Short, But Not Simple
Thursday's hearing at Atlanta's 11th District Court of Appeals will be brief, reports CBS News U.S.-Cuban Affairs Consultant Pamela Falk, but also pivotal.
Falk, It will be the first time Juan Miguel Gonzalez has had a role in a hearing concerning his son Elian Gonzalez.
Plus, the outcome of the six-month Elian saga will turn on what the judges decide.
Falk, an expert on Cuban-American affairs and immigration law, said the Atlanta court will decide if Elian deserves a political asylum hearing.
Thursday's hearing is scheduled for 40 minutes, in which lawyers for the interested partied will present oral arguments to accompany briefs they have filed with the court.
Greg Craig, Juan Miguel's lawyer, will have five minutes to speak. The lawyer for the Justice Department will be granted 15 minutes. Kendall Coffey, attorney for the boy's Miami relatives, is allotted 20 minutes. The judges can ask questions, so the hearing will likely last longer than 40 minutes, but it will be brief.
Falk explained that in the hearing, Juan Miguel and the Justice Department are formally, legally on the same side.
"This case is about whether Elian deserves a political asylum hearing. The case is actually Elian vs. the INS and Juan Miguel Gonzalez," she said.
That Juan Miguel will even be represented at the hearing is a "a recent development," said Falk. "He wasn't always in the case."
Several outcomes are possible.
The court first may wait until May 16, when they will receive briefs and hear arguments on whether Juan Miguel should speak for Elian, rather than great-uncle Lazaro Gonzalez, in the hearings.
"But," said Falk, "they may never get to that."
In fact, the court could issue a decision Thursday.
"If the Miami relatives win, then they go back to Janet Reno and actually then get a political asylum hearing, and at that point they might very well grant Elian political asylum," said Falk.
If Lazaro and the Miami clan should win, the court would also have to decide if the injunction keeping Juan Miguel and Elian in the country should be continued through the rest of the asylum case. The political asylum hearing process would then delay Juan from taking Elian back to Cuba right away.
If the INS wins, "basically Juan Miguel and Elian have the right to go back to Cuba tomorrow," if the court lifts the injunction that restricts the boy's travel.
Juan Miguel, whose argument is that Elian didn't file an asylum claim, could win the case. The result would be the same as if the INS won—he and the boy could go back to Cuba.
But if Juan Miguel or the INS wins and the Miami family loses, says Falk, "[the Miami family] may try to get an injunction and appeal to the Supreme Court and ask for an expedited appeal."
Such an appeal would be based on how to interpret the law.
"This court will not decide anything of fact," said Falk. "This cout is an appeals court and what they are really looking at is the law."
The issue of law is whether a six-year old can decide for himself if he wants political asylum. While many feel the law in that area is clear, the court has hinted otherwise.
"In ruling on the injunction, this three-judge panel—which is the same three-judge panel that we've heard from before—said anyone who thinks they can predict this case is wrong," says Falk. "What they said is that there are no clear answers to this case."
The judges believe they face a very difficult decision. They have to decide if there is a separate interest of the father and the son and have hinted that they feel the father's interests may be different from the son's, and that that INS did not consider those different interests.
"It may seem foolish or strange that a six-year-old can decide for himself, but in this case, they said [they had] to look at the law and the law says 'any alien,'" says Falk. "What they're looking at in this case is the way the statute is structured and if the attorney general made an appropriate and proper decision."