Markkula Center of Applied Ethics

Seeking Asylum

By Karen Musalo

A woman who has been tortured for her political beliefs by the secret police in her own country escapes to the United States using a fake passport. Recognizing that her travel documents have been falsified, a U.S. Immigration and Naturalization Service officer takes her into a separate room and questions her.

[Karen Musalo]
Karen Musalo
Photo by Charles Barry

To the woman, the officer is just another man in uniform, like the countrymen who raped her to punish her for her political activities. How much should she tell him? She does not speak English and requires the services of a translator, who is available only by telephone. Can she bring herself to discuss such delicate matters with the INS officer through a stranger she knows only as a voice on the phone?

Her decision is crucial. If the woman does not express fear of persecution or an intent to apply for asylum in this initial interview, she must be put right back on the plane and returned to her country of origin, according to new U.S. immigration law amendments that went into effect in April.

The Markkula Center for Applied Ethics has received a $300,000 grant from the Ford Foundation to study whether these new expedited removal procedures are adequate to protect legitimate asylum seekers. The Expedited Removal Monitoring Project and Study will include on-site observations at selected ports of entry such as Miami, New York, and San Francisco, as well as review of INS data.

Heading the project are Karen Musalo, director of the Ethics Center's Human Rights and Migration Project, and Deborah Anker, coordinator of the Immigration and Refugee Program at Harvard University Law School. According to Musalo, the study will try to answer two central questions: "Is the INS complying with the law, and, even if they are, are the results consistent with a fair and adequate process to identify legitimate refugees?"

Musalo's longtime work with refugees was recently recognized by the Immigrant Legal Resource Center, which honored her with the 1997 Philip Burton Immigration and Civil Rights Award. She was also named by American Lawyer magazine as one of the 45 young public-sector lawyers "whose vision and commitment are changing lives."

Both honors noted her recent work on behalf of Fauziya Kasinga, a Togolese teenager who was seeking asylum in the United States to escape her tribe's ritual of female genital mutilation. Musalo won a precedent-setting appeal to the Board of Immigration Appeals that, for the first time, acknowledged gender persecution as a basis for asylum.

Ironically, Musalo points out, Kasinga would never have been granted asylum under the new expedited procedures, which do not allow any appeals. Kasinga's original request was denied by an immigration judge, and she prevailed only because the old law allowed her to appeal.

Even before taking Kasinga's case, Musalo was "actively involved on the cutting edge of asylum law," according to the Burton Award citation. For example, in 1990, she argued a case before the 9th Circuit Court of Appeals establishing that measures considered appropriate punishment by a foreign government may be considered political persecution under U.S. immigration law. In addition, Musalo co-authored Refugee Law and Policy (Carolina Academic Press, 1997), the first law school casebook on refugee law to be published in the United States.

Musalo is also developing a human rights leadership exchange for the Center, which includes a program of reciprocal visits between faculty at Santa Clara University and human rights activists from countries in the developing world.

In June, a delegation from SCU visited Guatemala. In the fall, the Center will host the coordinator of Guatemala's Project to Recover the Historic Memory from the province of Quiche and a lawyer from the human rights office of the Archdiocese of Guatemala.