IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO.

DONATO DALRYMPLE, )

)

and )

)

HECTOR S. ABELAIRAS, )

MIGUEL ALEJANDRO, )

GREGORY PAUL ALLEN, )

ELSA ANDERSON, )

ABEL RAMON ALONSO, )

NICOLE ALONSO, )

NATALIE ALONSO, )

TANAY ALONSO, )

LESLIE ALVAREZ, )

GUILLERMO ARCE, )

JOEL BELTRAN, )

TERESA BENITEZ, )

CONCEPCION MARIA CABRAL, )

FRANCIA DE LA CONCEPCION CABRAL, )

MARIA CANCIO, )

NANCY CANIZARES, )

ARTURO CASTELLANOS, )

BLANCA NIEVES CHILS, )

JUAN FRANCISCO CHILS, )

SANDRA COBAS, )

MILAGROS CRUZ, )

COSME DAMIAN DIAGO, )

IDAIL DIAGO, )

RAMON DIAGO, )

DARIANNE DIAGO, a minor, )

NORMA DOMINGUEZ, )

EVA ESPINOSA, )

TRIBURCIO ESTUPINAN, )

MIRTHA MARIA FALCON, )

YULIET COLON, a minor, )

ANTONIIO ORTEGA, a minor, )

LENIA FERNANDEZ, )

OSMANY FERNANDEZ, )

PASTERA FERRER, )

JOSE ANTONIO FREIJO, )

GILBERTO GALLARRAGA, )

LEDIA BETANCOURT GARCIA, )

ROSA GARCIA, )

RUBEN GARCIA, )

NIXY GOMEZ, )

CARLOS ALBERTO GONZALEZ, )

JOSE A. GONZALEZ, )

JOSEFA R. GONZALEZ, )

VANESSA GONZALEZ, )

YUSLEIVY GONZALEZ, )

ESTRELVA G. GUEVARA, )

PABLO HERNANDEZ, )

YANET HUET, )

MARTHA TERESITA LARA, )

MARIA EUGENIA CABRERA LAZO, )

THOMAS A. CAMACHO, a minor, )

MARTHA LORENZO, )

REINA MACHADO, )

ANAISA MACHIN, )

MORGAN MARCOS, )

ALFREDO MARTELL, )

NELVA MARTIN, )

ILEANA L. MARTINEZ, )

JOSE L. MARTINEZ, )

PEDRO S. MARTINEZ, )

FELIX R. MEANA, )

TROADIO MESA, )

MARIO MIRANDA, )

JULIO MONDELO, )

MARTHA MONDELO, )

JORGE A. MORALES, )

ARAY NODA, )

ZAIDA NUNEZ, )

FRANCISCO ONDARZA, )

ROBERTO ORAMA, )

MARTHA LINA OROPESA, )

ANNA TERESA ORTEGA, )

ANTONIO FLORENTINO ORTEGA, )

YUSLEDIS ORTIZ, )

LAZARO MARTELL, a minor, )

MIRIAM PALACIO, )

MISAEL PANDIELLO, )

CRISTOBAL PERAZA, )

MADELEINE PERAZA, )

SERGIO PEREZ-BARROTO, )

ANGEL PINA, )

JENNIFER PINA, a minor, )

MYRA PINA, )

MELISSA PUMAREGA, )

NESTOR RAMOS, )

OTONIEL RAMOS, )

LEONOR RIVERO, )

MARIA A. RIVERON, )

PEDRO RIVERON, )

EDUARDO RODRIGUEZ, )

MANUEL RODRIGUEZ, )

MARIA E. RODRIGUEZ, )

MARTA RODRIGUEZ, )

PATRICIA RODRIGUEZ, )

TOMAS RODRIGUEZ, )

GLORIA SANCHEZ, )

ILEANA SANTANA, )

ARMANDA SANTOS, )

ORLANDO SANTOS, )

MICHAEL STAFFORD, )

DIEGO TINTORERO, )

ANGELA TAINA TORO, )

ALEXEI TORRES, )

CARLOS TRETO, )

CARMEN VALDÉS, )

MIRIAM A. ZALDIVAR, )

and CARLOS R. ZAYAS, )

)

Plaintiffs, )

)

vs. )

)

UNITED STATES OF AMERICA, )

)

Defendant. )

__________________________________________)

COMPLAINT; DEMAND FOR JURY TRIAL

Plaintiffs, by counsel, hereby sue the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., for negligence, assault and battery, intentional infliction of emotional distress and negligent infliction of emotional distress. As grounds therefor, Plaintiffs allege as follows:

INTRODUCTION

1. This action arises from the April 22, 2000 pre-dawn raid on the home of Lazaro, Angela, and Marisleysis Gonzalez in Miami, Florida that seized six-year old Cuban asylum seeker Elian Gonzalez from the custody of his U.S. relatives and returned him to Communist-controlled Cuba.

PARTIES

2. Plaintiff Donato Dalrymple is a citizen of the State of Florida and resides

3. Plaintiff Hector S. Abelairas is a citizen of the State of Florida and resides at

4. Plaintiff Miguel Alejandro is a citizen of the State of Florida and resides at.

5. Plaintiff Gregory Paul Allen is a citizen of the State of Florida and resides at

6. Plaintiff Abel Ramon Alonso is a citizen of the State of Florida and resides at

7. Plaintiff Leslie Alvarez is a citizen of the State of Florida and resides at

8. Plaintiff Elsa Anderson is a citizen of the State of Florida and resides at

9. Plaintiff Guillermo Arce is a citizen of the State of Florida and resides at.

10. Plaintiff Joel Beltran is a citizen of the State of Florida and resides at

11. Plaintiff Teresa Benitez is a citizen of the State of Florida and a resides at

12. Plaintiff Concepcion Maria Cabral is a citizen of the State of Florida and resides at

13. Plaintiff Francia De La Concepcion Cabral is a citizen of the State of Florida and resides at

14. Plaintiff Maria Cancio is a citizen of the State of Florida and resides at

15. Plaintiff Nancy Canizares is a citizen of the State of Florida and resides at

16. Plaintiff Arturo Castellanos is a citizen of the State of Florida and resides at

17. Plaintiff Blanca Nieves Chils is a citizen of the State of Florida and resides at

18. Plaintiff Juan Francisco Chils is a citizen of the State of Florida and resides at.

19. Plaintiff Sandra Cobas is a citizen of the State of Florida and resides at

20. Plaintiff Milagros Cruz is a citizen of the State of Florida and resides at

21. Plaintiff Cosme Damian Diago is a citizen of the State of Florida and resides at.

22. Plaintiff Darianne Diago, a minor, is a citizen of the State of Florida and resides at

23. Plaintiff Idail Diago is a citizen of the State of Florida and resides at

24. Plaintiff Ramon Diago is a citizen of the State of Florida and resides at.

25. Plaintiff Norma Dominguez is a citizen of the State of Florida and resides at.

26. Plaintiff Eva Espinosa is a citizen of the State of Florida and resides at.

27. Plaintiff Triburcio Estupinan is a citizen of the State of Florida and resides at

28. Plaintiff Mirtha Maria Falcon is a citizen of the State of Florida and resides at

29. Plaintiff Yuliet Colon, a minor, is a citizen of the State of Florida and resides at

30. Plaintiff Antonio Ortega, a minor, is a citizen of the State of Florida and resides at

31. Plaintiff Pastera Ferrer is a citizen of the State of Florida and resides at

32. Plaintiff Lenia Fernandez is a citizen of the State of Florida and resides at.

33. Plaintiff Osmany Fernandez is a citizen of the State of Florida and resides at

34. Plaintiff Jose Antonio Freijo is a citizen of the State of Florida and resides at

35. Plaintiff Gilberto Gallarraga is a citizen of the State of Florida and resides at

36. Plaintiff Ledia Betancourt Garcia is a citizen of the State of Florida and resides at

37. Plaintiff Rosa Garcia is a citizen of the State of Florida and resides at

38. Plaintiff Ruben Garcia is a citizen of the State of Florida and resides at

39. Plaintiff Nixy Gomez is a citizen of the State of Florida and resides at

40. Plaintiff Carlos Alberto Gonzalez is a citizen of the State of Florida and resides at

41. Plaintiff Jose A. Gonzalez is a citizen of the State of Florida and resides at

42. Plaintiff Josefa R. Gonzalez is a citizen of the State of Florida and resides at

43. Plaintiff Vanessa G. Gonzalez is a citizen of the State of Florida and resides at

44. Plaintiff Yusleivy Gonzalez is a citizen of the State of Florida and resides at

45. Plaintiff Estelva G. Guevara is a citizen of the State of Florida and resides at

46. Plaintiff Pablo Hernandez is a citizen of the State of Florida and resides at

47. Plaintiff Yanet Huet is a citizen of the State of Florida and resides at

48. Plaintiff Martha Teresita Lara is a citizen of the State of Florida and resides

49. Plaintiff Maria Eugenia Cabrera Lazo is a citizen of the State of Florida and resides

50. Plaintiff Thomas A. Camacho, a minor, is a citizen of the State of Florida and resides

51. Plaintiff Martha Lorenzo is a citizen of the State of Florida and resides at

52. Plaintiff Reina A. Machado is a citizen of the State of Florida and resides at

53. Plaintiff Anaisa Machin is a citizen of the State of Florida and resides at

54. Plaintiff Morgan Marcos is a citizen of the State of Florida and resides at

55. Plaintiff Alberto Martell is a citizen of the State of Florida and resides at

56. Plaintiff Nelva Martin is a citizen of the State of Florida and resides at

57. Plaintiff Ileana Martinez is a citizen of the State of Florida and resides at

58. Plaintiff Jose L. Martinez is a citizen of the State of Florida and resides at

59. Plaintiff Pedro Martinez is a citizen of the State of Florida and resides at

60. Plaintiff Felix R. Meana is a citizen of the State of Florida and resides at

61. Plaintiff Troadio Mesa is a citizen of the State of Florida and resides at

62. Plaintiff Mario Miranda is a citizen of the State of Florida and resides at.

63. Plaintiff Julio Mondelo is a citizen of the State of Florida and resides at

64. Plaintiff Martha Mondelo is a citizen of the State of Florida and resides at.

65. Plaintiff Jorge A. Morales is a citizen of the State of Florida and resides at

66. Plaintiff Aray Noda is a citizen of the State of Florida and resides at

67. Plaintiff Zaida Nunez is a citizen of the State of Florida and resides at

68. Plaintiff Francisco Ondarza is a citizen of the State of Florida and resides at

69. Plaintiff Roberto Orama is a citizen of the State of Florida and resides at

70. Plaintiff Martha Lina Oropesa is a citizen of the State of Florida and resides at

71. Plaintiff Anna Teresa Ortega is a citizen of the State of Florida and resides at.

72. Plaintiff Antonio Florentino Ortega is a citizen of the State of Florida and resides at

73. Plaintiff Yusledis Ortiz is a citizen of the State of Florida and resides at.

74. Plaintiff Lazaro Martell, a minor, is a citizen of the State of Florida and resides at

75. Plaintiff Miriam Palacio is a citizen of the State of Florida and resides at

76. Plaintiff Misael Pandiello is a citizen of the State of Florida and resides at

77. Plaintiff Cristobal Peraza is a citizen of the State of Florida and resides at

78. Plaintiff Madeleine Peraza is a citizen of the State of Florida and resides at

79. Plaintiff Sergio Perez-Barroto is a citizen of the State of Florida and resides at

80. Plaintiff Angel Pina is a citizen of the State of Florida and resides at

81. Plaintiff Jennifer Pina, a minor, is a citizen of the State of Florida and resides at

82. Plaintiff Myra Pina is a citizen of the State of Florida and resides at

83. Plaintiff Melissa Pumarega is a citizen of the State of Florida and resides at

84. Plaintiff Nestor Ramos is a citizen of the State of Florida and resides at

85. Plaintiff Otoniel Ramos is a citizen of the State of Florida and resides at

86. Plaintiff Leonor Rivero is a citizen of the State of Florida and resides at

87. Plaintiff Maria A. Riveron is a citizen of the State of Florida and resides at.

88. Plaintiff Pedro Riveron is a citizen of the State of Florida and resides at

89. Plaintiff Eduardo Rodriguez is a citizen of the State of Florida and resides at.

90. Plaintiff Manuel Rodriguez is a citizen of the State of Florida and resides at

91. Plaintiff Maria E. Rodriguez is a citizen of the State of Florida and resides at

92. Plaintiff Marta Rodriguez is a citizen of the State of Florida and resides at

93. Plaintiff Patricia Rodriguez is a citizen of the State of Florida and resides at

94. Plaintiff Tomas A. Rodriguez is a citizen of the State of Florida and resides at

95. Plaintiff Gloria Sanchez is a citizen of the State of Florida and resides at

96. Plaintiff Ileana Santana is a citizen of the State of Florida and resides at

97. Plaintiff Armanda Santos is a citizen of the State of Florida and resides at

98. Plaintiff Orlando E. Santos is a citizen of the State of Florida and resides at

99. Plaintiff Michael Stafford is a citizen of the State of Florida and resides at

100. Plaintiff Diego Tintorero is a citizen of the State of Florida and resides at

101. Plaintiff Angela Taina Toro is a citizen of the State of Florida and resides at.

102. Plaintiff Alexei Torres is a citizen of the State of Florida and resides at

103. Plaintiff Carlos Treto is a citizen of the State of Florida and resides at

104. Plaintiff Carmen Valdés is a citizen of the State of Florida and resides at

105. Plaintiff Miriam A. Zaldivar is a citizen of the State of Florida and resides at

106. Plaintiff Carlos R. Zayas is a citizen of the State of Florida and resides at

107. Defendant is the United States of America (“U.S.”).

JURISDICTION AND VENUE

108. The Court has jurisdiction over this action under 28 U.S.C. § 1346(b), as this action involves a federal question.

109. Venue is proper under 28 U.S.C. §1402(b), as a substantial part of the events and omissions giving rise to Plaintiffs’ claims occurred in this judicial district.

FACTS

110. Plaintiffs have satisfied all conditions precedent to initiating this suit. Plaintiffs filed timely administrative claims, Form SF-95’s, with the U.S. Department of Justice/Immigration and Naturalization Service (“DOJ/INS”) on or before April 21, 2002. DOJ/INS failed to respond and/or make a final disposition of Plaintiffs’ administrative claims within the six (6) month time period required by 28 U.S.C. § 2675. DOJ/INS’s failure to respond and/or make a timely final disposition of Plaintiffs’ administrative claims constitutes a final denial of these claims pursuant to 28 U.S.C. § 2675.

111. On November 25, 1999, Elian Gonzalez, a six-year old boy from Cuba, was found adrift in the sea off the coast of Fort Lauderdale, Florida. Three days earlier, Elian, his mother, step-father and eight other persons had fled Cuba’s communist regime in a small boat, seeking freedom and the promise of a better life in the United States. The boat capsized, and Elian’s mother, step-father and six other passengers drowned. Elian was pulled from the sea as he clung to an innertube. The U.S. Coast Guard then took him to shore.

112. After Elian was treated for dehydration and sun exposure at Hollywood Memorial Hospital, the INS paroled him into the United States, without inspection, and released him into the custody of his great-uncle, Lazaro Gonzalez, a resident of Miami, Florida.

113. Lazaro Gonzalez subsequently filed a petition with the INS seeking political asylum for Elian. Elian also filed his own asylum petition.

114. On January 5, 2000, INS Commissioner Doris Meissner (“Meissner”) determined that Elian’s request for political asylum would not be considered, claiming that Elian’s natural father, acting through the Cuban Foreign Ministry, purportedly sought the boy’s return to Cuba.

115. On January 7, 2000, Lazaro Gonzalez filed a petition in the Circuit of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida (“Miami-Dade Circuit Court”) seeking temporary custody of Elian.

116. On January 10, 2000, the Miami-Dade County Circuit Court entered a Temporary Protective Order granting Lazaro Gonzalez temporary custody pending service of process on Elian’s natural father and a full hearing.

117. On January 12, 2000, Attorney General Janet Reno (“Reno”) upheld Meissner’s decision refusing to consider Elian’s petition for asylum.

118. Elian proceeded to challenge the refusal to consider his asylum petition by filing a civil action in the U.S. District Court for the Southern District of Florida, Gonzalez v. Reno, et al., Case No. 00-0206-CIV-MOORE. When the District Court upheld this refusal to even consider Elian’s asylum petition, Elian took an immediate appeal to the U.S. Court of Appeals for the Eleventh Circuit (“Eleventh Circuit”).

119. During the pendency of the appeal, Reno, Meissner and various other persons cooperating with the Cuban communist government, including Gregory Craig, one of President William Jefferson Clinton’s personal lawyers, arranged for Elian’s natural father to travel to the United States to take custody of Elian and to thwart the boy’s attempts to obtain political asylum in the United States.

120. Upon his arrival in the United States on or about April 6, 2000, Elian’s natural father took up residence at a location in Bethesda, Maryland occupied and controlled by the Cuban Interests Section, the representative of Cuba’s communist government in the United States. At all relevant times, Elian’s natural father remained under the control of the Cuban Interests Section, which is cloaked with diplomatic immunity.

121. On April 12, 2000, six days after the arrival of Elian’s natural father in the United States, the INS directed Lazaro Gonzalez to take the boy to Opa Locka Airport in Miami-Dade County, Florida the following day. The INS sought to transfer custody of Elian to his natural father.

122. In a letter to Lazaro Gonzalez that same day, the INS admitted that it was ordering successive transfers of custody only, not revoking Elian’s parole into the United States:

The goal of the Department of Justice and the Immigration and Naturalization Service is to ensure that Elian’s transition to his father’s care is as peaceful as possible. We must do everything in our power to see that the transfer is accomplished in a thoughtful, constructive manner . . . These successive transfers of parole and care are being ordered pursuant to 8 C.F.R. §§ 212.5, 235.2, 236.3 (199) . . . I hereby instruct you to present Elian at the same time and place, i.e., the Main Coast Guard Gate at Opa-Locka Airport, at 2 p.m. on Thursday, April 13. At that time, the parole of Elian into your care will be revoked, and care of Elian will be temporarily transferred to [INS Official Rosa R. Urquiola], who will bring Elian to Washington, D.C. Once Elian has arrived in Washington, D.C., he will be paroled into the care of his father.

123. On April 13, 2000, the Miami-Dade County Circuit Court dismissed Lazaro Gonzalez’ petition, vacating the temporary custody of Elian previously granted by that Court.

124. In an April 14, 2000 letter to Lazaro Gonzalez, the INS again admitted that Elian’s parole into the United States was not being revoked, but that the INS merely sought to transfer temporary custody of Elian: “Moreover, you are holding Elian without the consent of his father and without the consent of the Immigration and Naturalization Service, Elian’s current legal custodian under the immigration laws.”

125. At no point was Elian’s presence in the United States contrary to U.S. immigration laws. The INS only sought to transfer temporary custody of Elian while he remained in the United States.

126. Moreover, at no point did the INS or Reno, Meissner and/or Deputy Attorney General Eric Holder (“Holder”) secure a judicial order compelling Lazaro Gonzalez to turn Elian over to the INS and/or his natural father.

127. On Wednesday, April 19, 2000, the Eleventh Circuit entered an injunction pending disposition of Elian’s appeal. The Eleventh Circuit injunction explicitly stated:

(1) Plaintiff, Elian Gonzalez, is ENJOINED from departing or attempting to depart from the United States;

(2) Any and all persons acting for, on behalf of, or in concert with Plaintiff, Elian Gonzalez, are ENJOINED from aiding or assisting, or attempting to aid or assist, in the removal of Plaintiff from the United States;

(3) All officers, agents, and employees of the United States, including but not limited to officers, agents, and employees of the United States Department of Justice, are ENJOINED to take such reasonable and lawful measures as necessary to prevent the removal of Plaintiff, Elian Gonzalez, from the United States.

See Gonzalez v. Reno, No. 00-11424-D, slip op. at 15-16 (11th Cir. April 19, 2000). Reno, Meissner and Holder undoubtedly were aware of and knowledgeable about the Eleventh Circuit’s injunction, or should have been aware of and knowledgeable about the Eleventh Circuit’s injunction.

128. The following day, Lazaro Gonzalez, acting through attorneys Kendall Coffey, Manny Diaz and Jose Garcia-Pedrosa, and with the assistance of several mediators, including Aaron Podhurst, a well-respected Miami lawyer and longtime friend of Reno, and Edward T. Foote, II, President of the University of Miami, among others, began engaging in what they believed were good faith negotiations with Reno, Meissner and Holder to try to reach a mutually agreeable, peaceful transfer of temporary custody of Elian. By the end of the afternoon, the parties had prepared a list of six points to serve as the outline for an agreement. The mediators also briefed several leaders of the Cuban-American community in Miami about the potential agreement.

129. Despite their willingness to engage in what the Gonzalez family believed were good faith negotiations, the INS secretly issued an arrest warrant for Elian on Friday, April 21, 2000. The arrest warrant falsely claimed that Elian “is within the country in violation of the immigration laws and is therefore liable to be taken into custody as authorized by section 236 of the Immigration and Nationality Act [codified at 8 U.S.C. § 1226].” Again, however, at no point was Elian in the United States contrary to U.S. immigration laws. His parole into the United States had never been revoked, and the Eleventh Circuit had explicitly enjoined him from leaving the United States.

130. In addition, 8 U.S.C. § 1226, the purported authority by which the INS issued the arrest warrant, only allows the INS to issue arrest warrants for the purpose of placing aliens in removal proceedings. The statute states, in pertinent part: “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” See 8 U.S.C. § 1226. The immigration laws do not authorize the arrest of a minor for the purpose of transferring custody, temporary or otherwise, and, again, the Eleventh Circuit had explicitly enjoined the removal of Elian from the United States. Thus, not only was the arrest warrant contrary to law, but its issuance was in direct contravention of the Eleventh Circuit’s injunction.

131. Moreover, according to Richard Sharpstein, one of Miami’s best regarded criminal-defense and immigration lawyers, the INS never arrests Cuban aliens without evidence that they have committed a crime. This restraint on the part of the INS is consistent with the Cuban Adjustment Act of 1966, which makes Cuban nationals eligible for U.S. citizenship once they have been in the United States for one year.

132. On information and belief, Reno, Meissner and Holder were familiar with, and knowledgeable about, immigration laws and the practice of issuing INS administrative arrest warrants, as well as the Eleventh Circuit’s injunction, and thus knew or should have known that the arrest warrant was false and invalid.

133. On information and belief, Reno, Meissner and Holder directed that the arrest warrant be issued, or were knowledgeable about and agreed to and/or acquiesced in its issuance to provide a false legal pretext for a paramilitary raid on the Gonzalez family’s home and neighborhood, which they were jointly planning.

134. Also on April 21, 2000, and again despite engaging in on-going negotiations, through mediators Podhurst and Foote, with the Gonzalez family, the INS applied for a search warrant to enter the Gonzalez family’s home and search for Elian pursuant to Rule 41(b)(4) of the Federal Rules of Criminal Procedure, a provision designed to assist federal law enforcement agents in retrieving kidnaping victims. The INS also sought and obtained a motion to seal its application.

135. The INS’ application for a search warrant and supporting affidavit falsely claimed that Elian was being unlawfully restrained and was the subject of an INS administrative arrest warrant, among other demonstrably false statements.

136. Not only was the arrest warrant for Elian demonstrably false and invalid, but at no time was Elian ever “unlawfully restrained” by the Gonzalez family in Miami. Only days earlier, Reno herself admitted that, since Elian’s arrival in the United States, Lazaro Gonzalez and his family “have acted as loving caregivers.” Elian attended school, visited Disney World, went to the circus, played outside, and engaged in all the normal activities of a six year old. Elian met with his Cuban grandmothers in Miami Beach, Florida, and was receiving psychological care to help him cope with the tragic death of his mother. Elian himself had publicly stated that he wished to remain in the United States with the Gonzalez family and not return to Cuba with his natural father. He was not the victim of kidnaping, nor was he “concealed” in any way.

137. Moreover, in granting the injunction on April 19, 2000, the Eleventh Circuit had found that “Lazaro [Gonzalez’s] interests, to say the least, are not obviously hostile to [Elian’s] interests” and expressly declined to order Lazaro Gonzalez to present Elian to the INS for transfer of care to his natural father. See Gonzalez v. Reno, No. 00-11424-D, slip op. at 14 & 15 n. 16 (11th Cir. April 19, 2000).

138. The application and supporting affidavit also falsely claimed that the INS had revoked Elian’s parole and that his remaining in the United States was a violation of the law. Again, the INS had not revoked Elian’s parole, but only sought to transfer temporary custody of Elian, and the Eleventh Circuit had explicitly ordered Elian to remain in the United States.

139. Conspicuously absent from the application and supporting affidavit was a copy of the Eleventh Circuit’s April 19, 2000 order and injunction, although numerous other attachments and exhibits had been included.

140. The INS did admit in the affidavit, however, that it maintained daily surveillance of Lazaro Gonzalez’ home. The affidavit made no reference to any weapons being in the home. It made no reference to any allegations of mistreatment or harm to Elian by the Gonzalez family.

141. The affidavit also made no reference to the fact that Podhurst, Foote and others were feverishly mediating negotiations with Reno, the Gonzalez family and their attorneys, even as the application and affidavit were being filed.