Judges question both sides in Elian hearing

ATLANTA - Three federal appeals judges listened skeptically to both sides in the Elian Gonzalez case Thursday, questioning whether a 6-year-old boy can comprehend an asylum application and whether it's in his best interest to be raised in a communist country.

With the chants of sidewalk demonstrators audible in the packed courtroom, the judges' persistent questioning of lawyers for the government, Elian's Miami relatives and his father pushed the hearing to an hour and 20 minutes, double its scheduled length.

The panel of the 11th Circuit U.S. Court of Appeals, one step below the Supreme Court, said it would take weeks to decide whether Elian is mature enough to seek asylum despite the father's wishes to take him back to Cuba.

Circuit Judge Charles Wilson, the panel's only Clinton appointee, peppered lawyers for the Miami relatives about the boy's ability to understand complex questions on an asylum application they filed for him.

''I'm sure Elian Gonzalez is a very bright and intelligent 6-year-old, but he didn't even have the ability to sign his last name on the asylum petition,'' Wilson said.

Before the government's lawyer could begin stating his case, Circuit Judge J.L. Edmondson fired off ''the two problems'' he had with the decision to deny Elian an asylum hearing.

Edmondson, a crew-cut Reagan appointee, noted that the boy's great-uncle, Lazaro Gonzalez, had custody of the child when the asylum application was filed, while his father was still in Cuba. Also, Edmondson seemed particularly worried about Elian's fate in Cuba, twice calling it ''a communist, totalitarian state.''

Edmondson added that it is not uncommon for courts to rule that the best interests of a child override parental rights. He likened Elian to children whose parents reject medical care for religious reasons.

Circuit Judge Joel Dubina, the third member of the panel and another Reagan appointee, asked the attorney for Elian's father, Juan Miguel Gonzalez, why he took five months to come to the United States to claim his son.

Lawyer Gregory Craig responded that the father's efforts to travel from Cuba to the United States were slowed by the bureaucracies of both countries. Within days of Elian's arrival, ''politics intruded in what should have essentially been a family affair,'' he said.

In an unusual speech to lawyers and courtroom observers before the hearing, Edmondson - wearing a suit instead of his judicial robes - warned against jumping to conclusions based on the judges' questions.

''It is entirely possible that a judge may make a statement or ask a question that is the exact opposite of what he is thinking, because he may want to see how the lawyers respond to it,'' he said.

Edmondson also promised the judges will try to rule quickly, within a few weeks.

Elian has been in this country since Thanksgiving Day, when fishermen found him clinging to an inner tube off the coast of Florida. The boy's mother died trying to flee their country in a boat that capsized.

His Miami relatives cared for him until he was seized in a government raid and reunited with his father in Washington last month. The relatives are appealing a federal judge's decision that upheld the government's order that Elian's father be allowed to take the boy back to Cuba.

Kendall Coffey, a lawyer for Elian's Miami relatives, told the judges that an asylum hearing should be almost automatic for anyone who applies.

Edwin Kneedler, the attorney for the government, said there is no evidence Elian would be harmed in Cuba. And he argued that parents' rights should be observed regardless of nationality or political beliefs, asking the judges how they would feel if Iran or Iraq refused to return an American child to his or her parent.

''The sacred bond between parent and child does not depend on where the parent happens to be at any particular time,'' Kneedler said.

Gregory Craig, Elian's father's attorney, insisted that Juan Miguel Gonzalez has not been coerced by Fidel Castro's government. He said the father wants to decide what is best for Elian ''free from any kind of manipulation from Miami or coercion from Havana.''

Lazaro Gonzalez and Elian's cousin Marisleysis Gonzalez sat silently through the hearing and left the courthouse without speaking to reporters or a group of about 100 supporters gathered outside, waving Cuban flags.

After the hearing, the crowd chanted, ''Communist! Communist!'' as Craig made a statement asking the court to allow Elian and his father to return to Cuba. Elian is with his father and friends in Maryland. The judges have barred him from leaving the country until they rule.

Elian's father also has asked the court to let him replace Lazaro Gonzalez as the adult representing the boy in the lawsuit. If the judges agree, Juan Miguel Gonzalez could drop the case.

After the three judges rule, either side would have 45 days to ask all 12 judges of the 11th Circuit to hear the case. If the court refused, the losing side would have 90 days to appeal to the Supreme Court.