By Jay Weaver And Andres Viglucci, aviglucci@herald.com. Published Friday, January 14, 2000, in the Miami Herald
U.S. immigration authorities, suspicious that lawyers for Elian Gonzalez's Miami relatives will try to avoid directly challenging a decision to return the boy to Cuba, are devising strategies to force the family into federal court, where the government is certain it will prevail.
Publicly, U.S. Attorney General Janet Reno sounded a conciliatory note on Thursday, once more appealing to the boy's relatives in Miami to cooperate in reuniting Elian with his father in Cuba.
``I think it is so important that people of goodwill come together, work through the processes of law as soon as possible, and get the boy home to his father,'' she said, declining to spell out the government's options while reiterating that she has ruled out seizing the boy.
But behind the scenes, Justice Department officials said, government lawyers are readying a plan to call the family lawyers' bluff if they fail to fulfill their threat to go to federal court next week to block Elian's return.
Legal strategists believe the Miami lawyers are reluctant to take the matter to federal court because they recognize the chances of winning there are slim. Federal courts have long deferred to the attorney general's broad powers in enforcing immigration laws.
``Clearly we want to give the family in Miami an opportunity to carry out what they say they have wanted to do, which is to take the matter into court,'' one Justice official said. ``However, if their public statements are not backed up, and they engage in stalling tactics, we will certainly not
let the matter just sit.''
Precise tactics have not been decided, the official said. The Immigration and Naturalization Service has clearly been at pains to avoid coming off as heavy-handed.
But the INS set the stage for one possible scenario late Thursday when it rejected a second request for political asylum filed on Elian's behalf by his great-uncle, Lazaro Gonzalez. The agency again ruled, as it had last week, that only Elian's father in Cuba, Juan Miguel Gonzalez, can act for
the boy.
The agency believes the rejection may trigger a challenge in federal court by the Miami relatives' attorneys, who called the INS decision ``another example of violating Elian's civil rights.''
``We intend to do it,'' said Spencer Eig, a member of the family's legal team. ``This case evolves every day.'' He declined further comment.
If they don't, the agency could force the Miami lawyers' hand by issuing a demand that the family turn over the boy at a precise date and time, knowing full well they are unlikely to do so. The family's lawyers have already said they would disregard an INS request to surrender the boy.
But legal experts say a demand to produce the boy, if ignored, could lead to a swift federal court order forcing the family to comply.
``In the absence of cooperation from the relatives, the INS could go to federal court to have a judge make Elian appear so that he can be reunited with his father,'' University of Miami law professor David Abraham said.
Alternatively, a request to produce the boy could prompt the family's lawyers to seek to block it in federal court, the only venue for such a challenge.
In any case, legal experts and the government believe, INS is likely to prevail: ``At the end of the day, the world will see they didn't have much of a case, but at least they got a chance to make it in court,'' Abraham said.
Justice strategists believe that neither the family nor its lawyers would risk defying a federal judicial order.
``There is a great deal of rhetoric, but the reality is that we believe everyone involved in this process will respect the final outcome under the law,'' the Justice official said.
After saying he would discuss the team's strategy, Roger Bernstein, an attorney for the Miami relatives, failed to return phone calls from The Herald to his office.
LAWYERS DISAGREE
There has been disagreement among the lawyers representing Elian's relatives regarding when or even whether to go to federal court, recognizing they could be walking through a legal trapdoor.
Earlier in the day, another of the family's lawyers, Jose Garcia-Pedrosa, said in defiant tones that he had advised Lazaro Gonzalez not to turn over the boy.
Garcia-Pedrosa contended in an interview that an emergency protective order granted by a Miami-Dade Circuit Court judge legally keeps Elian here until a March 6 hearing on temporary custody sought by his great-uncle, even though Reno on Wednesday rejected the judge's authority to do so.
Garcia-Pedrosa also maintained that a congressional subpoena for Elian, issued by U.S. Rep. Dan Burton, R-Ind., also prevents the boy from leaving the country.
``My advice now to Lazaro is, `If they come to get the boy, the answer is no,' '' Garcia-Pedrosa said. ``We have a state court order and we have a congressional subpoena that say the boy should not be taken from this jurisdiction. INS has no right to take this boy from here. We are not going to
surrender him.''
Supporters of Elian's Miami family have all but conceded that their principal goal is to delay the boy's return until Congress can reconvene Jan. 24 and consider several proposals to grant him legal status in the United States.
WEIGHING OPTIONS
U.S. Rep Ileana Ros-Lehtinen, R-Miami, said Thursday that several members of Congress are trying to hammer out a single piece of legislation to grant Elian legal standing. That would likely remove the INS' jurisdiction over the case.
``It's difficult to accomplish, but it's a bipartisan group of folks working on it, said Ros-Lehtinen, who said the group is now focusing on plans other than granting Elian citizenship. U.S. Rep. Bob Menendez, D-N.J., has suggested that permanent legal residency status for Elian would be more
viable.
In the meantime, Miami street-protest leaders said they would not call any new demonstrations to allow time for the expected court battle. Activist Ramon Saul Sanchez said exiles would join marches by African Americans on Saturday and Monday in observation of Martin Luther King Day.
``A lot of people wanted to continue to protest, and we were able to persuade them not to because it doesn't make sense now,'' Sanchez said.
FATHER ON TV
In an interview with ABC's Nightline broadcast late Thursday, Elian's father expressed extreme frustration with the delay in his son's return. ``The custody of the child is mine,'' he said. ``The courts in Miami or in the U.S. have no jurisdiction. What they have to do is send the child back to
me. I think that this has been clarified more than once.''
The Cuban government said it expects 100,000 mothers to march by the building housing the U.S. Interests Section in Havana today to demand Elian's return.
Raquel Rodriguez, Elian's maternal grandmother, told MSNBC in an interview that exiles pressing for the boy to remain in Miami have ignored her pain: ``I lost my only daughter and he's my only grandson. He's the only thing I have. I feel horrible.''
The boy's mother and 10 others perished when their boat foundered off Florida.
In Miami, after Elian returned home from school Thursday afternoon -- one hour later than usual because he stayed behind for an intensive English lesson -- Lazaro Gonzalez delivered to reporters one of his most heartfelt statements about the boy.
``The reason why I'm in this is because the child has to have an opportunity to be free, that's how his mother would have wanted it,'' Lazaro Gonzalez said. ``The question I always ask is, if the father is really interested in being with his child, why doesn't he make an effort to come here?''
Herald staff writers Ana Acle, Karen Branch, Alfonso Chardy and Frank Davies, and Herald translator Renato Perez contributed to this report.
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