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Elian could be just hours away from return to Cuba

Juan Miguel
Juan Miguel Gonzalez, Elian's father  

Only Supreme Court order can stop his departure

June 28, 2000
Web posted at: 11:19 a.m. EDT (1519 GMT)


In this story:

Court's options

Justice: Question is who speaks for child

Constitutional rights and rights to childhood

RELATED STORIES, SITES icon



WASHINGTON (CNN) -- Barring action by the U.S. Supreme Court, Elian Gonzalez will be free to leave the United States for Cuba at 4 p.m. EDT Wednesday, when the 11th Circuit Court of Appeals' injunction requiring him to remain in the country expires.

Waiting for the approaching deadline, two men kept vigil in support of Elian remaining in the United States near the Miami home where Elian once stayed with his relatives. Signs and flags remain on the front fence, but the crowds of demonstrators are no longer present.

 VIDEO
VideoCNN's Miles O'Brien interviews Cuban-American activist Ramon Sanchez, who says the Elian case illustrates that links between Americans and Cubans should be stronger (June 24)
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VideoINS agents remove Elian Gonzalez from his great-uncle's Miami home at 5 a.m. Saturday. (April 22)
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  FULL TEXT
Juan Miquel Gonzalez's June 27 response to Miami relatives' petition to the Supreme Court
PDF version (FindLaw)

Miami relatives' June 26 petition for writ of certiorari
Introduction (FindLaw)
Text (FindLaw)
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Miami relatives' June 26 petition to the Supreme Court seeking a stay
PDF version (FindLaw)
(Requires Adobe Acrobat Reader)
Scanned version
 
COURT RULING
11th U.S. Circuit Court of Appeals June 23 decision denying petition for rehearing
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11th U.S. Circuit Court of Appeals June 1 ruling denying Elian's political asylum
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PDF version (FindLaw)
(Requires Adobe Acrobat Reader)
 
  RESOURCES
 
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Should Juan Miguel Gonzalez return to Cuba with Elian?

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Among Miami's Cuban-Americans, there is resignation that Elian could soon return to Cuba.

In Miami, political leaders say they expect a quiet community response.

"We abide by the law, we abide by the rule of law, and we'll be very saddened thinking about what the child has to encounter upon his return to Cuba. But we will continue our struggle so there are no more children like Elian," said Sylvia Iriondo, a Cuban-American activist.

Attorneys for Elian's father, Juan Miguel Gonzalez, and the Justice Department filed briefs at the Supreme Court on Tuesday in response to an appeal filed one day earlier by the Miami relatives.

The lawyers for Elian's great-uncle Lazaro Gonzalez also asked the Supreme Court for an order to keep the boy in the United States 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 court shut down for the day Tuesday after confirming receipt of the government and father's filings.

Supreme Court options

Anthony Kennedy, the justice responsible for overseeing the 11th Circuit, has three options:

  • Let the injunction expire, freeing Elian to leave the country

  • Issue an order to extend the injunction, pending the Supreme Court's disposal of the issue

  • Issue a new injunction pending a decision by the Supreme Court to either grant or deny a hearing on the Miami relatives' appeal of the 11th Circuit ruling that the INS did not have to give Elian an asylum hearing

The full Supreme Court could:

  • Assess the case as early as the justices' scheduled conference session. (The conference is a private meeting of the justices following the issuance of opinions at 10 a.m. Wednesday.)

  • Announce its decision whether to grant or deny a hearing on the relatives' appeal as early as Wednesday afternoon

  • Or make that announcement when it is expected to release its regular "orders" list on pending cases at 10 am Thursday. In that case, Justice Kennedy would likely have issued at least a 24-hour stay.

Justice: Question is who speaks for child

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 Justice Department's 55-page document opposing the petition filed by the Miami relatives, said 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?"

"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.

Elian's great uncle had taken care of the boy at his Little Havana home in Miami from the time of the child's 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.

Constitutional rights and rights to childhood

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.

Elian's 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?"



RELATED STORIES:
Elian's father urges Supreme Court to let the boy go home
June 27, 2000
Massive Cuban demonstration implores: 'Yankees, free Elian!'
June 24, 2000
Appeals court to rule on rehearing petition in Elian case
June 23, 2000
Justice argument would, in theory, open path that could allow Elian to leave for Cuba
June 20, 2000
Court gives government and father deadline to respond in Elian Gonzalez case
June 15, 2000
Justice asks court to dismiss Lazaro's suit to keep Elian in U.S.
June 7, 2000
Elian's father 'very happy' with court decision; Miami family will fight on
June 1, 2000

RELATED SITES:
U.S. Attorney General
U.S. Immigration and Naturalization Service
Public Affairs
Executive Office of the Governor of Florida
Eleventh Circuit Published Opinions
United States Court of Appeals, Eleventh Circuit
LibertyForElian.org - Foundation to Help Save Elian
Granma Internacional Digital, Cuba
  • Kidnap in Miami
Cubaweb
Cuban American National Foundation


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