The Door Slams Shut

Why we can't trust the INS with U.S. refugee policy.


One of the Bush administration's few concrete responses to the massacre in Tiananmen Square was its decision to allow Chinese nationals in the United States to extend their stays here. The action was noteworthy, given the treatment Chinese dissidents had previously received from the Immigration and Naturalization Service.

In one particularly egregious case, the INS denied asylum to Wang Bingzhang, a founder of the Chinese Alliance for Democracy and publisher of the magazine China Spring. (See "Dissident China," February 1988.) The New York City resident had been publicly branded a traitor by China's ambassador to the United States. Yet only the intervention of an obscure Justice Department bureau, the Asylum Policy and Review Unit (APRU), prevented his deportation.

Established in 1987, APRU has reviewed scores of INS asylum denials and recommended that the attorney general overrule many of them. The unit's relative lack of success—just 35 decisions have been overturned as a result of its efforts—reflects blatant obstruction by the INS. That agency, although entrusted with the humanitarian task of giving refuge to the victims of oppression, "has a border-guard mentality," says Roger Pilon, a former director of the APRU and now a senior fellow at the Cato Institute. "The INS sees itself as a law-enforcement agency charged primarily with protecting our borders and hence with keeping people out," he adds, a posture that it takes even when evaluating asylum applications. (Asylum applicants are refugees already visiting or residing in the United States. The INS and State Department share authority over refugees seeking to enter the country.)

Not surprisingly, the INS sees the APRU as poaching on its bureaucratic turf. Late last year then-INS Commissioner Alan Nelson wrote a memo urging Attorney General Richard Thornburgh to disband the APRU. The bureau, complained Nelson, was "just plain financially wasteful," having cost $750,000 since its inception. Coming from a man who had presided over a $350-million increase in his own agency's budget and the production of an INS movie extolling his record as director, Nelson's professed concern for the taxpayers was a mite suspicious. His real worry was undoubtedly the APRU's role in the asylum process.

Whenever the INS denies someone asylum, it is supposed to notify the APRU. In practice, however, the unit has to "fight the INS every step of the way, even to get cases referred," says Pilon, who headed the APRU from its creation in April 1987 until November 1988. Early last year the INS stopped answering queries from the APRU and even, on occasion, from the deputy attorney general. Because of this dismal history, the Justice Department has drafted regulations to strengthen the review process. But the rules remain in limbo because of steadfast INS opposition; Nelson's memo proposing that the APRU be disbanded was part of the INS counterattack.

The struggle between APRU and the INS has ramifications beyond the survival of a small government bureau. Driven by its border-guard impulses, the INS has turned away thousands of people seeking freedom and has undermined the American tradition of providing a haven for the oppressed. It has demonstrated that it cannot be trusted with the job of determining which refugees will be allowed to enter or remain in the United States. It is time to reevaluate both U.S. refugee policy and the INS's role in enforcing it.

The law calls for the United States to grant legal residence to people who can show a well-founded fear of persecution. But the INS, which is dedicated to keeping people out of the country, tends not to recognize persecution—even in extreme cases. Consider the following individuals, who, like Wang Bingzhang, were granted asylum only after intervention by the APRU:

• Oscar Alvarez, a member of the Nicaraguan Democratic Movement who was severely injured in a mob attack and jailed by the Sandinistas;
• Ethiopian Amare Astatke, a vocal Baptist and anticommunist who was imprisoned for five months and tortured by the Mengistu regime;
• Jolanta Gazda, who was imprisoned for her work in the Polish student underground;
• Iranian Zahara Hejazirad, who was arrested for "anti-Islamic" and "anti-government" activities and who also converted to Christianity, a criminal offense;
• Arpad Kis, who was harassed, beaten, and fined for his political and religious activities in Romania;
• Salvadoran Elmer Martinez, whom guerrillas attempted to assassinate for serving in the military;
• Adel MeKraz of Libya, who was active in the National Front for the Salvation of Libya, a group opposed to Qadaffi's regime;
• Yama Ahmed Mirkhil, a member of the Afghan Mujaheddin when he was jailed, tortured, and blinded; and
• Dorothy Matabole Ralebipi, an antiapartheid activist who was arrested and beaten by the South African government.

The need for an independent asylum oversight office at Justice has never been more urgent. World events have led more people to ask for refuge in the United States, yet both the INS and the State Department, which works with refugees abroad, have increasingly turned a blind eye to those fleeing foreign tyranny.

Consequently, emigration from the Soviet Union is like a good news/bad news joke. The good news is that glasnost and perestroika apparently mean something: The Soviet government is allowing more and more people to leave the country. The bad news, testified John White, president of the National Association of Evangelicals and a board member of World Relief, is that "as the door from the Soviet Union is beginning to open, the once wide and welcome door of the United States has already slammed shut" on many would-be refugees.

For instance, the Soviet Union has begun to allow increasing numbers of Pentecostals and other evangelical Christians to emigrate. In January alone nearly 1,000 Pentecostals left Moscow for Vienna, and as many as 10,000 are expected to be released by the end of the year. There is no question that Christian evangelicals have long been a persecuted minority in the USSR. Pentecostals and other unregistered Baptists have been sentenced to prison, mental hospitals, labor camps, and internal exile for practicing their religion.

Yet as of February INS officials had denied more than 150 of the Pentecostals refugee status. Kent Hill, executive director of the Institute on Religion and Democracy, notes that the KGB subsequently used the INS rejections to discourage evangelicals from trying to exercise their new freedom to leave. Under pressure from religious groups, the INS later overturned most of the denials, but rejections are again on the rise.

The number of Jews allowed to leave the USSR has also increased dramatically—from 914 in 1986 to 8,149 in 1987, to 19,343 in 1988. As many as 54,000 are expected to emigrate this year, which could break the record set a decade ago. But last year the State Department began denying Jews who had left the USSR refugee status, and the U.S. embassy in Moscow temporarily stopped issuing visas to those who wanted to leave. The State Department now warns of potential two-year waits just for interviews to determine applicants' eligibility for refugee status. By mid-year, 30,000 Soviets were waiting for interviews in Moscow and 12,000 to 14,000 Jewish emigres, together with 2,200 evangelicals, were in limbo in Rome and Vienna. More than 5,000 from both groups were appealing denials of refugee status.

Last year, then-Secretary of State George Schultz assured American Jewish groups that the United States was not trying to limit Jewish immigration. And, in fact, Washington's niggardliness is nondiscriminatory: Soviet Armenians, too, have found it harder to immigrate to the United States. Barely 200 Armenians a year were allowed to leave the USSR during the mid-1980s; last year the rate was roughly 1,200 a month. But State Department lawyers object that many of these people, fleeing a region beset by violent ethnic conflict, have not demonstrated the "well-founded fear of persecution" required by U.S. law.

Sen. Alan Simpson (R–Wyo.), who has made a career of trying to build walls around America, has also complained about the Armenian influx: "We must distinguish between the right to leave the Soviet Union and the right to enter the United States." In 1988, Washington began denying refugee status to Armenian emigres and refusing to issue visas to Armenians. Hundreds of Armenian families now live in bureaucratic limbo in Moscow. They have given up their homes and jobs to emigrate, only to be denied permission to enter the United States.

If Soviet policy again changes, some would-be immigrants may never get out. "We don't know how long the Soviet Union will have a liberal emigration policy for Soviet Jews," says Phillip Saperia, assistant executive vice president of the Hebrew Immigrant Aid Society, who speaks of "panic in the Soviet Jewish community." Under pressure from American Jewish groups, the administration offered late last year to admit up to 2,000 Soviets a month on "parole" status. Unlike other refugees, they will have to find a sponsor to pay transportation and living expenses and they will not be automatically eligible for citizenship.

The Bush administration has also launched a concerted program to imprison asylum applicants from Nicaragua—despite President Reagan's declaration in 1988 that the United States "accepts responsibility" for the thousands of Contras and their families who are now refugees. Even under Reagan, the INS was rejecting 47 percent of asylum applications filed by Nicaraguans, among them members of the resistance and deserters from the military. But the agency's conduct began to grow even uglier at the end of the year. Nelson said the INS planned to "tighten up our procedures" because, in his view, many of the asylum applications were frivolous.

Explained Virginia Kice, an INS spokesperson, "they tell us they are here because they want to improve their lives, their standard of living." In February, the INS instituted almost instantaneous adjudication of asylum claims by Nicaraguans in Texas, detaining those whose applications were denied. Overall, the approval rate for asylum applications has dropped from 53 percent in 1988 to roughly 20 percent under the new system. "We're pleased with the results to date," Nelson told a House subcommittee in March. He pledged to open more detention centers, jails, and stockades to accommodate Central Americans who try to enter the United States.

For years, the INS has glibly denied asylum to those it deemed "economic refugees," running from poverty, not from persecution. But there is no clear distinction between political and economic refugees. Even poor peasants suffer under tyrannical regimes, and tyrants often control their people by restricting economic liberties. The United States is routinely rejecting hundreds of refugees from politically repressive lands. In 1987, Washington turned down 53 percent of asylum applicants from Ethiopia, one of the world's most vicious states; the rejection rate fell to "only" 23 percent in 1988. In 1987 and 1988, 117 of 175 Afghans, 38 of 93 Chinese, 33 of 57 Czechs, 11 of 163 Hungarians, 43 of 191 Libyans, 870 of 1,750 Poles, and 16 of 83 Soviets were barred from settling in the United States.

The combination of a miserly law and a Scrooge-like bureaucracy is turning America's immigrant heritage on its head. The first problem is the Refugee Act of 1980, which requires asylum applicants to demonstrate fear of individualized persecution. But the more oppressive the state, the less likely it is that the applicant can show he or she is being singled out for mistreatment.

Indeed, one former State Department official responsible for judging asylum applications has argued that the fact that some applicants from communist countries were allowed to travel indicated that they were "privileged," not persecuted, and that "their reasons for staying in the U.S. were not valid." Similarly, the INS has explicitly cited the fact that applicants had been issued passports as evidence that they were not persecuted. In short, the only people who can readily prove the likelihood of persecution are those who, because of persecution, are unable to get out.

Second, the INS's general hostility to immigrants has been compounded by incompetence and insensitivity. An internal Justice Department study completed last year found that the agency's staff is inadequately trained. The General Accounting Office reviewed INS procedures for deciding refugee status of Soviets and found evidence of "uneven standards and inconsistencies among INS officers." The INS examiners didn't speak Russian, and few knew anything about life in the USSR; many of them had simply been transferred from U.S.-Mexican border duty.

If President Bush is serious about promoting a "kinder, gentler nation," he needs to overhaul both asylum law and administrative procedures. The first step is to ask Congress to change the requirement that refugees and asylum applicants demonstrate a fear of individualized persecution. The proposed Justice Department regulations would take an important step in this direction, allowing applicants to show that they are members of an oppressed group. The Justice and State departments have also drafted legislation to accept over the next five years 150,000 "special immigrants" whose admission serves the national interest—for example, by encouraging the Soviet Union to liberalize its emigration policies—even if the refugees don't meet the traditional legal standard. These measures, though they would be an important step forward, still do not go far enough: People should be allowed in the United States if their basic rights are being violated, irrespective of specific persecution and Washington's foreign-policy aims.

The United States also needs to accept more refugees. The State Department proposed to admit 94,000 in 1989, up slightly from the 87,500 allowed last year. But there are roughly 54,000 Vietnamese in camps throughout Southeast Asia, and all could easily be accommodated by the United States. Their situation is particularly desperate. The number of "boat people" has increased more than 40 percent annually each of the past two years, and surrounding states have grown tired of the exodus. Several Southeast Asian governments now screen refugees and deny those determined to be "economic migrants" the opportunity to resettle in other countries. Hong Kong, Thailand, Australia, and Malaysia are all pushing Vietnam to implement a policy of forcible repatriation. Thailand, Singapore, and Malaysia have even been forcing some ocean borne refugees back to sea: "First we give them warnings, and if they keep coming in we just shoot them," explains a Thai official.

The proposed ceiling is also not high enough to allow in the growing number of refugees from the Soviet Union, Nicaragua, and elsewhere. Large numbers of immigrants would benefit the country; it has admitted more than 700,000 Vietnamese since 1975 and has prospered as a result.

The United States should welcome residents of Hong Kong who want to leave before China takes control of the territory in 1997. Under normal immigration quotas, Washington admits a paltry 5,000 people from Hong Kong a year; Rep. John Porter (R–Ill.) has proposed increasing that to 50,000. But given the inevitability of political and economic repression come 1997, Washington should permit even more to come as refugees.

The State Department has justified refugee restrictions by citing the limits imposed by its $156.5-million budget for admissions (an average of $1,863 per refugee for processing, transportation, placement, and training). But existing funds could be spread further by reducing federal aid for refugees who are admitted; former Secretary of State Schultz has suggested cutting the benefit period from 31 to 24 months.

More important, the refugee program needs to be disentangled from the budget. Increased use of the Justice Department's parole authority would admit more people at no cost to the public. Parole status is only a stopgap, however, since it does not entitle people to become citizens.

Instead, Congress should drop all limits on refugees who immigrate without government assistance, whether they pay their own way or rely on family members or other benefactors. There is a network of organizations—ethnic groups, churches, community and philanthropic enterprises, and the like—available to assist new refugees. In fact, the State Department recently arranged for some Cuban emigre groups to handle transportation and resettlement costs, and officials say similar negotiations are underway with other organizations. (In recent years the department has been admitting up to 4,000 privately financed refugees annually, a welcome, though inadequate, step.)

Finally, the INS should be divested of authority over refugee and asylum policy. The agency sees its purpose as keeping people out of the United States and resents any oversight: Last fall Associate Deputy Attorney General Thomas Christina observed in an internal memo that the "INS clearly regards the very existence of APRU as a slur on its institutional ability to administer the Refugee Act."

The Justice Department's draft regulations would reform the current process by creating a new corps of asylum officers, but such a system would still leave the INS with control of asylum cases. Instead, the administration should expand the APRU, transforming it into an office in the Civil Division to take over management of refugee and asylum affairs. Examiners would be answerable to the assistant attorney general in charge of the Civil Division rather than to the INS commissioner.

After the United States has spent so many years demanding free emigration for Soviet Jews and Pentecostals, Vietnamese, and other oppressed peoples, the government's reluctance to accept those who are now being released is both tragic and cheap. The richest nation on earth is treating brave, resourceful individuals as a threat. To the INS, asylum application is a bureaucratic nuisance, but to the refugee it may be a matter of life and death. It is time that we lived up to our immigrant heritage, offering a humane haven in a world full of refugees desperately in need.

Contributing Editor Doug Bandow is a senior fellow at the Cato Institute and the author of The Politics of Plunder: Misgovernment in Washington, forthcoming from Transaction Books.