Magazine article The Nation

Supreme Court Knockout: One-Two Punch for Political Asylum

Magazine article The Nation

Supreme Court Knockout: One-Two Punch for Political Asylum

Article excerpt

To careful observers, the decision by the Supreme Court last month that cleared the way for the forced repatriation to Haiti of thousands of political refugees was no surprise. The Court had already indicated its contempt for human rights in two separate political-asylum decisions it handed down in mid-January.

One case involved Joe Doherty, who fought with the Irish Republican Army in what he perceived as a political revolution against the British in Northern Ireland. In the other, Jairo Jonathan Elias-Zacarias, a Guatemalan, decided to flee rather than accept forced conscription into a guerrilla force fighting his country's government. Both men reached the United States, were arrested and watched their cases slowly wind through the immigration bureaucracy and the federal courts. In separate rulings handed down one week apart, the Court cleared the way for each to be deported. Both decisions overturned lower-court rulings favorable to the individuals' pleas for political asylum, and in so doing, the Court seriously narrowed the definition of who is eligible for political asylum in the United States.

"The notion seems to be that the executive branch actors will have virtually unlimited power in determining political refugee protection," said Arthur Helton of the refugee committee of the Lawyers Committee for Human Rights. "It is very threatening and will only further erode refugee protection in the United States." Lucas Guttentag, director of the Immigration Rights Project of the American Civil Liberties Union in New York, said the two recent cases "represent a retreat by the Supreme Court from enforcing the Refugee Act."

In May 1980, a British Army captain was killed in a skirmish between British forces and Doherty's I.R.A. unit. Doherty was captured but broke out of a British jail in Northern Ireland and fled to the United States [see "Doherty Waits," March 5, 1990]. In an early extradition hearing before a federal district court judge, Doherty was found to be a "political" offender and hence ineligible for extradition back to Britain, which had already tried him before a judge with no jury and sentenced him in absentia to life in prison. At the time Doherty was arrested in New York, in 1983, the U.S.Britain extradition treaty said that common criminals should be handed back, but not those involved in political offenses. One federal district court judge said that Doherty fulfilled the political exemption in "classic form." The ruling was upheld on two subsequent appeals. With the extradition avenue effectively shut off, the U.S. government turned to the Immigration and Naturalization Service to accomplish its end of delivering Doherty to the British.

The I.N.S. sought to deport Doherty because he had entered the country with a forged passport, but when he argued that he should be allowed to have a hearing on his request for political asylum, the I.N.S. agreed. At one point in 1986 Doherty waived his request for such a hearing, but then the extradition laws in Ireland and the United Kingdom changed. He felt that constituted "new evidence" and that he should have a hearing to see if he was, indeed, eligible for political asylum here.

But in a highly unusual maneuver, Attorney General Edwin Meese intervened, saying it would be "against the national interest" of the United States to allow Doherty to stay; Meese ordered that he be deported to Britain. The action demonstrated the lengths to which the Attorney General would go to satisfy a political agenda of the Administration-even to the point of overruling its own agency, the I.N.S. While deportees are traditionally allowed to select the country to which they wish to be deported, Meese ordered a sham deportation to only one country, Britain. (The theory among Doherty's supporters is that his forced deportation was a payoff to the British for permitting the United States to launch its 1986 bombing raids on Libya from U.S. bases in Britain. …

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