FWIW here is the text of the Affidavit that was submitted to get the search warrant.
(REDACTED) AFFIDAVIT
Before me, the undersigned authority, on this day personally appeared Mary A. Rodriguez,, Who after being duly sworn, deposes and says:
1. I am Mary A. Rodriguez, Senior Special Agent, United States Immigration and Naturalization Service (INS).
As a senior special agent, my duties include the apprehension of aliens who are in the United States illegally; enforcement of the immigration laws; and conducting investigations into suspected violations of the criminal statutes within the Immigration and Nationality Act (INA). I am authorized by Title 8, United States Code, section 1357 to interrogate any alien or person believed to be an alien as to his/her right to be or to remain in the United States or to arrest any alien in the United States if there is any reason to believe that the alien so arrested is in the United States in violation of any law or regulation made in pursuance of
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law regulating the admission, exclusion, or expulsion of aliens, or to arrest any alien in the United States if I have reason to believe that the alien so arrested is in the United States in violation of any law or regulation and is likely to abscond before a warrant can be obtained for his/her arrest.
2. On November 25, 1999, two fishermen encountered a young boy on an inner tube floating several miles off the coast of Fort Lauderdale, Florida. They rescued the boy, Elian Gonzalez, who was then five years old. The fishermen contacted the United States Coast Guard, who rendezvoused with their vessel and Elian was taken aboard the Coast Guard cutter. The Coast Guard took Elian to shore, where he was taken to Hollywood Memorial Hospital to be treated for dehydration and exposure.
3. INS immigration inspector Edward Agundez and United States Border Patrol Agent Verne Eastwood responded to the hospital. Elian Gonzalez is a native and citizen of Cuba, who is subject to the Immigration and Nationality Act. He had departed Cuba on a boat with his mother, Elisabeth Brotons, and step-father, Lazaro Munero, on November 22, 1999, along with ten other persons. During the voyage, they encountered heavy seas. The vessel capsized. Elian's mother and step-father perished, along with eight others. Elian and two other people survived.
4. Mr. Argundez met with Lasaro Gonzalez, wo was at the hospital and advised that he was Elian's great-uncle. Lazaro
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Gonzalez identified a child in a photograph presented to him as Elian, and Lazaro presented his own photograph showing Elian with his natural parents. Due to Elian's continuing medical treatment, Inspector Agundez deferred Elian's immigration inspection for a period of 30 days, pursuant to 8 C.F.R. 5 235.2(e). He was temporarily paroled into the custody of Lazaro Gonzalez pursuant to section 212(d)(5) of the INA, U.S.C. 5 1182(d)(5), and ordered to report for deferred inspection on December 23, 1999, at 9:00 a.m. Exhibit A.
5. Elian's natural father, Juan Miguel Gonzalez, contacted the Cuban Foreign Ministry and requested the return of his son Elian. Officials of the INS and the State Department interviewed Juan Miguel Gonzalez on December 13 and 31, 1999, in Cuba, to evaluate his claim that he was Elian's father and wanted his son returned. On January 5, 2000, the INS Commissioner Doris Meissner determined that Juan Miguel Gonzalez was Elian's biological father and has legal custody of Elian under Cuban Law. Exhibit B. Accordingly, Juan Miguel Gonzalez had the right and obligation to represent Elian in all legal transactions and acts in which Elian has an interest. Juan Miguel Gonzalez advised the INS that he did not want Elian to seek political asylum in the United States, and requested Elian's immediate return to Cuba.
6. Attorneys representing Lazaro Gonzalez asked the
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Attorney General to review Commissioner's Meissner's January 5, 2000 decision. On January 12, 2000 the Attorney General upheld the Commissioner's decision that Juan Miguel Gonzalez, as Elian's father, has sole authority to speak for his son in immigration matters. Exhibit C.
7. On January 19, 2000, Lazaro Gonzalez filed a complaint in the United States District Court, Southern District of Florida, challenging the INS's decision not to consider an application for political asylum submitted on behalf of Elian. Gonzalez v. Reno, et. al., Case No. 00-0206-CIV-MOORE. On March 21, 2000, the Honorable K. Michael Moore, United States District Judge, issued an Order granting the United States' motion to dismiss or, in the alternative, for summary judgement. Lazaro Gonzalez filed a notice of appeal on the same day.
8. On April 6, 2000, Juan Miguel Gonzalez arrived in the United States. He is currently residing in Bethesda, Maryland, and earnestly wants to be reunited with his son Elian.
9. On April 12, 2000, the INS, acting through Executive Associate Commissioner Michael Pearson, issued an Order to Lazaro Gonzalez to bring Elian to the Opa Locka Airport in Miami-Dade County, Florida, on April 13, 2000, at 2:00 p.m., for the purpose of transferring custody of Elian to the INS. Exhibit D. At the appointed time and place on April 13, Lazaro Gonzalez failed to appear to transfer custody of Elian.
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10. On January 7, 2000, Lazaro Gonzalez filed a petition in the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida, Family Division, seeking temporary custody of Elian Gonzalez. Gonzalez v. Gonzalez, Case No. 00-049-FC-28. On January 10, 2000, the Court granted, on an emergency ex parte basis, a Temporary Protecting Order granting Lazaro temporary custody pending a service of process upon Juan Miguel Gonzalez and a full hearing. On April 13, 2000, a successor judge issued a Final Order dismissing the petition for lack of subject matter jurisdiction due to federal preemption and lack of standing.
11. On April 14, 2000, Michael Pearson, INS Executive Associate Commissioner for Field Operations, sent a letter to Lazaro Gonzalez to make clear that Elian's parole into his care was revoked at 2:00 p.m., Thursday April 13, 2000, when Lazaro failed to comply with the INS 's instruction that he present Elian at the Opa Locka Airport. Exhibit E. On April 21, 2000, James T. Spearman, Jr., INS Deputy Assistant District Director for Investigations, issued a Warrant of Arrest for Elian Gonzalez. Exhibit F.
12. Once the INS revoked Elian's parole, his remaining in the United States is a violation of law. Moreover, Lazaro Gonzalez has refused to return physical custody of Elian to the INS, as ordered by the INS. In his letter of April 13, 2000,
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Executive Associate Commissioner Pearson advised:
Absent an order from the Eleventh Circuit enjoining Elian's transfer to his father, you have no legal basis to continue to exercise control over Elian. Moreover, you are holding Elian without the consent of his father and without the consent of the Immigration and Naturalization Service, Elian's current legal custodian under the immigration laws.
Exhibit F. When the state court dismissed Lazaro Gonzalez's petition, it terminated the Temporary Protective Order which had granted Lazaro temporary custody of Elian. Therefore, Lazaro Gonzalez has no claim of a right to custody based on the now dismissed state court proceeding. In the absence of legal authority from the INS to retain custody of Elian, or the consent of Elian's father, Juan Miguel Gonzalez to retain custody, Lazaro Gonzalez is unlawfully restraining Elian Gonzalez.
13. On April 19, 2000, the United States Court of Appeals for the Eleventh Circuit issued an Order granting Elian Gonzalez's motion for injunction pending appeal. The Court's Order expressly did not decide "where or in whose custody Plaintiff should remain while this appeal is pending. This Order only prevents Plaintiff's removal from this country." See Order at 15 n. 16.
14. Since he was paroled into his great-uncle's custody, Elian Gonzalez has resided at Lazaro Gonzalez's home located at 2319 N.W. 2nd Street, Miami, Florida. The home is a one-story,
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two-bedroom, family residence located in Miami-Dade County, Florida, within the city limits of the City of Miami. The home is located on Northwest 2nd Street, bounded by Northwest 23rd Avenue on the East and Northwest 24th Avenue on the West. The persons inhabiting the residence include Lazaro Gonzalez, his wife Angela Maria, adult daughter Marisleysis Gonzalez, and Elian. In a declaration filed in the District Court proceedings, Marisleysis Gonzalez stated that she and Elian shared the same room in the house. The INS has maintained daily surveillance of the residence at 2319 N.W. 2nd Street, Miami, Florida. I have reviewed the latest surveillance reports and they indicate Elian Gonzalez is still residing at 2319 N.W. 2nd Street, Miami, Florida.
15. Based on this information, I have probable cause to believe that Elian Gonzalez is being unlawfully restrained. Further, I have probable cause to believe he is located at the Lazaro Gonzalez family residence at 2319 N.W. 2nd Street, Miami, Miami-Dade County, Florida. This affidavit requests that a search warrant be issued, authorizing United States Immigration and Naturalization Service officers to enter the residence of Lazaro Gonzalez, located at 2319 N.W. 2nd Street, Miami, Florida, to seize the person of Elian Gonzalez.
16. The undersigned also requests that the search warrant permit execution during the night time hours. During the last two
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weeks, large crowds, up to several thousand people, have gathered outside 2319 N.W. 2nd Street to protest the United States Government's actions to reunite Elian with his father. Large numbers of individuals have indicated to the media covering the event that they intend to form a "human chain" to prevent the INS from entering the home of Lazaro Gonzalez. The numbers of individuals outside the home dwindles during the night time hours. In order to meet the least amount of resistance from any crowd gathered outside the home, ensure the safety of Elian Gonzalez, and protect the officers executing the warrant, the INS may plan to execute the search warrant during night time hours.
FURTHER AFFIANT SAYETH NAUGHT.
signature
MARY A. RODRIGUEZ
Senior Special Agent
United States Immigration and Naturalization Service
Miami, Florida
Sworn to and subscribed before me this 21st day of April, 2000.
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UNITED STATES MAGISTRATE JUDGE |
