The Battle Over Elian; May 11 hearing: Should INS consider a petition signed by a 6-year-old

WASHINGTON -- It took three minutes for federal agents to remove Elian Gonzalez from his great-uncle's home, but it will take months - - if not years -- to resolve the legal issues of whether he stays in the USA or returns to Cuba.

The two primary questions:

* Does Elian have a right to a political asylum hearing with the Immigration and Naturalization Service?

* If he does, should the boy be allowed to stay here against his father's wishes?

"Depending on the number of appeals and the determination and resources of both sides to fight every decision in this case at every level, this case could be prolonged as long as two years," says Robert Pugsley, a professor at the Southwestern University School of Law in Los Angeles.

The next step will be May 11 in Atlanta, where a three-judge panel of the U.S. Court of Appeals for the 11th Circuit will hear arguments on whether the Immigration and Naturalization Service must consider a petition for political asylum signed by 6-year-old Elian and his great-uncle, Lazaro Gonzalez.

The INS argues that the minor child cannot seek asylum himself and that his father, Juan Miguel Gonzalez, as his legal guardian must act on his behalf. Elian's great-uncle's lawyers counter that federal statute allows petitions from "any alien" regardless of age.

The three judges -- Reagan appointee J. Larry Edmondson, Bush appointee Joel Dubina and Clinton appointee Charles Wilson -- already might have tipped their hand, legal observers say.

Wednesday, in granting an injunction to keep Elian in the country, the panel filed an opinion that was friendly to some of the great- uncle's main arguments.

"Plaintiff appears to come within the meaning of 'any alien,' " the panel wrote. "And the statute plainly says that such an alien 'may apply for asylum.' "

The panel also addressed and disposed of a potential weakness in the uncle's appeal of a judge's decision March 21 to dismiss a lawsuit filed by Miami relatives seeking political asylum for Elian.

Almost since his rescue at sea Nov. 25, Elian lived with the Lazaro Gonzalez family in the Little Havana section of Miami.

His father, with whom he was reunited Saturday, arrived in the USA on April 6 and wants to take his son back to Cuba.

"To some people, the idea that a 6-year-old child may file for asylum in the United States, contrary to the express wishes of his parents, may seem a strange or even foolish policy," they wrote. "But this court does not make immigration policy. If Congress intended that a school age child, such as (Elian) be able to file personally an application for asylum, this court and the INS are bound to honor (it)."

Asylum allows people to stay in the USA if they are unwilling or unable to return to their home country because of persecution or fear of persecution.

The panel warned against "predicting the eventual result in this case" based on this opinion, but legal experts were not convinced. "You cannot help but see the body language here," says Richard Freer, law professor at Emory University in Atlanta.

Whatever decision the three-judge panel reaches can be appealed to the full 12-member court or directly to the U.S. Supreme Court. The Supreme Court could expedite the case and decide it by this summer. Or the case could continue at the appeals court level at least through next fall.

If the Miami family wins, the INS will be forced to consider Elian's petition, including statements from mental health professionals who have examined Elian and concluded that he understands what he is saying when he asks not to be returned to Cuba.

Greg Siskind, whose Memphis-based law firm of Siskind, Susser, Haas & Devine focuses on immigration law, says an INS officer would conduct the hearing. If that officer says no, the next step is to an administrative law judge with the Executive Office for Immigration Review.

Whatever decision reached by the INS could be appealed to the federal district court and work its way up to a three-judge appeals court panel, a full appeals court and the Supreme Court.

When the INS refused to accept Lazaro Gonzalez's application for political asylum for his great-nephew, he sued in federal court. Judge K. Michael Moore ruled in March that the INS had acted within its authority.

The judge said a key point was the fact that the INS had found no evidence that Juan Miguel Gonzalez was an abusive father, which would be grounds to deprive him of the right to speak for his son.

Legal experts say the three appeals court judges appear on the verge of issuing an opinion that could change the legal system.

"They are opening the door to letting other young juveniles and minors into the court system by placing an unusual emphasis on the autonomy of a 6-year-old, independent of his surviving biological parent," Southwestern's Pugsley says.

"A child that young hasn't been allowed to make a decision on his own before," he says.

Amy Ballentine, an immigration law expert with Siskind's firm, says the INS could avert the possibility of a decision with far- reaching consequences by agreeing to hold an asylum hearing. That, she says, would avoid setting a precedent in a "singular and narrow case" that could have an impact on future cases involving children.

The appeals on the asylum might not be the final issue.

Earlier this month, Elian's Miami relatives filed a suit in U.S. District Court in Washington, D.C., based on a U.N. treaty that asks the government to stop Elian from returning to Cuba until it can prove the boy's human rights won't be violated.

"That one has been put on hold while they see what happens with the case in the 11th Circuit," Georgetown University law professor Paul Rothstein says.