Judge dismisses political asylum lawsuit filed on behalf of Elian
By Alex Veiga, Associated Press, 03/21/00
MIAMI -- A federal judge Tuesday refused to block the U.S. government from sending 6-year-old Elian Gonzalez back to his father in Cuba, saying the court has no right to second-guess the attorney general on matters of asylum.
Twelve days after hearing arguments in the case, U.S. District Judge K. Michael Moore dismissed the lawsuit filed by Elian's great-uncle in Miami. The judge said that "each passing day is another day lost between Juan Gonzalez and his son."
Elian's Miami relatives said they will appeal, while in Washington, Attorney General Janet Reno said she will consult with other Justice Department officials on how to reunite Elian with his father in a prompt and orderly way. But she did not set any deadline.
Justice Department officials have made clear that they want to avoid any steps that would traumatize the boy or provoke a confrontation with Miami's large Cuban exile community.
"It has been four months since Elian has been separated from his father and lost his mother," Reno said in a statement. "It is time for this little boy, who has been through so much, to move on with his life at his father's side."
Elian's fate has been debated since he was found clinging to an inner tube off Florida on Thanksgiving. His mother and 10 other Cubans drowned when their boat capsized during an attempt to reach the United States.
Since then, he has been living with relatives in Miami's Little Havana section and has been the subject of heated protests there and in Cuba.
In early January, the Immigration and Naturalization Service, in a decision approved by Reno, ordered Elian returned to his father. The Miami relatives responded with the lawsuit.
"The determination to grant asylum is a matter within the discretion of the attorney general," the judge wrote, adding that he found "no abuse that would warrant a contrary conclusion."
Lawyers for Elian's Miami relatives said they filed a notice of appeal with the 11th U.S. Circuit Court of Appeals in Atlanta. The appeal will focus on a provision of U.S. asylum law that says any alien has a right to apply for asylum, said attorney Kendall Coffey.
But in his ruling, Moore rejected that argument, saying the wording of the law contradicts itself and if taken literally could be harmful in some cases, such as when a child is kidnapped abroad and brought to the United States.
Attorneys for the Miami family have argued that the INS violated the boy's rights by refusing to grant him a political asylum hearing.
"Elian has not had his day in court, but today's ruling gives us some hope that after we complete the entire legal process, including appeals and reconsideration, he just may," said Spencer Eig, one of the family's attorneys.
But government lawyers said the INS did a thorough investigation and found no basis for an asylum claim. And they argued that Elian's father opposed asylum for his son, and that his wishes should be respected over those of the boy's great-uncle.
Reno said the judge's ruling reaffirms the Clinton administration's position that "only Elian's father can speak for his son on federal immigration matters."
While the boy's relatives back in Cuba say he has told them over the telephone that he wants to return to his homeland, the family in Miami claims he wants to stay.
"We're not talking about the family or the government or the politics, but they need to look at what this 6-year-old wants," said Elian's cousin Marisleysis Gonzalez. "They haven't looked at what he wants, what he feels and what his needs are."
Elian, who was at school when the judge issued his decision, returned home at about 6 p.m. EST and was greeted by supporters.
After the ruling, about 50 people peacefully protested outside the home where the boy has been staying. Many held signs in support of Elian's remaining in the United States, and some prayed for the boy.
"This is a triumph for Castro and his government, and that is what we have to stop," said Maximino Perez, 72, who was wearing a T-shirt with a cartoon drawing of Fidel Castro and President Clinton lying in bed smoking cigars.
Elian's great-uncle Lazaro Gonzalez thanked the crowd for its support. "We are not going to lose the faith," he said. "We are going to keep praying."
Elian Gonzalez smiles as he arrives for his first day of school at Lincoln-Marti School in Miami on Jan. 4. (AP Photo)
