Battle over Elian to resume in Atlanta court

	GALLERY
Images of Elian, his family and friends on Wednesday

May 10, 2000
Web posted at: 7:49 p.m. EDT (2349 GMT)

In this story: Rallies in New Jersey, Washington Father's arrival in U.S. changes court fight Ruling may hinge on definition of 'any alien' RELATED STORIES, SITES

ATLANTA -- The Elian Gonzalez case moves back into the media spotlight on Thursday when the fight over the Cuban boy's future returns to court in Atlanta.

The 11th U.S. Circuit Court of Appeals will hear brief arguments on a claim by Elian's Miami relatives that the 6-year-old should be allowed to pursue political asylum in the United States because he would be persecuted if he returns to communist-ruled Cuba.

RESOURCES Who's who in the Elian Gonzalez case     MESSAGE BOARD US/Cuba relations     ALSO Court of appeals to consider who speaks for Elian     Boy in the Middle: Legal background on the Elian Gonzalez case · CASE FILE ·TIMELINE ·DOCUMENTS

Elian's father, Juan Miguel Gonzalez, was reunited with his son after federal agents seized him from the Miami kinfolk in a predawn raid on April 22. Juan Gonzalez has asked the court to drop the asylum petition so he can take Elian back to their hometown of Cardenas, Cuba.

"It appears that the court is going in the direction of allowing the Miami relatives to pursue the asylum claim in spite of the wishes of his father," said Dale Schwartz, an Atlanta immigration lawyer and a former president of the American Immigration Lawyers Association.

Donato Dalrymple, one of the two men who rescued Elian, filed a petition with the 11th Circuit Court of Appeals requesting that Kendall Coffey be replaced as an attorney representing Elian's interests.

"I'm just doing all that I can do to be able to rescue Elian again," Dalrymple said.

Dalrymple said he took the action because Coffey said he would not argue the case about the government raid on the Miami home of Elian's great-uncle, Lazaro Gonzalez.

Rallies in New Jersey, Washington

Elian has been at the center of a custody battle since he was rescued off the Florida coast on November 25 after floating on an inner tube for 50 hours. His mother and 10 others died when their small boat sank as they tried to make it from Cuba to the United States. The boy and two adults survived.

A group of women gathered outside the Justice Department in Washington to honor Elian's mother and to mark International Mothers Day.

"We must be her voice," said one woman speaking at the rally.

Elian was put in the temporary custody of great-uncle Lazaro Gonzalez in Miami. He quickly became a poster boy on both sides of the Florida Straits -- to exiles in Florida, he is a symbolic victim of Cuban President Fidel Castro's revolution; to Castro, he is a pawn of the Miami exile "Mafia" and U.S. hard-line policy toward the island.

Lazaro Gonzalez and Fidel Castro's estranged daughter, Alina Fernandez, spoke at a rally on Wednesday in Liberty State Park in Jersey City, New Jersey, near the Statue of Liberty. They spoke to dozens of Cuban exiles opposed to Elian's return to Cuba.

A scene from Wednesday's protest outside the Justice Department in Washington

Father's arrival in U.S. changes court fight

When Juan Gonzalez, a Cuban tourism worker, flew to Washington, D.C., on April 6 to reclaim his son, he changed the nature of the legal battle. Through his lawyer, he accused his uncle Lazaro of trying to destroy his family and asked the court to dismiss Lazaro Gonzalez's petition requesting political asylum for Elian.

"The dynamics of the case make the position of the father vis-a-vis Elian unavoidable. It has to be addressed by the court," University of Miami law professor Bernard Perlmutter said. "Just the fact that Elian has been restored to the care of his father would make it very difficult for the court to render a decision that would rend asunder this family a second time."

Elian has been staying with his father, stepmother Nercy and baby half-brother Hianny at the Wye River Plantation, a secluded conference center on Maryland's Eastern shore. He is under court order not to leave the country while his appeal is pending.

Neither the boy nor his father are expected to attend the Atlanta hearing Thursday. The Miami relatives, including Lazaro Gonzalez and his daughter Marisleysis, who helped care for Elian, have said they plan to travel to Atlanta.

Meanwhile, a court-ordered psychiatric evaluation of Elian to be used in consideration of his appeal was filed with the court on Wednesday. But the panel sealed the contents so they will not be made public.

The report is based on the observations of psychiatrist Paulina Kernberg and clinical social worker Susan Ley.

Ruling may hinge on definition of 'any alien'

Legal experts say the 11th Circuit's decision will hinge on its interpretation of a statute that says "any alien" may apply for political asylum. The question is whether Congress, when it established the law, envisioned that a 6-year-old would seek refuge.

Even if Elian gets a hearing, it would be held before an asylum officer for the U.S. Immigration and Naturalization Service. The INS previously ruled the boy belongs with his father.

And even if Elian is awarded political asylum, there would be little to prevent Juan Gonzalez from returning to Cuba with his son.

"There's nothing in the law that says that if you're offered political asylum, you have to accept," Perlmutter said. "There would be nothing, except perhaps an order from the INS, that would prevent the father from taking him by his hand and returning him to Cardenas, Cuba."

The Associated Press and Reuters contributed to this report.

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