Elian and the Court

A FEDERAL appeals court in Atlanta has ordered that Elian Gonzalez be kept in this country pending a hearing on whether he is entitled to seek asylum. The court said there was reason enough to think a case could be made in his behalf that it deserved to be heard. To let him be taken back to Cuba before the case could be argued would be to negate it and risk doing him irreparable harm by denying him his day in court.

That's fair enough. The last thing anyone can want is a solution to this case in which it can be credibly charged that Elian was hustled out of the country to avoid a full hearing of his case. The Justice Department has already agreed that he should stay; his father has agreed to wait as well.

The department, however, wanted the appeals court to order that in the meantime he be removed from the home of his Miami relatives and placed in the custody of his father. The court declined to do so, saying in effect that the custody question was the department's own problem, not to be laid off at this stage on the courts. That, too, seems right to us. And the proper course for the department seems pretty clear, not to say inevitable.

The boy's father is here. He wants his son with him. Attorney General Janet Reno has agreed that he should have the son. That seems to be the right legal answer. It seems to us to be the right answer in terms of the child's well-being as well. "It is unconscionable to wait . . . longer," Gregory Craig, the father's lawyer, said yesterday. Our increasing sense from a distance is that the Miami relatives are poisoning the boy against his father. Some in the Miami Cuban American community are using the child as a pawn.

The department says that the relatives are in defiance of an order that they present the boy for transfer to the father. That can't be allowed. The government needs to remove him; it has no alternative, as Ms. Reno herself agreed again yesterday. For the boy's sake, we would hope that, in part on the strength of yesterday's court order, the relatives will have the grace to permit it to happen gently and peaceably.

Then there can be a battle over the immigration rules. The court yesterday expressed some doubt that Immigration and Naturalization Service asylum procedures are in conformity with law. But those are complicated questions, and particularly so in this case. First the boy should be reunited with his father.