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High Court Ruling on Asylum Is a Moral Test for Administration

March 15, 1987|James J. Silk | 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.

NEW HAVEN, CONN. — 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.

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