You are mistaken as to the facts with respect to custody.
The INS gave temporary custody to Lazaro Gonzales when Elian first came here.
Later Lazaro filed for an order giving him full custody in Florida state court. He also filed a petition for asylum on Elian's behalf, while he was temporary custodian, and Elian signed a petition himself.
The Florida family court ruled that it did not have jurisdiction, that the INS did have the authority to determine Elian's custody, and that the proper place to litigate was in federal court.
The INS ordered custody to be transferred to Juan Gonzalez ten days ago.
Lazaro refused to surrender Elian to his father. He also appealed the refusal of the INS to grant the asylum petitions from the administrative level to federal court, which is proper procedure under the Administrative Procedure Act.
The federal district court judge ruled against Lazaro's asylum petition, saying that the father was the proper person to petition for asylum, not Lazaro, and not Elian, and then Lazaro appealed that to the 11th Circuit.
The 11th Circuit issued a temporary injunction against Elian being removed from the United States. The 11th Circuit also ruled that Elian had the right to petition for asylum, despite the fact that he is only 6, because the law says "any alien . . . irrespective of such alien's status may apply for asylum." Further, at the time Lazaro filed his petition, he had legal custody.
The order can be seen in its entirety on www.cnn.com, and www.herald.com, it's a photocopy of the order so I can't cut and paste it here. Read it for yourself.
Despite the published reports that the order is "silent" as to custody, I think it's more accurate that the Court expressly declined to rule on the issue. Here is what the order says, page 15, footnote 16:
"The INS in its response to Plaintiff's motion, said it would consent to an injunction requiring the INS to bar Plaintiff's departure from the United States if this Court also entered an order directing Lazaro Gonzalez to present Plaintiff to the INS, as directed by the INS, for transfer of care to Plaintiff's father. We decline to proceed in that manner. To decide Plaintiff's motion and to preserve his right to a day in court, we need only address the issue of Plaintiff's removal from this country. We need not decide where or in whose custody Plaintiff should remain while this appeal is pending. This Order only prevents Plaintiff removal from this country."
Contrary to your assertion that Lazaro contested Juan's custody, it is clear from the news reports that the sticking point for a transfer of custody was the terms under which custody would be transferred. Lazaro wanted Juan to come to Miami and for all parties to live in close proximity while the litigation continued. Juan wanted immediate transfer without condition. Resolution of the impasse was unlikely.
Lazaro was in defiance of lawful order. The United States marshalls acted under full authority of law, including having a search warrant issued by a federal judge authorizing them to enter the premises.
The Cuban activists planned to make a human chain around Lazaro's house to prevent Elian from being removed without Lazaro's approval. What do you think would have happened to the United States marshalls if they had gone in to remove Elian unarmed? |
