African Man’s Asylum Status In Hands Of Immigration Judge (Updated)

Dave Reynolds, The New Standard, Oct. 21

The fate of an African man seeking asylum in the US, who supporters say is mentally retarded and was just 16 years old when he entered the country, could be decided by an immigration judge next month. The immigrant, Guinea native Malik Jarno, said he will face persecution and possible death if returned to his home country. The case is rife with apparent irregularities that have alarmed Jarno’s advocates and brought swarms of assistance to the young immigrant’s defense.

During a hearing that spanned nearly two months and ended October 1, federal officials and Jarno’s lawyers presented Immigration Judge Joan Churchill with what she told them was the largest body of evidence she had ever seen in an asylum case.

Jarno told the Associated Press last week that he was glad the testimony was over. “I was nervous when I testified, because the questions they asked make no sense,” he said.

Jarno, who says he is now 19 years old, has been in the immigration system for nearly four years, spending much of that time in Pennsylvania and Virginia prisons. He did not see an immigration judge during his first eight months in the US, in violation of his rights under US immigration law, Amnesty International says. Nor was he provided an attorney until fellow inmates obtained help for him through an American Islamic group.

According to Amnesty International, Jarno’s mother died when he was 12. His father, a well-known Muslim imam and opposition activist, died six years ago while imprisoned by the Guinea government. Other family members are missing and presumed dead. His home and neighborhood have been destroyed.

Jarno says that he fled to France in 2000 with an aunt and uncle who quickly abandoned him. He stayed with a Moroccan friend for a time, but when the man decided to return to Morocco, he obtained a fake passport for Jarno and put the Guinean on a plane bound for Dulles International Airport in Washington, DC. According to Jarno, the friend told him he would be safe in the United States because “it is the land of freedom.”

Officials with the US Immigration and Naturalization Service immediately noticed that Jarno’s passport was bogus. Investigators located a birth certificate that showed he was born January 7, 1985, but the agency said it could not verify the document’s authenticity.

They then used dental and wrist X-rays to determine that Jarno was an adult in his mid- to late twenties. Reuters reports that the use of such X-rays is highly controversial, with even then-INS Commissioner James Ziglar saying that the agency was reviewing their use and Congress considering banning the procedure as the sole determination of age.

Officials argue that the bogus passport, along with the questionable birth certificate and claims of his age, all cast doubt on Jarno’s credibility and his assertions that he would be killed if returned to Guinea.

Bill Strassberger, a spokesman for DHS, told the Associated Press that, since Jarno lied when he entered the country, his other claims are suspect.

“The most important thing an applicant takes into the asylum process is credibility,” he said last week. “When that credibility is damaged, it makes it that much harder.”

Christopher Nugent, an attorney with Holland and Knight, countered in an interview with the York Daily Press that Jarno’s testimony over the last two months went a long way to establishing his credibility. Nugent’s firm, along with several others, has donated millions of dollars of their services to help Jarno.

Jarno’s lawyers have accused the INS, which has since been absorbed by the Department of Homeland Security (DHS), of engaging in pseudo-science to justify its position on the young man’s age.

DHS officials and Jarno’s advocates also disagree on his cognitive ability. One psychologist hired by his lawyers determined in 2002 that the French-speaking Jarno has an IQ of 47 and “the mental ability of an 8-year-old.” The doctor also determined that Jarno was incapable of making up and sticking to a sophisticated story about himself.

The York Daily Reader reported that two other tests, performed in 2001 and 2003 by a clinical psychologist, measured Jarno’s IQ at 63 and 66. Most experts consider an IQ of 70 or below to indicate “mental retardation.”

Amnesty International says that without a family to care for him in Guinea, Jarno’s mental condition would make him increasingly vulnerable to abuse and mistreatment as a homeless orphan in his native country.

Government officials question the results of the IQ tests, blaming cultural and language differences for his low scores.

Jarno also claims that while he was in prison here in the US he was assaulted by other inmates, pepper-sprayed, beaten by prison guards, and held in solitary confinement for an entire week.

One fellow inmate who witnessed Jarno’s treatment in prison wrote in a statement: “They [prison guards] jumped on the little boy. At least six persons I could see pushed him, twisted his arms, held his legs, put him on the wall and pressed and then on the floor. It was so horrible I turned my eyes away.”

His attorneys have argued that Jarno should not have been jailed, especially for that long. Instead, he should have been treated as an abandoned foreign-born child and given an immigration green card so he could stay.

Last December, DHS Undersecretary Asa Hutchinson ordered Jarno released from prison to the custody of the International Friendship House, a refugee shelter in York, Pennsylvania.

In addition to help from Amnesty International, Jarno’s case has attracted the support of other groups, including Lawyers Committee for Human Rights, the American Bar Association, and the NAACP.

Jarno’s situation has also prompted legislation to protect the estimated 5,000 children that arrive each year in this country without their parents.

The Unaccompanied Alien Child Protection Act of 2004, introduced to the Senate last year by Sen. Diane Feinstein, D-California, would prohibit the use of radiographs, such as x-rays, or statements from aliens, as the sole means of determining the age of an “unaccompanied alien child” (UAC). Several kinds of evidence would be allowed, including the testimony of the child. The bill would also provide an appeals process for such age determinations.

The measure was approved by the Senate on October 11. A companion House bill awaits a vote in the Subcommittee on Immigration, Border Security, and Claims.

While the Act would not help Jarno, US Representative Chris Van Hollen (D-Maryland) introduced legislation in July that would specifically grant Jarno legal immigration status regardless of Churchill’s decision. Seventy members of Congress have signed on to the bill, that is currently awaiting a vote in the same House subcommittee.

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