Elian Must Stay in U.S. Until Asylum Ruling, Court Says

A federal appeals court ruled Wednesday that Elian Gonzalez must remain in America while it continues to assess his legal right to seek asylum, but the decision does not bar Atty. Gen. Janet Reno from taking the boy from his Miami relatives and reuniting him with his father.

And the attorney general, moments after being apprised of the long-awaited ruling from the U.S. 11th Circuit Court of Appeals, took special note of the fact that “it does not say that the boy cannot be reunited with his father in this country.”

Hinting that she may still attempt to transfer Elian to his father, Reno added: “We are going to . . . consider all our options and take the course we deem appropriate under the circumstances.”

In Miami’s Little Havana community, a hundred people keeping vigil outside the home where 6-year-old Elian is living erupted in applause and jubilation at the announcement of the ruling, even though many realized that it was not clear what the complicated decision means for the boy’s future.

Miami lawyers later cautioned the crowd that the ruling should be seen as a temporary victory and that they will return to court May 11 to press their case for asylum further.

Also upbeat was Lazaro Gonzalez, the boy’s great-uncle, who has been caring for him since he was shipwrecked and his mother drowned in November while sailing from Cuba to Florida.

“The Gonzalez family continues to believe in the laws of the United States,” Lazaro said, “and we will continue to pray, so that all of this can come true for Elian--that he may be able to remain where his mother wanted him to be, in a country of freedom.”

In issuing its ruling in Atlanta, a panel of the 11th Circuit did not address the question of the moment: whether Elian should be cared for in Miami by Lazaro Gonzalez and his family or in Washington, where his Cuban father, Juan Miguel Gonzalez--the nephew of Lazaro Gonzalez--eagerly awaits their reunion.

The ruling noted that the court was not concerning itself with that question. “We need not decide where or in whose custody [Elian] should remain while this appeal is pending,” the court said.

Juan Miguel Gonzalez has told government officials that he would not immediately take the boy back to Cuba but would remain in Washington until the legal disputes are ironed out.

Under Wednesday’s court order, Reno is required to make sure that the father--or anyone else--does not take the boy to Cuba.

Lawyer Calls for Father-Son Reunion

After hearing the court’s decision, Gregory B. Craig, Juan Miguel Gonzalez’s Washington lawyer, immediately called--once again--for a father-son reunion.

“The 11th Circuit’s opinion places the obligation to act squarely on the shoulders of the attorney general . . . ,” Craig said. “It is unconscionable to wait one day longer.”

For a case that has become more complicated each day, the three-member panel of appellate judges acknowledged that “by its nature this order sets out more questions than it answers.”

They added that “no one should feel confident in predicting the eventual result in this case.”

At the heart of their finding was that Congress, in enacting laws regarding asylum for political refugees, never said how old a person must be to seek asylum in the United States.

Rather, they said, Congress merely said that “any alien” had the right to apply for asylum.

“If Congress had meant to include only some aliens, perhaps Congress would not have used the words ‘any alien,’ ” the court said.

In fact, it appears that Elian did properly seek asylum, the judges said.

“Although a young child,” the court said, Elian “has expressed a wish that he not be returned to Cuba. He personally signed an application for asylum.

“[His] cousin, Marisleysis Gonzalez, notified the INS that [Elian] said he did not want to go back to Cuba. And it appears that never have INS officials attempted to interview [Elian] about his wishes.”

The judges noted that Lazaro Gonzalez helped Elian press his claim for asylum to remain in the United States.

They described Lazaro as “no stranger” to the child.

The Immigration and Naturalization Service placed Elian in Lazaro’s care when he arrived in this country, and “Lazaro is a blood relative,” the court said. “When Lazaro submitted applications for asylum on [Elian’s] behalf, Lazaro was the INS’ designated representative to take care of [Elian] and to ensure his well-being.”

In the opinion, the judges dwelt on the elaborate INS guidelines for dealing with children in asylum matters, especially when a parent disagrees with the child’s wishes. Those guidelines--which set out requirements for interviewing and evaluating a child seeking asylum--were never followed, the court said.

Finally, the court concluded, Elian’s claim to stay in America “has an appeal of arguable merit.”

But, the panel said, “the true legal merits of this case will be finally decided in the future.

“More briefing is expected. We intend to hear oral argument. We need to think more and hard about this case for which no sure and clear answers shine out today.”

Ruling Increases Pressure on Reno

The ruling appears to increase pressure on the attorney general to forcibly take the boy from his Miami relatives--an option that Justice Department officials would not rule out Wednesday.

“Lawfully, yes, we have that authority,” said one Justice Department official who asked not to be identified. “What we need to do is to make a determination of what the right next step is.”

Earlier in the day, Reno, in an emotional statement, said that--if she is criticized for trying to avoid violence or avoid hurting Elian psychologically--then “I plead guilty.”

The next legal step comes Monday, when the Justice Department is scheduled to file another brief in the case.

The Cuban government’s reaction was muted, measured--and belated.

More than six hours after the court decision, the news finally crossed the 90-mile Florida Straits and reached the people of Cuba, where the state controls all media. It came in the final minutes of the daily “Round Table” television program that has micro-analyzed the latest developments in Elian’s case for months.

With Cuban President Fidel Castro in the studio audience--a “Return Our Son” poster behind him--moderator Randy Alfonso led a show that went on more than two hours longer than its usual two-hour time slot without mentioning the news from Atlanta until the end of the program.

A far more strident reaction to the appellate court ruling is expected on the streets of the Cuban capital later today at an official mass rally in Cuba’s five-month “Free Elian” campaign.

In Miami, the ruling set off a joyful block party in the street in front of Lazaro Gonzalez’s home. Cuban exiles cheered, chanted “Elian no se va”--Elian is not leaving--and sang both the American and Cuban national anthems.

Prayers were said, Cuban flags waved and Elian emerged from the house to smile and wave to the throng. He then walked forward to finger the beads of rosaries hung over the front fence.

The only note of opposition came from above, when a small plane passed overhead trailing a banner reading, “Send Elian home--the taxpayers,” an apparent reference to a report this week that the continuing public turmoil has led to extra costs topping $1 million, chiefly for police overtime.

Kendall Coffey, one of the attorneys representing the Miami family, cautioned those exiles who have invested time and hope in the fight to prevent the boy’s repatriation to realize that the court ruling is not the last word.

“We think it is plain that this is a very serious appeal [but] at the same time no one should make predictions on the ultimate outcome based on this order,” he said. “This is a preliminary order. It is not a final decision.”

Coffey then called on the government “to take no precipitous actions between now and the time the appeal is heard because we think it is so clear that the rights of the child have to be heard without further disruption, without further dislocation, without further trauma of any sort.”

Coffey referred to the “days and hours of unrelenting pressure” Lazaro Gonzalez and his family have been under, as the fight to keep Elian in the United States has put them in an unceasing media spotlight while becoming a cause celebre for the Cuban exile community in Miami.

And while a resolution of the bitter custody battle remains elusive, many in Miami still believe that a family meeting--between the boy’s father and his great-uncle--is key. A meeting that was to take place between the two sides earlier this month fell apart after Lazaro refused to agree to turn the boy over to his father at that encounter.

“We have no doubt that Elian belongs with his father,” said Ramon Saul Sanchez, a Miami exile leader who often organizes anti-Castro protests on behalf of his Democracy Movement. “But we say he does not belong in a police state.”

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Serrano and Lichtblau reported from Washington and Clary from Miami. Times staff writer Mark Fineman in Havana contributed to this story.