The Snakehead

by Patrick Radden Keefe

  But Rees’s philosophical differences with Slattery involved more than simply his opposition to China’s population-control problems. If Slattery was a quintessential enforcement guy, Rees was a quintessential benefits guy. Rees believed that the INS had lost track of its mission, which was to offer safe harbor to people; that the agency, and Washington more generally, had been hijacked by the enforcement mentality. Rees had always believed that those fleeing coerced abortion or sterilization should be able to find refuge in the United States. Following George Bush’s executive order, he had sent a letter to all regional INS offices reiterating that “application of such coercive policies” does constitute persecution. He instructed INS personnel to “be just as diligent in searching for indications that the applicant or the applicant’s evidence may be credible as for indications that it may not be.”

  In Rees’s view, the only crime of the people aboard the Golden Venture was having escaped from one of the most dangerous countries in the world. He felt that the administration was dramatically overplaying the risk that the country would be swamped by asylum-seekers. At the same time he believed that the State Department was underestimating the amount of coercive birth control going on in China. Six weeks before the Golden Venture arrived, Nicholas Kristof, the New York Times correspondent in Beijing, wrote a front-page story revealing a crackdown on the birthrate in China that had commanded a couple of years earlier, at precisely the time when Chinese began leaving for America in substantial numbers. “Through compulsory sterilization and other measures, China has lowered fertility to by far its lowest level ever here,” Kristof reported. Abortion was less common in China than it had been during the 1980s, the article suggested. (Figures from China’s Ministry of Health, which are probably incomplete, record a peak of 14 million abortions in 1990.) But as a tactic it had been replaced by “compulsory, organized sterilization.” “Typically, local cadres swoop down on each village once or twice a year, taking all the women who have already had children to a nearby clinic,” Kristof wrote. There had been a 25 percent surge in the number of people sterilized in 1991, to 12.5 million. And women who would not voluntarily abort surplus children were sometimes fined hundreds or even thousands of dollars, at a time when the per capita income in the Chinese countryside was roughly $135 a year.

  Rees found it scandalous that in the face of such reports, the United States would adopt a jaundiced, cynical view of the claims of asylum-seekers fleeing the one-child policy. He worried that because the passengers on the Golden Venture and other ships had been obliged to pay snakeheads to smuggle them into the United States, the government was viewing them not in their capacity as asylum-seekers but in their capacity as smuggled aliens. That was the “overwhelming spirit” in which Washington approached the Golden Venture, Rees thought.

  The problem for the Golden Venture passengers was that everyone was watching to see how Washington would react. The first decision, made by Slattery within hours of the ship’s arrival and endorsed by the White House in the coming days, was to detain the passengers. To release them as other undocumented Chinese had been released in the past would be untenable. In later years some would maintain that the Golden Venture passengers were not treated any differently from other undocumented arrivals from China. But the statements at the time make clear that it was the explicit intention of the administration to treat the passengers differently, in order to send a message. “We are making arrangements to hold them as long as we have to,” Slattery explained to the press the day the ship arrived. “We intend to make an example of this group.”

  In a memo to Vice President Al Gore, three administration officials working on the Golden Venture case proposed the use of “detention as a disincentive to illegal entry into the U.S.” A Justice Department document elaborated: “The usual goal of illegal migrants is to gain entry to the United States, establish residence, and enter the work force. If such persons are detained upon arrival, maintained in detention throughout the administrative hearing process, and ultimately removed from the United States without ever having been at large and able to work, illegal migration by others is discouraged.”

  But the decision to detain the Golden Venture passengers only raised a deeper policy dilemma. If, as Joseph Rees contended, there were credible asylum-seekers among the passengers, who had a well-founded fear of persecution back in China, then they should be entitled to the full range of procedural entitlements when it came to examining the merit of their claims. But everyone knew that under the best circumstances, the asylum process took months, if not years. How could the administration maintain its policy of detention without jailing bona fide refugees indefinitely while their cases dragged through the system?

  The solution was to expedite the Golden Venture cases, seeking to streamline and accelerate the traditional asylum application process in order to resolve the cases as quickly as possible. Within a week of the Golden Venture’s arrival it had been decided that a special schedule would be created for the passengers. Both the initial asylum hearing before an immigration judge and, if necessary, an appeal were to be completed within 120 days—a pace that was unheard of. The case files of the Golden Venture passengers were given a special marking so that they could fly through the system as quickly as possible. The idea was to take the painstaking, error-prone process of assessing the validity of asylum claims and do it against the clock, without losing any accuracy. “The Golden Venture is sort of a test case for trying to compress this process,” one official explained.

  After several days in the York County Prison, Sean received a visitor: a British woman named Ann Carr who had worked as a paralegal and recently passed the bar exam to become a lawyer. Carr had gotten Sean’s name through the local bar association, and she brought an interpreter so the two could discuss whether Sean would request asylum in the United States. Carr was astonished by how young Sean seemed, and how frightened. His skin had a deathly pallor after months in the ship’s hold. And he looked young, too young to be in a prison cell. (There were sixteen minors aboard the Golden Venture, who were released into foster care when the ship arrived because they were under eighteen. Sean was carrying no documents when he washed ashore in Queens, and he looked much younger than he was. If he had had the wherewithal to lie about his age, he probably would have been released.)

  This kid shouldn’t be in this situation, Carr thought. As they sat there in the prison, Sean related his ordeal. He told her the story of how he had been kicked out of school after authorities saw his name on a list of possible “counterrevolutionaries,” because he had participated in a demonstration around the time of Tiananmen. (There had been many sympathy demonstrations in and around Fuzhou at the time.) Sean was no political dissident, but it did appear that the mood of suspicion and recrimination in China in the months following Tiananmen had thrust him into a position that he may not have chosen and radically diminished his options for a future in Changle. To Carr, that sounded promising as a ground for political asylum. In order to make her case, she was going to need some time to prepare and to get the necessary paperwork from China. But Sean’s case was scheduled for two weeks away. Carr had worked on immigration cases in the past and had never had any trouble getting a postponement, so she telephoned the court in Baltimore that was handling the cases and requested one. The clerk told her that none of the Golden Venture cases were eligible for postponements and that at most she could delay the hearing by one week. Carr was flustered. She didn’t know how she could possibly assemble and translate the necessary documentation from China in so little time. She asked who had issued this policy. The clerk told her that someone from the White House had called the court directly.

  Carr returned to the prison and asked Sean if there was any paperwork that might prove his story. He told her that when he was expelled from school, the administrators gave him a letter informing him of the expulsion, explicitly citing his political activity. Carr arranged for Sean to telephone China and get a message to his family to see i
f they could get the letter to her. If she could just get her hands on that letter, it would be proof that Sean was not merely making up his story—that he was a credible asylum-seeker who had been forced out of high school because of a passing affiliation with pro-democracy protesters.

  But the letter didn’t arrive, and as the hearing date approached, Carr grew anxious. On the morning of the hearing there was still no sign of the letter, and Carr was in a panic. The preceding weeks had played out with a certain emergency atmosphere, an encroaching sense of dread that with such a breakneck schedule it would be impossible to demonstrate that the passengers should not be sent home. It seemed that they had become the victims of a stifling and high-speed administrative juggernaut—Kafka on fast-forward. Then, just as Carr was getting ready to leave for the hearing, a fax arrived from China. She clutched the fax and headed to the prison, where a makeshift courtroom had been assembled to hear the men’s cases.

  One problem remained: the fax was in Chinese. As Carr sat in an adjacent waiting room, with an hour or so before Sean’s hearing, she spotted a Chinese man waiting by himself. By some miracle, he spoke English. Overcome with relief, Carr grabbed the document and approached him. “Could you please translate this for me?” she said. “Tell me what it says.”

  The man dictated his translation, and Carr wrote it out longhand. Sure enough, it was a letter from the school, asserting that Sean had been dismissed for his involvement in political activity. When they had completed the translation, the man signed it, indicating that Carr had taken down the words as he interpreted them.

  Eventually Sean and Carr entered the courtroom, where an immigration judge was waiting for them. The judge was a Caucasian who was heavily overweight, fatter than people got in China. To Sean he looked monstrous, cartoonishly obese. It was stuffy and unbearably hot in the little room, and the hearing dragged on for hours, with the judge, laconic and unsympathetic, posing skeptical questions to Sean. The authorities had been charged with locating translators for the hearings, but because Fujianese is not widely spoken among Chinese in the United States, they had supplied a translator from Berlitz, who spoke only Cantonese and some Mandarin. Sean spoke some Mandarin as well, but with a thick provincial accent, and as the hearing unfolded, Carr could tell that certain things were getting mangled in translation. When Sean described his interest in politics, and particularly in democracy, and his childhood experience on the fringes of the pro-democracy movement in Fujian, the interpreter would tell the judge, “He had a problem with the government.”

  Carr tried asking Sean pointed questions about his upbringing and his views on politics, but the judge snapped that she was leading her client, trying to coach him.

  When Sean described his expulsion, Carr triumphantly presented the letter and the translation. But the judge’s attention was drawn to the school’s official seal on the original letter, which was a stamp with the date written in the center of it. The man in the waiting room had never translated the seal or the date. “This isn’t authenticated,” the judge said dismissively setting it aside. Carr tried to explain that it takes weeks to authenticate an official document in another language from a foreign country, that she had asked to postpone the hearing and been told it wasn’t possible. The judge was unmoved.

  After several hours the judge announced that he found elements of Sean’s story credible. But if the events in question had unfolded in 1989, he wondered, why had Sean waited until 1991 to leave Fujian? Surely circumstances could not have been so dire as he was making them out to be if he chose to wait two years before leaving for America? The judge denied asylum, and Sean and Carr were ushered out of the room so that the next passenger could have his hearing.

  It may have brought him little comfort at the time, but Sean was fortunate at least to be found credible. Many of the passengers presented themselves before their jailhouse judges and told stories of being forced to flee from China after they were compelled to have abortions (in the case of some of the women from the ship) or after they or their wives were threatened with sterilization. The stories shared common details: the local cadres come to sterilize the wife, but she is sick and insists that she cannot submit to the procedure, so the cadres turn on the husband; a family is penalized for adopting a female baby they discover abandoned by the side of the road by some rural couple who did not want to “waste” their one-child allotment on a girl. The stories took on a repetitious, almost incantatory quality, and surely part of the reason for that was that many of them were not true. There was a series of stock narratives, like the boilerplate plots of bad movies, which could be figured and refigured with only the slightest hint of improvisation or individual embellishment. The snakeheads and the villagers back home, and quite possibly the occasional asylum lawyer as well, had all come together and coached the passengers to tell certain stories calculated to secure asylum in the United States.

  The immigration judges knew this, of course. The rate of asylum granted to Chinese immigrants tends to be lower in cities where more Chinese cases are brought, and one possible explanation for this disparity is that judges who hear a single horror story are inclined to be sympathetic, but judges who hear the same story over and over again begin to wonder whether what they’re hearing is true. But the deck was stacked against the Golden Venture passengers from the beginning. The State Department had prepared a special memorandum for the immigration judges hearing the cases. “There are some elements of stories that have recurred in Fujian cases over a long time,” the memo suggested. “Some of these statements, we believe, can bear importantly on applicants’ credibility.” The memo cited tales of zealous birth control officials imposing fines on couples who have more than one child, and of husbands being sterilized because their wives were too sick to undergo the procedure, of men fleeing from their villages after getting into physical fights with birth-control cadres, and of couples who made the mistake of “adopting a foundling, who the officials charged was the couple’s natural child.” Every conceivable scenario that the Golden Venture passengers might describe was accounted for in the memo from the State Department.

  The memo conceded that “each of these types of events has occurred in China” but insisted that in Fujian Province they had not occurred “with anywhere near the frequency asserted by asylum applicants.” To some extent the skepticism that greeted the Golden Venture passengers when they arrived was just shrewd governance. There was reason to be dubious of the claims, perhaps even a majority of the claims, and therefore it was a good thing that the judges were prepared to identify fraud when it came before them. And while the State Department’s findings may have seemed to conflict with Nicholas Kristof’s report in the New York Times, they did tend to dovetail with some independent scholarship that was being done by academics interested in the reasons that undocumented migrants left China. When the Rutgers criminologist Ko-lin Chin surveyed three hundred smuggled Chinese in New York City, the vast majority responded that their chief reason for coming to the United States was “U.S. dollars.” Peter Kwong, a Hunter College professor and expert on Chinese immigration, maintained that the one-child policy was “honored more in the breach than the execution.”

  The problem was that while widespread fraud was one explanation for the repetition of the same stories among asylum-seekers, another reason that those stories were repeated, and that they were told in the first place, was that sometimes they were true. It may have been that the bulk of the Golden Venture passengers, the vast majority even, were simple economic migrants looking for a better job, a better life, and willing to tell a potted tale of woe in order to find new opportunities in America. It may have been that most of them were lying. But on the margins there were also genuine refugees who were fleeing horrific oppression at the hands of the family-planning cadres in China, and as the cases raced through the system, it was perhaps inevitable that the skepticism engendered by the repetitive stories, and by the State Department memo, would lead the judges to paint all of the asylum-s
eekers with the same brush.

  Ultimately, even those who were telling the truth and could prove it would have trouble making their cases—because as the Clinton administration tried to determine how to handle the Bush administration’s posture on asylum and the one-child policy, it had rediscovered Matter of Chang. During the fall of 1993, there was some question as to which position the administration would take on the issue: whether Clinton would bend to pressure from Republicans in Congress to continue allowing the one-child policy to serve as a ground for asylum, or whether he would definitively assert that, horrible though it might be, forced abortion or sterilization did not amount to “persecution” under U.S. law. Eventually the Board of Immigration Appeals took the latter view, maintaining that “our interpretation of the law regarding China’s one-couple, one-child policy articulated in Matter of Chang is legally correct and consistent.”

  By September, 14 of the Golden Venture passengers had been granted asylum and 171 had been denied. Another 68 were still waiting to be told. (Of those who did succeed in obtaining asylum, a number were Christians from Fujian and from Wenzhou, both of which had historically been home to long-standing Christian minorities.)

  But most of the passengers were rejected. The difference between a successful bid for asylum and a failed one meant more than just the life or livelihood of the individual in question; it could, in a very real sense, determine the future course of the lives of their families. Two cellmates from the Golden Venture could suddenly watch their trajectories diverge. The one who was granted asylum would eventually be able to send for his wife and children, if he had any. Those children could hope to attend American colleges, perhaps obtain advanced degrees, and eventually join the assimilated middle class. For the one who was rejected, the future was less certain. He could appeal the decision, but there was little reason to believe that his case would be more compelling to a dubious American establishment the second time around. When his appeals were exhausted, he could count on being sent home to China. There, after he suffered through whatever punishment lay in store for breaking the law and embarrassing Beijing, he might succeed in the lottery of the new Chinese economy. But there was a stronger likelihood that he would end up working in a factory, and that his children would grow up to work in a factory as well.