Anyone hoping the Elián González telenovela would get renewed through the summer -- with the requisite fainting spells from Marisleysis and skeletons in Lázaro's liquor cabinet -- must have been disappointed Thursday by Atlanta's11th Federal Circuit Court. The court ruled that the INS acted lawfully in denying an asylum hearing for the boy, in what will likely become the denouement in an immigration case that has pitted Miami's Cuban-American community against Fidel Castro, and also mainstream American public opinion, which holds that a kid should be with his parent (unless they are a certifiable spouse or child abuser).

In its decision, the court ruled that the INS’s decision in the González case -- that only a parent has the right to act on behalf of a 6-year-old child in seeking asylum -- was "within the outside border of reasonable choices."

Elián's Miami kin initially responded to the ruling by submitting an emergency appeal to Justice Anthony Kennedy, who would have the power to issue a stay, keeping Elián in the country until the Supreme Court decides whether to take the case. But, perhaps sensing that the most effective strategy in this case is probably to drag it on as long as humanly and legally possible possible (particularly since Elián becomes eligible for green card consideration in November), family attorney Kendall Coffey later retracted the appeal. Instead, Coffey says the family will request a new hearing in the 11th Circuit Court -- a move the family must make within two weeks.

No matter what legal tack the family takes, legal experts believe there's a better chance that Elián's stay in America will be over soon. It's doubtful that the 11th Circuit Court will reverse its decision, or that the Supreme Court will even hear the case.

Salon spoke to Alexander Aleinikoff, a Georgetown University law professor and former general counsel to the INS, about the legal implications of Thursday's ruling and the options Elián's Miami relatives still have available to them.

Did you find anything unusual about Thursday’s ruling?

The first opinion they wrote [at the time the appeal was filed in February] seemed to lean heavily in the family's favor, and when they finally got around to writing the opinion on the merit, it was straight down the line, sort of traditional judicial deference on immigration matters and finding what the Attorney General had done was reasonable. If you just picked up this opinion without knowing any of the history, it would seem like a very ordinary immigration decision.

What do you think caused the court to change its mind?

The Justice Department, in its brief at the Court of Appeals, said, Look, we're not saying that there may not be cases where the kid might not be able to state an asylum claim against the wishes of the parent. I think once the government conceded that point, then the court felt more comfortable with how the INS had conducted the case.

Was it unusual for the court to require that Elian's Miami family appeal the decision within 14 days?

They indicated it would be speeded up. And, actually, the last sentence said, Don't expect any extensions because I think people realize it's time to get this case over. It seemed to be an unusual decision because of the footnotes.

What other legal options do Elián's Miami relatives have to appeal the decision?

They can ask for a rehearing before the court, [or any other judge on the 11th Circuit] or they can go to the Supreme Court, but I think both are unlikely to happen. Both of those options are discretionary, and they don't have an appeal as a "right." If they took it to the Supreme Court, four justices would have to vote to hear the case, which is quite unlikely. They could take it to a justice for an immediate stay, but that, too, is unlikely, since the family has two weeks to file any motions or to consider any motion for a hearing.

I don't see many other legal options for the family. The government will have to move to get rid of the injunction that is keeping Elián in the country, and then I think it will be lifted. Then the family would immediately go to the Supreme Court seeking an immediate stay preventing the INS from returning the boy. But I think the court would deny that and the case would be over.

So Elián could return to Cuba in as little as 14 days?

Probably at the soonest, and probably actually a few days after that because if the Miami family files a motion for a new hearing, it may take the court a few days to decide.

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