Aliens’ Fate Rests With Obscure Court : Justice Department: Immigration judges face an overwhelming number of cases and growing criticism.

The 21-year-old Salvadoran stood before U.S. Immigration Judge Thomas Fong in a nearly empty chamber of the Federal Building in downtown Los Angeles. The question before the judge: Was the young man a political refugee who deserved asylum in the United States, or was he a draft dodger who ought to be returned to El Salvador?

Picked up by immigration agents as an illegal alien, the young man told the judge that he had come to the United States to escape political turmoil and threats on his life. He was a college student in his Central American homeland who had been hounded and threatened by leftist guerrillas. “They beat me up and stole my personal belongings,” he told Fong. “They kidnaped me.”

The youth’s story was poignant, but a government attorney suggested that there might have been other motivations for the man’s arrival in Los Angeles. He noted that the alien had left El Salvador after failing to report for duty in the Salvadoran army. He was running not from Marxist insurgents, but from the U.S.-backed Salvadoran government, the attorney said.

After a two-hour hearing, Fong rejected the asylum application, saying: “The court cannot accept that every individual sought for recruitment by guerrillas should be granted asylum. Then every (alien) applicant from Salvador would have to be admitted.”

Fong ordered the youth deported. He remains in Los Angeles pending further appeal.

Cases such as the one before Fong are played out daily across the United States in the network of courtrooms run by the U.S. Justice Department and known as Immigration Court. This quasi-judicial system, reorganized seven years ago to give it more independence, operates virtually unknown to most Americans--but its decisions affect the lives of hundreds of thousands of illegal immigrants and ripple across the rest of U.S. society.

Did this man really flee to the United States to escape political oppression? Would he face death if he was returned to his native country? Was this woman’s marriage to an American citizen a sham to remain in the United States? Would it be an extreme hardship if she were forced to return to her homeland after living in America for several years? These are the types of questions confronted in Immigration Court.

Nowhere are there more such questions than in Los Angeles, the nation’s busiest venue, where more than 9,500 cases are pending before nine immigration judges. But Immigration Courts throughout the nation are being overwhelmed with immigrants propelled into this country largely by poverty and civil wars in Central America. This has led to crowded dockets, long trial delays and an ever-increasing workload. In the fiscal year ending last September, 240,631 cases were filed nationwide, a 23% increase over the previous year.

Moreover, the system is coming under increasing criticism from all sides. A recent report by the General Accounting Office, Congress’ watchdog agency, concluded that the court process is so slow and riddled with loopholes that it works to the advantage of illegal aliens. In contrast, immigrant advocacy groups charge that the courts are biased against aliens, denying them fundamental rights and railroading them into deportation.

Those who find themselves in Immigration Court usually have been captured by Immigration and Naturalization Service agents at the border or elsewhere and have refused to be voluntarily deported. If they argue that they should be admitted to the country legally, their case goes to Immigration Court. Immigration Court rulings are appealable to a Falls Church, Va.-based Board of Immigration Appeals and ultimately to the federal courts.

The court is supervised by Chief Immigration Judge William R. Robie. From his office in a blue-paneled skyscraper in Falls Church, near Washington, the 45-year-old Robie oversees 97 administrative law judges in 21 cities and detention centers.

It is a far cry from Congress’ first efforts to stem the flow of unwanted foreigners into the country. In 1875, the first major law was enacted to prohibit certain classes of foreigners--convicts and prostitutes--from entering the United States.

By 1940, the Justice Department was given control of the immigration system. In 1952, Congress passed the landmark Immigration and Nationality Act, which required that special inquiry officers appointed by the U.S. attorney general conduct deportation proceedings.

Agitation for more independent immigration proceedings resulted in a major change in 1983, when the Immigration Court was separated from the INS.

But in recent years, a debate has raged in the legal and immigrant communities over whether the system is working well.

The GAO concluded last year that the system of deporting aliens--in which Immigration Court plays a central role--should be overhauled by Congress.

The process is often so slow, the GAO found, that the law can be used to the defendant’s advantage, allowing the alien to remain in the United States for years. During that time, the alien can put down roots and establish a family, which gives further legal ammunition for remaining permanently.

In commenting on the GAO’s findings, the Justice Department said it was “limited in its ability to accelerate the deportation process” because even aliens have some protection under the U.S. Constitution.

On the other hand, immigrant rights advocates charge that, unlike other courts, files are not open to the public; defense lawyers need a judge’s approval to subpoena witnesses and defense lawyers often do not know how prosecution witnesses will testify until they take the stand. This contrasts sharply with criminal cases, in which defendants have the right of “discovery,” which allows them to examine evidence against them in advance of the trial.

Also, in Immigration Court there are no public defenders assigned to help indigent aliens. Instead, the court provides a list of local attorneys, some of whom will represent the alien at little or no cost.

Many immigrants don’t know “what is going on, either because of educational shortcomings or being from a country where such proceedings would be inconceivable,” said Jay Segal, a former immigration judge in Los Angeles.

To underscore his point, he recalled one deportation hearing in which an African student insisted upon kneeling during the entire proceeding.

Because proceedings in U.S. Immigration Court are civil--not criminal--aliens cannot be punished with the array of serious penalties available to judges presiding over criminal proceedings in the local and federal court systems.

But for those seeking political asylum, the threat of being sent back to their home country can be frightening.

The issue of whether the court has been evenhanded in dispensing justice has been a contentious topic among educators and lawyers familiar with the system.

Deborah E. Anker, an instructor at Harvard Law School, conducted a two-year study of 149 asylum cases in Boston’s Immigration Court. She found that only seven applicants were granted asylum and concluded that in many instances the judges’ decisions appeared to be governed by personal ideology.

She noted that judges often act as a “second prosecutor,” cross-examining aliens just as the INS prosecutors do in the courtroom.

Chief Immigration Judge Robie declined to be interviewed, but Gerald Hurwitz, a spokesman for the court, said Anker’s findings were unfounded.

“Our judges follow the law,” Hurwitz said. “They are upheld by the Board of Immigration Appeals, federal circuit courts and the Supreme Court, so we must be doing something right.”

Other attorneys, however, cited reversals by appellate courts.

The U.S. 9th Circuit Court of Appeals, whose jurisdiction includes California, “seems to think otherwise in light of the many reversals of BIA decisions in asylum cases,” said veteran San Francisco immigration attorney Milton D. Kramer.

Because of the mushrooming caseload, Robie has been accused of ordering his judges to accelerate cases to reduce the logjam. As a result, critics say, aliens often do not have enough time to fully present their cases.

“Robie is ‘fast-tracking’ cases,” said Maurice Roberts, a former chairman of the court’s immigration appeals panel who is now editor of Interpreter Releases, a Washington-based newsletter on immigration law.

Fast-tracking, said Roberts, “short-circuits justice to a degree. Each case must be given the time and attention it needs. (The judges) have a terrible problem because they have a lot of cases and not enough resources.”

No court better illustrates the logjam than Los Angeles, where corridors are crowded with immigrants--the majority of them Central Americans--who squint at bulletin boards that inform them in English where their cases will be heard.

Many of the immigrants had common experiences: They were arrested by INS agents or the Border Patrol, incarcerated at INS detention centers and brought before an immigration judge.

For the alien in detention, awaiting trial can be dispiriting. Cases can take up to a year to be heard and then last no more than half a day.

Many admit being in the United States illegally, but large numbers try to remain here by seeking political asylum. Initially, the burden of proof is on the government to prove that the aliens are not U.S. citizens. But once the asylum hearing begins, the burden shifts to the aliens to prove that they were persecuted in their homelands.

Day after day, aliens tell the judges horror stories about living in countries torn by civil strife. They give varying accounts of being threatened, beaten and kidnaped by local guerrillas or government troops.

The judge has already been given a recommendation from the U.S. State Department on whether the alien has a bona fide persecution case.

The Refugee Act of 1980 requires the government to judge asylum applications on whether the immigrant suffered persecution or has “a well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion. . . .”

Arthur C. Helton, an official with the New York-based Lawyers Committee for Human Rights, said the State Department takes a country’s politics into account, not just human rights violations, when considering an asylum application.

“The humanitarian purpose of the (Refugee) Act has been systematically subverted by political considerations,” Helton wrote in a study released last March. “Statistically, since 1980, an asylum seeker has had a 25% chance of winning asylum, yet the rate of approval for applicants from Communist or Communist-dominated countries has traditionally been from 50 to 80%.”

But Paula J. Dobriansky, until recently a deputy assistant secretary in the State Department’s Bureau of Human Rights and Humanitarian Affairs, said each petition “is reviewed based in the context of whether the applicant has a well-founded fear of persecution . . . (regardless) of Washington’s posture toward a country. It is not a political decision.”

Despite the controversy, the court has many defenders, too.

Former Immigration Judge Segal said that when he presided, “we were concerned about aliens having a fair hearing. I always felt I was sitting there with an eagle on my shoulder. I felt very responsible for (the aliens).”

Even some aliens, interviewed outside courtrooms, said they felt they could get a fair hearing.

“I am scared, but this is America and I believe I will be treated fairly,” said a Salvadoran woman who was seeking political asylum.

ASYLUM APPROVAL RATES

Chart compares the approval rates on requests for political asylum in cases before INS officials and immigration judges. The figures, from selected nationalities, are for the 1988-89 fiscal year. State Department officials say that political asylum requests are handled on a case-by-case basis. Critics claim, however, that Washington’s asylum decisions are swayed by political concerns.

INS IMMIGRATION JUDGES Cases Cases % Approved Cases Cases Country Granted Denied INS/ Immig. Judges Granted Denied *Romania 575 57 90.9% 65.2% 15 8 *Soviet Union 109 11 81.6% 23.0% 3 10 *China 98 23 80.9% 19.2% 10 42 *Iran 602 446 57.4% 48.1% 103 111 *Afghanistan 19 45 29.6% 64.0% 169 95 *Poland 285 688 29.2% 17.6% 39 183 *Cuba 76 186 29.0% 11.0% 81 653 *Nicaragua 3,617 10,486 25.6% 36.5% 580 1,008 *Haiti 3 82 3.5% 3.3% 15 436 *El Salvador 337 13,861 2.3% 13.0% 396 2,655 *Guatemala 67 3,325 1.9% 19.3% 102 425 *Honduras 14 1,009 1.3% 12.2% 22 158

Source: U.S. Committee For Refugees, based on data supplied by the Immigration and Naturalization Service and the Office of Immigration Review.