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Elian's father and Justice Department ask Supreme Court to let the boy go home
WASHINGTON (CNN) -- Elian Gonzalez' father told the U.S. Supreme Court Tuesday that any further delay in allowing the 6-year-old boy to return home to Cuba would cause "immense and irreparable harm" both to both father and son.
The attorney for Juan Miguel Gonzalez filed a brief in response to a petition filed by Elian's Miami relatives Monday seeking a stay that would prevent him from leaving the country until the court can decide whether he should be granted an asylum hearing -- a request rejected by lower courts and the U.S. Immigration and Naturalization Service.
The Justice Department filed its own brief with the high court later Tuesday, a 55-page document opposing the petition filed by the Miami relatives, saying the lower courts properly concluded only Elian's father may legally speak for him.
"Elian and his father should therefore now be allowed to return home," the government brief concluded.
"We understand that those who have sought to submit applications on behalf of Elian have a firm belief that no consideration whatever can warrant Elian's return to Cuba. In the end, however, the question in this case still remains, as the Attorney General stated at an early stage: Who speaks for the child?"
If the Supreme Court does not issue a stay beforehand, Elian and his father could leave the United States anytime after 4 p.m. Wednesday. The court shut down for the day Tuesday after confirming receipt of the government and father's filings.
"Though Lazaro Gonzalez persists in the misapprehension that Elian Gonzalez has applied for asylum under United States law, the attorney general determined and the District Court and Court of appeals affirmed that Elian, at barely 6 years old, does not have the capacity to apply for asylum, and applications filed on his behalf contrary to the express wishes of Elian's father were void," the father's brief said.
Lazaro Gonzalez is Elian's great uncle and had taken care of the boy at his Little Havana home in Miami from his rescue at sea last Thanksgiving day until INS agents removed him from the house in a Saturday morning raid April 22. He has been staying with his father, who came to Washington from Cuba to reclaim him, ever since.
Elian's mother and 10 others drowned when the boat they were traveling on from Cuba capsized off the Florida shore. Elian survived for two days clinging to an inner tube until he was rescued by fishermen.
Attorneys for Lazaro Gonzalez, in separate petitions filed Monday, asked for a stay of an order by the 11th Circuit Court of Appeals in Atlanta lifting an injunction blocking Elian's departure and asking for a hearing on the asylum question.
His father's lawyer, Greg Craig, argued that the petitions were based on a "faulty analysis" by attorneys for the Miami relatives.
"First, Elian will not suffer any harm by the denial of a stay," he said. "To say that Elian would be deprived of his right to an asylum hearing begs the central question of this case: Did Elian in fact apply for asylum?"
Referring to the long legal tug of war, Craig said, "The perpetuation of these circumstances deprives Elian of his childhood, and Juan Miguel of his right to raise his family. These losses are irreplaceable, and weigh heavily in favor of declining to impose a stay or injunction."
After filing the petitions Monday, Kendall Coffey, lawyer for the Miami relatives, told reporters in Coconut Grove, Florida: "This is a matter of momentous importance not only to this child, to this community, but also literally to hundreds of thousands of refugees who seek admission in this country."
The legal issues "boil down to a single straightforward question," the petition said. "Can the INS deprive an alien child of his statutory and constitutional right to apply for asylum without conducting any hearing of any kind -- or even interviewing the child himself?" (Italics in original.)
The petition must be presented to the full court. The justices' last conference to consider new cases prior to their summer recess is scheduled for Wednesday.
"We expect he'll be on a 4:01 flight if he's allowed to," said Linda Osberg-Braun, a lawyer for the Miami relatives. "And unfortunately for the family, they would desperately like to see Elian no matter what the outcome of the Supreme Court would be. They would again make overtures to meet with Juan Miguel and, of course, Elian."
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