A 642-day journey through the American immigration courts

by Lisa Getter

One by one, the 10 men line up against a wooden rail in a Virginia federal courtroom, right hands raised, pledging to tell the truth, the whole truth and nothing but the truth. "I do," each replies – one after another after another.

This is America at its most basic: a chance for these men, eight of whom have fled persecution themselves, to tell an immigration judge what they know about Tialhei Zathang, a math teacher from Myanmar who is applying for political asylum.

U.S. Immigration Court is unique in American jurisprudence. There is no bailiff, no court reporter, no one to record the hearings but judge Joan V. Churchill, using a tape recorder that she can turn on and off at will. There isn't even a full day set aside for Zathang's case, which means the witnesses will come back again and again, workday after workday, some never getting a chance to testify.

For Zathang and his supporters, the wait will prove excruciating. From the time Zathang files his asylum application, 642 days will pass before Churchill issues her ruling. During those 21 months, documents will be lost, attorneys will come and go and scheduling mistakes will multiply.

And the decision, when it finally comes, will appear to contradict much of what was said in court. While Zathang's case may be unusual, its tortuous path reflects broader problems with the nation's Immigration Court system. Congress defines the mission of the courts as "the expeditious, fair and proper resolution of matters coming before immigration judges." But in reality, the courts are often backlogged. It is difficult to find competent translators. And the identity of each of the 219 judges can affect the outcome. Statistics tell part of the story: only 20 judges granted asylum in more than 30% of their cases, while 69 judges approved fewer than 10% of the asylum cases.

To those immigrants who have experienced political or religious persecution firsthand, asylum is a cornerstone of America's image as the land of the free and the home of the brave. But relatively few of them ever get it. A Los Angeles Times computer analysis of Immigration Court statistics during a six-year period from 1994 to 2000 shows that judges approved asylum requests in about 14% of their cases.

This is the story of one case in one courtroom, before just one of the immigration judges who decide the fates of tens of thousands of asylum seekers each year.

DAY ONE: December 4, 1998

Tialhei Zathang shows up at an INS (Immigration and Naturalization Service) office in Arlington, Virginia, and applies for asylum. He says he had been persecuted in Myanmar, the southeast Asian nation formerly known as Burma.

He is a small, intense man with an indentation on the left side of his forehead. Zathang says it came at the hands of the Burmese military, who detained him for 11 days in 1988 and beat him until he was unconscious because he was a practicing Christian in a Buddhist country who actively fought for democracy.

Zathang left Myanmar on February 27, 1998, after being warned he was about to be arrested again. He says he and his family reached India after walking through the jungle for 16 grueling days, clearing a path with a machete as they went. He carried his 5-year-old daughter on his back, while his 6-year-old son walked on his own and his 15-year-old son carried supplies. If he were to return to his homeland, he says, he would be killed.

Friends and a Baptist pastor in India collected money for him to buy a plane ticket to New York and an Indian passport issued illicitly by a local official willing to overlook the fact that Zathang was not a citizen of India. He arrived in the United States on November 1, 1998.

To win asylum under U.S. law, immigrants must prove they cannot return to their country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."

Most applicants have little evidence to prove a well-founded fear of persecution. Often their only proof is the story they tell. Zathang's interview is scheduled for January 4, 1999. If the INS officer who interviews Zathang believes his story, he could be granted asylum immediately. But the officer turns the application down. It is referred to Immigration Court.

Six months go by. An INS lawyer misplaces, then finds, Zathang's birth certificate. A few days before the initial trial date in April, the INS decides to argue that Zathang has committed fraud. Zathang's team says it needs more time to prepare.

DAY 206: June 28, 1999

The case is set to begin at 1 p.m. Churchill enters the courtroom at 1:05 and says she won't get to the case until "2:30, at least." It is past 3:30 when she finally is ready.

Judges such as Churchill have enormous discretion to interpret immigration law. The Board of Immigration Appeals has been reluctant to overrule judges, even when some members believe they are wrong. Churchill, the toughest immigration judge in the Washington D.C. area, grants fewer asylum requests than the national average and awarded asylum in only 233 of the 2,302 cases since October 1994.

Churchill is buried in paperwork. While immigrants testify, she addresses, stuffs, then licks the back of an envelope. She shuffles documents. She schedules future hearings. She copies documents on a machine near her desk.

Zathang's case file is 2 inches thick. His witnesses, some of whom have been granted asylum themselves, are eager to testify about the time he led a demonstration that angered the military, about the time he was imprisoned in his homeland for 11 days. They spend most of their time sitting in the lobby. As witnesses, they can't listen to the testimony.

Under the U.S. Constitution, asylum seekers are not entitled to a government-paid lawyer. Law schools try to fill the gap by sponsoring immigration law clinics, which give students the chance to try cases.

Zathang's legal team comes from nearby Georgetown University. Two second-year law students, Jessica Attie and Grace Lou, have spent hundreds of hours preparing his case. The weekend before his packet was due at the court, they worked 72 hours nonstop. The interpreter assigned to the case does not speak the same dialect as Zathang. Though it is clearly difficult for the men to understand each other, the trial proceeds. Karl Klauck, the INS trial attorney, is the third government lawyer on the case. That kind of turnover is not unusual in asylum cases.

Klauck argues that Zathang's application should be denied because of fraud. He says Zathang is not Burmese at all because he came to America with an Indian passport. He contends that Zathang is claiming Myanmar nationality simply to win asylum. He says the case is "a house of cards."

Although it is late afternoon, the student lawyers want to call retired Rutgers University political science professor Josef Silverstein as a witness. They have arranged for him to testify by phone, a common practice in Immigration Court because few immigrants can afford to pay their witnesses' travel costs. Churchill is reluctant. "Why is it so urgent I hear the witness today?" she asks.

Silverstein has been waiting at his New Jersey home for hours. He has testified before Congress on Myanmar. He has also testified in Immigration Court. Most of his research has been about Myanmar's ethnic minorities such as Zathang, who says he is from the Chin state near the border with India.

In his written affidavit, Silverstein urges the court to grant Zathang asylum. "Based on my professional and personal experience, I can attest that should Mr. Zathang be deported back to Burma, he would most certainly face imprisonment and torture, and even execution."

Static crackles on the speaker phone, which makes it hard for Silverstein to hear.

Churchill loses her patience and soon cuts him off. It is almost 6 p.m. The judge reschedules the case for another day, a month away.

DAY 238: July 30, 1999

Expectations are high among Zathang's friends as the hearing resumes. Churchill had said she will set aside enough time to hear his case today. But she has already scheduled other cases for the afternoon. Another lawyer, Lora Ries, is handling the case.

Churchill wants to know whether the INS would support asylum if Zathang proves he is Burmese. Ries says the INS "still has some trouble with the case" and would oppose asylum even then.

This time, Silverstein has taken the train from New Jersey to testify in person, the ticket paid for by the law school. But he still has trouble making his points. The judge interrupts Ries, instructing her how to ask the questions. Frederic K. Lehman, an anthropology and linguistics professor at the University of Illinois, takes the stand.

Lehman offers a piece of evidence that seems to cut right through the government's case: he knew Zathang in Burma. They met at the University of Mandalay when Lehman was a visiting professor in 1981.

Not only that Zathang speaks a dialect found only in the Chin state he claims as home. The judge promises to get back to the case after she wraps up some other matters on her docket.

The hours go by. Finally, it is Zathang's turn to tell his story. He sits with his student lawyers, facing the judge, and testifies through a different interpreter, who this time speaks his dialect. Churchill tells Zathang he must look at her while he testifies, but then the judge rarely looks his way.

"Just because I wanted to have democracy in my country, I was beaten and tortured," Zathang says. "I can't even express the words about how I hate the military people in my country."

Churchill wants to know why he won't agree to be sent back to India. Zathang takes off his glasses, holds them in his hands and looks straight ahead. He understands some English and knows this is not a good sign.

He says he is afraid to go back to India because the authorities there have recently begun deporting Myanmar refugees back to their homeland.

The judge breaks again to hear another unrelated matter. By now, the INS lawyer has a headache. Attie's mother, who has come to watch the proceedings, gives the lawyer aspirin. After the break, Zathang continues to describe his life in Myanmar.

He explains how he became a member of the Chin National Front, a pro-democracy group, how he was forced to spend more than 10 hours a day carrying equipment for the soldiers and how, finally, he was warned by the wife of the village leader that he would be arrested again. So he fled to India, where he managed to buy the passport that has become the crux of the government's case against him.

When he is finished, his first cousin Philip Hrengling speaks on his behalf. Hrengling, a pastor, already has been granted asylum. Like Zathang, he fled Myanmar to India, where he too bought a passport on the black market.

Churchill wants to know why Hrengling doesn't have the same last name as Zathang. In the back of the room, professor Lehman shakes his head, knowing that few Burmese use surnames. "I can tell you for sure he is not an Indian citizen. We are born in the same village and his father and my father are brothers," Hrengling testifies.

The case is not over yet, but it has been a long day. The only free day the judge can find on her calendar is one when the law students won't be in town. She schedules the case for that day anyway.

DAY 245: August 6, 1999

Georgetown University law professor Mary Brittingham cuts short a vacation to try the case for her two students.

INS lawyer Ries isn't there either. In her place is still another INS trial attorney, Sandra Czaykowsky, who is unfamiliar with the case.

The INS lawyer raises another obstacle. She says the interpreter at the previous hearing had met Zathang at a church service, a disclosure not made to the court. She says the law students helped pick the interpreter, which makes his interpretation of Zathang's testimony suspect.

But it is too late to make a change. Zathang takes the stand again. He becomes animated when describing a 15-minute speech he gave at an all-day demonstration in front of thousands: "I said the military system of government has to come down!"

"There was a time when you actually left Burma, yes or no?" the INS lawyer asks Zathang.

"He's here," Churchill interrupts. "Why would you ask a question like that?"

The judge breaks for lunch and tells everyone to be back at 1:15 p.m. But she has double-booked her calendar again and takes up other cases upon her return.

It is nearly 3 p.m. when Zathang's trial resumes. The key INS witness, a document analyst, has left. Churchill is incensed. But the case moves forward.

Zo T. Hmung, the uncle of Zathang's wife, relates that Zathang's flight from

Myanmar was described in an Indian newspaper. The judge wants to see a copy.

The article was published on July 7, 1998. It says Zathang, who was born in Burma and had been "arrested, tortured and jailed," had fled to India. "Police are seeking him for interrogation" the article says. Lian Uk, who was elected to the Burmese Parliament but not allowed by the government to assume his seat, testifies that he has known Zathang for more than 20 years.

"He's, of course, a citizen of Burma," Uk says. "No, no, no, he can't be a citizen of India. The Indian government does not accept dual citizenship."

By now, the evidence seems overwhelmingly in favor of Zathang. "I'm wondering if the government is willing to concede I should just grant this applicant asylum?" Churchill asks. Czaykowsky says no. "We will appeal. There are several issues in this case."

DAY 250: August 11, 1999

John Ross, the document expert, testifies that the Indian passport is authentic, but he can't determine if it was bought on the black market by Zathang. He also cannot draw any conclusions about Zathang's blue-colored Burmese birth certificate because the INS has no similar documents to which to compare it.

Attie delivers her closing argument. She says Zathang was forced to buy an Indian passport "to save his own life" and notes that his route to freedom was identical to that of others who have been granted asylum.

It is the INS lawyer's turn. Ries is back. She argues that "it is entirely possible that the applicant is an Indian citizen." She speculates that perhaps Zathang once lived in Myanmar, but he must have moved to India. She dismisses his role in organizing the pro-democracy movement. If India were not safe, she asks, why would he leave his wife and children there?

The judge questions Zathang at length and says she will issue her decision after lunch. But within minutes she changes her mind, saying she will take the case under advisement and render judgment later.

Later is more than a year away.

DAY 642: September 6, 2000

Nearly 13 months after the final hearing, Churchill issues her ruling, giving no explanation for the delay.

She denies Zathang's request for asylum. Despite her own comments in the courtroom, despite the testimony of Zathang's witnesses, despite the published account of his flight from Myanmar and the paucity of evidence to support the government's position, Churchill says she believes Zathang is actually Indian because of his passport. She concedes that he "may have Burmese nationality as well" but concludes that the time he spent in India proved he was living there without persecution and could return safely.

"We cannot, from the record, completely sort out the truth from the fictions," she writes. "It is our conclusion, from the preponderance of the evidence here, that he has Indian nationality, despite his claims to the contrary. It is not necessary for us to make any other factual findings. We note, though, that his general credibility is in some question."

She orders Zathang back to India but grants him a special dispensation called voluntary departure, which would allow him to leave America at his own expense with a clean immigration record.

DAY 688: October 2, 2000

Zathang's lawyers file a notice of appeal. In the motion, Georgetown University fellow Virgil Wiebe points out that the judge referred to Zathang's witnesses as "convincing." He argues that Churchill's decision is not supported by the law or by the evidence and that it contains "significant factual errors and omissions."

The request is pending before the Board of Immigration Appeals. It could take years before the panel rules.

EPILOGUE

Zathang, now 42, is allowed to stay in the U.S. pending his appeal. He is living with friends in Maryland, looking for work. He finally got a work permit from the INS last June. The card classifies him as Burmese.

When he learned of Churchill's decision, he was so upset he couldn't sleep for days. He said he does not know what else he could have told the judge. "I have all the proof I am a Burmese citizen," he said. "If they couldn't accept that, I don't know what more I could do."

The Los Angeles Times discovered that Zathang is listed on an Internet site identifying Burmese Chin residing in the United States. His attorneys were unaware of the reference, which helps corroborate Zathang's nationality.

The Times also found other Burmese Chin who verified Zathang's ethnicity. "He is not only my oldest brother's friend but also his classmate when they were in Mandalay University," said Siang Dun, who left Myanmar in 1995. Zapeng Sakhong, who taught at Mandalay University, said he and Zathang came from nearby villages in Myanmar, that he knew him at the university and had heard of his political activities. "He is really from Burma," Sakhong said.

Zathang's family remains in India. They move every few days. Had Zathang been granted asylum, he would have started the paperwork to bring them to the United States legally.

Zathang spoke with his wife by phone for 10 minutes in August 2000 on the same day Amnesty International warned that many ethnic Chin in northeastern India were in danger of deportation.

Attie, now 27, graduated from law school in May 2000. She is a clerk for a federal judge. She said she lost her idealism about the asylum process long before Churchill ruled in Zathang's case. Ries, the INS lawyer, now works for a congressional immigration subcommittee. She thinks Churchill made the right decision. "There were credibility questions," she said. The 13 months it took Churchill to issue her decision violated a 60-day rule set by Chief Immigration Judge Michael J. Creppy. "Justice delayed is justice denied," Creppy said in an interview.

Churchill declined to talk directly about Zathang's case but through a court spokesman said "she needed all that time. It required a lot of consideration."

After the trial ended, the Immigration Service invited one of Zathang's witnesses to speak at a celebration of asylum reform. At the event, the witness thanked America for granting him asylum. But then he mentioned the case of a teacher from his village, a man who first fled to India when he learned he was going to be arrested.

"The INS made the improbable argument that he is Indian ... even though 10 people, including professors and members of parliament, testified that he is a Burmese," the witness said.

The INS posted Hmung's speech – with its reference to Zathang – on its web site.

Copyright 2001, Los Angeles Times.
Reprinted with permission.

Source: Refugees Magazine Issue 123: "The Wall Behind Which Refugees Can Shelter" – The 1951 Geneva Convention 50th Anniversary (July 2001). Download the complete issue (pdf, 1.2Mb) here