Reno Determined To Reunite Boy, Father During Appeal

                  By Karen DeYoung
                  Washington Post Staff Writer

                  A federal court yesterday gave the Miami relatives of Elian Gonzalez a
                  potentially significant legal victory when it ordered that the 6-year-old
                  shipwreck survivor must stay in the United States at least until next month,
                  when it hears their appeal of a government decision that would return him
                  to Cuba.

                  In ruling that the relatives had "presented a substantial case on the merits,"
                  the court left open the possibility that it might embrace their argument that a
                  child can apply for political asylum against his father's wishes. If the
                  government is forced to consider asylum, and then rejects it, subsequent
                  appeals could go on for weeks.

                  One official described government lawyers as "perplexed" by the ruling,
                  and a number of immigration law experts said they did not believe the
                  relatives would ultimately prevail in the appeal, scheduled for a May 11
                  hearing. Even as jubilant Cuban Americans in Miami celebrated the
                  victory, an attorney for the relatives cautioned that "no one should make
                  predictions on the ultimate outcome based on this order."

                  But the decision clearly rattled the Justice Department and the Immigration
                  and Naturalization Service, which throughout the controversy have
                  maintained that no one has the legal right to speak for Elian except his sole
                  surviving parent.

                  Attorney General Janet Reno, who received news of the order aboard Air
                  Force One while traveling with President Clinton to the Oklahoma City
                  bombing commemoration, said in a brief statement that the ruling had no
                  bearing on her "determination that the boy should be reunited with his
                  father" in Washington "as soon as possible."

                  The question of whether Elian leaves the country pending completion of the
                  appeal, she said, is unrelated to who has custody of him while he is in the
                  United States.

                  But with a series of government deadlines for the Miami relatives to
                  relinquish custody set and ignored, White House and Justice Department
                  aides have grown increasingly frustrated that Reno has allowed public
                  expectations to grow without taking action.

                  White House aides said that Clinton--who until now has adopted a
                  hands-off posture and deferred to Reno throughout the nearly five-month
                  international custody dispute--was to discuss the issue with her on the flight
                  back from Oklahoma last night.

                  A government official said that Reno remained "committed to move
                  forward" with a week-old order that Elian be removed from the home of
                  his Miami great-uncle, Lazaro Gonzalez. The official said Reno would sit
                  down this morning "with everyone involved, and see where we are legally
                  and logistically on the ground" in terms of law enforcement preparation to
                  enter Lazaro Gonzalez's Little Havana home and remove the boy, and that
                  she "may give the green light" for removal as soon as today.

                  In an angry statement issued through his attorney, the father, Juan Miguel
                  Gonzalez, said it is "unconscionable to wait one day longer," and called on
                  Reno to carry out the order, and her personal promises to him,
                  immediately. The father, said lawyer Gregory B. Craig, had come from
                  Havana two weeks ago in response to "the express representations of the
                  U.S. government that it would enforce the law and return his son to him."

                  Craig said the government would "bear responsibility" for a "deteriorated"
                  situation in Miami, where the government's own medical expert has said
                  Elian is in "imminent danger" of psychological harm. He said the father had
                  already committed himself to "stay in the United States" during the appeal,
                  and "he stands by that commitment."

                  The government had said it was waiting only for the 11th U.S. Circuit
                  Court of Appeals in Atlanta to rule before enforcing the custody order
                  issued by the INS last Thursday. But despite Reno's stated determination
                  to move ahead on custody, yesterday's court ruling was a disappointment
                  to the Justice Department in more ways than one.

                  In describing the relatives' case as "substantial," it criticized the way the
                  government had handled it and its interpretation of both immigration law
                  and its own guidelines.

                  Repeating a complaint made by the relatives, the three-judge panel said
                  that "it bears repeating that the INS made this determination [that it did not
                  even have to consider an asylum petition] without having met with [Elian]
                  or having any evaluations done on his capacity."

                  The law at the heart of the original U.S. District Court ruling upholding the
                  INS refusal of asylum consideration says that "any alien . . . may apply for
                  asylum." District Court Judge K. Michael Moore said that "any" did not
                  mean "all," and that it is within INS discretion to decide which petitions to
                  consider. "At this time," the appeals court said yesterday, "we cannot say
                  that 'any alien' excludes Plaintiff: given the plain language of the statute, he
                  might be entitled to apply personally for asylum."

                  The INS also had determined that children at the age of 6 are too young to
                  apply for asylum, especially when a child has a responsible parent to make
                  decisions for him.

                  One of the three asylum petitions Lazaro Gonzalez submitted for the boy
                  was signed at the bottom with the word "ELIAN" printed in a childish
                  hand, something that the INS had dismissed as irrelevant. But, the court
                  said, "Not only does it appear that Plaintiff might be entitled to apply
                  personally for asylum, it appears that he did so. According to the record,
                  Plaintiff--although a young child--has expressed a wish that he not be
                  returned to Cuba. He personally signed an application for asylum."

                  "We do not now suggest that the stated intentions of a six-year-old child
                  are dispositive or even entitled to substantial weight in deciding whether the
                  child ultimately receives a grant of asylum," the appeals court said. "Still, a
                  colorable argument exists that a school-age child's expressed wishes about
                  where he wants to live can trigger the requirement that Plaintiff's claim for
                  asylum be given full and fair consideration."

                  Although it cautioned that "no one should feel confident in predicting the
                  eventual result in this case," the court cited numerous INS guidelines that it
                  said "contemplate that a minor, under some circumstances, may seek
                  asylum against the expressed wishes of its parents," and noted that no age
                  limitations were given in those guidelines.

                  As for the two petitions signed by Lazaro Gonzalez himself, the court said,
                  "Lazaro Gonzalez . . . is no stranger" to Elian. "Lazaro's interests, to say
                  the least, are not obviously hostile to [Elian's] interests. So, for now, we
                  remain unconvinced that the asylum application submitted by Lazaro" on
                  Elian's behalf "necessarily was ineffectual under the law."

                  "The true legal merits of this case will be finally decided in the future," the
                  court concluded. "More briefing is expected. We intend to hear oral
                  argument. 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 as the potential
                  inconsistencies of the INS's present position with the plain language of the
                  statute and with the INS's own earlier interpretations of the statute in INS
                  regulations and guidelines, and because of the equities in this case, we
                  conclude that Plaintiff is entitled to an injunction pending appeal."

                  Although it did not order them to do so, the court said "we encourage the
                  parties to avail themselves voluntarily of this Court's mediation services."

                  Staff writers John F. Harris and Sylvia Moreno contributed to this report.

                  The Boy's Journey

                  Nov. 22: Elian and 13 others leave Cuba for United States aboard 16-foot
                  motor boat.

                  Nov. 23: Boat capsizes.

                  Nov. 25: Two passengers come ashore. Elian found on inner tube near
                  Fort Lauderdale.

                  Nov. 26: Elian turned over to great-uncle Lazaro Gonzalez.

                  Nov. 27: Juan Miguel Gonzalez demands son's return to Cuba.

                  Dec. 10: Lazaro Gonzalez apples for asylum for Elian.

                  Dec. 31: INS interviews Juan Miguel Gonzalez in Havana.

                  Jan. 5: INS Commissioner Doris N. Meissner decides Elian "belongs with
                  his father" and must be returned to Cuba by Jan. 14.

                  Jan. 7: Lazaro Gonzalez files petition for temporary custody in state court.

                  Jan. 12: Attorney General Janet Reno upholds father's right to custody.

                  Jan. 19: Lazaro Gonzalez files federal lawsuit to challenge INS ruling.

                  Jan. 28: U.S. lawyers seek dismissal of relatives' federal lawsuit.

                  March 21: U.S. District Judge K. Michael Moore dismisses federal
                  lawsuit, a ruling appealed to federal appeals court in Atlanta.

                  April 6: Juan Miguel Gonzalez leaves Cuba for United States.

                  April 12: Reno meets with boy's relatives in Miami but returns without the
                  boy.

                  April 13: Relatives defy the order to hand over Elian and obtain a court
                  order keeping him in the United States.

                  April 14: Justice asks federal court to order Elian's great-uncle to obey the
                  government order.

                  April 19: Appeals court orders that Elian be kept in the United States
                  pending his relatives' legal appeal. SOURCE: Staff reports and wire
                  services