Elian Kin Appeals Again; Castro Wins Once More

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Elian Gonzalez's Miami relatives have — surprise, surprise — chosen the slow road for their appeal to keep the boy in the U.S., and that's just fine with Fidel Castro. Lawyers acting for great-uncle Lazaro Gonzalez Wednesday asked the 11th Circuit Court of Appeals in Atlanta to review their decision upholding the Immigration and Naturalization Service's ruling that the six-year-old couldn't apply for asylum in the U.S. against the wishes of his father. That request is likely to be a prelude to the eventual Supreme Court appeal that the Miami relatives have long vowed they'll make. But with two lower courts having ruled so unambiguously in favor of the INS, the Miami relatives may have a hard time convincing the Supreme Court to hear the case. More urgently, perhaps, if the 11th Circuit Court rejects their appeal — as legal experts expect they will — the Miami relatives may find themselves scrambling for a new injunction to stop Juan Miguel Gonzalez from simply getting on a plane and flying home with Elian.

The courts tend to apply a "straight face" principle to ambiguities in the law, allowing the government the discretion to interpret congressional statutes as long as those decisions can be defended with a straight face. Both the Federal Court and a three-judge panel of the 11th Circuit appeals court have determined that it was reasonable for the INS to interpret applicable immigration statutes to preclude hearing the asylum application filed for six-year-old Elian by his great-uncle, against the express wishes of his father, and the smart money is against that decision being reversed by either a full panel of the 11th Circuit or by the high court. But while Elian's troubled sojourn in the U.S. grinds through its seventh month, Castro is making the most of the delay. Last week he got hundreds of thousands of Cuban women to march for the boy's return in the biggest demonstration seen in Havana for decades; this week tens of thousands of children got a day off school to file dutifully past the U.S. Interests Section in Havana denouncing the yanquis. The Elian case, after all, has been a shot of political Viagra to the aging strongman, and he's in no hurry to see it fade.