By Jay Weaver And Andres Viglucci . jweaver@herald.com. Miami Herald, March 28
But court says Miami relatives should get time for a hearing
U.S. authorities late Monday repeated their threat to revoke Elian Gonzalez's immigration parole and send him back to Cuba quickly -- despite a ruling from an appeals court setting a May date for a hearing on his Miami relatives' bid to keep the boy here.
A Justice Department official said the government will move to revoke Elian's temporary immigration parole on Thursday, in spite of the 11th Circuit Court of Appeals in Atlanta giving Elian's Miami relatives extra time to appeal a judge's order last week that cleared the way for the boy's return
to Cuba.
The official said the government is not legally bound to wait for the outcome of the appeal. Authorities will only delay his removal if the boy's relatives sign a pledge to turn over Elian within three days if they lose the appeal.
Without parole, which allows Elian to stay in this country temporarily, the boy must be turned over to the Immigration and Naturalization Service. The fact that the appeals court has set a schedule has no effect on the government's stance.
``We are moving ahead with revocation of parole,'' the official said. ``We have never said we would be willing to wait out a full appeals process. We have set two deadlines, and they are not in compliance. We believe this is a very reasonable demand.''
The official, who asked not to be identified, said a letter would be faxed to the Miami relatives' attorneys Monday night, but the lawyers said they had received nothing by 9 p.m.
``We don't expect they will revoke the parole,'' said attorney Spencer Eig. ``We believe we are in compliance and they haven't responded to us.''
``The court has spoken,'' added attorney Kendall Coffey. ``It no longer matters whether it's INS' opinion or our opinion. We expect both sides to respect the court.''
The Herald obtained a faxed copy of the letter shortly after 10 p.m. Monday.
The letter, written by senior INS official Michael Pearson, said immigration authorities have a set a meeting for this morning with the relatives' attorneys. The INS advised them to bring Elian's great-uncle, Lazaro Gonzalez, to the meeting to discuss revoking the boy's parole and returning him
to his father.
The federal appellate court's decision seemed to be a small, but important, legal victory for the Miami family by setting the hearing for the week of May 8.
At first glance, the decision by 11th Circuit Court of Appeals seemed to delay any government move to send the boy back to his father for another month and immediately eased what had been rising tensions surrounding the case. Scores of demonstrators in Little Havana had threatened to resist any
federal effort to pick the boy up by forming a human chain outside his Miami relatives' home.
But the mood changed again when word filtered back that the government was not going to back off from its threats in the face of the appellate court decision on the crucial hearing.
``If they move to revoke the parole there will be strong protests here, civil disobedience in vital parts of the city,'' said Ramon Saul Sanchez, leader of the Democracia Movement.
The appellate court was responding to an emergency request filed only Monday morning by the relatives' legal team that sought more time for their appeal than government attorneys had been willing to grant them. The lawyers want the government to give a political asylum hearing to Elian, saying
under federal law any alien of any age may apply for asylum.
But last Tuesday, U.S. District Judge K. Michael Moore ruled that U.S. Attorney Janet Reno had acted properly in finding that only Elian's father in Cuba could speak for the boy. Juan Miguel Gonzalez told the government that he did not want it to consider his son's asylum application, made on
his behalf by his great-uncle in Miami.
Ever since Moore's decision, federal officials and the relatives' legal team have been sparring over how fast an appeal should be filed and heard. The government threatened to revoke the boy's parole on Thursday if the team did not completely agree with the terms of the speedy appeals process.
Earlier Monday, both sides seemed closer to a schedule that called for an appeals hearing the week of April 10. But the Gonzalez family's lawyers, upset with what they thought was the government's high-handedness, also filed the emergency request asking the appellate court to set its own
timetable for the hearing.
The motion annoyed Justice Department officials, but it paid off swiftly.
Within hours, U.S. Circuit Judge Frank M. Hull had set the schedule: the relatives must file their initial brief by April 10. The government would respond by April 24, and the relatives would have until May 1 to reply. Oral arguments would be scheduled for the week of May 8.
The government had proposed that both sides file initial briefs by next Monday, with responses due a week later, April 10. Oral arguments would have taken place that week.
Legal sparring had been going on throughout the day Monday. A key sticking point was whether the family would pledge to turn Elian over to the INS quickly if they were to lose the appeal.
In their response to the team's request to the appellate court, Justice Department officials said that it was ``unacceptable'' that the family and the legal team had not agreed to hand the boy over within three days if they fail to obtain a stay, or emergency order, from the Supreme Court
blocking the government from sending Elian back.
And if they obtain the injunction -- considered a long shot by independent legal experts -- the team would have to ask the Supreme Court within five days to consider accepting the case.
If the lawyers did not comply with the government's demands, Reno threatened to revoke the temporary parole that has allowed Elian to stay in this country since he lost his mother on a boat journey from Cuba in late November.
The government could then demand that Elian's great-uncle Lazaro Gonzalez turn over the boy to authorities.
``What is truly at issue is Lazaro Gonzalez's refusal to execute an agreement that, should he not prevail in his appeal and not obtain an injunction pending any petition for [the Supreme Court], he will comply with the instructions of the Immigration and Naturalization Service,'' the government
said in its filing to the appeals court.
His lawyers called the government's pressure ``unconscionable.''
Said attorney Linda Osberg-Braun. ``Lazaro Gonzalez has assured them he will obey the rule of law.''
But the family's lawyers have not agreed that a Supreme Court rejection of their appeal means they must immediately surrender Elian to his father in Cuba. Without being specific, attorney Eig hinted that the team could go back to Miami-Dade's family court, where the Miami relatives have filed a
separate custody petition.
The family's lawyers, who called the government's tactics ``heavy-handed,'' told the appellate court in their emergency motion: ``Such threats could have tragic consequences. Indeed, Elian's threatened immediate removal from his present home to return him to Cuba will have the dual effect of
irreparably harming him and depriving him of any genuine appellate review of the District Court's decision.''
Herald staff writer Marika Lynch contributed to this report.
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