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Opinion | 11/7/05
Asylum laws need reform
By Matthew Nickson

The granting of asylum to refugees is an indispensable practice for all nations that call themselves civilized.

Asylum is an ancient moral imperative with deep roots in the Christian, Judaic and Islamic religious traditions. Christianity, for example, initially defined itself and spread in opposition to the powerful persecution of believers. Reference Christ's words to Saul of Tarsus - who, on the road to Damascus, was converted from an oppressor of Christians to an apostle of the Church - in Chapter 9 of the Acts of the Apostles:

"Saul, Saul, why persecutest thou me? ... I am Jesus whom thou persecutest: it is hard for thee to kick against the pricks."

U.S. asylum law is well-entrenched and robust. It offers a safe haven - an opportunity for lawful settlement - to refugees from dictatorial lands. This American commitment was strengthened after World War II and the shocking revelations of the extent of Nazi persecution of Jews and other European minority peoples.

In general, U.S. law allows persons who can prove to an immigration judge that they are unable or unwilling to return to their home countries because of past persecution - or well-founded fears of future persecution - to remain in this country as lawful permanent residents.

Applicants must show that the persecution was instigated by their home government or by an individual or entity that their home government was unable or unwilling to control. Of critical importance, applicants must also show that the persecution was on account of their "race, religion, nationality, membership in a particular social group, or political opinion."

Thanks to the protections afforded by the asylum law, a large number of refugees continue to find peace on our shores. They include victims of female genital mutilation from Guinea; homosexuals from Mexico; Colombian cattle ranchers who are threatened and extorted by guerillas of the Revolutionary Armed Forces of Colombia; and, by virtue of an express provision of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, Chinese women who are subjected to coerced abortions and sterilizations under China's "one child" policy.

Yet despite the asylum law's frequent and humane application, many refugees are ultimately deported because they cannot prove persecution on account of one of the five statutory grounds for protection. At present, a great deal of Guatemalans, Salvadorans and Hondurans are suffering this fate.

Hondurans constitute a sizeable proportion of recent asylum claimants because Honduras - like Guatemala, El Salvador and parts of southern Mexico - is increasingly being overtaken by violent street gangs called Maras. The name comes from a species of infesting Central American ants.

Ironically for asylum claimants, the Maras are largely composed of returned emigrants who were deported from Los Angeles for crime-related immigration violations. The gangs - which, among other baneful acts, engage in smuggling and narcotics trafficking - routinely assault, threaten and murder innocent civilians for sport or money. Forcible recruitment of innocent adolescent males is also common.

Notwithstanding new "Mano Dura" (Hard Hand) laws enacted in El Salvador and Honduras - which enable (often corrupt and brutal) security forces to summarily detain suspected gang members - chaos and fear are currently driving vulnerable citizens out of Central America, away from the dangerous neighborhoods of Tegucigalpa, El Progreso and San Salvador.

Upon arrival here, they soon discover that many U.S. courts interpret the federal asylum law not to pertain to migrants fleeing gang violence, even if their relatives have been killed and they themselves are targets of threats. To quote an opinion of the 7th U.S. Circuit Court of Appeals, persecution that affects a national population in "a relatively undifferentiated way" does not rise to a protectable level.

The result - wholly unacceptable from a humanitarian perspective - is that these immigrants are sent home to their deaths.

Congress needs to change the federal asylum law, such that protection is extended to all persons who - for reasons other than the just punishment of crimes committed in their home countries - face a clear possibility of death, serious injury or lengthy confinement if deported.

Critics might argue that broadening the law in this way will open the floodgates to waves of migrants from dangerous nations across the Third World. To a degree, the point must be conceded as describing the inherent downside of a necessary reform. However, policymakers should not overlook the fact that immigrants are already coming to this country in extraordinary numbers and will continue to do so - thanks to the black market for undocumented labor - whether they are eventually granted asylum.

Furthermore, refugees from developing countries such as Honduras harbor an instinctual distrust of police, attorneys and legal systems. Not many decide to immigrate based upon particular provisions of the immigration laws.

Let us amend the asylum law to reach more people whose lives depend on it. We can all support this reform because it is fundamentally humanitarian. Particularly for faith-based political leaders and activists, the change fulfills a Christian mandate.

Nickson is a third-year law student and executive editor of The Texas International Law Journal.