Elian Asylum Claim Faces Likely Rejection, Experts Say

Immigration law experts predicted Thursday that the asylum claim filed on behalf of 6-year-old Elian Gonzalez by his Miami relatives remains a longshot, despite an unexpected victory in a federal appeals court.

Under the Refugee Act of 1980, those who flee their homelands and arrive in the United States can seek asylum if they can show that they have “a well-founded fear of persecution” if sent home.

But the courts have been stingy about granting such claims, even when they have come from former guerrilla fighters from Central America who have said that they fear harsh reprisals if sent home. The courts also have stressed that immigration matters ought to be decided by the attorney general, not judges.

Last year, for example, the Supreme Court intervened when the liberal U.S. 9th Circuit Court of Appeals in California granted asylum to a Guatemalan political activist over the objections of Atty. Gen. Janet Reno. In a unanimous decision, the high court ordered the Guatemalan, Jean Aquirre-Aquirre, sent home and said that Reno’s decision “with respect to all questions of law shall be controlling.”

On Wednesday, the conservative U.S. 11th Circuit Court of Appeals in Atlanta described the asylum claim filed for Elian Gonzalez as setting forth a “substantial case on the merits.”

Its actual ruling was narrow, however. It simply decided that Elian must stay in this country while it considers whether he deserves an asylum hearing.

Even if the appeals court decides that the answer is yes, legal experts said, the Cuban boy’s bid for asylum before the Immigration and Naturalization Service is almost certain to be rejected.

“It’s a doubly frivolous claim,” said Georgetown law professor David Cole.

First, a young child cannot make a legal claim against the wishes of his parents, Cole said. In addition, he said, “how in the world could Elian show he has a well-founded fear of persecution in Cuba, where he is seen as a national hero?”

“It really isn’t plausible to claim this child will face persecution in Cuba,” added University of Virginia law professor David Martin, formerly the INS general counsel. “This may be just a modest setback for the government. When the appeals court gets the full briefing, they may turn around on this. The 11th Circuit is usually strongly pro-government on immigration cases.”

The three-judge panel that issued Wednesday’s decision consisted of two Republicans and one Democrat: Judges J.L. Edmondson of Atlanta, a Reagan appointee; Joel Dubina of Montgomery, Ala., a Bush appointee; and Charles Wilson of Atlanta, a new appointee by President Clinton.

In the unsigned opinion, they said that the law says “any alien” can seek asylum, and that broad term may include a 6-year-old child.

Justice Department officials rejected suggestions that this ruling could have broad implications for INS policy.

“This is not a final decision. This is not a decision on the merits,” one official said.

Most immigration experts were surprised by the appeals court’s decision, however, because most judges routinely turn away claims from refugees.

“This ruling came out of left field. It’s an outrageous decision,” said Mark Krikorian, executive director of the Washington-based Center for Immigration Studies, a nonprofit think tank that favors tighter immigration controls. “Elian doesn’t fit any category for asylum. He’s not even the son of a political dissident.”

While Elian’s asylum claim may be weak, some lawyers say that the Miami relatives may be seeking to delay the process long enough to invoke the Cuban Adjustment Act. This 1966 measure allows Cubans who have been here lawfully for more than a year to obtain permanent resident status.

It is not clear whether Elian could qualify, some lawyers said, and this permanent status would not prevent his father from taking him back to Cuba. Nonetheless, the one-year time period may affect the family’s legal strategy.

“As a legal matter, [great-uncle Lazaro Gonzalez] has no standing to assert an asylum claim for Elian. And on the merits, Elian has no claim for asylum,” said Miami immigration lawyer Ira Kurzban.

“This is all about stalling for time,” Kurzban said.

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Times staff writers Eric Lichtblau and Robert L. Jackson contributed to this story.