Elian's Florida relatives appeal to full federal court

MIAMI - Elian Gonzalez's Miami relatives asked a full federal appeals court Thursday to hear their plea to keep the boy in the United States, arguing that INS decisions are not necessarily law and can be overturned by the courts.

The relatives said a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta misread the law when it ruled against them earlier this month. They asked for a rehearing in front of all 12 judges of the 11th Circuit.

Seven of the 12 judges would have to agree to hear the case for it to come before the court. The U.S. government and lawyers for Elian's father were given until Tuesday to respond to the Miami relatives' petition.

A court order requiring the 6-year-old Cuban boy to stay in the United States could be extended if the full court decides to rehear the case. If the court doesn't, the relatives have seven days to go to the Supreme Court.

In Washington, Attorney General Janet Reno said she hopes ''that the matter could be considered and ruled upon promptly and that we can go forward.''

And in Havana, Cuban Foreign Ministry spokeswoman Aymee Hernandez said the latest appeal was part of the Miami relatives' overall strategy to prevent the child from ever returning to the island.

Two weeks ago, a three-judge panel of the 11th Circuit ruled against the Miami relatives, 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 his behalf.

The panel said no federal law addresses whether a child as young as Elian can seek asylum against his parents' wishes. Citing a 1984 Supreme Court ruling, the panel said courts cannot interfere if a federal agency makes a reasonable interpretation of an ambiguous law.

But the Miami relatives argued in court papers Thursday that the panel gave too much deference to the INS.

The relatives cited a Supreme Court ruling last month that says many agency decisions based on manuals and guidelines lack the force of law and shouldn't receive the same deference as decisions made after a formal rule-making process.

Jose Garcia-Pedrosa, a lawyer for the family, also said in a news conference that internal INS documents show that the U.S. government was simply trying to appease Fidel Castro and the Cuban government by deciding to send Elian back.

Kendall Coffey, another lawyer for the family, said the internal INS records and electronic messages ''raise serious questions about the extreme irregularities and other troubling conduct on the INS in the Elian Gonzalez matter.''

One document appears to be a handwritten note with the statement ''Show Fidel - we gave back the child,'' according to Coffey.

The papers filed Thursday also argue that aliens like Elian have a constitutional right to seek asylum.

Elian's father, Juan Miguel Gonzalez, arrived in the United States in April in hopes of taking Elian home to Cuba and ending the seven-month saga that began Thanksgiving Day. Elian was rescued off the Florida coast after his mother and 10 others drowned when their boat sank en route to the United States.

The INS decided the boy should be returned to his father. But the Miami relatives, who cared for Elian since his rescue, refused to relinquish the boy, so federal agents seized him April 22 and reunited him with his father in the Washington area.

---

On the Net:

Appeals Court: http://www.ca11.uscourts.gov

Immigration and Naturalization Service: http://www.ins.usdoj.gov

Site of Miami relatives: http://www.libertyforelian.org