The little boy's relatives chose the latter option-- they are going back to the appeals court which already has said that the INS was right and that Elian likely must go-- but neither choice was without significant legal and practical risks.
The very filing of Wednesday's appeal doesn't automatically mean that the local family will be able to keep Elian in this country during the next round of appeals. If the full panel rejects the family's reconsideration request, it will almost certainly move to dissolve the injunction, which will force the relatives to the Supreme Court to look for another way to keep the boy here for the time being.
Here is what Elian's local family faced. A direct request to the Supreme Court would have all but precluded a subsequent request for reconsideration by the lower appellate panel and there is rarely a guarantee that the High Court will even hear a particular appeal, much less decide it in a party's favor.
This means that if the family had directly asked the Supreme Court for help and the Supreme Court said no, the family would be practically out of legal options. It's also worth noting that with the Supreme Court about to head out on its summer break, it was unlikely that any such appeal would have been resolved anytime soon.
On the other hand, requesting reconsideration before the same court that already has ruled against them isn't a bowl of cherries, either. It's fair to say that the three judges who made their ruling on June 1st aren't likely to side with Elian's local relatives, which means that those folks must convince a vast majority of the other judges on the panel that their appeal is valid. When you consider that judges, like most of us, are inclined to support colleagues, that's often hard to do.
Meanwhile, back to the appeal. In order to convince the full 11th Circuit federal panel to even hear their reconsideration request, Elian's Miami relatives must convince those judges that they are being asked to consider and address issues which the three-judge panel either could not or would not consider and address in its ruling earlier this month.
If they can convince the full panel that there is something new and different to chew on-- that the judges who initially decided the case didn't have the authority to resolve certain issues, for example-- then they'll get their appeal. If they can't, they won't. And then they'll have to try to get the United States Supreme Court involved in this case.
The little boy's local relatives think they have two winnig arguments, or at least two arguments significant enough to get the full panel's attention. First, they are arguing that the three-judge panel which ruled against them didn't rely upon the right Supreme Court decision in evaluating how much deference a court must give to an administrative agency like the INS. This is a fairly typical argument made in these sorts of rehearing petitions-- an argument which usually fails but sometimes succeeds.
They also are focusing their appeal on the notion that a prior decision by the full 11th Circuit-- on the issue of whether an illegal alien has a constitutional right to seek asylum-- ought to be reconsidered and reversed by a kinder, gentler 11th Circuit, a court which has changed its makeup "markedly" since the prior decision was made. This argument presumes that the new judges on the panel, whomever they may be, will be more inclined to side with arguments made by the Miami relatives and I'm not sure that's a presumption that holds a lot of water.
By Andrew Cohen ©2000, CBS Worldwide Inc., All Rights Reserved