Heat on Reno as Elian relatives ignore court

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The Independent US

The US Attorney General, Janet Reno, was grappling with the latest twist in the case of Elian Gonzalez yesterday after the appeals court ruled that the child must stay in the United States for the time being, but did not specify which side of the warring family should care for him.

Ms Reno and the US immigration service insist that the child belongs with his father and formally ordered his transfer last week. But the relatives in Miami who took the boy in after his rescue off the Florida coast in November ignored the court order and still refuse to surrender him.

Ms Reno now confronts an unenviable choice: if she orders the removal of Elian from his Miami relatives by force, she risks a possible eruption of violence among Cuban émigrés in Miami. On the other hand, if she leaves Elian where he is, she is allowing the relatives to flout the law and is disregarding the parental rights of the father, Juan Miguel Gonzalez, who came from Cuba to reclaim his child.

Her dilemma was complicated by a further - and unanticipated - aspect of the appeals court ruling, which suggested that a six-year-old child might qualify to apply for political asylum in his own right. The justice department and the immigration service had concurred that so young a child had to be represented by a parent or guardian, and a lower court had agreed, ruling that only the father could speak for the child. Juan Miguel Gonzalez has said all along that he wants to take Elian back with him to Cuba.

In its ruling the appeals court said that the law as passed by Congress referred to "any alien" as having the right to due process of the law, without limitation by age or anything else. This meant, it said - using a phrase much loved by the Miami relatives and their supporters - that Elian had a right to "his day in court". The court also chided the justice department for automatically excluding Elian's right to an asylum hearing, noting that he had expressed a desire not to return to Cuba and had signed an asylum application himself.

This provision of the ruling horrified large numbers of American parents, who jammed talkshow phonelines and internet chatrooms to complain about the potential erosion of parental rights. The provision also suggested a much-criticised gambit by the Miami relatives - a home video of Elian telling his father that he did not want to go to Cuba - may have paid off.

The video was widely condemned by child experts across America who said that the child had clearly been coached and was being shamelessly exploited to suit the adults' political purposes.

It was the ruling on an asylum hearing as much as the order that Elian must remain in the United States until the legal proceedings have run their course that prompted celebrations in Little Havana well into the early hours of yesterday, and which made it that much more difficult for the justice department to intervene by force. Crowds at the house yesterday were far smaller than the hundreds who had assembled the previous day when the ruling was imminent.

Buoyed by the previous day's victory, though, they were excited and confident, and in no mood to stand by if government officials came to remove the child.

They referred to the court ruling as the second "miracle", the first being Elian's survival of the shipwreck that cost his mother and 10 other refugees their lives as they tried to escape Cuba.

The Miami relatives followed up their court victory yesterday with two small olive-branches. The first was an offer to take Elian to meet his father anytime, anywhere in the United States except the Cuban diplomatic representation in Washington. However, they made it a condition that such a meeting would not result in the handover of Elian.

The second offer was to discuss the appointment of a mediator to bring the two branches of the family together to try to effect a settlement out of court.

There was no immediate response from Juan Miguel Gonzalez to that offer, but he has insisted through his lawyer that he will meet his Miami relatives only if he has his son back first.