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Another Day, Another Ruling

Another court ruling, another temporary victory for the Miami relatives of little Elian Gonzalez. Sure, the 11th U.S. Circuit Court of Appeals guaranteed Wednesday that Elian will remain in this country, under the jurisdiction of American courts, until his primary appeal is resolved in May or June or even later this year. And, sure, this will make it even more politically difficult for federal authorities to remove the boy from Florida and reunite him with his father in Washington or anywhere else in the country.

But the court went out of its way to note that its injunction decision does not necessarily foreshadow a later decision which would allow the boy to stay permanently in this country. And the Court specifically declined to even address the issue of where Elian must stay in the States until at least his next appeal hearing on May 11 -- though the judges clearly could have issued an order requiring him to be permitted to stay with his Miami relatives.

The judges, in other words, left the legal door open for the feds to take Elian from Miami even as soon as Wednesday and reunite him with his father, so long as the pair stick around long enough to see all the appeals through to their conclusion. And nothing from Wednesday's ruling seems to change the fundamental legal principle -- which indicates that so long as Elian's father is a good father he has the ultimate say on what happens to his boy. So while Little Havana can justifiably celebrate Wednesday, those who want Elian to stay here permanently are by no means out of the woods.

On the other hand -- and there always are "other hands" in these legal matters -- Wednesday's ruling does give Elian's Miami relatives much to be optimistic about as they prepare for the primary appeal hearing next month. First, the judges said that their argument about Elian's asylum status has some "merit" which is precisely what you want to hear as a lawyer. If the appeals court felt that the family's argument was meritless-- if they simply could not ultimately win down the road-- the temporary injunction would have been promptly lifted.

Next, the judges appear to be saying that they are at least open to the suggestion that Elian himself can apply for aslyum, that he is not too young, and if they rule that way in May that could turn this case on its head, because then Elian's father's wishes would not necessarily be considered of paramount importance.

If Elian can apply for asylum, in other words, he just may get his "best interests" considered, which is precisely what his local relatives are looking for. If that happens, all bets are off for poor Juan Gonzalez. Which is why I suspect that this preliminary signal from the judges on the asylum issue is causing the Justice Department particular heartburn, as is the Court's refusal to issue any kind or order requiring Elian's Miami kin to deliver him to federal authorites. All in all, a good day in Miami and a bad one in Washington.

By Andrew Cohen. ©2000, CBS Worldwide Inc., All Rights Reserved

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