- The Washington Times - Friday, April 28, 2000

A federal appeals court yesterday denied a request by Elian Gonzalez's Miami relatives that they be allowed to visit the 6-year-old and turned down a bid for the appointment of a "neutral guardian" as it had hinted Tuesday it might do.

But the court kept the relatives' appeal alive, rejecting a request by the father, Juan Miguel Gonzalez, that he be named Elian's legal representative. The court, however, said he could intervene in a pending asylum hearing and ordered his attorneys to file a brief by Monday.

A decision by the court to appoint the father as the legal representative would have allowed him to drop the asylum request. On May 11, the court will consider whether to remove the boy's great-uncle, Lazaro Gonzalez, from the case when it hears arguments on the asylum request.

The 11th Circuit Court of Appeals in Atlanta continued its order of earlier this week when it barred "any and all others" including the Justice Department from allowing Elian to be taken to the homes or offices of Cuban diplomats, where he might be held beyond the authority of U.S. courts.

In Miami, Mayor Joe Carollo fired the city manager after the mayor demanded the firing of the police chief for not alerting him about the raid to seize Elian. Mr. Carollo had asked City Manager Donald Warshaw to fire Police Chief William O'Brien, saying he "lost all confidence" in the chief.

The appeals court ruling Thursday means the Miami relatives will have their day in court. On Tuesday, the relatives who assumed custody of the boy after his rescue at sea on Thanksgiving Day asked the court to order that they be allowed to visit the boy, now staying with his father, and that their attorneys and doctors be given "regular and reasonable access to him" pending the asylum hearing next month.

The relatives also sought the appointment of an outside guardian to look after him pending the hearing.

"The government has offered to supply the court with biweekly reports from a psychiatrist, retained by the government to monitor and examine" the boy, and from a social worker, to be hired to monitor his care, the court said. "The court accepts these offers."

The Justice Department and the boy's father had opposed the appointment of a neutral guardian to represent the 6-year-old.

On Wednesday, Juan Miguel Gonzalez asked to be named as Elian's only legal representative in the pending asylum case. In an emergency petition, he said he should be allowed to "assert his rights as a father" and asked the court to reject a bid by Lazaro Gonzalez to have his lawyers and doctors see the boy and to speak for him.

The petition, by attorney Gregory Craig, said only the father had the right to "speak on behalf of Elian, who has no other suitable representative." He said the relatives sought to use "machination and legal sleight of hand to turn this court into the arbiter of an intra-family dispute."

The relatives countered that "no one is seeking here to rip him away from the father, who he has now been reunited with, but to determine the issues independent of his father or the influences upon his father politically or otherwise."

Attorneys for the relatives said Thursday Elian's father was trying to "short-circuit" the legal fight over his son and return to Cuba with the boy without an appeals court hearing.

"If he can convince the court to dismiss the case because the appeal is not necessary, then it would be over, and he could go wherever he wanted to go," said Miami attorney Richard Sharpstein. "The goal is to short-circuit and end this and have him go back to Cuba."

Lazaro Gonzalez asked for asylum for the boy, but his petition was rejected by the U.S. Immigration and Naturalization Service on the grounds that only his surviving parent, his father, could speak for the boy. That ruling was upheld, although the appeals court in Atlanta later ordered that Elian could not be removed from the United States until his May hearing, saying his application for asylum had "arguable merit."

"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 said.

The court rebuked the INS for its handling of the boy's asylum request, saying it appeared the agency never sought to interview Elian "about his own wishes." 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, adding that while it recognized the government's authority over immigration matters, it failed to see how an injunction in the case "infringes" upon the government.

The Senate Judiciary Committee said it would hold a hearing Wednesday on the raid, but there was some confusion as to whether Attorney General Janet Reno would be invited to testify.

Committee Chairman Orrin G. Hatch, Utah Republican, told reporters late Wednesday he did not plan to call Miss Reno, but would likely call one of her deputies and officials of the U.S. Immigration and Naturalization Service. But Senate leaders and committee members said Thursday that Mr. Hatch was talking about inviting Miss Reno.

"The attorney general will be asked to appear," Majority Leader Trent Lott, Mississippi Republican, said shortly after discussing the matter with Mr. Hatch during a vote on the Senate floor.

Committee spokeswoman Jeanne Lopatto said Mr. Hatch is still considering the witness list, which will not be complete until late Friday or early next week.

Mr. Hatch told reporters Wednesday he was likely to call Juan Miguel Gonzalez or Mr. Craig. He will not call members of Elian's Miami-based family, although he will call their attorney or representatives.

At her weekly press briefing, Miss Reno again defended the pre-dawn Saturday raid, during which the boy was seized from the Miami home of his relatives, and the government's decision to end negotiations with the relatives.

Miss Reno said that at 4 a.m., the relatives through intermediaries said a government requirement that Elian be taken pending the court hearing to his father in Washington was a "deal-breaker."

"I had the feeling we were in the same position we had been in, with the goalposts changing, and it was at this point, if it were a deal-breaker, we should bring the negotiations to an end," she said, adding that the Miami relatives eventually said the government would have to "use force to take the child."

Miss Reno said that during the raid, several bystanders tried to throw ropes around the house as agents tried to enter and that a couch was pushed up against the door to limit entry into the house. That was why agents used a battering ram to enter the house.

"Clearly, the agents had to be in force … there had to be a show of force, not a use of force, to show that we were in control," she said.

Justice Department officials said their conduct of the Elian Gonzalez case, including the raid, had cost through Monday more than $578,000 since November. The estimate, described as preliminary, does not include the costs of the family's stay at Andrews Air Force Base from Saturday until Tuesday.

The largest amount, about $374,000, went to the U.S. Immigration and Naturalization Service for the cost of training and housing 131 agents who participated in the raid and Elian's government airplane flight to Washington. The U.S. Marshals Service, which provided 20 deputies for the raid and security for Elian's father in Washington and the entire family since Saturday, spent $161,000.

• Sean Scully contributed to this report.

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