Is US too tough on Poles seeking asylum? To Andrzej K., the process can seem daunting; to some analysts, America isn't doing enough

At a time when political instability and economic need often spark mass movements of migrants from one country to another, the United States has become wary in recent years of opening its arms too wide and too easily to those seeking political asylum. And its adoption in 1980 of the United Nations definition of refugees eliminated the special preference the US had long given groups fleeing persecution in communist countries.

But a number of Polish Americans and friends on Capitol Hill insist that the US Immigration and Naturalization Service (INS) has grown so conservative in awarding asylum to Poles in this country that it almost amounts to reverse discrimination.

Despite President Reagan's vigorous support of the Solidarity trade-union movement and frequent criticism of the Warsaw government, these critics note that the US accepted only 8 percent of the Polish applications for asylum during the first year after martial law. During the last four years, such acceptances have averaged well under 30 percent. Yet acceptance ratios for many other nationalities, including Afghans, Iranians, and Russians, were much higher in the same period, critics note. Also, Poles seeking refugee status in the US from points overseas have generally fared far better than asylum seekers here, though the same standard applies -- proving a ``well-founded fear of persecution.''

Andrzej K. is one of hundreds of Polish nationals here who feel they have a strong case for asylum but have been turned down by immigration authorities.

The son of a farm couple in northern Poland, he came to Chicago in 1980 on a tourist visa to visit an aunt during a year's vacation break from the University of Mining and Metallurgy in Krakow.

Several months after he left, he says, the Polish secret police learned that he had been active in an underground student organization that printed and distributed antigovernment publications. He was promptly expelled from the university, he says, adding that police have since questioned his father, once fired from a government job after his repeated refusal to join the Communist Party, and brother about his long absence and activities in the US.

Andrzej, who took part in US demonstrations against the imposition of martial law in Poland, says he is convinced that he will never be able to get a job and may well be arrested for past political activism if he returns.

``I can't go back,'' he insists.

Former national-security adviser Zbigniew Brzezinski, who is a Polish-American, terms the Reagan administration's overall behavior on the Polish asylum issue ``arbitrary and unpredictable.'' For applicants, he says, it creates persistent ``anxiety and uncertainty.''

Crux of the criticism is that practice runs counter to official policy and that INS field offices vary widely in how receptive they are to similar cases.

``We have 35 district directors reading the applications,'' concedes INS spokesman Duke Austin. ``You can't say every one is a clone of the other . . . but hopefully every application is treated fairly.''

Part of the problem, says Ted Kontek, head of the immigration task force of Friends of Solidarity in Washington, is that the service arm of the INS often ends up doing more to keep people out of the country than the enforcement branch.

Instead of refusing to accept a deficient application without more information, says Mr. Kontek, INS workers often accept it without comment, knowing it will be denied.

``It's like asking the company you're applying to for a job to fill out your application,'' counters Mr. Austin of the INS. ``If we make the judgment, I don't think we can be a central party to the content.''

Kontek also says there is rarely a push to get full information from a candidate during the required asylum interview.

Andrzej K. says he put brief answers on his application, expecting to explain them during the interview. But it lasted only five minutes.

``I was ready to talk but they didn't ask,'' he says.``They don't know my story. They always have no time.''

``More and more the INS and State Department seem to be coming to the conclusion that unless you suffer actual physical abuse -- have been in prison or beaten up -- that you don't have a well-founded fear of persecution,'' says Len Walentynowicz, a Washington lawyer who represents many Polish nationals in asylum cases. ``The law doesn't say you have to be a [Lech] Walesa or a [Andrei] Sakharov or have been in prison, but that's how it's being interpreted.''

Yet Polish-Americans here point out that just applying for asylum in another country can be viewed as a treasonous offense in Warsaw. At least three Poles granted asylum in recent years have been convicted of treason in absentia by Polish military courts and sentenced to death. And involved Capitol Hill sympathizers such as Rep. Stephen Solarz (D) of New York note that it is considered a crime against the state in Poland just to participate in an outlawed organization or to demonstrate or publish criticism against the government.

Often in notifying Poles such as Andrzej that asylum has been denied, the INS makes no mention of the right to appeal such a decision and tells the applicant he must leave the country by a certain date or face deportation.

After receiving such a letter in 1982, Andrzej says he immediately went to the local INS office to request a hearing on the departure order. He has heard nothing in the three years since.

In denying asylum, the INS also usually does not mention the availability of the umbrella protection from deportation offered all such Poles who came to the US before July 21, 1984, and are ``unwilling'' to return home. That provision, first offered in 1981 and known as extended voluntary departure (EVD), is little publicized. But it has been regularly renewed and now protects all such Poles from deportation through June 1985.

INS spokesman Austin says he knows of no legal requirement -- ``I don't think we have it in written policy'' -- that applicants denied asylum must be told about their right to appeal the decision or about the availability of EVD. He says the INS knows currently of about 6,000 Poles who are in the US illegally (largely because of expired visas) but who will not be sent back to Poland as long as the EVD provision remains in effect.

But, according to the INS's own figures, some 1,147 Poles denied asylum were sent out of the country (some 900 of them back to Poland) between 1981 and 1983. The INS insists these are all ``voluntary'' departures.

``We have not sent anyone back to Poland who did not want to go,'' INS spokesman Duke Austin says.

But critics say most of the asylum seekers who have left are ``harassed'' into leaving because they are led to believe that deportation is the only alternative.

Carol Hansen, a research assistant to Dr. Brzezinski at Georgetown University's Center for Strategic and International Studies, says several senior INS officials have admitted in conversations with her that most such Poles leave only reluctantly. And she notes that 17 Poles who went back in 1982 and '83 were actually deported despite the existence of the EVD protection.

``That's something shocked us,'' says Kontek.

The Polish government has an unusually liberal travel policy -- even at one point offering to send its political prisoners to any country that would take them. But Polish-American leaders insist asylum reform would not add up to big numbers.

``The US feels if it's too generous it will have too many people, but there's no way it's going to have a flood of Poles,'' says Mr. Walentynowicz.

Only 8,000 of the estimated 50,000 to 100,000 Poles who have come to the US since 1980 as visitors, participants in academic exchanges and the like, have actually applied for asylum. And only about 1,600 have received it.

For the administration the Polish problem is to some degree bound up in the whole dilemma over what to do about the thousands fleeing into this country from El Salvador. The INS considers most of them economic migrants and has given political asylum to fewer than 3 percent of those asking for it. But the concern has been that any leniency on behalf of the Poles could stir Salvadoreans to press for similar treatment. ``One issue gets played off against the other,'' Kontek says.

Also, there is some division within administration foreign-policy ranks over what kind of strategy the US should follow with respect to the Warsaw government.

There are those in the administration who insist the Polish asylum problem is overstated.

``Poles have been receiving maximum consideration -- we've had a very, very liberal policy,'' says State Department counselor Edward J. Derwinski, a former Republican congressmen who follows Polish-American relations closely. Deportations, he says, have never amounted to more than ``a trickle.'' And, commenting on comparatively high Polish refugee acceptance rates, counselor Derwinski notes that Poles commit themselves, in accepting US visitor visas, to return home to the same conditions. ``It's totally different from a [refugee] escape situation,'' he says.

Austin says: ``I think the Polish interest groups would want you to think that anybody from Poland should be granted asylum. We get the same thing from people supporting El Salvador or the Nicaraguans or the Hungarians -- that anybody you turn down should have a right to stay here. Well, we turn down people from the Soviet Union, too.''

Still, Polish-American leaders say the INS could resolve what they see as a Polish asylum problem by simply following its own guidelines more closely. They do note a number of on-paper improvements in recent months. The asylum approval rate for Polish nationals, for instance, went up to about 40 percent last year, according to Mr. Austin. The INS also has said it will take a more active role in training people how to prepare their applications or refer them to community groups for help. And the INS headquarters has sent out a sample asylum denial letter that mentions the applicant's right to appeal.

But Kontek notes that the model letter is only suggested and not mandatory and that, so far as he has been able to determine, only the Baltimore field office is following the advice. ``There have been some superficial changes, but we haven't seen any evidence of an improved attitude in the INS field offices,'' he says, noting that ``deportations'' continue despite official INS denials.

Many of those concerned about this issue feel that at this point only presidential or similarly high-level instructions can make a significant difference in practices followed.

During the last half of 1984 it appeared that President Reagan might get directly involved by signing a National Security Council (NSC) directive, such as he did for Southeast Asians in May 1983. It would have called for a review of all Polish asylum-denial cases since 1981 and would have eased up on the documentation required by establishing categories of people likely to suffer persecution if returned, such as former members of Solidarity. Mr. Reagan had given assurances to Polish-American leaders of his concern about the problem on more than one occasion before the election.

But Justice Department objections, INS promises to make changes on its own, and the lifting of martial law in Poland, effectively scuttled the NSC directive. Not even an October letter-writing effort to the White House by 33 US senators appeared able to revive it.

Yet many, including Dr. Brzezinski, insist some similarly comprehensive solution is still vitally needed.

Kontek says he thinks the best hope for the moment is to get some action from Congress or at least congressional hearings to focus on the problem.

Probably the most optimistic Polish-American leader on this issue is Aloysius Mazewski, president of the Polish-American Congress, an umbrella organization of more than 3,000 groups and a man with close ties to the White House.

He insists, as he has for some time, that the whole situation is on the verge of resolution. ``There are problems but they should be worked out within the next week or so,'' he said recently. ``I'm awaiting word from the INS and the White House on it.''

He says it will probably be a directive of some kind that applies to all asylum seekers and not just Poles.

Hundreds of Polish nationals like Andrzej have a great deal riding on any such solution. Since coming to this country, Andrzej has married his college girlfriend (who came over on a tourist visa) and they now have two children. Although his work status is technically in legal limbo as long as his case is unsettled, he has launched his own import distribution business in a storefront on Chicago's Northwest Side.