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Federal Panel Upholds INS Decision on Elian Gonzalez

By Karen DeYoung
THE WASHINGTON POST -- A federal appeals panel Thursday upheld a lower court ruling that the Immigration and Naturalization Service acted within the law and the executive branch’s policymaking rights when it refused early this year 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 the appeal filed by great-uncle Lazaro Gonzalez. 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 the ruling 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 in the event that 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 an appeal, the departure prohibition could be extended.

Attorney General Janet Reno said after the ruling that 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, 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.”

Attorneys for the Miami relatives said they had not yet decided how to proceed. But 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 still prevent him from returning to the communist country 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: a statute enacted by Congress, the permissible scope of executive discretion under that statute, and the limits on judicial review of the exercise of that executive 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, implied that the judges themselves might personally have preferred a different choice.

But, the ruling said, such choices were a matter of “policy and the application of policy.” In the absence of specific provisions applying to the circumstances of this case, setting such policies is the prerogative of the executive branch.

In its determination that a 6-year-old is incapable of deciding on his own to apply for asylum, the court said that in most circumstances a parent must represent a child on immigration matters.