The Elian Case: Where to Now?

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Marisleysis Gonzalez appears on Capitol Hill

The Elian Gonzalez saga is all over but the shouting, and while there'll be plenty of that, it's unlikely to materially affect the outcome. Cuban-Americans vented their anger in Miami Tuesday by closing down Little Havana in a "general strike," while Attorney General Janet Reno next week faces a Senate into the raid that reunited the boy with his father. The Miami relatives asked the 11th Circuit Court of Appeals to appoint a guardian to monitor Elian's wellbeing, having been frustrated for four days in their efforts to see the boy because Juan Miguel Gonzalez wants more time alone with his son before he is prepared to consider a meeting. And Elian moved with his father to a private residence near the Wye River Plantation in Maryland. There they'll be joined shortly by Elian's cousin and teacher, and four of his playmates (and one parent for each), to whom the State Department will issue visas allowing them to visit the U.S. for two weeks to keep the boy company.

The Legal Realities

While Marisleysis Gonzalez and her father, Lazaro, will no doubt get to tell their story to Congress at next week's Senate hearings — and can keep their campaign alive by being turned away in a daily photo opportunity wherever Juan Miguel and his family are staying — they may find the going a little harder on the legal front. "Now that Elian has been returned to his father's custody, they appear to have no legal basis to demand visitation rights," says TIME Miami bureau chief Tim Padgett. "However, many experts have suggested that for the boy's psychological well-being it behooves Juan Miguel Gonzalez to allow the boy access to the people who cared for him over the past six months." The father has indicated through his lawyer that while he's open to the idea in principle, he's not prepared to do it before he's spent more time with Elian and passions have subsided.

In order to prevail in the appeals process, the Miami relatives and their lawyers have to convince U.S. courts to accept in principle that a six-year-old can apply for asylum against the wishes of his father. "It seems questionable that a court will uphold that principle," says TIME legal correspondent Adam Cohen. "It's very difficult for the Miami family to win legally, because they're arguing that the political situation in Cuba makes it wrong to send Elian back even if that is his father's wish, but the family perspective tends to trump the political perspective in U.S. courts. The case is certainly uncharted territory, and could well end up in the Supreme Court for a groundbreaking decision."

One quick way out might be for Elian to withdraw his own asylum request. After all, if his Miami relatives got him to sign the original request, it's unlikely to be difficult for his father to convince him of the merits of signing a document that would withdraw it. "If Elian personally withdraws his request, the case would collapse," says Cohen. "But a court might order that the boy be examined by a neutral third party, and if that examination found that he actually wanted to stay in the U.S., the issue would revert to a question of whether a six-year-old can claim asylum against his surviving parent's wishes."

And while Juan Miguel Gonzalez may be enjoying his sojourn with his family as a guest of the U.S. government at Andrews Air Force Base and, perhaps later, at the Wye River Plantation, it's not inconceivable that he may tire of the legal process and petition the court to allow him to take Elian and the rest of his family home to Cuba. Elian is currently bound by an injunction imposed by the 11th Circuit Court of Appeals to remain in the country until the judges rule, in mid-May, on the application for asylum filed on his behalf by his Miami relatives. Even if the court turns down the appeal, it could extend the injunction if the Miami relatives were to take the matter to the Supreme Court. Juan Miguel Gonzalez accepted those terms when negotiations were under way to secure custody of the boy, but if he chose, now or at some later point, to challenge the injunction, that could throw the court into a quandary. "It's difficult to say what legal authority the U.S. has to keep the family here if they want to return to the country of which they're citizens," says Cohen. "Our laws tend to govern the conditions on which people come into this country; we don't have many laws that prevent people from leaving. There's an injunction in place now, but if Juan Miguel approaches the courts and asks that it be lifted because he wants to take his family home, at the end of the day it may be difficult for any court to keep him here."