The game of refugee roulette: David Ngaruri Kenney's story reveals the dark side of immigration law

National Catholic Reporter, May 2, 2008 by Colman McCarthy

If in your darker moments you believe, as I do, that a law is what a judge says it is, the story of David Ngaruri Kenney offers strong confirmation. What he has endured these past years as he sought asylum in the United States from persecution and possible death in his native Kenya reveals a system of adjudication that is arbitrary, arcane and politicized.

It's known as refugee roulette, a grim game played by uncounted thousands every year and overseen by judges in federal immigration court, the board of immigration appeals and the U.S. Court of Appeals, plus bureaucracies in the Department of Homeland Security and the Department of State.

Under the Refugee Act of 1980, which amended the Immigration and Nationality Act of 1952, those seeking safety in the United States need to prove that torture or death await them if they are returned to the country they fled. Mr. Kenney foresaw no difficulty there. Under the violent and corrupt Kenyan government of Daniel arap Moi, he spent eight months being severely tortured and nearly executed. His crime? Organizing a 1992 protest of fellow tea farmers who were dying and starving because of government controls that kept prices low or below the profit margin.

Upon release from prison, he was befriended by Peace Corps volunteers assigned to Kenya. At first they had visions of the young Kenney becoming a basketball star in the United States owing to his 7-foot height. That wouldn't pan out--in his early 20s, he had never held a basketball and didn't know a dunk from a double dribble--but after being tutored in English and math by the Peace Corps volunteers, he won a student visa to the United States. He earned degrees at two Catholic schools: St. Gregory in Oklahoma and the University of San Francisco. In 2000, his student visa expiring, he applied for asylum.

On meeting and interviewing Mr. Kenney last year, I found him to be gracious, informed and agile with ideas. He was adding some final pages to Asylum Denied, his memoir cowritten with Philip Schrag, a colleague of mine at Georgetown University Law Center. The book, published this month by the University of California Press, is a model of polished prose and informed advocacy that brings the reader into the life of a man who, for all any functionary in the U.S. government cared, was a castoff, worthy of nothing but a deportation decree.

Despite the impassioned legal help of two Georgetown Law students overseen by Professor Schrag, Mr. Kenney lost in his first hearing before an asylum officer in Arlington, Va. He challenged the ruling and went higher to the Board of Immigration Appeals. The randomly assigned judge had one of the lowest asylum-grant rates in the country. According to the Department of Justice, 42 percent of the 463 asylum applications from Kenyans in one recent four-year period were granted by immigration judges. Kenney's judge had a 0 percent grant rate. Nationally, the rate for applicants from all countries was 38 percent, for Kenney's judge 17 percent.

More than 200 immigration judges are currently deciding life-and-death cases, with little accountability on the different rates. The roll of the dice in the federal Court of Appeals is similar, depending on the politics and dispositions of the judges.

The Georgetown law students put together an appeal based on 561 pages of evidence of Mr. Kenney's persecution and torture in Kenya, plus 80 pages of corroborating affidavits.

It went for nothing. The judge ruled that because Mr. Kenney had returned to Kenya for two months in 1997--to protect a brother whose life was threatened--and had not been persecuted, he was therefore not in danger in his homeland.

Professor Schrag filed a brief in 2003 with the federal Fourth Circuit Court of Appeals, which meant that Mr. Kenney was unlikely to be deported until a decision was finalized there. He lost 3-0.

After all these defeats, where is David Ngaruri Kenney today? He earned a law degree last year from The Catholic University of America and works in the Montgomery County, Md., State's Attorney's office. On Halloween 2003, he married a former Peace Corps volunteer and fellow law student at Catholic University. To prevent foreign nationals from abusing immigration laws by arranging fake marriages, authentication documents are required by the Department of Homeland Security. The couple filed a petition of 176 pages, with everything from joint bank account statements to apartment leases.

David Kenney was lucky in love and in finding pro bono help at Georgetown. But what of the thousands of others, the ones sent back to dungeons and disappearances--all because they had judges of unaccountable judgment?

[Colman McCarthy teaches peace studies in the Washington area.]