By Bill Miller
Washington Post Staff Writer
Thursday , April 20, 2000 ; A15

Despite yesterday's court ruling keeping him in the United States for the immediate future, Elian Gonzalez and his Miami
relatives face formidable legal obstacles in their quest to gain political asylum for the boy, according to legal specialists.

First, they must persuade the 11th U.S. Circuit Court of Appeals in Atlanta that the 6-year-old is entitled to an asylum hearing,
despite the wishes of his father, Juan Miguel Gonzalez, who wants to return the child to Cuba. And even if the court rules that
the Immigration and Naturalization Service must consider Elian's asylum application, the request ultimately could be denied for a
host of reasons, the specialists said.

"I have thought from the beginning that the Cuban American community has a lot of political and financial weight they can throw
around, but they have no legal claim," said David D. Cole, a law professor from Georgetown University who frequently handles
immigration matters. "I think that the legal claim here is frivolous."

Cole said he was surprised that the three-judge appeals panel granted an injunction yesterday barring Elian from being returned
to Cuba until his case is decided. He said the judges appeared more swayed by "political realities" than years of legal
precedents. In the end, however, Cole predicted that the case will turn on the question of who has the legal right to speak for
Elian: the boy, his relatives, or his father.

Justice Department lawyers and INS officials have maintained that Elian is too young to move forward with his own asylum
application. In court papers, they argued that Elian's great-uncle, Lazaro Gonzalez, had no standing to pursue Elian's asylum
claim as "next friend," even though he had been caring for the youngster since the boy was rescued on Thanksgiving Day after
Elian's mother and nine other Cuban migrants drowned after their boat capsized. The Justice Department and the INS
contended that only Elian's father can speak for the boy.

In yesterday's ruling, the appellate judges indicated that Elian might well have the legal right to seek asylum on his own. They
pointed to a federal statute that gives "any alien who is physically present in the United States or who arrives in the United
States" the right to apply for asylum. They said they had doubts about the INS's interpretation of that statute because nothing in
it says anything about age.

The statute's language and intent will become critical issues in briefs and oral arguments. Despite their concerns about how it
squares with the INS actions, the judges struck a cautionary note in their opinion yesterday, writing, "No one should feel
confident in predicting the eventual result in this case. . . . We need to think more and hard about this case for which no sure
and clear answers shine out today."

Cole said the courts typically give broad leeway to agencies such as the INS on questions concerning their interpretation of the
law. Under INS regulations, a living parent would speak for a minor in Elian's circumstances, Cole said. "I just don't see any
result that would say the father's wishes would be overborne here," he said.

After the asylum applications were filed last December, INS officials met with Juan Miguel Gonzalez. They quoted the father as
saying, "As for him to get asylum, I am not allowing him to stay or claim any type of petition; he should be returned immediately
to me." They met with him again and determined he was not speaking under duress, leading to their decision finding the asylum
applications for Elian were invalid.

Even if the asylum request goes forward, the legal requirements are daunting.

Elian or his Miami relatives would be compelled to convince an INS hearing officer that the boy has a "well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social group or political opinion." The INS is
anything but a rubber stamp for such applications. If the hearing officer rejects the application, Elian would be entitled to keep
pressing the case before an immigration judge, the Board of Immigration Appeals and a federal appellate court.

"For a child, it's extremely difficult to show that you would be subjected to torture, imprisonment or detention without trial," said
George R. A. Doumar, a Washington lawyer who handles asylum cases. "I think the INS has taken a very liberal view on
asylum with respect to applications from Cuba, but if you really apply the standards of asylum law, I don't believe there's any
way that Elian can be granted asylum. . . . His classroom is waiting for him in Cuba and he's a national hero in Cuba."

No matter what happens next, Doumar said, the case will remain fascinating to watch because of its political ramifications. "Our
legal system is always influenced a little bit by the political realm," he said. "But usually it's a much more subtle presence than in
this case, where the political pressure seems unrelenting, especially from Miami."

Michael Maggio, another Washington immigration lawyer, said he was stunned by yesterday's appellate court ruling because
the 11th Circuit typically rules in favor of the INS in legal disputes. "Surprised isn't the word. I'm astonished," Maggio said.

Like Doumar, Maggio said Elian will be hard-pressed to win asylum. "How is a 6-year-old boy going to show this? How is he
going to show he was singled out for persecution? What is the political opinion of a 6-year-old boy?" he asked. But if the court
opens the door to an asylum hearing, Maggio said, the INS administrative process moves at a "snail's pace" and Elian could
wind up in the United States for years.

Maggio said he met last week with Juan Miguel Gonzalez in an effort to explain the complicated legal process to him.

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