BY JAY WEAVER

 The legal team for Elian Gonzalez's Miami relatives asserted Monday that Senior
 U.S. District Judge William Hoeveler has the power to force immigration officials
 to give the Cuban boy an asylum hearing -- contrary to the federal government's
 position that the judge has no authority.

 The attorneys, in a counterattack against the government's bid to dismiss their
 lawsuit, stressed that ``the Supreme Court has never withheld due process
 guarantees of the Fifth Amendment from unadmitted aliens,'' such as the
 6-year-old Cuban rafter.

 Citing a landmark case won by Haitian refugees in 1982, the attorneys said that
 ``the right to petition and to be provided an opportunity to substantiate the asylum
 claim is completely protected'' under immigration law.

 Hoeveler, who has already indicated that his jurisdiction over the high-profile
 immigration dispute is ``somewhat limited,'' has scheduled a critical hearing on
 his authority for next Tuesday. It will be a showdown that may determine the fate
 of Elian, who has been caught in a cold-war custody battle between the Cuban
 government and Miami's large Cuban exile community since November.

 The Immigration and Naturalization Service argues that Hoeveler has no
 jurisdiction over the boy's status because the INS -- backed by Attorney General
 Janet Reno -- already decided that Elian's father is the only person who can
 represent the boy. And the father, Juan Miguel Gonzalez, has repeatedly said he
 wants Elian back home.

 In its motion to dismiss the relatives' suit, the INS and Justice Department
 attorneys argue that the federal court ``recognizes the well-established principle
 that agency decisions . . . are generally not subject to judicial review.''

 If the judge rules he has jurisdiction, Hoeveler would hear the Miami relatives' suit
 during the week of March 6 over whether Elian has a right to an asylum hearing.
 But if Hoeveler decides he has no jurisdiction -- and the relatives' probable appeal
 proves futile -- the INS would order the Miami family to turn over the boy so he
 could be reunited with his father in Cuba.

 The relatives' attorneys, Roger Bernstein and Linda Osberg-Braun, declined to
 comment on the specifics of their countermotion against the federal government
 because of Hoeveler's recent insistence that both sides not talk to the media. The
 legal duo would say only that ``Judge Hoeveler has the authority to hear the very
 important issues raised in this lawsuit.''

 But the INS maintains that the agency alone has authority over immigrants, and
 in this case sides with federal and international law favoring the father's right to
 the boy.

 Juan Gonzalez has insisted for weeks that his son be returned to him. Elian was
 rescued at sea after his mother died on a boat trip from Cuba to Florida during
 Thanksgiving week. When the INS found last month that the boy's father was a fit
 parent and the only person who could speak for the minor, the father withdrew
 Elian's asylum and admission applications made on his behalf by his Miami
 great-uncle Lazaro Gonzalez.

 In their dismissal motion, the INS and Justice Department claim that the relatives'
 attorneys tried to force Reno to begin removal proceedings to deport the boy to
 Cuba.

 ``Elian is only 6 years old and obviously should be spared the trauma of removal
 proceedings,'' the dismissal motion states.

 But the relatives' lead attorneys, Bernstein and Osberg-Braun, counter that they
 never wanted immigration officials to begin removal proceedings -- that the INS's
 argument is ludicrous because, if anything, they are trying to prevent the boy's
 return to the communist nation through an asylum plea. More important, the
 attorneys claim, the federal agency has made the accusation to give Reno
 absolute authority over the boy's status.

 The government's ``motion to dismiss should be denied because it attacks a
 claim that is not being made,'' the attorneys wrote in their countermotion.

 Attorneys for the INS are expected to file their final arguments on the jurisdiction
 question Friday.

 A Cuban weekly, meanwhile, made its own arguments in defense of the conduct
 of the boy's paternal grandmother, Mariela Quintana. She said in a Havana
 television interview on Feb. 1 that she bit the boy's tongue and unzipped his pants
 to make him relax during their Jan. 26 reunion in Miami Beach.

 Monday's issue of the weekly Trabajadores (Workers) in Havana said the
 allegation of sexual abuse made by Elian's Miami relatives against one of the
 boy's grandmothers is ``miserable'' and part of ``a demoniac publicity campaign.''

 ``The miserable accusation was based on the very testimony of one of the
 grandmothers, who -- without any prejudice -- told Cuban television that she
 kidded about examining and touching her grandson's private parts, something that
 scandalizes no one in Cuba because to many people that's merely a loving
 gesture toward male children,'' said an editorial, the first to deal directly with the
 much-debated act.

                     Copyright 2000 Miami Herald