dictionary

Elian's Miami relatives file new appeal for asylum hearing

Lazaro, top, and Marisleysis

June 14, 2000
Web posted at: 11:28 p.m. EDT (0328 GMT)

In this story: Predictions from legal experts Case history Elian's odyssey RELATED STORIES, SITES

WASHINGTON (CNN) -- Lawyers for the Miami relatives of 6-year-old Elian Gonzalez have filed an appeal with the 11th U.S. Circuit Court of Appeals, contending that federal immigration officials did not have the discretion to deny the Cuban boy a political asylum hearing.

The appeal was shipped overnight Wednesday to the Atlanta court from Washington and is expected to be received by the court Thursday morning. It was filed one day before a deadline set by the panel of appellate judges who ruled against the family two weeks ago.

COURT RULING 11th U.S. Circuit Court of Appeals ruling denying Elian's political asylum hearing (June 1) Scanned version PDF version (FindLaw) (Requires Adobe Acrobat Reader)    GALLERY A collection of images from the Elian story     RESOURCES Who's who in the Elian Gonzalez case     MESSAGE BOARD US/Cuba relations

Boy in the Middle: Legal background on the Elian Gonzalez case · CASE FILE · TIMELINE · DOCUMENTS     Web Guide   Consumer Center Select a topic Bankruptcy Discrimination Divorce Estate Planning Landlord-Tenant Personal Injury Taxes Law Dictionary

The latest appeal seeks a hearing before the entire 12-member court.

If the appeal is accepted, the court will decide whether the original three judges will rehear the case or if all 12 judges must do so. If the full complement of judges decides to hear the case, they will grant what is called an "en banc" hearing.

Sources close to the Miami relatives said Wednesday the lawyers based their new appeal on two main points:

  • That "opinion letters" issued by government agencies (in this case the INS) are not the same as U.S. law.

  • That the entire 11th Circuit should reverse an earlier decision -- Jean vs. Nelson -- that ruled that aliens do not have due process under U.S. law.

Lawyers for Elian's great-uncle, Lazaro Gonzalez, could have gone directly to the U.S. Supreme Court. However, those familiar with the case say the Supreme Court usually prefers a lower court to review any new issue raised on appeal.

The new issue involves a Supreme Court decision handed down in May involving judicial deference in a Texas case. That decision will be used to argue the Immigration and Naturalization Service did not have the discretion to deny Elian a political asylum hearing and that the judges in this case erred by upholding the INS.

The Miami relatives' appeal to the 11th Circuit does not take away their right to file further appeals with the Supreme Court. The family's lawyers have said repeatedly that they will take the case to the nation's highest court.

A Washington law firm, Kirkand and Ellis, has joined the legal team representing the Miami relatives and filed the appeal via Federal Express.

"According to the lawyers, that makes it an official filing," said Miami family spokesman Armando Gutierrez. "Protectively, the lawyers will hand-deliver a separate copy (to the court) in Atlanta in the morning."

Legal experts have said that unless the Miami relatives get another temporary injunction barring the boy's removal from the United States, Juan Miguel Gonzalez, the father of Elian, will be free to return to Cuba with his son by the end of this month.

They have also predicted that the Supreme Court will not take the case because there is no disagreement at the lower court level over the point of the law.

"The law is crystal clear here. The Supreme Court is not going to really be happy about having to get involved in this case simply to put Cuba on trial," said Washington immigration attorney Jose Pertierra, himself of Cuban descent. "In other words, they are not going to be used politically here; they are smarter than that."

In March, a federal court in Miami ruled that immigration statutes specify that the attorney general has the right to decide who can file a political asylum application on the boy's behalf.

Attorney General Janet Reno has said Elian's father has the sole authority to speak for the boy on immigration matters. Juan Miguel Gonzalez, a tourism worker, wants to take Elian back to Cuba. He came to the United States in April to take custody of his son and return to Cuba.

The Miami relatives appealed the federal court decision to the 11th Circuit, which has jurisdiction over Florida. The three-judge panel issued a temporary injunction in April ordering the boy to remain in the United States while the court considers the appeal.

On June 1 the three-judge panel denied a political asylum hearing for Elian. The court ruled that the INS did not "abuse its discretion or act arbitrarily" in rejecting the asylum application filed by the Miami relatives on Elian's behalf.

The Miami relatives, who cared for Elian for five months after he was rescued from the Atlantic Ocean off the coast of Florida on November 25, have said the boy must remain in the United States because he cannot live in freedom if he is returned to Cuba.

They have also said it was Elian's mother's wish that her son remain in the U.S.; she was among 11 people who drowned in the capsizing of the boat in which she and Elian had fled Cuba. A pair of Florida fishermen found Elian clinging to an inner tube. The U.S. Coast Guard brought the boy to Miami.

Juan Gonzalez has said that he never authorized the boy's flight, calling his ex-wife's dash to the United States a "kidnapping." He has been steadfast in his desire to be reunited with his son and to take him back to Cuba, a decision lauded by Cuban leader Fidel Castro and the Cuban people. U.S. officials have also said Juan Miguel is a loving, devoted father.

On April 22, after repeated rounds of negotiations between the government and the Miami relatives failed over the boy's return to his father, Reno authorized government agents to forcibly remove Elian from the relatives' home.

Juan Gonzalez, Elian, and Elian's stepmother and stepbrother are now living temporarily in Washington.

Justice asks court to dismiss Lazaro's suit to keep Elian in U.S.
June 7, 2000
Elian's father 'very happy' with court decision; Miami family will fight on
June 1, 2000
Appeals court decision in Elian case expected today
June 1, 2000
Decision expected Thursday in Elian case, sources say
May 31, 2000
Family friend says Elian anxious to return to Cuba; family to relocate to Washington 'soon'
May 24, 2000
Elian 'fisherman' files $100 million civil rights suit against Reno, Meissner
May 22, 2000
Miami relatives continue to pursue contact with Elian
May 18, 2000

U.S. Attorney General
U.S. Immigration and Naturalization Service
Public Affairs
Executive Office of the Governor of Florida
Eleventh Circuit Published Opinions
United States Court of Appeals, Eleventh Circuit
LibertyForElian.org - Foundation to Help Save Elian
Granma Internacional Digital, Cuba
  • Kidnap in Miami
Cubaweb
Cuban American National Foundation

Note: Pages will open in a new browser window

External sites are not endorsed by CNN Interactive.