The Snakehead: An Epic Tale of the Chinatown Underworld and the American Dream (28 page)

For no other nationality is the disparity between grant rates on asylum cases as high as it is for the Chinese. One reason for this is simply that by virtue of its huge population, China represents an area in which the principle-driven platitudes of asylum and refugee law inevitably collide with more pragmatic concerns. With one fifth of the world’s population, some 900 million of whom are peasants, China has a way of dousing any humanitarian assumptions with a colder demographic reality. There is a famous story about Deng Xiaoping’s visit to Washington in January 1979, when President Jimmy Carter scolded him about China’s restrictions on the “freedom of departure”—the right to emigration—and suggested that more people should be permitted to leave China. According to the story, Deng fixed Carter with his slightly beady gaze and said, “Why, certainly, President Carter. How many millions would you like?”

China’s population was one major factor bedeviling determinations of whether and when to grant asylum to people fleeing the country. The other major, and not unrelated, factor was China’s one-child policy. One month before the massacre at Tiananmen Square, these issues came to a head in a landmark court case called
Matter of Chang
. Chang was a Fujianese migrant who had fled to the United States and requested asylum, saying that the authorities in China had wanted to sterilize him and his wife following the birth of their second child. Chang lost his bid for asylum before an immigration judge. Traditionally, asylum-seekers must demonstrate that they have been persecuted in the past, or might be in the future, on the basis of their race, religion, nationality, political opinion, or membership in a particular social group. Coerced sterilization may have been a brutal practice, but it did not fit neatly in the established categories of persecution. Shortly after Chang’s claim was rejected, however, Ronald Reagan’s attorney general, Edwin Meese, issued guidelines to the INS suggesting that asylum could be granted to applicants who expressed a well-founded fear of persecution based on China’s family-planning policies. In Meese’s view, if the emigrants had refused to have an abortion or be sterilized, that refusal could itself be
construed “as an act of political defiance,” and as such grounds for asylum in the United States.

Meese’s guidelines seemed to offer Chang new hope, but when he appealed his case to the Board of Immigration Appeals, in Falls Church, Virginia, the board was reluctant to bow to a standard that would in principle make any fertile Chinese parent eligible for asylum in the United States. Instead, the board held that even if Chang or his wife faced possible sterilization by the government, that would not constitute “persecution,” because it was not directed at them specifically. They weren’t being singled out. The one-child policy applied to everyone. And they had violated it.

Matter of Chang
was not a case that made headlines when it was decided. But for U.S. officials concerned about the number of asylum applicants coming from China, it served a valuable purpose. The opinion went on the books and could be pointed to by future immigration judges. Chang’s attorney, a lanky Brooklyn-born immigration lawyer named Jules Coven, who represented many Fujianese clients, could see the impact the ruling would have: if
Matter of Chang
took hold as a precedent, it would allow the government to deny thousands of asylum applications by Chinese fleeing the harsh tactics of the population enforcement cadres. Coven wanted to challenge the decision in federal court. But when he met with the assistant U.S. attorney assigned to the case, he realized how important it was to the government that the precedent established by
Matter of Chang
remain uncontested. In something of a backroom deal, the government lawyer assured Coven that if he let the matter go and opted not to appeal the ruling, Chang himself would be quietly granted asylum. Coven knew the momentous impact that the ruling would have on the cases of his other clients, and it gave him pause. But as an attorney, his first duty of loyalty was to his client Chang. So he took the deal, and
Matter of Chang
established the precedent that a well-founded fear of forced abortion or sterilization under China’s one-child policy was not an adequate ground for asylum in the United States.

One fascinating feature of America’s ongoing debate over immigration is that it seldom tracks neatly along existing partisan predilections.
Matter of Chang
might have seemed like the sort of tough-on-illegal-immigration measure that would be embraced by conservative hardliners. But a vocal contingent of pro-life and anti-Communist Republicans in Congress objected to the decision. Tiananmen unfolded a month after the
Matter of Chang
decision, and in the wake of the massacre, Congress voted on the Emergency Chinese Immigration Relief Act of 1989, which included a provision that would effectively overrule
Matter of Chang
, conferring refugee status on the basis of the one-child policy. The bill passed both houses of Congress, but George H. W. Bush vetoed it. When he did so, however, he claimed that he could “accomplish the laudable objectives of Congress” through executive action.

The executive action he had in mind was the famous directive of April 1990, which instructed the secretary of state and the attorney general to give “enhanced consideration” to individuals fleeing coerced sterilization or abortion in China. In January 1993, in the final days of the Bush administration, the outgoing attorney general, William Barr, signed a rule stating that forced abortion and sterilization were grounds for asylum, and noted explicitly that “one effect of this rule is to supersede the Board in
Matter of Chang.”
But in order for a rule to take effect, it must be published in the
Federal Register
. Barr signed the rule and sent it to the register, and it was scheduled for publication on January 25. But on January 22, after Bill Clinton’s inauguration, the new administration issued a directive prohibiting the publication of any new regulations before it had approved them. So Barr’s rule never took effect.

Some uncertainty about whether a claim of persecution under the one-child policy was sufficient ground for asylum endured through the early months of the Clinton administration, and still hung over the immigration process when the
Golden Venture
arrived on June 6. When Clinton assembled his staff in the Oval Office on June 11, one prominent item on the agenda was “modifying Bush administration policy regarding
enhanced consideration of asylum claims based on one-child policy in China.”

B
ill Clinton was something of a cipher when it came to immigration. On the campaign trail he had accused the Bush administration of “immoral” repatriation of boat people from Haiti, but after having promised to reverse that policy, he found his own inauguration marred by reports of over 150,000 Haitians preparing to board rickety boats on stormy seas in order to arrive after he was sworn in. Not wanting to introduce a magnet policy of its own, the administration announced that it would “study” the policy of its predecessors—but not necessarily change it. Clinton was above all attuned to the political mood of the country. After his nomination of Zoë Baird for attorney general was derailed when it was revealed that she had hired illegal immigrants as household help, and
Time
magazine ran a cover story on the botched nomination under the headline “His First Blunder,” he might have felt especially sensitive on the immigration issue.

To Doris Meissner, Clinton’s choice to run the INS, it seemed that something else was weighing on Clinton’s mind as he evaluated how to address the influx of Chinese asylum-seekers. Clinton had lost only one election in his life, his bid for reelection as governor of Arkansas in 1980. The months leading up to the election had coincided with the Mariel boat lift from Cuba, and some 25,000 Cuban refugees had been transferred to Fort Chaffee, a facility in western Arkansas that had been used in the mid-seventies to house refugees from Vietnam. During the summer of 1980 the Cubans at Fort Chaffee rioted, and thousands of them escaped the installation. Some of the Marielitos had criminal records or mental instabilities, and there was a run on firearms in every gun store within 50 miles of the fort as local residents armed themselves, fearing that they might literally have to fight the Cubans off. As governor, Clinton had ordered the National Guard to assist state and local police in preventing the refugees from leaving the fort, but the panic
engendered by the events at Fort Chaffee was enough to turn supporters against him, and he attributed the loss in November in no small measure to “the Cubans.” Even after the
Golden Venture
landed in Queens, Meissner thought Clinton was still “very conscious of having been burned” by the Fort Chaffee incident, and highly attuned to the political vulnerabilities that an appearance of being soft on immigration can create.

Clinton’s managerial style was, famously, to let his advisers pick positions and duke it out among themselves, engaging in a kind of protracted policy bull session that would eventually yield a solution. In the weeks and months after the
Golden Venture
arrived, the main arguments for taking a limited view of the kinds of allowances that should be made for the passengers was articulated primarily by the State Department. The fear among many officials in Washington was that America’s asylum policies had become a magnet for illegal Chinese, actually encouraging them to leave their homes, pay snakeheads, and undertake perilous voyages to the United States. Tim Wirth, the undersecretary of state for global affairs, complained that America’s asylum posture toward the Chinese had become “the come on down” policy.

According to the State Department, many of the asylum applicants were lying about the conditions back in China. “The majority of the Chinese who are coming here illegally … are principally economic migrants,” Wirth wrote in a letter to the deputy national security adviser, Sandy Berger. State Department officials had been told by Chinese authorities that “the magnet effect of our permissive asylum policies was primarily responsible for the massive outflow of Chinese illegal aliens into the U.S. over the past two years.”

State prepared a report casting doubts on asylum applications brought by migrants from Fujian Province. Claims brought by Fujianese who cited involvement in the pro-democracy movement in 1989 should be treated with skepticism, the memo maintained. And as for the one-child policy, the implementation of population controls in Fujian was actually “more relaxed” than in other parts of China. Forced abortion
and sterilization were not as common as the number of asylum applications would seem to indicate.

On the other side of the argument was the INS, and in particular the agency’s general counsel, a holdover from the Bush administration named Grover Joseph Rees III. Rees was a courtly constitutional law professor from a prominent family in Breaux Bridge, Louisiana. He was wiry, with a sly smile and intelligent, slightly bloodshot eyes. Rees was the youngest of his parents’ twelve children; he was also ardently pro-life. Some critics disparaged him as a fanatic, an “anti-abortion zealot.” To Bill Slattery Rees seemed like a single-issue person, a bureaucrat with an agenda.

But Rees’s philosophical differences with Slattery involved more than simply his opposition to China’s population-control problems. If Slattery was a quintessential enforcement guy, Rees was a quintessential benefits guy. Rees believed that the INS had lost track of its mission, which was to offer safe harbor to people; that the agency, and Washington more generally, had been hijacked by the enforcement mentality. Rees had always believed that those fleeing coerced abortion or sterilization should be able to find refuge in the United States. Following George Bush’s executive order, he had sent a letter to all regional INS offices reiterating that “application of such coercive policies” does constitute persecution. He instructed INS personnel to “be just as diligent in searching for indications that the applicant or the applicant’s evidence may be credible as for indications that it may not be.”

In Rees’s view, the only crime of the people aboard the
Golden Venture
was having escaped from one of the most dangerous countries in the world. He felt that the administration was dramatically overplaying the risk that the country would be swamped by asylum-seekers. At the same time he believed that the State Department was underestimating the amount of coercive birth control going on in China. Six weeks before the
Golden Venture
arrived, Nicholas Kristof, the
New York Times
correspondent in Beijing, wrote a front-page story revealing a crackdown on the birthrate in China that had commanded a couple of years
earlier, at precisely the time when Chinese began leaving for America in substantial numbers. “Through compulsory sterilization and other measures, China has lowered fertility to by far its lowest level ever here,” Kristof reported. Abortion was less common in China than it had been during the 1980s, the article suggested. (Figures from China’s Ministry of Health, which are probably incomplete, record a peak of 14 million abortions in 1990.) But as a tactic it had been replaced by “compulsory, organized sterilization.” “Typically, local cadres swoop down on each village once or twice a year, taking all the women who have already had children to a nearby clinic,” Kristof wrote. There had been a 25 percent surge in the number of people sterilized in 1991, to 12.5 million. And women who would not voluntarily abort surplus children were sometimes fined hundreds or even thousands of dollars, at a time when the per capita income in the Chinese countryside was roughly $135 a year.

Rees found it scandalous that in the face of such reports, the United States would adopt a jaundiced, cynical view of the claims of asylum-seekers fleeing the one-child policy. He worried that because the passengers on the
Golden Venture
and other ships had been obliged to pay snakeheads to smuggle them into the United States, the government was viewing them not in their capacity as asylum-seekers but in their capacity as smuggled aliens. That was the “overwhelming spirit” in which Washington approached the
Golden Venture
, Rees thought.