Ruling Moves Elian Closer to Return to Cuba

The father of Elian Gonzalez took a big step toward returning to Cuba with his son Thursday when a federal appellate panel ruled that immigration officials acted reasonably in denying the 6-year-old child an asylum hearing.

The unanimous ruling by a three-judge panel of the U.S. 11th Circuit Court of Appeals in Atlanta was a victory for the Clinton administration in its efforts to resolve the bitter international custody battle. The case has exacerbated tensions between the U.S. and Cuba, sparked a bitter rift in a large family that was once close and roiled this city with boisterous demonstrations and political upheaval.

But the key question--just when the boy and his father, Juan Miguel Gonzalez, might be allowed to leave the United States--remained muddled, depending on whether the boy’s Miami relatives appeal. If there is no appeal, they could leave in three weeks, officials said.

“I am very happy today for the decision made by the court,” said Juan Miguel Gonzalez, speaking in Spanish at a news conference outside the Washington offices of his lawyer, Gregory B. Craig. “It’s what I’ve always felt in the deepest part of my heart. A child should always be with his parents. And as a father, I should be speaking on behalf of my son.”

Breaking into English as a few anti-Castro protesters waved handmade signs at him, Gonzalez concluded: “I want to thank the American people. Thank you.”

In its 33-page ruling, the Circuit Court judges made clear that they were not weighing the merits of an asylum claim on Elian’s behalf and took note of the realities of Cuba. “No one should doubt,” the judges wrote, “if plaintiff returns to Cuba, he will be without the degree of liberty that people enjoy in the United States.”

However, the judges said, the U.S. Immigration and Naturalization Service “was within the outside border of reasonable choice” when it found that only the boy’s father could speak for Elian. In upholding the March decision by a District Court judge in Miami, the court said the INS had to devise a policy since no federal law addresses the issue of whether such a young child can seek asylum against the wishes of his parents.

Miami Relative Has 14-Day Window

The court gave Lazaro Gonzalez, Elian’s great-uncle, 14 days to appeal the panel’s ruling to the full 11th Circuit. If he decides not to do so, Atty. Gen. Janet Reno said that Thursday’s ruling would take effect a week after that--in 21 days--and that the court order barring Elian and his father from leaving the country would then be lifted.

But attorneys said father and son could be allowed to leave the U.S. sooner if the Miami relatives decide to appeal their case to the 11th Circuit or the Supreme Court and are turned down.

The relatives did not indicate Thursday what they plan to do next. Lazaro Gonzalez’s lawyers filed an emergency application with the U.S. Supreme Court Thursday morning even before the appellate ruling was handed down but later withdrew that application, court officials said. Legal observers believe it is unlikely that the Supreme Court would agree to hear the case, in part because immigration law is fairly clear on the question of whether the INS has the authority to decide such cases.

Indeed, the 11th Circuit panel in its ruling Thursday appeared to grudgingly arrive at that same conclusion.

The judges suggested that the INS could have handled the case differently and questioned the government’s refusal to take into account the life that Elian might face in Cuba, saying that “re-education, communist indoctrination and political manipulation [of Elian] for propaganda purposes . . . are not beyond the realm of possibility.”

But the judges said that “considering the well-established principles of judicial deference to executive agencies, we cannot disturb the INS policy in this case just because it might be imperfect. . . .”

Elian, who was seized by armed federal agents from his Miami relatives in an April 22 raid, was one of three people who survived when a small boat capsized during an attempt to make the crossing from Cardenas, Cuba, to Florida in November. Among those who perished was Elian’s mother, Elizabeth.

Found alone and adrift in an inner-tube, Elian was placed in the custody of his great-uncle, a man he had met once about 15 months earlier when Lazaro Gonzalez visited the family in Cuba.

INS officials, backed by Reno, ruled that Elian should be returned to his father, who was unaware of the trip to the U.S. But Lazaro Gonzalez, with the support of many anti-Castro Cubans here, has insisted that the boy would have a better life in the U.S.

Reno said Thursday that she has no regrets about how her department handled the case. “I think justice has been done,” she said, adding that the important thing now is for “a remarkable little boy” to resume a normal life outside the media glare.

Hopes ‘This Would Come to an End’

Reno and Justice Department officials saw the ruling as an important affirmation of INS authority to handle such cases without judicial interference, but Juan Miguel Gonzalez’s mind was on less legalistic questions.

He told reporters that he hoped “that this would come to an end, and we will finally go back home, with my son and my whole family, and that this delay will not continue unnecessarily.”

In Miami, many Cuban exiles accepted the decision with a combination of anger and resignation. About 100 people gathered early Thursday outside the Little Havana home where Elian lived with Lazaro Gonzalez and his family for five months, even though the Gonzalezes have moved out. Some waved Cuban flags and shouted abuse at the Clinton administration.

Although Miami police were given about 12 hours’ warning of the ruling to prepare for possible street demonstrations, there were virtually none. Exile leaders, including Jorge Mas Santos, chairman of the Cuban American National Foundation, asked those who opposed the ruling to respect the decision and remain calm.

“Despite our disappointment, we respect and appreciate the rule of law in the United States,” said Mas Santos.

The Miami family’s lawyers, appearing at a news conference, seemed subdued. While pointing out that the court denied a motion by Juan Miguel Gonzalez to replace Lazaro Gonzalez in the asylum case, Kendall Coffey offered what sounded like a farewell.

“This is a very painful moment,” said Coffey, a former U.S. attorney. “We’re obviously disappointed by the appellate outcome.”

Coffey, one of several lawyers representing Lazaro Gonzalez, said that, although the court’s ruling went against the Miami relatives, “this is not a stand-up-and-applause day for the INS.”

‘They Know He’s Going to Run to Us’

With Lazaro Gonzalez and his 21-year-old daughter, Marisleysis, by his side, Coffey praised the family for the “selfless, courageous, inspiring battle that they have made on behalf of this child.”

Marisleysis spoke of her wish to see Elian again. “I think the reason why they don’t let us see the boy is that they are scared of the boy’s reaction when he sees us. They know he’s going to run to us.”

The Miami relatives’ cause drew a continued drumbeat of support from Republicans on Capitol Hill, who renewed their criticism of the Clinton administration’s handling of the protracted affair.

Sen. Orrin G. Hatch (R-Utah), chairman of the Senate Judiciary Committee, complained Thursday that his staff was still encountering “delays and difficulties” in getting information from the Justice Department about what he called “the Holy Saturday raid”--the Easter weekend operation in which federal authorities seized Elian in Miami. Hatch said he expects a hearing on the matter to be held later this month.

On the campaign trail, each of the leading presidential contenders said they wished that the custody dispute could be settled in a state family court. Speaking in Lake Tahoe, Nev., Texas Gov. George W. Bush took note of the similarities between his view and that of Al Gore by calling on the vice president to take the matter up with Reno.

Gore, during a radio interview in Cincinnati, said, “I think this decision must be accepted with respect as the appeals process continues, at least for a short time.”

Times staff writers Jim Gerstenzang and Nick Anderson in Washington, Julie Cart with Gov. Bush and Michael Finnegan with Al Gore contributed to this story. Also contributing was Times researcher Anna M. Virtue in Miami.