Elian Asylum Appeal Dismissed

INS Was Within Law in Not Considering Relative's Petitions, Court Rules

A federal appeals panel ruled yesterday that the Immigration and Naturalization Service acted within the law and its policymaking rights when it refused to consider political asylum petitions filed for 6-year-old Elian Gonzalez by his Miami great-uncle.

In a major government victory that could mark the beginning of the end of the international custody battle that began six months ago, a three-judge panel at the 11th U.S. Circuit in Atlanta unanimously dismissed great-uncle Lazaro Gonzalez's appeal of a lower court ruling earlier this year. It gave him 14 days to ask the panel to rehear it, to ask that all 12 judges of the 11th Circuit consider it, or to appeal to the U.S. Supreme Court.

Under federal rules, the panel's earlier injunction prohibiting Elian from leaving the United States remains in force until one week after that 14-day deadline. Even if the relatives do not appeal, Elian, his father and family, currently living on an estate in Northwest Washington, will not be able to return to Cuba until near the end of this month. If the full appeals court or Supreme Court agreed to hear the case, the departure prohibition could be extended.

Attorney General Janet Reno said she was "hopeful that this matter will soon reach final resolution," and President Clinton said he was pleased that the Justice Department's actions in the case had been upheld.

The father's attorney, Gregory B. Craig, called on the Miami relatives to give up their struggle to keep the young shipwreck victim from returning to Cuba and "to accept this result with grace and dignity." Juan Miguel Gonzalez, Elian's father, said all he wanted was "to go home as soon as possible, with my son and my whole family."

Although attorneys for the Miami relatives said they had not yet decided how to proceed, the relatives themselves made clear they were not ready to concede defeat. "The battle is not over yet," said Lazaro Gonzalez's 21-year-old daughter, Marisleysis. Elian "is still here . . . he's still in this great country," she said, "and I hope that the laws of this country" will prevent him from returning to a place where the relatives have alleged he will be persecuted.

The court began its 33-page ruling saying that "this case, at first sight, seems to be about little more than a child and his father. But, for this Court, the case is mainly about the separation of powers under our constitutional system of government." What they had to decide, the judges said, was how much discretion the executive branch had in implementing applicable immigration law, and to what extent the court could review the use of that discretion.

The court did not endorse the INS's decision not to process Elian's asylum applications--in fact, it noted that "the choices . . . that the INS made in this case are choices about which reasonable people can disagree." The ruling, written by Judge J.L. Edmondson, a Reagan appointee, said the judges themselves might personally have preferred different choices.

But, the court said, the decisions made in this case were a matter of "policy and the application of policy," and were within the prerogatives of the executive branch.

The court did appear to reject one determination made by the lower District Court in Miami. In that ruling, Judge K. Michael Moore said that federal law allowing "any alien" to apply for asylum was "evidently not intended by Congress to include all aliens" because the law listed some exceptions.

The appeals court held that the law was "neither vague nor ambiguous. The statute means exactly what it says: 'any alien . . . may apply for asylum.' " But while the meaning of the word "any" was clear, yesterday's ruling said, the statute did not define the word "apply." "From this gap" in the statute, it said, "springs executive discretion."

The legal question in the case, it said, "is not whether the Plaintiff may apply for asylum. . . . The ultimate inquiry, instead, is whether a six-year-old child has applied . . . when he, or a non-parental relative on his behalf, signs and submits a purported application against the express wishes of the child's parent."

"We cannot say that . . . the INS determination that six-year-old children necessarily lack sufficient capacity to assert, on their own, an asylum claim--is unreasonable," the appeals court found. The INS decision that such an application is valid only when it is filed by a parent "also comes within the range of reasonable choices," it said.

On the question of whether an otherwise adequate parent can be rejected because of where he lives, the court acknowledged that returning a child to a "communist-totalitarian state," as defined by the State Department, "worries us some." But, it said, "in no context is the executive branch entitled to more deference than in the context of foreign affairs."