Elian's Options

The federal appeals judges who heard arguments Thursday in the Elian Gonzalez case certainly didn't tip their hands about the boy's ultimate fate. They challenged all three sides -- the government, the father's attorneys and the attorneys for the boy's Miami relatives -- with pointed and articulate questions designed to push against the outer limits of this emotional debate.

And, anyway, the truth is that you can almost never read much into the questions asked during oral arguments in a case. Judges frequently ask questions designed to generate answers that they hope will convince another judge to vote a particular way. Sometimes the toughest questions are asked by judges who are most sympathetic and vice versa.

So I'm not willing right now to try to read the tea leaves about where this all will lead, except to say that the odds are still heavily in favor of the federal courts siding in one fashion or another with the federal government and, thus, Juan Miguel Gonzalez.

For example, Judge J.L. Edmondson seemed to suggest with his questions that he has real concerns about sending the boy back to communist Cuba. He asked why the courts shouldn't intervene to stop the boy's return when courts frequently side with a child's interests over the interests of parents, like when they intervene to save a child from parents who don't want to offer their kid medical treatment.

Does this mean that Edmonson's vote goes to Elian's Miami relatives? Not necessarily. And Judge Charles Wilson isn't necessarily going to vote in favor of the federal government's position just because he questioned in open court Elian's ability even "to sign his last name on the asylum petition." You just never know.

But here are some things we do know. We know that it will take a few weeks for this three-judge panel to make public its decision. Between now and then the judges will huddle to count their votes and then one judge will be selected to write the majority opinion.

We know that once the decision is issued, the losing side will have the right to ask the full 11th U.S. Circuit Court of Appeals to hear the case. The full panel can decide to do so or it can decide not to. If the full panel decides to take up the case, it will be another few months before that appellate hearing takes place.

If the full panel decides not to take the case, the losing side will then be able to ask the Supreme Court to get involved. Again, the high court can decide to take the case or not, although the odds are high that the Justices would necessarily want to get involved in this particular pickle. The Supreme Court only hears a tiny fraction of the cases it is asked to hear each year.

But if the Court did grant a petition for hearing, and unless the Justices agreed to some sort of extraordinary expedited procedure, we would be looking at many more months -- probably into the year 2001 -- before the issues were argued and decided. And, remember, even if th full 11th U.S. Circuit Court panel hears the case, it still can find its way to the Supreme Court.

We also know that there are at least four options here for the judges to mull over. First, the judges could side completely with the government and with Juan Miguel Gonzalez -- in which case the asylum request would be considered withdrawn and the boy presumably would be permitted to return to Cuba with his father, if they both still want to do that and no additional injunction is issued.

Another option would be for the judges to rule that while Juan Miguel Gonzalez has the right to determine his son's fate; the boy indeed applied for asylum while he was staying with his Miami relatives. Under this unlikely scenario, the boy's father probably would promptly withdraw the boy's request and then move to take him back to Cuba.

The third option would be for the judges to side with Elian's Miami relatives and require the INS to process the boy's application and determine whether he warrants asylum on the merits of his case. The problem here for the Miami relatives is that Elian simply doesn't seem likely to be subject to persecution when he returns to Cuba, which would be a prime reason for granting him asylum here.

A fourth option would be for the judges to order the INS at least to interview the boy to determine whether he has the mental capability to apply for asylum. This would take a while and would presumably generate more litigation down the road if and when the INS determined that the boy is simply too young to understand what it means to seek and obtain asylum. This scenario, too, would delay Elian's ultimate fate for several months.

Written by Andrew Cohen.
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