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Elian's U.S. kin file new appeal for asylum hearing
MIAMI (CNN) -- 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.
The attorneys announced at a news conference in Miami that they would seek a rehearing of their case before all 12 judges of the 11th U.S. Circuit Court of Appeals in Atlanta.
A three-judge panel ruled against them June 1, saying the Immigration and Naturalization Service acted within reason when it decided that only Elian's father -- not the Miami relatives -- could apply for asylum on Elian's behalf.
The unanimous ruling blocked Elian from leaving the country immediately and gave his Miami relatives two weeks to appeal -- either to the full appeals court or the U.S. Supreme Court. That deadline expires Thursday.
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.
Kendall Coffey, one of the attorneys for the Miami relatives, said the three-judge panel erred because a recent Supreme Court case -- Christensen vs. Harris County -- limits 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," said Coffey.
He said based on the new Supreme Court ruling, "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.
"These issues need to be presented to the entire court," said Coffey.
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.
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, 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.
U.S. Attorney General
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