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Seeking Asylum; Getting Deported

When Teresa M. Medina filed an application for asylum in the United States, she supplied a sworn statement that if forced to return to her native Philippines, she would "once more be subjected to persecution by the Communist Party of the Philippine/New People's Army (CPP/NPA)." She gave details of persecution, harassment and threats for refusing to broadcast anti-government, pro-Communist propaganda in her capacity as a newscaster.

Medina's case was heard first by an "asylum officer" who found her story incredible and then by an immigration judge, who agreed. The case of Medina v. Gonzales (previously known as Medina v. Ashcroft) is her appeal to the 2nd Circuit Court of Appeals in New York. The Court, which is often described as the "court of last resort before the Supreme Court of the United States," has dismissed Medina's petition for review, thereby allowing her deportation to go forward.

In an opinion by federal Judge Robert A. Katzmann, the three-judge bench agreed with the Board of Immigration Appeals that, in addition to the affidavit, Medina gave false testimony in her immigration interview. The judges found that false oral statements made under oath are included in the Immigration and Nationality Act definition of testimony, although not expressly defined by Congress; that the testimony was false; and that Medina did not meet the test of possessing good moral character. "Any alien," the opinion said, "who makes false oral statements under oath during an asylum interview with the subjective intent of obtaining immigration benefits is per se ineligible for suspension of deportation due to want of good moral character." Remaining in the United States is an immigration benefit.

At the interview Medina repeated under oath the same story of political persecution provided in the affidavit. Her stand against terrorism and banditry, her candor, prompted even more harassment from the CPP/NPA, she said, including harassing phone calls and threatening notes, all of which led her to believe she had no choice but to flee and go into hiding. While underground, the CPP/NPA began visiting and harassing her family, even warning them that, if ever discovered, she should be shot on sight, she said, according to the opinion.. The asylum officer deemed her as "not credible in material respects," a finding which the federal appeals court later called prescient. He declined to grant Medina asylum, and her case was then referred for a hearing before an immigration judge.

It became clear at the hearing that Medina's harrowing story of political persecution was a total fabrication. Confronted with prior testimony in which she had said she had worked only at the Hyatt Hotel in the Philippines from 1985 to the time she left that country, Medina admitted that her story was "made up" But she blamed it on her lawyer, saying he told her it was the way to achieve asylum. She "just wanted to be able to work here in the United States... . I didn't mean to lie,"she told the immigration judge.

Q. Ma'am, is this application, this statement, which mostly talks about your career of broadcasting for Eagle Broadcasting Station for 1987, and the troubles that you had as a result of that job, is that a lie? Is that made up?

A. Yes, it is made up.

According to Medina, her attorney told her that this should work for a political asylum status, that the story she adopted was a creation of her counsel (who was eventually replaced for ineffective assistance).

In order to become eligible for suspension of deportation, an alien must satisfy three statutory prerequisites: (1) she must have been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of her suspension application; (2) she must prove that during this period she was - and continues to be - a person of "good moral character;" and (3) she must be a person whose deportation would in the opinion of the Attorney General, result in extreme hardship to... a citizen of the United States or an alien lawfully admitted for permanent residence.

Even if Medina met the other requirements, during the period for which good moral character is required to be established, she gave false testimony for the purpose of obtaining benefits under the Immigration and Nationality Act. Any applicant who makes such false statements with the subjective intent of obtaining benefits such as remaining the United States must be deemed ineligible for suspension of deportation on the ground that she lacks "good moral character."

Moreover, the federal judges wrote,"...even if Medina's initial counsel provided ineffective assistance, this would not excuse Medina from her obligation to testify truthfully during the asylum interview, given that she took an oath to tell the truth during that interview and there is no reason to doubt that she understood all that the oath required.

It is expected that Medina will soon be deported to the Philippines. Immigration lawyers say there is no chance that the Supreme Court of the United States will hear her case.

Emily Jane Goodman is a New York State Supreme Court Justice 













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