BY JAY WEAVER

 The lawyers, politicians and relatives trying to stop the U.S. government from
 returning Elian Gonzalez to Cuba accuse immigration officials of ignoring the
 boy's ''best interests.''

 But what's getting lost in the rhetoric is this: The best-interests principle isn't even
 a legal issue in the federal lawsuit that will decide whether he gets the chance to
 stay with his Miami relatives or must go back to his father in Cuba.

 THE REAL DISPUTE

 What's legally in dispute is whether the Immigration and Naturalization Service
 has the power to deny the boy a political asylum hearing.

 The lawsuit by Elian's great-uncle Lazaro challenged the government's finding that
 Elian could have a hearing only if his father asked for it.

 U.S. District Judge K. Michael Moore, in a 50-page opinion, dismissed Lazaro's
 challenge. Moore agreed with the government that Attorney General Janet Reno
 had acted within her authority to deny an asylum claim. Moore said he could only
 countermand Reno's decision if there were evidence that she had abused her
 authority. Moore said there was no evidence that she had.

 He also found that Elian was too young to apply for an asylum hearing on his own
 and that his great-uncle could not do it on his behalf.

 INS CHASTISED

 Lazaro has appealed, claiming that any alien may apply for asylum, regardless of
 age. Arguments are scheduled in the 11th U.S. Circuit Court of Appeals in Atlanta
 for the week of May 8.

 Since that appeals court filing, however, many supporters of Lazaro's position,
 including the family, have publicly chastised the INS for not having conducted a
 psychological assessment of the boy.

 ''The focal point of the Elian Gonzalez case is to determine what's in his best
 interests,'' said one of the relatives' attorneys, Roger Bernstein. ''If he is returned
 to Cuba, he will suffer irreversible psychological harm.''

 But that position frames the battle with the government as if it were a family
 custody dispute, a legal argument that may be easier for the public to
 understand, but which, at best, is peripheral to the federal court case.

 Elian's great-uncle has filed a lawsuit in Miami-Dade County family court to gain
 temporary custody of the boy, but that case has been put on hold until the
 immigration dispute is resolved in federal court.

 Reno has said the custody claim in family court carries no legal weight, and in
 the end a federal court, or even the family court itself, will probably agree with her.

 THEORIES ON CASE

 Still, legal experts suspect the current rhetoric is really intended to revive the
 family custody case.

 Miami attorney Richard Milstein said the Miami relatives and their attorneys may
 be trying to persuade Reno to use her broad powers to give them their day in
 family court. Even recent attacks on the boy's father, in which attorneys and
 family members have said the father has been harsh with Elian in their daily
 phone calls, may be aimed at raising issues usually raised in a family custody
 battle.

 ''They are pandering to her sensibilities as compared to her legal abilities,''
 Milstein said. ''If, in fact, she does have discretion, she could say, 'I will permit
 this case to go forward in the family court.' ''

 But even there, the Miami relatives could run into problems. Legal experts say the
 family court would probably find that it doesn't have jurisdiction to consider a
 custody claim for Elian because he was born in Cuba and is still legally a resident
 there.

 That was basically the position of a family court that heard a recent custody claim
 by a Puerto Rican mother against her Jordanian ex-husband over the couple's
 2-year-old son. The Third District Court of Appeals upheld the family court judge's
 finding that the custody matter had to be decided in Jordan and the boy was
 returned to his father last week. The father and the boy returned to Jordan.

 Reno has remained consistent that she won't be swayed by efforts to get the
 case into family court, saying the boy's Miami relatives must make their case in
 federal court.

 And the fate of that case doesn't revolve around ''best interests,'' but depends on
 whether a panel of federal judges thinks immigration law allows any alien of any
 age to apply for asylum.

                     Copyright 2000 Miami Herald