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Morning News

Immigration Attorney Dale Schwartz Discusses Legal Issues in Elian Gonzalez Case

Aired April 20, 2000 - 10:07 a.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

DARYN KAGAN, CNN ANCHOR: As for Elian's father who arrived in the U.S. two weeks ago, he is reportedly growing impatient with delays of a promised reunion. According to his attorney, Juan Miguel Gonzalez wants immediate action. Attorney Gregory Craig says the father says, if the Miami relatives do not turn Elian over peacefully, Attorney General Janet Reno must enforce the law and take any actions necessary to reunite father and son.

BILL HEMMER, CNN ANCHOR: Now, the issue of Elian's future is clouded with emotions and complicated by gray areas of both the law and of politics.

To help us see through some of the legal issues more clearly, we turn to an expert in immigration law, Dale Schwartz, past president of American Immigration Lawyers Association. Also, he has testified on Capitol Hill.

Dale, good to see you again.

DALE SCHWARTZ, IMMIGRATION ATTORNEY: Good morning to you. Thank you.

HEMMER: I mentioned earlier in this broadcast that Janet Reno canceled her trip to Montana. She's back in Washington meeting, huddling with her experts and attorneys there at the Justice Department. What are they thinking and planning now?

SCHWARTZ: Well, nothing that the court did yesterday would prevent the attorney general from deciding that Elian's custody should be transferred to his father. She has some tough decisions to make. I think the attorney general has acted splendidly to this date. She doesn't want to do anything precipitous that would cause problems in Miami.

On the other hand, she has a little boy who needs to see his father. So it's really hard. The family, apparently, is not willing to turn over Elian to the INS so that he could be transferred to his father. On the other hand, the father desperately wants to see the child and probably has a right to do so.

HEMMER: Clarify this issue on custody. Those who disagree with the appeals court ruling yesterday thought the court should have ruled on the custody issue. Could it have, given the appeal that was in front of it?

SCHWARTZ: I don't think so. Although Elian's Miami relatives have asked the court to make some statement about the custody pending the outcome of the appeal, the court deliberately sidestepped that issue and in a footnote noted that they were not addressing that issue. I think that the court only looking to the emergency injunction aspects of the case.

No court likes to have the rug pulled out from underneath it. Had Elian left the country, it would deprive the court of jurisdiction because the case would be moot. And that's all the court was addressing. But I think the family can take some comfort in the court saying that there is at least a reasonable likelihood of success on the part of those who are championing Elian's right to stay in the United States. So we'll know after May 11 when the court has a full hearing on that matter.

HEMMER: In addition to this, the appeals court took exception with the INS on a couple of fronts -- not interviewing fully the boy, Elian, in Miami. But it also seemed to indicate that the boy has already spoken for himself, or may have spoken for himself. In the words of the report yesterday, "according to the record, plaintiff, although a young child, has expressed a wish that he not be returned to Cuba." Is that to indicate they took the videotape into consideration or is there something other that was entered into evidence?

SCHWARTZ: I don't think the videotape was really taken into consideration by the court. The attorneys for Elian's relatives in Miami have asserted to the court that Elian has expressed the desire to remain in the United States. And Elian is quite young. Although perhaps the Immigration Service could interview him and ask him what his views are, I don't think that's going to be important as having some legal representative or guardian expressing those views to the service at some point in the future.

HEMMER: And quickly, the celebration we saw yesterday afternoon into the evening last night in Little Havana, short-lived or reason to celebrate?

SCHWARTZ: Well, I think that the family has some reason to celebrate because the court has indicated that they at least have a reasonable possibility of likelihood of success on their appeal. And to that extent, and to the extent that the court order will keep Elian here in the United States until the political asylum issue is decided, I think gives them some cause to celebrate.

HEMMER: Some are suggesting this could go on for many, many more months, not weeks or days. We shall see.

Dale Schwartz, thanks again.

SCHWARTZ: You're welcome.

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