The Game of Refugee Roulette: David Ngaruri Kenney's Story Reveals the Dark Side of Immigration Law

Article excerpt

If in your darker moments you believe, as I do, that a law is what a judge says it is, the story of David Ngaruri Kenney offers strong confirmation. What he has endured these past years as he sought asylum in the United States from persecution and possible death in his native Kenya reveals a system of adjudication that is arbitrary, arcane and politicized.

It's known as refugee roulette, a grim game played by uncounted thousands every year and overseen by judges in federal immigration court, the board of immigration appeals and the U.S. Court of Appeals, plus bureaucracies in the Department of Homeland Security and the Department of State.

Under the Refugee Act of 1980, which amended the Immigration and Nationality Act of 1952, those seeking safety in the United States need to prove that torture or death await them if they are returned to the country they fled. Mr. Kenney foresaw no difficulty there. Under the violent and corrupt Kenyan government of Daniel arap Moi, he spent eight months being severely tortured and nearly executed. His crime? Organizing a 1992 protest of fellow tea farmers who were dying and starving because of government controls that kept prices low or below the profit margin.

Upon release from prison, he was befriended by Peace Corps volunteers assigned to Kenya. At first they had visions of the young Kenney becoming a basketball star in the United States owing to his 7-foot height. That wouldn't pan out--in his early 20s, he had never held a basketball and didn't know a dunk from a double dribble--but after being tutored in English and math by the Peace Corps volunteers, he won a student visa to the United States. He earned degrees at two Catholic schools: St. Gregory in Oklahoma and the University of San Francisco. In 2000, his student visa expiring, he applied for asylum.

On meeting and interviewing Mr. Kenney last year, I found him to be gracious, informed and agile with ideas. He was adding some final pages to Asylum Denied, his memoir cowritten with Philip Schrag, a colleague of mine at Georgetown University Law Center. The book, published this month by the University of California Press, is a model of polished prose and informed advocacy that brings the reader into the life of a man who, for all any functionary in the U.S. government cared, was a castoff, worthy of nothing but a deportation decree.

Despite the impassioned legal help of two Georgetown Law students overseen by Professor Schrag, Mr. …