we were able to persuade
 them not to because it doesn't make sense now,'' Sanchez said.

 FATHER ON TV

 In an interview with ABC's Nightline  broadcast late Thursday, Elian's father
 expressed extreme frustration with the delay in his son's return. ``The custody of
 the child is mine,'' he said. ``The courts in Miami or in the U.S. have no
 jurisdiction. What they have to do is send the child back to me. I think that this
 has been clarified more than once.''

 The Cuban government said it expects 100,000 mothers to march by the building
 housing the U.S. Interests Section in Havana today to demand Elian's return.

 Raquel Rodriguez, Elian's maternal grandmother, told MSNBC in an interview that
 exiles pressing for the boy to remain in Miami have ignored her pain: ``I lost my
 only daughter and he's my only grandson. He's the only thing I have. I feel
 horrible.''

 The boy's mother and 10 others perished when their boat foundered off Florida.

 In Miami, after Elian returned home from school Thursday afternoon -- one hour
 later than usual because he stayed behind for an intensive English lesson --
 Lazaro Gonzalez delivered to reporters one of his most heartfelt statements about
 the boy.

 ``The reason why I'm in this is because the child has to have an opportunity to be
 free, that's how his mother would have wanted it,'' Lazaro Gonzalez said. ``The
 question I always ask is, if the father is really interested in being with his child,
 why doesn't he make an effort to come here?''

 Herald staff writers Ana Acle, Karen Branch, Alfonso Chardy and Frank Davies,
 and Herald translator Renato Perez contributed to this report.

                     Copyright 2000 Miami Herald