Searching for Justice

U.S. District Judge David V. Kenyon has stirred strong objections from federal attorneys on behalf of the Immigration and Naturalization Service and the State Department because he has insisted on opening a trial on the treatment of undocumented aliens to the broader question of what is going on in El Salvador, the homeland of the immigrants in the case. But if justice is to be done, these broader questions must be faced. The future of the immigrants can only be decided in the context of the political situation, a situation that they assert makes them eligible for status as refugees.

Judge Kenyon’s approach contrasts with the federal court proceedings in Tucson, where church workers, offering sanctuary to Central Americans, are on trial for alleged violations of the immigration law. The judge in the Arizona case has barred testimony about the broader circumstances and the issue of refugee status.

The issues are complex. The law of the land recognizes two constraints that may be contradictory, one assuring refuge for certain people fleeing mortal threats, another seeking to stem through prompt deportation the influx of immigrants without visas. The State Department and the Immigration Service have chosen to give priority to the resistance to illegal immigration. We, and a growing number of Americans, find that in conflict with fundamental and traditional respect for the obligation to provide sanctuary, even if temporary, when innocent people become victims of conflicts.

Judge Kenyon has upheld the equality of all before the law. That has already led him to address abuses of the rights of immigrants in detention facilities and in government procedures for screening those suspected of illegal immigrantion. The present trial is to determine if the Immigration Service is complying with a 1982 court order requiring that immigrants be advised of their right to petition for political asylum.

The judge’s demands for government reports detailing the situation in El Salvador have met with only reluctant and partial compliance, a resistance that in itself seems an admission that the situation is worse than officials would prefer to portray. The strong support of the U.S. government for President Jose Napoleon Duarte is understandable and appropriate, given the mandate Duarte received at the polls. But it is not acceptable, as part of that support, to suppress factual information as to the risks facing large groups of the population as the civil war is pursued.

Those seeking haven in the United States, and in other nations of the hemisphere, form no narrow ideological bloc. Some have been threatened by leftist guerrilla forces, some by rightist death squads, some by undisciplined troops of the army itself. Some are clearly opportunists, seeking to turn the situation to their economic advantage.

The Immigration Service has rejected almost all requests for asylum on grounds that there was not persuasive proof that the individual making the request was personally the target of a specific death threat. That is an impossibly narrow standard. Proof is elusive in the chaos of present circumstances. It is for that reason that the only appropriate remedy is to grant extended voluntary departure status to these people, allowing them to stay until doubts are removed about the security of returning home. That is what the other nations of the hemisphere, all of them with fewer resources than the United States, are already doing.

The pursuit of the full context by Judge Kenyon is appropriate. The narrow interpretation of the law by the executive branch has invited this resort to the judiciary. The resistance of the executive to the judge’s firm application of the law, all of the law, does no credit to the government.