The Miami Herald
April 18, 2000

Ruling on Elian's departure looms

BY JAY WEAVER, ANDRES VIGLUCCI AND KAREN BRANCH

 A federal appeals court Monday kept Miami, Washington and Havana in suspense over whether it would issue an order temporarily barring Elian Gonzalez's removal from this country.

 By day's end, the 11th U.S. Circuit Court of Appeals had not responded to a request by Elian's Miami relatives, who want the boy to remain in the United States until their pending federal appeal is concluded. The Atlanta court's decision may come today.

 While everyone waited, the Miami relatives and the government continued to issue claims and counterclaims about the other sides' actions in the 5-month-old custody dispute.

 Lawyers for the relatives released a statement again defending Lazaro Gonzalez against government assertions that he acted illegally in defying its order to surrender the boy last week. The lawyers contend Elian's great-uncle is not obligated to deliver the boy to the Immigration and Naturalization Service. The INS, meanwhile, released a letter by a key advisor to the government that calls the Gonzalez household in Little Havana ``psychologically abusive'' and urges immediate action by the government to remove Elian.

 Dr. Irwin Redlener, president of The Children's Hospital at Montefiore in New York City, said that he was disturbed by the family's release of a home video in which a gesticulating Elian addresses his father and says he does not want to return to Cuba.

 `HOSTAGE SITUATION'

 ``I got very alarmed,'' said Redlener, a pediatrician who has advised INS Commissioner Doris Meissner through the Elian battle. ``I spoke to many experts across the country about it. It was a coached videotape reminiscent of what you see in a hostage situation.

 ``The videotape is the final straw and a very clear indicator that this boy is being subjected to extraordinary pressures in that household.''

 Redlener, who assembled the panel of three mental-health experts to interview Lazaro Gonzalez last week, said he was also worried by unproven, last-minute allegations by supporters of the Miami relatives that Elian's father physically abused the boy and his mother.

 ``We have a prolonged, painful separation from his father, and secondly, what has clearly been an unending negative diatribe about his father coming from people surrounding [Elian],'' Redlener said. ``He will have to resolve some very difficult emotional stresses having to do with relationship with his father.''

 In their statement defending Lazaro Gonzalez's actions, his attorneys suggested the government has ignored Elian's psychological needs by refusing to evaluate the appropriateness of returning him to his father. Lazaro and his family contend the boy is afraid of his father. ``We emphasize the serious harm that confronts Elian if removed to Cuba and the further harm that would result from requiring Lazaro affirmatively to betray this child,'' the statement said.

 STANCE UNCHANGED

 The statement reiterated the relatives' position that it is the INS' job to come get the boy.

 ``Lazaro Gonzalez has not broken the law. To the contrary, he has unfailingly declared that he will not violate the law, a position he has confirmed in writing personally as well as through counsel,'' the statement said.

 But legal experts say that, depending on how far Gonzalez is willing to carry out his defiance, he could face charges ranging from obstruction of justice to aiding and abetting and harboring an illegal alien.

 Sanctions could range from civil penalties, such as mounting daily fines, to jail time.

 Because Gonzalez no longer has legal custody of Elian, he might be subject to state kidnapping charges for keeping the boy over the father's objections, said Roy Kahn, a Miami criminal defense lawyer -- though he said it is unlikely prosecutors would step in.

 The revocation of parole means the Miami relatives ``have no right to have the child kept from immigration. They have no authority to keep the child over objections of the father,'' Kahn said.

 But he said Lazaro Gonzalez is a thin line away from a possible obstruction-of-justice charge, which probably would apply only if he interferes with federal agents coming to pick up the boy. Gonzalez has said he would step aside if agents came to his house for Elian.

 LEGAL REPERCUSSIONS

 Gonzalez would not be subject to contempt-of-court charges -- another possibility the government has contemplated -- unless a judge issues an order instructing him to surrender Elian, and he does not obey, Kahn said.

 The petition being weighed by the Atlanta appeals court would keep Elian's father from returning to Cuba with the boy if the INS turns Elian over to him. It would not bar the INS from reuniting the two.

 As policy, the court of appeals would not disclose the names of the three judge on a panel reviewing the petition. The 12-justice appellate court itself has a reputation as being deferential to the government on immigration matters.

 Monday afternoon, as the temperatures soared into the 90s, the crowd grew to about 200 outside the Gonzalez home in north Little Havana.

 The demonstrators showed their support -- and frustration. The exile group Mothers Against Repression, dressed in black, led the crowd in prayers.