Appeals Court To Hear Elian Case

Wednesday, May 10th 2000, 12:00 am

By: News On 6

ATLANTA (AP) â€” After months of wrangling with the government, Elian Gonzalez's Miami relatives will make what could be their last stand Thursday as three federal appeals court judges hear arguments in the 6-year-old Cuban boy's case.

Nearly three weeks after federal agents seized Elian from his great uncle's home to reunite the boy with his father, lawyers for the Miami relatives will ask the court to allow Elian to seek asylum despite his father's wishes to take him back to Cuba.

The main question before Atlanta's 11th Circuit U.S. Court of Appeals, which is one step below the Supreme Court, is whether a child as young as Elian can decide for himself, even over his father's objections.

Lawyers for both the U.S. government and Juan Miguel Gonzalez, the boy's father, say Elian is not mature enough to make such choices.

If the judges rule against the Miami relatives, there is no guarantee the full 11th Circuit Court or the Supreme Court will hear their appeal.

And though the 11th Circuit judges have ordered that Elian must remain in the country until it decides his appeal, there is no guarantee he would be barred from leaving before further appeals could be heard.

``There is a high probability this is the last stand,'' said Charles Keely, a professor of international migration at Georgetown University.

Elian was found clinging to an inner tube off the coast of Florida on Thanksgiving Day. His mother and several others died trying to flee Cuba when their boat capsized.

The 11th Circuit judges have noted that immigration law allows ``any alien,'' with no age limit, to seek asylum in the United States.

Lawyers for the government have cited a 1985 case in which a 12-year-old Soviet boy was granted asylum against his parents' wishes. The federal appeals court in that case ruled that 12 was ``presumably near the lower end of an age range'' for which children could defy their parents.

Children Elian's age are ``very impulsive,'' making their judgment highly suspect, said Bernard Perlmutter, director of the Children and Youth Law Clinic at the University of Miami.

``Not to say that the opinions of a 6-year-old should be totally disregarded, but they should not be give the same kinds of weight we give to adolescents,'' Perlmutter said.

``You give a kid a Nintendo and the kid will want to go where the Nintendo's going,'' said Michael Ratner, an international human rights lawyer who teaches at Yale University.

Elian printed his name on the asylum application filed for him by his great-uncle Lazaro Gonzalez. The government and the boy's father contend Lazaro Gonzalez has no right to speak for Elian.

What the court has to consider now, said Washington immigration attorney Michael Maggio, is whether Elian understands the argument outlined in the asylum application he signed â€” that he could be persecuted and politically exploited by Cuba's communist regime if he returns.

Experts expect the father's attorney, Gregory Craig, to tell the judges that Elian wants to go home.

``That's very, very persuasive to the court of appeals. Craig must tell the judges Elian, of his own free will, has told Dad, `I want to go back to Cuba with you,''' said Alberto Benitez, a George Washington University law professor who represents immigration clients.

The judges could decide the Immigration and Naturalization Service was right in denying Elian's asylum application, as a federal judge in Miami ruled. Or it could order the INS to give the boy an asylum hearing.

Or the judges could rule somewhere in the middle, such as telling the INS to interview Elian and then decide if his application should be heard.

Elian's father has also asked the court to let him replace Lazaro Gonzalez as the adult representing the boy in the lawsuit. If the judges agree, Juan Miguel Gonzalez could drop the case.

The 11th Circuit Court panel â€” Judges J.L. Edmondson, Joel A. Dubina and Charles R. Wilson â€” will hearing oral arguments Thursday. The judges have no deadline to issue a ruling, but legal experts predicted they will move quickly, perhaps ruling in two to three weeks.

Either side would have 45 days to ask all 12 judges of the 11th Circuit Court to hear the case. If the court refused, the losing side would have 90 days to appeal to the Supreme Court.