By Edward Wong. The New York Times. June 1, 2000
In Atlanta federal court announced this morning that Elián González is not entitled to an asylum hearing by the United States government.
The 33-page written decision by the three-judge panel in the 11th Federal Circuit Court of Appeals came after three weeks of deliberation by Judges J.L. Edmondson, Joel A. Dubin and Charles R. Wilson.
The judges said earlier that they would expedite the review process.
On May 11, lawyers representing both sides of Elián's family distilled five months of an international struggle to an hour and a half of legal arguments before the judges. The struggle has embroiled the governments of Cuba and the United States, thousands of Cuban-Americans in exile and a
family bitterly divided by politics.
Lawyers for Elián's Miami relatives had tried to persuade the judges to make the Immigration and Naturalization Service grant the 6-year-old boy an asylum hearing. But Elián's father, Juan Miguel González, and the Justice Department believe the boy should be returned
promptly to Cuba.
Lawyers for the Miami relatives have 45 days to ask all 12 judges of the federal court to hear the case. If the court denies that request, the lawyers have 90 days to appeal to the United States Supreme Court.
Even if the Atlanta court had forced the I.N.S. to look at the boy's application, legal experts say there was little chance that the agency will actually grant asylum to Elián. Successful asylum seekers must prove that they have been persecuted or that they have a "well-founded fear"
of persecution if they are returned to their homeland. So far, experts say, there is no evidence that Elián would meet those standards.
Several months ago, the immigration agency returned Elián's asylum application to his Miami relatives without reading it, saying that only the boy's father could speak for him.
But in earlier written statements, the judges in this case indicated that immigration laws do not set a minimum age for an asylum applicant. The relevant statute says that "any alien" may apply for asylum. In the courtroom, lawyers for the Miami relatives stressed this point over and
over. They also argued that the Cuban government would persecute Elián because the boy's mother had fled from the country.
But Gregory Craig, the lawyer for Mr. González, said that the ongoing custody battle was taking a heavy toll on Elián's family, and that the boy's asylum application could not be taken seriously because a 6-year-old is too young to hold informed political beliefs. Many child
psychologists have agreed on that point.
The judges threw pointed questions that ranged from asking the lawyers for the Miami relatives whether Elián really understands the meaning of his asylum application, to grilling Mr. Craig on whether Cuba's Communist government might compromise the parental abilities of the boy's father.
Lázaro González and Marisleysis González, Elián's great-uncle and cousin, have been the most vocal in opposing the boy's return to Cuba. Like thousands of Cuban-Americans in this country, Elián's Miami relatives do not want to see the boy returned to a
Communist country headed by President Fidel Castro. They have been supported at every turn by demonstrators waving Cuban and American flags and placards with slogans like, "Let Elián Have His Day in Court."
Elián is staying with his father, as well as Mr. González's wife, 6-month-old son and several schoolmates and a teacher from Cuba, at the Rosedale Estate in the upscale Cleveland Park neighborhood of Washington, D.C. The group moved there more than a week ago from the 1,100-acre
Wye River conference center in Maryland so they could be closer to Mr. Craig. Before the Cuban entourage moved in, the lush Rosedale Estate was used in part as the neighborhood dog run.
Elián and his father were re-united on April 22 after Attorney General Janet Reno ordered a pre-dawn raid on Saturday in which federal agents brandished automatic rifles in front of the boy and his Miami relatives. Elián was flown to Washington and placed in the care of his father,
who had arrived from Cuba on April 6 to claim his son.
The two had been separated since last November, when the Elián's mother, Elisabet Brotons, took him on an ill-fated attempt to reach the United States on a smuggling boat. When the vessel capsized, Ms. Brotons and 10 other Cubans drowned. But fishermen discovered Elián clinging to
an inner-tube on Nov. 25 off the Florida coast.
The boy was given "parole" status by the Immigration and Naturalization Service and placed in the custody of Lázaro González, in Miami. Until the raid, Mr. González defied government orders to hand over the boy, hoping to stall federal officials until the Atlanta
court could decide on the asylum hearing.
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