Tram Nguyen: Roadblocks to Asylum
June 2006 Issue
The Democratic Republic of Congo in the late 1990s was wracked by an insurrection of armed rebel groups supported by Rwanda and Uganda. During the fighting, which continued even after a ceasefire was signed in 1999, tens of thousands of women were raped and tortured by soldiers.
“I’m telling you in my country, there are no human rights. It’s the women who suffer,” Hortense, a thirty-one-year-old Congolese woman, says.
As a nurse, Hortense was working the night shift in a village hospital when soldiers came by accusing her of treating insurgents and demanding to know where they were, she says. They took her into detention for three days during which she was interrogated, beaten, and denied food. They threatened to cut off her breasts and hands.
She was then transferred to a prison where she stayed for two weeks until a priest talked a sympathetic guard into letting her escape with him.
Dressed as a nun and carrying a fake passport, Hortense crossed the border to Uganda, continued to Kenya, and boarded a plane to Mexico City in the summer of 2003. After three days on a bus, she was within sight of the U.S.-Mexico border.
“You can go to the border officials and tell them that you want asylum. But they will put you into detention while they process your case,” she remembers being told by a nun who had accompanied her. “Or you can cross the border illegally with a smuggler.”
Hortense was terrified at the thought of another jail cell. She chose to join a coyote’s route, crossing the desert fifty miles to the east of San Diego.
Through an African contact she met after crossing the border, she learned of a small Congolese community in Minneapolis and of another contact who helped her make the journey to Minnesota and gave her shelter there.
By the end of 2003, Hortense had submitted her asylum claim. However, asylum laws require applications to be submitted within one year of arrival, and she has no proof of her date of entry.
Hortense’s experience illustrates many of the problems that beset today’s asylum seekers, who must navigate a severely compromised system with an increasing number of crosscurrents.
With a flawed policy of “expedited removal,” the pressures of national security, and a global retreat from providing asylum and refugee protection, the United States has seen a drastic drop in its asylum numbers.
In 2003, only 5,376 people were able to secure asylum interviews. That is a drop by more than half from 2001 (which had 12,320 people granted asylum interviews). The number of asylum seekers also decreased to 55,067 in 2004 from 61,939 in 2001.
If they do manage to arrive at a U.S. port of entry, many asylum seekers end up detained, usually in jails for weeks or months and sometimes years, until they can be screened for an asylum interview and eventually put their petition before an immigration judge.
Under the ten-year-old policy of expedited removal, which continues to expand, thousands of foreigners arriving in the United States each year get no further than their port of entry. They often encounter ill-informed, sometimes abusive inspection officers, who summarily turn them away, leaving them little recourse for legal protection or judicial review.
In January 2006, the Department of Homeland Security announced plans to further expand this system that human rights advocates say has endangered asylum seekers and curtailed due process for all noncitizens. Along with the Real ID Act, which sets a higher standard of proof in court for asylum cases, a sweeping new bill proposed by Representative James Sensenbrenner passed the House in December, adding more punitive demands on asylum seekers and other undocumented immigrants.
According to a study in 2005 by the U.S. Commission on International Religious Freedom (USCIRF), inconsistencies and lack of accountability in the process result in asylum officials taking shortcuts, immigration judges wildly varying in their decisions to grant asylum, and detention policies that fluctuate depending on the number of beds available and the region of the country. (New York detains virtually all asylees, while Chicago releases the majority.)
Immigration officers are required to read a script to arriving foreigners informing them that they have a right to ask for protection if they have any reason to fear being returned home. But researchers from the USCIRF found that in more than 50 percent of the cases, this information was not conveyed. And in 15 percent of the cases where aliens did express a fear of return, asylum officers sent them back anyway.
The idea that foreigners take advantage of the asylum system as a way to enter the United States is a longstanding one that has only intensified after 9/11. In October 2001, the Department of Homeland Security began a policy of mandatory detention for asylum seekers from thirty-three countries identified as having links with terrorism. Now discontinued, mandatory detention threatens to resurface for all asylum seekers under Sensenbrenner’s bill.
Yet the process of gaining asylum is already exceedingly difficult. Only 38 percent of applicants were granted asylum in 2004, and that was out of the already small number of people who actually make it out of their home countries, across international borders, and through the U.S. screening process upon arrival.
Nguyen Thi Chat, thirty-three, had already been deported once from the United States for attempting to enter without documentation. She had arrived at Los Angeles International Airport in December 2001 along with thirteen other Vietnamese women claiming to be trafficking victims and fearing persecution from their homeland. Immigration authorities sent them back.
The women had worked in American Samoa for a Korean-owned garment factory that came under federal indictment on charges of human trafficking. The women were among several hundred Vietnamese workers who were allegedly forced to work without pay for two years and beaten for protesting their conditions. Their link to the subsequent U.S. investigation left them under suspicion from a Vietnamese government highly sensitive to international criticism.
Back in Vietnam, the women said they couldn’t return to their families for fear of involving them, and instead lived illegally on the streets of Hanoi. In February 2002, they decided to make another attempt to get to the United States and apply for asylum.
“We will bring with us sleeping pills. If we don’t get any help at Los airport, we will take the pills and maybe INS at Los airport will take pity on us and will bring us to a hospital,” they wrote in an e-mail to a supporter in Seattle.
But they didn’t make it to Los Angeles this time.
In Singapore, Chat managed to get past security officials, but two other women with her were identified and held back. She went on to Taipei, where officials took her into custody and put her on a plane to Singapore. There, the police interrogated and reportedly beat her, banging her head against a wall until she fainted, according to her husband. The next day, she was sent back to Vietnam.
In February, The New York Times ran a front-page investigation revealing that overzealous and poorly trained immigration officers have increasingly misused their discretionary power over a wide number of foreign travelers, resulting in numerous incidents of harassment and heavy-handed treatment.
The findings echo a pattern of discrimination and abuse that goes much deeper, according to the Lawyers’ Committee for Civil Rights, which has sued on behalf of several asylum seekers who said they were racially insulted and mistreated by immigration officers at the airport.
Tsungai Tungwarara, an eighteen-year-old woman from Zimbabwe, arrived at San Francisco International Airport in January 2002. She wanted to apply for asylum because she feared persecution as a result of her mother’s involvement with political dissidents in her home country. At the airport, she was detained, interrogated, denied food, strip searched, jailed overnight, and then sent back to Zimbabwe.
According to the lawsuit, an immigration officer told her mother, “We won’t allow these people here—not after September 11th. Go back to the jungle.”
For nearly three years, Hortense has heard nothing from her husband and four children, who fled their home to escape the soldiers who came looking for her after her escape.
“I know if I go back to Congo, I would be taken again, beaten, tortured again. More than what I received before,” Hortense says. Her return, she believes, would only confirm to her enemies that she is involved with the insurgents.
She begins to cry as she tries to describe her life in exile.
“I’m not happy here, but if I go back, it will be my death,” she says. “Nobody wants to be very far from your family, your parents. I try to be strong but my heart is very broken. I lost everything. If I don’t receive asylum, I will go back and die in my country.”
More than 31,000 people die each month in the rebel-controlled eastern Democratic Republic of Congo, where Hortense is from. It is the deadliest humanitarian crisis in the world, according to a 2005 U.S. State Department report. Armed groups and government soldiers continue to carry out massacres, executions, cannibalism, mutilation, kidnapping, widespread rape, and torture.
In 2004, the latest numbers available, only seventeen asylum cases were granted for the Democratic Republic of Congo out of 113 cases that were filed.
To make her case for asylum, Hortense and her attorney, Emily Good of the Minnesota Advocates for Human Rights, have gone through a hearing process that has stretched over two years. They presented to the judge medical records from a Minneapolis hospital visit that corroborated her story of torture. They located her father and got an affidavit from him and a village chief confirming that she disappeared from her home in 2003.
On a bitterly cold morning in February 2006, Hortense and Good are preparing for what they think will be the final outcome of her quest for asylum—her last court date in Minneapolis.
On the way to meet Hortense at the immigration court building, Good is cautiously optimistic. The case has fallen to the slightly more liberal of Minneapolis’s two immigration judges, Joseph Dierkes.
Hortense is already sitting in the small waiting room inside the building. She is a round-faced woman in a pink sweater and scarf. Her large eyes shine brightly with unshed tears as we settle down to wait. “I am shaking,” she says softly, adding that she didn’t sleep last night. Good says, “We’re all thinking good thoughts for you.”
As the minutes tick by past her nine o’clock appointment, Hortense occasionally whispers in French to her interpreter, a woman named Amy Beier, who works in Good’s office.
The lawyer representing the Bureau of Immigration and Customs Enforcement, a disheveled man named Terry Louie, sits down next to them with his thick binder of documents. He makes easy chitchat about the Winter Olympics. Another government lawyer, a blond woman in a tan suit, asks them cheerfully, “What d’ya have going on today?”
“A decision hearing,” Good replies.
“Well, have fun,” the woman says with a good-natured roll of her eyes.
Hortense, meanwhile, has bent over in her seat, clenching her hands together as the previous hearing lets out from the courtroom. Her turn is coming.
In the courtroom, Judge Dierkes, a balding, bespectacled man with a gray goatee, is gruff and expressionless as he begins dictating the notes for the hearing into the court transcription.
He cuts off the recorder and says, “Let me just say what my concern is here. I’m not comfortable ruling either way right now.”
The medical records have done the most to establish Hortense’s credibility in his eyes, but the government lawyers have sent overseas investigators who found no one at the Congolese hospital to confirm that Hortense worked there. Good has submitted an original of her hospital ID card, but the judge doesn’t think that’s enough.
He cross-questions Hortense at one point. What years did you work there? Who was your boss? She is confused at first, saying she supervised herself. Then under more questioning, she gives the name of a Dr. Balu, who she says was the hospital director. But she adds in French that the hospital is located in the eastern part of the country, where there is still fighting and the staff would be afraid to talk.
“Well, that doesn’t make much sense to me,” the judge says, adding that he doesn’t see why her father can’t go to the hospital and request the necessary documents. Ideally, he wants contemporaneous records of her employment there—personnel papers, pay stubs.
“I’m putting the burden on you to provide the proof,” he says.
Saying that he would have normally denied such a case, but that he doesn’t feel comfortable going either way yet, Judge Dierkes sets another ninety-day period to allow Good and Hortense to come up with the evidence.
Afterward, they huddle outside the courtroom to debrief. Good explains that the judge does not care that the hospital is in a danger zone and that it is nearly impossible for them to get more evidence. Good asks Hortense if she had to file any reports about the patients she treated, and she says the hospital let the patients keep the paperwork. Good asks her about how she was paid. It was in cash. Then Good asks her if she signed for her salary—the answer is yes, and so there is one possible lead.
“How many hours ahead is it, eight? If we call now, it will be evening. Should we go back to the office and try to call?” Beier suggests. They must leave a message with someone on the village’s one phone and hope that Hortense’s father will get it and be able to call back.
“Maybe there is electricity today,” Hortense says. “I am just waiting again.”
Tram Nguyen is the executive editor of ColorLines magazine and author of “We Are All Suspects Now: Untold Stories from Immigrant Communities after 9/11.” This story was produced under the George Washington Williams Fellowship, a program sponsored by the Independent Press Association.
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