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Court Rules Against Asylum Hearing for Elian Gonzalez

Aired June 1, 2000 - 11:00 a.m. ET


DARYN KAGAN, CNN ANCHOR: A decision is expected today, any moment, in the Elian Gonzalez case. Will his father win the right to take him back to Cuba or will the court hand a victory to the Miami relatives?

This is a CNN special report.

BILL HEMMER, CNN ANCHOR: Want to welcome our viewers once again. Good morning, everyone. I'm Bill Hemmer in Atlanta at the CNN Center.

KAGAN: And I am Daryn Kagan. We are going to continue to follow this developing story. Again, we are looking at this typical day for Elian Gonzalez. We are awaiting a ruling from a 3-judge federal appeals panel. The decision centers on whether the 6-year-old can apply for asylum on his own, or whether only his father can speak for him.

CNN national correspondent Gary Tuchman is posted at the federal court here in Atlanta and he joins us now live -- Gary.

GARY TUCHMAN, CNN CORRESPONDENT: Well, Daryn, 40 days after Elian Gonzalez was reunited with his father, a major decision is about to be handed down. It is literally coming out of the courthouse right now on paper. I have a trustee CNN colleague running over to me. What I'm going to do is start reading it to you on television, and I will interpret it as we go along. It is a many page statement here and I am going to start reading the very beginning of it.

The beginning of it just sums it up at the beginning of the case. I'm reading the last page, which usually has the ruling, and in the last paragraph, it says, "because the preexisting law compelled no particular policy, the INS was entitled to make a policy decision. The policy decision that the INS made was within the outside border of reasonable choices. The judgment of the district court is affirmed."

What that means, the district court says that Elian Gonzalez is not entitled to an asylum hearing. This court has affirmed the decision. Therefore, Elian Gonzalez is not entitled to the hearing. The Miami relatives have lost. The family of Elian Gonzalez, who lives in Cuba and the U.S. government has won the case.

There is a lot of pages here. What I need to do is read it inside and see if the government is continuing, if this court is continuing to say that Elian must stay in the country while future appeals are explored. But right now, our initial read on this, and we will explore it some more is that the Miami relatives have lost their case, Elian Gonzalez is not entitled to an asylum hearing, exactly what his father wanted. The possibility exists that Elian could go back to Cuba very soon. We will read more of this to find out if he needs to stay in country while future appeals are explored.

Daryn, back to you.

KAGAN: All right, Gary, we will let you go, and let you read more, and then report back to us on what we find out on whether or not, Elian Gonzalez does have to stay here. Once again, as Gary was reporting, this three-judge panel has affirmed the lower court's ruling, that Elian Gonzalez does not have a right to a political asylum hearing.

To give you some background here, today's expected ruling in the Elian Gonzalez case is the latest chapter in a saga that started last November, that is when Elian was pulled from the sea and placed in middle of a legal tug-of-war.

Details on that now from our Susan Candiotti.


SUSAN CANDIOTTI, CNN CORRESPONDENT (voice-over): By the time legal wrangling over Elian Gonzalez moved to a federal appeals court in Atlanta, it had been churning for months in Florida.

When the youngster, then 5 years old, was rescued last November, he was placed in the temporary care of his great-uncle. Three asylum applications were submitted on Elian's behalf, all rejected by the Justice Department. In January, it decided the boy's father was the only one who could speak for him and suggested the two should be reunited by mid-January.

DORIS MEISSNER, INS COMMISSIONER: We believe that this decision can be carried out without INS's taking charge of Elian.

CANDIOTTI: As we now know, that wasn't to be. But the INS's January decision moved the battle to court. A family judge granted temporary custody of Elian to his great-uncle.

SPENCER EIG, MIAMI RELATIVES' ATTORNEY: We also expect that this ruling will cause the U.S. Department of Justice to reverse its earlier decision that only Juan Miguel Gonzalez has a right to speak for Elian.

CANDIOTTI (on camera): It did not. But armed with a state judge's ruling, in January, attorneys for the boy's extended family filed a federal lawsuit at this court in Miami requesting a political asylum hearing.

(voice-over): In March, a federal judge dismissed that lawsuit and agreed with the government's decision that Elian's father should determine his son's future. JANET RENO, U.S. ATTORNEY GENERAL: The Justice Department wants to follow the court's admonition that we not delay the opportunity for this little boy to be with his father.

CANDIOTTI: After the Miami relatives appealed that decision to a federal appeals court in Atlanta, they suffered a blow back in Miami, where a new Florida family court judge revoked the great-uncle's temporary custody.

In early May, Lazaro's lawyers and government attorneys made their case before the federal, three-judge panel in Atlanta. Meantime, the boy at the heart of the real life drama is riding out the legal maelstrom with his father, and visiting Cuban schoolmates in Maryland.


CANDIOTTI: Now that we know what decision is, AND of course by now, Juan Miguel Gonzalez and Elian and his entourage are living in the Washington, D.C. area, perhaps you could make out a little bit over my shoulder here, the people here outside Elian's house are just now learning what the decision is, and it appears to go against them. These people are gathered around, listening to a Spanish language radio station, and again are just beginning to learn what the court's decision is all about.

Now, attorneys for the Miami relatives have said that, if they lose to the circuit court of appeals, their plan was to immediately ask the court, and we are now only learning whether the court has automatically extended an injunction, I don't know that for sure as yet; if it did not, then the attorneys are immediately filing to extend that injunction to ensure, that Elian remains in the United States, while they file for an appeal.

Now, the relatives can either file for that appeal, right there at the 11th Circuit Court or they could go directly to U.S. Supreme Court. In any case, the lawyers were going to be at both locations to make a filing.

Exile leaders here have said, that if the ruling goes against their wished for the boy to be given a political asylum hearing, they intend to stage some demonstrations in Miami this day. However, authorities here say that they don't expect any problems.

Susan Candiotti, CNN, reporting live in Miami.

HEMMER: All right, Susan, very good, stand by there, we will be back in touch.

Meanwhile, back here in Atlanta, want to pick things up again with Gary Tuchman, who has been going over that ruling.

Gary, any indication in that wad of papers you have there about that injunction? does it stay in place? is it lifted? where does it stand? TUCHMAN: Well, Bill, this is a 33-page ruling, and I have gone through each page as quickly as possible, nowhere in these 33 pages does it say that Elian Gonzalez must say in the United States. That doesn't necessarily mean he will be leaving for Cuba immediately though. Lawyers for the Miami relatives could go inside this courthouse and file an appeal asking for an emergency stay of that injunction. So we cannot conclude that he is free to leave. However, it does not say on any of these pages that Elian must stay in the United States, and that is a very important.

We should also point out that what the Miami family had said was that Elian deserves an asylum hearing, not only because he wanted one, but because it would be dangerous for him to go back to the communist state of Cuba.

And I want to read to you a segment what it says here in this ruling. It says that "INS policy does worry us some. According to the INS policy, a parent living in a communist totalitarian state is no special circumstance sufficient in and of itself to justify consideration of a 6-year-old child's asylum claim against the wishes of a non-resident parent. We acknowledge, as a widely accepted truth, that Cuba does violate human rights and fundamental freedoms, it does not guarantee the rule of law to people live in Cuba."

But it continues, "Nonetheless, we cannot properly conclude that the INS policy is totally unreasonable in this respect."

This ruling says that the INS ruled properly, that the 6-year-old has a father, and if the father wants his son to go back to Cuba, the U.S. government has no right to make this child have an asylum hearing. And therefore, what the Miami relatives want will not be granted.

No, at this point, it does not say that Elian has to stay in the United States. But a last-minute appeal could still be filed. So we cannot conclude that Elian Gonzalez is free go to Cuba at this very moment.

Back to you.

KAGAN: Gary Tuchman reporting to us from downtown Atlanta.

We also have Pierre Thomas in Washington, outside the Justice Department. The Justice Department, of course, overseeing the INS.

Pierre, what kind of reaction do we have coming out of Justice?

PIERRE THOMAS, CNN JUSTICE CORRESPONDENT: Daryn, I just got off the phone with a senior INS official. They are obviously very happy, very gratified by the court's decision. They point out that this is a second major decision that has gone against the family, that the earlier federal district court judge had ruled the exact same thing that this particular court had ruled, but again, great relief at the Justice Department.

Now, in terms of whether Elian and his father can leave immediately, Justice sources are pointing out that typically, in cases like this, you have a 52-day period, in which the losing side can appeal. They also say that because the order does not specifically address the injunction of whether Elian is allowed to leave, that that injunction could be read to be remain in effect, at this point. So, the fact that they did not specifically lift it is something we should focus on. But, again, they are saying that we can expect probably a 52-day period in which the family would get a chance to appeal.

KAGAN: Pierre, 52 days, that seems like an odd number of days; is there a significance to that, do you know?

THOMAS: Again, this a according to federal court rules, that was a readout we got on background from Justice Department officials. We will following up on that to get more particular information about that, but again, the feeling is that don't expect Juan Miguel or Elian to be on a plane today.

KAGAN: All right, Pierre Thomas from outside Justice Department. Pierre, thank you.

HEMMER: We are wrapped in legal talk this morning. Let's pick things up Roger Cossack, our legal analyst up there in Washington. Quick reaction, Roger, your thought?

ROGER COSSACK, CNN LEGAL ANALYST: Well, Bill, I think that most of us expected this decision. The only thing that was curious about this was initially when the 11th Circuit Court issued their stay and issued the injunction, they made sounds like, in fact, they were going to come up with a different ruling. Nobody really thought that there was grounds. This seems to be what most people felt was the proper ruling. And I agree with what Pierre said. I think there is a 52-day period. There is the opportunity for the family in Miami to file appeals.

But as I wanted to point out before, there is no guarantee that the Supreme Court would hear this case. There is no guarantee that there would be a review by the 11th Circuit, either en banc, meaning all the judges, or just the three judges that heard it.

So there's no guarantee that there's going to be appeals, but there is a stay period.

HEMMER: Roger, quickly, on the other issue about the injunction, that seems to be the wild card in all of this. Right now, we're not quite sure if, legally, Juan Miguel can take his son and fly out of the country, or if the court process will keep him here.


HEMMER: Are you shocked or surprised at all that the injunction issue wasn't directly addressed in the pamphlets we have with Gary Tuchman?

COSSACK: Well, with all due respect to my friend Gary Tuchman, I have not yet seen the complete decision...

HEMMER: Agreed, yes.

COSSACK: And I would not want to say that it has not been addressed. That has yet to be discussed. And -- but I would say this, that I don't think he'll be on a plane today going back to Cuba.

HEMMER: So what's the next move, then, for the Miami relatives and their legal team? What do they do?

COSSACK: Well, they have that option. They can appeal back to the three-judge panel and ask for a rehearing, but I don't think they're going to get that. They could also ask the 11th Circuit for what's called an en banc hearing. That means -- I think there's 12 judges, all 12 sitting together to make the decision. But, again, that's not a right and would be very -- I think it's going to be a long shot that they would get that hearing, although they can ask for it.

HEMMER: And the option's the Supreme Court, right?

COSSACK: Go right to the Supreme Court, right.

HEMMER: OK, Roger Cossack. Roger, stand by there. More reaction from you coming up.

Now back to Daryn, quickly.

KAGAN: Miami Police had a heads-up that the ruling was coming down today, the idea that there could be a concern of what the reaction might be to today's ruling.

Let's check in with Mark Potter who is live with us in Miami -- Mark.

MARK POTTER, CNN CORRESPONDENT: Hey, Daryn, we're in Coconut Grove at a restaurant near downtown Miami where the legal team for Elian Gonzalez's Miami relatives and the relatives themselves are expected to hold a news conference, maybe within the hour or so. We're told they're down the block, a couple of blocks away at the offices of Kendall Coffey, the lead attorney on the appeal, discussing this ruling, deciding what to do. And once they have made that decision, they will come here and announce it to us.

This, of course, is a big blow to the Miami relatives. This is bad news for them, and we can fully expect that they will announce that they're going to appeal either, as Roger said, to the appeals court in Atlanta, or to the U.S. Supreme Court.

No indication yet of the reaction from the family. Of course, we can predict that a very negative reaction. This was not at all what they wanted. This is very bad news. It's one step further in sending Elian Gonzalez with his father back to Cuba.

Back to you.

KAGAN: OK, Mark Potter.

And when we hear the news conference is starting with the Miami relatives, we will, of course, show you that live here on CNN.

Right now, I want to show you some live pictures from Little Havana. These are people who are starting to gather in the streets of Little Havana. This just moments after the 11th Circuit Court of Appeals released the decision that 6-year-old Elian Gonzalez will not be granted a political asylum hearing. We also understand, according to our Gary Tuchman, there was no mention in there of the injunction that keeps Elian Gonzalez here in U.S. That might upset some in Miami in the Little Havana community.

We'll continue our coverage. Here's Bill.

HEMMER: In the past few days, we did see some videotape of Elian at the aquarium in Baltimore. But photo opportunities of the young Cuban boy have been few and far-between for the past month and a half.

Bob Franken outside the area where Elian and his family and classmates are staying in Washington, D.C.

Any reaction just yet, Bob?

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, no reaction. Here's what we do know: that the next thing that will occur is that Juan Miguel Gonzalez, and perhaps others in his party, will be meeting with the attorney, Greg Craig. What we don't know is whether they're going to make the drive downtown or the attorney, Greg Craig, is going to come here to the residence in northwest Washington where they've been staying for the last week or so. They've been waiting for this ruling, very anxious about this ruling. Whatever the next move comes in this context.

Juan Miguel Gonzalez, by all accounts, very, very much wants to return to Cuba now. He told somebody who spoke with him the other day, who then reported to CNN, that he was on the next plane out of here the moment that the court ruled no matter what the ruling. Well, that's been tempered by his attorney, Greg Craig, who says that if the injunction remains in effect, we will obey the injunction.

As we've already had pointed out by Roger Cossack and Gary Tuchman and Pierre Thomas, it is a question whether or not the absence of any declaration on the injunction means that it stays in place. If the judge has obviously said the injunction is vacated, that would be one thing.

Comes now the question of further appeals. We found out that there are going to be other appeals. The lawyers have to decide whether, in fact, that means that the family has to stay here a little bit longer. There's going to be a discussion about that. I can tell you with some assurance that Juan Miguel Gonzalez is going to be saying, enough is enough. But apparently it is not the feeling in many people that already it is enough -- Bill.

HEMMER: Bob, we were given an indication earlier today that Greg Craig was going to come before a microphone this morning. Do you have that same indication? FRANKEN: He hasn't decided yet what he's going to do about that. The first thing he's doing is scurrying to read the opinion. I can tell you that at the same time, he's probably on the phone in some anxious conversation with his client, Juan Miguel Gonzalez.

HEMMER: There is also some reporting the reason why they moved to that residence where you are is because it's closer to an airport. Staying away from speculation here, we have not seen them thus far today, correct?

FRANKEN: We have not seen them. Of course, they are very heavily protected by U.S. Marshals. It's closer to an airport. It is also just a block or so from the home of Greg Craig. And on occasion, he has come by here. As a matter of fact, he ribbed me this morning to say I drove by and saw you, Bob, decided it wasn't a good idea to stop. Probably wasn't. He would have been mobbed by cameras, certainly ours.

HEMMER: All right. Well, hang there, Bob, please.

Bob Franken live in D.C. -- Daryn.

KAGAN: We want to go right to the source of the information here. Our Gary Tuchman standing outside the court building in downtown Atlanta reading through more of the decision from this three- judge panel.

Gary, what more do you have?

TUCHMAN: Daryn, some very important information that we've culled from the clerk's office based on a short footnote on the last page of this 33-page ruling. It says here: "We order that if petitions for rehearing or suggestions for rehearing are to be filed, they must be filed within 14 days of this date. Expect no extensions." That means an appeal must be filed by the Miami relatives' attorneys within 14 days.

Now, we went up to the clerk's office, asked what that meant as far as Elian leaving the country. The clerk's office says that means, even though it doesn't say here, the injunction is still in place for 14 days, that Elian Gonzalez must remain in the United States of America for at least two more weeks while appeals are filed in this case.

So it does not say the word "injunction" in this ruling, but the court clerk's office here at the appeals court in Atlanta says 14 days to make an appeal. Elian must remain and not go back to Cuba right now.

Back to you.

KAGAN: OK, new and important information. Gary Tuchman in Atlanta, thank you -- Bill.

HEMMER: From Atlanta back to Little Havana, Susan Candiotti in that Miami neighborhood. Susan, what's happening now?

CANDIOTTI: Hello, Bill. People here are very disappointed, to say the very least. They listened to Spanish-language radio stations as the decision was made public.

I just spoke with someone who was at the family's home each and every day throughout this entire story and situation. He is a member, again, of the Cuban American National Foundation. He told me that, in his opinion, this decision makes him lose faith in the U.S. government because, all along, what he and some of these other people are saying, that they thought that the fair thing would be, in their opinion, was to give Elian his day in court. It mattered not to them that, according to the judge's in this case, that the INS should be able to use its own discretion. In their opinion, that doesn't work. Either Elian got his day in court or he did not.

So they say that they are resigned to -- despite the fact that appeals will be filed, they themselves say that they are resigned to the fact that the boy does indeed appear to be going back to Cuba at some point.

There has been a sense of melancholy, particularly in the Cuban exile community here, among many members of the Cuban exile community here, ever since the boy was seized by INS agents just last month and returned to his father, reunited with his father in Washington. Many exiles here maintain that, in their view, Elian is, in their words, being brainwashed by elements of the Cuban government while he has been living with his father in the Washington area.

So exile leaders here say and have said all along that if the decision went against their views, their opinion, what they wanted, that they would plan to stage some demonstrations in the Miami area. However, authorities have said throughout that -- say at this point anyway -- they have not brought in additional personnel. But they are prepared to do so, they say, if that becomes necessary.

But so far, a very calm scene here as people are gathering around outside the home where Elian had been living because many of these people say they realize that there is still an appeals process to come -- Bill.

HEMMER: All right, Susan.

As we look at the videotape there courtesy of WSVN, our affiliate down there in Miami, the crowds are not nearly as intense as they have been on previous days concerning this saga. But that could change. It's early: 11:19 a.m. on the East Coast, that decision only out now nearly 20 minutes time.

Now Daryn.

KAGAN: From Little Havana to Havana, Cuba, let's bring in our Havana bureau chief Lucia Newman, joining us on the phone.

Lucia, any reaction yet from the Cuban government? LUCIA NEWMAN, CNN HAVANA BUREAU CHIEF: Good morning, Daryn.

Well, first of all, let me say that Cubans had been waiting anxiously for this court ruling, and word in fact got out on the street that it was coming even before the government announced officially that it would come down today. Now the decision of course is the one that the majority of the Cubans had been waiting for.

But, a government communique that was published on the front page of today's Communist Party daily cautioned people not to draw any hasty conclusions whatever the ruling was. The communique said that the information would be supplied to the people throughout the course of the day, after the ruling was fully analyzed.

Now, there has been no official reaction yet. In fact, the announcement has not been made official yet. But, when I discussed the possibility with a high level government official that Elian and his father may still have to remain in the United States to wait another appeal, he said, quote, "How long will they continue to abuse the father and the son in this way, This is an aberration." Daryn?

KAGAN: Lucia, if you could explain to us the delay, as you said, the government said: Don't worry, we will be telling you, and deliver the news, what takes so long?

NEWMAN: Well, it is quite extraordinary because they have been -- there has been a television program, an unscheduled television program on all morning, precisely to keep people posted on what's going to happen. It has been now nearly 20 minutes since the announcement was made in Atlanta, and yet there has not been a word of it yet on Cuban state television. They are slow here, generally, in coming up with news, and analyzing them well, and I suppose that officials are still trying to decide just how to make this announcement. They are still looking at the details, as they are coming in right now -- Daryn.

KAGAN: All right, and Lucia, and we will have to go ahead and check back with you, as that news is announced in Cuba -- Bill.

HEMMER: OK, Daryn, back to Roger Cossack.

Roger, we heard from Gary Tuchman about this 14-day period, where that injunction still stands. Clear that up for us right now. What does that mean?

COSSACK: Well, that is sort of extraordinary because what the court is saying, and they are taking -- they are taking recognition of, is the fact that they don't want this stalled out forever. So what they are saying is this: If you want to appeal our ruling, and you have a right to do so, you've got 14 days to do it; no more, no less. We are not going to give full time. We are not going to let you drag this out. If you want to ask us for a rehearing, if you want to ask us for en banc hearing, things that we previously talked about, you've got 14 days to do it. And the implication therefore being, and what Gary found out from the clerk is that, therefore, he will stay here 14 days, but we are not going to let you just drag this out forever, you've got 14 days.

HEMMER: OK, good clarification. Roger, as we continue to talk, want to let our viewers know that we are going to be in the insert there in the video screen there, the pictures live from Miami, Florida. This, again, the Little Havana neighborhood where Elian had stayed for the better part of five months when he first came -- first pulled from the waters off the Florida Strait back in late November.

Roger, assuming from your answer there, and again, we are talking for the attorneys now, they are going to talking in front of microphones shortly, but one would assume that they are going to issue an appeal on the injunction, at least, to keep Elian here. Is that the way you see it?

COSSACK: Well, if I was the lawyers for the Miami family, one of the things I would be going to the court is to say: Look, can we continue this injunction until everything is over? But I think the implication of this 14-day period is that the 11th circuit is saying: Look, you've got 14 days, and the implication, therefore, being is that we are not going to just keep this young boy here forever, while you go through the court -- delay going through the court system. We want to get this expedited. Yes, you have a right to appeal, and we expect that you probably will, but you are going to do it quickly.

HEMMER: All right, Roger Cossack in Washington, again, thanks.

And as we look at the Little Havana neighborhood, we see the crowd gathered there, again, not with same intensity we had seen previously. However, we'll track it throughout the day. Roger, thanks again.

Here is Daryn.

KAGAN: Also down in Miami a little bit from now, we expect the attorneys for the Miami relatives to be holding a news conference at a restaurant there. When that news conference begins, we will bring that to you live.

Right now, live pictures from Miami I believe. There we are, live pictures from Little Havana. This is the area right outside the home, where Elian Gonzalez stayed for about five months, from the time he was taken from the waters off of Florida, around Thanksgiving, until April 22 when the INS staged a raid and came in and took him and reunited him with his father.

We continue our coverage of the latest in the life of Elian Gonzalez, and this latest legal ruling from 11th Circuit Court of Appeals.

Right now, we will go ahead and take a quick break, and be back with more right after this.



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