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Court gives government and father deadline to respond in Elian Gonzalez case
MIAMI (CNN) -- The U.S. government and the father of Elian Gonzalez have been given until Tuesday at 11 a.m. EDT to respond to an appeal by the boy's Miami relatives, a family spokesman said Thursday.
Armando Guiterrez said the government and Juan Miguel Gonzalez had been informed of the deadline by the 11th U.S. Circuit Court of Appeals in Atlanta.
"At least this means they're already looking at it and it is moving forward," said Guiterrez, referring to the appeal filed Thursday by the Miami relatives.
Lawyers for Elian Gonzalez's Miami relatives said Thursday they have filed an appeal in federal court in their bid to keep the 6-year-old Cuban boy in the United States.
They announced in Miami that they would ask the full panel of judges of the 11th U.S. Circuit Court of Appeals in Atlanta to rehear the case.
A three-judge panel of the 11th Circuit ruled against the boy's Miami relatives June 1, saying the Immigration and Naturalization Service acted within reason when it decided that only Elian's father could apply for asylum for Elian.
The unanimous ruling gave the Miami relatives two weeks to appeal. That deadline expires Thursday.
If the appeal is accepted, the court will decide whether the original three judges will rehear the case or if the full membership of the court will do so. If the entire bench hears it, the proceeding is called an "en banc" hearing.
Kendall Coffey, one of the Miami relatives' attorneys, said the three-judge panel erred because a recent Supreme Court case -- Christensen v. Harris County -- limits the discretion of federal agencies.
"The 11th Circuit made it clear they would not have decided this case in the same way but they had to stand back to the INS' discretion," Coffey said.
Based on the new Supreme Court ruling, he said, "There are now grave questions about giving deference to that kind of discretion."
The second major issue, said Coffey, is that other appeals courts around the country have issued rulings that aliens do have "due process rights" under U.S. law. Extending "due process" to Elian would have allowed the child to have an asylum hearing, he contended.
"If this child had come ashore in Mississippi, he would have had his asylum hearing by now, " said Coffey, because the 5th U.S. Circuit Court of Appeals in New Orleans has ruled aliens have that right.
The boy's great-uncle, Lazaro Gonzalez, and the other relatives could have gone directly to the 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.
Elian must stay in the U.S. until the 11th Circuit appeals are exhausted. If the case reaches the Supreme Court, it would have to issue an injunction to keep Elian in the U.S.
Documents from Judicial Watch
In a June 13 letter to Attorney General Janet Reno and INS Commissioner Doris Meissner, Coffey wrote that he has received apparently internal INS documents from a conservative legal group named Judicial Watch, Inc. that show "extreme irregularities and other troubling conduct of the INS in the Elian Gonzalez matter."
He wrote that the documents show "there will be a daily conference call to coordinate press guidance and communications with the Cubans." He noted that Congress has condemned the communist island and demanded an explanation for the Clinton administration's apparent contact with the Cubans.
He charged that other INS documents make reference to efforts to "Show Fidel," meaning Cuban leader Fidel Castro, that "we gave child back."
He also wrote that the INS staff concluded after a visit to the home of the boy's Miami relatives: "There is no reservation on part of staff as to the well-being of the child with his family here in Miami. Best of fortune to cute Elian and family."
Predictions from legal experts
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, Kirkland 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 also predict 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 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.
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. In April, the three-judge panel issued a temporary injunction 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 Florida coast 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 when the boat on which she and Elian fled Cuba capsized. 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 return with his son to Cuba, a decision lauded by Castro and the Cuban people. U.S. officials have 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 Miami 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.
U.S. Attorney General
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