DAY 642: Sept. 6, 2000
Nearly 13 months after the final hearing, Churchill issues her ruling, giving no explanation for the delay.
She denies Zathang's request for asylum. Despite her own comments in the courtroom, despite the testimony of Zathang's witnesses, despite the published account of his flight from Myanmar and the paucity of evidence to support the government's position, Churchill says she believes Zathang is actually Indian because of his passport. She concedes that he "may have Burmese nationality as well" but concludes that the time he spent in India proved he was living there without persecution and could return safely.
"We cannot, from the record, completely sort out the truth from the fictions," she writes. "It is our conclusion, from the preponderance of the evidence here, that he has Indian nationality, despite his claims to the contrary. It is not necessary for us to make any other factual findings. We note, though, that his general credibility is in some question."
She orders Zathang back to India but grants him a special dispensation called voluntary departure, which would allow him to leave America at his own expense with a clean immigration record.
DAY 668: Oct. 2, 2000
Zathang's lawyers file a notice of appeal.
In the motion, Georgetown University fellow Virgil Wiebe points out that the judge referred to Zathang's witnesses as "convincing." He argues that Churchill's decision is not supported by the law or by the evidence and that it contains "significant factual errors and omissions."
The request is pending before the Board of Immigration Appeals. It could take years before the panel rules.
Zathang, now 42, is allowed to stay in the U.S. pending his appeal. He is living with friends in Maryland, looking for work. He finally got a work permit from the INS last June. The card classifies him as Burmese.
When he learned of Churchill's decision, he was so upset he couldn't sleep for days. He said he does not know what else he could have told the judge. "I have all the proof I am a Burmese citizen," he said, sitting in his cousin's apartment, a calendar from his Chin village in Myanmar on the wall. "If they couldn't accept that, I don't know what more I could do."
The Times discovered that Zathang is listed on an Internet site identifying Burmese Chin residing in the United States. His attorneys were unaware of the reference, which helps corroborate Zathang's nationality.
The Times also found other Burmese Chin who verified Zathang's ethnicity. "He is not only my oldest brother's friend but also his classmate when they were in Mandalay University," said Siang Dun, who left Myanmar in 1995. Zapeng Sakhong, who taught at Mandalay University, said he and Zathang came from nearby villages in Myanmar, that he knew him at the university and had heard of his political activities. "He is really from Burma," Sakhong said.
Zathang's family remains in India, hiding from the police. They move every few days. Had Zathang been granted asylum, he would have started the paperwork to bring them to the United States legally.
Zathang spoke with his wife by phone for 10 minutes in August 2000 on the same day Amnesty International warned that many ethnic Chin in northeastern India were in danger of deportation. "I miss my family," he said. "They are afraid of being arrested by the Indian authorities, so they hide from one place to one place."
Attie, now 27, graduated from law school in May 2000. She is a clerk for a federal judge. She said she lost her idealism about the asylum process long before Churchill ruled in Zathang's case. "I knew the system didn't work for everybody," she said.
Ries, the INS lawyer, now works for a congressional immigration subcommittee. She thinks Churchill made the right decision. She said she was suspicious of Zathang's story and felt there was no evidence that he would be harmed in India if sent back. "There were credibility questions," she said.
The 13 months it took Churchill to issue her decision violated a 60-day rule set by Chief Immigration Judge Michael J. Creppy. "Justice delayed is justice denied," Creppy said in an interview. But he acknowledged that his policy "is loosely enforced, to be honest."
Churchill declined to talk to a reporter about Zathang's case. In accordance with Immigration Court policy, she would only respond to questions through a court spokesman. "She insisted she needed all that time. It required a lot of consideration. She had to wade through the record," said spokesman Rick Kenney. "As far as statements made during the trial, that may be part of the record, but the decision explains itself."