Getting political asylum right

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Last week the House passed the REAL ID Act, including provisions dealing with key aspects of U.S. asylum law. With the Senate poised to take a hard look at the bill, it is important to reiterate that the bill does not abrogate political asylum. Rather, the bill seeks a narrow reform of our asylum procedures specifically aimed at ensuring all courts better scrutinize asylum claims. The result will be a stronger, more cohesive political asylum system more likely to validate legitimate claims and invalidate fraudulent or terrorist ones.

One underlying premise of the REAL ID Act is based on the September 11 Commission's conclusion that terrorists are well studied in the many ways to get in and stay in the United States, and one of the most effective is to claim political asylum. It is so effective because often the only information available to a judge is the word of the applicant without corroborating evidence. Asylum is also effective because it can be claimed upon entry, for example, when proper documentation is lacking or when placed in a deportation hearing after a prior immigration violation. Either wasy, political asylum claims usually permit terrorists to do what they seek: buy time to live here freely. Here are a few examples of terrorists' political asylum claims:

• Nuradin Adbi, indicted in June 2004 for the al Qaeda plot to blow up a Columbus, Ohio, shopping mall, applied for and received asylum in 1999.

• Hesham Hedayet, who killed airline personnel at LAX on July 4, 2002, filed for political asylum in 1992 but ended up acquiring legal status through a diversity immigration lottery.

• At least three people closely associated with the September 11 hijackers claimed political asylum.

• Abdel Hakim Tizegha, an associate of the LAX Millennium plotters, claimed political asylum based on persecution by Muslim fundamentalists. He said he entered at Boston as a stowaway on an Algerian gas tanker. Hearings were rescheduled five times. The claim was denied two years later, and then appealed. Nine months later his location was unknown.

• Abu Mezer, responsible for the New York City subway plot in August 1997, was arrested in Washington state in January 1997 after his third attempt to illegally enter the United States. The next month, he applied for political asylum, denying an affiliation with Hamas. In July, he did not show up for his hearing. Instead, he called his attorney and stated he had married a U.S. citizen and was living in Canada. On Aug. 1, 1997, he was arrested in New York City based on an informant's tip.

c Three terrorists involved in the Feb. 26, 1993, World Trade Center bombing, Ramzi Yousef, Sheik Omar Abdel Rahman and Biblal Alkaisi, all sought political asylum. Yousef, mastermind of the bombing, was initially arrested with fraudulent travel documents upon entry at JFK International Airport in August 1992. Yousef claimed political asylum and was released pending a hearing. Alkaisi, also a key witness in the Meir Kahane murder, filed for both "temporary protected status" using a fake birth certificate and fake immigration entry record in August 1991, and for political asylum in May 1992 falsely claiming a prior illegal entry. Sheik Rahman, who issued the fatwa for Anwar Sadat's assassination and was also convicted for his role as the spiritual leader of the 1995 conspiracy to bomb New York City landmarks, had a long history of immigration violations and fraud, including a March 1992 political asylum claim to prevent his pending deportation.

c Mir Aimal Kasi, who killed two people outside CIA headquarters on Jan. 25, 1993, became an illegal overstay in February 1991. In February 1992, he simultaneously sought both political asylum and amnesty under a 1986 law. While the applications were pending, he was able to obtain a Virginia driver license and work as a courier.

The business of a U.S. court of law is to determine facts based upon all relevant evidence. We should expect no less of decisions in political asylum cases. Unfortunately, the U.S. 9th Circuit Court of Appeals has a problem. A 2002 Supreme Court petition by the describes it as follows: "the 9th Circuit has developed a body of circuit law that relieves the applicant of his burden of proof in asylum cases and allows the court to substitute its own views about contested record evidence for reasonable determinations of the [immigration court]."

The problem is compounded by the fact that the 9th Circuit decides about one-third of the 50,000 to 75,000 asylum claims filed annually, with appeals "disproportionately" sought here because of its case law. In 2001, 333 of 541 asylum cases were 9th Circuit decisions. The petition concludes, the "9th Circuit's departure from the judicial-review requirements of the Immigration and Naturalization Act therefore compromises enforcement of the immigration laws."

Political asylum is one of America's most coveted representations of who we are as a people. As the president stated in his 2005 State of the Union address, the United States continues seeking to be the world's "beacon of freedom." One of the ways we do so is to provide a haven for immigrants persecuted because of their political beliefs. This is a necessary activity for a democracy. No American who believes in democratic values would argue otherwise.

Janice Kephart is a former counsel to the September 11 Commission and an author of "September 11 and Terrorist Travel, A Staff Report of the National Commission on Terrorist Attacks Upon the United States."