Today’s Asylum Hearing Hardly Final Chapter for Elian

It may be the hottest ticket since the one that got Elian into Disney World.

But today’s hearing before a federal appeals court on the asylum petition filed on behalf of the 6-year-old castaway is not likely to draw a curtain on the Gonzalez family drama any time soon, participants say.

Although arguments before the U.S. 11th Circuit Court of Appeals in Atlanta are attracting extraordinary interest, it could be weeks or months before the court rules on whether the Cuban boy should be given an asylum hearing. If the appeals court rules against the petition from the boy’s Miami relatives, their lawyers say that they will appeal to the U.S. Supreme Court.

And even if the court ultimately decides against the relatives, who contend that an immigration officer must hear the asylum request, Elian’s father cannot just pack him up and take him back to Cuba. That would take another ruling from the court.

As for today’s proceeding, it will all be over in 40 minutes. That’s how much time a three-judge panel of the appeals court has allotted lawyers for Elian’s father, his great-uncle and the Immigration and Naturalization Service. The boy’s Miami relatives have said that they plan to attend the hearing but will not testify. In fact, there will be no testimony of any sort.

Tell that to the busloads of Cuban Americans planning to descend on Atlanta for the hearing, or the newspaper and television reporters hiring people to stand in line for them outside the courthouse overnight to ensure them seats.

“It’s the next necessary step in the saga of Elian Gonzalez, and I think it’s a critical step toward the endgame, but it isn’t the endgame yet,” said David Cole, an immigration lawyer and professor of law at Georgetown University Law Center here. “That has been lost amidst all the looking forward to this date and all the expectation about it.”

At the hearing, lawyers for the INS and for Elian’s father, Juan Miguel Gonzalez, will argue that Elian is too young to apply for political asylum and that his father is the only adult who should be allowed to speak for him. Juan Miguel Gonzalez has said repeatedly that he wants to take his son back to Cuba as soon as the court gives him leave to go.

Lawyers for Lazaro Gonzalez, the boy’s great-uncle, will argue that Elian does have the right to apply for asylum against his father’s wishes.

Win or lose, immigration experts say that the legal options are narrowing for Lazaro Gonzalez, who, with the backing of Miami’s anti-Castro Cuban American leaders, has enlisted a team of immigration lawyers to try every possible way to keep the boy in the country.

Lazaro Gonzalez was granted temporary custody of the boy after the child was found clinging to an inner tube in waters off Florida on Thanksgiving Day after a wreck that drowned Elian’s mother and 10 other people.

Elian lived in Lazaro Gonzalez’s house in Miami’s Little Havana neighborhood for months. His great-uncle refused to turn him over to the INS even after the boy’s father arrived in the United States to claim him. Agents of the immigration agency snatched the boy from the Gonzalez house in an April 27 paramilitary raid. Since then, the boy has been in the custody of his father, most recently at a privately owned estate in rural Maryland.

No matter how passionately Cuban Americans argue that the little boy should stay in the United States, the Supreme Court is unlikely to hear the case, some legal experts say. The court normally only considers cases where two courts of appeal have reached conflicting rulings on a precedent-setting legal issue, which is not the case with the Gonzalez asylum request.

And, if the court rules that Elian must be given an asylum hearing, his fate would be in the hands of the INS--the agency that has ruled three times that the boy should not be permitted to apply for asylum.

The immigration officers who adjudicate asylum petitions must make their decision based on whether the person applying is likely to be persecuted for his political beliefs in his native country.

But Elian has been a national hero in Cuba since the battle over where he should live became a rallying cry for Cuban leader Fidel Castro.

“There is no chance that Elian will be granted asylum under the legal standards for asylum,” Cole said. “You have to show that you’re likely to be persecuted in your country for your political beliefs. But what political beliefs does this little boy have and why are we to believe that as a national hero he would be persecuted?

“At this point, all Lazaro Gonzalez can get out of the legal system is to delay the inevitable,” Cole said. “At some point Juan Miguel and his son will get on a plane and go to Cuba, and there is no way the law will lead to any other result.”

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