- The Washington Times - Thursday, April 20, 2000

A federal appeals court yesterday blocked the U.S. government's attempt to send Elian Gonzalez back to Cuba, at once changing the dynamics of the custody battle over the little boy who arrived in the United States four months ago clinging to an inner tube.

The 11th U.S. Circuit Court of Appeals in Atlanta, defending the child's right to seek political asylum, sharply criticized the Justice Department for not considering the boy's wishes.

The decision was all the more remarkable for its caustic tone. In a stinging rebuke to the Clinton administration, the court said it doubted that "protecting a party's day in court, when he has an appeal of arguable merit, is contrary to the public interest.

"Not only does it appear that plaintiff might be entitled to apply personally for asylum, it appears that he did so. According to the record, plaintiff although a young child has expressed a wish that he not be returned to Cuba."

The court extended the temporary injunction issued last week that keeps young Elian in the country, and turned aside a government request to order the family to give up custody of Elian, saying only: "We decline to proceed in that matter."

The court rebuked the U.S. Immigration and Naturalization Service for its handling of the boy's asylum request, saying it appeared the INS never sought to interview Elian "about his own wishes."

"It is not clear that the INS, 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."

Attorney General Janet Reno, in Oklahoma City for a ceremony dedicating the National Memorial at the site of the 1995 bombing of the Alfred P. Murrah building that killed 168 persons, said nothing in the ruling prevents her from taking Elian from his Miami relatives as long as the boy remains in the United States.

"We are going to take and consider all our options, and take the course of action that we deem appropriate under the circumstances," she said. It is not clear whether or when the department would remove the boy by force while the case is on appeal.

Miss Reno canceled her visit today to a Montana Indian reservation to return to Washington and work on the Elian case.

Word of the decision spread at once to the home of Elian's Miami relatives, and a celebration of waving flags, honking horns and spontaneous prayers was set off by the supporters who have gathered daily at the home in Little Havana to keep vigil outside the house.

Lazaro Gonzalez, the boy's great-uncle who has defied federal demands to turn the boy over to his Cuban father, accepted hugs and handshakes over the chain-link fence in front of his modest two-bedroom bungalow.

"The Gonzalez family continues to believe in the law of the United States," the 49-year-old uncle, an auto-body repairman, told the sun-soaked crowd.

Elian's father, Juan Miguel Gonzalez, issued a statement saying that the court decision had done nothing to undermine his "legal and moral claim that he be given immediate custody of his son."

The father, who is staying at a house in Bethesda owned by the Cuban Interests Section, the de facto Cuban diplomatic mission here, arrived April 6 to take the boy back to Cuba. In yesterday's statement, he said he is willing to remain until courts make a final determination of Elian's status.

Elian, who survived two days at sea after his mother and 10 other refugees drowned when their small boat sank, has become a hero of Miami's Cuban-American community and a symbol of their disdain for the Cuba of Fidel Castro.

Soon after the decision was announced in Atlanta, Elian was playing in the yard with his 21-year-old cousin, Marisleysis, who the family says has developed a close bond with the boy in the months since his mother drowned fleeing the Castro dictatorship.

The two wrestled happily and tried to douse each other with water from a plastic bottle.

While the court decision does not bar the federal government from moving to take Elian from his great-uncle, family attorney Kendall Coffey appealed to federal officials to continue to refrain from that until next month's appeal could be heard.

"We call upon the INS to take no precipitous action between now and the time of the hearing," Mr. Coffey said.

The court said the "true legal merits" of the case would be determined in May, when it intends to hear oral arguments in the asylum claim.

"We need to think more and hard about this case," the court said.

The appeals court, while recognizing the government's authority over immigration matters, said it failed to see how an injunction in the case "infringes" upon the government.

The temporary injunction had been sought by the Miami relatives last week, after they rejected an order by Miss Reno to turn over the boy. The attorney general had traveled to Miami in an attempt to negotiate an agreement in the case.

The injunction is separate from a pending asylum hearing before the appeals court sought by the Miami relatives, which is scheduled to be heard May 11.

Many in Miami had predicted or feared the family would lose the appeal, only adding to the tension.

"Just for a minute a couple of days ago, I really started to lose faith in the integrity of my own country," said Orlando Chils, a Cuban-American trucker from the Bronx who traveled to Miami to take part in the peaceful vigil.

"I came here 28 years ago in an inner tube, just like Elian," Mr. Chils said. "This has restored my faith in America. I can love America once more."

• David R. Sands reported from Miami.

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