Bay Window: When a person comes to SFO without proper documentation and says they're afraid of returning to their country of origin, what happens?

Karen Musalo: If a person, under expedited removal, arrives at a port of entry such asSan Francisco airport with no documents or with false documents and they express a fear of persecution or intent to apply for asylum, what the law requires is that they are referred to another officer who will determine if they have a valid enough claim, what's called a credible fear of persecution, such that they should be allowed to actually apply for asylum.

What I've answered is what the law actually provides for, but the real question is what actually does happen. It's very hard for anybody, for myself, for human rights advocates, for the United Nations High Commission for Refugees, for anybody really to say what does actually happen because the INS has not opened the process to people such that we can actually gather the information to know whether or not people who express this fear are allowed the opportunity to apply for asylum. One of cases that you're featuring in this program on the asylum process looks at the situation of an asylum seeker from Algeria who did just that, who arrived at San Francisco International Airport and explicitly said he wanted to apply for asylum. He was taunted and threatened with being immediately sent back to the country through which he had transited. Iit was only when he took desperate action against himself and broke a cup and stabbed himself with broken glass in the stomach that he got the attention of the authorities such that the procedure that should have been followed from the beginning, was in fact followed. I couldn't hazard to say whether his situation is an isolated instance, that itâs very rare that an asylum seeker says they're afraid and is taunted and is told that he's going to be sent back. I can't say if it's a rare isolated instance or if it's something that happens with great frequency. The reason that I can't say it is that the INS doesn't allow any access to be able to determine exactly what's happening on site in these situations.

Bay Window: What happens when a foreign government is supported by the United States but does commit human rights abuses? Are the refugees of those countri es treated differently when they arrive here?

Karen Musalo: One of the longest standing criticisms of the U.S. asylum processes and the whole refugee regime that we have in the U.S. is that it's not informed or motivated by human rights values and protecting victims of persecution. It's really been motivated by foreign policy goals and foreign policy relations and the relationship that the U.S. has with countries around the world. Traditionally if the U.S. criticizes a country, sees a country, say, as being Communist during the Cold War, then anybody who fled those countries would be recognized as being legitimate refugees. But if a person fled a county that we were friendly with, or even worse, a country to which we were supplying foreign aid, actually funding their military efforts, then it wouldn't look good, the U.S. felt, to grant refugee status to those individuals because it would be tantamount to admitting that countries that we are friendly with and countries that we support, persecute their citizenry.

Even though the U.S. passed a refugee act in 1980, with great fanfare, that it was now going to comply with international treaties and international norms, in the 1980s we saw the great exodus of refugees from Central America fleeing the horrible genocide in Guatemala and the pervasive and gross human rights violations in El Salvador. Instead of seeing these people fleeing these situations and being granted asylum, what we saw instead was literally percentages of denial that were approaching 98 and 99% for people fleeing these situations. One could only ask them how even-handed and how free of ideology is the U.S. asylum system using the Central American experience as an example.

I feel like it is timely to point to the whole controversy, the national debate over the fate of Eilan Gonzalez, the young boy from Cuba. So many people have said he should be granted asylum but if one really were to look at the human rights situation in Cuba as effects young children of his age, one would be hard put to make the argument that he would face persecution if he went back. In fact, one would really be able to say that what he will face if he goes back is being a national hero. But if you put that aside to compare his situation with the situation of a young child from Haiti who was found in the same circumstances floating to sea in an inner-tube and what would have happened to them is that they would have been sent back to Haiti and there wouldn't have been any national debate or any national controversy about why we were sending this young boy back to a situation of persecution. The continuing influence of ideology and a Cold War frame of mind that continues to influence what at the heart, essentially, should be humanitarian and human rights decisions.

Bay Window: What does expedited removal means in terms of political asylum cases?

Karen Musalo: The expedited removal process sets up what I would call a pre-screening measure. Prior to expedited removal, any individual who was an asylum seeker who reached the U.S. would have the opportunity to apply for a political asylum once they arrived here, at a port of entry, getting off an airplane or at the border. They would have the right to apply for asylum under U.S. laws and if they were denied asylum, to appeal all the way up to the federal courts and even up to the U.S. Supreme Court, to the highest courts.

What expedited removal does is it sets up a system whereby you only have the opportunity to apply for asylum if you can first pass a screening system to show that you are enough of a legitimate refugee that you deserve the right to be permitted to apply for asylum. Those decisions are made immediately upon a person's arriving in the U.S. If an individual arrives at what we call a port of entry the first thing that would happen if they have no documents or they have false documents or even sometimes if they have valid documents that the INS thinks they're using for fraudulent reasons, which is a little bit more complicated. What is supposed to happen under expedited removal is the INS officer also says we do have protections for people fleeing persecution, and there is some inquiry that allows the person to express whether or not they're fearful or have an intent to apply for asylum.

If they express that intent to apply for asylum or that fear, then they are supposed to be referred to an interview with an asylum officer who will decide whether or not they have a credible enough fear, what's called a credible fear of persecution, such that they should then actually be allowed to apply for asylum. There are a number of hurdles that an individual would have to pass over before they would be permitted to apply for asylum. At the first stage of this process, there is the officer at the airport. If someone express a fear and intends to apply, that officer under the law is supposed to allow them in for this interview. But there are things that could go wrong at that first level.

If the asylum officer finds that they don't have a credible fear of persecution, they have one other level of review within the INS: an immigration judge. If that judge finds they don't have a credible fear, that's the end of the story. They're returned to their home country. They're never permitted to apply for asylum. There's no appeal to higher courts. What it's really done is it has taken away the safety net or any levels of review and it's allowed, at least in the first instance, low level INS officers at the ports of entry, the critical point, who have the first interaction with the asylum seekers. It puts unreviewable authority essentially into the hands of these individuals as to which asylum seekers actually make it out of the airport or which ones will just be turned around and put on a plane and returned back to a country from which they may have fled persecution.

There are a number of questions that get raised about this process. One is whether or not the INS officials who are implementing it are actually complying with what is required of them. Are they actually allowing this asylum seeker to know that this is the opportunity for them to express a fear? If the person doesn't speak English, calling in an interpreter, making sure that what goes on in that conversation is understood. If the asylum seeker expresses a fear, are they actually referring them on to have this interview or not?

We don't know whether the officers are complying with all of the requirements as to how this should be carried out. There's a second question though, which is even if they were to comply with it and follow the letter of the law correctly is there something about the nature of asylum seekers fleeing persecution that even if you followed the right steps and did everything the law required, would there still be some asylum seekers that would arrive who would be so traumatized, who would have suffered persecution that was of such a personal nature that simply expecting them at the moment they get off a plane to be able to express it in a way that would be convincing at this first level, could they do that? Or is it just that the process as designed just doesn't take account of the trauma and the fear and the situation which many asylum seekers arrive in the United States.

There are really two things that people want to know about this process: they want to know if the INS is actually following its own rules. That's a very important thing to know. Secondly, they want to know, even if the INS is following its rules to the T, is the process as designed adequate enough to provide protection to asylum seekers and to all asylum seekers, not just to those asylum seekers who are bold enough or psychologically confident enough to make themselves heard at that level. But is it also an effective enough process to protect the truly vulnerable? The woman who has been gang raped in a political situation and is so humiliated that she can't possibly speak of that the moment she gets off the plane. You can imagine other circumstances of great degradation that people might not feel comfortable to express.

I direct a study, a national study of expedited removal, but I work with many refugee organizations across the country including with the United Nations High Commission for Refugees, UNHCR, with Amnesty International, with other groups that really are concerned with the protection of refugees. We really want to know the answers to those questions and we haven't been able to answer those questions because the INS has not given the access to actually witness what goes on, as researchers to see, or to actually review enough of the records, so that the INS has to be able to answer these two questions: is the INS following all the rules? And even if they are, is it an adequate system to protect vulnerable asylum seekers?

Bay Window: Are asylum seekers getting the information they need in languages they can understand, at SFO or during detention or at hearings?

Karen Musalo: The issue of language is a tremendously significant issue because obviously there can be no accurate decision making made where people cannot understand each other. Many asylum seekers who arrive in the U.S. do not speak English. Although the statute and the directives require that when interpretation is required, that the INS bring in interpreters. We don't know whether that is happening in those cases where it would be appropriate to bring in interpreters. We also don't know when interpreters are brought in, what is the quality of the interpretation or what are the circumstances of the interpretation such that it is effective.

At the airport, let's say when this first exchange is going on between an INS officer and an arriving asylum seeker, the INS could under certain circumstances call in personnel from the airlines to translate. There are some countries where the government actually runs the airlines. If some people who might be fleeing persecution from that government and not very willing to speak where the interpreter might be somebody who is connected to their government.

Another example would be that a lot of the interpretation is telephonic so that the INS calls into a translation service and then the translator is online and the asylum seeker is at the site with the INS officer. Somebody who is really fearful of persecution speaking with this disembodied voice on the phone of somebody speaking their language and they have no idea who this person is. I've heard it repeated many times that people are extremely fearful to say the things that they would need to say about their personal situation. Their name. The political organization they may have been participating with. It may be an organization that's outlawed in their home country. Or to mention the names of family members who are still in that home country, to say this to a disembodied voice of an interpreter on the phone.

There have been real questions raised about the quality of the interpretation. We were in contact with some attorneys in Southern California who were involved in the representation of some Chinese asylum seekers and the translation was provided through this telephonic interpretation service. These interpreters didn't know some of the terms that were the most basic terms necessary for the asylum claims of these individuals. These were individuals whose cases had to do with the policy of coerced population control and forcible abortion and forcible sterilization in China. These interpreters didn't even know the word for sterilization. They were misinterpreting and translating sterilization for cleaning, like cleanliness sterilization rather than the sterilization affecting somebody's reproductive abilities.

We only know of these circumstances because there were attorneys present and there were some volunteers present who spoke the language, otherwise we wouldn't know that there were these interpretation problems. These are problems can actually doom a person's asylum claim because people are denied asylum if they're found not believable. They're found not believable if they contradict themselves and you can imagine if an interpreter incorrectly interprets something at point A of a process, and then at point B that what the asylum seeker says is correctly interpreted, there will be two different statements. What the decision maker might believe is you changed your story. You're lying. You didn't say that before and you're saying it now. Rather itâs he interpreter who made a mistake. Interpretation is critical.

Bay Window: What is detention for asylum applicants like in your experience? What are the conditions and how long are they routinely detained?

Karen Musalo: The issue of the INS detention of asylum seekers is one of the most controversial and highly criticized policies because asylum seekers are people fleeing persecution and they're not criminals. They haven't committed any crime and so just fundamentally there is this question raised of why are we detaining them. The position of the UNHCR, the United Nations High Commission for Refugees, is that detention of asylum seekers should be the exception rather than the rule. Only in certain exceptional circumstances should asylum seekers be detained. Yet in the U.S., the policy has been the opposite. The rule is detention and the exception is release from detention and that asylum seekers generally speaking are often housed in facilities that are criminal detention facilities and are often mixed in with the criminal population.

There are a number of well-documented horror stories about the conditions of detention for asylum seekers. Both the conditions of detention and the effect on people who are highly traumatized. You can imagine somebody's fleein g persecution and they arrive in the U.S. and the first thing that happens to them is they're handcuffed and shackled and then brought to a prison and put in a cell. I've had asylum seekers say to me, I always heard of the U.S. as a country that respected humans rights, a democratic country, and I simply could not believe when I arrived here that this was done to me. Asylum seekers who have spent a year, two years, three years in detention, and because many of these facilities were not intended for long term detention, they don't have any of the amenities that asylum seekers should be provided. An asylum seeker might be able to have fresh air a half an hour a day. There are no educational facilities for them. Parents and children are separated and put in different facilities. This is a very controversial issue and a very troublesome human rights issue. It really is a subject of ongoing debate. What is the proper policy? How should asylum seekers be treated and the U.S. is probably one of the harshest countries in terms of its detention policy. There are countries like Canada for instance where it's only under exceptional circumstances that asylum seekers are detained. You can contrast that with the U.S. where it really is the reverse.

Bay Window: What do you think can be done to improve the asylum process?

Karen Musalo: There are two things that we really want to look at or address in this discussion of asylum. One is expedited removal and one is just the asylum decision process itself. In terms of expedited removal, I think it's very important that we have people who care about democracy and openness in our society and the protection of human rights. That there is access to this process, that it is open, that it is transparent, that we really can see how the INS is implementing expedited removal and what effect it's having on legitimate asylum seekers and others who are legitimately arriving in the U.S.

We can't really answer the questions that we want answered about expedited removal until the INS really opens itself up to the light of day and let's the sunshine in and let's people research and document what's going on. Given that they are public servants and given that all of this is carried out in our name, with our tax money, I don't think that it's really asking too much for the public to say we'd like to know what's being done, how it's being done and what the results of it are and are the results are consistent with Congressional intent.

Congress enacted expedited removal to deter fraudulent asylum claims but to protect legitimate asylum seekers and to allow the entry of other legitimate travellers to the U.S. We don't know if Congressional intent is being complied with if the sun can't be permitted to shine in.

The second thing about the asylum process, more generally speaking, is that that's another area that would bear some additional research and some more of the light of day. We haven't talked a lot about the asylum process itself but we have decisions by asylum officers and decisions by immigration judges in the U.S. that are not made available in any database form where researchers can actually search and look at who's being granted asylum. In what kinds of cases, what were their claims, if they were denied, why? To do some kind of analysis to see if the kind of thing that happened in the 1980s with Salvadorans and Guatemalans, what's happening today in the year 2000? It would help all of us who care about the U.S. living up to its image of being a country that welcomes victims of persecution. It would be to all of our interest to see who are the people who are claiming asylum, what kinds of situations are they fleeing and how is the INS deciding their cases?

We've started a small project here at University of California Hastings College of the Law, on one area we're very interested in. One area we've had the resources to focus on is what happens to women asylum seekers. This came out of some of the work that I've done with some high profile cases of women who flee persecution that might be different from the persecution that men flee. A man who is a political activist might be tortured with electric shock, a woman might be gang raped. So often they suffer in different ways or they suffer things that are completely connected to their gender. They might be subject to female genital mutilation or the victim of an honor killing because they've shamed the family by something theyâve done, so that their family might kill them.

So the INS said in 1995 that it was going to be very sensitive to international human right standards on women when it decided these asylum cases. But do we know if they've actually been sensitive? A number of journalists who have looked at this issue have called me and said, we're trying to find out from the INS what kinds of gender cases they're granting and they tell us they don't keep any of this information. Can that possibly be true? I have said, unfortunately it really is true and that's why we started a project where we're gathering information nationwide on these gender cases and we're finding some things that are quite disturbing where we're finding that the INS said that it's very protective towards women's human rights but then we find decisions denying asylum in cases that are just absolutely appalling.

If we didn't do this research ourselves, there would be no way really to know that these kind of cases are being denied. That's a whole other area but it goes back to the point that what will really invigorate the asylum system, what will really give it more legitimacy with the public as well as being protective of those who need protection is if we really could have more of the information about what the INS is doing in our name.

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