By Jane Sutton
MIAMI, Jan 10 (Reuters) - A Congressional subpoena issued to forestall the return of a 6-year-old Cuban boy to his homeland was improperly served and is not legally binding, legal experts said on Monday.
U.S. Representative Dan Burton subpoenaed the boy, Elian Gonzalez, to appear before Government Reform Committee on Feb. 10.
Burton, an Indiana Republican who helped shape the U.S. embargo against Cuba, issued the subpoena to give the courts time to rule on the boy's fate before the Jan. 14 target date set by the Immigration and Naturalisation Service for his return to his father in Cuba.
The INS said on Monday that it and the Justice Department were still reviewing the legal impact of the subpoena.
But legal experts in Miami said the subpoena was improperly served because it was faxed to the Miami home of relatives who are trying to keep the boy in the United States.
``It had to be served to his lawful guardian, who is his father. It wasn't,'' said Ira Kurzban, a prominent immigration lawyer in Miami.
The INS ruled last week that Elian's father, Juan Miguel Gonzalez, has sole legal authority to speak for the boy, and the father has said repeatedly he wants Elian sent home to Cuba.
BOY CANNOT ACCEPT SUBPOENA
Elian himself cannot accept a subpoena because Florida law bars anyone under 16 from doing so, said Bernard Perlmutter, director of the University of Miami's Children and Youth Law Clinic.
``A minor is legally incompetent to accept service of process of subpoenas,'' Perlmutter said.
Legal scholars also said they did not think Congress had the constitutional authority to overrule the decision made by the INS, which is an executive branch of government.
``There has been significant and consistent litigation that Congress may not legislatively seek to overrule an executive act,'' University of Miami law professor Terence Anderson said.
The dispute over Elian has raged in Miami and Havana since he was rescued from the sea, clinging to an inner tube, on Nov. 25 after a boat carrying illegal migrants from Cuba to Florida capsized. His mother was among 11 people who drowned.
Elian has been staying with his father's relatives in Miami. Elian's great-uncle, Lazaro Gonzalez, has asked a Florida court to grant him temporary custody, which would give him legal standing to apply for political asylum on Elian's behalf.
Kurzban and Perlmutter said the Florida court had no jurisdiction in the case unless Attorney General Janet Reno ceded it to the court. Under a 1997 law, the attorney general is the ultimate authority on custody issues involving migrant children unaccompanied by adults, they said.
FATHER'S PERMISSION STILL NEEDED
If Reno ceded jurisdiction to the Florida court, under Florida law Elian's Miami relatives still could not be granted temporary custody of the boy without his father's permission, the lawyers said. The only exception would be if the relatives could show Elian's father is an unfit parent --
something no one has suggested.
``The state statute says, basically, the father is presumed to be the guardian, absent clear and convincing evidence that the father is unfit,'' Kurzban said.
Granting Elian U.S. citizenship, as several U.S. congressmen have proposed, would remove him from Reno's custody and put the custody decision in the hands of the state court. But the state law still favours the father, the lawyers said.
``Even if the father and the son are of two different nationalities ... the parent's right to care for the son and raise his son would not be affected,'' Perlmutter said.
And if Elian's Miami relatives are allowed to pursue a political asylum claim on his behalf, they would have to show the boy would face persecution in Cuba, something Kurzban called ludicrous.
``He's being treated as a hero in Cuba. Simply returning somebody to a communist country is not a basis for political asylum. If it were, we'd have a billion Chinese in the United States and 10 million Cubans instead of 1 million and we'd have a million North Koreans,'' Kurzban said.
18:21 01-10-00
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