Overturn Order on Refugees, U.S. Asks

Justice Department attorneys Tuesday urged a federal appeals court to overturn a sweeping April, 1988, decision ordering the Immigration and Naturalization Service to stop using threats and coercion to dissuade Salvadoran refugees from applying for political asylum in the United States.

“This is an extraordinary case, ordering the attorney general to give notice to all Salvadoran immigrants” of their right to asylum and changing “virtually every facet of INS procedure,” said Jay S. Bybee of the Justice Department at the start of his oral argument in Pasadena.

Bybee asserted that there was no legal right to asylum. Even if there was such a right, he said, U.S. District Judge David Kenyon erroneously concluded that the INS had engaged in a “pattern and practice” of coercing and intimidating Salvadoran refugees not to apply for asylum. Kenyon’s decision also included a long list of rights for Salvadorans detained by the INS, including the right to apply for asylum, have legal representation and access to pay telephones.

Mark Rosenbaum of the American Civil Liberties Union retorted that Kenyon’s April, 1988, ruling was well-grounded in fact. He noted that there had been 176 witnesses, including about 75 Salvadorans who described how the INS had denied them access to lawyers or the option of applying for asylum.

Rosenbaum said the judge’s decision in the class action suit was grounded in the Refugee Act of 1980, which guarantees all aliens the right to apply for political asylum.

Kenyon’s decision in the case of Orantes v. Thornburgh affects all Salvadorans who have applied for political asylum or may do so in the future. The Justice Department and immigrants advocacy groups consider it one of the most significant pending cases involving the rights of aliens.

Lawyers on both sides said there are no precise figures on how many Salvadorans have been granted asylum. However, Sandra Pettit of the Legal Aid Foundation of Los Angeles, one of the immigrants’ lawyers, said about only 3% of Salvadorans who have applied have been granted asylum. Either a district director of the INS or an immigration court appeals judge can grant asylum.

In the 1985 fiscal year, the last year for which figures are available, 74 Salvadorans were granted asylum and 2,229 were denied.

The questions by the judges centered on whether there was a factual basis for Kenyon’s decision, whether the INS had committed acts of coercion and intimidation and the impact of the decision. The legal standard governing the appeal is whether Kenyon’s decision was “clearly erroneous.”

The suit, originally filed in 1982, arises out of the migration of thousands of Salvadorans coming to the United States, fleeing the war in their country. Reagan Administration officials consistently asserted that Salvadorans who come to this country are simply “economic immigrants” trying to escape poverty, not political refugees. A political refugee has been defined by court decisions as an individual who flees the home country because of persecution or a “a well-founded fear or persecution.”

During the trial, Kenyon gave the plaintiffs wide berth to describe their fears of returning to El Salvador. One woman who was denied asylum testified that she left the day after death squad members came to her brother’s funeral and said, “You’re next.”

Rosenbaum recounted this testimony for the judges to buttress his assertion that INS agents routinely told the immigrants that they had little prospect of winning asylum and that they should simply accept voluntary departure back to their native land, after being arrested for being in this country without proper documents.

Bybee repeatedly asserted that the INS had not discriminated against Salvadorans. Rather, he contended that Kenyon’s decision granted rights to Salvadorans that have been awarded to no other immigrant group.

At one point, appeals court Judge Robert Beezer interjected, “I don’t want to hear about discrimination. I want to hear about intimidation and coercion.” Bybee denied that there had been intimidation and coercion.

The third judge on the panel is John Vukasin. The judges took the caseunder submission.