- The Washington Times - Monday, February 7, 2005


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 Mr. Chertoff’s decisions offers insight on how he may run the nation’s immigration system that will become his responsibility at the Homeland Security Department if, as expected, he wins Senate confirmation.

Mr. Chertoff wrote the majority opinion in 17 immigration-related cases and a dissent in one since being seated on the Philadelphia-based 3rd U.S. Circuit Court of Appeals 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.”

The Senate Homeland Security and Governmental Affairs Committee last night endorsed Mr. Chertoff’s nomination on a 14-0 vote, with Sen. Carl Levin, Michigan Democrat, registering a token protest by voting “present.”

Committee Chairman Susan Collins, Maine Republican, said the full Senate could be asked as early as today for a confirmation vote, which she predicted Mr. Chertoff would win easily. Senate Democrats are not expected to oppose the nomination in that vote, which could enter the record as a voice vote tonight.

As secretary of homeland security, Mr. 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 lawmakers’ written questions before his nomination hearing last week, Mr. 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 Mr. Chertoff examined covered a gamut of immigrants’ accusations of abuse, from being beaten by police, forced into prostitution rings or denied protection from hate crimes against homosexuals.

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 Pepperdine University constitutional law scholar Douglas Kmiec, a Justice Department legal counsel during the administrations of Ronald Reagan and George Bush .

But the cases trouble critics who fear the former prosecutor and Justice Department criminal division chief — with his reputation for toughness on crime and terrorism — will fail to uphold immigrants’ rights.

In an Aug. 24 decision, Mr. Chertoff wrote that a Bangladeshi man did not meet the requirements for asylum under torture standards laid out by the United Nations. The man said he had been 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,” Mr. 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.”

Mr. Chertoff’s opinion “takes a very extreme view of what constitutes torture,” said Christopher E. Anders, legislative counsel to the American Civil Liberties Union.

“He will be the person in charge of enforcing immigration laws and processing immigrants,” Mr. 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 Mr. Chertoff’s orders appears to show he is not as unsympathetic to immigrants as his critics fear.

In his sole dissent, Mr. Chertoff sharply criticized a lower-court immigration judge for failing to adequately explain 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 against the Chinese “does not come close to meeting these requirements,” Mr. Chertoff wrote in his Oct. 14, 2003, dissent. Moreover, he wrote, the judge’s “view of the credibility of applicant Chen is a mystery.”A

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