September 19, 1993

The United States of Asylum

Dong Yishen looks a lot better in person than in his lawyer’s photo of him. The picture, taken the night of his arrival in Queens on the Golden Venture, shows him wearing a thin, ragged blazer and dark turtleneck, his hair still plastered down from the Atlantic Ocean. Now, in the crisp blue uniform of the Salisbury Interim Correctional Facility in Pennsylvania, he looks composed, if a bit nervous.

Fellow prisoners in the visitors’ room of the medium-security jail stare as he bows to me and my interpreter. They are in for crimes ranging from burglary to drug offenses. But Dong is a different kind of prisoner—accused not of any crime but of “an administrative violation” of United States immigration rules. Technically, he and the other 60 Chinese held at the jail are free to leave—but only for China. And Dong, who is 34, does not want to go back to China.

“In the countryside, if you are a farmer and your first child is a girl the Government won’t argue too much if you have a second child after five years. But my second one was also a girl. In China we really want to have a son.”

Dong and his wife kept trying. To hide from the Government, they had their third child in a distant village. It was the long-awaited son. For the first few years, he was raised in the house of childless friends. “But then I admitted that this was my own son—he is now 6 years old.” As a result, says Dong, the authorities, whom he barely eluded, destroyed his furniture and knocked down his house.

Like four other Golden Venture survivors I interviewed, Dong is sharp on the details of his persecution but vague about the smugglers. The trip was arranged for him “by friends.” He claims he doesn’t know exactly how much they paid up front or how much he has to pay off.

One reason for his reticence may be the presence of Chinese “enforcers” in the jail—the Immigration and Naturalization Service suspects that several were on board, and presumes they are mixed in among those imprisoned. He will say that during a horrific storm near the Cape of Good Hope the boat, battered by 50-foot waves for seven or eight hours, nearly sank.

Though his life has been completely sedentary since he left China’s Fujian Province six months ago, he has strong arms, farmer’s arms. As we stand up to say goodbye, we shake hands, and Dong will not release his grip. He is shaking my hand with both of his and speaking at me instead of to the interpreter.

“The life I had was not good,” he says. “I was so poor. . . . If I’m not allowed to stay, I will have to commit suicide.”

It is hard to come face to face with someone in such straits and not feel sympathy. And yet who is to know if he is telling the truth? There is only his word. Dong came here with high hopes. President George Bush, in fact, specifically encouraged this kind of flight in the wake of the 1989 Tiananmen Square killings and pressure from the antiabortion lobby. Dong had reason to think he might qualify for the formal status called political asylum—refuge from political persecution.

But China has nearly 1.2 billion people, more than a fifth of the planet’s total; 500 million are of childbearing age. “Is the United States prepared to let them all in?” asks Ling-Chi Wang, associate professor of Asian-American studies at the University of California at Berkeley. More broadly, in terms of the asylum debate, does Dong’s flight from birth control really qualify as political persecution? And if so, is political asylum an idea that we as a country can still stand behind?

SKYROCKETING ASYLUM applications and the abuse of the system by nefarious figures have brought asylum into the news. Sheik Omar Abdel-Rahman, whose followers are accused of bombing the World Trade Center, has applied for asylum in order to prevent his removal to Egypt. Mir Aimal Kansi, the Pakistani suspected of killing two C.I.A. employees outside their headquarters with an AK-47 early this year, had purchased his weapon using documents obtained with his official work authorization, supplied by the Government to most asylum applicants.

Asylum is much in the news because the average citizen lumps it together with all forms of immigration, and in these recession-plagued times, the pendulum is making a swing toward intolerance of immigrants. It is one more component of the fear that we’ve “lost control of our borders.”

In contrast to many European countries, however, asylum here adds only a sliver to overall numbers of immigrants. A hundred thousand people applied for asylum in the last fiscal year (the approval rate is about 30 percent), compared with almost a million who immigrated legally in other Government programs (chart, page 74).

Notwithstanding recent bad press, asylum, at least in its conception, is a beautiful idea. The notion of granting protection to those fleeing persecution gained strength after World War II from the widespread agreement that what had happened to the Jews would never be allowed to happen again to anybody, anywhere. Countries that signed the United Nations 1951 Convention Relating to Refugees, and its 1967 Protocol, agreed to protect those who met the documents’ definition of a refugee: a person with “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” Asylum is offered to refugees who make it to a “safe country” on their own. In the United States, it is administered by the Immigration and Naturalization Service. (The State Department has a separate program that brings over groups of refugees from selected countries.)

World War II also created a world divided into East and West, and asylum, conceived of as ideology-free, soon became an instrument of cold-war politics. Until the collapse of the Soviet Union, asylum was a weapon used to “embarrass our enemies,” says Arthur C. Helton, director of the Refugee Project for the Lawyers Committee for Human Rights. Asylees, as they’re called—whether ballet dancers, physicists or fighter pilots—were testimony to the superiority of our system.

The “clear anti-Communist ideology . . . favored only those who appeared to share it,” wrote Gil Loescher and John A. Scanlan in their book “Calculated Kindness: Refugees and America’s Half-Open Door, 1945-Present.” “Cubans were the principal beneficiary of this double standard. The Haitians were the principal losers.” Eastern Europeans fleeing Communist regimes were practically all approved for asylum; victims of violence in Central American countries that had the support of the United States Government were routinely denied.

Now that the cold war is no more, replaced by what might be called the new world disorder, what is going to be acceptable as an evil to flee from?

Fidel Castro may no longer be on the list, as a Cuban airline captain has discovered, after he diverted his plane to Miami last December and, along with all but 5 of the 53 people on board, requested political asylum. Instead of granting his request, Federal law-enforcement officials, with Cuba’s help, are pursuing criminal charges against the airline captain. This change may reflect not only the thaw in relations with Cuba but also a growing suspicion that asylum applicants, rather than fleeing persecution, are simply seeking entry to the developed world.

Accustomed to measuring dissent from Communism, officials who preside over asylum cases are suddenly faced with a bewildering variety of persecution claims. A homosexual escaping from death squads in Brazil . . . a woman from Africa who does not want to undergo the cruel, potentially crippling procedure called clitoridectomy . . . a Peruvian who has aroused the wrath of the Shining Path . . . a Guatemalan union worker threatened with death for organizing against the Government . . . a Christian Sudanese fleeing from Islamic fundamentalists. Many of the world’s people, rather than suffer in silence, would prefer to live somewhere else. Like here.

Since millions fear for their lives in many lands, political asylum now raises a much larger immigration question: How many asylees can America take in? And which ones?

PEOPLE WHO ARRIVE AT KENNEDY International Airport without proper papers and apply for asylum are often released, pending their hearings, because of a lack of space at the Wackenhut detention facility, a bleak converted warehouse run by a private company for the immigration service, in Queens, near the airport. Occasionally someone will arrive when one of the 125 beds is empty. Such was the luck of Luis.

Wackenhut, a building intended for goods, not people, has no outdoor exercise yard and practically no windows. Luis, a welder from Peru, has lived 10 months under artificial light, leaving the facility only once, for a hearing in Manhattan. His appeal of an immigration judge’s ruling against him was recently turned down.

“I’ve changed a lot here,” says Luis. (His last name is withheld to protect him from persecution should he be returned to Peru.) “I had a big fear of speaking openly, but now less. I want the authorities here to pay attention. The injustice gives me courage. I worry that our cries for justice are being silenced.”

Once he begins to talk there is no holding him back. I have seen the slums of Lima and know the place where Luis lives. To see a man like him—bursting with life and moral outrage—come out of that environment is astonishing enough. But to see him in this country and yet not in this country, penned within a block of metal and concrete, fills me with despair.

Luis’s story begins in one of the sprawling poor communities known as pueblos jovenes (young towns) on the outskirts of Lima. There he became a leader in a civic group that tried to secure services like electricity and water for the city’s half-million people. The group’s efforts to help the poor have been recognized by the Pope and the United Nations, but its continuing success has attracted the unwanted attention of Sendero Luminoso, or Shining Path, Peru’s violent Maoist guerrilla movement.

“They began to infiltrate our assemblies. We noticed that the ideas being suggested were the ideas of terrorists—that we start an armed struggle. They talked of Communism. But we had never spoken of armed struggle. Our only weapons are work and truth and the faith we have. Seeing that we wouldn’t help, the Shining Path started putting on more pressure. Their fliers said that anyone who didn’t support the armed struggle was a traitor and would die. But we held firm.”

The Shining Path’s campaign of intimidation escalated in the late 1980’s with the execution of various directors of the group. “One guy they took to a central park and machine-gunned in front of his family. Another time they threw dynamite into a house and many innocents died. They blow up banks, schools and hospitals. There were 2,000 of us leaders when it began. Many were killed or had to flee. Some of us kept fighting.”

Luis says he has “always had the courage to face the bad.” But the Shining Path learned that he opposed them from his work counseling teen-agers involved with drugs. Soon messages began to be left at his house, telling him to resign his leadership position. His father, in another part of Peru, was also threatened. In a third note delivered to his home, they said they would kill him. Luis, his wife and three children moved to a safe house.

Fearful for his life and for his family, Luis secured a plane ticket, passport and false visa from his associates. But in February his application for asylum in the United States was denied by a judge who, noting that Luis had claimed persecution on account of “political opinion,” cited a State Department memo on Peru that stated Sendero Luminoso’s “choice of victims does not appear to be the result of their personal political views. Rather, the Sendero uses force to intimidate and recruit, to coerce financial support, and to retaliate against those inside and outside the Government who are perceived as opposing its goals or undermining its support.”

In other words, the Shining Path singled him out for his position, not for his views. But the State Department memo also contradicts itself. If Sendero retaliates against those “who are perceived as opposing its goals,” isn’t it singling them out for their views? Luis’s lawyer appealed, and recently the Board of Immigration Appeals turned him down. Luis’s lawyer is appealing again.

Meanwhile, Luis waits in Wackenhut. “I have the hope to return to Peru, to continue my work someday, but I can’t right now. I came here to escape death.”

I EXIT WACKENHUT, AND re-enter my privileged position as a citizen of one of the world’s prosperous countries, one troubled much less with political ideology, these days, than with the question, mainly, of how much do we share? Are these people our brothers and sisters? And if not, what do we owe a stranger?

“The growth of a global economy has emphasized rather than reduced inequality between nations,” says a new report by the United Nations Population Fund, and the number of migrants worldwide is at least 100 million. This migration, away from trouble and poverty and toward peacefulness and opportunity, “could become the human crisis of our age,” says the report.

This is not to imply that a hundred million people are packing their bags for America. Gregg A. Beyer, director of asylum for the Immigration and Naturalization Service, uses the example of Latin America to illustrate that most people would probably rather stay home. “From settled countries like Chile and Bolivia, we get very few applications,” he notes (60 and 93, respectively, in the past 10 months). “It is the countries in turmoil—like Peru and Colombia—that produce the greatest number” (2,529 and 998, respectively). Beyer’s program handles 90 percent of the country’s asylum cases—those who apply on their own; the rest—those who are apprehended—fall within the purview of the immigration court.

Still, the numbers are rising rapidly, and if the asylum apparatus is a reflection of the way Americans think about it, it is a subject we find difficult to think about at all. From 1968 to 1975 the United States averaged only 200 applications per year. The startling rise in applications since—130,000 are expected this year—has until recently been met with bureaucratic paralysis. A ballyhooed asylum corps of 150 specially trained officers (Germany has 3,000; Sweden, 800) inherited a backlog of 114,000 cases the day they started work in 1991. There is now a backlog of 300,000 cases.

Those awaiting adjudication are not deportable and, in most cases, are given a work authorization. This means that the backlog itself now attracts spurious claims. Apply for asylum in the United States, it is known, and you can pretty much plan to stay. Depending on where you enter the byzantine process, if you are denied, up to four appeals are possible. Some cases have been pending for 12 years.

But with rising sentiment against immigration and given the notoriety of the recent asylum cases, reform is on the horizon. “We cannot and will not surrender our border to those who wish to exploit our history of compassion and justice,” said President Clinton at a White House ceremony in July announcing a package of immigration reforms.

“Expedited exclusion,” which deals with asylum, provides for adjudication within a few days for those arriving at airports without documents and for boat people like Dong Yishen. As the term indicates, the emphasis is on moving people out quickly.

In addition, the President has instructed the Immigration and Naturalization Service to come up with, by the end of this month, new procedures to streamline its unwieldy bureaucracy and to curb its worst abuses. According to Gregg Beyer, these could include a time limit on applying for asylum (there presently is none), a withholding of work authorization from all but those who are granted asylum, and enforcement of the idea of “country of first asylum.” Under this last restriction, foreigners who have passed through a country that has a procedure for providing asylum will be returned to that country, if possible.

These reforms—introduced recently in the Senate by Edward M. Kennedy and in the House by Jack Brooks, Democrat from Texas—appear to enjoy broad bipartisan support. But they also have their critics. Warren R. Leiden, executive director of the American Immigration Lawyers Association, notes that if Clinton’s “expedited exclusion” becomes law, it will be practically impossible for an airport asylum-seeker to be represented by an attorney, since it takes time to find lawyers, who may need more than a week to prepare their cases. The attorney can make a difference: a 1987 General Accounting Office study noted that applicants with attorneys were three times more likely to succeed in proceedings before an immigration judge.

Lucas Guttentag, director of the Immigrants’ Rights Project of the American Civil Liberties Union, worries that the new hurdles will result in bona fide applicants being summarily returned. “Experience has shown that persons who were found by the I.N.S. not to have a credible fear initially were later granted asylum under a full hearing,” he says. Equally troubling, he adds, is “the absence of judicial review and the attempt to strip the courts of any power to oversee the entire process, because it attempts to insulate the I.N.S. from any independent judicial oversight.” On many occasions, courts have found the enforcement-minded immigration service to have abridged immigrant rights.

Doubtless one goal of the Clinton reform effort is to send a signal to citizens who fear America has lost control of the borders and to foreign nationals hoping the same thing. But even if the President succeeds in curbing the worst asylum abuses—like the ease in claiming asylum at Kennedy Airport and allowing Chinese claiming persecution under the one-child policy to enter—he will not have touched the underlying shortcomings in the system.

Those applying for asylum upon arriving at an airport or who get caught trying to get in on a boat account for only about 10 percent of the total number of asylum applicants. The rest, who apply once they are in the country (having entered legally on a visa, for example, or illegally across the border) will not be affected by the changes. The backlog continues to grow. And the number of asylum officers remains woefully inadequate.

A Congressional staff member who helped frame the Refugee Act of 1980, which gave a real-life commitment to America’s symbolic support of refugee protection, recalls that the country was then receiving a little more than 2,000 asylum applications a year. “Let’s double it,” he said, making a worst-case projection; and Congress foresaw some 5,000 annually. Instead, 26,000 were received the first year.

Unless more money and thought are given this problem, the increase in world refugee numbers will guarantee that America continues its historic pattern of unpreparedness.

IN THE BASEMENT OFFICES OF Central American Legal Assistance in Williamsburg, Brooklyn, I meet Vicente Osorio, his wife, Maria, and their 8-month-old daughter. Of the 300,000 people in the asylum backlog, 145,000 are from either Guatemala or El Salvador—a result of the exodus from those countries in the 1980’s and lawsuits that forced the Immigration and Naturalization Service to rehear their cases.

Osorio is a short, round man of strong opinions. A street cleaner, he was on the executive board of a municipal workers’ union when it got into a dispute with the Guatemalan Government. After the union called a strike that the Government termed illegal, 72 union members were selectively fired, including Osorio. In response, the union began a long campaign, in the news media and on the streets, to win support for their cause. As the campaign geared up, union members began getting killed or abducted.

“Jose Mercedes Sotz was beaten, and three months later, as he and his child walked to a bus stop, his child, 3 years old, was shot and paralyzed,” he says. “Other leaders were killed. Some were kidnapped. Others fled. My friend Rufino Reyes, may he rest in peace, died fighting. He was working on a union case at the administration building and he won. Two blocks away from there, after leaving, he was stabbed.” (In Osorio’s asylum application there are documents from Amnesty International and Americas Watch attesting to this violence.)

Osorio started receiving threats. A man in the office of the municipal government said Osorio should stop his organizing or he would get “disappeared.” Written death threats followed, delivered to his home. “I didn’t want to leave my wife a widow. Though we were people of bravery and strength, we would only be martyrs if we stayed.” The Osorios fled Guatemala, leaving the children with their grandmother. Vicente and Maria Osorio’s fourth child, the 8-month-old, was born in the United States.

The Osorios’ initial application for asylum was denied, as was their first appeal. According to immigration officials, “the fundamental nature” of Vicente Osorio’s dispute with the Guatemalan Government was economic, concerning wages and the reinstatement of workers. “The possible existence of a generalized ‘political’ motive underlying the Government’s action is inadequate to establish that the respondent fears persecution on account of political opinion.”

The Osorios’ lawyer is appealing to a Federal Court of Appeals.

EXACTLY WHAT constitutes political persecution?

Sometimes it’s hard to tell. Sadruddin Aga Khan, the former United Nations High Commissioner for Refugees, wrote recently in The International Herald Tribune that the identity of refugees has become blurred. Many are “victims of complex socioeconomic and political crises. . . . They may not be pushed out at the end of a rifle or with the threat of execution looming over them, but population pressure, regional conflicts, environmental degradation and absence of work opportunities combine to encourage if not force them to leave.”

In San Francisco in July, probably for the first time in the United States, an immigration judge granted asylum to a homosexual Brazilian fleeing “antigay death squad gangs, who are often joined by the police in their massacres of gays.” France recently recognized genital mutilation as a form of persecution in the asylum case of a woman from West Africa. Should these claims be accepted?

Such new directions, says Dan Stein, executive director of the Federation for American Immigration Reform, represent “a backdoor immigration program for people who are displeased and dispossessed, of which there are billions.” “When you get into these gray areas where people are fleeing a status”—i.e., a sexual preference—”or a cultural, or an economic repression, you are dealing with the kind of generalized dissatisfaction that our refugee and asylum laws cannot handle, and it’s impractical to think they ever could,” he says.

The A.C.L.U.’s Guttentag says Stein “betrays an appalling ignorance” of both the facts and the law and the international standards regarding refugee protection. “The Tenorio decision, if he’s read it, reflects a very careful analysis of the actual facts in Brazil, the kinds of threats and attacks to which this person and gay persons in Brazil are actually subjected,” says Guttentag. “It was not a person fleeing because of their status. It was a person fleeing because of the discrimination and persecution and the physical threats that that person has specifically suffered.”

Though immigration law is based upon benchmark standards like the “well-founded fear of persecution” (echoing language in the United Nations Convention) and guided by the occasional Supreme Court ruling, most precedents are set by the Board of Immigration Appeals, in Falls Church, Va. Some lawyers complain that many of the board’s decisions are subjective and increasingly restrictive. “They are defining persecution out of existence,” says Anne Pilsbury of Central American Legal Assistance. ” ‘Persecution’ is not an easily definable term,” wrote Loescher and Scanlan, “and always derives some of its meaning from the political perspectives of those employing it.”

Western Europe has always accepted asylum-seekers in far greater numbers than the United States, but even there the doors are closing. There was a moment following World War II when the world decided that asylum was the right thing to do. It is still the right thing to do. But in the world of the 1990’s, Americans are being forced to rethink the implications of that promise.

AT WILLIAM OCHAN’S hearing before an immigration judge in Newark, things have suddenly taken a bad turn. Ochan, 29, is a Christian from southern Sudan. The radical Islamic Government of northern Sudan, says Africa Watch, has for nine years waged “a war in the south of extreme brutality” to turn the Sudan into an Islamic state “by whatever means necessary.” “The policy has resulted in the suppression of all forms of civil society, the arrest, detention and torture of dissidents, and the relocation and deprivation of hundreds of thousands of people.”

One of the displaced, according to his own testimony, is William Ochan.

He became a refugee, he says, the year he was born; his parents, fearing oppression by Muslims, fled with their children to Uganda. After a truce, he returned to the Sudan at age 11 to live with his grandfather, a pastor and headmaster. While his brother joined the Sudanese People’s Liberation Army, the armed Christian guerrilla resistance, William Ochan opted for peaceful resistance. Still, the demonstrations he led landed him in jail in Juba, where during his interrogation soldiers hung him by cords tied to his fingers. His left middle finger was mangled as a result. He shows it to the judge, who describes it for the record. She seems moved by his testimony.

Ochan’s application is also supported by a dean’s-list record at two New Jersey colleges (he supported himself with two full-time jobs while studying), active participation in church, an Op-Ed piece he wrote on the Sudan’s crisis that was published in The Los Angeles Times. His lawyer has even brought a video of Ochan being interviewed by Charles Kuralt.

But now the Immigration and Naturalization Service lawyer representing the Government has found a serious discrepancy in his story. It turns out that Ochan was first interviewed five years ago, after sneaking in on a boat from Turkey and while living in a Newark homeless shelter. At the time, she points out, he submitted a written asylum request that mentioned nothing about his finger and in which he claimed to have escaped from the infamous Cobra Prison in Khartoum during a celebrated jailbreak. She submits this statement as Exhibit 7.

Ochan confers with his lawyer, who is upset because she is unaware of the earlier statement. He says that, over the course of five years, he forgot. Today, in any event, he admits that he has never been to Khartoum. He made that up, he says, because at his initial interview the immigration officials were openly hostile. They seemed not to have heard of the Sudan, and they asked if he was fleeing Communism, which has hardly been a factor there for two decades.

“I put in Khartoum because it is more famous than Juba,” he explains. “I needed to impress them somehow.” As for the finger, he says he didn’t mention it in the written statement because he had already discussed it during the interview.

But the judge is concerned. Consistency is crucial in asylum hearings because of the frequent paucity of other evidence to support a claim of persecution. She had hoped to issue an oral decision from the bench today, she says, but “credibility is now such an obvious issue. Exhibit 7 has opened up a can of worms.”

I have got to know Ochan over the past few weeks, most recently at a demonstration he organized at the United Nations, on July 31, to publicize the persecution of Christians in the war in the Sudan, and I sympathize with him as we walk to the elevator.

“When will they give me back my life?” he asks. “I am like their prisoner.”

At the same time, I doubt I will ever know him well. Asylum-seekers, most of them so alone in the world and so at risk, have many secrets. I wonder with him, as I wondered with Dong, whether I appear as just another representative of The System, another person to impress. In his shoes, what would I do? All I can feel sure of is that he has gone through hell and would make a good neighbor. Unlike many of the millions who immigrate unofficially, he wants to be a part of the system; he craves legitimacy; he would cherish citizenship. The decision the judge will make, her balancing of sympathy and hardheadedness, will be in microcosm the decision that America and the rest of the developed world must make.