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Politics : About that Cuban boy, Elian -- Ignore unavailable to you. Want to Upgrade?

To: marcos who wrote (3588)	4/29/2000 5:11:00 PM
From: gao seng	Read Replies (1) \| Respond to of 9127

re: These too are fine words I will take your word for it. Experts dispute warrant to seize Elian from home ANDRES VIGLUCCI aviglucci@herald.com herald.com Shortly after 7 p.m. on Good Friday, an immigration officer visited the home of U.S. Magistrate Robert Dube, who was on after-hours duty that night, with a request for a warrant authorizing federal agents to seize Elian Gonzalez. In the packet that agent Mary Rodriguez gave Dube was a standard Immigration and Naturalization Service arrest warrant for Elian as an illegal alien and a series of documents in which the government methodically built its case for permission to search the Little Havana home of the boy's relatives. Among them were INS letters to Elian's great-uncle, Lazaro Gonzalez, ordering him to surrender the boy and, after he failed to do so, informing Lazaro that he was now unlawfully holding Elian. Dube signed the warrant, setting in motion the raid that reunited Elian with his father. Now some prominent constitutional scholars, in a strange alliance with conservative activists and the Miami relatives' lawyers, are attacking the legality of the government's seizure of Elian. They say it violated the great-uncle's right to privacy. A significant part of the criticism has been deployed in the conservative opinion pages of the Wall Street Journal. Other constitutional scholars, immigration specialists and the Justice Department disagree, calling the debate baseless. They contend the warrant was proper and duly approved by a federal magistrate, and that the INS in any case has wide powers granted to it by Congress to search for and arrest illegal aliens such as Elian without a court-approved warrant. KNOTTY ISSUES The argument of those who think the seizure was not legal turns on knotty legal issues, but boils down to this: The search warrant was improperly issued because it is meant for use only when there is suspicion of a criminal violation, or violation of a direct court order -- neither was the case in Elian's situation. And without that warrant, federal agents had no right to enter the home of a third party, namely Lazaro Gonzalez, to grab Elian. The relatives' lawyers think they can use their contention of an improper search in a second effort to persuade federal appellate judges that Elian needs an independent guardian to represent his interests. A three-judge panel of the 11th Circuit Court of Appeals, which is considering their request for a political asylum hearing for Elian, on Thursday rejected the relatives' first request for a guardian. At the very least, the question has already become a political issue, and would become a major focus of promised congressional hearings if they take place. ``One can't turn back the clock,'' said Laurence H. Tribe, professor of constitutional law at Harvard. ``But the relevance of arguing about this and taking seriously the constitutional issues it poses is the threat of its happening again in the future.'' Those who think the seizure was legal say its most unusual aspect was the existence of any warrant. ``Usually they just go in, knock on the door and grab someone,'' said Tammy Fox-Isicoff, a former INS lawyer now in private practice in Miami. ``It sounds like they went the extra mile in this case in asking for a search warrant, knowing they would be under scrutiny.'' MARKED BY ERRORS The debate over the warrant has been marked by misunderstandings and errors. Tribe, in a column he wrote for The New York Times assailing the warrant before reading the documents submitted by the INS, erroneously said Elian was not an illegal alien, a mistake repeated by other critics of the raid. In fact, he is, said Fox-Isicoff and several other immigration experts interviewed for this article. Although physically present in the country, Elian is an ``unadmitted alien'' with few due-process rights under immigration law, and thus entirely subject to the control of the INS and the attorney general. When Lazaro Gonzalez disobeyed an order to turn over the boy, the INS revoked the parolee status that allowed Elian to remain in the U.S. temporarily. ``The revocation of the parole makes Elian's presence here illegal,'' said Michael Ray, president of the South Florida chapter of the American Immigration Lawyers Association. ``If you are not legally in the United States, they can arrest you if you don't do what they ask you to do.'' But government lawyers wrote in their request that they decided ``in an abundance of caution'' to seek a search warrant. The government lawyers argued that Lazaro Gonzalez's repeated refusals to surrender the boy meant he was ``unlawfully restraining'' his nephew. That rubric is typically applied when someone is being held against his will -- as in a kidnapping or hostage situation -- or in defiance of a court's custody order. ``It sounds legally regular to me,'' said Bruce Winick, professor of constitutional law at the University of Miami. ``It sounds like Janet Reno had the legal authority to do this.''