BY JAY WEAVER AND ANDRES VIGLUCCI

 The influential lawyer for Elian Gonzalez's father paints pastoral pictures of the boy with his dad at the private Wye Plantation, set along a river flowing into Maryland's Chesapeake Bay.

 The apparently warm reunion, as depicted in photos and words by Washington, D.C., lawyer Gregory Craig, just might sway a federal appeals court to pave the way for their return to Cuba in a matter of weeks.

 Then again, it might not.

 Many have assumed that the father-son reunion marked an effective end to the Elian custody saga. But a dozen independent legal experts interviewed by The Herald warned that the 11th U.S. Circuit Court of Appeals in Atlanta, which will hear oral arguments in the case Thursday, could reach any of several divergent conclusions in this unprecedented and unpredictable legal battle.

 And under most scenarios, the case could keep churning through the courts for weeks, if not months, to come.

 ``The courts have surprised us in the past, and may surprise us again,'' said David Martin, a former Immigration and Naturalization Service general counsel who teaches immigration law at the University of Virginia. ``All the normal templates don't quite fit. There is no clear path marked out.''

 Among the possibilities, the experts say:

 The court could simply dismiss the claims by Elian's Miami relatives, who are pursuing a chancy quest for political asylum for the 6-year-old boy over the objections of his father and the INS. Some experts contend that the reunification of Elian and his father, given common sense and the great legal weight of parental rights under U.S. law, dictates a dismissal.

 If determined to carve out new legal principles on children's rights to asylum, the court could order the INS to hear a petition filed by Elian's relatives. The order would not guarantee asylum, which the experts say remains a long shot for Elian.

 The court could adopt other, less clear-cut options -- establishing Elian's right to request asylum, for instance, while ordering the appointment of an independent guardian to determine whether doing so is in the boy's best interest.

 Even if Elian's relatives win an asylum hearing, however, their battle would be far from over. Their petition would be judged by INS officers and a semiautonomous immigration-court system that ultimately answers to U.S. Attorney General Janet Reno, in many cases with no clear-cut right of appeal. Reno has repeatedly asserted that the law is on the father's side.

 TOUGH STANDARDS

 The experts uniformly regard the asylum requests filed by Elian's relatives -- based on claims that the boy would be persecuted or brainwashed in Cuba -- as falling well short of the tough standards for winning asylum.

 ``They would have a hard time proving persecution because he's revered in Cuba, and a hard time proving that a 6-year-old has his own political opinions,'' said Stephen Legomsky, professor of immigration law at Washington University in St. Louis. ``Both seem so unrealistic.''

 If the court tosses out the relatives' case, few experts believe the U.S. Supreme Court would take it up. In that instance, a temporary court order requiring Elian to remain in the United States during the appeal would expire, and the boy and his father would be free to return to Cuba.

 But any of the other scenarios would virtually ensure rounds of appeals and counter-appeals, possibly -- though not likely -- extending for years.

 The appellate court, which has allowed only 40 minutes for arguments, is not expected to rule immediately after the hearing. Typically, the court takes about four months to issue decisions, but experts say it may expedite a ruling in Elian's case.

 Little about this court battle so far has been typical.

 The INS unwittingly set the stage when it placed Elian in the temporary custody of his great-uncle in Miami shortly after the boy's mother perished at sea in November.

 When Elian's father in Cuba claimed custody, most immigration law experts cited longstanding legal precedent and predicted an easy win for the INS' position, laid out by Commissioner Doris Meissner on Jan. 5: That a 6-year-old child, absent any clear threat of persecution at home, lacks the mental capacity to apply for asylum against his father's wishes.

 Juan Miguel Gonzalez, a 31-year-old cashier at a national park in Cuba, has said repeatedly that he wants to take Elian back to Cuba with him.

 On March 21, U.S. District Judge K. Michael Moore upheld the government's position and dismissed the relatives' case. That set up the appeal before the Atlanta court, long regarded as a conservative bastion that consistently defers to the government on immigration matters.

 But then a three-judge appellate panel delivered a surprise: In a strongly worded preliminary order, the judges suggested that the INS may have erred in rejecting three asylum applications filed on Elian's behalf by his Miami relatives.

 Though they warned that their thinking could change, the judges appeared to embrace the relatives' legal arguments. The relatives contend that a statute that says ``any alien'' in the U.S. may apply for asylum should be read literally to include children as young as Elian.

 The same three judges -- James Edmondson, Joel Dubina and Charles Wilson -- will decide the appeal.

 But their order came three days before the most dramatic development in the case -- the April 22 INS raid that removed Elian from his relatives' Little Havana home, and reunited him with his father outside Washington.

 Just how the abrupt change in custody may affect the appellate case, however, is unclear.

 Some experts believe the reunification should significantly alter the dynamics of the case, forcing the judges to look beyond the narrow issue of Elian's right to an asylum hearing to the question of whether his father's parental rights are paramount.

 For one thing, the court allowed Elian's father to intervene in the appeal, a rare move at this stage of federal litigation.

 REUNIFICATION ISSUE

 In practical terms, too, the experts said, the reunification could make it harder for the judges to rule against Juan Miguel Gonzalez -- an action that would prolong the family's uncertainty, damage family ties and perhaps, ultimately, force the father to return home without his son. Decades of Supreme Court rulings have established the right of parents to decide what is best for their children.

 ``This is not purely an immigration case about whether the boy may apply for asylum,'' said Bernard Perlmutter, director of the University of Miami's Children and Youth Law Clinic. ``It ultimately turns on the fundamental principle of family law. It defies common sense and reason to say that anyone other than Elian's father speaks for his son.''

 Michael Ray, president of the American Immigration Lawyers Association in South Florida, agreed. ``You can't take the son away from his father because you don't like [Cuban President Fidel] Castro.''

 But the court may decide that, under the ``any alien'' law, Elian has a right, independently of his father, to at least be heard. The relatives argue that Elian himself has requested asylum, noting that he signed one of the applications in a childish scrawl.

 Craig and the government retort that it's absurd to say a kindergartner who cannot yet read or write has applied for something he has no understanding of. And they say the great-uncle has no right to do it for him.

 Some experts say the court must also determine whether Elian would even have a reasonable fear of political persecution if returned to Cuba.

 ASYLUM STANDARD

 To win asylum, applicants must persuade an INS asylum officer or an immigration judge that they would be persecuted at home on grounds of religion, political opinion or membership in a particular social group.

 On Thursday, lawyers for the Miami relatives are expected to argue that Cuban government agents have already begun ``reprogramming'' Elian at the Wye Plantation retreat where they have visited him. The experts say the claims of persecution are speculative at best, frivolous at worst.

 ``That's a big hurdle,'' said Tammy Fox-Isicoff, a former INS trial lawyer now in private practice in Miami. ``There is a presumption that every Cuban gets asylum. It's not so.''

 If the court decides Elian must have an asylum hearing, experts say, it would probably have to conclude that his great-uncle, Lazaro Gonzalez, can speak for him on the matter.

 Some experts, however, say Lazaro Gonzalez's standing is now questionable, since he no longer has custody of the boy.

                     Copyright 2000 Miami Herald