WASHINGTON -- An immigration judge has denied political asylum to acquitted Cuban hijacker Jose Fernandez Pupo -- but has refused to return him to Cuba, accepting his Miami lawyers' argument that he would be tortured there.

Now the U.S. government and his lawyers must search for a third country to give safe haven to Pupo, 54, a former 36-year Cuban Army intelligence officer being held in a Virginia jail.

The case reflects the shifting relationship between Havana and Washington on immigration matters: Cuban pilots who hijacked planes to the United States were for years hailed as heroes and immediately given asylum in the country. But, since the two sides signed a May 1995 migration agreement, which seeks to establish an orderly, government-to-government program for travel between the two countries, the U.S. has frowned on cases such as Pupo's.

''The egregious manner in which Applicant [Pupo] hijacked the plane and his unrepentant attitude towards those who testified against him bring great umbrage to the Court,'' Immigration Review Judge John Bryant wrote in the 17-page decision obtained by The Herald on Tuesday.

Four-minute flight

At the same time, he said, ''It is clear that the applicant would, indeed, be tortured by Castro's military regime if he were returned to Cuba.'' He did not elaborate.

Pupo has admitted that he donned his Cuban army uniform and waved two pistols, firing one in the cockpit, to commandeer a small Cuban commuter plane from Bayamo, Cuba, to the U.S. Navy base at Guantanamo Bay on July 7, 1996. The flight lasted about four minutes.

In May, a federal jury in Washington acquitted him of hijacking charges, accepting the Cuban former lieutenant-colonel's argument that he fled for his life because he was part of a secret underground -- The Fourth of August -- that was plotting against Fidel Castro.

Pupo claimed that he was the president of the clandestine dissident group. He testified that he commandeered the aircraft at the instruction of movement members because they had learned he was about to arrested by the Cuban secret police.

Bryant, however, ruled that parts of Pupo's story were fantasy.

U.N. convention invoked

''The court finds it difficult to believe that an anti-Castro group with estimated 500 to 1,000 members can escape all recognition by American sources,'' said the judge, echoing State Department testimony that the group did not exist.

Bryant, however, invoked the United Nations Convention Against Torture, of which the United States is a signatory, to rule that Pupo should not be returned to the island. Expert witnesses testifying for Pupo had said during his asylum hearing that he would likely face torture if he returned, and could also be executed as a defector suspected of sharing Cuban military secrets during debriefings with U.S. authorities at Guantanamo.

Cuba Interests Section spokesman Luis Fernandez said in Washington his government still wants Pupo returned.

''The situation with Mr. Pupo, you know he is a hijacker, and of course he violated our national law,'' Fernandez said. ''It is clear that for us, in relation to the migration agreement, that the United States should return this kind of person to Havana.''

Looking for third country

Miami lawyer Wilfredo Allen said in response to the ruling: ''We're going to start looking for a third country to take him in; the government also has to look for a country.''

Rep. Ileana Ros-Lehtinen, R-Dade, on learning of the decision, said: ''This is outrageous. ''This is a guy who has been found not guilty by our judicial system and then they turn around and deport him?''

She added that ''deporting him outside of the United States is almost like giving him a death warrant anyway. Castro has his agents everywhere.''

She said the U.S. government in the past has found it difficult to find other countries to take in Cuban nationals they reject.

Bryant spent much of his decision recounting the facts of the case, and the defense brought by Pupo's attorneys, in which they delved into the history of trials for past members of the Cuban military, some of whom were executed by the Castro government, allegedly on trumped-up drug trafficking charges.

Copyright © 1997 The Miami Herald