For asylum seekers, a fickle system

Amid the national debate over immigration reform, asylum has been largely overlooked.

Three grueling weeks after they cast off from Haiti – subsisting on toothpaste and saltwater, they said, once the food ran out – just over 100 men, women, and children ran their rickety boat aground off Hallandale Beach, Fla., just north of Miami.

As the weakened Haitians waded or tried to swim toward land – one man died just yards from shore – they were helped by local firemen and others then taken to a county detention facility.

That was March 28. Three months later, they're still in detention, seeking asylum in the United States, prompting community demonstrations, the involvement of a local US congressman, and even a hunger strike.

Amid the contentious national debate over immigration reform, asylum has been largely overlooked. But like the immigration system overall, critics say, the asylum process is difficult, broken, and unfair.

"The Haitian community is very frustrated and angry," says Marleine Bastien of the Miami-based Haitian-American Grassroots Coalition. "There's such discrepancy.... People feel even if they make a good-faith effort, their chances are minimal in getting asylum."

The statistics explain some of the frustration.

Unlike refugee status, a designation generally pursued by people who want to come to the United States, asylum is for individuals without authorization already in the US or at a port of entry. And their numbers are dropping – despite the recent surge in immigrants.

Since 2001, the annual number of asylum applicants has dropped by a third to a half, depending on the category. The number of people granted asylum has also fallen by a third: from a record 38,641 in 2001 to 25,257 in 2005, the last year for which complete data are available.

The drop may be due to immigrants' perceptions that the system has become more adversarial since 9/11, says Ms. Bastien, whose coalition represents some of the Hallandale Beach detainees: "People feel the burden placed on them is very heavy, very high."

To begin with, different nationalities receive different treatment. Toward the top of the pyramid are Cubans. If they set foot on US soil, they circumvent the asylum process altogether, thanks to the Cuban Adjustment Act first passed in 1966. Instead, Cubans are automatically designated refugees and, thus, are eligible to apply for legal permanent resident – or "green card" – status. By contrast, most others already in the US without authorization or at a port of entry must go the asylum route.

For those who do, it helps to be Russian. Russians won asylum 64 percent of the time, according to a recent study of high-volume immigration courts between 2000 and 2004. At the other end of the scale were Colombians (36 percent), Venezuelans (26 percent), and Haitians, the lowest of all, at 16 percent.

Nor are courts consistent from city to city. Haitians got asylum 27 percent of the time from a federal immigration court in New York, whereas a court in Miami granted Haitians asylum only 15 percent of the time, according to the study. Albanians got asylum 65 percent of the time in San Francisco; in Detroit, only 17 percent. The study also found that female judges granted asylum at a higher rate than did male judges.

"There's a great deal of randomness and disparity in the system that seems at odds with the rule of law," says Philip Schrag, of the Center for Applied Legal Studies at Georgetown University Law Center and an author of the study.

Asylum seekers who present themselves voluntarily to immigration officials usually fare better than those who, like the Haitians apprehended on Hallandale Beach, get caught. Voluntary seekers make their case to US Citizenship and Immigration Services, part of the Department of Homeland Security. If they're denied there, they can go through the immigration courts. In 2005, Haitian applicants made up 17 percent of all voluntary seekers granted asylum, more than any other ethnic group.

Those who get caught – and thus go directly to immigration court – don't win asylum so easily. The US typically grants asylum to those who fear persecution because of their politics, race, nationality, or religion. But certain observers caution that some applicants, especially from impoverished nations like Haiti, are fleeing economic problems, not political ones.

Asylum "can be pretty valuable," says James Carafano, who studies homeland security at the Heritage Foundation, a conservative think tank in Washington. "Getting into the US ... is an incredibly marketable commodity."

Unlike Cubans, who are well-organized politically, Haitians have little clout in the US, which compounds their immigration problems, says Cheryl Little, executive director of the Florida Immigrant Advocacy Center in Miami. She says US officials have determined that most of the Haitian detainees in Pompano Beach have a credible fear of persecution if they're returned to Haiti – an early step in the approval process. But immigration officials won't confirm this, saying they can's discuss specific cases.

US Rep. Kendrick Meek, a Democrat whose district includes part of Hallandale Beach, has asked US immigration officials to release those who have demonstrated "credible fear" so they can better prepare for trial. But detention is usually mandatory in such cases, says a spokesperson for Immigration and Customs Enforcement.