Is six old enough to ask for asylum?

A panel of the 11th US Circuit Court of Appeals hears arguments May 11 on case.

By , Staff writer of The Christian Science Monitor

The much-disputed Elian Gonzalez case has come to mean a great many things to many different people.

A child-custody dispute between a Cuban father and his relatives in Miami, a cold-war reprise pitting Cuban exiles in south Florida against Communist leader Fidel Castro, a clash of legal precedents weighing parents' rights against children's rights.

But on May 11, for three federal appeals court judges in Atlanta it comes down to a single legal question: May a six-year-old Cuban boy apply for US political asylum against his father's wishes?

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Common sense suggests the answer is no.

But United States asylum law, as written by Congress, is wide open.

The wording permits "any alien" to apply for asylum, without reference to age or need for parental consent.

This is the essence of the legal dispute in the case of Elian Gonzalez case, and how that question is answered will go a long way in determining whether Elian returns to Cuba with his father in a matter of weeks or remains in the US for perhaps years of extended litigation.

Many immigration experts caution that there is a big difference between merely being able to apply for asylum - the question now at the center of the Elian case - and actually receiving asylum in the US.

Even if the appeals court orders a full asylum hearing, experts say, it remains a long shot that Elian would be granted residency over the objection of his father. That is so, in large part, because Attorney General Janet Reno has already determined that the decision on where and with whom Elian should live rests exclusively with his father.

Ms. Reno's decision is backed by constitutional precedents that establish fundamental rights of family privacy and parental control of children. Nonetheless, legal analysts are divided over how the case might play out. Some suggest the court could rule in favor of Elian's father and clear the way for Juan Miguel Gonzalez and his now-famous son to return to Cuba relatively soon.

Others say the court may remand Elian's case back to Miami for a full asylum hearing. That, and other appeals it would trigger, could take years to resolve and spawn even more claims to keep Elian in the US.

For example, under current immigration policies involving Cuban refugees, Elian may be eligible to apply for permanent residence (perhaps also independent of his father's wishes) if he remains in the US a year and a day after his Thanksgiving rescue.

Defection offers a third outcome. Some analysts suggest that the longer the Gonzalez family remains here, the more likely they are to consider becoming US residents. But others say there have been no hints that Juan Miguel and his wife are anything but loyal communists who prefer living in Cuba.

The immediate issue before the court will be to determine whether a Miami federal judge erred in March when he ruled that Reno has the authority to decide that Elian may not apply for asylum without his father's prior approval.

In a preliminary ruling last month, the appeals court panel issued a strongly worded decision agreeing with the Miami relatives that US law appears to guarantee the boy a full asylum hearing. But the three judges warned at the end of their written opinion: "No one should feel confident in predicting the eventual result in this case."

Given such a candid assessment, few legal analysts want to venture a guess about where the court may end up. "All bets are off," says Cheryl Little, executive director of the Florida Immigrant Advocacy Center in Miami.

Justice Department lawyers argue in their brief that the Miami relatives misconstrue the issue. "It is not whether Elian 'may apply' but whether he 'has applied,' " they say. They say only Elian's father has the legal authority to approve Elian's asylum application. Since he did not, other applications filed on Elian's behalf - including one apparently signed by Elian himself - are null and void.

But others say this approach expands the attorney general's authority beyond the intent of Congress. If this approach is endorsed, it would make it much harder in the future for refugee children to seek US sanctuary.

"It is a dicey question that this case poses," says Wendy Young of the Women's Commission for Refugee Women and Children. "What we have is a balancing act between the principle of family unity and the right [of children] to seek asylum.... The trick here is to make sure you have a system where in each and every case you truly have a parent who is reflecting the child's best interests."

She says that if the Miami judge's decision is upheld, an African girl fleeing ritual genital cutting might be unable to seek sanctuary in the US over her parents' objection.

Mark Krikorian, of the Center for Immigration Studies in Washington, sees a different threat posed by Elian's case. "If six-year-olds can start claiming political asylum, smugglers will use that fact to their advantage," he says."We would likely see children - probably with the cooperation of their parents - being handed over to alien smugglers and then making asylum claims once they arrive in the United States."

Elian chronology

Here are some key events in the custody fight for Elian Gonzalez.

1999

Nov. 25

Elian is found clinging to an inner tube in the Florida Straits.

Nov. 26

The Immigration and Naturalization Service releases Elian to his great-uncle Lazaro Gonzalez in Miami until the agency can determine immigration status.

Nov. 27

Juan Miguel Gonzalez, Elian's father, demands his son's return to Cuba.

Dec. 10

Lazaro Gonzalez applies for asylum for Elian.

2000

Jan. 5

INS commissioner decides Elian "belongs with his father" and must be returned to Cuba by Jan. 14.

Jan. 7

Lazaro Gonzalez files petition for temporary custody in state court.

Jan. 12

Attorney General Janet Reno upholds father's right to custody of Elian.

April 6

Elian's father arrives in Washington.

April 13

After a meeting with Reno, relatives defy her order to turn over Elian. They obtain an order from a federal appeals court that keeps Elian in the US while the fight goes on.

April 22

Federal agents seize Elian from his home in Miami to bring him to his father in Washington.

May 11

US 11th Circuit Court of Appeals hears arguments on whether Elian may apply for asylum against his father's wishes.

Compiled from AP wire reports

(c) Copyright 2000. The Christian Science Publishing Society

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