Analysis: Law Over Politics

Federal District Judge K. Michael Moore really had no legal choice but to rule that Elian Gonzales' Miami relatives could not seek asylum for the 6-year-old. The law is perfectly clear that the Immigration and Naturalization Service and the Justice Department have the final say in such matters, absent some clear abuse of their discretion. Once the judge found that no such abuse existed, Tuesday's result virtually was preordained. It's an example of law trumping politics in a case where the legal and political issues often have intertwined.

Remember: These sorts of asylum issues arise all the time in this country and are normally dealt with swiftly under the law by the INS without all of the hullabaloo that surrounds the Gonzalez case. In most instances, asylum seekers cannot afford high-priced lawyers and do not generate international media coverage and political posturing that highlights their particular plight. In these anonymous cases, "justice" - or at least the INS's verdict - is swift and usually final and gets very little press.

Andrew Cohen

This is not to say that this story ends here. Elian's relatives here certainly could appeal the ruling to a federal appellate court and to perhaps even the U.S. Supreme Court. That strategy might tie up the case for many more months, even years - indeed, that might be the whole purpose behind an appeal - but in the end that probably wouldn't change Tuesday's decision. Appellate judges typically do not overrule trial judges and almost never overrule trial judges in cases involving the "abuse of discretion" standard involved here. An appeals court looking at this now would essentially have to overrule the INS, the Justice Department and a federal district judge, and that simply isn't likely to happen.

If Elian's local relatives choose to appeal, bet on the feds seeking some sort of expedited hearing and briefing schedule so that Elian's status can be resolved sooner rather than later. The folks at Justice are likely to argue that keeping Elian here through years of appeals, when the law so clearly requires him to return to Cuba, would be unfair both to the boy and his father and would defeat the purpose of the initial INS ruling.

I suspect that the appeas judges reviewing that argument would be sympathetic to that argument, especially since the facts of the case really aren't in dispute. Judge Moore, in fact, made this point Tuesday in his 50-page order, writing that although Elian's relatives' litigation was "well-intended," it could bring "unintended harm" to the boy by keeping him away from his father for a longer period of time, with "each passing day" being "another day lost between Juan Gonzalez and his son." That's a clear signal from the judge that he thinks Elian ought to be returned to Cuba pronto.

Soon, but not now. The Justice Department already has gone on record Tuesday morning saying that it will go slow in reacting to Judge Moore's decision. That means that we shouldn't be looking for Elian to be boarding any plane anytime soon. It also means that the feds are rightfully concerned about the judge's decision generating a negative reaction in Miami (read: demonstrations and perhaps even rioting). Whether we see an appeal or not, I think most of the action in this case now is likely to take place behind the scenes.

Indeed, I bet that federal lawyers and the lawyers for Elian's relatives soon will at least try to work out some sort of compromise that will allow the family here to claim some sort of victory - i.e., Elian got his day in court, etc. - before Elian takes that plane ride back to Havana. Politics aside, that would save everyone involved a lot of time and money and heartache and in the end would do what is right for the little boy.

By Andrew Cohen
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