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Judge Says Elian Should Be Returned to Cuban Father

TIMES STAFF WRITER

Dismissing a “well-intended” plea that Elian Gonzalez be granted an asylum hearing, a federal judge on Tuesday agreed with immigration officials who have ruled that the 6-year-old boy should be returned to his father in Cuba.

In a 50-page order, U.S. District Judge K. Michael Moore said that although he sympathized with the boy’s Miami relatives, who have been battling to keep him here, he could find no legal basis to countermand a January decision by the U.S. Immigration and Naturalization Service.

That decision, affirmed by Atty. Gen. Janet Reno and supported by President Clinton, found that only the boy’s father in Cuba could speak for the child. And Juan Miguel Gonzalez says he wants the boy to come home.

In Washington, Reno lauded the ruling, saying, “It is time for this little boy, who has been through so very much, to get on with his life at his father’s side.”

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Reno added that she hopes the reunification will take place in “an orderly, fair and prompt way.” She did not indicate, however, whether the government will do anything to repatriate the child before his Miami relatives have a chance to further appeal the decision.

Elian has been at the center of an international custody dispute since Nov. 25, when he was found adrift at sea in an inner tube. His mother and 10 others drowned in an attempt to enter the U.S. illegally aboard a small boat that sank.

The day after his rescue he was put into the temporary custody of his great-uncle Lazaro Gonzalez.

In siding with the government’s position, Moore wrote: “In the final analysis, a well-intended lawsuit filed on behalf of and for the benefit of Elian Gonzalez ran headlong into an equally well-intended attorney general, sworn to uphold the letter and spirit of the immigration law. . . .”

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Expressing disappointment, attorneys representing the Miami relatives of Elian said they would likely appeal the ruling. At the same time, the lawyers put a positive spin on what one called “two-thirds of the ruling,” in which Moore in effect agreed that the court had jurisdiction over the case and that the Miami family had standing to bring a lawsuit.

“Elian has not had his day in court,” said attorney Spencer Eig. “But today’s ruling gives us some hope that after the entire process, including appeals, he just may.”

The Justice Department has faced increasing criticism for failing to move more swiftly to enforce the INS’ decision to return Elian to Cuba rather than allowing the matter to linger in the courts. With the boy’s Florida relatives now preparing to appeal Tuesday’s decision, Reno declined to speculate on how the legal battle may play out.

Moore issued his ruling 12 days after hearing arguments from the Miami relatives’ lawyers that Elian had a right to apply for political asylum, even as a 6-year-old. The government countered by saying that only his father could make such an application and asked that the lawsuit be dismissed.

In backing the INS decision, Moore said that “when dealing with a child this young, the immigration law, like other areas of the law, looks to the wishes of the surviving parent.”

The judge also echoed a wish voiced earlier by Reno that Elian’s relatives, both here and in Cuba, settle the custody dispute among themselves. But that seems unlikely, as the split between the two factions has grown bitter.

“At age 6, Elian’s recorded past is a profile of survival and courage in the face of adversity and the loss of his mother at sea,” Moore wrote, adding: “Even this well-intended litigation has the capacity to bring about unintended harm.

“In light of the attorney general’s clearly articulated views on the matter of whether Elian Gonzalez should return home, as well as the reality that each passing day is another day lost between Juan Gonzalez and his son, the court can only hope that those on each side of this litigation place the interests of Elian Gonzalez above all others.”

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In Cuba, President Fidel Castro has made the boy’s return a national cause, the focus of marches and rallies outside the U.S. Interests Section in Havana. In response to Moore’s ruling, the Cuban government issued a statement cautioning against “false optimism or excessive illusions” about what might happen next.

“We must analyze with serenity and calm the apparently positive news, without underestimating the obstacles and difficulties we still need to overcome in order to achieve the kidnapped boy’s return to Cuba,” the statement read.

In Miami, many exiles said they feel the child should remain here. Some in the Cuban community contend that life on the communist island is so bleak and oppressive that Elian’s father should renounce his claim to the child.

Marisleysis Gonzalez, the 21-year-old daughter of Lazaro Gonzalez, who has become the child’s surrogate mother, reacted to Moore’s ruling with sadness. “They never look at what this 6-year-old wants,” she said outside the courthouse. “To this point, they haven’t looked at what he needs, what he feels, what his wants are.”

Marisleysis Gonzalez insists that Elian, of his own free will, has expressed a desire to stay in Miami.

Several government officials, including Republican presidential hopeful George W. Bush, decried Moore’s long-awaited ruling. Republican Reps. Lincoln Diaz-Balart and Ileana Ros-Lehtinen of Florida said in a statement that it was a “sad day” for the rule of law in the United States.

In Washington, Bush urged the Clinton administration not to send Elian back. He said the case should be decided by a family court, not by “a Clinton-Gore Justice Department whose record of putting politics ahead of the law does not inspire confidence.”

Bush’s Democratic opponent, Vice President Al Gore, did not specifically say what should happen to the boy but said the outcome should be “based on due process of the law.”

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Although Elian talks frequently to his father in Cuba by telephone, in recent weeks Juan Miguel Gonzalez has complained that the conversations are often cut short and interrupted.

Many in Miami continue to think that the boy’s father should come to Florida to claim his son. But Juan Miguel Gonzalez, 31, has insisted that he has no intention of coming here, relying instead on the promise by INS and Reno that his son will be returned.

Meanwhile, it wasn’t clear if Elian himself understands any of the legal wrangling. On a normal weekday, he attends the private Lincoln-Marti School and often stays for an hour after school for an English lesson.

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Times staff writer Eric Lichtblau in Washington contributed to this story.


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