Another Court For Elian Before Cuba?

Iraqis pelt a burning British military SUV after being hit by a rocket propelled grenade in Basra, Iraq, 550 kilometers (340 miles) southeast of Baghdad, Monday Oct. 16, 2006. One soldier was wounded in the attack. (AP Photo/Nabil al-Jurani)
AP Photo/Nabil al-Jurani
Federal appeals judges decided Friday afternoon they will not hear the international custody battle over 6-year-old Elian Gonzalez, delivering yet another blow to his Miami relatives' efforts to keep him in the U.S.

In its ruling, the U.S. 11th Circuit Court of Appeals unanimously denied a petition for a rehearing of its decision not to grant the Cuban shipwreck survivor an asylum hearing, reports CBS News Correspondent Jim Stewart.

But Elian's Miami relatives quickly announced Friday they would appeal to the U.S. Supreme Court for an asylum hearing, a move that could delay the attempt by Elian's father to take the boy home to communist Cuba.

The circuit court ruling, written by Judge J.L. Edmondson, said the court will not grant any further motions for a stay, and the court's stay requiring Elian's father, Juan Miguel Gonzalez, to keep him in the U.S. will dissolve at 4 p.m. Wednesday.

The Atlanta court's ruling also said, "Any further requests for stays or for injunctive relief should be directed to the Supreme Court."

"Juan Miguel is grateful that the 11th circuit has denied the petition for rehearing and has lifted all stays and all injunctions as of Wednesday afternoon of next week," Gregory Craig, attorney for Juan Miguel, said at a brief news conference Friday, an hour-and-a-half after the court ruling.

"Over the weekend, I will be meeting with him to discuss his plans for the coming week. Juan Miguel, (his wife) Nersy, Elian and (his infant son) Hianny look forward to resuming a normal life with friends and their family," Craig said outside his Washington law office.

Read The Decision
Click here to read the full text of the 11th Circuit Court of Appeals decision not to rehear the Elian Gonzalez asylum case.
Armando Gutierrez, a spokesman for the Miami relatives who have fought for seven months to keep the child from returning to Cuba, said the relatives' lawyers would appeal on Monday to the Supreme Court to block Elian's departure until it hears the case.

Usually, four of the nine Supreme Court justices must agree to hear a case. A single justice can grant a stay, or can opt to refer the question to the full court. Justice Anthony M. Kennedy is assigned to hear emergency matters from the 11th circuit.

CBS News Legal Analyst Andrew Cohen reportthat the circuit court could have decided to lift the travel injunction for Elian's father immediately, which would have had a more devastating effect on the boy's U.S. family.

Cohen reports the Supreme Court usually doesn't take up these sorts of appeals even where there is a dispute between lower courts. Every court which has looked at these issues has sided with the government and against the local relatives.

Elian's Miami relatives must hastily prepare their appeal within five days, but a former immigration official said it may be a waste of time, reports CBS News Correspondent Lee Cowan.

"I don't see any basis in the 11th Circuit decision for the Supreme Court to want to entertain it," Paul Virtue, a former legal attorney for the Immigration and Naturalization Service, said Friday.

If the Supreme Court decides to hear the case it would have to issue a new order keeping Elian in the U.S. That could stretch Elian's stay well past the patience of his father, who for the first time since arriving here nearly three months ago, can now begin booking a flight back home as early as Wednesday.

By refusing to re-hear the case, the court's earlier ruling stands - that Elian is too young to ask for asylum on his own and that the INS was right to decide that only his father should make such a request.
"Now that the court has conclusively upheld our decision, I am hopeful that this father and son will soon be able to move on with their lives together," U.S. Attorney General Janet Reno said in Washington.

It is the fifth legal setback for the Miami relatives who've been trying for months to keep Elian in the U.S. permanently. They've admitted to an uphill battle ever since Elian was seized by government agents in April. Elian remained secluded Friday in Washington with his father and a few visitors from Cuba.

Last week, the Miami relatives argued that three judges on the circuit court panel were wrong to uphold an INS decision that Elian should return with his father to Cuba. They said INS decisions are not necessarily law and can be overturned by the courts.

In responses this week, attorneys for the Justice Department and the boy's father asked the full court to reject the relatives' appeal and dissolve an injunction keeping him and his son in the U.S.

Elian was rescued off the Florida coast on Thanksgiving Day after his mother and 10 others drowned when their boat sank en route from communist Cuba to the United States.

The INS decided the boy should be returned to his father. But the Miami relatives, who cared for Elian after his rescue, refused to relinquish him, so federal agents seized him April 22 and reunited him with his father in the Washington area.

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