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Court Keeps Elian in U.S. For Now

April 20, 2000

MIAMI (AP) _ Chastising the government for ignoring the wishes of a 6-year-old boy, a federal appeals panel on Wednesday ordered that Elian Gonzalez must remain in the United States until the court decides whether he should get an asylum hearing.

The court action, extending an earlier stay granted by one of the judges, marked the latest in a series of victories for Elian’s Miami relatives, who have been battling his Cuban father in an international tug-of-war over the child. The order, however, does not prevent the government from reuniting father and son in the United States.

In Little Havana, a tense vigil quickly became a celebration, with people dancing, crying and chanting ``God Bless America.″

``The Gonzalez family continues to believe in the laws of the United States,″ said Lazaro Gonzalez, the great-uncle who so publicly defied Attorney General Janet Reno’s demand to turn the boy over to his father last week. ``We will continue to pray ... that (Elian) may remain where his mother wanted him to be, in the life of freedom.″

Elian played on his beloved swing set and high-fived his second cousin, Marisleysis.

Reno, in Oklahoma City for the dedication of a memorial to the victims of the federal building bombing five years ago, said she would abide by the court order.

``But it does not disagree with my determination, it does not say that the boy cannot be reunited with his father,″ she said. ``I believe Elian should be reunited with his father and I said that all along.″

Wednesday’s order came from a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta. The government could seek to have the stay lifted by the full circuit court or by a U.S. Supreme Court justice. Or it could wait until a scheduled May 11 hearing before the federal appeals court on the asylum request by the Miami relatives. The Immigration and Naturalization Service had denied that request.

The Justice Department still could forcibly the boy from the home. Yet another option would be mediation, an avenue the judges encouraged the parties to follow. They did not order mediation, however.

In Cuba, state television reported that the Cuban Interests Section in Washington has sent a message to the U.S. State Department warning that armed men have been seen outside the Miami house where Elian is staying and that anti-Castro groups plan to use force to resist any handover of the boy. Reporters outside the house have not seen armed men around the home.

Wednesday’s 16-page ruling did not specifically forbid the INS from taking custody. It also did not address government efforts to reunite Elian with his father, who has been waiting in Washington since April 6. He wants to return to Cuba, though he has promised to remain in the country until the custody suit is settled.

Gregory Craig, the American attorney of Juan Miguel Gonzalez, said in Washington the boy should be reunited with his father in the United States.

``We call upon the United States government to take immediate action. It is unconscionable to wait one day longer. To do so will only cause more harm to Elian,″ Craig said.

The judges had harsh words for the government’s handling of Lazaro Gonzalez’s effort to win an asylum hearing for the boy.

``According to the record, plaintiff _ although a young child _ has expressed a wish that he not be returned to Cuba,″ the judges wrote.

``It appears that never have INS officials attempted to interview plaintiff about his own wishes,″ the ruling said. ``It is not clear that the INS, in finding plaintiff’s father to be the only proper representative, considered all of the relevant factors _ particularly the child’s separate and independent interests in seeking asylum.″

The panel cited a landmark 1985 case involving a minor seeking asylum _ that of Walter Polovchak, who fought being returned to the Soviet Union. In that case, the 7th U.S. Circuit Court ruled that a 12-year-old was ``presumably near the lower end of an age range″ of maturity to assert rights separate from his parents.

The judges: James Larry Edmondson, appointed by President Reagan; Joel F. Dubina, appointed by President Bush; and Charles R. Wilson, appointed by President Clinton.

In Little Havana, Cuban-Americans keeping a vigil for weeks had worried that federal agents would swoop in and try to remove Elian from his relatives’ home.

Before the ruling was issued Wednesday, Reno said taking the boy by force was an option but she was trying to avoid any violence.

``There may come a time when there is no other alternative. But we’ve got to do it in a careful, thoughtful way,″ Reno had said.

Elian was rescued by two fishermen while clinging to an inner tube off the Florida Coast on Thanksgiving Day. He and two others survived, but his mother and 10 others fleeing Cuba drowned when their boat sank.

Lazaro Gonzalez was awarded temporary custody and the boy’s Miami relatives have been caring for him ever since. They insist Elian will be better off living with them, and argue that the boy would be psychologically harmed and face persecution if he is returned to Cuba.

Since January, Reno and the government have repeatedly extended the deadline for Lazaro Gonzalez to surrender the boy. Last week, the nation’s top law officer took the extraordinary step of flying to Miami to meet with family members.

But both sides have failed to agree on details of a reunion. The government insists that Lazaro Gonzalez _ referred to by federal attorneys as ``a mere distant relative″ _ surrender custody of the boy, while the family has sought a meeting with Juan Miguel Gonzalez without conditions.

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