Federal Ruling May Clear Way for Elian to Return to Cuba

WASHINGTON — In a ruling that could send Elian Gonzalez back to Cuba within a week, a federal appeals court on Friday refused to take another look at the international custody battle that pitted the boy’s Cuban father against the U.S. family members who fought to keep him in America.

Elian’s Miami relatives said that they would appeal the ruling to the U.S. Supreme Court. But unless the high court decides to intervene, which is considered unlikely, a previous court order preventing the boy and his father from leaving the country will expire at 4 p.m. EDT Wednesday.

In any case, the legal battle that has revived Cold War passions, roiled Miami’s Cuban American community and led Atty. Gen. Janet Reno to order a controversial armed raid to retrieve the boy from the Florida relatives appears to have reached its endgame.

In its ruling, the U.S. 11th Circuit Court of Appeals said that it would not grant any new requests from the Miami relatives, emphasizing the word “not” in boldface letters. “Any further requests for stays or for injunctive relief should be directed to the Supreme Court,” Circuit Judge J.L. Edmondson wrote on behalf of the 12-member court.

Usually, four of the nine Supreme Court justices must agree to hear a case. A single justice can grant a stay or refer a request to the full court. Anthony M. Kennedy is the justice assigned to hear emergency matters from the 11th Circuit.

But it is unusual for the Supreme Court to hear a case unless separate appeals courts have issued conflicting opinions, and that does not appear to be a factor in the fight over 6-year-old Elian.

Armando Gutierrez, a spokesman for the Miami relatives, said that on Monday the family will ask the Supreme Court to hear the case and issue a stay to keep Elian in America.

“We believe that the Supreme Court is the appropriate forum and indeed the only proper tribunal for resolving this issue,” Gutierrez said at a news conference in Miami.

A three-judge panel of the 11th Circuit in Atlanta ruled against the Miami relatives earlier this month, saying that the Immigration and Naturalization Service acted responsibly in denying an asylum hearing for Elian.

“We are pleased that the 11th Circuit Court of Appeals has acted unanimously in denying the motion for rehearing,” Reno said Friday. “Now that the court has conclusively upheld our decision, I am hopeful that this father and son will soon be able to move on with their lives together.”

The Miami relatives had asked the full court to rehear their asylum petition, saying that the panel had misinterpreted federal law and the U.S. Constitution. But the court said in its five-page ruling that the INS decision was the “deliberate and official position of the pertinent agencies of the executive branch of our government.” Such decisions are “still due some deference,” it said.

The legal battle was instigated by the Miami relatives, headed by Elian’s great-uncle Lazaro Gonzalez, who cared for the boy after he was found clinging to an inner tube off the coast of Florida on Thanksgiving Day.

Elian’s mother and 10 others had died when their boat capsized during an attempt to reach the United States.

The INS decided that the boy should be returned to his father, an employee at a tourist hotel in Cuba and Lazaro Gonzalez’s nephew. But the Miami relatives refused to relinquish him and filed an application for political asylum on his behalf.

The lengthy saga electrified Miami’s Cuban exile community. Thousands of Cuban Americans who fled communism in their homeland argued passionately against sending the boy back to the country controlled by their nemesis, Fidel Castro.

On April 22, heavily armed federal agents forcibly removed the boy from Lazaro Gonzalez’s home and reunited him with his father, Juan Miguel Gonzalez.

In recent weeks, Elian, his father, stepmother, half-brother and a group of Cuban friends have been staying in the Washington area as guests of U.S. supporters while the asylum case has worked its way through the courts.

Gregory B. Craig, the attorney representing Elian’s father, said that he would meet with the family over the weekend to talk about their plans for the coming week.

“Juan Miguel is grateful that the 11th Circuit has denied the petition for the hearing and has lifted all stays and all injunctions as of Wednesday afternoon of next week,” Craig said outside his Washington law office.

Before the appeals court ruling was issued, Juan Miguel Gonzalez said through a family friend that he wanted to return to Cuba with Elian as soon as possible.

In Miami, only a handful of people gathered to protest the ruling outside the Little Havana home where Elian spent almost five months. Lazaro Gonzalez and his family no longer live there, but the street remains a gathering spot for those who want to express their hatred for Castro and their desire that Elian remain in the United States.

Gutierrez said that recently obtained U.S. government documents demonstrate collusion between the Clinton administration and the Cuban government.

“Now Elian is under the control of the Cuban government in Washington, D.C., wearing the young communist bandanna in our own capital,” Gutierrez said. “We do not lightly reach the conclusion that the case must be presented to the Supreme Court for its consideration.”

Miami police spokesman William Schwartz said that no significant street demonstrations were expected. “I think that people have learned from the past, realize that the issue has to remain Elian. The issue can’t be the Police Department. The issue can’t be a rowdy crowd. So right now we’re expecting a peaceful reaction to this decision.”

Outside the Rosedale estate in Washington’s Cleveland Park neighborhood, where Elian and his family have been staying, the scene was unusually quiet after the court ruling was announced.

There was no sign of the protesters who congregated outside the estate in the past to express support or opposition to the government’s efforts to return Elian to Cuba. And there was no sign of the boy, his father or other family members.

On Capitol Hill, the focus of U.S.-Cuba relations has shifted from Elian’s fate to whether the United States should loosen restrictions on exports of food and medicine to Cuba and four other nations regarded as international pariahs.

If the restrictions are relaxed, a key goal of many farm-state lawmakers seeking new export markets, it would be the most significant change in U.S. trade policy toward Cuba since an embargo was imposed four decades ago.

Talks among Republican leaders continued this week, and the issue may come to a head next week when the House is scheduled to consider an agriculture spending bill.

Two Cuban American Republicans, Reps. Lincoln Diaz-Balart and Ileana Ros-Lehtinen of Florida, on Friday urged House leaders to quash efforts to relax the embargo. “It is time to remember that these pariah states have the blood of Americans on their hands,” the two said in a prepared statement.

“I only hope that those who are sending him [Elian] back understand the value of freedom--the priceless gift they had the power to give but didn’t,” said Sen. Connie Mack (R-Fla.). “It is indeed a tragedy.”

In Havana, the Cuban government issued a statement briefly noting the appeals court decision but making no comment on it. A statement issued before the decision called on Cubans to remain calm, whatever the ruling.

It said that preparations would continue for a pro-Elian rally today expected to involve about 400,000 people in the eastern city of Holguin.

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Times staff writers Nick Anderson, Mike Clary and Jacqueline Newmyer and researcher Anna M. Virtue in Miami contributed to this story.