Elian's closing chapter?

A legal expert says the Cuban boy's legal saga is slowly winding down.

By Daryl Lindsey

Published June 2, 2000 7:10PM (EDT)

Anyone hoping the Elian Gonzalez telenovela would get renewed through the summer -- with the requisite fainting spells from Marisleysis and skeletons in Lazaro's liquor cabinet -- must have been disappointed Thursday by Atlanta's11th Federal Circuit Court. The court ruled that the INS acted lawfully in denying an asylum hearing for the boy, in what will likely become the denouement in an immigration case that has pitted Miami's Cuban-American community against Fidel Castro, and also mainstream American public opinion, which holds that a kid should be with his parent (unless they are a certifiable spouse or child abuser).

In its decision, the court ruled that the INSs decision in the Gonzalez case -- that only a parent has the right to act on behalf of a 6-year-old child in seeking asylum -- was "within the outside border of reasonable choices."

Elian's Miami kin initially responded to the ruling by submitting an emergency appeal to Justice Anthony Kennedy, who would have the power to issue a stay, keeping Elian in the country until the Supreme Court decides whether to take the case. But, perhaps sensing that the most effective strategy in this case is probably to drag it on as long as humanly and legally possible possible (particularly since Elian becomes eligible for green card consideration in November), family attorney Kendall Coffey later retracted the appeal. Instead, Coffey says the family will request a new hearing in the 11th Circuit Court -- a move the family must make within two weeks.

No matter what legal tack the family takes, legal experts believe there's a better chance that Elian's stay in America will be over soon. It's doubtful that the 11th Circuit Court will reverse its decision, or that the Supreme Court will even hear the case.

Salon spoke to Alexander Aleinikoff, a Georgetown University law professor and former general counsel to the INS, about the legal implications of Thursday's ruling and the options Elian's Miami relatives still have available to them.

Did you find anything unusual about Thursdays ruling?

The first opinion they wrote [at the time the appeal was filed in February] seemed to lean heavily in the family's favor, and when they finally got around to writing the opinion on the merit, it was straight down the line, sort of traditional judicial deference on immigration matters and finding what the Attorney General had done was reasonable. If you just picked up this opinion without knowing any of the history, it would seem like a very ordinary immigration decision.

What do you think caused the court to change its mind?

The Justice Department, in its brief at the Court of Appeals, said, Look, we're not saying that there may not be cases where the kid might not be able to state an asylum claim against the wishes of the parent. I think once the government conceded that point, then the court felt more comfortable with how the INS had conducted the case.

Was it unusual for the court to require that Elian's Miami family appeal the decision within 14 days?

They indicated it would be speeded up. And, actually, the last sentence said, Don't expect any extensions because I think people realize it's time to get this case over. It seemed to be an unusual decision because of the footnotes.

What other legal options do Elian's Miami relatives have to appeal the decision?

They can ask for a rehearing before the court, [or any other judge on the 11th Circuit] or they can go to the Supreme Court, but I think both are unlikely to happen. Both of those options are discretionary, and they don't have an appeal as a "right." If they took it to the Supreme Court, four justices would have to vote to hear the case, which is quite unlikely. They could take it to a justice for an immediate stay, but that, too, is unlikely, since the family has two weeks to file any motions or to consider any motion for a hearing.

I don't see many other legal options for the family. The government will have to move to get rid of the injunction that is keeping Elian in the country, and then I think it will be lifted. Then the family would immediately go to the Supreme Court seeking an immediate stay preventing the INS from returning the boy. But I think the court would deny that and the case would be over.

So Elian could return to Cuba in as little as 14 days?

Probably at the soonest, and probably actually a few days after that because if the Miami family files a motion for a new hearing, it may take the court a few days to decide.

Under the Cuban Adjustments Act, if the case drags on through November, the anniversary of Elian's arrival in the U.S., he would then become eligible for permanent residency.

That's discretionary with the attorney general; it's not automatic. But the case won't go on that long. It will be over in a few weeks. I would be very surprised if this is not the final full legal consideration of the claims. But I've been wrong on this before.

How do you think the decision will play out on Capitol Hill?

I wonder if a lot of the folks on Capitol Hill who were concerned about whether or not Elian was going to get his day in court are rethinking the 1996 Immigration Act they adopted, which stripped judicial reviews of many kinds of immigration cases. They did so on the claim that the courts were mucking up the system and that aliens were filing frivolous claims to keep themselves in the United States. Some of those same folks were front and center saying Elian should get his day in court. It's a contradiction.

Do you think the decision will have any impact on other children seeking political asylum?

The decision upholds an INS policy that is perfectly reasonable. Six-year-olds are too young for this -- normally you go with the parent, but if there are good reasons for believing that the parents' and the kid's interests diverge, then you will appoint a guardian and allow someone else to file a claim on behalf of the kid. The INS policy is sound, it tracks the general way we handle family law cases, consistent with principles of Constitutional law about respect for the family, but also recognizing that, at times, it may be appropriate for a kid to state a case separately from the parents.

As an illegal alien minor on parole, Elian isn't alone. More than 5,000 minors are processed by the INS each year. Can you tell me more about them?

They estimate that they have 5,000 unaccompanied minor cases a year. That doesn't mean they have 5,000 in detention; many of them may have been released or go home. Besides, the unaccompanied kids are usually much older than [Elian]. They're in the 15-to-17-year range. Sometimes they're held while there's an attempt to determine who the relatives are, and they are frequently released to relatives in this country. It's very rare that a 6-year-old gets on a boat himself. Sometimes they come with smugglers, sometimes they come to rejoin their families, sometimes they come to be anchors by which they can get in and get their parents over. There have been some horrible cases of babies being sold to smugglers and being put in the arms of smuggled aliens who then pretend they're the baby's parents. You can have all sorts of horrible situations. But the vast majority of unaccompanied minors are in an age range where they are probably able to seek asylum themselves, where the INS would accept an asylum claim filed on their behalf.

Why don't they have the same legal rights as Elian?

A 6-year old does have the right to apply for asylum. The question is who will have the right to apply for them? If you're 15 years old, you would be able to apply on your own. The problem is that the courts have held that aliens who arrive and are stopped at the border without documents and/or the right to enter don't have any Constitutional rights. All they have are whatever statutory or regulatory rights Congress or the INS grants them. And the court says Elian has no Constitutional rights.

Why don't these other cases get the amount of legal and media attention as Elian's did?

Elian had some very expensive and powerful lawyers behind him. And the government always has lots of lawyers.

Daryl Lindsey

Daryl Lindsey is associate editor of Salon News and an Arthur Burns fellow. He currently lives in Berlin and writes for Salon and Die Welt.

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