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Elian Gonzalez Custody Case: Federal Appeals Court Rules Elian Can Stay in U.S. Pending Appeal of Miami Relatives

Aired April 19, 2000 - 2:38 p.m. ET


LOU WATERS, CNN ANCHOR: Again, our breaking news story is a decision by the federal appeals court in Atlanta on the fate of Elian Gonzalez, will he be ordered by the court to be reunited with his father, who is in Bethesda, Maryland, awaiting this decision. Pending the appeal on the asylum case, will Elian be returning to Cuba?

We are covering the story from all angles today. You've just heard from Kate Snow, who is keeping watch with the father in Bethesda, Maryland. We're also in Havana, Cuba today, down in Little Havana with Mark Potter. We are at the Department of Justice and the Supreme Court. Anything that happens you'll know about and as soon as it happens we'll pass it along to you.

We understand that Brian Cabell, a CNN correspondent who is at the 11th Circuit Court here in Atlanta, has the judges' order -- three-judge panel making this decision -- has the order in his hands. We are waiting to hear from him momentarily.

All right, we're at 11th Circuit Court of Appeals now, Brian Cabell is on the line with us. What have you got, Brian?

BRIAN CABELL, CNN CORRESPONDENT: Well, Lou, we've just gotten it in the last two minutes -- it's 16 pages long -- and a very cursory reading of it indicates this. Let me just read briefly what they have said: "In this case, the balance of the equities weighs heavily in favor of enjoining the removal of plaintiff from United States pending appeals." That seems to indicate that he would stay here at least temporarily.

In addition, it goes on: "We doubt that an injunction would harm the INS. Plaintiff has been in the United States for nearly five months. The INS refused to consider plaintiff's application for asylum more than three months ago. The INS, however, has not sought to remove plaintiff in the meantime from the U.S.

The suggestion that an injunction, pending appeal, prohibiting removal of plaintiff from the U.S. until plaintiff's expedited appeal is decided on the merits (UNINTELLIGIBLE) the INS is not compelling. Nor do we believe that an injunction pending appeal in this case would offend the public interests. The INS, in opposition to plaintiff's motion, invokes the well-established authority of the political branches of government in immigration affairs." Again, Lou, we are reading this very quickly. Let me switch now to the summary. Again, I am no lawyer but the language here seems to indicate they are favoring -- they are going against the INS in this particular case. Where is -- we're looking for the summary at the very end.

WATERS: Take your time, Brian.

CABELL: All right, we -- conclusion, conclusion. Let me read the conclusion slowly. Conclusion: "By it's nature, this order sets out more questions than answers. We have not attempted to address every point advanced by both sides, but we have attempted to explain our decision to grant the injunction. No one should feel confident in predicting the eventual result in this case. The true legal merits of this case will be finally decided in the future. More briefing is expected. We intend to hear or oral arguments. We need to think more and hard about this case, for which no sure and clear answers shine out today.

"Still, because of the arguments presented as well of the potential inconsistencies of the INS' present position with the plain language of the statute and with the INS' own earlier interpretations of the statute and INS regulations and guidelines and because of the equities in this case, we conclude that plaintiff is entitled to an injunction, pending appeal. Therefore, it is ordered that plaintiff, Elian Gonzalez, is enjoined from departing or attempting to depart from the United States."

WATERS: All right, Brian Cabell, at 11th Circuit Court. He has just gotten a copy of the order. We'll give Brian an attempt to study that a little more thoroughly.

But we do have an attorney with us. That would be our legal analyst Greta Van Susteren. What did you make of all that, Greta?

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Well, it's obviously a big victory for the family in Miami, because what it does, is it repeats the temporary order that was issued late Thursday or early Friday morning.

But here's the curious thing that Brian didn't tell or couldn't read, or at least we don't, even if it's in the order, is whether or not the child Elian will be retrieved by his father. What happens to the boy while he is here in the United States. We know that he cannot leave the United States, but can Attorney General Janet Reno or Juan Miguel go get the child and get the physical custody of the child. I suspect that the answer to that is yes, but we're still waiting for Brian to read through the entire order.

But even though the child can't leave the country, from what Brian has read so far, and we have not heard it and I have not read it, the big question to me is, what is the attorney general going to do? Is she going go get the child? Because apparently, at least I've heard nothing to the contrary, there's nothing to prevent her from doing that at this point. WATERS: Greta, we're seeing pictures from Little Havana where we're seeing pumping fists, a lot of hugging and cheering going on as they -- there's Lazaro Gonzalez being embraced by one of the demonstrators in the area. This is undoubtedly a huge victory for the Miami family, as you say, but the circuit court says we must think more and hard about all of this.

What's left to do?

VAN SUSTEREN: Well, here's the reason why they court did this, though, is that if they didn't do this, the child could leave the country tomorrow, and then when they decide the ultimate issue, let's say six weeks from now, and let's say they decide in favor of the child remaining in the country, well, the child is gone. And what the court simply did is said, in essence, let's put everything on hold. The child doesn't leave. We, the court, want to consider the issues, whether or not the child is entitled to an asylum hearing, because that's where this winds back down to. Is the child entitled to an asylum hearing? And the Miami family simply wanted to keep him the child in the country until the court could decide that particular issues.

And what the United States Court of Appeals said, was look, there's no harm, the child's been here for a long time, there's no harm in keeping the child here a in keeping him here a little bit longer while we resolve that ultimate issue.

So it certainly is a victory for the family in Miami as to that, but there's the underlying issue is, what happens to the child in the meantime? Does he come up here to Washington D.C., to the suburbs of Washington and spend that with his father, or does he stay down in Miami? That's still the question that remains in my mind and certainly one that the attorney general must have at this moment.

WATERS: Do you thing there is there anymore to this ruling we haven't hear, that the custody, or the parole, as they call it, has been revoked for Lazaro Gonzalez and placed with Juan Miguel? Will that not be enforced?

VAN SUSTEREN: Well, that's what the order -- I mean, that's I heard -- I haven't seen the order and Brian didn't talk about it, but that's the whole issue, is Elian can't leave the country. That's clear, according to this order by the United States Court of Appeals. The only thing is that, you know, where does he stay in the meantime? And his parole was revoked by the attorney general before, which meant that the attorney general has the legal ability to take the child and give the child back to his father. But the problem, is the father can't leave the country now with the child. So that's the question.

Now of course the family in Miami must be as ecstatic that young Elian won't leave the country, but they must have less enthusiasm for having the child to go to his father, where they believe, or at least that's what they seemed to indicate, is the father is subject to pressure from his home country, from Cuba, which they do not agree with.

WATERS: All right, Greta, stay close there.

We see the celebration going on in Little Havana, while we check in with Brian Cabell, who's had a little more time to study the 16- page ruling by the 11th Circuit Court here in Atlanta.

Brian, what you got?

CABELL: Well, this is further reading from the conclusion. "Any and all persons acting for, on behalf of, or in concert with plaintiff, Elian Gonzalez, are enjoined from aiding, or assisting or attempts to aid or assist in the removal of plaintiff from the United States. Further, all officers. agents and employees of the United States, including, but not limited to, officers, agents and employees of the United States Department of Justice are enjoined to take such reasonable and lawful measures as necessary to prevent the removal of plaintiff Elian Gonzalez from the United States.

Now Greta had mentioned, she was wondering whether there was some word as whether the father could pick up the child. A cursory reading, once again, doesn't really indicate that, but let me read further from the body of the piece. "Even if the INS is correct that plaintiff needs an adult legal representative for his asylum application, it is not clear that the INS, in finding plaintiff's father to be the only proper representative considered all of the relevant factors, particularly the child's separate and independent interest in seeking asylum."

They then mentioned two cases. "In the context of a deportation hearing, that the mother's interests are not necessarily the same as her 4-year-old child. It does not appear that the INS ever spoke to or interviewed plaintiff before making this determination, and Lazaro Gonzalez, the plaintiff's great uncle, is no stranger to plaintiff. The INS placed plaintiff in Lazaro's care upon plaintiff's arrival in this country, and Lazaro is a blood relative.

When Lazaro submitted applications for asylum on plaintiff's behalf, Lazaro was the INS' designated representative to take of plaintiff and to ensure his well-being. Lazaro's interest, to say the least, are not obviously hostile to plaintiff's interest. So for now, we remain unconvinced that the asylum application submitted by Lazaro on behalf of plaintiff necessarily was ineffectual under the law. For these reasons and in these circumstances, we believe that plaintiff has presented a substantial case on the merits."

WATERS: All right, Brian Cabell, with the ruling from the federal appeals court here in Atlanta.

There you have it, Greta, it looks to me, sounds to me as though Elian Gonzalez is staying put.

VAN SUSTEREN: Well, you know, I am not totally convinced. I mean, the language that he read -- and obviously, you know, I haven't seen it in front of me, but says the language that Brian read, I clearly got from Brian says, there will be no removal from the United States. Then it seems that there is some language by the court that is somewhat uncertain as to whether or not the child should go with his father or with the family in Miami.

But the language is that it's critical of the procedure that has gone on so far to determine where he is and where he isn't. The language, at least I didn't hear it, was not abundantly clear that the court was speaking directly as to who should have custody or not. I think that's still a question, but maybe upon further I'll view it different.

But it sounds like the court is unhappy with the way the INS handled this matter, that they have lots of questions in their mind, and they are unwilling to let the status quo change before they get to make a final decision. They do not want the court -- the court does not want the rug pulled out from underneath them. They want time to look at the case and to decide it.

I do not think there's a clear direction to either side as to who will ultimately win; it's just clear that things will stay as is, in terms of whether he leaves the country. What does not seem clear is what happens to the child in the meantime.

WATERS: OK, Greta Van Susteren in Washington. And what is not as is, is the mood down in Little Havana -- Natalie.

NATALIE ALLEN, CNN ANCHOR: That's right. Mark Potter is standing outside the home of Lazaro Gonzalez. You see there on your screen, they just bought Elian out for a brief moment.

Mark Potter, you can tell us more about reaction there, and take it from there -- Mark.

MARK POTTER, CNN CORRESPONDENT: Well, despite the questions over the nuances of this ruling, the crowd here at the house in Miami's Little Havana section clearly believes this is a victory on the part of the Gonzalez family, Elian's relatives here.

We see Lazaro talking to people, being congratulated, in a very upbeat move. We saw the young boy, Elian, come out a moment ago to greet the crowd. This is a prayer vigil that is under way now.

When the word came out that the court had ruled and that Elian would be staying in the United States per that court ruling, the crowd here of supporters broke into applause, clearly not troubled by the same questions that Greta Van Susteren has been raising about what this ruling ultimately means for the custody of the boy.

This is being seen for as a pure victory, everyone is happy, very upbeat. This is David versus Goliath, if you will. And the crowd is quite -- quite happy about this.

Now, we are told that the lawyers for the family will come here with the family spokesman at some point to address the media, to address the crowd. And we're awaiting that, to see what they have to say about it.

I can tell you that over the past several days sources in the Justice Department have been saying that unless they got a clear prohibition against sending the boy to his father, their belief was that they would indeed come do that. And this ruling from what I have heard -- and again, this was underscored by what Greta is saying, does not seem to indicate that the -- the government is -- has been ordered not to get the boy. In other words, it did not say that the boy must stay with Lazaro, unless of course the lawyers at the Justice Department have a different reading of it from the cursory one that we got so far.

So lots of questions among many people about what this ruling ultimately means for Elian, or at least what it means in the short time.

But for the crowd here now, this is a happy moments, a victory. The government, at least for now, has been beaten, and people are celebrating.

ALLEN: And Mark, prior to this ruling that we just heard about, Lazaro Gonzalez said if the government wanted Elian, it would have to come get him. No word on, now that this ruling has been handed down, where he stands on how he would react to the immediate future of Elian and where he goes in the United States.

POTTER: Well, the -- on the issue of handing the boy over, Lazaro and his lawyers and the spokesman for the family have always said that if the agents decided to come here to physically take Elian, they would not stand in the way of those agents. They would let -- let that happen. They would obey the law. As to how they are going to deal with the situation now, I think that depends more on what the Justice Department decides to do.

The ball now is in -- is in the Justice Department's court. The family doesn't have to do anything. The status quo, as far as they are concerned, is being maintained.

The boy is here. They wanted a guarantee that he would not be allowed to leave the United States. They got that. The one thing they did not get is a prohibition against transferring the boy to his father.

So now, truly, the Justice Department has to make the decision of whether it believes it can now come get the boy and transfer him to his father in Washington, of course with the proviso, as ordered by the court, that -- that the boy could not be taken out of the country.

Natalie, back to you.

ALLEN: All right, Mark Potter in Little Havana, as the celebrations there go on. But as you mentioned the big question may still remain, where does Elian go in the United States? Does he stay with Lazaro Gonzalez there in Little Havana, or might he go back and stay with his father during this time in the United States?

WATERS: And as we watch this celebration in Little Havana, in Cuba, we're going to check in with Martin Savidge, who's in old Havana, Cuba itself, where the news apparently already has reached. And the key point here is that plaintiff Elian Gonzalez has been enjoined from departing or attempting to depart from the United States, a ruling by the 11th Circuit Court of Appeals that we imagine would go down hard in Cuba -- Marty.

MARTIN SAVIDGE, CNN CORRESPONDENT: Well, Lou, word of the court's decision has not officially been announced, at least by way of the media to the people here in Cuba. So they are unaware as to what has transpired.

However, it is quite clear that the word will be quickly spread amongst government leaders here. They had been waiting, just like many, Americans had been waiting, on what the court's decision was going to be in this regard, and likewise, like many Americans even in the aftermath of this announcement, are going to be sifting through over what exactly does it mean and what prospect does it hold for the long-term future of the boy and what they have always wanted, which is Elian Gonzalez coming back to Cuba.

Even just by knowing what officials have felt in the past, they thought it was a fairly black-and-white issue here, that the government of the United States, that the Immigration and Naturalization Service, that Attorney General Janet Reno, that the Justice Department, that the president of the United States have all said that the boy should be returned -- end of story, end of debate. They've always felt that the boy must come back.

Trying to understood now what the intricacies will be because of this particular court's ruling and what other court action may follow is going to be something that may be very difficult and very -- something they are going to ponder very, very carefully now, because they have felt that since the U.S. president said the boy should come back, that would be the way it is.

It is very difficult right now to look at this ruling and clearly try to figure out what the immediate future is going to be, either for the boy being reunited with his father, which is certainly what Cuban leaders want, but they also look at the long term, which is they want the boy to come back to Cuba and they would like that to be as soon as possible.

WATERS: And Marty, we should point out that the U.S. attorney general, who is strongly involved in this case, met with reporters earlier today for her weekly briefing and came out strongly in support of Juan Miguel Gonzalez, the father. Let's hear what she had to say.


JANET RENO, U.S. ATTORNEY GENERAL: What we have focused on is the role of his father. His father had a role in raising Elian. I think everyone who has seen this little boy upon his first coming to this country see how he withstood so valiantly the time in the sea has got to conclude that both his parents did a very good job of raising him, and now it is time for his father to be on with that task.


(BEGIN VIDEO CLIP) RENO: I have been concerned that the boy has been separated from his father in a most difficult situation, where it appears that he is not able to lead a normal life: get sleep, go to school. And I think it's important that the time comes that he quickly -- that he is returned to his father in a safe way with as little disruption as possible.


WATERS: And Marty Savidge in Cuba, how would the government there be expected to react knowing that Juan Miguel Gonzalez has a powerful ally in the United States attorney general here?

SAVIDGE: Well, they'd be very pleased to know that, but they'd also be -- have to be very frustrated I think that there was -- there was support that was coming or advice being given to the Cuban leadership here that if Juan Miguel Gonzalez goes to the United States and personally appeals for the return of his son, that that would be a very quick process that would take place.

You have to remember there were many in the United States that were critical for a long time that Juan Miguel did not go to the United States. And the reason, he said, one of the reasons he said he did not wish to go was that he was fearful that it would be a long protracted battle into which he would be pulled into the fray and still not have custody of his son. And many people doubted that and said, no, it was that he could not leave the country or that he did not wish to leave the country.

Ironically, that very -- very thing he feared was going to happen now appears to have transpired. He's been in the United States almost two weeks, and he still hasn't got his son. And now according to this court ruling, it could be some time still before he sees his, let alone take him out of the country.

WATERS: All right, Martin Savidge, keeping watch in Havana, Cuba today, where parts of the Cuban population will get this news. News goes this way from Havana, because we have bureau there, but it doesn't go that way.

ALLEN: Right, and the news being that the 11th Circuit Court of Appeals here in Atlanta has ruled that Elian Gonzalez can stay in the United States for now while the Miami relatives appeal a decision on whether he can get an asylum hearing.

The big question is where he will go in the meantime.

"TALKBACK LIVE" will pick it up from here. I'm Natalie Allen.

WATERS: I'm Lou Waters. We'll take a break. More of the story when we come back.



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