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Court Rules Against Asylum Hearing for Elian; Considered Victory for Boy's Father, U.S. Government

Aired June 1, 2000 - 12:00 p.m. ET


JEANNE MESERVE, CNN ANCHOR: A federal appeals court in Atlanta has ruled that 6-year-old Cuban boy Elian Gonzalez is not entitled to an asylum hearing. The decision, issued last hour, is a victory for Elian's father, a victory for the U.S. government and a defeat for the child's Miami relatives who want him to stay in the U.S.

CNN's Gary Tuchman is outside the 11th Circuit Court of Appeals, in Atlanta, where the decision was handed down.

Gary, what rationale did the judges give?

GARY TUCHMAN, CNN CORRESPONDENT: Well, Jeanne, I'll tell you, it was exactly 40 days ago that Elian Gonzalez was forcibly taken from his Miami relatives' home. This may be their worst day since then, because this 33-page ruling is a huge victory for Elian's father, a huge defeat for the Miami relatives.

The rationale, you pointed out, well, one thing the Miami relatives said is that Elian Gonzalez should not go back to Cuba because he'll be persecuted if he goes back to Cuba. And the three- judge panel did allude to that in the ruling, the three judges said, "the essence of plaintiff's asylum claim was that if he's returned to Cuba, he will not enjoy the freedom he has in the United States; he might be forced to undergo reeducation and indoctrination in communist theory; and he might be used by the Cuban government for propaganda purposes. No one should doubt that if the plaintiff returns to Cuba, he will be without the degree of liberty that people enjoy in the United States and reeducation, communist indoctrination, and political manipulation are not beyond the realm of possibility."

But the court then added: "Congress, largely, has left the task of defining with precision the phrase 'well-founded fear of persecution' to the INS." And that's an important declaration, because it is the INS that said earlier that Elian Gonzalez should not have asylum hearing and that he should indeed return to Cuba with his father.

The conclusion from the judges: "because the preexisting law compelled no particular policy, the INS was entitled to make a policy decision. The judgment of the district court is affirmed." The district court in Florida said there should be no asylum hearing. These three judges today, say by a 3-0 margin, that he's not entitled to an asylum hearing. Now does that mean that Elian Gonzalez is boarding an airplane today and heading back to Cuba? It does not mean that, because the court has given the Miami attorney -- the Miami Relatives' attorneys the right to file an appeal. It has given them 14 days to file that appeal and the clerks in the office here say that Elian will have to stay in the United States until that appeal is followed.

This is Gary Tuchman, CNN, live in Atlanta.

MESERVE: And now we're going to turn to CNN legal analyst Roger Cossack.

Roger, already the Miami relatives are turning for help to the U.S. Supreme Court.

ROGER COSSACK, CNN LEGAL ANALYST: Right, Jeanne, they have asked Anthony Kennedy to grant them a stay to make sure that Elian doesn't leave that country until presumably, the United States Supreme Court can hear it. Now we know that the 11th circuit has said 14 days to file an appeal and that probably means 14 days within the 11th circuit, but it may mean 14 days with the Supreme Court.

But one of the things I'm sure they're asking Justice Kennedy for would be an extension of that 14-day period. So, we will have to wait and see exactly what the terms are and what they are asking for, but they have gone to Justice Kennedy for help.

MESERVE: Now the family can turn to that three-judge panel that has just ruled, to all the judges of the 11th circuit or the Supreme Court is this an indication they may be choosing the Supreme Court route?

COSSACK: Well, I would think so, and I think that one of the reasons is is that the that's decision come down from the 11th circuit, I don't see great hope for them in terms of getting, at least the 11th circuit, to give them any different kind of opinion. What the 11th circuit basically did was say this: Look, they said the statute says anybody can apply for political asylum. But they say the statute doesn't say how you apply for political asylum. So it's up to the INS to decide what you do and how you do it.

So then they said, well, let's look at the INS policy and procedure and see whether or not it's OK. Does it violate due process? And they went over it step-by-step and they said: One, you know, a 6-year-old can't do it, there's nothing wrong with that, a father should speak for him. There's nothing wrong with that, unless there's special circumstances, and just by the fact that he's going back to Cuba, that's not special circumstances.

MESERVE: Very quickly, having looked at this decision, do you think there are good grounds for the family to appeal -- the Miami family?

COSSACK: There's always grounds to appeal, but do I think they will be successful? in a word, no.

MESERVE: Roger Cossack, thanks so much.

And now to the mood in Miami, we go live to the Little Havana neighborhood where Elian stayed before being reunited with his father. CNN's Susan Candiotti is there -- Susan.


Here there is quiet desperation, there is huge disappointment among those who wanted 6-year-old Elian Gonzalez to have his political asylum claim heard. They have gathered outside the home where Elian Gonzalez did live for four months before armed U.S. agents seized him just last month and reunited him with his father in the Washington area. People here now believe there is virtually no chance that, of course, he'll ever be coming back here again. Many Cuban flags remain, many American flags remain, and politically charged murals hang along with photographs of the little boy and his mother who drowned in her attempt to reach U.S. shores.

People here have been comforting each other since they learned the decision. There is sadness, anger and frustration, and some people told me, quote, the decision makes them "lose faith in the U.S. government." Others here say, yes, they recognize that appeals will be filed. However, they held little hope at this time that those appeals will have much success.

What will happen as the day goes on? Well, leaders of the Cuban exile community who have organized demonstrations in the past say that this will probably be a gathering place for people who want to express their disappointment. But they think that everyone here is in control because there is a sense of resignation among many of those people here. So they do expect some demonstrations and they plan in the future a symbolic flotilla to Cuba to express their disappointment.

Susan Candiotti, CNN, reporting live in Miami.

MESERVE: And now to Cuba. CNN's Havana bureau chief, Lucia Newman, is there.

Lucia, any reaction yet from the Cuban government?


Well, just a few minutes ago, Cuban state television read out a very short communique, simply just saying what the decision in Atlanta had been, but not having any opinion, just saying that they had to wait, that people had to wait at least for another hour for the government to read the decision carefully and draw some kind of a conclusion.

Right now, there are more questions than answers here. People want to know how long it will take for Elian to be able to leave the United States, whether he can return immediately or whether he must remain in the United States weeks or perhaps even months longer. In fact, in this morning's newspaper, the official newspaper of the Communist Party, there was an official communique warning the people that no matter what the decision was, they should not draw any conclusions quickly.

There is, indeed, in this country a great amount of distrust of the U.S. justice system, at least in its ability to do what Cuba considers the right thing in a quick and expedient way.

One government official told me when discussing the possibility that Elian may have to remain weeks or months more in the United States pending more appeals, he said, how much longer will they continue to abuse the father and the son. This is an aberration.

This is Lucia Newman, reporting live from Havana.

MESERVE: We do expect further developments and comment on this story today. We're expecting at 12:30 that lawyers for the Miami relatives will hold a news conference. We're also expecting to hear from Greg Craig. He is the attorney representing Juan Miguel Gonzalez.

Also, at about 2:00, Attorney General Janet Reno, who has been very much involved in this case, will be making remarks. CNN, of course, will carry them live.

We're going to go now to the Washington estate where Elian and his family and friends have been staying.

CNN national correspondent Bob Franken is there.

Bob, any sign?

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, Jeanne, Juan Miguel Gonzalez, his father, just a short time ago took the convoy that always accompanies him in the United States down to the attorney Greg Craig's office. Before Mr. Craig makes any public comment, he wants to explain to Mr. Gonzalez exactly what the court did and how soon he might plan on going back to Cuba.

The context, of course, is that Juan Miguel Gonzalez, the father of Elian Gonzalez, has expressed bitter frustration at the length of time it's taken to go through this process. He, in fact, said that he was going to, no matter what this court ruled, get on, quote, "the next plane back to Cuba."

Well, his lawyer is explaining to him that that just can't be the case, that there is right now for an indefinite period of time an implied extension of the injunction which requires them to stay in the United States. So they're going to just have to wait.

And they've been waiting, of course, at this estate in northwest Washington. It's a very upscale part of Washington, D.C., part of the experience that the Gonzalez family has had in the United States, particularly since Elian was turned over to his father. It looks like they're going to have to continue that experience as they wait out the U.S. court system -- Jeanne.

MESERVE: Bob Franken, thanks so much. The appeals court ruling is a victory for Attorney General Janet Reno and U.S. Immigration officials who maintain that only the boy's father has a right to speak for Elian.

CNN's Pierre Thomas is at the Justice Department now -- Pierre.

PIERRE THOMAS, CNN JUSTICE CORRESPONDENT: Jeanne, the Justice Department and INS officials are very happy with this decision. One source told me this morning, if the court had went another way, the notion that a 6-year-old could speak for itself they thought would have set a very negative precedent.

So the Justice Department is very, very happy. We are scheduled for a -- expecting a 2:00 p.m. press conference in which the attorney general, INS Commissioner Doris Meissner, and perhaps Deputy Attorney General Eric Holder will talk about the decision.

Now the Justice Department is in, basically, a wait-and-see mode to see what the attorneys for the relatives in Miami will do -- Jeanne.

MESERVE: Pierre Thomas, thank you.

And for the complete text of that appeals court decision, you can go to Also there, background on the Elian case with a timeline, a who's who and a message board to which you can add your comments. Check out that Web site. Once again:

And "BURDEN OF PROOF" will have much more on all the legal possibilities of the Elian Gonzalez case. That's coming up at the bottom of the hour, right after "NEWS DAY."



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