By David Von Drehle
Washington Post Staff Writer
Monday , April 24, 2000 ; A17

Attorneys for the Miami relatives of Elian Gonzalez are worried that their case in federal appeals court will be torpedoed
following Saturday's dramatic raid to seize the boy.

Lacking any custody claim, teetering on weakened legal precedents, the Miami lawyers spent yesterday urgently searching for
court strategies to keep their hopes of political asylum from slipping away.

Kendall Coffey, a Miami lawyer representing the boy's great-uncle, charged that Cuban agents are now working with Elian's
father "to get Elian to renounce his desire to remain in this country."

If the boy changes his mind, the case in federal appeals court is likely to evaporate, independent legal experts said, and Coffey
agreed. It is "the way the Justice Department can overcome the ruling of the appeals court, which strongly suggested that [Elian]
has legal rights to apply for asylum."

Even without a change of heart from Elian, the fact that the boy no longer lives with the Miami relatives shifts the legal balance
toward Juan Miguel Gonzalez, father of the shipwrecked 6-year-old, experts said.

The father is now in a stronger position to ask the appeals court simply to shut down the legal conflict that has riveted the
country.

"It seems to me that a strategy the father might employ is for him to simply withdraw the asylum request and moot this whole
thing out," said Theodore Klein, a prominent Florida lawyer who was at the center of a case that the Miami relatives have used
to support their own cause.

"Now you've got a father who is in custody of his own child," Klein continued. "His father can say 'Elian, my good boy, sign
here.' And he signs. How could the court look behind that?"

Last week, a panel of judges on the 11th U.S. Circuit Court of Appeals said there is a strong case to be made that the
6-year-old requires a full hearing on his application for asylum--a complicated legal document signed painstakingly in a child's
uncertain block letters. The court ordered that Elian remain in the United States until this question is decided.

Oral arguments are scheduled for May 11.

The judges relied heavily on two theories in issuing their order:

First, that Elian's best interests are not necessarily represented by his father. The judges seemed disappointed that the
government never interviewed Elian to examine this issue. They cited the fact that great-uncle Lazaro Gonzalez was Elian's
caretaker as a reason to pay heed to his views.

And second, the judges theorized that the boy is able to file an asylum application--indeed that Congress, when it wrote the
law, set no limits on the age of asylum seekers.

Both are heavily contested legal notions--generally, parents have the authority to determine a child's interests, and very young
children are not usually allowed to file important legal documents.

In any event, lawyers say, both ideas may be substantially undercut by the fact that Elian is once again in his father's custody,
several lawyers say. As long as the boy was living with other relatives, it was easier to argue that his father did not speak for
Elian or understand his best interests.

"It doesn't need to be a generalized question now of whether children have rights to apply for asylum," said David Martin, a
former general counsel of the Immigration and Naturalization Service. "It's a question of how, exactly, Elian exercises that right.
He's 6. He needs a representative, and the one that applies here is his father, who's responsible for his care."

The attorneys for the Miami relatives are preparing to seek a court order allowing great-uncle Lazaro, cousin Marisleysis and a
sympathetic doctor to meet with Elian. "We need to minimize the possibility that he will be administered 'therapies' by Cuban
psychologists," Coffey said.

Coffey acknowledged that he and his colleagues must hatch new legal theories in an increasingly unorthodox case. He said they
are focusing "primarily but not exclusively" on the 11th Circuit, while making plans to rush before other judges if the appeals
court turns against them.

The Gonzalez case has always rested on largely uncharted ground. Two existing immigration cases have offered some support
to the cause of keeping Elian in the United States, but the change in custody weakens both pylons.

One case, Polovchak v. Meese, dealt with a boy who wished to remain in the United States even though his parents returned
home to the Soviet Union. The boy in that case, Walter Polovchak, was 12 when his case began. At that age, courts begin
giving some weight to the opinions of children--in some child custody disputes, for example.

But it also was significant that Walter did not live with his parents during the dispute.

The other case was the one involving Theodore Klein. In Johns v. Dept. of Justice, a Mexican woman was seeking to have her
young daughter returned to her after an American couple illegally adopted the girl. Klein was appointed to represent the child
after the court decided that all the adults in the case had interests that might compete with hers.

That case, too, is now strikingly different from Elian's situation, Klein said yesterday. In the Johns case, the biological mother
had never known or cared for the girl. The child "had spent her whole life" with the American couple, Klein said, while Elian
was separated from his father for only a matter of months.

Neither of the earlier cases was ever resolved. Walter Polovchak turned 18--old enough to make his own decisions--before his
case was decided. Cindy Johns, the little girl, was spirited back to Mexico by her biological mother.

There appears to be no precedent for a child anywhere near as young as Elian applying for or receiving asylum against the
wishes of his custodial parent.

If the appeals court abruptly shuts down the Elian drama, the Miami relatives and their supporters won't be the only ones
disappointed. Several organizations devoted to the rights of refugees have asked the court to overturn a district judge's decision
backing the government's handling of Elian's case.

These groups--including the Lawyers Committee for Human Rights--are worried that U.S. District Judge K. Michael Moore's
decision gives future U.S. bureaucrats too much power to refuse to consider asylum applications from children.

Without taking a position on Elian's case, the refugee groups insist that there are times when children need asylum against the
wishes of their parents. "For instance, female genital mutilation . . . is generally conducted at the behest of a young girl's
parents," the groups argued in a "friend of the court" brief to the 11th Circuit panel.

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