Legal Fight Over Boy Could Last For Months
By WILLIAM GLABERSON
The federal appellate
court decision on Wednesday preventing Elián
González from
leaving the country showed that the courts are rarely
a place to get
quick answers to the kinds of volatile questions raised
by the battle
over 6-year-old Elián.
As they studied
the decision, legal experts said yesterday that they could
see the beginnings
of a protracted tug-of-war over the Cuban boy in court.
They said court
proceedings could extend into next year, during which the
boy may be kept
in this country either with his father or with his Miami
relatives.
"I think Elián
will be celebrating Christmas in the United States," said
Richard D. Freer,
a professor at the Emory University School of Law in
Atlanta. In
its decision on Wednesday, a three-judge panel of the United
States Court
of Appeals for the 11th Circuit, in Atlanta, directed that the
boy should not
leave the country while that court considers the full case:
whether immigration
officials were correct in rejecting an asylum
application
filed by the boy's Miami relatives.
The Supreme Court
could eventually enter the fray, either at the request of
the federal
government or the boy's relatives in Miami. Professor Freer, a
specialist in
federal court litigation, said it was too early to tell whether the
Supreme Court
would agree to review whatever is the 11th Circuit Court's
final ruling.
That ruling is
not expected until mid-May at the earliest. Some weeks or
months could
pass if either side then asked the full 12-member 11th Circuit
Court to reconsider
the panel's decision.
Then, if the
Supreme Court were asked to consider the case, it might be
October before
the justices decided whether to take it on, lawyers said,
and it could
be months after that before the justices would issue a decision.
Although the
courts are known for their slow pace, several experts said the
political context
of the case underscored the sharp differences between the
judicial system
and the other branches of government, which can
sometimes shift
course in a matter of days.
"What you are
seeing here is a clash of two worlds," said Michael C. Dorf,
a professor
at Columbia Law School. "The political system needs to move
on an expedited
basis and the court system is not persuaded to depart from
its deliberate
procedures."
The 11th Circuit
Court is evaluating the case on a far faster schedule than
it normally
provides for appeals. The Miami relatives filed an asylum
application
for Elián last winter, but federal immigration officials refused
to
consider it.
In a ruling in March, a federal district judge in Miami sided with
the government.
Elián's Miami relatives then appealed to the court in
Atlanta.
But the appeals
court has yet to hear lawyers' arguments on the central
issue in the
case, which is whether immigration officials were correct in
their decision
that only Elián's father could speak for the boy in deciding
whether to seek
political asylum. The arguments are scheduled to be heard
on May 11.
In its interim
decision on Wednesday, the three-judge appellate court panel
suggested that
immigration officials could have at least interviewed Elián to
learn whether
he had any views on whether he wanted asylum.
If the court
were to decide that the immigration officials should legally
have interviewed
Elián, the ruling might be on narrow grounds. The
officials might
still be permitted to decide, after interviewing him, that Elián
lacked the necessary
maturity to speak for himself.
Still, even such
a technical victory could be important for the boy's relatives
in Miami. New
hearings might be required, and immigration officials might
be ordered to
interview Elián.
Delay, legal
experts said, can only help the Miami relatives in their standoff
with the government.
Courts have said
children as young as 12 can decide whether to apply for
asylum. There
is no minimum age, but legal experts have said they doubted
any court would
direct that immigration officials accept a 6-year-old's
asylum application.
Berta E. Hernández-Truyol,
a professor of international and immigration
law at the University
of Florida's Levin College of Law in Gainesville,
suggested that
the Miami relatives could make the legal battle last so long
that Elián
could grow up enough during the court process to be considered
old enough to
speak for himself.
"A delay of a
year and a half makes Elián 8, which could start this whole
process all
over again," Professor Hernández-Truyol said. "Eight," she said,
"is not 6."