Asylum, Please
In The Mercy Factory, Christopher J. Einolf offers a gripping firsthand account of the challenges, terror and exhilaration of representing political asylum-seekers. The book vividly captures the work’s life-and-death intensity. Like many charitable legal service providers in the field, Einolf is a non-attorney accredited by the Department of Justice to represent immigrants. It is scandalous that the majority of poor asylum-seekers in the United States do not have legal counsel. Persons fortunate enough to secure the services of Mr. Einolf and his like, however, receive far more than quality legal representation. Mr. Einolf befriends his clients, finds them counseling, gives them money and travels hours to visit them in remote county jails. (He drove one client 300 miles from a local jail to one of the few shelters for asylum-seekers.) In short, Einolf treats his clients in a way that recognizes their full human dignity. The legal community would do well to embrace him.
Einolf knows the political system intimately and walks the reader through it with three of his clients: Adele and Philippe Fontem, a Cameroonian couple who suffered torture and imprisonment for their participation in the Social Democratic Front, the largest opposition party to Paul Biya’s dictatorship; Therese Kabongelo, a Hutu woman from the Democratic Republic of the Congo (formerly Zaire) who, at the hands of Laurent Kabila’s thugs, endured rape, a brutal beating, the murder of her husband and ultimately separation from her children; and Aster Cheru, an Amharan Ethiopian who was imprisoned, raped and stabbed by Tigrean prison officials for her imputed role in Mengistu Haile-Mariam’s Dergue government.
As the book reveals, cases like these traumatize not only the asylum-seekers, but also their counsel and even the government officials who adjudicate them. At the same time, Einolf reminds us that in a world where, according to Amnesty International, 132 nations use torture, such cases can be numbingly common.
To disclose the outcome of the three cases would remove much of the book’s tension. Suffice it to say that they demonstrate the challenge of securing political asylum in even the most compelling of circumstances. The narrow legal standards for asylum exclude many who have suffered persecution and hardship. Strong claims can be difficult to corroborate, with evidence and witnesses often thousands of miles away. The multitiered process can be maddeningly difficult to negotiate, even for experienced counsel. It involves a specialized corps of asylum officers (generally praised by Einolf), who handle the claims of persons who come forward voluntarily to request asylum; immigration judges (generally criticized for their enforcement bent), who adjudicate asylum claims made by those fighting deportation; and the Board of Immigration Appeals, which considers (typically over several years) appeals of immigration judges’ decisions. Despite an overall asylum approval rate by immigration judges of 31.4 percent, certain judges grant asylum in less than 1 percent of their cases.
Making matters more difficult, anti-immigrant legislation passed in 1996 erected several legal barriers to political asylum. Asylum-seekers who reach a U.S. port of entry without the proper documents face expedited return to their persecutors, unless they can muster the confidence and presence of mind to request asylum or express to a government official their fear of persecution. Immigrants who fail to apply for asylum within a year of entry generally forfeit their right to do so. Asylum-seekers not in custody must wait six months to obtain authorization to work, making it impossible for them to support themselves or hire an attorney. Asylum-seekers in I.N.S. custody face the kind of conditionscommingling with U.S. criminals in remote county jails, predatory phone rates, open-ended confinementthat often are reminiscent of the persecution they fled.
The book’s title is intended to have dual meaning. On the one hand, the U.S. asylum process can be arduous and inhumanehardly a mercy factory. On the other, the system offers mercy to thousands of the world’s most desperate persons each year. In 2000, asylum officers approved 16,693 cases (a rate of 51.8 percent) and immigration judges granted asylum to 7,336 persons. These rates compare favorably to European asylum rates, which are declining. In 1997 European Union member countries also agreed to a safe third country exception to the right to seek asylum. This means that migrants who have passed through one of the participating nations cannot seek asylum in their country of final destination. This has led to chain deportations, as desperate asylum-seekers must journey backwards to the one country where they might request asylum.
The Mercy Factory comes at a trying time for asylum-seekers and for refugees seeking admission to the United States. On Oct. 1, 2001, the United States began a two-month moratorium on the admission of refugees during a security review of this crucial program. The review affected 22,000 refugees who had previously been approved for admission. Subsequently, the president set a ceiling of 70,000 refugees for admission in 2002, an extremely low number historically and one that will not nearly be reached because of the moratorium and diminished U.S. refugee processing abroad. In 2001, U.S.-funded migrant interception programs in Mexico increased, preventing many asylum-seekers from reaching the United States at all. Such programs have become a centerpiece in U.S.-Mexico talks on migration and economic development. Beyond these programs, U.S. officials at ports of entry occasionally force migrants to seek asylum outside the United States, where they are subject to detention by Mexican officials. In addition, local I.N.S. officials have begun to refer for criminal prosecution (for use of false documents) certain persons denied asylum by immigration judges. Given the large numbers of asylum-seekers who cannot secure proper documents prior to their flight, this practice will have a chilling effect on the right to seek asylum in the United States. On Dec. 3, 2001, taking a cue from the European Union, U.S. and Canadian officials signed a joint statement in which they agreed to discuss a safe third country exception to the right to apply for asylum. Such an agreement would bar the claims of an estimated 40 percent of people seeking asylum in Canada.
In these circumstances, The Mercy Factory’s greatest contribution may lie in its success in putting a human face on asylum-seekers. It highlights not only the merits of three representative cases, but the heroism of asylum-seekers and those who assist them. In one telling sequence, Therese Kabongelo, after a murderous attack, comes to consciousness in a Catholic mission. The mission hides her, nurses her to health and finds housing for her children. Mission priests ultimately smuggle her out of the country. Upon her arrival in the United States, she follows the priests’ advice by presenting herself at a Catholic church, chosen at random, in New York City. This faith community offers her aid and welcome. By this point in her account, the church’s response relieves and edifies the reader.
As the United States attempts to balance its national security with its heritage as a haven for the persecuted, The Mercy Factory reminds us that it would be a grave evil to turn away the Therese Kabongelo’s of the world or to weaken the protections available to those who flee the likes of the Taliban and Saddam Hussein, and persecution and terror wherever it occurs.
This article also appeared in print, under the headline “Asylum, Please,” in the May 27, 2002, issue.
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