Asylum: political sanctuary or criminal haven?

High court to consider if Guatemalan's violent past should keep himfrom US.

By , Staff writer of The Christian Science Monitor

To his friends, Juan Anibal Aguirre-Aguirre is a Las Vegas carpet cleaner, a hard-working immigrant reaching for a piece of the American dream.

To the US Immigration and Naturalization Service, Mr. Aguirre is something entirely different. He is a Guatemalan thug who sneaked into the country and is now trying to justify his past crimes by posing as a political refugee.

Today, in a case that will help chart the course of US refugee policy, the US Supreme Court will consider whether Aguirre is worthy of political sanctuary in America or should be deported to Guatemala where some say he faces persecution, torture, and perhaps even death.

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"The implications are quite grave," says Karen Musalo, a refugee law specialist at Hastings College of Law in San Francisco.

International human rights experts - including the office of the United Nations High Commissioner for Refugees - are watching closely to see if the nation's highest court embraces a more restrictive stance in terms of who is granted sanctuary in the US.

An international test

A decision to deport Aguirre to Guatemala would set a dangerous precedent that might encourage European judges to adopt similar reasoning, some legal analysts say. And that could establish a trend in international humanitarian law that would be broadly inconsistent with current UN treaties, they say.

Others worry a decision to grant Aguirre asylum might open the door for terrorists to find safehaven in the US.

At issue is a provision of US refugee law that says any refugee who commits a "serious nonpolitical crime" must be denied sanctuary and deported back to his or her country of origin.

The key question in Aguirre's case is whether he committed serious nonpolitical crimes.

Immigration officials believe he did. Human rights lawyers counter that his alleged crimes were political acts and somewhat mitigated by the horrendous conditions that existed during the Guatemalan civil war in the 1980s.

The relevant facts in Aguirre's case date back more than a decade when he was a student leader in Guatemala. He helped organize violent antigovernment demonstrations that included stopping public buses, forcing the passengers off, and setting the vehicles ablaze.

In 1992, he fled to the United States after receiving death threats from both the military and the guerrillas in Guatemala. The US government is seeking to deport him, citing the violent demonstrations and bus burnings as evidence of "serious nonpolitical crimes" that disqualify him from US asylum.

An immigration judge and the Ninth US Circuit Court of Appeals in San Francisco believe Aguirre should be granted asylum, finding that his alleged wrongdoing was not egregious enough to warrant his potentially dangerous return to Guatemala.

Immigration officials and the Board of Immigration Appeals believe he is unworthy of sanctuary because of what they view as a serious criminal past.

Humanitarian nature of law

Aguirre's lawyer says the immigration service and immigration appeals board have lost sight of the humanitarian nature of the refugee statute.

"Asylum law is not based on someone deserving something. The idea is not to reward good behavior or punish bad behavior, it is to provide safe haven," says Nadine Wettstein.

The Clinton administration, in favor of deporting Aguirre, counters that Congress vested the authority to determine such issues with the executive branch rather than federal appeals court judges.

The appeals court decision that overturned the Board of Immigration Appeals "inappropriately expands the availability of special humanitarian relief to persons engaged in violent conduct directed at innocent civilians," the administration says in its brief.

There is no universal answer to the question, "What is a serious nonpolitical crime?" Every analyst has a different interpretation. Placing a bomb in a crowded market? A bank robbery to fund political dissent against a repressive government? Burning a flag and fighting back against security forces at a public demonstration?

"We would agree that somebody that does something that is really egregious shouldn't be granted asylum," says Ms. Wettstein. "But that isn't what happened here."

The administration argues that Aguirre did more than just burn buses. It says he and others used poles and rocks to assault bus riders who were reluctant to get off the bus. It is these alleged assaults against innocent civilians that are of critical concern to immigration officials, according to government legal briefs.

Aguirre's lawyers dispute that any civilians were injured during the bus burnings or other violent antigovernment demonstrations he organized. They say that US officials must understand the conditions that existed in Guatemala at the time of the bus burnings and balance the "serious crime" question against the total context of events and circumstances.

"Neighborhoods disintegrated into that kind of protest because the opportunity for dissent was just so circumscribed that people were desperate," says Iris Gomez of the Massachusetts Law Reform Institute in Boston, which is active in Guatemala refugee issues.

"You didn't have the situation that you do in the US where you go and take over a government building and burn flags and express yourself as the police stand there and the media covers it, and then you go home," Ms. Gomez says. "In Guatemala, there would be retribution."

Student protests

Ms. Musalo, the San Francisco lawyer, says the Aguirre case is distressing. "What Aguirre is accused of doing was protesting the killing of students and faculty members at the university, protesting that the government never investigated this horrible repression of students and faculty."

"What is it that we are attempting to do through our refugee law?" she asks. "Are we saying that it is a capital crime to throw a stone at a bus and burn a bus - not in the context of US society but in the context of a society where the government killed tens of thousands of people?"

Musalo adds, "Is that really the kind of person we would send back to his or her death because of property damage?"

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