Immigration Experts Now Expect Quick Resolution in Court

The dramatic reunification of Elian Gonzalez with his father will not at once end the legal battle over his return to Cuba, but it should bring the case to a close soon, immigration experts said Saturday.

“Calm and common sense” should return now, said University of Virginia law professor David A. Martin. “Under any scenario, things should move quickly now. The likelihood is this will be over by June,” said Martin, formerly the general counsel at the Immigration and Naturalization Service.

Federal officials and all those involved in the case are bound by a court order to keep the boy in the United States until May 11, when the U.S. 11th Circuit Court of Appeals in Atlanta hears arguments on whether Elian should be given an asylum hearing.

Refugees Must Prove ‘Well-Founded Fear’

Atty. Gen. Janet Reno pledged Saturday to “take every step necessary to ensure that Elian does not leave the country” while the case is still before the court.

To win asylum, a refugee must convince the INS he has a “well-founded fear of persecution” if he is sent home. That seemed far-fetched in the case of the 6-year-old boy who is being treated as a hero in his Cuban homeland.

From the beginning, Reno and INS officials said there was no need for an asylum hearing because Juan Miguel Gonzalez did not want his son to have one.

However, Elian’s Miami relatives maintained that the boy did not want to return to Cuba, and they submitted an asylum application on his behalf.

Last week, the appeals court in an interim decision sided with the Miami relatives and said it did not want to foreclose the possibility of an asylum hearing before hearing arguments on the issue. It noted that the law says “any alien who is physically present in the United States” may apply for asylum, and that open-ended definition could include a 6-year-old.

“As a purely legal matter, nothing has changed,” said Georgetown University law professor David D. Cole, who represented eight Los Angeles-area Palestinian immigrants in a Supreme Court case last year. But Saturday’s reunification “changes the dynamics. It gets more and more difficult to maintain that this child really wants asylum, contrary to the wishes of his father. I think everything points to this case being resolved quickly now.”

Justice Department lawyers say they will use the May 11 hearing to renew their contention that the case should end now.

“We long have said we believe the father speaks for the son, and now our position is no different,” a senior department official said Saturday. “We have said that the asylum application really was not an application because it was not submitted by anyone with standing.”

Until now, the federal courts have given the boy’s great-uncle Lazaro Gonzalez legal standing to speak for him. The opinions refer to the great-uncle as Elian’s “next friend” and “temporary legal custodian.”

Lawyers familiar with the case said the Justice Department may now be able to persuade the 11th Circuit Court that the great-uncle no longer speaks for the boy. He is no longer the “temporary custodian.” They also foresaw the possibility that the father’s attorney, Gregory B. Craig, could submit a new statement on Elian’s behalf expressing a wish to return home with his father.

This could end the case in May at the 11th Circuit.

Normally, federal judges defer to the INS and the attorney general in immigration cases. The Supreme Court has repeatedly told judges to stay out of such cases.

Nonetheless, the conservative 11th Circuit panel showed no sign last week of deferring to the government’s view in this case. The court could conclude that the conflicting accounts of Elian’s wishes require the INS to reopen the matter and interview the boy.

At least in theory, some human-rights activists support the principle of hearing from a child who fears going home. For example, if a young African girl faced genital mutilation if sent home, the INS should hear her asylum claim, they say, regardless of her youth or family situation.

But in Elian’s case, an INS officer is less likely to conclude the boy has a credible fear of persecution at home. Simply preferring to stay in the United States rather than going home is not enough to win asylum under the Refugee Act.

Miami Relatives Likely to Lose Legal Standing

Since the 1960s, most Cubans who have arrived in Florida have stayed, thanks to the Cuban Adjustment Act. This measure permits fleeing Cubans who have been in the United States for one year to seek permanent residence status. But lawyers doubt this act will affect Elian’s case because his father wants him to go home.

Sometimes in asylum cases, the appeals drag on for years. Refugees whose asylum claims are rejected can appeal to ever-higher courts. But lawyers said that is unlikely to happen in this case because the Miami relatives would presumably not have standing to appeal on Elian’s behalf.

“This whole legal dispute has turned on the view that the child wants something different from what his father wants,” Cole said. “But that conflict was largely the result of the influence of his Miami relatives. Once the child is not subject to their influence, that conflict should go away.”

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Times staff writer Robert L. Jackson contributed to this story.

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“Juan Miguel Gonzalez and Janet Reno have mustered extraordinary patience in waiting this long.”-Sen. Patrick J. Leahy (D-Vt.