America's promise to protect asylum-seekers gets lost in the paperwork (Denver Westword)

America's promise to protect asylum-seekers gets lost in the paperwork
By Lisa Rab
Published on October 09, 2008

Eleven years ago, Peter arrived in America, desperate for a place to hide.

In his native Uganda, he had been a rebel, a human-rights activist who fought for a multi-party system in a country ruled since 1986 by a one-party regime. Peter, who did not want his real name printed for fear of retribution, had worked to motivate young people to join the opposition Conservative Party. He'd driven people to rallies and tried to educate them about their political rights.

In September 1997, he was driving with his boss, the director of a Ugandan human-rights organization, when government soldiers arrested them at a roadblock. Peter was taken to a place the soldiers called a "safe house" — a military barracks not part of the regular justice system in Uganda. Here, people suspected of supporting political enemies of the regime were tortured in secret. Peter says he was detained without trial, beaten and tortured for a month.

While he was there, Peter says, his father, another longtime activist, was arrested and fatally stabbed with a bayonet. His mother, already suffering from heart and blood-pressure problems, couldn't bear the loss of her husband and son at the same time. She died within a week. Peter, who was thirty then, missed both of their funerals.

Eventually, he managed to escape from the prison and use his political connections to obtain a visa and a ticket to safety the United States.

But in Denver, where he ended up, he met a fate familiar to many refugees before him: failure. He found work as a janitor and applied for asylum. "If I return to Uganda, there is no doubt that I will be detained without trial, tortured, beaten once again by Ugandan government soldiers," he wrote in his application.

But he was rejected, and his appeal was unsuccessful.

"They didn't even believe my story," he said in a September interview with Westword at the Aurora Contract Detention Facility, an Immigration and Customs Enforcement (ICE) jail. "They said, 'Well, Uganda is not that bad.' "

So Peter, who'd also had some run-ins with the law here, spent the next few years in and out of immigration jails, waiting to be deported.

Just before he was set to leave, in April 2004, he called the Ugandan embassy in Washington, D.C., to discuss his travel documents. Embassies officials must be informed when their countrymen are being deported, but in the case of asylum-seekers, the foreign government is not supposed to know why. Dictators and military regimes don't look kindly on political opponents who criticize their policies and are not likely to roll out the welcome mat when they return home.

But in Peter's case, something had gone very wrong; the Ugandan embassy officials were expecting him. The consul who answered the phone told Peter that he had seen his asylum file and knew that Peter was still a supporter of the opposition party — destroying any chance that he could return home unnoticed by the authorities.

Panic radiated over the phone line as Peter realized what this meant. "How will I be treated when I get to the airport, or in Uganda?" he asked.

You'll find out when you get there, the consul said, and hung up.

***

Secrecy is an essential part of America's promise to refugees.

When they apply for asylum, they are by definition seeking to escape persecution on the basis of their race, religion, nationality or political views. The law says that everything they write will be kept private. "No information indicating that you have applied for asylum will be provided to any government or country from which you claim a fear of persecution," the instructions for asylum applications state.

When refugees have face-to-face interviews with immigration officials, the promise is repeated, says one local expert on the process. "Everything you tell me will be kept confidential. It won't be shared with your home government," says Regina Germain, legal director of the Rocky Mountain Survivors Center in Denver. "It doesn't say 'unless you're rejected.'"

Sometimes, though, secrets leak out. Especially for those refugees the government decides to send back home. In Peter's case, it began with a mere paperwork error.

When ICE officials decide to deport someone who doesn't have a valid passport, they must first get a new passport from the person's home government. Often, the home embassies want to know why their citizen is being deported. Over the years, it has become common practice for ICE officials to send a copy of the immigration judge's order, showing that an applicant has been legally asked to leave.

The order form is a standard bureaucratic document, with a line at the top explaining, "Respondent was ordered removed from the United States to [name of country]." Then there is a list of reasons why the person is being deported — a green card denied, a crime committed, an invalid marriage, etc. — and boxes to check off which ones apply. Near the middle of the form is an option saying an application for asylum was denied.

ICE officials understand that they are supposed to keep this part secret, but they take a very simple approach to the problem: They white out, redact or cover up the asylum portion of the form, then send it off to the person's home embassy.

In fact, this is common at immigration field offices all over the country, according to testimony by Tammy Cyr-Talbot, a supervisor at ICE headquarters in Washington, D.C., who took the stand in a similar case in Denver. "Sometimes I've seen where a piece of paper has been put over the reference, and then a photocopy is submitted," she testified in January 2008.

But in Peter's case, the government skipped a step. ICE officials neglected to white-out his form, instead sending the whole, unedited version to the Ugandan embassy. (Embassy officials didn't respond to an interview request).

From his home office in Lafayette, Jim Salvator has spent more than two decades helping immigrants find a legal haven in the United States. Peter tried for months to hire Salvator — known for both his success and his soft spot for pro bono cases — with his failed asylum case, but the attorney kept saying it was a lost cause. Until one day in 2004, when Peter mentioned his phone call to the embassy.

"Well, that's different," Salvator said.

The government's failure to edit Peter's paperwork was a blatant breach of confidentiality, Salvator reasoned. And because it put Peter in grave danger if he were returned to Uganda, it was grounds for him to be granted asylum.

By coincidence, a few days before Peter called the Ugandan embassy, the non-profit watchdog Human Rights Watch had released a new report on political conditions in Uganda — and the news wasn't good. "State of Pain: Torture in Uganda" described how, in the name of rooting out armed rebels, Uganda's military and security officers were torturing ordinary civilians who opposed the reigning political party. Suspects were being held in secret prisons, just like the one Peter had endured.

"Politicians challenging the de facto single-party state and the 18-year rule of Uganda's president, Yoweri Museveni, are often detained, severely beaten and threatened with death by the uncontrolled security apparatus," the report said.

Since 2001, the use of torture as an interrogation tool has become more common in the country, and victims were often suspended from the ceiling with their hands and feet tied behind their backs, beaten with hammers and sticks studded with nails, forced to endure genital mutilation, or made to lie face up while water from an open spigot poured into their mouths, the report continued.

Human Rights Watch investigators interviewed more than twenty current and former prisoners about their experiences. A man named James, who had worked on the campaign of the opposition presidential candidate Kizza Besigye, described being placed on the floor and blindfolded. Then "they poured water over him and beat him with wire cables. They beat him all over his body, stepped on him with their boots, and hit him in the head with a board with nails on it; he has three scars on his head," the report reads.

Even the U.S. State Department admitted that the situation in Uganda was deteriorating. In 2004, the department wrote that "there were widespread and credible reports that security forces tortured and beat suspects in unregistered detention facilities to force confessions." In fact, the Uganda Human Rights Commission had received more than 2,200 complaints of mistreatment by security forces; 179 of those incidents involved torture, according to the State Department. That year, 128 Ugandans applied for asylum in the United States.

For Peter, the stakes were especially high. "The Internal Security Organization here knows him as a rebel who wants to overthrow the government by the use of arms," John Ken-Lukyamuzi, president of the Conservative Party, wrote to the U.S. Justice Department in 1998, in support of Peter. (Ken-Lukyamuzi still leads the party.)

All of this helped convince the Board of Immigration Appeals in Virginia and U.S District Judge Marcia Krieger in Denver to reopen Peter's case. And when new hearings began, Salvator says he was amazed at how ICE officials explained their practices.

Denise Cordova, a local ICE deportation officer, testified that she had sent the Ugandan embassy Peter's paperwork, and although she didn't send his whole asylum file — as Peter originally claimed — she did admit to sending a judge's order of removal that "was not completely redacted."

"We did not take out everything that's pertained to...asylum," she testified. "His application for voluntary departure [that] was denied, his asylum denial, and then the application for withholding of removal that was denied."

"The truth began to seep out," Salvator says. "Since then, we've been winning."

***

As the months passed and Peter began to understand what had happened in his case, it also became clear that he was not alone.

Germain, who spent six years working for the United Nations High Commissioner for Refugees, says that during that time, she heard of approximately ten cases where the confidentiality of an asylum applicant was breached. Typically, the mistake occurred during the U.S. government's request for travel documents.

But of greater concern, she says, is how many cases never get reported, because most people never see the paper trail that reveals the problem. By the time their clients are being deported, immigration lawyers have already lost their cases. They don't usually follow up to see what happens afterward.

"I don't know how widespread the problem is," says Phil Alterman, another Denver immigration attorney. "My concern is that it might be going on nationally."

Alterman represents an asylum-seeker whose situation was similar to Peter's. Because his case is still ongoing and because his client fears deportation, Alterman would not give out his client's name or his home country. He would say only that the country is a totalitarian regime, one of a group that Secretary of State Condoleezza Rice has called "outposts of tyranny."

In Alterman's case, ICE officials did redact the asylum information from the judge's order before sending it to his client's home embassy. But Alterman argues that even this attempt to protect his client's identity was flawed. Once you've seen the full judge's order, it doesn't take a rocket scientist to figure out which portion has been whited out. Any embassy official familiar with the form could fill in the blanks.

So far, this argument has proved powerful in the courtroom. In 2005, the Board of Immigration Appeals agreed to reopen Alterman's client's case, reasoning that by sending the form to his home embassy, ICE "caused the [foreign] government to become aware of an opponent."

A former ambassador to the country wrote a letter bolstering the argument, noting that "the fact that the government of [the country] may have learned that [Alterman's client] has applied for asylum...exposes him to enormous risk of persecution upon his return."

A new hearing was held in a Denver immigration court, and three months ago, Alterman's client won asylum (The government has appealed its decision).

Meanwhile, other cases have emerged. At a recent hearing in Peter's case, attorney Sandra Saltrese testified about an unnamed Ugandan asylum-seeker she represented. In June 2006, his application for asylum was rejected, and his effort to prove that confidentiality rules were broken failed. He was about to be deported from Denver, but the man was so afraid to go home that ICE guards had to sedate him before taking him on the plane. When he arrived in Uganda, he was turned over to government authorities, and his American escorts left.

After that, Saltrese testified, he was "beaten up" by Ugandan police officers, who taunted him by saying things like "You applied for asylum; that's not gonna work here." Finally, one of the man's relatives bribed enough officials to get him out of prison, and the man fled to Canada, where he has since received asylum. But he was so scarred by the experience and so paranoid about retaliation that he refused to testify in Peter's case.

Then there is the case of Dorothy Anim, a native of Cameroon who applied for asylum in 2003. According to court documents, Anim said she was member of the South Cameroon National Council, an organization that advocates for the secession of English-speaking provinces, which face discrimination from the French-speaking government. In 2002 she was arrested three times because of her involvement with the group. The third time, she was beaten every day for two months, according to court records, until her uncle bribed a police commander to help her escape.

When she made it to the U.S., she presented her case to an immigration judge; it included affidavits and letters from her former bosses and family members, testimony from a former professor who had heard about her persecution, and copies of police convocations ordering her to return to the police station after she escaped. But the judge wasn't sure her story was credible, so he asked the State Department to verify her documentation.

An investigation was conducted by a Cameroon-born citizen who worked for the American embassy. That person interviewed a security official in the Northwest Province and concluded that Anim's police convocations were forged. This helped convince the immigration judge to deny Anim asylum.

But Anim wasn't ready to give up. She appealed to the Board of Immigration Appeals, saying her confidentiality had been breached by the government's investigation. Her lawyer pointed out that the State Department never explained who the Cameroonian was who conducted the investigation, or what methods the person used to prevent the government security official from learning that Anim had applied for asylum in the U.S.

Anim lost that appeal. But this August, she won another. The Fourth Circuit Court of Appeals in Virginia reasoned that showing unedited copies of the police convocations to the Cameroon security official "would allow the official to reasonably infer that Anim had applied for asylum, thus satisfying the test for a breach of confidentiality."

Anim won a new hearing, and immigration advocates saw her case as a victory against a flawed system.

***

The government's attorneys are less than thrilled about the recent spate of confidentiality rulings and they have fought to quash each case. When Peter won his second asylum hearing, ICE appealed to the Board of Immigration Appeals, which ordered a third hearing in Denver.

ICE attorney Dani Page argued that Peter's claims about his political activities in Uganda weren't credible. She pointed out that in his original application for asylum, he only mentioned being a member of a group called Human Rights Africa, not the Conservative Party. (Peter says the translator helping him with his application, Lameck Mukeeze Muwanga, edited out the political information. The feds later investigated Muwanga for fraud involving the asylum applications of several Ugandan refugees, and he was barred from working as an interpreter for the Denver immigration court. Muwanga now lives in Tacoma, Washington, and the person who answered his phone said he is temporarily out of the country.)

But even if Peter was in danger, Page said that ICE's error in allowing the Ugandan embassy to see his unedited judge's order was no big deal — and in fact, it probably wasn't an isolated mistake. "We always get travel documents with a redacted order or with an order," she said at a 2006 hearing in Peter's case. "Certainly there've been other mistakes. There's absolutely no evidence that somebody being returned under those circumstances has suffered any consequence."

To support her argument, Page submitted a letter from Lynn Sicade, acting director of the State Department's Office of Multilateral and Global Affairs. Sicade wrote that her office had contacted the U.S. Embassy in Kampala, the capital of Uganda, about Peter's case, and an unnamed official there had "noted that in his two years at the embassy, he has not come across any record of the Ugandan government taking action against an individual because they had attempted to claim asylum in another country."

In the absence of a corpse or a victim with bruises, the feds reasoned, how can you be sure Peter will be punished?

Page followed a similar strategy in Alterman's case. Three months ago, Alterman's client had a new hearing in federal court, and he won asylum. But Page has already appealed the decision.

She and other ICE attorneys argue that sending the redacted judge's order to a deported asylum-seeker's home embassy does not violate that person's confidentiality — in fact, it meets the standard for protecting confidentiality. "The Department continues to believe that this minimum standard is sufficient," Ronald Lapid, an attorney for the Department of Homeland Security, wrote in a 2005 brief to the Board of Immigration Appeals in Alterman's case.

In Lapid's view, even corrupt or dictatorial governments aren't interested enough in the activities of their deported citizens to compare a regular judge's order with redacted ones, much less deduce anything from them.

"There is...no evidence in the record to show that the [totalitarian country's] government has ever made such comparisons, or that the [country's] government continually tries to find out whether its citizens have ever applied for political asylum in the United States," he wrote.

Page referred all questions to regional ICE spokesman Carl Rusnok, who insisted that his department was dedicated to protecting the secrets of refugees. "ICE exercises extreme caution to ensure that individual asylum seekers are not identified," he wrote in an e-mail. "As a matter of fact, I cannot discuss specific asylum cases with the media for that very reason; their confidentiality is paramount."

On a chilly September morning, Peter walks reluctantly into Judge David Cordova's courtroom, wearing the standard orange jumpsuit of the Aurora immigration jail. He's tall and lean, with a beard that needs trimming and sweat that betrays his nerves.

Usually, Salvator says, Peter is an excellent jailhouse lawyer — articulate and passionate in his arguments, with an impressive command of English. Today, though, he seems disoriented, barely able to look at the federal attorney cross-examining him.

It's his medicine, used to treat post-traumatic stress disorder, Salvator explains. According to the jail's staff psychiatrist, Peter suffers from flashbacks and depression from the torture he experienced in Uganda. "By taking medication, he is better able to cope with his living," the doctor wrote in a note for the court.

Every time Peter is released from jail, he loses access to his medication. So he self-medicates with drugs and finds himself in some kind of trouble, Salvator says. He's pleaded guilty to possessing drug paraphernalia and trespassing, and at one point violated his parole (only aggravated felony charges affect asylum cases). If Salvator had his way, Peter would get a psychiatric evaluation so the courts could decide if he should be put in a mental-health facility. "I don't know if he can hold a job without his meds," Salvator says.

But today, none of that matters. All Peter wants is for his case to be resolved. And after a decade, he finally has a chance to win.

Judge Cordova decides that ICE did violate Peter's confidentiality, and he now "has a reasonable fear of going back to Uganda."

"I think he's credible; I think he has a fear of going back," Cordova says. He grants Peter asylum. (ICE attorneys have until October 15 to appeal the decision.) Grinning, Peter hugs his lawyer and shakes hands with everyone around. In a few hours, he'll be free. He'll spend his first night in a homeless shelter, without a phone or a job. But at least he doesn't have to worry about going home.

"If I return to Uganda, there is no doubt that I will be detained without trial, tortured, beaten."