Stalemate Over Fate of Elian Continues

The legal fight over Cuban castaway Elian Gonzalez stepped up Friday as the Justice Department asked an appeals court to order a reunion with his father and the boy’s Miami relatives invoked a United Nations human rights declaration in their effort to prevent his return to Cuba.

In pouring rain in Miami, demonstrators in Little Havana continued to show their support for 6-year-old Elian’s Florida relatives, even as Washington warned family members that they are breaking the law.

The boy’s father has not been willing to go to Florida and the Miami relatives have refused to voluntarily give the boy up from their small home in the largely Cuban American community there. Elian has lived with his relatives since he was rescued more than four months ago off Florida’s coast. His mother and 10 others drowned when their raft sank after they had fled Cuba for the United States.

Government lawyers asked the 11th U.S. Circuit Court of Appeals in Atlanta not only to strike down a temporary stay precluding the Immigration and Naturalization Service from transferring the boy to his father but also to issue a judicial order mandating that the Miami relatives give the boy up.

The government, in a brief filed with the appellate court, said that the Miami family is acting with “unclean hands” because Elian’s great-uncle Lazaro Gonzalez “defied” an INS directive to take the child to a Miami airport so he could be taken to his father in Washington.

The government described Juan Miguel Gonzalez as “a father who loves” Elian and characterized Lazaro Gonzalez, who is Juan Miguel’s uncle, and his Miami family as “more distant relatives” even though they may have formed “a strong emotional attachment to a child at a particular time.”

“But under the Constitution, laws and human experience of this country,” the government said in its legal papers, “that attachment does not give the [Miami] relatives a right to keep the child from his parent or allow a court to impose such a separation.”

Government lawyers added, however, that they would be willing to order the father to remain in the United States if the Miami faction voluntarily turned the boy over to him. Juan Miguel Gonzalez has been staying in the Washington area since his arrival in the United States last week.

In the past, Atty. Gen. Janet Reno has said only that she has encouraged the father to remain in the United States if he is given the boy, at least through May 11, when an appellate court hearing is scheduled on the Miami family’s lawsuit to keep Elian.

Juan Miguel Gonzalez, a Cuban citizen, said through his lawyer that he is willing to remain in the United States through the appeals process as long as he has custody of his son.

On Friday, he had no comment on the issue. But, after touring the National Cathedral in Washington, he paused in a doorway and flashed the double thumbs-up sign. “I will return with him” to Cuba, he told reporters.

Visitors who have talked to him said that he is becoming increasingly irritable because the matter is dragging on.

“He continues to say that, when he has his son, when he is able to hold him and talk to him himself, then conversation with the family [in Miami] and all other things will be possible,” said Joan Brown Campbell of the National Council of Churches, who has visited him several times.

He is frustrated, she said, that the Miami relatives have “set all these ground rules and hoops” to go through before there can be any reunion.

The three-member appellate court panel in Atlanta did not rule Friday and observers said it could be several days before any decision is announced. Even if the ruling goes against the Miami relatives, they could then attempt to take their case to the Supreme Court.

On a second front, lawyers for the Miami relatives went to court in Washington and asked a federal judge to bar Elian’s deportation until the government can certify that Cuba is in compliance with international human rights laws.

If not, the family said, Elian would be returning to a communist country where he could be persecuted for seeking political asylum in America.

“He would be politically indoctrinated to a much larger extent than others” in Cuba, said Miami family lawyer Henry H. Kennedy Jr.

A hearing was scheduled for Wednesday on the claim that it would be a violation of Elian’s human rights to send him back to Cuba, if the United States believes Cuba is not in compliance with the U.N. Declaration of Human Rights.

Meanwhile, law enforcement officials continued to consider other options for reuniting the boy with his father.

“Right now, we’re in a new phase of this case,” said INS spokeswoman Maria Cardona. “The [Miami] family is now in noncompliance of lawful INS instructions. We are now going to start implementing our enforcement plans to reunite Elian with his father.”

At a political event in Atlanta, President Clinton again defended Reno’s work on the Elian custody battle.

“The rule of law has got to be upheld,” Clinton said. “If we don’t do it here, where do we stop?”

Clinton added that Juan Miguel Gonzalez “ought to be able to see his son.”

In Miami, a line of heavy, blue-black thunderstorms lashed the city Friday morning, flooding streets, slowing freeway traffic to 35 miles an hour and spawning at least one tornado.

Scores of flights were diverted from South Florida airports and Miami International Airport was shut down for an hour.

But the driving rain did not keep Cuban exiles from gathering just after a gray dawn in front of the Little Havana home of Lazaro Gonzalez.

“I’ve been here in the sun,” said 79-year-old Ovidio Couto, pushing up his shirt sleeve to show his peeling, sunburned forearm, “and I’ll be here in the rain.”

Earlier this week, a large blue tarp was rolled out over part of Northwest 2nd Street where demonstrators gather. On Friday morning it was extended, tied to neighbors’ fences and anchored with ropes braided through grates over storm sewers.

By mid-morning, more than 100 people were huddled underneath, standing in water at times almost up to their ankles. But few seemed to mind.

With the rain falling hard, Lazaro Gonzalez came out of the house and approached his supporters, who cheered him like the folk hero he has become in Miami’s Cuban American community.

In the afternoon, he issued an open letter to the community asking government officials to suspend all action in the case until after Easter, April 23, in observation of Easter Week.

The government then sent him and his family a letter, reminding them that they are in violation of Reno’s directive to turn the boy over.

“You have no legal basis to continue to exercise control over Elian,” the Justice Department said in the letter.

Working the crowd, Lazaro Gonzalez reached over police barricades to shake hands, posed for pictures and stopped for brief prayers with older supporters, who have charged the vigil with the fervor of a religious revival.

“It’s very hard to work with all this going on,” said Rene Iturrey, 41, who again left his real estate office to stand outside the home where Elian now lives.

“This is so important to Cubans here because we all have a story about Cuba and [Cuban dictator Fidel] Castro. I don’t think others in the U.S. know how we feel and why.”

*

Serrano reported from Washington and Clary from Miami. Staff writer Lisa Getter in Washington contributed to this story.