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Father, Relatives of Elian Await Ruling of Court of Appeals

Aired April 19, 2000 - 2:22 p.m. ET


NATALIE ALLEN, CNN ANCHOR: As we told you, we're expecting to hear what the 11th Circuit Court of Appeals in Atlanta has decided on the fate of Elian Gonzalez and the family members involved. Let's go to our legal analyst, Greta Van Susteren, who joins us from Washington.

Greta, let's start from the beginning here: What is -- has this appeal court been deciding in this case?

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Well, you have to really, Natalie, as you say, start from the beginning. At the end of March, a federal judge, a trial court judge issued an order. That order said the decision whether or not to grant an asylum hearing was one that the attorney general of the United States has a sole authority to make. Obviously, she made it. She said: Look, the father makes the decisions. The father doesn't want to petition for asylum, so there will be no hearing.

The family in Miami then appealed that order, the United States Court of Appeals for the 11th Circuit. While that case was on appeal, that lower court order was hot, meaning that it was an effective order, and the attorney general could come into the home, take the child and send the child back to Cuba.

What happened last week was this, is that when the appointed hour came, when the family began to fear that the attorney general would act on that order, and either come in and take the child and send the child back to Cuba, or do something, they went to the United States Court of Appeals, which oversees the trial court, and said: Look, we want a stay of that lower court's order. We want to put that lower court's order on hold so the attorney general can't come in and seize that child and send that child back to Cuba.

What happened there was one judge in the United States Court of Appeals on a temporary basis said, look, I will grant that temporary stay until we can consider this issue a little bit more, with three judges rather than considering it myself.

And then there was a flurry of briefs that were filed. Both sides got to state their position last Friday of whether or not they think this stay should be in effect or this injunction making this trial court judge order essentially on hold pending the resolution of all these issue. And so now we're in the position of hearing from the United States Court of Appeals. Will they continue to put on hold that trial court judge's order of the end of March, saying that it's the attorney general who makes these decisions, or will they not put it on hold?

If they put it on hold, then what will happen is that the status quo will remain the same, that the child cannot leave the country. But it may very well be that the attorney general can still go get that child and reunite it with his father, but that the child cannot leave the country.

On the other hand, if the United States Court of Appeals doesn't put that trial court's decision on hold, what happens is once again the attorney general gets the green light to come in, take the child, and then give the child back to the father and let the father leave the country, even though the issue about the trial court judge was right or wrong originally in his decision will not really be decided by the entire court until mid-May.

This is simply the issue that we're going to hear now, is whether or not the case is on hold until they consider the trial court judge's decision in May. Very complicated and tortured history.

ALLEN: Well, you sure explained it very well, and we thank you for that. If the decision comes out in just a few moments to put this on hold, so then this big picture, this continues until the middle of May?

VAN SUSTEREN: Sort of. Except for one thing, we don't know what they'll put on hold. What the one judge did last Friday is he simply said, look, that child may not leave the United States. He did not say the attorney general couldn't come in and take that child and reunite it with his natural father.

So we don't know if they're going to expand it and say, look, the status quo means hold means hold, the child will stay in Miami, the child will stay with the family in Miami, or whether they will rubber stamp what the trial court judge -- or what the courts said on Friday, the single judge, and say, look, he can't leave the country but he can go back with his father, or whether they'll simply say, look, all bets are off, the trial court judge was essentially right, we're not going to issue any holds on that trial court order, and the attorney general is free to come in and seize that child and give it to the father and the father can go back to Cuba.

ALLEN: Boy, it's a complicated case. So -- so many things can happen. But if I'm understand it, even if there is a hold, there is no guarantee that Juan Miguel can't be reunited with his son and return to Cuba. Am I understanding that?

VAN SUSTEREN: That's exactly right, Natalie. The narrow stay that was issued last Friday, or the narrow hold, was simply as to whether the child can leave the country, not what happens to the child while we're awaiting the outcome of the appeal, which will be some time in mid-May when it's supposed to be argued. It is simply whether the -- the court simply said he can't leave the country. What they didn't say is the attorney general can't go get the child on behalf of the father and the father can't go get the child.

And so today, they can expand it. They can do the same thing, or they can simply evaporate the original stay and we're back to where we are where the trial court judge's order saying the attorney general makes the decision is what we're operating from, and the attorney general's decision stands that the child will not have an asylum hearing, the child will go back to his father, and if the father and the child want to go back to Cuba, they'll go back to Cuba.

ALLEN: So it sounds like Janet Reno will still come out of this with a lot of power to make a decision.

VAN SUSTEREN: Yes, but it's, you know, it's rather -- I'm not so sure it's power she particularly wants. You know, this is a very, very tough decision. There are no winners in this case. You know, no one truly wins in it. I don't think it's something she necessarily appreciates having the power.

I suspect, looking at the law, is that eventually when this all washes out is what there will be is an affirmation of the existing law, which is that the attorney general, whether you like it or not, by law has the power to make these decisions.

Of course, the family in Miami is disputing it. That's what they want to fight. They may take it -- if they lose today, if they lose when the appeal is heard on whether or not the trial court judge is right or wrong on the ultimate issue as to who has the authority, the family or the attorney general, they want to go on, I suspect, to the United States Supreme Court. The United States Supreme Court will have the final word on this. And so we may not -- we may not know the answer for months.

ALLEN: All right, and we may not know even when we hear this appellate court ruling, the immediate fate of Elian Gonzalez?

VAN SUSTEREN: Except there's one tip-off, though, that we may see today, is that one of the factors that the judges will consider in trying to determine whether or not there should be a stay or hold on the lower court judge's hearing is whether the family in Miami, when this goes to appeal, whether or not they're likely to win, because if they're not likely to win, then the judges really don't have the authority to put the case on hold while we wait to decide the ultimate issue.

So if the court says today that there is a stay in place or there is an injunction or you put that trial court order on hold, however you want to say it, if they say that, then that -- what that is it's a tip that the Miami family may be more likely to win when they argue the case farther down the road.

If they lose today, that's a very bad sign for the family in Miami as to what will happen ultimately in the appeal. And the other problem is if they dissolve the stay, the father may take the child, go back to Cuba, and if they won a month from now, so what, the child's gone. ALLEN: Greta Van Susteren, thanks so much for joining us, and stay very close. We'll be getting back to Greta as we learn the decision of the 11th Circuit Court of Appeals here in Atlanta regarding the Elian Gonzalez Case. That expected within a matter of minutes.



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