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Elian's Miami Relatives Awaiting Court Decision

Aired June 23, 2000 - 2:02 p.m. ET


NATALIE ALLEN, CNN ANCHOR: Elian Gonzalez is back in the news today. At this hour, we're awaiting a ruling by a federal court in Atlanta to an appeal that was filed by the boy's Miami relatives.

CNN's Gary Tuchman is at the 11th Circuit Court of Appeals in Atlanta. He joins us -- Gary.

GARY TUCHMAN, CNN CORRESPONDENT: Well, Natalie, in about one hour we expect to know more about the future of 6-year-old Elian Gonzalez. This appellate court will issue a key decision about whether it will rehear a significant portion of this case.

That was June 1st that a three-judge panel here at this appellate court decided that Elian Gonzalez is not required to have an asylum hearing. But the court did tell the Miami relatives that they would keep Elian in the country for at least two weeks while they filed an appeal for a rehearing. Well, that's the decision that will come down today: Will this court rehear the case?

If the court says no -- and that decision is expected to come down at 3 o'clock Eastern Time, then the way may be clear for Elian to go back to Cuba very soon. However, if the court says yes, it's likely that all 12 judges at this court will hear the case, and it could take weeks or months.

It's been almost seven months since Elian Gonzalez has been in the United States. His mother drowned. He was found floating in the Atlantic Ocean on Thanksgiving Day 1999. He was brought to his great uncle's house in Little Havana, Lazaro Gonzalez. A raid brought him to his father. He's now been with his father in the Washington area for more than two months.

If the court today says no, the law says that Elian could leave the United States in seven days. So it's possible he could leave as early as Friday, June 30th.

However, the attorneys for the Miami relatives say they would file an appeal with the U.S. Supreme Court and would ask for Elian to stay in the United States pending that appeal.

There are many scenarios, but if this court says no today, it's a very bad omen for the Miami relatives of 6-year-old Elian Gonzalez.

Natalie, back to you. ALLEN: All right, Gary. You'll be there to report what is the decision today.

And now for more, here's Lou.

LOU WATERS, CNN ANCHOR: Let's ponder the outcome with CNN legal analyst Greta Van Susteren.

Greta, if the 12 judges say no, what does that mean?

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Well, that means that it's possible that they will also vacate the injunction and then the government will do what -- that have a departure control order holding Elian in this country. That will be lifted, and the young boy can go back to Cuba with his father.

Typically, what has to happen is the United States Court of Appeals for the 11th Circuit would have to issue a mandate. It usually takes about a week for this mandate to go back down to the trial courts so that something can then happen to allow the child to go back to Cuba. But the father has asked that be expedited in the event that they win today in the United States Court of Appeals.

Now, the other option is that even if the Miami family loses today, they may seek to go to the United States Supreme Court. What they have maintained in their briefs is that different circuit courts have ruled differently in very similar cases. And when you have a conflict of circuits, the federal court system is made of about 11 or 12 federal circuits. But if there's a conflict between circuits and how they interpret the law, the United States Supreme Court has to step in and resolve that.

So they may seek to go to the United States Supreme Court.

WATERS: What needs to be resolved?

VAN SUSTEREN: Well, there are two issues raised by the family in Miami. First of all, what they say is that the three-judge panel gave much too much deference to the decision by the INS to keep Elian -- or to allow the father to speak on behalf of his child. And what they say is that a United States Supreme Court came down on May 1st of this year, which makes the United States Court of Appeals decision on June 1st just flat out wrong.

So they're saying to the United States Court of Appeals for the 11th Circuit, look, you made your decision on June 1 but you neglected to apply this May 1st Supreme Court decision, and had you done that you would have reached another conclusion. So please consider this now in light of that May 1st Supreme Court decision.

And of course, the other thing that they're saying is that there are the conflicts in the circuits, so you must decide this by your entire court and not just by three judges.

WATERS: Might this appeal to the Supreme Court involve the entire court or just Justice Kennedy, who presides over the 11th Circuit.

VAN SUSTEREN: It would be what you call a petition to the United States Supreme Court. It's not an automatic appeal to the United States Supreme Court. But if they lose today, they actually petition the court and they say, look, court, these are important issues that you need to step in and resolve. And the court would then make a decision whether or not to accept it and to resolve it.

You have an automatic right of appeal to go from a trial court to the appellate court. But when you go to the United States Supreme Court in rare instances -- there are exceptions -- you actually have to seek petition to have your dispute heard by the entire court.

WATERS: All right. Greta Van Susteren, we'll talk more. That decision is expected in less than an hour from the 11th Circuit Court here in Atlanta.



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