INS tradition upheld in case stalled by political issues

 BY JAY WEAVER

 Since the beginning of Elián González's journey through the federal courts, most immigration law
 experts had predicted it would end as it did Wednesday -- with the boy's return to Cuba.

 The U.S. Supreme Court, echoing the position of lower federal courts, simply upheld the tradition of
 respecting the broad powers of the Immigration and Naturalization Service to enforce the nation's
 immigration laws. In the end, the highly publicized case broke no new legal ground, experts said.

 So why did the titanic legal battle between Elián's Miami relatives and the INS last for six months after
 the agency decided on Jan. 5 that it would not review his political asylum claim because his Cuban
 father wanted him back home?

 For several key reasons -- including the agency's initial statements that it hoped
 the boy's relatives in Miami and his father in Cuba could work out the turnover of
 the child to Juan Miguel González.

 Perhaps more significant, Attorney General Janet Reno encouraged the legal
 team for the Miami relatives to sue the INS in federal court after she said a state
 family court judge's ruling allowing Elián to stay temporarily with his great-uncle
 Lázaro González held no legal weight.

 'UNNECESSARY' SUIT

 ``The department decided it would welcome litigation in the federal courts when
 that was clearly unnecessary,'' said Temple University law Professor Jan Ting, a
 former INS commissioner for refugees in the Bush administration. ``The INS could
 have acted in January to resolve this case.''

 Ting and other immigration experts observed that the agency had every
 opportunity to return Elián to his father well before he finally came to United
 States in April to get him.

 But the INS sought to reach a resolution with Lázaro González on a peaceful
 turnover of the boy -- while his dozen lawyers persisted in the courts for the child's
 asylum claim -- because of the politically explosive nature of his case.

 INS NAIVE

 Even INS officials, in interviews with The Herald before the first federal court
 hearing in Miami on March 9, admitted that the agency was a bit naive in
 depending on the González family members to reach a resolution on Elian's
 turnover to his father.

 It was our hope and belief that this [dispute] be handled in a cooperative way
 between the families,'' said a Justice Department official, who declined to be
 identified at the time. In hindsight, it was too much for us to hope for.''

 The Justice Department official also said the agency wanted to be fair by giving
 the Miami relatives their day in court.

 Looking back, INS spokeswoman Maria Cardona said Wednesday the agency
 had no way of knowing in early January that the Miami relatives were going to be
 so uncooperative. ``If the relatives had been cooperative with us in January, this
 could have been disposed of right away,'' she said.

 'POLITICAL COVER'

 Several legal experts also accused the INS of giving the relatives so much leeway
 in the courts because Reno and other top officials wanted ``political cover'' from
 federal judges for the agency's decision to cooperate with the Cuban government.

 ``As many have argued, the [Clinton] administration and Department of Justice
 were running for political cover,'' said Bernard Perlmutter, director of the University
 of Miami's Children and Youth Law Clinic. ``They felt that if a decision were made,
 it would best be made by the judicial branch, not the executive branch.''

 Cardona said the INS was not seeking a stamp of approval from the federal
 courts. ``That is absolutely unfounded,'' she said.

 Legal experts said Elián's case, which was given extraordinary fast-track
 treatment by the courts, also gained momentum because of lingering Cold War
 political forces. And they said it would never have gone as far as it did without the
 traditional clout of the Cuban-exile community in national politics.

 EXILE INFLUENCE

 ``The extended deliberations in this case are a tribute to the outsized and political
 influence of the Cuban [exile] leadership,'' University of Miami law Professor David
 Abraham said. ``The INS and attorney general dithered for months, thereby
 emboldening the representatives of the family in Miami and creating the illusion
 that there was a tough question for the courts to answer when there really wasn't.''

 On March 21, U.S. District Judge K. Michael Moore recognized Lázaro
 González's right to sue the INS as Elián's ``next friend,'' but the judge supported
 the agency's decision not to hear the boy's asylum application.

 That opened the door for another challenge to the 11th U.S. Circuit Court of
 Appeals, and another flurry of legal filings.

 ``Although Judge Moore did not side with the Miami relatives, he provided them
 with a well-reasoned opinion that they could use as a vehicle for their appeal,''
 Miami immigration lawyer Neil D. Kolner said. ``If he had dismissed the case on
 jurisdictional grounds, they would not have had such an ample record to seek
 review in the court of appeals.''

 While the appeal went forward, the INS and Justice Department lawyers got
 nowhere in their negotiations on the turnover of Elián, whose great-uncle defied an
 agency order to release him. Ultimately, INS agents had to seize the boy from his
 Miami relatives.

 REFUGEE ACT CITED

 Meanwhile, the relatives' lawyers pressed forward with their appeal that the
 agency overstepped its authority when it found that only his father could speak for
 him. The lawyers also argued that the 1980 Refugee Act passed by Congress
 allowed any alien of any age to apply for asylum, and that the statute itself
 provided the boy with a constitutional right to file an application.

 Most immigration legal experts questioned those assertions, and emphasized
 that the dynamics of the case changed dramatically when Elián's father finally
 arrived in the United States in April during the appeals court battle.

 Still, a three-judge panel of the 11th Circuit Court of Appeals raised hopes for the
 Miami relatives after it issued an injunction barring the boy's removal from the
 country and set oral arguments for May 11. But the panel, despite some
 reservations about the INS' handling of the Elián's asylum application, ruled on
 June 1 that the agency acted reasonably within its authority.

 Last Friday, the entire 11th Circuit shot down another appeal, setting the stage for
 the relatives' last plea to the Supreme Court.

 LEGAL SPOTLIGHT

 Advocates for children's asylum rights and other legal experts said the boy's
 dispute may not break any legal ground, but it did focus a glaring spotlight on the
 way the INS handles minor refugees seeking asylum.

 Michael Ray, president of the American Immigration Lawyers Association's South
 Florida chapter, said the backlash against immigrants during the past decade led
 to harsh reforms by Congress in 1996.

 ``The 1996 law said there is no right to judicial review,'' Ray said. ``Yet they got
 review in this case. Maybe it's because there was so much attention. It
 highlighted all the bad laws.''

 Ray's law partner, Kolner, added: ``It may compel Congress to revisit some of its
 draconian immigration legislation.''