Miami Relatives Appeal Elian Case

Thursday, June 15th 2000, 12:00 am

By: News On 6

ATLANTA (AP) â€” Elian Gonzalez's Miami relatives asked the full 11th U.S. Circuit Court of Appeals on Thursday to reverse a decision that would allow the 6-year-old boy to return home to Cuba with his father.

A three-judge panel of the 12-member court ruled two weeks ago that the Immigration and Naturalization Service had the right to deny the boy an asylum hearing requested by his relatives. The ruling blocked Elian from returing to Cuba immediately, giving the relatives two weeks to appeal.

The appeal filed Thursday says the panel's decision conflicts with earlier rulings made by the Supreme Court regarding the power of a government agency to interpret laws. The appeal also claims the panel ignored the federal law that it argues allows any alien â€” even a child acting against his parents' wishes â€” to appeal for asylum.

Lawyers for the family said they hope the full court would agree to hear the appeal and overrule the panel's decison. There was no immediate indication when the court would make the decision on the request for a hearing. Seven of the court's 12 judges would have to agree to hear the case for it to come before the court.

``Based on direction of other courts in this country, we think there's a very compelling case of the entire 11th Circuit to reconsider its past views,'' attorney Kendall Coffey said.

The federal government was ``just simply trying to appease to Fidel Castro and the Cuban government'' in its handling of the Elian case, said Jose Garcia-Pedrosa, another attorney for the family.

In its decision, the appeals panel said no federal law addresses whether a child as young as Elian can seek asylum against the wishes of his parents. Because of that, the court said, the INS was required to come up with a policy dealing with ``the extraordinary circumstances'' of the case.

The appeal says the panel used the wrong standard to evaluate the INS decision that Elian was not entitled to an asylum hearing.

The judges cited a 1984 Supreme Court ruling â€” known as the Chevron case â€” that set the standard for what deference federal courts must give to decisions made by federal agencies. The justices said courts can't interfere if an agency makes a reasonable interpretation of an ambiguous law.

But the appeal says that the panel ignored a Supreme Court ruling last month that says many agency decisions ``including those in opinion letters, ... policy statements, agency manuals and enforcement guidelines'' lack the force of law and aren't entitled to the same deference as decisions made after a formal rulemaking process.

That May 1 Supreme Court ruling came in a Texas case in which the justices said public employers can force employees to take compensatory time off at specific times.

The appeal claims that the panel probably would have ruled in favor of the family if the judges had known of the May Supreme Court ruling.

In addition to their legal arguments, the relatives' attorneys made an impassioned plea to the court to hear the appeal.

``The extraordinary importance of this individual case â€” to the United States, to the administration's foreign policy and dealings with Cuba, to the Cuban-American community, to the American citizenry more broadly and to the Gonzalez family â€” is too obvious to require extended discussion,'' the appeal said. ``That factor alone justifies rehearing to correct the error.''

If the relatives' strategy fails, it is unclear how soon Elian could return to Cuba. A court order requiring Elian to stay in the United States could be extended if the court decides to rehear the appeal.

In Washington, Attorney General Janet Reno said she hoped ``that the matter could be considered and ruled upon promptly and that we can go forward.''

Elian's father, Juan Miguel Gonzalez, wants to take his son back to Cuba and end the seven-month saga that began Thanksgiving Day.

Elian was rescued off the Florida coast after his mother and 10 other Cubans drowned when their boat sank in an attempt to reach the United States.

The father arrived in the United States with Elian's stepmother and half brother on April 6 in hopes of soon taking Elian home. Miami relatives refused to relinquish the boy, so federal agents seized him April 22 and reunited him with his father in the Washington area.

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On the Net:

Appeals Court: http://www.ca11.uscourts.gov

Immigration and Naturalization Service: http://www.ins.usdoj.gov

Site of Miami relatives: http://www.libertyforelian.org