BY JAY WEAVER

 The federal judge in the Elian Gonzalez case on Thursday expressed skepticism
 about the U.S. Justice Department's stand that it doesn't have to give the boy an
 asylum hearing, saying he sees inconsistencies in the government's argument.

 The comments by U.S. District Judge K. Michael Moore offered some hope to
 Elian's Miami's relatives that they might be allowed to make a claim that he
 should stay in the United States.

 Moore said he thinks he has jurisdiction to rule on the relatives demand for an
 asylum hearing -- contrary to the government's position -- and that he's legally
 required to appoint an independent guardian for Elian.

 Moore's pointed questions in the critical court hearing surprised some legal
 experts who have said there is a clear legal standard requiring the 6-year-old to be
 returned to his father in Cuba.

 The judge must now decide whether to order the Immigration and Naturalization
 Service to give the boy an asylum hearing in a lawsuit brought by his Miami
 relatives, or throw out their complaint because the federal agency claims only
 Elian's father can request the interview on the boy's behalf.

 Moore, presiding over a three-hour hearing in a courtroom packed with lawyers,
 Elian's relatives and media, did not indicate when he will rule on the highly
 publicized dispute.

 During the hearing, the judge asked Deputy Solicitor General Edwin Kneedler how
 immigration officials could maintain they reviewed Elian's asylum application when
 it appeared to him that was not the case. The boy's Miami relatives filed his
 request on Dec. 10, but the INS rejected it on Jan. 5 -- without giving Elian an
 asylum interview in the meantime.

 ``If you're going to accept it and deny it, that's OK,'' Moore told Kneedler. ``But it
 has to be given due-process consideration. You can't have it both ways.''

 Kneedler said immigration officials first had to determine whether Elian's Cuban
 father, Juan Miguel Gonzalez, was fit to represent his son after he lost his mother
 on a boat journey from Cuba to Florida in November. When the INS found that
 only the father could speak for the boy because he is so young, Gonzalez
 withdrew his son's asylum request so he could be returned to Cuba.

 No matter how the judge rules in this suit, there will likely be appeals by the
 losing side that could stall Elian's fate for weeks, if not months. The boy is
 staying with his Miami relatives in Little Havana and attending the Lincoln-Marti
 School.

 His great-uncle, Lazaro Gonzalez, filed the suit in January as Elian's ``next friend''
 to force the INS to grant the boy his asylum hearing. The government's legal team
 argued the judge has no jurisdiction to order the agency to hear the boy's claim,
 and that his great-uncle cannot displace the father in the dispute.

 But during the hearing, Moore said: ``I think it's conceded that the federal court
 has jurisdiction of an asylum claim.'' He did not elaborate.

 The judge also said federal law compelled him to consider appointing an
 independent guardian for Elian -- especially if he orders the INS to hear his Miami
 relatives' claim that Elian faces a well-founded fear of persecution in Cuba.

 BROAD POWERS

 Kneedler, the only government lawyer to speak at the hearing, argued that
 Attorney General Janet Reno had such broad powers to enforce immigration law
 that the judge did not have jurisdiction to question her decision.

 Attorney Linda Osberg-Braun, representing the boy's relatives, countered that
 immigration law offers due-process asylum protections for refugees such as Elian.
 He is legally in the custody of the INS, even though the agency temporarily
 placed him with Lazaro Gonzalez's family.

 ``Any alien who is physically present in the United States, regardless of his
 immigration status, has a right to an asylum hearing,'' said Osberg-Braun, who is
 a former INS lawyer. ``The issue of whether the boy can speak for himself is
 subject to judicial review.''

 The deputy solicitor general said that the INS interviewed Elian's father twice in
 Cuba and determined that he had a caring relationship with his son and that his
 ``true wishes'' were to see the boy returned to Cuba. Kneedler also stressed that
 state, federal and international law recognizes the custody rights of a surviving
 parent -- if that parent is found to be fit.

 ``It's not just a matter of common law. It's constitutionally based law,'' he said.

 FATHER'S ABSENCE

 Another attorney for Elian's relatives, Kendall Coffey, seized on the conspicuous
 absence of the boy's father at the hearing -- even though his presence was not
 required in this dispute. Juan Miguel Gonzalez, who recently hired his own
 attorney, refused to come to Miami.

 ``In every case I've seen, the parent who speaks for the child shows up in court,''
 said Coffey, a former U.S. attorney in Miami.

 Coffey also argued that if the judge does nor order an asylum hearing for Elian,
 there is ``very serious evidence'' that ``he could face irretrievable harm'' back in
 Cuba. He did not provide details.

 Some legal experts said they thought the judge would order the INS to give Elian
 an asylum interview.

 Ira Kurzban, considered the dean of immigration lawyers in Miami, said: ``Unless
 the judge determines the Miami family has no standing to bring the suit or unless
 he determines the father's constitutional rights are paramount, he's probably going
 to let them file an asylum claim with INS.''

 LENGTHY PROCESS

 Chicago attorney Jeffery Leving, representing another great-uncle, Manuel
 Gonzalez, who wants Elian returned to his father, said the judge's comments and
 questions suggested he was going to order the asylum hearing.

 ``I think the judge is leaning [that way],'' said Leving, who added that he did not
 think Elian's father can expect to see his son soon. ``Not the way things are
 going.''

 If the judge lets the boy have an asylum hearing, the INS must review his claim. If
 the agency grants it, Elian gets to stay in Miami. If INS denies it, the agency
 must refer the claim to the immigration court in Miami. If that court denies his
 claim, the boy's relatives could appeal that decision to the Board of Immigration
 Appeals.

 And if that proves to be a dead end, the relatives can take Elian's claim to a a
 federal appellate court in Atlanta.

 Coffey argued that if Moore orders the INS to grant the boy's asylum hearing, it
 could be conducted with 60 days.

 But Kneedler, the federal government's main lawyer, said: ``This could lead to an
 extended absence between parent and child that could lead to irreparable damage
 to that relationship.''
 

                     Copyright 2000 Miami Herald