Elian's U.S. Family Challenges Feds in Court

ByABC News

Jan 19, 2000 -- Attorneys for Elian Gonzalez’s Miami relatives today sought to keep the 6-year-old Cuban boy in the United States by challenging Attorney General Janet Reno and the Immigration and Naturalization Service in federal court.

The attorneys filed a lawsuit at the U.S. courthouse in Miami seeking to get a federal hearing on the INS’ decision to send Elian back to Cuba to be with his father. Lazaro Gonzalez, Elian’s great-uncle, filed the federal lawsuit, which names Elian himself as the plaintiff and Reno and the INS, among others, as defendants.

“It is about protecting Elian’s civil and constitutionalrights, the same as if he was any other child,” said Spencer Eig,a lawyer for the great-uncle. A Florida judge earlier granted Lazaro Gonzalez temporary custody of Elian.

Ultimately, the Miami relatives want the matter to be handled in state courts so a Florida judge can make a custody decision free of immigration issues.

“Most people in this country want Elian to have his day in court,” Eig said. “They want there to be a hearing, a fair and open hearing about what is in the best interest of the child.”

Lawsuit Charges Due Process Violation

Twice before, lawyers hired by the family have filed petitions for asylum with the INS, claiming Cuba is a repressive country and that Elian would be harmed by going home. Twice, the INS turned down the petitions, saying that Elian’s father was the only person who legally could make such a claim.

In the lawsuit filed today, the attorneys said the right to petition for asylum is a constitutionally protected right that guarantees due process. The lawsuit charged that Elian had been denied his due process rights.

The case was assigned to U.S. District Judge James LawrenceKing, the chief judge of the south Florida region, who in alawsuit filed against the Cuban government in 1997 awarded $187million to the families of three Cuban-Americans shot down by aCuban jet as their small planes flew over the Florida Straits inFebruary 1996.

No hearing date has been set.

Legal experts predict that the judge will side with the federal government and Reno because immigration law is clear that, barring evidence that a parent is unfit, that parent should retain custody over his child.

“All along, the legal issue has been who speaks for a6-year-old boy, and the answer is the closest surviving relative.That is the father,” said David Abraham, an immigration lawprofessor at the University of Miami.

Elian only has one surviving parent and he lives in Cuba. Juan Miguel Gonzalez has said he wants his son returned and considers the Florida relatives who are caring for the boy to be kidnappers.

Elian’s mother and stepfather died as they and 10 others fled Cuba and attempted to cross the Florida Straits. Their boat capsized, killing everyone but Elian and two adults, all of whom were found floating on inner tubes on Thanksgiving.

U.S. Willing to Speed Visas

Even as the court fight begins, U.S. officials are making preparations for Elian’s return. A State Department official says the government supportsthe idea of a visit to Miami by Elian’s grandmothers if they want to come and fetch him.

In talks with Cuban officials in Havana on Monday evening,U.S. officials said they would speed up the processing of anyapplications from Elian’s grandmothers for U.S. non-immigrantvisas, the official said.

“They [the grandmothers] have not yet applied for visas tothe United States. Should they apply, we are prepared toexpedite consideration of their applications in accordance withthe relevant U.S. immigration laws,” the U.S. official said.

Elian’s paternal grandmother said today that sheis willing to travel briefly to the United States on conditionthat it is simply to bring her grandson back.

“I will only be there for five minutes, the time I willneed to pick him up wherever they have him — in a church, inimmigration or wherever they place him. Five minutes, no more,”Mariela Quintana told Cuban state news agency Prensa Latina.

Her comment, more an expression of hope than a concrete planat this stage, nevertheless reinforced Cuba’s position thatElian’s father or any of his four grandparents here should onlygo to Florida with guarantees of the boy’s passage home.

A senior Cuban official, Ricardo Alarcon, reiteratedtoday his government’s disgust with the delay in returningElian in line with the INS ruling.

“What they are trying to do is extend the kidnapping,prolong it,” he said in an interview on state television. Alarcon heads Cuba’s NationalAssembly.

Another Castro Speaks

Fidel Castro’s sister Juanita Castro, who left Cuba in 1964 andnow lives in the Miami area, said she hopes the matter can bedecided justly in court. She would not say whether she thinks theboy should stay or be returned to Cuba.

“I hope what happens is the best for him, for his destiny, forhis future,” she said. “This case, everything that has happened,makes me very sad.”

The Associated Press and Reuters contributed to this report.

ABC News Live

ABC News Live

24/7 coverage of breaking news and live events