EVERY YEAR, 30,000 individuals apply for political asylum in the United States. Not every case has merit, of course, but for many thousands this government's decision on that request is a matter of life and death. The legal procedures for determining facts and making these judgments, therefore, must be scrupulously fair and must be perceived to be fair not only by the applicants but by the public.
Under current law, a person about to be deported can ask for political asylum if he has a "well-founded fear of persecution" in his homeland. Until last March, an applicant also had to show that there was "a clear probability of harm" if he was deported. But a Supreme Court ruling eliminated the requirement that this difficult-to-demonstrate probability be proved. This modification of the standard makes it likely that more aliens will apply for and will win asylum. Those who are unsuccessful can appeal an initial decision to an immigration judge who is part of the Justice Department but not part of the Immigration and Naturalization Service. This judge holds an open hearing, receives testimony, allows cross-examination and creates a public record on each case so that appeals can be taken to higher courts.
In August, the Justice Department proposed to change this system so that appeals would be heard not by immigration judges but by special INS officers knowledgeable about conditions in receiving countries. The entire review procedure would be closed to the public, and many of the procedural protections now available to applicants would be changed or eliminated. Department officials said this was all in aid of efficiency and uniformity, but predictable protests came from immigration, legal and civil liberties groups. This week, the department announced a retreat. New regulations, which will be published in the next few weeks, will retain the hearing before an immigration judge and will allow assistance from the special INS officers who have expertise on asylum issues.
This is a welcome concession. The fact that the judges -- who handle all immigration matters, not just asylum -- are independent of the INS is important, since the INS is the agency trying to deport the applicant. The procedures now used are fair and are open to the public. Yes, the whole process is time-consuming and procedurally cumbersome, but the stakes are high. This country has provided political asylum to the persecuted for scores of years. It is worth considerable trouble and expense to guarantee that that tradition is carried on fairly.