Chertoff immigration opinions trouble some
Homeland Security nominee ruled against foreigners in 14 cases
WASHINGTON -- Homeland Security Department nominee Michael Chertoff denied asylum, ordered deportation, or otherwise ruled against foreigners in 14 of 18 immigration cases he handled during his short tenure as a federal appeals court judge.
But he has secured grudging respect from immigration rights groups who applaud his legal support of a family trying to escape China's forced abortion policies.
An Associated Press review of Chertoff's decisions offers insight on how he may run the nation's immigration system that will become his responsibility as Homeland Security secretary if he wins Senate confirmation. Last night, on a voice vote, the Homeland Security and Governmental Affairs Committee sent Chertoff's nomination to the full Senate for anticipated confirmation, possibly this week.
Chertoff wrote the majority opinion in 17 immigration-related cases and a dissent in one since being seated on the Philadelphia-based US Court of Appeals for the Third Circuit in June 2003.
''We're watching to see what happens," said Erin Corcoran, staff attorney for Human Rights First, which advocates for asylum cases. ''We have concerns, but at the same time, he's been less hard-line on the issues than some other people have been."
As Homeland Security secretary, Chertoff will have wide discretion in carrying out immigration policy. While on the bench, he said, he gained insight ''into the complexities of our immigration structure."
Answering written questions from legislators before his nomination hearing last week, Chertoff pledged to ensure, if confirmed, ''that our immigration policy welcomes those lawful travelers and entrants, while continuing to provide sufficient safeguards against those who seek to harm the United States."
The cases Chertoff examined covered a gamut of immigrants' allegations of abuse -- from being beaten by police, forced into prostitution rings, or denied protection from hate crimes against gays.
Most were routine cases that did not set a legal precedent and may have ''raised a somewhat strained defense in the context of otherwise provable immigration violations," said Douglas W. Kmiec, a Pepperdine University constitutional law scholar who was a Justice Department legal counsel during the Reagan and George H.W. Bush administrations.
But the cases trouble critics who fear that the former prosecutor and Justice Department criminal division chief, with his tough-on-crime-and-terrorism reputation, will not uphold immigrants' rights.
In an Aug. 24, 2004, decision, Chertoff wrote that a Bangladeshi man did not meet the requirements for asylum under United Nations torture standards.
The man alleged he was arrested after participating in a peaceful political rally and beaten by police with canes, kicked in the face, and forced to denounce his political party during six days in jail.
He also provided documentation of 19 days of medical care he received after being released.
''Such treatment is, to say the least, troubling," Chertoff wrote. ''Nevertheless, this evidence alone does not undermine the conclusion that there was substantial evidence to support the denial of his application for asylum."
Chertoff's opinion ''takes a very extreme view of what constitutes torture," said Christopher Anders, legislative counsel to the American Civil Liberties Union.
''He will be the person in charge of enforcing immigration laws and processing immigrants," Anders said. ''And if he's setting up such a harsh requirement, it's going to mean that we're going to have people who are here looking for humanitarian relief, and instead they will be turned away and sent back to a country where we know they're likely to be tortured."
But a careful reading of Chertoff's orders seems to indicate that he is not as unsympathetic to immigrants as his critics fear. In his sole dissent, Chertoff sharply rapped a lower-court immigration judge for not adequately explaining why he denied asylum to a Chinese man whose wife was forced to abort a pregnancy and was involuntarily sterilized.
The immigration judge's ruling ''does not come close to meeting these requirements," Chertoff wrote in his dissent, dated Oct. 14, 2003. He added, the judge's ''view of the credibility of applicant Chen is a mystery."
Chertoff is ''known to be a law-and-order type of guy, but it's interesting that he actually understands the kinds of burdens that asylum seekers carry," said Corcoran, the Human Rights First attorney. ''We may not always agree with him on how he comes out on the opinions. But he's a reasonable guy."
Chertoff has come under fire for his role in ordering the roundup of hundreds of foreigners, many for minor immigration violations, during the Justice Department's investigation after the terrorist attacks of Sept. 11, 2001.
But Kmiec, the law scholar, said Chertoff's time on the court may have helped balance his views on immigration rights.
''It's rare to have anybody who has the experience of law from both sides of the bench," Kmiec said. ''That will mean an aggressive view of immigration laws, but also one that stays within the boundaries of the law as it's written."