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Justice argument would, in theory, open path that could allow Elian to leave for Cuba
WASHINGTON (CNN) -- Justice Department officials say if the 11th Circuit Court of Appeals rejects Lazaro Gonzalez' petition for rehearing, absent a further court order to the contrary, Elian will be free to leave the United States with his father seven days after the court's decision. The Justice Department brief filed Tuesday asks the appeals court to "order that the mandate issue forthwith", which means the government wants the court not only to reject the rehearing, but also to dispense with the week-long period which federal rules state is when a "mandate" takes effect. If the circuit court does declare that the mandate issues "forthwith", Elian would presumably be able to board a plane for Cuba immediately. The Justice Department repeatedly has said the existing INS "departure control order" which prohibits Elian's leaving the U.S. pending appeals, will end when the court's mandate is issued. A senior Justice Department official said while it is not entirely clear, officials are leaning toward the view that a filing by Lazaro Gonzalez with the U.S. Supreme Court does not affect the mandate. Of course, if the Supreme Court were to promptly issue an order preventing the departure while it considers whether to hear the case, Elian would remain in the United States until the high court took final action. If the 11th Circuit denies rehearing, issues the mandate "forthwith" and the Supreme Court takes no immediate action to block it, Elian, theoretically, could be on a southbound plane by Tuesday night. But absent an immediate issuing of the mandate a seven-day clock begins if the court turns down the rehearing. RELATED STORIES: Justice asks court to dismiss Lazaro's suit to keep Elian in U.S. RELATED SITES: U.S. Attorney General |
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