THE POLITICS OF POLITICAL ASYLUM
By Attorney Obinna Duruji
The bosom of America, George Washington once wrote, "is open to receive not only the opulent and respectable stranger, but the oppressed and persecuted of all nations and religions." His words reflect a proud tradition that has often found expression in America’s immigration laws. From the earliest imposition of systematic federal controls on immigration, in the late 19th century, special arrangements of various kinds have been made to shelter those being pursued for political reasons. But it was a tradition far easier to honor when global population was low, travel was expensive and hazardous, and the country imposed no quotas on its total immigration in take. Those conditions have changed considerably. America is no longer a land of virtually open borders.
In 1968 American became a party to the UN protocol relating to the status of refugees, and thereby derivatively bound by the main operative provisions of the 1951 convention relating to the status of refugees. A refugee is a person outside his or her homeland who is unwilling to return due to a "well-founded fear of persecution" on account of race, religion, nationality, membership in a particular social group, or political opinion.
Article 33 of the UN convention also provides that contracting states shall not expel or return a refugee in any manner whatever to the frontiers of territories where his life or freedom would be threatened on account of any of the five factors above.
The U.S. Refugee Act of 1980 amplified the provisions governing political asylum to tract the language of Article 33 very closely. Congress also added Section 208 to the Immigration and Nationality Act (INA), which gives the Attorney General discretion to provide asylum to an alien in this country, or at a land border or port of entry, who meets the definition of refugee as codified in the INA. An Alien entitlements including a right to adjust status to lawful permanent residence after a minimum of one year in this country.
Between 1980 and 1987, the Board of Immigration Appeals (BIA) ruled that these new forms of protection could be claimed only by aliens who showed a clear probability of persecution in their homelands. Not any more.
In 1987, in INS v. Cardoza-Fonseca, The U.S supreme court ruled that the "well founded fear of persecution" standard was significantly different from the withholding "clear probability" standard and notably less demanding. In late 1987 a precedent decision – Matter of Pula, established a strong presumption that discretion should be exercised favorably if the individual meets the well-founded fear standard.
The focus of much recent litigation has been on two different elements of the refugee question; What is persecution? And when is persecution deemed to be on account of race, religion, membership in a particular social group, or political opinion? In Osaghae v. INS, the 7th Circuit court in 1991 ruled that "persecution means punishment for political, religious or other reasons that our country does not recognize as legitimate".
Generally, asylum adjudication presents unique fact finding challenges that the courts resolve on case by case basis. However, an asylum applicant has established a well founded fear of persecution if he shows that a reasonable person in his circumstance would fear persecution. The concept of a well-founded fear is substantially subjective in so far as fear is subjective and partially objective because that fear must be well founded.
Therefore, contrary to popular opinion, alien’s own testimony would suffice where it is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for the alleged fear.
The four tests articulated by the BIA for a showing of well founded fear are:
Thus, the assessment of the application for asylum should be qualitative, and not quantitative. For instance, in a country with a history of persecution people in circumstances similar to that of the applicant, a well founded fear can be based on what has happened to other who are similarly situated; the situation of each person, however, must be assessed on its own merits.
One should to assume that all is well, simply because the pillars of the Temple of justice, in their imitation of Greek architecture, seem to suggest confidence and a clean ethic. Theoretically, a judge is supposed to be endowed with wisdom, learning, impartiality, and the basics of fairness. He is supposed to be emotionally stable, kind, thoughtful, and courteous. All of them are. Yes.
Nevertheless, if the applicant is a two-legged beast from Africa, originally conceived of as 3/5th of a human being, he or she may be subjected to higher scrutiny, abuse of discretion, incorrect delineation of burden of proof, incorrect assessment of evidence, arbitrary and capricious credibility determination. He may even experience judicial intemperance, naked bias, prejudice, some, some times, heedless discretion and out right hostility. Why? Because discretion is a political instrumentality and justice a political commodity. After all, the legal system is a means by which values or advantages are allocated among persons and groups. It is, therefore, an integral part of the overall political system whose purpose is to provide for such authoritative allocation of scarce resources. And if politics is a matter of who gets what, when, and how, it is also a matter of who does not.
Notwithstanding the fact of racism and politics in American jurisprudence, any and all Africans who have suffered either past persecution or have well-founded fear of persecution upon return or deportation to their homeland on account race, religion, nationality, membership in a particular social group, or political opinion are most welcome to apply for political asylum in the United States.
Attorney Duruji is licensed by the Texas Supreme Court, DC Court of Appeals and the Supreme Court of Nigeria. His areas of practice includes personal injury, immigration, civil rights, international human rights, and general civil litigation.