Justice Department lawyers yesterday were gauging the department's options in confronting the continued refusal of Elian Gonzalez's Florida relatives to agree to send him home to his father in Cuba, but were coming up with few firm answers.
In Miami, the relatives celebrated victory in Monday's Florida court ruling giving them temporary custody of the boy and calling on his father to appear at a March 6 hearing. But a new controversy arose over the elected judge who made the custody decision.
Miami-Dade Circuit Court Judge Rosa Rodriguez employed Armando Gutierrez, the main spokesman for Elian's relatives--and the company of Gutierrez's wife--during her 1998 campaign, a relationship she failed to disclose before adjudicating the case.
The Justice Department, and the Immigration and Naturalization Service, maintain that Rodriguez's decision that 6-year-old Elian was in danger of being abused if he were returned to Cuba was both erroneous--because there is no evidence the boy had been or would be mistreated by his Cuban father and grandparents--and had no bearing on last week's federal ruling that the boy must be returned to his father in Cuba.
The government believes that the Florida court has no standing to interfere in the case of a child who has never been officially admitted to this country.
But as the Friday deadline set by INS for Elian's departure for Cuba neared, government officials in Washington were trying to juggle their legal convictions--that INS still has complete authority to send him home--with the troublesome and volatile politics of the situation. Officials acknowledged that it appears that the deadline will not hold.
Although they have suspended their protests, members of Miami's politically powerful Cuban American exile community took to the streets last week to protest the INS decision. Ever since Elian was found floating off the Florida coast on Nov. 25 after a shipwreck in which his mother drowned, the protesters have strongly supported the decision of his Miami great-uncle to reject demands by his father and the Cuban government that Elian be returned.
Among the government options being weighed, the most precipitous--and least likely, according to sources--would be for the INS to revoke Elian's temporary status in this country and ask a federal court to approve his transfer to a third party, perhaps a religious group, that would comply with the INS departure order.
Another option is to ask for federal court affirmation that the INS is not bound by the Florida custody ruling, and court intervention in helping remove him.
The INS could also wait for relatives to file a new federal asylum petition on Elian's behalf. Roger A. Bernstein, one of the attorneys representing the Miami relatives, said that such a petition would be filed yesterday.
Two previous petitions filed by the relatives were thrown out by the INS after it determined that only Elian's father had the right to apply on his behalf, but Bernstein said yesterday that the custody ruling gave them the authority to file again. Justice officials anxious to get the matter into federal court--where they are confident they would prevail--think an asylum petition would give them that opportunity.
Officials also believe that a federal court ruling would help mitigate a separate congressional challenge to Elian's departure.
In Miami, Armando Gutierrez said in an interview yesterday evening with local television station WSVN that he had been a paid political consultant for Rodriguez, a former public defender and private litigator elected to the bench in 1998. But he said he had not spoken to her since shortly after that election. "She paid me like everybody else," he said. "The campaign was over and the relationship was over."
Gutierrez has been a close consultant to the family and has been a caretaker of Elian, himself, at times. He is not getting paid for the work.
According to state campaign finance records, Gutierrez & Associates received at least $4,000 from the campaign and Creative Ideas Inc., his wife, Maritza Gutierrez's advertising firm, listed at the same address, was paid more than $50,000.
Rodriguez issued a statement last night saying "there is no obligation for a judge to disclose" a past campaign relationship when the persons involved are not part of a legal team in the judge's courtroom.
Yet Tony Alfieri, director of the University of Miami Law School Center for Ethics and Public Service, said that Rodriguez should have withdrawn from the case. At the very least, he said, she should have disclosed the relationship, should have appointed a legal representative for Elian's father Juan Miguel Gonzalez--listed as the respondent in the custody petition filed by great-uncle Lazaro Gonzalez--and appointed an independent party to represent Elian.
"Emerging facts . . . seem to give rise to reasonable questions about her impartiality," Alfieri said.
DeYoung reported from Washington; Pressley from Miami. Staff researcher Lynn Davis contributed to this report.
CAPTION: Elian Gonzalez holds on to great-uncle Lazaro Gonzalez as they walk from school.