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It didn’t take long on Thursday for the Supreme Court to become ensnared in the long-running saga of Elian Gonzalez. But by the end of the day it looked like the High Court’s involvement will be left in abeyance for as long as two weeks. At about 11:30 a.m., just moments after three judges on the 11th U.S. Circuit Court of Appeals unanimously denied the six-year-old Cuban boy an asylum hearing, an appeal lodged earlier in the morning was activated and filed. It was immediately referred to Justice Anthony Kennedy, who handles emergency matters from the 11th Circuit. The brief by Kendall Coffey of Miami’s Coffey, Diaz & O’Naghten asked the Supreme Court for an injunction to “preclude [Elian's] physical removal from the jurisdiction of the United States” while Coffey prepares his petition for certiorari with the Supreme Court. But by day’s end, another lawyer for Elian’s Miami relatives, Alberto Mora of the D.C. office of Greenberg Traurig, had written to Justice Kennedy essentially withdrawing the appeal for now. Mora said his clients “will weigh carefully the advantages” of seeking en banc review of the case by the full 11th Circuit. The 11th Circuit ruling said that an injunction against Elian’s return to Cuba will expire in two weeks, giving the lawyers time to take another shot at the 11th Circuit. If the 11th Circuit eventually denies another hearing — an outcome expected by most observers — Coffey and the other band of lawyers working for the Miami relatives could be back at the Supreme Court by mid month. Indeed, no matter when the case returns to Washington, most legal experts agreed Thursday that the Supreme Court is unlikely to disturb the 11th Circuit’s ruling that the Immigration and Naturalization Service was entitled to deference in its handling of the case. “The Court won’t issue a stay or an injunction unless you can show that four justices are likely to grant cert, and that does not seem likely,” says Kenneth Geller, partner in the D.C. office of Mayer, Brown & Platt and an expert in Court procedure. But Coffey has a strong argument on the other factor that the Supreme Court considers when weighing emergency appeals — namely, that without an injunction, harm will be done to the case that could make it impossible for the Court to rule later on the merits. Coffey’s application, filed on behalf of Elian and his Miami relatives, used an unusual mix of emotional and legal arguments to make the argument that Elian’s appeal will be rendered moot if Elian is allowed to leave the country. “Stated bluntly,” Coffey wrote, “there is no possibility that Castro’s communist dictatorship, with its forty-year history of contempt for the U.S. and appalling violations of human rights, will return this child for asylum processes if he is transported to Cuba during the pendency of this proceeding.” The application also recounted “the tragic voyage” that brought Elian to the United States with his mother Elizabet, who wanted “to escape from a police state and begin a life of freedom and opportunity in the United States.” Elizabet and 10 others on the boat drowned when the boat capsized off Florida’s coast. Coffey attached transcripts of press interviews with people who spoke to Elian’s father, Juan Miguel Gonzalez, and concluded that he would take Elian back to Cuba immediately after the 11th Circuit ruled — no matter what its decision. Emotion aside, the Supreme Court can grant a stay or extraordinary writ if it will “be in aid of the Court’s appellate jurisdiction” — in this case, guaranteeing that Elian will remain in the country while the Court has an opportunity to process the appeal. “They have a pretty compelling argument on harm,” says Geller. But Geller and others stressed that potential harm to the case was not enough by itself to persuade the Court or a single justice to issue a stay or injunction. “A grant of stay is inextricably bound up with the merits of a case,” said Bruce Boyer of the Children and Family Justice Center of Northwestern University School of Law. Boyer, who has filed briefs in the case on the side of the father, said that tales of oppression in Cuba were unlikely to sway the Supreme Court. “They may have sympathies in a certain direction, but they apply the law,” said Boyer. Boyer agreed with the 11th Circuit that “while children have rights and interests, that does not mean a six-year-old can march into court.” The 11th Circuit’s ruling said that even though federal law states “any alien” can seek asylum, its meaning in the case of a six-year-old was open to interpretation by the INS. “Because the statute is silent on the issue,” the appeals panel said, “Congress has left a gap in the statutory scheme. From that gap springs executive discretion. As a matter of law, it is not for the courts, but for the executive agency charged with enforcing the statute (here, the INS), to choose how to fill such gaps.” But Coffey argues that the INS decision on Elian “warrants no judicial deference at all.”

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