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Another day in court for Elian


This morning, in the Elbert P. Tuttle Court of Appeals Building in downtown Atlanta, another chapter opens in the legal saga of 6-year-old Elian Gonzalez. A court hearing on the fate of the motherless Cuban boy found floating alone at sea almost six months ago could be the decisive stage. The Sun's Supreme Court reporter, Lyle Denniston, explores what is at stake.

The boy's Cuban father, Juan Miguel Gonzalez, has had Elian since April 22, when he was seized from Miami relatives by federal agents. Why didn't that end it all?

The father is forbidden temporarily by court and Justice Department orders to take his son out of the country, and he has agreed to wait for the 11th U.S. Circuit Court of Appeals in Atlanta to rule on the case. That is the court holding today's hearing. Juan Miguel could go back to Cuba without Elian, but he has said he won't.

But why is the court case still going on? What is taking so long?

The wheels of justice turn slowly. The case was filed almost four months ago, in a Miami federal judge's court, by Elian's Miami relatives. They demand that the government consider granting Elian political asylum so he can stay in the United States, perhaps permanently.

The Miami judge ruled against them March 21, and the relatives immediately took the case to the appeals court. That court actually is handling the case on what it calls an "expedited" basis. Still, it stretched out to more than six weeks the timetable for lawyers to get ready for today's hearing.

What happens today? Will the court decide the case right away?

The hearing will last 40 minutes. The time will be divided between the Miami relatives' lawyer, arguing that Elian must get an asylum hearing by the Immigration and Naturalization Service, and a lawyer for Attorney General Janet Reno and the INS, and one for Elian's father, opposing such a hearing.

It is possible that the court will rule immediately from the bench, but that is unlikely. The case is complex, and the three judges on the panel might not agree. Their decision may not come for several days, at least. "

Since the Miami relatives no longer have the boy, why are they still in the case?

This is what lawyers call a "legal fiction." Elian's great uncle in Miami, Lazaro Gonzalez, once had temporary custody of the boy, and that was enough to get him into court to ask for an asylum hearing. But he lost that role when Elian was turned over to his father, and the INS formally cut off Lazaro's custody. Now, the court is sort of pretending that Lazaro still speaks for Elian and for asylum.

Didn't a Florida family court separately give the great uncle temporary custody?

Yes, and Lazaro partly relied upon that when he sued on the asylum issue in federal court. The family court, however, later changed its mind, and nullified the custody award.

But what is the father doing in the case, if Lazaro is still being allowed to speak for the boy?

The appeals court let Juan Miguel into the case solely to argue for his own rights as the father, and to oppose the asylum request in that role. He wants to replace Lazaro as Elian's legal representative, but the appeals court has not ruled on that plea yet. It may do so later this month. It said it did not want to clutter up today's hearing with that question.

If Juan Miguel does get to speak for Elian in the case, what would he be likely to say?

He would probably say that, in the role of Elian's agent, he is opposed to any grant of asylum, and even to a hearing on asylum. If the appeals court accepted that, the case would be over. Its reaction to such a plea, however, cannot be predicted.

What about Elian himself? What role is he playing in the case?

That is rather like another legal fiction, vividly on display in the very title of the case: Elian Gonzalez vs. Janet Reno. Elian is being treated as the one who filed the lawsuit and the one who wants asylum. At six years of age, he could not sue on his own, so he is being represented by great uncle Lazaro -- the continuing role that results from the other legal fiction mentioned before.

It is not clear, in the record of the case, that Elian still wants asylum, if he ever really did. He signed his first name to an asylum application, and he said in a homemade video that he did not want to go back to Cuba.

The appeals court is still treating the signed application as the last word on the subject, even though the INS and his father insist that he has no asylum application pending because they returned it when his father objected.

If the Miami relatives win the appeals court case, does that mean Elian gets asylum?

No. He probably won't get it, no matter what the appeals court rules.

In a peculiar way, today's hearing is about asylum, but asylum itself is not directly at issue. The only legal question before the court is whether the INS and Janet Reno must consider asylum for the boy. The grant or denial of asylum is within the discretion of the INS and the attorney general, and the courts would have only a limited review of such a decision.

Both Reno and the INS have already said emphatically that they think Elian is not eligible for asylum, even assuming he wants it. They have explicitly said that to the appeals court in their filings.

Why doesn't the appeals court simply accept their word that he isn't eligible, and end the case right there?

Maybe that seems like the common-sense thing to do, but it wouldn't be legally proper. As indicated, that issue is not before the court at all.

If the court orders an asylum hearing, what happens then?

Reno and the INS, and perhaps Elian's father, might take the case on to the Supreme Court to try to overturn the appeals court. Reno and the INS would be more inclined to do that if the appeals court ruling seems to them to set a major precedent curbing their control of the asylum process.

But, if a ruling going against them is narrow in scope, Reno and the INS might just move ahead with an asylum case, and look for procedural ways to wind it up quickly. Reno does not want the case to drag on any longer than necessary.

They might have to be careful about that: They do not want to stir up another court case over asylum procedures.

But suppose the court rules against an asylum hearing, what options would that leave the Miami relatives?

This gets complicated. It probably will depend upon whether Lazaro is still being treated as the legal representative for Elian at that point. If the appeals court allows him to continue, he could take the case to the Supreme Court.

What would the Supreme Court do?

The chances are that the justices would simply deny review, no matter who won in the lower court. If it saw a major threat to INS control of asylum, however, it might take on the case. The court generally leaves immigration matters to the INS.

Keep in mind, though, that an appeal by either side probably would get to the court not long before it recesses for the summer, or possibly even after it has begun the recess. That could mean the case could be put off until fall.

Is the case really worth all of the time and effort?

Sometimes the law is maddening in its ways.

Courts and lawyers have been taking this case seriously from its beginning, no matter how long a shot it may have seemed to be, legally speaking.

In fact, at this point, it remains a long shot for the Miami relatives: The chances still are that the father wins in the end.

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