BY JAY WEAVER
A federal appeals court Thursday dealt a major setback to Elian Gonzalez's Miami relatives, ruling that they and their lawyers have no right to visit the 6-year-old boy who is now in his father's custody in Maryland.
The three-judge panel of the 11th U.S. Circuit Court of Appeals also denied the relatives' request for an independent guardian to look after the child's interests during the legal battle over whether he is entitled to a political asylum hearing. And the panel refused a request that the court allow Elian to be seen by the psychologist who had been treating him in Miami.
``Certainly, we would have preferred the federal court's assistance with visitation, but unfortunately they did not do it,'' said Kendall Coffey, one of the Miami relatives' attorney. He said their legal team was considering challenging the constitutionality of preventing Elian's lawyers from seeing him.
In another blow to the relatives, the panel agreed to allow Elian's father, Juan Miguel Gonzalez, to participate in his son's immigration case by filing briefs before oral arguments on May 11. But the judges did not answer Juan Miguel's request seeking to have Elian's great-uncle Lazaro Gonzalez removed from the case -- a tactic that would have effectively ended the boy's appeal.
``Their strategy was to move in for an early knockout, and that strategy has been rejected [for now],'' Coffey said.
The three judges, James Edmondson, Joel Dubina and Charles Wilson, asked the government and Lazaro Gonzalez's attorneys to file court papers in response to the father's request to replace the great-uncle in the suit by May 16.
The only judge who opposed the father's intervention in the case was Dubina. In his dissenting opinion, Dubina wrote: ``Although I recognize as plaintiff's father, Juan Miguel Gonzalez has interests in this case, I believe his motion should fail because it is untimely filed, and the INS adequately represents his interests.''
The other two judges also expressed their doubts about the timing of the father's move to intervene. They noted that Lazaro Gonzalez sued the Immigration and Naturalization Service in January after the agency shelved the boy's asylum application because it found he was too young and his father wanted the request withdrawn.
They said Juan Miguel Gonzalez did not intervene in the suit when it was before U.S. District Judge K. Michael Moore, who ruled on March 21 that the government acted properly in denying Elian's asylum request. Lazaro Gonzalez filed a notice of appeal that same day in the 11th Circuit.
``We especially are hesitant to permit intervention in an appeal where, as here, the date of oral argument has long been set and is near,'' Edmondson and Wilson wrote for the majority. ``Nonetheless, we grant Juan Miguel Gonzalez's motion to intervene: he is [Elian's] father.''
At the same time, all three judges endorsed Edmondson's earlier ruling that stops anyone from taking Elian to a Cuban mission or to a Cuban official's home with diplomatic immunity because it would be outside the control of the U.S. courts. Earlier this month, they issued an order blocking Elian's return to Cuba until his appeal is concluded.
The three judges acknowledged the government's effort to keep the boy within the court's jurisdiction. ``The government represents that they have faithfully taken steps to see that [Elian] does not pass out of the jurisdiction of this Court. We fully credit these representations.''
The boy's legal team contends that now that the boy is with his father, he will be brainwashed by Fidel Castro's government agents to say that he wants to return to Cuba instead of remaining in the United States. Elian is staying with his father's family at the Wye Plantation, a privately owned compound on Maryland's Eastern Shore.
The three judges also accepted the government's offer ``to supply the court with biweekly reports'' from a psychiatrist and social worker retained by the INS to monitor and examine Elian's well-being, health and condition during his stay.
Copyright 2000 Miami Herald