Despite his criticism of the Miami family, Redlener says he recommends that Elian's U.S. relatives play a role in a custody transfer to lessen the traumatic impact on the child.

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Half of them are undocumented immigrants whom he would transfer to federal custody.

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Both the government and Padilla's attorneys have said they don't oppose his transfer to Justice Department custody so that the criminal case can proceed against him.

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Of the two big sticking points, one has recently budged, with an agreement to transfer some detainees to Afghan custody.

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The 4th Circuit Court of Appeals blocked his transfer from military to Justice Department custody last week, noting differences between the criminal charges brought against him in November and the accusations made against him as an enemy combatant.

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On March 9, 2012, the United States signed a Memorandum of Understanding with the Afghan government under which the United States is to transfer Afghan nationals detained by U.S. forces in Afghanistan to the custody and control of the Afghan government within 6 months.

WHITEHOUSE: The White House

On March 9, 2012, the United States signed a Memorandum of Understanding (MOU) with the Afghan government under which the United States is to transfer Afghan nationals detained by U.S. forces in Afghanistan to the custody and control of the Afghan government within 6 months.

WHITEHOUSE: Letter from the President -- War Powers Resolution