April 20, 2000
THE OVERVIEW
Cuban Boy Stays in U.S. for Now, a Court Decides
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Pending Hearing in May
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By RICK BRAGG
MIAMI, April 19 -- Champagne and exhilaration washed along the street in Little Havana today, as a federal appeals court not only extended an order that will keep 6-year-old Eli n Gonz lez in the United States until the court hears the full appeal of his case but also criticized the way government officials handled his request for asylum.
The United States Court of Appeals for the 11th Circuit, in Atlanta, today barred anyone from taking Eli n from the country until it heard the child's case on May 11, and, in pointed language, suggested that his Miami relatives' efforts to have his request for asylum heard in court should not have been ignored.
It was, in a legal sense, only a ruling on an emergency injunction to keep the child in this country for a few more weeks, but the language seemed to chastise the government for asserting that only the boy's father was legally entitled to speak for him. Eli n's father lives in Cuba and came to this country early this month to take the boy back with him. The ruling ensures that questions of who rightfully speaks for the boy and whether he is entitled to apply for asylum will be fully aired.
A three-judge panel of the court concluded unanimously that they "doubt that protecting a party's day in court, when he has an appeal of arguable merit, is contrary to the public interest."
The ruling lent credence to the Miami family's argument that the boy is a bona fide candidate for political asylum.
But in their conclusion, the judges wrote that the "true legal merits of this case will be finally decided in the future," adding, "We need to think more and hard about this case for which no sure and clear answers shine out today."
The government could try to have the stay lifted by the full circuit court or a Supreme Court justice, or take no action until the hearing in May.
"We will continue to pray," said L zaro Gonz lez, Eli n's great-uncle, who defied a federal order last week to give up the boy and produce him at an airport for an eventual reunification with his Cuban father.
Around the house, demonstrators celebrated with geysers of Champagne and quiet prayers over clenched rosaries. The festivities continued into the night, bringing disruptions of traffic into the area.
The ruling did not answer a key question: who should have custody of Eli n while the legal process plays out.
The Justice Department and the Immigration and Naturalization Service have insisted that Eli n be reunited with his father, Juan Miguel Gonz lez, who is waiting for his child at a Cuban diplomat's house outside Washington.
By avoiding the issue, Attorney General Janet Reno said, the court left her the option of removing the boy from his uncle's home -- as she has threatened to do for days. But Wednesday night, it remained unclear whether she would take such a step and officials at the Justice Department indicated they had been surprised by the court's decision and were confused about how to proceed.
"The court's order does not preclude me from placing Eli n in his father's care while he is in the United States," the attorney general said as she stepped off a plane in Oklahoma City. She was in that city to attend a memorial service for victims of the bombing of the federal building there five years ago.
Tonight, a lawyer for L zaro Gonz lez, Linda Osberg-Braun, said on ABC's "Nightline" that Mr. Gonz lez was ready to take the boy to meet with his father. "They want to meet immediately, under any circumstances, without conditions," she was quoted by Reuters as saying. "The most important thing is that the families get together."
Almost five months after the boy was found floating on an inner tube off the coast of Florida after a failed crossing from Cuba drowned his mother and 10 others, Eli n remained encircled tonight by demonstrators at his uncle's house in Miami, many of whom have said they will not allow the boy to be moved.
Ms. Reno, said, "We are going to take and consider all our options and take the course of action that we deem appropriate under the circumstances."
A month ago, the reunion of father and son seemed assured. In March, a Federal District Court judge in Miami upheld an Immigration and Naturalization Service order to return Eli n to his father, without a formal hearing on Eli n's request for asylum.
The Justice Department and the immigration service have said only the boy's father can speak for him, stressing that common sense dictates that a 6-year-old cannot understand the complex issue of asylum.
But the appellate court seemed critical of the way both agencies had treated the case.
"Not only does it appear that plaintiff might be entitled to apply personally for asylum, it appears that he did so," wrote the panel, referring to a request for asylum signed by Eli n. "According to the record, plaintiff, although a young child, has expressed a wish that he not be returned to Cuba.
"It appears that never have I.N.S. officials attempted to interview plaintiff about his own wishes. It is not clear that the I.N.S., in finding plaintiff's father to be the only proper representative, considered all of the relevant factors, particularly the child's separate and independent interests in seeking asylum."
The panel went on to write that, under the Immigration Service's own guidelines, a minor can, under some circumstances, apply for asylum even against "the express wishes of his parents."
In Washington, Gregory B. Craig, a lawyer for Juan Miguel Gonz lez, said the ruling allowed the Miami family to continue to turn the boy against his father in what he has referred to as brainwashing.
"If the government does not act immediately to remove Eli n from the care of L zaro Gonz lez and return him to his father, it will bear responsibility for the harm that continues to be inflicted on Juan Miguel's beloved son," Mr. Craig said.
The ruling was another setback for the federal government in a case that saw the attorney general travel to Miami in person to try and work out a deal to reunite the father and son.
The trip that ended with L zaro Gonz lez saying that if federal officials wanted the boy they would have to come into his home and take him.
"They have the legal right to remove him, but politically speaking, it puts his removal very much in question," said Pamela Falk, a professor of international law at the City University of New York, who has argued cases similar to Eli n's.
But she and other political experts said the ruling may also bode well for the family's full appeal.
"The decision scolds the I.N.S. for not considering Eli n's interest and scolds them for not ever speaking to Eli n," Professor Falk said. "This decision gives a great boost to the possibility of the success of the appeal."
Even if the family wins the appeal, it only means that the boy's asylum request returns to the immigration service, and Ms. Reno is, ultimately, in charge of that agency.
For now, the fight in Miami goes on to keep the child in the house and away from a father that many people here see as an agent, or a puppet, of the Fidel Castro government.
Justice Department officials said today that reuniting Eli n with his father would not mean that they leave the country until after the May 11 hearing. A federal order would prevent that, the officials said, and Mr. Gonz lez has said he would stay with the boy until the appeal is heard.
But lawyers for the family seemed hopeful that they, and an army of Cuban-Americans, could keep the boy in Miami.
"We're delighted," said Jose Garcia-Pedrosa, a lawyer for the relatives. "Had the boy been taken out of the country and we had won the appeal, what would we have won?"
Eli n, he said, would never have come back from Cuba.
At the house on Northwest Second Street, demonstrators let down their vigil long enough to joyously celebrate one more victory over the United States government.
"This might be a small step, but it is in the right direction," said Ram¢n Sa£l S nchez, who led the demonstration outside the house since the standoff began five months ago.
The crowd chanted, "Fidel, crazy man, you have little time left."
"The law is working," said Miguel Saavedra, president of Vigilia Mambisa, an exile group.. He uncorked a bottle of Champagne, soaking several people.
Not everyone in Miami is happy. Overhead, a plane droned by trailing a banner that said "Send Elian Home -- The Taxpayers." The banner was apparently in reference to the millions of dollars the standoff, and the demand for added police and other municipal services, is costing Miami and Miami-Dade County.
And, the police said a cameraman was stabbed with a pen by a woman identified as Maria T. Alvarez, who is a reporter for The New York Post. She was charged with aggravated battery and simple battery. The Post was quoted by The Associated Press as saying the charges were unfounded.
Nothing seemed to dampen the mood of Cuban-Americans here, who see the return of Eli n to Cuba as a victory for Mr. Castro. They either discount or ignore the wishes of relatives there for the boy's return, and view their pleas for his return as Communist propaganda.
"He's just a little kid," said James B. Exposito, 16, a freshman at Miami High School. "Over there he doesn't have nothing. He won't have the love of his family there. They take care of him here. Everybody will take care of him here." |
