![The New York Times]()
April 28, 2005
In Rare Accord, Spurned Asylum Seeker to Get $87,500
By DEAN E. MURPHY
AN FRANCISCO, April 27 - In a rare settlement, the federal government has agreed to pay $87,500 to a woman from Kenya who was denied entry into the United States even though she says she expressed fears for her life in Kenya.
The woman, Rosebell N. Munyua, was returned to Kenya by immigration officials at San Francisco International Airport in March 2001. She was admitted six months later on a tourist visa in Houston and now lives with her two daughters in Santa Rosa, Calif. She was granted political asylum in September 2002.
The proposed settlement was submitted Wednesday in federal court here and requires approval by United States Magistrate Judge Elizabeth D. Laporte. In January, Judge Laporte dismissed several of Ms. Munyua's claims against immigration officials, including assault and false imprisonment, but allowed a claim of negligence to go forward.
Lawyers for Ms. Munyua said it was the first time in which an arriving refugee had successfully sued the federal government by accusing immigration officials of negligence. Other civil rights lawyers and experts on asylum cases, though uncertain that Ms. Munyua had broken entirely new ground, agreed that the settlement was remarkable.
"It's a big deal," said Anwen Hughes, a staff lawyer in the asylum legal representation program at Human Rights First, an advocacy group based in New York. "This is a rare case where somebody actually made it back to the United States, applied for asylum and was lucky enough to find counsel to gain compensation for injuries."
Peter Duignan, a historian and senior fellow at the Hoover Institution who has written extensively about immigration, said most people who were turned away at airports by immigration officials were never heard from again.
"I've never heard of anyone actually getting any money like this," Dr. Duignan said.
Ms. Munyua, 35, had sought more than $1 million in damages, but she said Wednesday that she was not disappointed in the settlement.
"I wasn't sure what I was hoping for," Ms. Munyua said in a telephone interview. "I was just hoping for some justice to be done."
She added, "I'm excited. I got a chance to stand up for myself."
In agreeing to the payment, the United States attorney's office, which represented the Department of Homeland Security, admitted no wrongdoing by federal officials.
A spokesman for Kevin V. Ryan, the United States attorney in San Francisco, would not comment on the settlement, but pointed to a provision in it that states it was "for the purpose of compromising disputed claims, avoiding the expenses and risks of litigation, and buying peace."
Philip Hwang, a lawyer with the Lawyers' Committee for Civil Rights in San Francisco, which represented Ms. Munyua, said the settlement carried symbolic significance beyond Ms. Munyua's case. The committee is already bringing another suit involving a woman who was sent back to Zimbabwe, Mr. Hwang said.
"Our hope is that by providing some measure of accountability, by allowing refugees to sue the United States, it will have tremendous impact in making sure the government follows the correct procedures," he said.
According to the lawsuit, Ms. Munyua fled Kenya with one of her daughters in March 2001 after being beaten by Kenyan authorities for anti-government political activities. In one incident cited in the suit, Kenyan police put plastic bags over the heads of her two children and made her husband strip naked, beating him until he was unconscious. The suit says her husband eventually went into hiding in neighboring Tanzania.
Arriving in San Francisco, Ms. Munyua's right arm was bandaged from a beating, and, the lawsuit said, she told an immigration officer, "If I go back, I am going to be killed." Under federal law, immigration officials are required to refer people who express a fear of returning to their home country to an asylum officer. That did not happen in Ms. Munyua's case.
In reply to the suit, immigration officials said that Ms. Munyua never expressed a fear of returning to Kenya and that she voluntarily withdrew her application for admission.
A study on asylum seekers by the United States Commission on International Religious Freedom, released in February, found that such "he said, she said" situations were not uncommon, said Mark Hetfield, who directed the study.
In 79 cases observed at airports in which people expressed fear of return, 12 were not referred to an asylum officer. In 7 of the 12, the immigration inspector stated incorrectly in a sworn statement that the applicant had no fear of return.
Though not familiar with the details of Ms. Munyua's case, Mr. Hetfield said the system was stacked against such legal challenges.
"All the evidence they have is a paper file created by the inspector," he said, "so any misbehavior by the inspector would not be captured. It is amazing any case would come this far."
Copyright 2005 The New York Times Company
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