The Snakehead

by Patrick Radden Keefe

  The Golden Venture passengers were segregated from the general population, in a separate wing of the prison. On that first day they tried to acclimate themselves to their new surroundings. They played cards and watched television to pass the time. They were puzzled by the strange food the prison served: beef pot pie, coleslaw, applesauce. But Sean was beginning to wonder if the various tribulations he had been through were for naught, if the whole odyssey had been a gross miscalculation. He thought about his parents back in Changle and how he could ever explain his misfortune to them. He felt, for the first time, that he had failed.

  On Friday, June 11, six days after the arrival of the ship, Bill Clinton convened a meeting in the Oval Office. Senior staffers from the National Security Council, the Domestic Policy Council, the Coast Guard, and the INS discussed the Golden Venture incident and the larger policy dilemmas associated with boat smuggling. One of the agenda items at the meeting was “detention of smuggled aliens who do not have credible claims.” The snakehead business was being discussed not merely as an immigration issue but as a matter of national security. Before the Golden Venture even arrived, the press was heralding a “smuggler ship invasion.” It emerged that the month before, another ship, the Pai Sheng, had dumped 250 passengers on a pier near Fort Point in San Francisco, and a decision had been made to detain those passengers as well. Before the Oval Office meeting, the associate attorney general, Web Hubbell, wrote a letter to the national security adviser, Anthony Lake, suggesting that according to U.S. intelligence, as many as fifty-four additional vessels might be en route to the United States.

  “Alien smuggling is a shameful practice of unspeakable degradation and unspeakable exploitation,” Clinton declared in a speech at the White House the following week. He announced a new plan to combat the snakehead trade through aggressive pursuit of the smugglers, stiffer criminal penalties for smuggling, and efforts to interdict and redirect ships. (No mention was made of the many opportunities the United States had been afforded to interdict the Golden Venture or the Najd II.)

  Nor did Clinton discuss the decision to detain the Golden Venture passengers. But his message about the new arrivals was unmistakable. “It is a commonplace of American life that immigrants have made our country great,” Clinton said. “But we also know that under the pressures that we face today, we can’t afford to lose control of our own borders or to take on new financial burdens at a time when we are not adequately providing for the jobs, the health care, and the education of our own people.”

  As he concluded his remarks, the president announced the nomination of a new commissioner to head the INS, a fifty-one-year-old immigration expert named Doris Meissner, who had held posts in the Carter and Reagan administrations before becoming director of immigration policy at the Carnegie Endowment for International Peace.

  Meissner had been informed when she was offered the job that halting abuse of the asylum system was her “first-order immigration imperative.”

  Deciding who should be entitled to refuge in the United States and who should be turned away entails a truly awesome responsiblity If the individual who stands before you is an economic migrant masquerading as a refugee and you should happen to see through the ruse and send him packing, the migrant may come to regret the misadventure, but you can safely send him home and sleep soundly, knowing that you have done your job. But what if you mistakenly take a bona fide refugee for an economic migrant? What if his fear of persecution is indeed well founded, but because some element of his story aroused your skepticism he is sent home to certain persecution—to imprisonment, torture, even death?

  In principle, grants of asylum should entail a minimum of discretion: if an individual has a well-founded fear of persecution, then his or her claim should be granted, and whether or not the fear is well founded should be an objective test, subject to empirical inquiry. But in practice the determination is rarely so simple. People leaving their homelands in a hurry, under cover of dark, and making their way around the world to the United States do not always have the relevant documentation to substantiate the claims they make in their asylum applications. Information about current conditions in the countries they have fled is not always readily available. And to make matters worse, even individuals with a genuine asylum claim are sometimes inclined to lie, or to exaggerate one element of their story over another, in an effort to secure safe harbor. Desperate people are driven to desperate actions. Even those who tell the truth do not always make the best witnesses—they may garble a time line, misremember some small detail, mumble, give a weak handshake, or avert their eyes.

  In practice, the individual hearing the asylum claim, whether it is an immigration officer or an immigration judge, is forced to make a judgment about the credibility of the claimant, and with the introduction of discretion comes an enormous measure of disparity, luck, and chance for the asylum-seeker. During the cold war, the ostensible objectivity of the asylum process was warped by political ideology, and life-and-death determinations were made not on the basis of the facts of a specific case but on the larger geopolitics involved. If you were coming from Cuba, you had a good shot at asylum. If you were coming from Haiti, you didn’t. If you were fleeing a Communist regime in Eastern Europe, the door was often open; if you were fleeing a right-wing dictator in Latin America, it was generally closed.

  Throughout the 1990s, asylum caseloads were exploding, and immigration judges were often underresourced and overworked. As a result, this most solomonic determination—who should be saved and who should be sent back—became an arbitrary and erratic activity. Disparities began to emerge in the ways that similar asylum cases were treated in different places. If you are a Chinese asylum-seeker applying for asylum in San Francisco today, for instance, you have a 74 percent chance of success, as opposed to 18 percent if you apply in Newark. When your case is assigned to an immigration judge, the assignment is random—there is no way to select which judge will hear your claim. But enormous differences exist in the grant rates of individual judges. One immigration judge in Los Angeles grants asylum to roughly 81 percent of all Chinese applicants, while a colleague in the same court grants asylum to only 9 percent. (Interestingly, female judges are much more likely than males to grant asylum. If your case is randomly assigned to a female judge, you automatically have a 44 percent better chance of getting approved.) “Whether an asylum applicant is able to live safely in the United States or is deported to a country in which he claims to fear persecution is very seriously influenced by a spin of the wheel,” one study concludes, “by a clerk’s random assignment of an applicant’s case to one asylum officer rather than another, or one immigration judge rather than another.”

  For no other nationality is the disparity between grant rates on asylum cases as high as it is for the Chinese. One reason for this is simply that by virtue of its huge population, China represents an area in which the principle-driven platitudes of asylum and refugee law inevitably collide with more pragmatic concerns. With one fifth of the world’s population, some 900 million of whom are peasants, China has a way of dousing any humanitarian assumptions with a colder demographic reality. There is a famous story about Deng Xiaoping’s visit to Washington in January 1979, when President Jimmy Carter scolded him about China’s restrictions on the “freedom of departure”—the right to emigration—and suggested that more people should be permitted to leave China. According to the story, Deng fixed Carter with his slightly beady gaze and said, “Why, certainly, President Carter. How many millions would you like?”

  China’s population was one major factor bedeviling determinations of whether and when to grant asylum to people fleeing the country. The other major, and not unrelated, factor was China’s one-child policy. One month before the massacre at Tiananmen Square, these issues came to a head in a landmark court case called Matter of Chang. Chang was a Fujianese migrant who had fled to the United States and requested asylum, saying that the authorities in China had wanted to sterilize him and his wife fol
lowing the birth of their second child. Chang lost his bid for asylum before an immigration judge. Traditionally, asylum-seekers must demonstrate that they have been persecuted in the past, or might be in the future, on the basis of their race, religion, nationality, political opinion, or membership in a particular social group. Coerced sterilization may have been a brutal practice, but it did not fit neatly in the established categories of persecution. Shortly after Chang’s claim was rejected, however, Ronald Reagan’s attorney general, Edwin Meese, issued guidelines to the INS suggesting that asylum could be granted to applicants who expressed a well-founded fear of persecution based on China’s family-planning policies. In Meese’s view, if the emigrants had refused to have an abortion or be sterilized, that refusal could itself be construed “as an act of political defiance,” and as such grounds for asylum in the United States.

  Meese’s guidelines seemed to offer Chang new hope, but when he appealed his case to the Board of Immigration Appeals, in Falls Church, Virginia, the board was reluctant to bow to a standard that would in principle make any fertile Chinese parent eligible for asylum in the United States. Instead, the board held that even if Chang or his wife faced possible sterilization by the government, that would not constitute “persecution,” because it was not directed at them specifically. They weren’t being singled out. The one-child policy applied to everyone. And they had violated it.

  Matter of Chang was not a case that made headlines when it was decided. But for U.S. officials concerned about the number of asylum applicants coming from China, it served a valuable purpose. The opinion went on the books and could be pointed to by future immigration judges. Chang’s attorney, a lanky Brooklyn-born immigration lawyer named Jules Coven, who represented many Fujianese clients, could see the impact the ruling would have: if Matter of Chang took hold as a precedent, it would allow the government to deny thousands of asylum applications by Chinese fleeing the harsh tactics of the population enforcement cadres. Coven wanted to challenge the decision in federal court. But when he met with the assistant U.S. attorney assigned to the case, he realized how important it was to the government that the precedent established by Matter of Chang remain uncontested. In something of a backroom deal, the government lawyer assured Coven that if he let the matter go and opted not to appeal the ruling, Chang himself would be quietly granted asylum. Coven knew the momentous impact that the ruling would have on the cases of his other clients, and it gave him pause. But as an attorney, his first duty of loyalty was to his client Chang. So he took the deal, and Matter of Chang established the precedent that a well-founded fear of forced abortion or sterilization under China’s one-child policy was not an adequate ground for asylum in the United States.

  One fascinating feature of America’s ongoing debate over immigration is that it seldom tracks neatly along existing partisan predilections. Matter of Chang might have seemed like the sort of tough-on-illegal-immigration measure that would be embraced by conservative hardliners. But a vocal contingent of pro-life and anti-Communist Republicans in Congress objected to the decision. Tiananmen unfolded a month after the Matter of Chang decision, and in the wake of the massacre, Congress voted on the Emergency Chinese Immigration Relief Act of 1989, which included a provision that would effectively overrule Matter of Chang, conferring refugee status on the basis of the one-child policy. The bill passed both houses of Congress, but George H. W. Bush vetoed it. When he did so, however, he claimed that he could “accomplish the laudable objectives of Congress” through executive action.

  The executive action he had in mind was the famous directive of April 1990, which instructed the secretary of state and the attorney general to give “enhanced consideration” to individuals fleeing coerced sterilization or abortion in China. In January 1993, in the final days of the Bush administration, the outgoing attorney general, William Barr, signed a rule stating that forced abortion and sterilization were grounds for asylum, and noted explicitly that “one effect of this rule is to supersede the Board in Matter of Chang.” But in order for a rule to take effect, it must be published in the Federal Register. Barr signed the rule and sent it to the register, and it was scheduled for publication on January 25. But on January 22, after Bill Clinton’s inauguration, the new administration issued a directive prohibiting the publication of any new regulations before it had approved them. So Barr’s rule never took effect.

  Some uncertainty about whether a claim of persecution under the one-child policy was sufficient ground for asylum endured through the early months of the Clinton administration, and still hung over the immigration process when the Golden Venture arrived on June 6. When Clinton assembled his staff in the Oval Office on June 11, one prominent item on the agenda was “modifying Bush administration policy regarding enhanced consideration of asylum claims based on one-child policy in China.”

  Bill Clinton was something of a cipher when it came to immigration. On the campaign trail he had accused the Bush administration of “immoral” repatriation of boat people from Haiti, but after having promised to reverse that policy, he found his own inauguration marred by reports of over 150,000 Haitians preparing to board rickety boats on stormy seas in order to arrive after he was sworn in. Not wanting to introduce a magnet policy of its own, the administration announced that it would “study” the policy of its predecessors—but not necessarily change it. Clinton was above all attuned to the political mood of the country. After his nomination of Zoë Baird for attorney general was derailed when it was revealed that she had hired illegal immigrants as household help, and Time magazine ran a cover story on the botched nomination under the headline “His First Blunder,” he might have felt especially sensitive on the immigration issue.

  To Doris Meissner, Clinton’s choice to run the INS, it seemed that something else was weighing on Clinton’s mind as he evaluated how to address the influx of Chinese asylum-seekers. Clinton had lost only one election in his life, his bid for reelection as governor of Arkansas in 1980. The months leading up to the election had coincided with the Mariel boat lift from Cuba, and some 25,000 Cuban refugees had been transferred to Fort Chaffee, a facility in western Arkansas that had been used in the mid-seventies to house refugees from Vietnam. During the summer of 1980 the Cubans at Fort Chaffee rioted, and thousands of them escaped the installation. Some of the Marielitos had criminal records or mental instabilities, and there was a run on firearms in every gun store within 50 miles of the fort as local residents armed themselves, fearing that they might literally have to fight the Cubans off. As governor, Clinton had ordered the National Guard to assist state and local police in preventing the refugees from leaving the fort, but the panic engendered by the events at Fort Chaffee was enough to turn supporters against him, and he attributed the loss in November in no small measure to “the Cubans.” Even after the Golden Venture landed in Queens, Meissner thought Clinton was still “very conscious of having been burned” by the Fort Chaffee incident, and highly attuned to the political vulnerabilities that an appearance of being soft on immigration can create.

  Clinton’s managerial style was, famously, to let his advisers pick positions and duke it out among themselves, engaging in a kind of protracted policy bull session that would eventually yield a solution. In the weeks and months after the Golden Venture arrived, the main arguments for taking a limited view of the kinds of allowances that should be made for the passengers was articulated primarily by the State Department. The fear among many officials in Washington was that America’s asylum policies had become a magnet for illegal Chinese, actually encouraging them to leave their homes, pay snakeheads, and undertake perilous voyages to the United States. Tim Wirth, the undersecretary of state for global affairs, complained that America’s asylum posture toward the Chinese had become “the come on down” policy.

  According to the State Department, many of the asylum applicants were lying about the conditions back in China. “The majority of the Chinese who are coming here illegally … are principally economic mig
rants,” Wirth wrote in a letter to the deputy national security adviser, Sandy Berger. State Department officials had been told by Chinese authorities that “the magnet effect of our permissive asylum policies was primarily responsible for the massive outflow of Chinese illegal aliens into the U.S. over the past two years.”

  State prepared a report casting doubts on asylum applications brought by migrants from Fujian Province. Claims brought by Fujianese who cited involvement in the pro-democracy movement in 1989 should be treated with skepticism, the memo maintained. And as for the one-child policy, the implementation of population controls in Fujian was actually “more relaxed” than in other parts of China. Forced abortion and sterilization were not as common as the number of asylum applications would seem to indicate.

  On the other side of the argument was the INS, and in particular the agency’s general counsel, a holdover from the Bush administration named Grover Joseph Rees III. Rees was a courtly constitutional law professor from a prominent family in Breaux Bridge, Louisiana. He was wiry, with a sly smile and intelligent, slightly bloodshot eyes. Rees was the youngest of his parents’ twelve children; he was also ardently pro-life. Some critics disparaged him as a fanatic, an “anti-abortion zealot.” To Bill Slattery Rees seemed like a single-issue person, a bureaucrat with an agenda.