Investigating What Happens to Refugees in INS Detention

No one really doubted why Ponnampalam Kailasapillai had made a desperate effort to flee his native Sri Lanka in 1996 in search of a new life in Canada. Like many Tamils, Kailasapillai and his family found themselves caught in the midst of the long and bloody civil war between the ruling government and militant members of the Tamil minority. A farmer in the contested part of the country, Kailasapillai described encountering repeated abuses and detentions both from government troops who mistrusted his allegiance and from rebels who demanded support.

And so, that September, the slight farmer, then 46, set out on the journey to Toronto, on the other side of the universe. There, he hoped to settle in the growing Tamil community where his brother had made a new life and then arrange for his wife and daughters to follow. He made his way to Switzerland and then to Dulles Airport, outside Washington, D.C. But as he sought to transfer planes one more time, alert inspectors of the Immigration and Naturalization Service (INS) discovered that Kailasapillai’s passport was not his own and took him into custody.

There, he was sent to a jail in Virginia and forced to navigate the U.S. asylum system if he wished to avoid being sent back to Sri Lanka. He remained locked up as Immigration Judge Joan Churchill denied him asylum in 1996, ruling that although the Tamil had a credible fear for his safety, the violent conditions of Sri Lanka did not amount to the kind of persecution intended under asylum law.

Though he wanted only to make his way to Canada, Kailasapillai remained locked up, in one Virginia jail after another, as the weeks turned into months turned into years. The American University Law Clinic attempted to help him navigate his freedom, but U.S. officials continued to oppose his release, even as his psychologists warned that Kailasapillai’s mental condition was deteriorating because of posttraumatic stress disorder caused by his previous detentions in Sri Lanka.

It was not until April 2001 that INS officials would finally release Kailasapillai, when Justice Department officials finally reversed themselves and ruled that he could go free as long as he went on to Canada—as he always intended. In midafternoon on April 3, after clearing the Canadian border at Niagara Falls, Kailasapillai finally was reunited with his brother. He was four and a half years late.

Covering the INS in a Systemic Way

The case of Kailasapillai would seem to be precisely the kind of issue that makes a free press so valuable: a vulnerable, harmless person who wanted only freedom and safety and instead had become a victim of a harsh and arbitrary system. Even better, at issue was a system that went to the very heart of how well America served as the beacon of freedom and justice.

In fact, Kailasapillai was one of thousands of Sri Lankan Tamils who have been locked up in the United States, many for extended periods, as they tried to escape to safety in Canada. And Sri Lankans were only a small percentage of the thousands of people who undertook great risks to flee danger in their homeland, only to be locked up with the threat of being sent back to whatever they may face back home.

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“The Press Paid Little Attention When the Immigration Act Was Passed”
– Anthony LewisFor better or worse, I became involved in asylum issues in 1997, after having read articles by New York Times reporter Cecilia Dugger and columns by Anthony Lewis with some horror stories involving asylum seekers. I called Lewis to seek his views about the need for someone to explore what was happening on a more systemic basis. He was totally encouraging.

In early 1998, I undertook such a project through an Alicia Patterson Foundation Fellowship. Two years later, I had found a system that failed to fully ensure that refugees fleeing desperate situations could count on protection in the United States:

• In 56 cases that were reviewed as part of the project, asylum seekers won their cases only after spending more than one year in custody once they arrived in the United States seeking help.
• One of the most significant factors in whether asylum seekers would win their cases was the luck of which administrative immigration judge was assigned to hear the case. An analysis of more than 175,000 cases heard by 219 different judges showed extreme disparities in how asylum cases were decided: Some administrative judges granted more than half the cases they heard, while others were granting fewer than five percent of the cases.
• One third of asylum seekers were left to present their case without an attorney; many have little or no familiarity with English or with the legal standard for asylum. A Georgetown University study determined that six times as many people who are represented win asylum as those who are not.
• Because the system is heavily decentralized, the treatment of asylum seekers varied greatly based on where they entered the country—and which INS district was responsible for their custody.

The result was a system with recurring tragic stories, such as that of Kailasapillai. But the situation was far from black and white: Government officials were not out to dismantle the Statue of Liberty. At issue was how the Justice Department was expected to fulfill the dual role of protecting refugees needing liberty and safety and protecting U.S. citizens from people illegally entering the country by falsely claiming asylum.

International refugee law, embraced by the United States as law, recognizes that victims of persecution often have no way to obtain valid passports or visas from governments that are persecuting them. But by the mid-1990’s, there was growing fear that the system had gone too far in protecting refugees. There was economic fear, that illegal immigrants were taking jobs. And there was fear of terrorism, as people who had entered the country seeking asylum were linked to the 1993 bombing of the World Trade Center and to the shooting of CIA employees outside the agency’s Virginia headquarters. INS officials adopted regulations to tighten the process; but Congress, spurred in part by a “60 Minutes” segment highlighting the potential for abuse, ignored agency opposition and went further.

The issue was clear: When thousands of people with nothing beyond the shirts on their backs and a tale of horror show up at the borders each year, how should the country respond to protect its borders without causing further harm to victims of persecution and torture? It is a question without easy answers, and the answer became only more difficult for refugees after the terrorist attacks of September 11, 2001. That should provide obvious fodder for journalistic investigation: questions about government policies and how those policies are carried out, with the likelihood that the most vulnerable of people are being hurt by them.

INS Stories: Tough Sell in Many Newsrooms

Those stories were widespread even before the terrorist attacks of September 11, attacks which triggered only tighter controls that furthered the likelihood that some persecution victims would suffer more harm as they sought the safety and protection of the United States. And yet, journalistic interest in pursuing such stories seems surprisingly tepid. “This is the time we most need the press to investigate and ask proactive questions about whether the policies of this administration are just,” said Elisa Massimino, Washington director of the Lawyers Committee for Human Rights. “We’re seeing exactly the opposite, at a time when the rights of those most vulnerable are being put at further risk.”

There are a number of reasons that such stories are not more sought after—reasons that involve problems specific to the issue and reasons that involve problems more industry-wide.

• There is, of course, the skepticism with which the issue is greeted by many editors and reporters who know how readily people would fabricate stories if it would help them find better lives in America. An awful lot of friends and colleagues expressed concern at the time and effort I was spending to document the stories of people who they presumed—wrongly, in many cases—were untrustworthy; that suspicion certainly has only grown since the threat of terror became more real.
• There is the problem any systemic project faces in an era of tight budgets and pressure for more productivity. Taking on the systemic abuses of asylum seekers takes time and money, two commodities in shorter supply these days; the amount of effort is accentuated by the secrecy that surrounds the system and the time it takes to pry information loose.
• And there are the worries that pervade editors’ offices these days, about whether the hardships facing anonymous foreigners without proper papers are an issue that any reader cares about. Refugees are not likely to find favor in focus group discussions about what readers want from their morning paper.

Massimino adds one more reason: “The government assault on noncitizens has become more nuanced and reporters have to work harder. I’ve had a number of disappointing conversations with reporters who lose interest as soon as they realize what they have to do to really explore the issue.” I was lucky. Having undertaken the project through a fellowship, I was left to argue with only myself about time and money. In the end, the San Jose Mercury News embraced the articles and gave them a good home.

But pursuing stories of the systemic failures of the immigration system remains no easy sell. It requires risktaking by news organizations that understand the topic might be expensive to pursue and will generate a significant amount of distressing e-mail from readers who are angered and frightened by the world. But it is, in the end, what many of us entered journalism to do: to serve as a voice for Ponnampalam Kailasapillai and others like him, the persecution victims who have no other voice as they suffer at the hands of an arbitrary system.

Seen in those terms, the decision doesn’t seem so difficult after all.

Rick Tulsky, a 1989 Nieman Fellow, is projects reporter at the San Jose Mercury News. Tulsky’s project on refugees and the INS won a Robert F. Kennedy Journalism Award in 2001. This year Hofstra University gave him its Francis Frost Wood Courage in Journalism Award for undertaking and completing the project despite many obstacles.