- The Washington Times - Friday, June 2, 2000

A federal appeals court ruled Thursday that Cuban castaway Elian Gonzalez may not seek asylum from Fidel Castro over his father's objections.
The pleas of the boy's Miami relatives to keep him in the United States were rejected.
However, the unanimous ruling of a three-judge panel prevents Elian from being taken from the United States immediately. His Miami relatives won a delay of 14 days to appeal to the Supreme Court.
That sparked an instant appeal to the Supreme Court for an emergency order to bar removal to Cuba on June 15 14 days hence of the child his attorneys describe in court papers as "the most famous six-year-old in the world."
Thursday's decision, which becomes final on that date, hinted broadly the three judges unanimously wished the law allowed them to rule the other way.
"No one should doubt that, if [Elian] returns to Cuba, he will be without the degree of liberty that people enjoy in the United States. Also, we admit that re-education, communist indoctrination, and political manipulation of [him] for propaganda purposes, upon a return to Cuba, are not beyond the realm of possibility," said the 11th U.S. Circuit Court of Appeals panel comprising appointees of Presidents Reagan, Bush and Clinton.
In the absence of a law specifically covering the extraordinary situation, however, they deferred to the Immigration and Naturalization Service's discretion in refusing asylum requests signed in a child's block letters and submitted by his great-uncle, Lazaro Gonzalez, and a cousin, Marisleysis Gonzalez, who cared for the boy after two fishermen found him floating offshore in an inner tube last Thanksgiving Day two days after his mother drowned trying to reach the U.S. shore.
"Make no mistake about what happened today," said the father's attorney, Gregory Craig. "This case has been decided, and in our view there is no longer any doubt about the ultimate outcome.
"It is now time to end this chapter of Elian's life and to let this family go in peace," said Mr. Craig, who urged the Miami relatives to drop the appeals.
"Their love and their concern are best expressed today by calling a halt to this legal battle," he said at a press conference outside his Washington office, accompanied by Elian's father, Juan Miguel Gonzalez.
Said Mr. Gonzalez: "I love him very much. And, really, I want all this to end and, for once and for all, to leave, to go home, along with my son and all my family. And for this unnecessary delay to end." He has said he would leave the country with Elian immediately whether the 11th Circuit ruled for or against him.
Attorney General Janet Reno, who orchestrated an armed pre-dawn raid of the Miami relatives' house to seize the boy, said she was "pleased" the court had "upheld our decision that only Juan Miguel Gonzalez can speak for his son, Elian, on federal immigration matters."
"These three federal appellate judges have now joined with a federal district court judge and a Florida state court judge in recognizing the authority of the INS to make this determination," she said. "This is a very important step in achieving the goal we have sought from the very beginning to give Juan Miguel and his family the opportunity to return to a life together."
She said, however, Elian would remain in his father's care and he would not be able to leave the country until an injunction by the appeals court ordering him to stay in the United States is lifted.
Administration officials praised the decision, led by President Clinton, who expressed satisfaction in Berlin that his policies were not overturned.
"I have supported the Justice Department's conclusion that Elian's father, Juan Miguel Gonzalez, is the one best suited to speak for his child, and I am pleased that the court has upheld the Justice Department's determination," Mr. Clinton said.
Both major-party presidential candidates said the custody issue should be resolved in family court and Republican George W. Bush called on Vice President Al Gore to persuade the president to allow such a hearing.
About 100 demonstrators screamed, cried and swooned outside the house on Northwest Second Street in Miami, where Elian stayed five months with relatives until the infamous April 22 raid when armed and masked Border Patrol officers led the search party that served an arrest warrant for Elian and brought him to his father in Maryland.
"The Constitution is dead," said Roxana Rodriguez, a secretary in the crowd outside the house. "There is no justice. Democracy and freedom have been thrown to the trash."
Less than 15 minutes after the ruling was made public, Miami lawyer Kendall Coffey, representing the Miami relatives, asked Supreme Court Associate Justice Anthony M. Kennedy to issue an emergency order preventing his father or the Immigration and Naturalization Service from shipping him "to Cuba, truly a land of no return for U.S. purposes." He said he "lodged" the request with the high court early yesterday morning to be certain Elian could not immediately depart the United States.
"The rights of Elian have been violated, rights that even a small alien boy enjoys under our Constitution," Mr. Coffey told the Supreme Court, arguing that his young age requires more consideration, not less.
After digesting the 11th Circuit order in which a footnote said no action could be taken before June 15, Mr. Coffey said, he sent a letter informing the Supreme Court "there is no immediate necessity to rule on the application."
"We're at least a day or two away from having a clearer sense of what to do. Everything is under active consideration right now," Mr. Coffey said in an interview.
Mr. Coffey, who was U.S. attorney in Miami early in the Clinton administration, said he now must decide whether to seek a review by the full 11th Circuit or follow through on his promise to file a formal request for Supreme Court review within 10 days in pursuit of an expedited hearing before the summer recess.
To win a stay, he must demonstrate imminent, irreparable harm and a likelihood that the Miami relatives eventually will win their case.
"A child's right to seek asylum independent of his parents is well established," Mr. Coffey said as the basis for a belief he will prevail.
He claimed the irreparable harm to be avoided is the prospect of allowing Elian to become a Havana trophy.
"Whatever may be the true wishes of his actual father, Elian's future as a prized trophy of the Castro regime will not be within his father's control," Mr. Coffey told the Supreme Court. "No possible statement by the Clinton administration, nor even an order of any U.S. court, could prevent further abuse and harm in Cuba."
All three 11th Circuit judges acknowledged that prospect as a reality in a sometimes-sympathetic opinion that said their hands were tied.
"It is the duty of the judicial branch not to exercise political will, but only to render judicial judgment under the law," Circuit Judge James L. Edmondson, the Reagan appointee, wrote for himself and for Circuit Judges Joel F. Dubina and Charles R. Wilson, respectively appointees of Presidents Bush and Clinton.
"Because the pre-existing law compelled no particular policy, the INS was entitled to make a policy decision. The policy decision that the INS made was within the outside border of reasonable choices," the opinion said.
"The court neither approves nor disapproves the INS' decision," the judges said, adding that "reasonable people can disagree" about INS' choices.
"The important legal question in this case, therefore, is not whether plaintiff may apply for asylum; that a six-year-old is eligible to apply for asylum is clear. The ultimate inquiry, instead, is whether a six-year-old child has applied for asylum within the meaning of the statute when he or a non-parental relative on his behalf, signs and submits a purported application against the express wishes of the child's parent," the court said, upholding the INS decision not to allow that.
"The INS determination that ordinarily a parent (even one outside of this country) and more important, only a parent can act for his six-year-old child (who is in this country) in immigration matters also comes within the range of reasonable choices," the court said.

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