High Court Ruling on Asylum Is a Moral Test for Administration

James J. Silk is the author of "Despite a Generous Spirit: Denying Asylum in the United States," published in December by the United States Committee for Refugees.

The Supreme Court decision last week on aliens seeking U.S. asylum could contribute, at least indirectly, to the safety of refugees throughout the world. The court ruled that the government has been using too strict a standard to decide whether aliens who say they fear persecution in their homelands are eligible for asylum in the United States.

The case, Immigration and Naturalization Service vs. Cardoza-Fonseca, involved a Nicaraguan woman whose application for asylum was denied. She feared that if she returned to Nicaragua the Sandinista government would torture her because of her brother's political activities. The issue before the court was whether aliens, to be eligible for asylum, must prove a "clear probability" of persecution if returned to their home countries.

The court acknowledged that a clear probability of persecution is the correct standard for another form of relief: withholding of deportation. But it ruled that Congress clearly intended a different, more lenient, standard for asylum eligibility when it passed the Refugee Act of 1980. That act provides that aliens are eligible for asylum if they are unwilling to return to their countries because of "persecution or a well-founded fear of persecution."

The immediate impact of the court's decision is that to be eligible for asylum, aliens no longer need to prove that they are likely to be persecuted. They need only prove a well-founded fear of persecution.

The court's affirmation of the definition of a refugee--the critical foundation of refugee protection internationally--with its emphasis on the fear of persecution, is in itself significant. But its impact could go well beyond the way the United States applies the definition.

Domestically, however, the government could respond so as to virtually nullify any direct effect. The asylum statute authorizes the attorney general to grant asylum, at his discretion , to eligible aliens. Thus the government might acknowledge that more applicants are eligible under the correct standard, but continue to deny asylum to all but those who meet the more difficult standard. To do this, though, would be to dodge the real message of the court's decision.

By saying in strong language how clear the law is and how blatantly the government has disregarded that plain meaning, the court's opinion is a reprimand for a government practice aimed at denying asylum to those who may deserve it. As such, it not only offers a better chance of asylum to many applicants, particularly those from Central America, it calls into question the entire pattern of restrictiveness that has characterized U.S. practices toward asylum-seekers, a pattern that contradicts the Refugee Act, the U.S. commitment under the U.N. Protocol Related to the Status of Refugees and the humanitarian traditions upon which these legal obligations stand.

This pattern is a complex network of declared policies and undeclared but regular practices that risk the lives and liberty of many people who have a fundamental right to seek refuge from the persecution they fear at home. While the Supreme Court has ruled against one such policy, other legally and morally questionable practices remain. Among the most troubling are incarceration of asylum applicants, sometimes for long periods, as a method of deterring aliens from seeking U.S. asylum; stopping Haitians on the high seas and returning them to the violent uncertainties of their country, and arresting and returning thousands of Central Americans, particularly Salvadorans and Guatemalans, to countries wracked by violence and civil strife.

These practices are part of a growing U.S. restrictiveness toward all aliens. Asylum, at its core, is a human-rights issue. It is about persecution and the right to seek protection from it. By becoming a party to the U.N. Protocol and passing the Refugee Act, the United States incorporated fundamental international principles of refugee protection into its laws and provided a legal basis for judging asylum claims. More important, it formalized humanitarian obligations that American values have long embodied--that those who flee persecution elsewhere find safety and opportunity here.

But people seeking asylum in the United States have been caught up in the very different concern about immigration, particularly illegal immigration. In 1983, then-Atty. Gen. William French Smith told Congress, "Simply put, we have lost control of our borders." It was this concern that fueled the drive for the immigration reform legislation passed last year.

Unfortunately, a lack of public understanding about what distinguishes refugees from immigrants in general is reinforced by the government's inclination to obscure the difference. In this atmosphere, asylum laws intended to offer protection from persecution are implemented restrictively, not generously. The government contrives to do only what the narrowest interpretation of the law says absolutely must be done, not what international law and custom, the framers of U.S. asylum law, American tradition and common sense say should be done.

Partly because the United States was founded on the tradition of refuge, the idea of protecting refugees throughout the world owes much to the leadership of the United States. As the United States jeopardizes its own humanitarian tradition of giving refuge, the international system of refugee protection is jeopardized as well, and, with it, human lives.

The negative leadership on asylum issues exercised by the Reagan Administration should be reversed. Last week's Supreme Court decision could be an inspiring beginning to that process. But much remains to be done, much that will probably require action by Congress, especially if the Administration chooses to ignore the spirit of the Supreme Court's decision as it has so far ignored the spirit of the law.

--The United States should begin immediately to apply the correct standard and apply it fairly and consistently. Today applicants from some places, particularly Haiti and Central America, are forced to meet a more stringent standard than those from other countries, particularly those of the Soviet Bloc.

--The policy of prolonged incarceration of asylum seekers should be stopped. It violates the purpose of laws established to protect aliens' right to seek asylum.

--The Haitian interdiction program should be turned into a humanitarian rescue program. U.S. officials insist that anyone stopped by the Coast Guard who expresses a fear of returning to Haiti is brought to the United States. In more than five years of the program, 9,146 Haitians have been stopped at sea. Yet while Haiti has had one of the worst human-rights records in the world, only two people have been brought to the United States to pursue asylum claims.

--For those who do apply for asylum, the process must be fair and free of bias. Establishing an independent agency to decide on asylum claims free of the enforcement priorities of INS and the foreign-policy concerns of the State Department would contribute to this goal

-- Congress should act to protect those who need temporary safe haven from war, civil disturbance, or political upheaval in their homelands. Both houses should pass, without further delay, a bill by Sen. Dennis DeConcini (D-Ariz.) and Rep. Joe Moakley (D-Mass.) that would grant a temporary stay of deportation for Salvadorans already in the United States. Similar legislation is needed to protect Guatemalans and Nicaraguans. But Congress should not have to act anew each time another nationality faces return to danger. It should enact legislation that would establish a new category of temporary asylum or safe haven, for humanitarian reasons.

--The United States should make refugees and the conditions that create them fundamental considerations in formulating foreign policy. Whether by carefully giving aid to foster genuine development, or withholding aid to countries where corruption or human-rights abuses contribute to the exodus of refugees, foreign aid should aim to alleviate conditions that produce refugees.

Opponents of generosity toward asylum-seekers may argue that international agreements are not binding on the United States. They may appeal to the need to stem the flow of illegal immigrants. But all this tragically misses the point. The United States should bring its treatment of asylum seekers into conformity with its own and international laws and with the humanitarian principles underlying them, not only because it is the law, but because it is right.

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