THE Justice Department agreed last week to consider anew the cases of as many as 150,000 Salvadorans and Guatemalans who have been denied political asylum in this country since 1980. In a court settlement that some say implicitly acknowledges 10 years of foreign-policy bias in the political asylum process, the United States government also said it would change the way political asylum cases are reviewed by the State Department.
The settlement, once it receives final judicial approval in January, will close a five-year-old lawsuit between the US government and Salvadorans and Guatemalans. Lawyers for the would-be immigrants and concerned church groups said in 1985 that the political asylum process here was biased against refugees from El Salvador and Guatemala, because the US supports those countries and has not wanted to embarrass their governments.
The lawyers draw contrasts such as this: From 1981-89, 4 percent of Salvadorans who asked the Immigration and Naturalization Service for political asylum received it; the rate is 2 percent for Guatemalans. But 30 percent of Nicaraguans and 63 percent of Iranians were given asylum.
``This settlement is a major victory for all Salvadorans and Guatemalans in this country whose claims for political asylum were being summarily denied for purely foreign policy reasons,'' says Marc Van Der Hout, the lead attorney for the Salvadorans and Guatemalans.
In the agreement, filed with federal district judge Robert Peckham in San Francisco, the government did not say that the asylum process has ever been flawed. But the document did reiterate that ``foreign policy ... considerations are not relevant to the determination of whether an applicant for asylum has a well-founded fear of persecution.'' May affect 500,000
Mr. Van Der Hout says the promise of a better asylum system may encourage other Salvadorans and Guatemalans, now living here illegally, to seek asylum. An estimated 500,000 people could be affected by the agreement. Those who apply will be allowed to work here while their cases are handled.
The government also agreed to release Salvadorans and Guatemalans now being held by the Immigration and Naturalization Service (INS) and to freeze deportation proceedings against illegal aliens from those countries so that they can seek asylum. These provisions do not affect those who have committed serious crimes.
The benefits of the settlement are available to Salvadorans who came to the US before Sept. 19, 1990, and to Guatemalans who came before Oct. 1.
Alan Nelson, who was INS commissioner during much of the past decade, says he is ``hard pressed to understand why the government would agree to'' the settlement, and wonders whether felons and people ``who never even asked for asylum'' will be encouraged to apply in order to remain in the US. Is the government ``in effect, going to draw a lot of others in?'' Mr. Nelson asks.
A longtime proponent of tougher controls on illegal immigration, Dan Stein, says the settlement will provide illegal immigrants with procedural delays to stave off deportation. Mr. Stein, executive director of the Federation for American Immigration Reform, also says ``the government has finally decided we would be better off spending millions of the taxpayers' money on reopening thousands of asylum cases'' than on fighting a massive court battle.
But refugee advocate Arthur Helton of the Lawyers Committee for Human Rights calls the pact ``a testimony to new INS leadership'' and a ``stark departure from the siege mentality that characterized the INS litigation position hitherto.'' Official reaction muted
Government reaction to the agreement was muted. ``It's obviously going to generate some kind of addition to our backlog,'' says an INS spokesman, adding that at the end of October more than 100,000 political asylum cases were awaiting decisions.
One government official familiar with the case, who asked that he not be identified, says the settlement is more of a critique of the State Department's review process than of decisions rendered by INS - although he adds that INS has ``not [been] blameless'' in relying too heavily on State's guidance.
Up until this settlement, and new asylum regulations now being implemented by the INS, the State Department had to review every request for political asylum and offer an assessment based on knowledge of the applicant's case and country. But the assessment often came in a form letter that advised against asylum without any supporting evidence from the applicant's case.
Says David Hopper, who became the director of the State Department's Office of Asylum Affairs six months ago, said: ``Things are done to speed the administrative process that are not always perfect.'' He says the provisions of the settlement call for broader training of the State Department's asylum reviewers, and for their use of human rights information developed by outside agencies.
The National Lawyers Guild and the Center for Constitutional Rights filed the case in 1985, and were assisted by attorneys from the American Civil Liberties Union and the San Francisco law firm of Morrison & Foerster.