Gimme Shelter

By Richard Lacayo

"Driven from every other corner of the earth," Samuel Adams intoned in 1776, those seeking freedom "direct their course to this happy country as their last asylum." From the beginnings of American history, no would-be immigrants have had greater claim on the national conscience than those seeking shelter from repression. But how to distinguish legitimate refugees from the mass of aliens who come to the U.S. merely in search of work or a change of life? The U.S. Supreme Court gave an answer last week that should smooth the path, at least slightly, for thousands fleeing death squads, invading armies and one- party states.

The court was looking only at the relatively small number of aliens who ask for asylum annually; applications recently have averaged 20,000 a year. Three years ago, it ruled that portions of the Immigration and Nationality Act permit the Government to deport certain aliens who fail to show a "clear probability" that they will be persecuted in their home country. Under another section of that law, many such aliens have been allowed to seek from the Justice Department a discretionary grant of asylum. But this alternative was of little practical benefit because in order to be eligible, they were often required by the Immigration and Naturalization Service to meet the same difficult test of clear probability. The evidence was not often at hand. "Refugees don't come with notes signed by death squads," says Immigration Lawyer Kip Steinberg.

In its decision last week, the court ruled 6 to 3 that the INS standard was more onerous than Congress had intended when it drafted the law. Justice John Paul Stevens, for the majority, said that to be considered eligible for asylum, refugees need only prove a "well-founded fear" of persecution. In a strongly worded concurrence, Justice Harry Blackmun accused the INS of "seemingly purposeful blindness" in its refusal to see that Congress had intended a less stringent standard of proof.

The case before the court involved Luz Marina Cardoza-Fonseca, 38, a Nicaraguan who now lives in Nevada. Cardoza-Fonseca unsuccessfully claimed before theINS that if forced to return, she would face torture because her brother is a former Sandinista who was imprisoned and tortured by his onetime comrades before he escaped to the U.S. Justice Stevens upheld a lower-court ruling that the INS must reconsider her case using the more lenient standard. In a dissent joined by Chief Justice William Rehnquist and Byron White, Lewis Powell maintained it was reasonable for the INS to find no practical distinction between a "clear probability" and "well-founded fear."

Most experts believe the new ruling means at least that INS officials must now give more weight to subjective evidence, including personal testimony about fear and harassment. But the final decision is still within the discretion of the Justice Department. Many immigration lawyers complain that its practices have been not only legally incorrect but politically biased. They charge that refugees from Communism or the Ayatullah Khomeini have a far better chance of gaining asylum than those fleeing governments that the U.S. counts as friends.

According to one study of INS figures, only 2.6% of applicants from El Salvador and less than 1% from Guatemala win approval. Many of them have been trekking on to Canada, which has been more receptive to refugees from the two countries. But Ottawa, daunted by the flood of would-be immigrants, has recently closed the door a bit, requiring refugee applicants to remain outside the country during the four to six weeks it can take until their applications are considered. Result: hundreds of Central Americans are languishing in churches and community buildings on the U.S. side of the border in Michigan and New York.

While the situation is serious for Central Americans, refugees from everywhere have found that much has changed in the U.S. since 1776. In the twelve years that the INS has kept records, the majority of asylum applications have been turned down. Even Afghans running from Soviet invaders were granted asylum only about 38% of the time. Cousins Aman and Wahid Ullah, both 23, have spent 16 months in INS detention centers since reaching the U.S. from Afghanistan. "We're desperate," says Aman. "We came here hoping to be free."

With reporting by Anne Constable/Washington and Peter Stoler/Ottawa