A Travesty of Justice

In denying asylum to a Guatemalan man who fled forced recruitment by guerrillas, the US Supreme Court tied itself into semantic knots

EIGHTEEN-YEAR-OLD Elias Zacarias fled Guatemala and sought refuge in the United States. Several months earlier, two uniformed guerrillas, carrying machine guns and wearing bandanas, told him to join their ranks. Mr. Zacarias refused to join the guerrillas because they were "against the government and he was afraid the government would retaliate." The guerrillas told him to "think it over well" and warned they would return.

Guatemala's civil war has been the bloodiest in Central America. Since the mid-1970s, more than 100,000 civilians have been killed by the military, their bodies left along the roadside. Another 40,000 people are still "missing," probably buried somewhere in mass graves. Nearly 200,000 children are orphans, and 50,000 women are widows.

Disregarding these statistics, the US Supreme Court recently held that Zacarias had not fled his homeland based on a "well-founded fear" he would be persecuted "on account of ... political opinion." The court didn't mention an advisory letter from the US State Department acknowledging that Guatemala's "civil conflict ... has caused various hardships and dangers, including forced recruitment by opposing armed forces."

What kind of proof would satisfy Justice Antonin Scalia and the five other justices who made up the court's majority that Zacarias had "well-founded" fear? Maybe living with the urban turmoil in Washington, D.C., has made the court believe that murder and torture are facts of life. Or maybe the court agreed with the Immigration and Naturalization Service's speculation that the guerrillas wore handkerchiefs not to conceal their faces but "because it might have been dusty that day."

Maybe the court thinks Zacarias should have asked the guerrillas to remove the handkerchiefs and identify themselves, so he could be sure his fear was "well-founded." Perhaps Zacarias should have asked for a demonstration of the effectiveness of their machine guns. Or, when the guerrillas were carrying their guns, he should have obtained a notarized affidavit from them that they really meant to return for him (which in fact they did twice after he fled), that his parent would really be killed if he did n ot join them, and that the guerrillas were not kidding.

Last, maybe he should ask the court to subpoena the guerrillas to come to the US and explain their motives. After listening to them, if the court still thinks no "well-founded" fear exists, the guerrillas could be asked for a demonstration. Maybe they've seen "Treasure of Sierra Madre," and they could point their guns at the court and say, "Badges, we don't need badges."

Besides not proving that the fear was "well-founded," the court held that Zacarias, in resisting the guerrillas recruitment, still had to prove he was "expressing a political opinion hostile to the persecutor...." The court opinioned that people "might resist" joining the guerrillas because of "fear of combat, a desire to remain with one's family and friends, [or] a desire to earn a better living in civilian life."

These may all be true if a person is considering voluntarily enlisting. But when two masked guerrillas with machine guns threaten to return for you, a person either joins or flees - either decision reflects a political reality and a political opinion about "which side are you on."

The court said Zacarias did not show a political motive because he was only "afraid the government would retaliate against him and his family" if he joined the guerrillas. How selective our memories are. During the Vietnam war, if Vietnamese villagers refused to be relocated due to fear of retaliation, the US labeled them "political" and forcibly removed them.

Perhaps the court would have been swayed if Zacarias had used "magic words" with the guerrillas: "I refuse to join your ranks because I do not accept the political ends or means of your political movement. After many years of living in terror, I have formed the political opinion both you and the government be damned." Is asylum a game of words?

Maybe the court has in mind acceptable multiple choice options to demonstrate that resistance is based on political opinions. A multiple choice list could be distributed to persons who might in the future want to seek asylum here.

Whereas the federal court of appeals believed it was necessary to determine if Zacarias resisted kidnapping "because the persecutors' motive [was] political," the Supreme Court ruled that only the victim's - not the persecutors political opinion was important to determine why he resisted.

Justice Scalia stated in his opinion: "If a Nazi regime persecutes Jews, it is not, within the ordinary meaning of language, engaging in persecution on account of political opinion." Under this reasoning, once again, Jews could not gain refuge in the US if another Nazi regime arose.

From the victim's viewpoint, political/religious semantic distinctions are irrelevant. For Jews who fled, it was the persecutors' motive and actions that would exterminate them.

The Supreme Court's absurdity will become clear when Zacarias is deported, and we count the days he is able to stay alive. Congress must once again tell the court that our history, humanity, and political will mandate that Elias Zacarias and other similar refugees shall be given asylum here and that Statue of Liberty means what it says.

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