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Court Rules Against Asylum Hearing for Elian; Miami Relatives Have 14 Days to Appeal

Aired June 1, 2000 - 11:37 a.m. ET


BILL HEMMER, CNN ANCHOR: Once again, live from the CNN Center in Atlanta. If you are just joining us, want to let you know, the court of appeals here in Atlanta has refused an asylum hearing for young Elian Gonzalez.

Gary Tuchman had that decision about 38 minutes ago, back downtown here in Atlanta.

And I believe, Gary, if my memory serves me correctly that decision 33 pages in length, you've been reading quickly. What else do you have?

GARY TUCHMAN, CNN CORRESPONDENT: Well, we have been reading a lot. And as you may know, Bill and to our viewers, there is an injunction in place that prevents Elian Gonzalez from leaving the United States, and going to Cuba.

We want to tell you a little bit more now about the status of that injunction, now that this ruling has gone against the Miami relatives. The court clerk tells us that injunction will dissolve, and this is their quote, "without a further order, when the court's mandate is issued."

What does that means in English? Well, the court has said in this 33-page ruling that "We order that a petitions for rehearing or suggestions for rehearing are to be filed, they must be filed within 14 days of this date, expect no extensions."

So the court mandate continues for at least another 14 days. Therefore, Elian Gonzalez has to stay in the United States for at least another 14 days. He will not be allowed to go to Cuba today. He will have to sit tight for the time being.

Now, we want to read you some interesting wording in thus ruling why the three-judge panel decided what they wanted to. They said, quote, "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. And the INS did not abuse its discretion arbitrarily in applying policy, and rejecting plaintiff's purported asylum applications. The judgment of the district court is affirmed."

What that means is this court says: What the district court said earlier in Florida that Elian Gonzalez was not entitled to a hearing was correct. He will not get an asylum hearing. But he can't leave for 14 days.

With us now is a gentleman. Sir, can we talk with you for a second?


TUCHMAN: With us is an immigration expert, this is Daniel Schwartz, he knows a lot about immigration, he has followed this case very closely. Let me ask you at this point. are you surprised by the decision by this three-judge panel?

SCHWARTZ: Yes, I am surprised.

TUCHMAN: Tell me why you are surprised.

SCHWARTZ: Well, given the court's prior pronouncements and rulings in this case, wherein they seem to come down very hard on the government for not following what they considered to be the government's own procedures in young people's applying for political asylum. I thought they were trying to telegraph that they were angry with the INS for the way this case was handled. So I was quite surprised at the decision this morning.

TUCHMAN: Well, one thing the judges said during the hearing three weeks ago is: Listen to our questions but don't necessarily believe...


TUCHMAN: ... that our questions infer what our beliefs are.

SCHWARTZ: That is correct.

TUCHMAN: So does it still surprise you, based on the fact that they said that?

SCHWARTZ: Yes, it still surprises me.

TUCHMAN: OK, now, they are saying that the, for now, the injunction will stay in place pending appeals, which should be delivered to this court within 14 days. Does that sound like a productive action to take?

SCHWARTZ: Yes it is, and they have shortened the time frame to do that. They have put it on a very fast track of 14 days. The -- Elian's Miami relatives have the option of coming back to this court and asking this court for an en banc hearing, meaning all of the judges in the 11th Circuit would participate in the decision.

It takes a majority of the judges on the court to agree to hear the case en banc before that would happen. Or, in the alternative, they have the right to bypass that and go directly, by appeal, to the United States Supreme Court. But once the 14 days pass, there must be a stay issued in this case for Elian's father, this decision will become final, and Elian's father will have the right to take him back to Cuba.

TUCHMAN: You've practiced immigration law for how many years?

SCHWARTZ: More than 30.

TUCHMAN: More than 30 years, you've been doing it for three decades, would it be unusual for this decision to be reversed?

SCHWARTZ: Well, that's hard to say. If you just look at the statistics, the U.S. Supreme Court reverses a very small percentage of court of appeals decisions. This is, however, a high-profile case. If the Supreme Court chooses to take the case, they may well come out with a different ruling.

TUCHMAN: Daniel Schwartz, thank you very much for your troubles.

SCHWARTZ: You are welcome.

TUCHMAN: We appreciate it.

So Elian Gonzalez will have to stay in the United States for the next 14 days, but his Miami family has suffered a serious legal defeat.

Back to you.

HEMMER: Gary, as we try and figure out the decision and the way -- the reason why it went the way it did, the Miami relatives that argued for a long time that Elian, they felt, would face persecution if, indeed, returned to Cuba. How is that argument addressed in its ruling today?

TUCHMAN: Well, indeed, the three judges on this panel did talk about the fact that Cuba is a communist totalitarian state, but they also said, we have not the slightest delusion about the INS's choices; the choices about policy and about the application of policy that the INS made in this case are choices about what reasonable people can disagree.

Still, the choices were not unreasonable, not capricious, and not arbitrary, but were reasoned and reasonable. The INS's considerable discretion was not abused. despite the fact that they said Cuba is, indeed, a communist and totalitarian state.

HEMMER: All right, Gary Tuchman, again, live in Atlanta.

Gary, thanks to you. We will back in touch.

Here is Daryn once again.

DARYN KAGAN, CNN ANCHOR: And we want to hear more out of the Justice Department. That is where our justice correspondent Pierre Thomas is. He is standing right outside of the Justice building.

Pierre, you have even more reaction or information from Justice? PIERRE THOMAS, CNN JUSTICE CORRESPONDENT: Yes, Daryn, Justice officials are very happy. One source used the word "elated," which is not often that that comes out of the Justice Department. They are very happy that the court ruled in their favor, they point out, again, that two courts have now ruled that the Justice Department and the INS was correct in their proceedings. Also, they point out that, in the state court proceeding, about whether there should be a custody hearing that a state court had ruled against the family as well. So they see that this case is narrowing down, that the options for the Miami relatives are running out.

We also are told that the attorney general has tentatively scheduled a 2:00 press conference. Again, that could change, but tentatively scheduled a 2:00 press conference to discuss this particular ruling -- Daryn.

KAGAN: All right, Pierre Thomas, that would be 2:00 p.m. Eastern. And of course, I'm sure we will show that to you live here on CNN -- Bill.

HEMMER: Also in Washington, Bob Franken. Let's go up to Bob right now, see if there is anything more we can gather, either through Greg Craig, the attorney, or the family itself.

Hello, Bob.

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, just moments ago, Bill, we had the familiar convoy that accompanies the departure of anybody in the Gonzalez family, and Juan Miguel Gonzalez was leaving this compound where they have been staying for the last week. We had been told by his attorney, Greg Craig, that either Gonzalez would go down to his office downtown or Craig would come out here. So obviously, Gonzalez is going down there to get the advice from his lawyer, to be told directly what is in the court order, to be told what chance does he have -- he has of going back to Cuba quickly. We do know that Juan Gonzalez has become increasingly frustrated with the tedious pace of all of this and wants to get back. He will certainly be told by his lawyer that that's not something that can be done right away. But now comes the direct consult with attorney Greg Craig. It appears that it is going to be occurring in the office of the attorney downtown -- Bill.

HEMMER: OK, Bob, we will be in touch. Bob Franken there live in Washington. Let the ping-pong continue -- Daryn.

KAGAN: All right, want to bring back in our legal analyst Roger Cossack, who is standing by in Washington.

Roger, tell us what do you make out of this 14-day limitation that the court has given both sides? You don't like what you heard, you only have 14 days to file an appeal. How unusual is that to put that kind of limit on it?

ROGER COSSACK, CNN LEGAL ANALYST: That is unusual, because normally there's a statutory period. But what the court is saying here is, they are speaking out and saying: Look, we don't want this thing dragged on. They are also probably suggesting to the Miami family that you probably don't have much of a chance in getting us to reverse our opinion. That's one implication that can be drawn for this.

But if I might, Daryn, just for a second, I just want to say what the court really decided today was whether or not the INS policy that is applied to Elian was in some ways wrong. And what they said: Look, the policy is, one, that a 6-year-old can't make up his mind; that absent special circumstances, the best person to speak for the 6- year-old is his father. There are no special circumstances here just because it is Cuba; that's not in and of itself a special circumstance.

Their review is limited to whether or not that policy is, in some way, an abuse of discretion. And the court said simply: It is not an abuse of discretion. And therefore, that's why the ruling is the way it is. That is what the court has decided, and that is what the issue was. Did the INS policy violate or in some ways abuse its discretion by having this policy? And they said absolutely not, this is reasonable.

KAGAN: Roger, an interesting point from Dale Schwartz, the immigration attorney, who I don't know if you could hear, but Gary Tuchman was talking to him from outside of the courthouse here in Atlanta. He said he is really surprised because this ruling seems so different to what was taking place at the hearing on May 11th. Are you surprised in the difference?

COSSACK: Not in the least. I think that most people, certainly the people that do the kinds of things that I do, expected this kind of ruling. And just because the court early on made some statements about what they thought, and why they -- why they were simply granting a hearing without, in any way, telegraphing what their decision was, they simply said we are going to give you a hearing, and as Gary pointed out in the courtroom, they said: Don't draw inferences from the questions that we asked.

I think the shock would have been if this opinion would have come down any other which but the way that it did.

KAGAN: OK, Roger, we will have you standby. Your partner, Greta Van Susteren is actually with us here in Atlanta. She is outside the courthouse along with Gary Tuchman.

Greta, if we can bring you in. We haven't had a chance to hear your two cents on the ruling, and as much as you've been able to look at this morning.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Well, Daryn, I have actually read the entire opinion now, and obviously, what the United States Court of Appeals of the 11th Circuit said. They didn't necessarily say they agreed with the trial court judge's decision, but what they said was that it wasn't an unreasonable one, they could see how the trial court conclude as he did when he ruled in favor of Elian's father, against the family in Miami. So there is really no surprise that the court did that. I suppose the big surprise was sort of when the court teased us a while back, and when the court said, in granting a stay, saying the child can't leave the country, they quoted the statute, and the statute says: Any alien may apply. And so people thought that meant that any alien, including someone under the age of 18. And what the court was very careful to say is: Don't read anything into that when we say that. And of course, this is why. We now see that the court has said the trial court was reasonable, when it said that the family in Miami should not make the decisions on the asylum hearing. No big surprise, except that cases are always a surprise.

KAGAN: Always a surprise, that's why it is news. Greta, what about this 14-day limit? We were just talking to Roger about that. So we have 14 days to file an appeal. Can you hear us? Can you hear us OK, Greta? Greta, you can't hear us.

VAN SUSTEREN: Daryn, I'm losing you.

KAGAN: OK, we will let you go. We still have Roger.

OK, Roger, we were just talking about that 14-day window. What happens after that? does the family have to, then, the Miami relatives, do they have to then file another injunction, if they want to try to keep Elian Gonzalez in the U.S.?

COSSACK: Well, what the 11th Circuit has said is: You've got 14 days to come back to us and ask us to do whatever you may want us to do, either rehear the case or have a hearing en banc. If you don't do that, then, as far as we are concern, this case is over.

There is always the petition for certiari (ph) to the United States Supreme Court. I think, frankly, think that is going to go nowhere, and I bet that Greta would agree with me, one of the few times on that one.

So I this I that what we are seeing at least is the court's wish that this come to a close as quickly as possible.

KAGAN: All right, the next two weeks will certainly tell something. Roger Cossack in Washington. Greta, want to say thank you to you here in Atlanta.

Once again, the story continues to develop. Attorney General Janet Reno scheduled to have a news conference on this matter at 2:00 p.m. Eastern. We will carry that news conference for you live at 2:00 p.m. We are also standing by for a news conference with the relatives, the Miami relatives in Miami. And when that news conference happens, whether it is the relatives or their attorneys that will speak for them, you will also see that live here on CNN.

We will take a break. Our coverage continues after this.



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