Court Grants Asylum to Cuban Refugee

A federal appeals court in San Francisco granted political asylum to a Cuban man Wednesday, reversing what the judges called a “Kafkaesque” decision by U.S. immigration authorities.

The U.S. 9th Circuit Court of Appeals ruled 3 to 0 that Francisco Rodriguez-Roman, who jumped ship from a Cuban merchant marine vessel while it was docked in Mexico in 1982 and made his way to the United States, clearly would be persecuted if he returned to his native land.

A U.S. immigration judge acknowledged that there was a clear probability that Rodriguez, 37, would be prosecuted if he were returned to Cuba. But the judge ruled that prosecution for violating a Cuban law against emigrating without permission did not constitute persecution. The Board of Immigration Appeals upheld that ruling.

Appellate Judge Stephen Reinhardt said the immigration judge’s “interpretation of the term ‘persecution’ is squarely inconsistent with court and BIA precedent addressing punishment for illegal departure.” He cited several prior federal appeals court decisions, which he said “singly and collectively, stand for the proposition that punishment for the crime of illegal departure constitutes persecution when the punishment would be severe.”

Reinhardt called it Kafkaesque to conclude that Rodriguez could be punished for committing such a crime against the socialist state without being punished for his beliefs.

In the Rodriguez case, State Department officials said that people violating this Cuban law are typically sent to prison for three years. Rodriguez, who described himself as a lifelong anti-Communist, expressed fears of even worse treatment--perhaps even execution--and testified that members of his family had been arrested by Cuban authorities after he fled his ship.

The Justice Department declined immediate comment on the decision. But the ruling was hailed by immigrants’ rights advocates, who noted that the ability to obtain judicial review of Immigration and Naturalization Service decisions on asylum petitions has been severely curtailed by a new immigration law enacted last week. The new statute permits court review of some INS asylum decisions, but it sets up numerous hurdles before review can be granted.

Indeed, all three judges in the Rodriguez case stressed the importance of independent judicial review of administrative decisions by agencies such as the INS, a wing of the Justice Department.

“In the absence of judicial review, grave injustices could take place for which our government and our people would have to bear the moral responsibility,” said Judges Reinhardt and Michael Hawkins.

“These injustices might . . . ordinarily be few in number, but in some periods of history they could be many indeed. Those of us who are familiar with the infamous episode in which [the U.S. government] turned away hundreds, if not thousands, of Jewish refugees crowded on the decks of the Saint Louis, many of whom subsequently perished in Hitler’s concentration camps, understand the importance of treating the problem of political and religious refugees with sensitivity, compassion and care,” the judges added.

In a separate and unusually personal opinion, Judge Alex Kozinski, who fled Communist Romania with his parents when he was 12, said the immigration judge’s comparison of Cuban laws to U.S. statutes prohibiting desertion and treason was bizarre.

“Rodriguez . . . established that, if returned to his country, he might be shot, imprisoned for many years or simply made to ‘disappear,’ ” Kozinski wrote. “These are not fantasies. Communist countries are known for their brutality in stemming emigration.”

Reached at his home in Las Vegas, Rodriguez said: “I am the happiest man in the world right now. It’s a very nice relief for my family and myself. Finally this case got justice.”

In an unusual footnote to the decision, Reinhardt praised a Fullerton law professor and two students who prepared the brief and argued the case for Rodriguez on a pro bono basis. “I’m elated,” said Sherri L. Honer, who made her first formal argument in court in the Rodriguez case. Honer was the valedictorian for the May 1996 graduating class at Western State University College of Law in Fullerton and is now practicing with a Tustin law firm--still awaiting the results of her bar examination. She and Lynn Hampton, now in her final year at Western State, argued the case under a special 9th Circuit program.

“The Rodriguez decision is important on a lot of levels,” said Stuart Miller, the Western State professor who supervised their work. “It helps Mr. Rodriguez and it tells the INS not to be so callous, not to be a law unto itself.”

Immigrant rights advocates said that under the immigration law enacted last week, Rodriguez would not have gotten a hearing at the 9th Circuit.

“If you arrive in the U.S. without a visa, as a practical matter there will be no judicial review of a denial of asylum,” said Lucas Guttentag, director of the American Civil Liberties Union’s Immigrants Rights Project.

Stuart Miller, who along with two students represented Rodriguez on a pro bono basis, praised the judges for the sweeping nature of their ruling.

“This decision reins in a rogue agency,” he said. “This decision is broader than it had to be. These judges, God bless them, are setting up the challenge to the new act by stating the importance of judicial review.”