Waiting for November

The Miami family could lose the legal battle over Elian's asylum, but win the war by keeping him here long enough to get a green card.

Published May 12, 2000 4:00PM (EDT)

On the steps of federal court in Atlanta Thursday morning, Cuban-American demonstrators pelted Juan Miguel Gonzalez's attorney, Gregory Craig, with epithets -- "Communist!" -- while back in Miami, non-Cuban residents have been pelting City Hall with bananas.

Within the normally dispassionate domain of that Atlanta federal courtroom, now infected by the overwrought atmosphere of the Elian Gonzalez saga, it was questions that were flying like hailstones, the three judges of the 11th Circuit Court of Appeals doubling the time normally allotted to allow Craig, lawyers for great-uncle Lazaro and the Justice Department to argue the merits of the boy's political-asylum application submitted by his Miami relations.

Those hoping for a quick and easy resolution of the Elian quagmire -- for a judicial version of Janet Reno's lightning extrication of the boy from Lazaro Gonzalez's Little Havana home April 22 -- will not find it in Thursday's hearing. It began with senior Judge J.L. Edmondson of Atlanta warning that a ruling would not come for at least "a few weeks." Then, 90 minutes of intense questioning from judges Edmondson, Joel Dubina and Charles Wilson made it clear that to this panel, at least, the Elian Gonzalez case is rife with troubling and difficult legal questions.

By all accounts it was Wilson -- a Clinton appointee from Tampa, Fla. -- who most definitively took the Little Miami team to the cleaners, wondering how a 6-year-old could possibly be competent to fill out an asylum form, which asks -- among other things -- whether the applicant has associated with political, paramilitary or human rights groups.

"I'm sure Elian Gonzalez is a very bright and intelligent 6-year-old, but he didn't even have the ability to sign his last name on the asylum petition," Wilson observed.

On the other hand, Edmondson, a Reagan appointee, ruminated on Juan Gonzalez's determination to return Elian to "a Communist, totalitarian state." He compared it to cases where courts have found parents' wishes "conspicuously in conflict with the needs of the child" -- as when children are denied medical care for religious reasons, for instance.

On the surface, it is hard to see today's appeal as anything but another judicial Bay of Pigs for the Miami relatives -- a doomed beachhead, like all their gambits since Elian's arrival. "Whether or not Lazaro Gonzalez wins this appeal, he loses the case," says professor David Cole of Georgetown University Law Center, who has handled high-profile immigration appeals.

There is simply no precedent to support a 6-year-old's asylum claim, and no facts on the record about either his father or Cuba to support it. The Immigration and Naturalization Service and a Miami federal judge have already rejected the asylum application the relatives filed on behalf of Elian. Even if Lazaro's Miami lawyers win Thursday's arguments, all they achieve is an asylum hearing for Elian before an INS which already declared the idea of this boy's political persecution nonsensical.

And there is no appeal to federal courts for INS rulings: Just ask the thousands of undocumented immigrants languishing in immigration jails awaiting deportaiton.

But the Miami relatives are not really banking on an asylum win. Instead, Lazaro and the Cuban-American political strategists behind him are playing for something far more fundamental: time.

Why time? Perhaps in hopes that father Juan will decide to stay in the United States. More likely, with the expectation that if they draw the case out until November, the presidential election will bring an attorney general more friendly to their cause.

"November is an important date," says Mike Wishnie of New York University Law School, an immigration law specialist. "The dynamic of the presidential election changes everything. If they can keep the case going until November, and convince the 11th Circuit to extend the injunction keeping Elian here pending appeal, Janet Reno may be reluctant to act" on the boy's deportation.

What is more, alone among the huddled masses yearning to breathe free, Cuban emigres get special status on this country's shores, thanks to the massive influence of the Cuban-American lobby. Under the little-known Cuban Refugee Adjustment Act, undocumented Cubans here for a year can be granted permanent residency status -- a green card -- at the discretion of the U.S. Attorney General.

Elian's year is up on Thanksgiving, and if Lazaro can hold onto his case by his fingernails until January, a new attorney general could make that decision with no input from courts, Congress, Craig or anyone else. With Elian even the unwitting recipient of a green card, the case could abruptly shift to the very arena that the Miami relatives have always sought: Florida's elected family courts.

Is such a delay conceivable? NYU's Mike Wishnie speculates that Edmondson, Dubina and Wilson could return the case to federal district court in Miami for a factual hearing, simply to definitively determine whether Elian would or would not be in any jeopardy at home in Cardenas, Cuba.

"I don't think it would be unconscionable as a bottom-line decision to say the courts ought to have some jurisdiction" over children's asylum cases, Wishnie says. Such a factual hearing could alone take months.

Wishnie also points out that the intensity of the judges' attention to Elian today was a notable contrast with the way children are routinely treated in immigration cases. Some 4,000 undocumented minors now reside in immigration prisons around the country -- often used, Wishnie notes, "as bait" to lure their equally undocumented parents into custody.

Even if Edmondson, Dubina and Wilson rule against the Miami relatives in early June, they might extend their injunction keeping the boy on U.S. shores pending appeal. Uncle Lazaro would then have 45 days to ask for a hearing before the entire 11th Circuit Court of Appeals -- mid-July at soonest, more likely August by the time a ruling comes in. Then he'd have another 90 days to appeal to the Supreme Court -- taking Elian, his father and their entourage to the very cusp of November.

A slender thread? Perhaps. But Cuban exiles have been trafficking in dubious hope for decades, and winning unlikely political victories -- even as their ultimate goal, Castro's overthrow, eludes them. And since Little Havana's political leadership has already shown itself willing to sacrifice both Miami's stability and Elian's welfare in their vain poker game with Castro, there is no reason to think they will not play to the very bottom of the deck.

Those who believe Thursday's hearing will be Little Havana's last stand are not reading either the law or the calendar.

By Bruce Shapiro

Bruce Shapiro is national correspondent for Salon News.

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