In honor of the new temporary exhibition Flight and Rescue, a panel of speakers discusses the asylum system in the United States. Kalala Kalao, a journalist from the former Zaire who was granted asylum in the U.S., and his volunteer lawyer offer personal testimony on going through the difficult and trying asylum process. The exhibition, Flight and Rescue, tells the story of a small number of Jews, mostly from Poland, who found refuge from Nazi and Soviet persecution with the assistance of Dutch and Japanese diplomats.
HYMAN BOOKBINDER: Well, now a formal good evening. Welcome to the Holocaust Memorial Museum. My name is Hyman Bookbinder, and I am a member of the Museum’s Committee on Conscience.
The Committee’s mission is to alert the national conscience and influence policymakers to confront and work to halt contemporary genocide and related crimes against humanity. It was created as part of the Museum, based on the belief that a memorial unresponsive to the future would also violate the memories of the past.
Tonight’s program will focus on America’s modern asylum system. Refugee and asylum issues have been an abiding concern of the Committee on Conscience. When genocide threatens, asylum, as U.N. High Commissioner for Refugees Sadako Ogata explained in a lecture here several years ago, “is the safest mechanism when all other human rights protections fail.” The history of the Holocaust, when asylum too often was not available, testifies to the truth of this statement.
We are presenting tonight’s program on asylum in conjunction with a new special exhibition called “Flight and Rescue.” After the program concludes, we would like to invite all of you to an informal reception which will be held on this level, next to the Children’s Tile Wall. During the reception, the Flight and Rescue Exhibition, which is also on this level, will be opened for you to walk through, and I encourage you to do so.
Now, to introduce tonight’s program, I would like to turn things over to Jerry Fowler. Jerry is the staff director of the Committee on Conscience, and also on the Adjunct Faculty at George Washington University Law School, where he teaches refugee and asylum law.
It is particularly appropriate that tonight’s program be chaired by Jerry, because he came to the Museum last year after a long search we had for just the right person to head this critical job. And we found him at the Lawyers Committee for Human Rights, which just happens to be the co-sponsor of this evening’s program.
JERRY FOWLER: Thank you, Booky, and thanks to all of you for coming this evening. We’re still waiting for Kalala, but we thought we’d go ahead and get started, and we’ll let him, if he gets here, jump in when he gets here. And if he doesn’t, then I sincerely apologize that we’ll be missing his input, which I think would be invaluable.
But we’ll keep our fingers crossed. I understand that one of the problems was that the president was on the move, and so that caused traffic to be stopped for quite awhile, and that may be the cause of his not being here yet.
Well, as Booky mentioned, tonight’s program is presented in conjunction with Flight and Rescue. That exhibition tells the story of a small number of Jews, mostly from Poland, who found refuge from Nazi and Soviet persecution with the assistance of Dutch and Japanese diplomats.
These Jews left Poland after Germany invaded in September 1939, fleeing to Lithuania. There, they sought the visas and other papers necessary to make it to a more secure haven. Many of them were able to leave Lithuania because the Dutch honorary consul, Jan Zwartendijk (phonetic), was willing to note in their passports that visas were not necessary for entry into the Dutch colony of Curacao in the West Indies. This was, strictly speaking, true, though actual admission to Curacao was in the discretion of the colonial governor. Zwartendijk was in no position to guarantee that these refugees would actually be admitted to the colony, and, in fact, research by Museum historians has determined that Curacao was not receptive to the entry of refugees. It even restricted the entry of Dutch nationals.
That was a moot point, however, because none of the refugees truly intended to go to Curacao. The significance of Zwartendijk’s notation was that it provided a basis for the Japanese consul, Chiuni Sugihara, to give the refugees Japanese transit visas, which technically were only available to those who had a destination beyond Japan.
As the desperation of the Jews became apparent, Sugihara exceeded his authority and issued the transit visas even to those who had no evidence of a final destination. These documents of such dubious validity made the difference between life and death. As a result of the efforts of Zwartendijk and Sugihara, some 2000 Jews were able to make it to the Far East and survive, while all that they left behind was annihilated.
Of course, a major challenge facing these refugees, like other Jews who sought to escape Nazi persecution, was finding a country that would give them refuge. One artifact in the Flight and Rescue Exhibit is particularly relevant to our program tonight, the original text from the National Archives of the Immigration Act of 1924. That act set strict national origin quotas that limited annual immigration to the United States by country. There was no provision in the law that allowed entry outside the quota limits to those who were fleeing persecution. There was, in other words, no formal system of asylum as exists today.
The human cost of the quota systems is illustrated by what happened to the St. Louis, a ship carrying over 900 Jewish refugees that left Hamburg in May 1939, bound for Havana. Turned away by the Cubans, the ship sailed within sight of the lights of Miami as the passengers pleaded to be allowed to enter the United States.
A telegram from the passengers to President Roosevelt went unanswered. More than 200 of the St. Louis’s passengers ultimately perished in the Holocaust, lives that could have been saved if they had been granted protection in the United States.
The immigration quotas were not the only barrier that prevented refugees from finding safety in the United States. One observer commented in December 1940 that “The State Department does not refused visas; it merely sets up a line of obstacles stretching from Washington to Lisbon to Shanghai.” Those obstacles included a directive to consuls in Germany not to give visas to German citizens unless they had passports and permission to leave the country. Consular officials also required evidence of a booking on a ship scheduled to sale within four months, as well as the ability to pay for passage and affidavits of support form American relatives. As a consequence of these restrictions, out of the 790 applicants in Germany whose numbers came up in October, 1939, for example, fewer than 100 qualified for a visa.
Generally explaining his Department’s administration of the immigration law, Assistant Secretary of State Breckenridge Long testified to Congress in 1943 that “The historic attitude of the United States as a haven for the oppressed has not changed. The Department of State has kept the door open. It has been carefully screened,” he said, “but the door is open.”
How wide the door was open is subject to debate. The total annual quota was never filled between 1933 and 1944. Indeed, it never exceeded 54 percent of what the law allowed. Even the quota for Germany was not filled in 11 out of those 12 years. This was not because people did not apply for visas. When the Nazis imposed their Final Solution to the Jewish question, thousands upon thousands died who had applied for entry to the United States, even before the War began.
When the UN high commissioner for refugees spoke here in 1997, she commented that, “In looking back, the refugees issues of the 1930s and 1940s seem simple. From our vantage point today, this haunting memory of people trapped behind borders was simply part of the world’s large moral failure to confront persecution and genocide. Yet at the time,” she said, “the issues seemed to be as complex as similar issues appear today.”
Recognition of that moral failure that the High Commissioner referred to led to important developments after World War II. In 1948, the Universal Declaration of Human Rights proclaimed that everyone has the right to seek and enjoy asylum from persecution. In 1950, the high commissioner’s office was created. And in 1951, an international convention laid the foundation for the basis international obligation not to return people to countries where their life or freedom would be threatened, an obligation that the United States accepted in 1968.
U.S. law after the war was changed to accord more protection to those fleeing persecution, culminating with passage of the Refugee Act of 1980, which permitted asylum for those who arrive here with a “Well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
That brings us to tonight’s program. How is this asylum system working? To explore this question, we are very fortunate to have Barbara Bradley of National Public Radio, and we are very fortunate now to have Kalala Kalao, a journalist from the former Zaire who was granted asylum in the United States in 1994; Mitch Zamoff, the volunteer lawyer who helped him win asylum and get his family away from the danger they faced at home; and Professor Philip Schrag of Georgetown Law School, author of the new book, A Well-Founded Fear: The Congressional Battle to Save Political Asylum in America.
Before turning the program over to Barbara, just a few things more. First, I would like to extend a special thanks to the Lawyers’ Committee for Human Rights for making this evening possible. As you will hear, Kalala and Mitch were brought together by the Lawyers’ Committee, whose asylum representation program obtains free legal assistance for hundreds of refugees.
Second, you should have received an index card as you came in. If a question occurs to you that you would like to have asked, please write it down and a staff member will collect it. Those index cards are attached to evaluation forms. If you would be so kind as to fill out the evaluation and give it to our staff on the way out, we will give you a pass to the Museum’s permanent exhibition that is good for any time between now and the end of the year.
Finally, please do stay for the informal reception afterward, and feel free to wander through the Flight and Rescue Exhibition. It is truly an amazing exhibition.
Our bookstore also has a satellite shop that will be open on this level, and it will have some books for sale related to this program and to Flight and Rescue. In particular, Phil’s book will be available, and I suspect that he would be happy to sign any and all copies that you purchase. In fact, the more you purchase, the more he’ll be willing to sign them.
So now I’ll turn it over to Barbara. Thank you.
BARBARA BRADLEY: Jerry, that was a terrific background to the story that we’re going to hear tonight. And what I think we need to do is kind of set the stage. We are so happy you’re here, I can’t tell you. We’re delighted that you’re here.
What I want to do is kind of set the stage. It’s 1993, and it’s in the former Zaire, and President Mobutu Sese Seko is still in power. And as I understand it, he didn’t have a whole lot of patience for a media that criticized him very much. That’s the setting when you come in. You’re 26 years old, and you started a newspaper, right, called “The Storm of Tropics.”
And why don’t you tell us, Kalala, what the situation was, how he liked your newspaper, and what happened when you began to publish a series of articles that displeased him?
KALALA KALAO: Thank you. First of all, please forgive my English. It’s broken; I’m still learning.
By the time I decide to write a newspaper, La Tempête de Tropique, we didn’t have a freedom of the press in our country. We had a president who had been in power for 32 years. I and some friends decide -- I said, okay, we have to do something if we have to bring freedom of the press in this country.
By that time, everyone in our country knew that Mobutu was staying in power because he has support from foreign countries, western countries. He has the army, which was served in by the people from his tribe. But no one could bring this up and prove to show to the world that all the people who were in the army were from Mobutu’s tribe. And no one could try to do it.
I decide, I said, we have to bring that out and then to show the proof that people who are in the army, they are from Mobutu’s tribe. That’s why the army is doing everything to keep Mobutu in power. At that time, I did an investigation to get all the information, from where the people went to school, all the generals from the army, what they did to get those positions. I decide to publish the investigation, which was a three-series article.
The first when we decided we were going to do my investigation, my wife, she has to leave, because she knew. She advised me, said, “No, you don’t have to publish this, because if you publish this story, it’s going to be over for us.”
BARBARA BRADLEY: Now, you had only been married a little while, right, at that point?
KALALA KALAO: At that point, we just got married. My father-in-law decides to take my wife from my home, and said, “No, if you want to publish that, I don’t want my daughter to be with you, because I don’t know what is going to happen to my daughter.”
But I already decided to do my job, and then I published the first series with an undercover name.
BARBARA BRADLEY: With an undercover name?
KALALA KALAO: Yes, the first one.
BARBARA BRADLEY: Now, how widely were they distributed, and did they create much of a reaction?
KALALA KALAO: Yes. The second day, by 6:30, there were not any more newspapers in the market. There were newspapers in the market, and --
BARBARA BRADLEY: Sold out.
KALALA KALAO: The people had to make copies, and they are selling copies on the street, and that was the first article.
But everyone on my staff in the country and then people from western embassies, they have to call me to say congratulations. At that day, that time, the Secret Service start looking for me, and I was not staying anymore to my residence. The next day, I published the second article with my name. At that point, they have proof and they decide to put a hand on me.
BARBARA BRADLEY: Now, this was August of 1993?
KALALA KALAO: ’93.
BARBARA BRADLEY: And they caught you?
KALALA KALAO: They didn’t get me the second day. Then the third day, I published another article about the army. The day after, they catch me.
BARBARA BRADLEY: And you got sent to prison, is that right, jail, for about a month?
KALALA KALAO: Yes, because I stayed 27 days in Mobutu’s prison.
BARBARA BRADLEY: And what were the conditions like? Were you well treated?
KALALA KALAO: It’s very, very difficult for someone who is living here to get an idea of what is that kind of prison. You don’t have food. There’s no drink. There is electric shock torture, 24 hours. It was so, so difficult, very difficult.
BARBARA BRADLEY: How did you end up getting out?
KALALA KALAO: The Western countries, the United States, France, Belgium, England, and some human rights organizations, the Lawyer’s Committee for Human Rights, the International Ministry, the Committee to Protect Journalists, they had to do pressure on the government. And CPJ, the Committee to Protect Journalists, has to send the people, the Amnesty International in Zaire, and then that’s how I get out.
BARBARA BRADLEY: A few months went by, and you lived peacefully for a little while, and then you got an invitation, right? Tell us how you got to the U.S.
KALALA KALAO: No. At that point when they released me, was under the pressure of the United States, the State Department’s hand, the letters of the people, Belgium, France, Canada.
When they released me, there were some conditions. They said if I want to be still a journalist, I don’t have to write about economics or politics. It has to be music or sports. Also, they said I cannot go far from the city capital, go out more than 80 miles.
BARBARA BRADLEY: Eighty miles?
KALALA KALAO: Yes.
BARBARA BRADLEY: And you obeyed these edicts?
KALALA KALAO: I was thinking, because they had a Secret Service, I was under house arrest. I would not go out, and then I don’t even have friends, because the people would not visit me, because the people were scared, if you visit me, you will go to jail, because for the Zairian government at that time, I was being seen as spy for the United States.
BARBARA BRADLEY: As I understand it, you also didn’t just write about sports and music, right; you also wrote about economics?
KALALA KALAO: Yes. When they said, oh, you don’t have to write any more about economics and politics, the next day, I wrote an article about the new prime minister, about economics, and then I published that. And then the arrest minister said “Okay, this is enough. This time it’s over.”
BARBARA BRADLEY: “It’s over.” Then you ended up coming to the United States. It was kind of an unusual route for most people.
KALALA KALAO: Yes. When they invited me to come to the United States, they were not sure that they will let me to get out and to come to the United States. And then at that time --
BARBARA BRADLEY: Now, wait, I’m sorry. You got invited to come to the United States to receive an award, right?
KALALA KALAO: Yeah. I was invited by the National Press Club and the Committee to Protect Journalists in New York to get an International Freedom of the Press Award for 1994. But they knew that the government wouldn’t let me get out from the country, and we had to find the way with the American Embassy, how I can get out of the country.
BARBARA BRADLEY: So what did you do?
KALALA KALAO: I don’t exactly know what the expression is in English, but I had to leave--
JERRY FOWLER: Wore a disguise.
KALALA KALAO: Wear a disguise.
BARBARA BRADLEY: You grew a beard?
KALALA KALAO: Yes, and then they find the glasses, some clothes, and then they had to put me on a boat. I have to go to other side of the country, and to another country, and then from there, to take a flight to the United States, and then to change my ID and everything.
But even that, when we got in the boat in the middle of the river, a secret agent recognized me. They decide to ask, “Okay, the boat has to go back to the other side.” We went back to the Zairian side, and then they said, “Okay, where are you trying to go?”
Then they put me in jail, and then they have to get money. The American Embassy gave some money, and then that’s how they get me out. They have to give money to those people -- I don’t know how you call it in English. They are not officers. They have a boat; they can go buy stuff from another country, come to another country, but they are not official.
BARBARA BRADLEY: Oh, I see. Smugglers?
KALALA KALAO: Yes. Then the U.S. Embassy has to organize with those people, and they have to come pick up me by night from -- I escaped from the jail and then I went to Congo, Brazzaville.
BARBARA BRADLEY: I see. So the U.S. Embassy was arranging for you to work with smugglers to get out?
KALALA KALAO: Yes.
BARBARA BRADLEY: That’s classic.
So then you come to the United States. Now, how did they find out? How did President Mobutu find out you were in the United States?
KALALA KALAO: When I left, he didn’t know that I had already left the country. He knew the day I visited the White House. And then they put an announcement that I was seen at the White House. That’s how he knew I was already outside the country.
BARBARA BRADLEY: They heard the Voice of America, right?
KALALA KALAO: Yes, I was invited by Voice of America for an interview. That’s how he knew I was out of the country.
BARBARA BRADLEY: So there you are in the United States; he thinks you are still in the capital city. What were the repercussions? What happened to your wife, and what happened after that?
KALALA KALAO: Okay. When they knew that I was in the United States, and then the minister went, and also the TV and the radio, they said, you see this is the proof, this guy was a spy for the Americans. You see how they did everything and how he can go and be received at the White House. This is the proof that he was working for the American government. They took over control of my newspaper printing company, house, and then they arrest my wife.
BARBARA BRADLEY: They arrest your wife. Now, at that point, she --
KALALA KALAO: She was pregnant.
BARBARA BRADLEY: How far along was she?
KALALA KALAO: Well, she was about 7 months pregnant.
BARBARA BRADLEY: Was she in jail very long?
KALALA KALAO: Yeah, even if you are in jail in that country for 2 hours, it’s different. It’s not like here. It’s very, very different.
BARBARA BRADLEY: You wanted to get her out?
KALALA KALAO: Yes. They put her in jail for the first time for 3 days. She didn’t eat, she didn’t drink, and then she was tortured. At that point, I was here and didn’t know that, and the State Department called the National Press Club to let me know that my wife was arrested.
BARBARA BRADLEY: Mitch, let me jump in here and pull you into the conversation. How did you and Kalala meet up?
MITCH ZAMOFF: I was working at the law firm of Hogan and Hartson in Washington, D.C., at the time, I had been there about one year. Kalala’s situation was brought to the law firm’s attention by the Lawyers’ Committee for Human Rights. The opportunity was presented to us to take his case on a pro bono basis, and I volunteered to take his case. The mission was to get Kalala political asylum, which then triggered the ability for his wife to come here on what’s called a relative petition.
BARBARA BRADLEY: Right. Now, when you first met him, did you think he had a compelling story? I mean, what was your impression?
MITCH ZAMOFF: Well, I was extremely impressed by Kalala. In view of the fact that my French consists of speaking English very slowly and loudly, it took us a little while to communicate initially. But through the use of some people in our office, we were able to communicate.
I don’t think the merits of Kalala’s case were ever the issue. His case was compelling; he was compelling. It was the need for expedited resolution of the case that really made his situation special, because the asylum wheels, even when they turn favorably for people, don’t normally turn that fast. So we needed to compile a lot of information quickly and present his case in a way that we could get an expedited resolution of it.
BARBARA BRADLEY: And you did. I mean, you managed, what, within a couple of weeks?
MITCH ZAMOFF: Right. I don’t recall the exact number of days, but it was probably a few weeks where we were able to get asylum for Kalala. I believe the date was May 12th of 1994 when it was officially granted. And they were a very intense few weeks of interviews and preparation and soliciting outside parties to exert influence on the INS to reach a fast result.
BARBARA BRADLEY: Actually, I’m curious about this. The INS, were they fairly cooperative, or was there a lot of red tape?
MITCH ZAMOFF: It’s strange system. I don’t know how many of you have navigated it before. But for -- even for lawyers, it’s kind of a different world. And a lot of the red tape was cut through in this case, because, quite honestly, special favors, I think, were being done because of how compelling Kalala’s situation was.
He happened to have people who knew about him and cared about him in pretty high places. I’ve encountered much more red tape in other asylum cases that I handled with clients who were less well known than Kalala. But it still is foreign turf for people who aren’t familiar with the system, and it took some time to understand the lay of the land.
BARBARA BRADLEY: Right. Kalala, you didn’t want to actually emigrate here; did you? You wanted to go back, from what I --
KALALA KALAO: Yeah. I didn’t want to stay here for two reasons. One of the reasons is, the system is so difficult, hard to stay for people who are foreign, to survive here when you get here. I’m French-speaking, and here is English. That’s the first reason. The second one, I didn’t want to stay here because, as I was saying, that if we have to get a change in our country, there have to be some people who have to pay the price. And then my wife was arrested, and then I didn’t want to stay here.
BARBARA BRADLEY: So was it your wife’s arrest that changed your mind on that, that you felt that it was no longer safe?
KALALA KALAO: Some people had to convince me, but I didn’t like to stay here. I didn’t like it. I didn’t like it, because the system was so different. I didn’t see much I could do by staying here, and my first choice was, as much as I can recall, was to go to Canada or Belgium or France.
BARBARA BRADLEY: I see.
MITCH ZAMOFF: But we talked him out of it.
BARBARA BRADLEY: Actually, and this is something that we could probably talk about a little bit later, but are there any special tricks of the trade that you need to negotiate? I mean, there are five grounds to get political asylum, right? And, obviously in this case, it was -- why don’t you talk about what those are, and where he fell in the category, and how, you know, difficult it is?
MITCH ZAMOFF: Well, much of asylum law is fact-based. I mean, the standard is what the standard is, and that is a well-founded fear of persecution, based on a number of factors, which include race, nationality, religion, membership in a social group, and political opinion.
There’s no great, I don’t think, tricks to doing these cases, other than marshaling the facts as best as you can. Normally you have somebody from another country who has a pretty horrible story to tell, and I think your job as the lawyer is then to gather as much information as you can to independently corroborate the story that’s told by your client.
In this case, Kalala had corroboration coming from the State Department Country Report. I mean, his case was written about in many publications, so the corroboration was easier to get here. The corroboration on Kalala was on his body. I mean, in the asylum interview, he lifted up his shirt and showed the interviewer where he was tortured, and the marks that still remained from that. So there was a lot of corroboration here.
Kalala just about hit the jackpot in terms of all the different categories of persecution. I mean, he was a member of the chief opposition political party; he was a member of the press; he was Catholic; he was a member of a tribe that was traditionally persecuted by Mobutu.
So we had a lot to work with in Kalala’s case. But not every case is as well documented, and there are many challenges there, particularly people from faraway lands, to provide the corroboration needed to meet the proof that you need to provide.
BARBARA BRADLEY: I just have to ask one thing. It’s such a media type of question. But you were under a bit of a deadline, because your wife was going to have a baby, I mean, any day now. What was that scene like when she finally arrived? Was it difficult for her to get out of the country, and what did you think when she finally got off that plane?
KALALA KALAO: Yeah, I knew this was difficult for her to get out of the country, but Mitch and Tim Carlson, all the time, they were saying, you don’t have to worry. Things are taken care of.
MITCH ZAMOFF: He lied to us, Barbara. See, Kalala told us that his wife was about 6 months pregnant, when she was, in fact, 8 months pregnant, and were rushing around, because we thought it was unsafe for a pregnant woman to fly after about the 6- or 7-month mark. When she got off the plane, I was like, “Kalala, I mean, something’s not right here.” She was pretty large. So then he came clean at that point, and, in fact, she was a lot further along than he had led on.
But it was a great reunion. I thought that it was a pretty great reunion that we had in the airport here when she got off the plane.
BARBARA BRADLEY: Great.
Phil Schrag, I want to bring you in, too, because you’re kind of our resident expert on the history of the asylum law. But, first, I want you to tell us how you got involved. You got interested in asylum law in this very building, right?
PHILIP SCHRAG: Yes. In 1994, I had been teaching at Georgetown Law School for about 14 years, doing the same thing much of that time. I was the co-director of a clinical program, a clinical program which was a program in which law students give free legal help to actual clients for academic credit, and they learn the law while doing a public service. They do this under the supervision of professors.
I had been doing this clinic in two fields: Social Security disability work, representing disabled people who the Government said weren’t disabled enough to qualify for Social Security benefits, and consumer protection work.
I was a little bit burnt out after having worked on the same kinds of cases for 14 years. More important, the students didn’t seem to have their hearts in it. The issues of international human rights were all the rage, and in the law school, several hundred students petitioned the school to create a human rights clinic of some sort.
Just about that time, this Museum had opened. And my father-in-law came to town, and my wife and I brought him to this Museum, for my first visit. And I was blown away by the exhibit upstairs on the fourth floor that Jerry Fowler described about the St. Louis, seeing that our country, during the late 1930s, was turning away people whose last chance was to come to the United States, and who, as they cruised off our shores, could see the lights of Miami, but were not allowed to land and were sent back to their deaths in Europe.
At that time, the Museum had, just a few feet away from us, a small, temporary exhibit on Bosnia, a very, very small exhibit. But it quietly made the point that the same kinds of horrors were going on in the world, not on the scale that had occurred in the Holocaust, but people were still being subjected to death because of their ethnic identities.
It dawned on me that I could do something about this. I converted; I became a refugee lawyer. I converted my clinic into an asylum clinic, and my students, for the last 5 years, have been representing asylum-seekers in the United States, just as Mitch represented Mr. Kalao. In fact, one of my students is here in the audience tonight, who has recently successfully represented a Sudanese woman who was in terrible danger back in her own country.
BARBARA BRADLEY: What’s your batting average?
PHILIP SCHRAG: Before I give you a number, I have to explain. Like any lawyer, I have to give you the footnote first, right?
There are two stages in the asylum process. You’ve just heard about the type of process in which an asylum applicant goes to the government and says, “Please grant me asylum,” and the Immigration and Naturalization Service interviews the client -- in this case, Mr. Kalao -- and makes a decision.
If the asylum officer who hears the case decides that it’s not a good case -- either he doesn’t believe the person or he says the person doesn’t qualify on one of the statutory grounds -- then the client is placed in deportation proceedings. The applicant is placed in deportation proceedings and has one last chance to get asylum. And that is to convince a judge, an immigration judge, who is independent of the Immigration Service, that he or she deserves asylum.
My clinic only takes those hard cases, cases that the government has already turned down. And at this point, in this second stage where we’re before a judge, instead of the Immigration Service being neutral in deciding the case, the Immigration Service sends a lawyer in to oppose asylum and to find all the holes in the case, and it becomes a knock-down, drag-out trial. That’s what my students do.
We win about 85 to 90 percent of those cases. We do it after the students spend -- we put two students on a case for a whole semester, and they spend a total of about a thousand person-hours on each case.
BARBARA BRADLEY: Amazing. The judges must get blown away.
PHILIP SCHRAG: The judges are significantly impressed by the job the students do. They provide documentation, often running into thousands of pages of documents, not only human rights reports, but also many affidavits, experts’ reports, documentation of their individual client’s situation in their country, medical records, expert testimony and so forth.
And then there’s a full-dress hearing, which sometimes can last several days, while the judge hears oral testimony and expert testimony, and the Justice Department lawyer cross examines the equivalent of Mr. Kalao and tries to poke holes in their stories.
BARBARA BRADLEY: The first story I ever did for National Public Radio was just about 4 years ago, and it was the case of Fauziya Kasinga. I don’t know if any of you all remember that case.
It was a woman from Togo who didn’t want to go back because of female genital mutilation. At that point, there was a question of whether this kind of gender-based persecution, whether this was, in fact, persecution. The student who did her case was not actually in a clinic program, but she was a student at American University Law School, and ended up winning her case on appeal. Fauziya had been in detention for more than a year, and ended up winning the case, and actually kind of opened the door to gender-based persecution claims. So kids can do great things, in other words; that’s the headline on that one.
Kalala’s case happened in 1994. Let’s fast-forward a couple of years. In 1996, things change, right? Tell what happened. What happened on Capitol Hill; what was the climate?
PHILIP SCHRAG: Things are lot tougher for asylum applicants now. In the early 1990s, you will recall that there was a recession which hit California particularly hard. And public opinion, as the recession hit California, turned rapidly against immigrants. It was most seriously directed against undocumented aliens, because they were seen to be competing for jobs with Americans. But many people didn’t distinguish between undocumented aliens, legal aliens, and that special case of legal aliens, refugees like Mr. Kalao.
The election of 1994 pitted Governor Pete Wilson of California against a Democratic opponent who was 20 points ahead of him in the polls. At the same time, Proposition 187 was on the ballot in California, to deny welfare rights to undocumented aliens. The Proposition was running way ahead of Pete Wilson, and Pete Wilson saw the writing on the wall, and he quickly embraced Proposition 187, endorsed it, and ended up winning the election.
When he won that election, after having been 20 points behind, members of Congress took note, and an anti-immigrant sentiment quickly swept over the Congress, at just the time that the Congress changed hands politically. The elections swept into power people who had been in opposition to the liberal asylum and refugee laws that the Democratic Party had advocated, and there was a big battle in Congress. And, of course, the ends of any battle are compromise. The compromise that resulted from the legislative battle that my book documents imposed three new restrictions on asylum.
The first was a one-year deadline; that is, if you arrive in the United States and then wait more than a year before you apply for asylum, you can’t get asylum, no matter how strong your case, no matter how compelling your case, how badly you’ve been tortured, unless you fit into one of a couple of narrow exceptions in the law.
At present, our government is turning away about 1,600 people a year, without even investigating the merits of their case, simply because they have not met this deadline: 1,600 Kalalas who may be sent back home -- who are being sent back home every year -- regardless of the strength of their asylum claim, because of this.
BARBARA BRADLEY: I mean, isn’t it true that a lot of people just wouldn’t know that there was this deadline? I mean, the clock was ticking and --
PHILIP SCHRAG: A lot of people don’t even know that there is an asylum law for more than a year. A lot of people don’t speak English when they arrive. A lot of people hear through word of mouth that you can’t easily win a case like this without a lawyer. And they’re not allowed to work while they’re in the United States until they get asylum, so they can’t pay a lawyer.
Well, there are free legal services programs for poor people, you might say, but Congress has passed a special law saying that those free legal services programs can’t represent asylum applicants. So they can’t work to get money. They have to forage for food in the forest for food or something, right, or be dependent on private charitable contributions from religious groups or family members in the United States. Somehow they have to live; somehow they have to present their case.
For many of them, the last thing on their mind is asylum. They have to live; they have to survive for that first year. They have to learn the language and learn to navigate our country. Then on top of that, many people like Mr. Kalao really want to go home. They’re waiting for their dictator to be overthrown, and their family members are still back in danger. The last thing they want to do is pull up roots, give up on their home countries, and apply for asylum in the United States. So they wait, and then they lose.
BARBARA BRADLEY: Now, you mentioned that there were three things. Expedited removal is another one.
PHILIP SCHRAG: The second provision that Congress added was a provision on expedited removal. Until 1997, if you arrived in the United States by any means -- got to an airport or landed in the United States and wanted asylum -- you got a hearing before a judge. It was hard to win the hearing; the government might oppose you; it might take a thousand hours of student time to get your case heard. But you’d get a hearing.
Congress passed a new law saying that if you arrived without the proper visa papers -- in other words, with papers like those that Sugihara, who we’re honoring today in this exhibit, provided against the authorization or beyond the authorization of his government -- if you came to the United States without proper travel papers, then an inspector at the airport can send you home on the next plane and you don’t get to see the judge.
Now, the inspector isn’t supposed to send you home on the next plane if you express a fear of going home. But are the inspectors trained enough to know whether you’re expressing a fear? Are they sending home people who really are good asylum applicants and would win asylum in the United States? We don’t know, because the government --
PHILIP SCHRAG: -- allowed any independent observer from religious or human rights groups to watch these airport interviews to see whether the inspectors at the booths are putting people improperly on the next plane.
BARBARA BRADLEY: Do we have any idea how many people are on the next plane home?
PHILIP SCHRAG: We have no idea what is happening under this provision at the airport.
What we do know is that of the people who get sent on by the inspectors, by the airport inspectors to the next stage, what happens at the next stage is that you get a kind of cursory interview by a government official from the INS. We know that that stage isn’t working too badly. About 80 percent to 90 percent -- a little over 80 percent -- of the people who are given these interviews to determine whether they have a plausible case for asylum, what’s called a credible fear of persecution, about 80 percent of those are given hearings with judges.
What about the other 20 percent? There could be errors there. One of the other stories that you did for NPR was a story of an Albanian woman who had been raped because her husband was politically active in Albania. She tried to persuade the system, through these credible fear interviews, that she was at risk of going home, if she was sent back to Albania. She wasn’t believed, and she was sent home, and she was put on a plane and sent to Albania. And the only reason that she ever got a chance was because you had interviewed her and she was on the front page of the New York Times as well, and she became something of a cause celebre. The New York Times went to Albania and tracked her down.
BARBARA BRADLEY: The New York Times?
PHILIP SCHRAG: The New York Times reporter tracked her down in Albania, and found that after she was put on the plane, she had not gone back to her village. She was in hiding in Albania in another village. And the New York Times reporter found her there, sent her to a psychologist for a psychological interview. The psychologist found that she was depressed and suicidal because she was so fearful of going back to her own village.
At that point, there was another story in the New York Times, and the INS -- this is unheard of; this never happens -- the INS sent somebody, some government official -- to Albania to bring her back to the United States for an interview. It just so happened that not only was she an interviewee on NPR and on the front page of the New York Times; she was also a plaintiff in a lawsuit that was pending against the constitutionality of the new law, a lawsuit which eventually lost.
BARBARA BRADLEY: Right.
PHILIP SCHRAG: But she was a cause celebre, and the government went to special efforts, just as there were special efforts in Mr. Kalao’s case. But that doesn’t happen very often.
BARBARA BRADLEY: Actually, you bring up a very interesting point, one of which is the sensitivity to media that the INS appears to have, which is great, in my opinion. I’m with the media, right?
But one of the dramatic things that I found -- I found this with that first story that I did about Fauziya Kasinga -- is that on the whole, they take these immigration court hearings and unlike other court hearings, you can actually do a Freedom of Information Act request and get the lawyer to sign it, and they will give you the tape.
The dramatic thing about the Kasinga case was that in the Kasinga case, what essentially happened is, the Immigration judge was taunting her. After he denied asylum, he said, “You know, do you understand I’m sending you home?” And, “Hello? Hello? Do you understand?” Well, the poor judge. I got a hold of this tape, all right, and it aired on NPR. And so I’ve never met him. I suspect we won’t.
But then in the other case, in this other case of the Albanian woman, probably the most dramatic piece of tape I’ve ever heard in my life was the tape of the Immigration judge’s hearing where this woman was describing, in Albanian -- is that what you call it, Albanian? In the Albanian language, what was happening to her, why she had fled.
And the judge was asking her, “Well, what happened on this certain day?” And you’d hear her kind of melodious voice, very soft, saying, “Well, four men came in.”
“And, well, who were they?”
“I don’t know; they were masked.”
And, you know, you went through this iterative process where you’d hear her talking and slowly breaking down. And then you’d hear the translation, and the judge increasingly not believing her as she explained how, you know, they separated her from her children and raped her and all of this stuff.
You know, you sat there -- I think we played about a minute of that tape on NPR. It got a pretty big response, actually.
PHILIP SCHRAG: One of the other things on the tape was the judge saying to her lawyer, “You may be her lawyer, but I will not allow you to speak in this courtroom. You may just sit there and observe, but you may not participate in the proceedings.”
So far as I know, this is the only type of proceeding -- what we’re talking about here is an appeal from a denial of a credible fear finding, that is, after the asylum officer has found you don’t have credible fear and you can’t go to the judge -- you can actually ask the judge to reverse that, just that piece of it, and get you a real hearing.
But in that proceeding where you’re asking the judge -- and this is what you were hearing on that tape; you’re asking the judge to reverse the asylum officer -- your lawyer is not allowed to participate. As far as I know, that’s the only adversary court proceeding in America where lawyers are barred from speaking for their clients.
BARBARA BRADLEY: Right, right. So we’ve got this kind of black box that’s called an expedited removal. For all we know, it could be actually working very well. We actually just don’t know.
PHILIP SCHRAG: We don’t know.
BARBARA BRADLEY: There is a third kind of provision in this, which, to tell you the truth, I wasn’t very aware of until you told me about it the other day.
PHILIP SCHRAG: Another thing in the 1996 legislation that Congress passed directed the Immigration and Naturalization Service to set up little outposts at airports around the world, so that improper visas or forged documents could be detected at the Paris airport and the London airport. Rather than allowing the person to come into the United States where the documents are detected, false documents are detected at the New York airport or the D.C. airport, or where the person could say, “Here I am; I’ve got a false document, but I want asylum, and I get a hearing.”
The problem with the detection occurring overseas is that under the statute, under the law, you’re not entitled to ask for asylum unless you physically land in the United States, unless you’re physically here. So that if you are a boat person and you arrive in a boat from Haiti or Cuba and you don’t set foot on dry land -- the Coast Guard intercepts you 20 meters offshore and you never get foot on dry land -- you can be sent back without a hearing. But if you get a foot on dry land -- this is called the “wet-foot/dry-foot policy” -- if you get a foot on dry land, you can ask for asylum.
Well, this provision of the law, the establishment of outposts at the foreign airports, threatens to close down asylum in the long run, because to the extent that people are arriving without proper visas and can’t arrive, they’re not going to be allowed to ask for asylum.
BARBARA BRADLEY: That actually brings me to my last question. I know that some people have questions that they may have written down, so maybe this is a good time to collect them. But let me ask you one other question.
That kind of brings me to this point, and I don’t know if it’s true. Are we in a little bit of danger of kind of replicating some of the mistakes that we made during the Holocaust period?
PHILIP SCHRAG: Well, we’re far beyond where we were in the Holocaust. For example, you mentioned media sensitivity. The story of the St. Louis was on the front pages of the newspapers while it was happening. The media picked it up. But American immigration policy was not sensitive to media coverage at that time as it is today. That’s a major area of progress, for example.
We have on the books a formal asylum law and procedure. There are about 10,000 people granted asylum a year. We also have about 80,000 people a year who come to the United States under what is called the Overseas Refugee Program, which was established by 1980 legislation, people identified by the State Department abroad who are also refugees. They don’t have to come to the United States on their own and take their chances with the asylum process. They are brought here with legal immigration status as refugees.
This program has been used mainly over the last 15 years to bring in Jews from the former Soviet Union and Indochinese/Vietnamese War and Laotian War refugees and Cambodians. But in the future, it could be much more effective. Over time, the percentage of Africans who are in danger, who are coming here through this law, has been increasing. It’s now 14,000 a year out of the 80,000, much more than it used to be, and this is another hopeful sign.
I think that what happened in 1995 was a low-water mark. We had, I think, a very temporary confluence of events, particularly a drop in public support for immigration that has not occurred since. I think we’re back on the upswing in terms of support for refugees and immigrants.
BARBARA BRADLEY: Great. Kalala, here’s a question for you. Was your wife aware that you were attempting to flee the country under disguise, and what did she think about that?
KALALA KALAO: No, she didn’t know. Nobody know. I did not want to tell anyone, because I knew if someone was aware that I was trying to leave the country, I would have been in danger.
BARBARA BRADLEY: Do you have any idea what she did when she found out?
KALALA KALAO: Yeah. By the time when I got outside of the country, and then the people from my embassy tried to let her know that’s that I leave the country.
BARBARA BRADLEY: And this next one is for you, Mitch. Had you had previous experience in asylum cases? You mentioned the pressure that you had to put on. What kind of pressure were you talking about? Was it on the INS? Was it on Congress, getting Congressional help? What kind of pressure?
MITCH ZAMOFF: The answer to the first part is no. The answer to the second part is, we were trying to exert pressure on the INS to speed up its interview process. It’s not typical for someone to get an interview 2 weeks after their application is filed.
So we reached out for Congesspeople with knowledge of Kalala’s case, organizations with respect to the freedom of the press, and had them informally lobby the INS through letter-writing and other means to have that hearing expedited.
I will say this, though, that it’s not that hard to learn how to do these cases. Certainly most of the law firms in town, if that’s where any of you are at or are inclined to go, have a pretty standard body of knowledge on this kind of case. It’s very doable. I mean, it was just a matter of assembling a large amount of information and doing it persuasively and quickly.
BARBARA BRADLEY: I’m curious, and either of you can probably answer this. What happens when an asylum applicant has no documentation or no evidence of torture or persecution?
PHILIP SCHRAG: Those are actually not that uncommon, those cases. People have to flee, sometimes with no identity documents of any kind, and their families have been killed back home, so that it’s very hard to get information. Or they may have families back home who are terrified of providing any information. Their phones are tapped and their houses are watched, and it becomes very difficult to collect evidence.
This is why my students actually have to spend so much time on each case. We have to smuggle documents out from some of these countries. We have to get people to safe places from which they can fax documents, because fax is a little less tappable than telephone. Some programs use encryption e-mail to get information back and forth from one place to another. Sometimes we find intermediaries who are physically going to the person’s country and who can smuggle documents out, identity documents and information proving they were in jail and things like that. It’s very difficult.
BARBARA BRADLEY: Right.
KALALA KALAO: I would like to say something regarding documentation. Like in my case, at the time I left my country, I didn’t have my proper ID. What we did is, the U.S. Embassy took all of my documents and all of my papers, and they put them in a diplomatic luggage, and they send to another country. I went to pick up all of my ID from that country. But if you don’t have that chance to bring the stuff to you, it’s so difficult.
PHILIP SCHRAG: I have to say that this is the only case I’ve ever heard of where the American Embassy in the country was actually working to help develop the asylum case. Usually we have much more difficulty than that.
BARBARA BRADLEY: Another difficulty, especially when you’re charting kind of new territory, is when the country is not considered a country that persecutes. Recently I did a story on a Jordanian woman who had slept with the man she wanted to marry before they were married. So basically they knew that she would be killed in an honor killing to kind of preserve the family’s honor, if she didn’t escape. She and her fiancé escaped to the United States.
One of the difficulties that’s actually now being litigated is that Jordan doesn’t actually sanction, officially, honor killings. I mean, if you kill someone, you do get punished, even if it’s an honor killing. The problem is that you get punished; you get 6 months in jail or maybe 2 years in jail, as opposed to capital punishment. So there’s definitely a discrepancy.
But what does the U.S. do when a country that is considered an ally and not considered a persecuting country is faced with a case where the woman will surely, surely be killed? I mean, she had letters from her sister saying “Don’t come back; father has gathered the family together and everyone will kill you if you come back.” So there’s a dilemma also when a country isn’t known to be a persecuting country. It’s interesting.
I had a really good one here just a second ago. They’re all good.
Okay, if outposts are set up at foreign airports, the assumption is we don’t want to give asylum. Is that an administrative -- I think the word is “prerogative” here; I think the word is “prerogative” -- or a Congressional one?
Who’s making the decision?
PHILIP SCHRAG: Congress directed it. Congress passed a law directing the government to set these outposts up. The purpose is not to prevent people from getting asylum; the idea is that most of the people coming into the United States with false documents are not at risk of persecution; they’re just trying to come to the United States and get work and live underground, in a way. So that’s the main purpose driving Congress to do this.
But the effect on refugees who would otherwise get asylum is nevertheless severe.
BARBARA BRADLEY: Someone wants you -- I think the lawyers in the group -- to expand on the meaning of persecution. Other than physical abuse or -- some word that I can’t read; let’s just assume it’s physical abuse -- does that include prohibition to practice one’s profession or seeking academic qualifications for a profession?
Actually, that’s kind of an interesting area. Maybe professions isn’t, but there are areas that are kind of being formulated, even now as we speak, right? It’s not just torture?
PHILIP SCHRAG: Mitch, do you want to answer, or do you want me to?
MITCH ZAMOFF: You’re probably better qualified.
PHILIP SCHRAG: Okay, the definition of persecution. The term isn’t defined in the law. It’s a decision that’s made on a case-by-case basis. It’s clear that if your life or liberty are threatened, or if you’re subject to torture, that is persecution. It’s also clear, at the other end of the spectrum, that if you are, for example, not allowed to have lunch at a lunch counter or things that we would have classically regarded as discrimination in the United States, but not close to torture, that’s not persecution.
There’s a whole middle ground in between, such as the one described in the question, where you’re not allowed to practice your profession. One of the first things the Nazis did was to start banning Jews from practicing particular professions -- law, medicine, and so forth -- and at some point, that becomes persecution. It’s a question of how much and which judge is deciding.
BARBARA BRADLEY: I think one of the big debates that some of the people who are so worried about open -- kind of an open-door policy -- is that, gosh, when you had the Fauziya Kasinga case and you had kind of gender-based persecution, does that mean that women in countries where they perhaps don’t have the freedom that we do, in countries where women are not allowed to work or they are not allowed to go out or whatever, is that a form of persecution, too? So a lot of people say that they’re kind of shifting sands. Or are we worried about the floodgates issue?
PHILIP SCHRAG: This is an issue. It comes up less in the definition of what is persecution than in the much-litigated issue of whether the case falls within the five permissible categories.
It’s a really striking feature of American law that we don’t open our doors to refugees from floods, famines, civil wars, or many other causes. You only get asylum, or refugee status through the overseas refugee program, if you’re fleeing persecution based on one of these political or religious grounds, or because you’re targeted as a member of a particular group such a labor union or a student group or something like that.
So there is a lot of litigation over some gray areas or some new areas, as you’ve suggested. But the vast bulk of asylum cases are just like Mr. Kalao’s case. It’s people who are political opponents of the regime, journalists, or people who are in groups that cause the governments to think they’re political opponents: Families where other family members have been involved in dissident activities, or where other members of their group have been involved in activities.
BARBARA BRADLEY: We’re just going to do two more questions. And there are so many good ones, I’m really sorry that we have to limit it. But this one, I think, is interesting. I think people would be interested to know how immigration judges are selected. Are they judges in the classical way that we think of judges?
PHILIP SCHRAG: They are appointed by the Attorney General, not by the President. They are not subject to Senate confirmation. They tend to serve for life; that is, they don’t serve for terms, and they’re removable, technically, at the pleasure of the Attorney General. But nobody’s ever removed, for all practical purposes.
They tend to come out of government service of other kinds. For most of the last 20 years, the veterans’ preference in civil service hiring has strongly influenced the corps of this group, so that they tend to be men who’ve had military service, many fewer women. The majority of men in the corps of judges are people who have had military service. By and large, a lot of them have had Justice Department experience or some other kind of administrative experience as well, sometimes in the Army.
BARBARA BRADLEY: I think one of the big debates is -- and I don’t think this has yet been resolved by the Supreme Court -- when is there an appeal to an outside court? I mean, because essentially this whole process is within the Administration. So the question is, does an asylum-seeker have a right to get to an independent judge?
PHILIP SCHRAG: In the ordinary case, yes, after they’ve gone through Immigration and Naturalization Service turning them down, the Immigration judge turning them down, the Board of Immigration Appeals turning them down --
BARBARA BRADLEY: The Supreme Court of --
PHILIP SCHRAG: They can then go from there to the U.S. Court of Appeals. And the U.S. Court of Appeals for the Ninth Circuit, California, which hears about half the cases in the country that go to the Courts of Appeals, reverse the Board of Immigration Appeals quite regularly. The other Courts that look at the other half of the cases in the eastern part of the country, there is much less reversal. The exception is in the case of people coming in through the expedited removal process, people who come with false papers or without papers. They don’t get the [inaudible], you’re right.
BARBARA BRADLEY: Right. And the final question is for Kalala. Do you know what’s happened to your family, and do you know if there is still persecution of your tribe, say, back in the former Zaire? And do you ever plan to go back?
KALALA KALAO: I have been here for 6 years, as I have already said. For 4 years, I didn’t have any news from back home.
BARBARA BRADLEY: No news from back home?
KALALA KALAO: No, because the post office was under the control of the Secret Service, and the phone, they could not give me a call because the phone is under control, and for 4 years, I didn’t have any information.
BARBARA BRADLEY: When you got some information, what did you find?
KALALA KALAO: For 4 years, I didn’t have information, and going back home, we had been spending hours and hours with Mitch when my wife was back home to try to get in touch with the people from the American Embassy or with her. It was so, so difficult.
But the first time I got information was, I would say, last year, because I went back home and I found out my dad was dead.
BARBARA BRADLEY: You found out your dad had passed on?
KALALA KALAO: Yes.
BARBARA BRADLEY: And your family, were they persecuted at all?
KALALA KALAO: They were. They took belongings, cars, house, pretending everything was mine.
BARBARA BRADLEY: Do you ever plan to move back there for good?
KALALA KALAO: There is no change. Now there is a new government, and that government does the same thing as the government that we had before. There is no change.
But if there is any change, I think that some day I will be going back.
BARBARA BRADLEY: Great. Thank you all, and thank you for listening.
JERRY FOWLER: Well, thank you very much for a wonderful program. I am going to use the host’s prerogative and ask one question of my own, and I’m actually surprised that the journalists didn’t ask it. But your wife made it to the United States, very, very, very pregnant, and you had a son. And what did you name the son?
KALALA KALAO: Oh, when my wife -- when we get a baby, we had a difficult situation, and regarding to what we have back home in Africa as a tradition, if you have a friend or someone who did something that impressed your life or is a good friend, when you get a son, you’re going to give his name to your son. And Mitch, he was my god, and we decided to give to our son, the first name of Mitchell.
BARBARA BRADLEY: That’s great.
JERRY FOWLER: Barbara, thanks for letting me ask that question.
BARBARA BRADLEY: I’m embarrassed I didn’t.
JERRY FOWLER: Well, thank you all very much for coming. We do have a reception laid on. The wine is chilled and there’s some cheese. If you go up out of this to the left, you can get the reception. If you go to the right, you can get to the Flight and Rescue Exhibition, and I encourage you to visit both. Thank you very much.
(Whereupon, the PROCEEDINGS were adjourned.)