TCS Daily

Insane Asylum

By Jonathan E. Stern - October 28, 2004 12:00 AM

Imagine a foreign national who enters the United States via Iraq and Syria; whose niece married one of the 1993 World Trade Center bombers; who once lived with her niece and the bomber in Seattle; and whose husband remained in close contact with the bomber and shepherded an undocumented Egyptian to the Canadian border in a taxicab shortly after the 1993 attack. Do this woman and her family sound like good candidates for asylum in America? The U.S. Court of Appeals apparently thought so in August when it permitted Haifa El Himri and her son Musab, both facing deportation to Kuwait, to remain in the United States.

This decision highlights a disturbing dichotomy in the current process through which we grant asylum to refugees. Asylum represents a last resort for individuals facing execution or torture, a final opportunity for the "huddled masses yearning to breathe free" to find safety and liberty in the United States. Unfortunately, it has become increasingly burdensome for deserving applicants to receive asylum. In general, four out of every five applications are rejected and the New York Times recently reported that airport border agents have summarily and mistakenly deported credible asylum petitioners. Yet the Department of Homeland Security (DHS) has been ineffective, even in the wake of September 11, in preventing applicants with ties to terror from gaining asylum. The worthy are kept out; the questionable remain.

Many problematic asylum applicants hail from countries that should raise red flags. According to Justice Department statistics, 12 of the 25 countries generating the most asylum applications in 2003 were states with a strong Islamist presence like Pakistan and Egypt or countries with high rates of terrorist violence like Colombia and Peru. In the case of refugees from repressive Islamic states, many applicants are genuine democracy activists, women, or Christians persecuted for their faith. At the same time, opposition movements in these countries often breed fanatical anti-American sentiment. Immigration officials must exercise caution when considering applications from such states.

The El Himris, for example, are described as stateless Palestinians who lived in Kuwait until anti-Palestinian persecution following the 1990 Persian Gulf War forced them to flee to Washington State. The court held that Musab, a teenager, was entitled to asylum because he faced a well-founded fear of suffering persecution in Kuwait on account of his nationality. Haifa was granted relief from deportation on a slightly different ground.

But despite an FBI investigation into the terrorist ties of Haifa's husband, reported in the Seattle Post-Intelligencer, the court made no mention of security concerns nor did it consider her relationship to Nidal Ayyad, one of four men convicted of what our government once termed "the most notorious act of terrorism" ever committed against the United States. (Ramzi Yousef himself, the 1993 master bomber, was granted asylum in 1992.) In fact, under current asylum law, national security considerations do not enter into the judicial analysis. While the Attorney General may, under the Patriot Act and other regulations, deny asylum to individuals who have engaged in terrorist activity, skilled applicants can skirt these provisions even in the wake of the September 11th attacks. The 9/11 Commission Report reveals that, even though federal law authorizes the use of classified evidence in deportation cases, the Immigration and Naturalization Service (INS) removed very few individuals linked to terrorist activity, none of whom were associated with Al Qaeda.

Embarrassingly, DHS -- created during the largest governmental reorganization in 50 years -- was designed to prevent precisely such security lapses. Transferring many INS functions from the Department of Justice to DHS, thereby severing immigration from the FBI's investigative powers, likely exacerbated the problem. DHS must allocate resources to achieve the twin goals of providing shelter to deserving applicants while protecting the security of the nation in a thorough and timely manner. This includes improving coordination with Justice to screen asylum applicants for security risks and, when appropriate, providing such information to the courts.

Asylum is an exceptional remedy that plays to our better instincts as Americans, allowing us to renew our commitment to freedom by granting safe haven to those who lack it. However, the current failure to focus on those who pose a threat to our security will result in granting the wrong people asylum while undermining an important American institution.

Jonathan E. Stern is an attorney in Los Angeles and a former visiting scholar at U. C. Berkeley's Boalt Hall School of Law. Michael M. Rosen, a TCS contributor, is an attorney in San Diego.


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