Deporting Refugees Who Miss Asylum Deadline Is Dangerous

Senate's version of immigration bill more moderate, fairer than House's

A recent federal law apparently contributed to the death of a Cuban refugee, Mariella Batista. Ms. Batista was gunned down by the father of her son as she tried to enter a court in Los Angeles for a custody hearing.

She had asked the Legal Services office in Los Angeles for help in getting a protective order against her killer. But she was denied help because 12 days earlier Congress had passed a law barring Legal Services from helping people who are not citizens or lawful permanent residents.

Batista, who fled Cuba on a raft in 1992, was less than a month away from a routine immigration interview that probably would have made her a lawful permanent resident.

If Congress doesn't repeal this law, more women will be at risk of death or physical harm because they can't obtain protective orders from courts.

Ironically, Congress is on the verge of passing yet another law that could lead to more refugee deaths. The version of the new immigration bill passed by the House of Representatives would deny asylum to any refugee who asks for it more than 180 days after entering the United States, with exceptions only for applications based on changed circumstances.

At first blush, this sounds reasonable - just as it may seem reasonable to deny Legal Services assistance to people who aren't at least permanent residents.

Studies by human rights organizations, however, show that only 9 percent of bona fide refugees (people who actually win asylum by proving to the US government that they are fleeing religious or political persecution) apply within 180 days.

Many genuine refugees arrive in America suffering from torture or other traumas associated with persecution and with a harrowing escape from their own country. Others wait many months to see whether changes back home will allow them to return rather than giving up and starting a new life in the United States. Still others wait a year or more because they don't want to seem to abandon fellow human rights workers in their own countries. On average, 21 months pass before a genuine refugee applies for asylum.

Under the House bill, however, most refugees who miss the six-month deadline would be deported, no matter how strong their claim, simply because they didn't file their papers in time. (Some of them might win a temporary respite by asking the attorney general to grant them "withholding of deportation," but while it is difficult to gain asylum, it's even harder to qualify for withholding.)

When a deadline for asylum applications was first proposed in the House in 1993, it might have made some sense. At that time, members of Congress saw the need to remedy abuses of the asylum process.

Until 1995, the Immigration and Naturalization Service allowed asylum applicants to work in the US. The ability to get a work permit just by applying made the asylum process a magnet for claims, some of which were not meritorious. The asylum processing facilities were flooded with new applications, and resolutions of these claims fell further and further behind, while those in the pipeline continued to have the right to work.

In January 1995, the government changed the rule. Now, a person has to win asylum to get a work permit. As a result, applications have fallen by 57 percent, and the government is able to process virtually all new asylum applications within 60 days. The House bill is a "solution" to a problem that no longer exists.

Sen. Mike DeWine (R) of Ohio persuaded the Senate to take a much more moderate approach. He argued that a deadline would "do serious harm to people who are trying to escape oppression, torture, and even death in their native lands." The Senate declined to impose any deadline on affirmative applications for asylum.

The Senate bill's one-year deadline applies only to people who are apprehended by INS before applying for asylum, on the theory that some of those applicants might be using an asylum claim as a last-ditch effort to stay in the US. The Senate would also permit the government to waive the deadline for good cause.

Soon, a House-Senate conference committee will decide which version should become law. They should keep Mariella Batista in mind as they make this decision. Rarely does a human tragedy so dramatically reveal how congressional decisions on social policy can contribute to the deaths of innocent people.

* Philip G. Schrag is a law professor at the Georgetown University Law Center in Washington.