Immigration and Naturalization Service v. Elias-Zacarias

We'll hear our argument first this morning, number 901342, Immigration and Naturalization Service versus Hiro Jonathan Elias Zacharias.

Hey everyone, this is Leon from Fiasco and Prologue Projects.

On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about INS v.

Elias Zacharias.

It's an immigration case in which a man was denied an asylum hearing.

The government argued that avoiding conscription into a rebel army is not a political opinion, and thus Elias Zakarius was not qualified to seek asylum on the basis of political persecution.

The argument was that just because someone is avoiding harm doesn't mean they are politically opposed to the harm.

Supposing a voter says the reason I'm voting for candidate X is because I'm afraid of the harm of losing my job.

Would that be a political opinion?

They don't understand the economic theory and the various political dialogues that go on.

How would that be different from this?

As you'll hear, the hosts would argue it's not different.

But the court ruled against Elias Sakarias and sent him back to Guatemala.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left our nation tired and overburdened like an accountant during tax season.

I'm Peter.

I'm here with Rhiannon.

You talking personal stuff today, Peter?

Bringing personal stuff onto the podcast.

Yeah, look, I,

so the audience knows, I just finished telling Michael and Rhiannon a bunch of information they did not want to hear about my tax, my tax season so far.

That's right.

And asked for advice.

It's

a big mistake.

Yeah.

And Michael's here too.

Hey, Michael.

Hey, everybody.

Today's case is INS v.

Elias Zakarius.

This is a case from 1992 about a man seeking asylum in the United States.

If you are a foreign citizen, you can seek asylum in the U.S., but only if you meet certain criteria.

One of those criteria is persecution on the basis of political opinion.

As you all know, the United States is a beacon of freedom that shines the world over, and therefore we want to be a safe harbor for anyone who is experiencing oppression based simply on their politics.

Enter Hiero Jonathan Elias Sakarius, who flees Guatemala and enters the United States without documentation in 1987.

He is arrested, and then he seeks asylum.

His basis for asylum is that he was persecuted for his political opinions because when he was in Guatemala, rebel guerrillas entered his home and demanded he and his family join the rebellion.

They refused, fearing reprisal from the government.

Shortly after, he fled the country, fearing that the rebels would return, and sought asylum in the United States.

But the Supreme Court, in a 6-3 decision written by Antonin Scalia, rejected his claim, saying that wanting to escape forcible recruitment into a rebellion is not a political opinion, and therefore he is not qualified for asylum.

Now,

before we let Reed get into the facts here, we're mixing it up a little.

Yeah.

Some political history might be useful because this man is fleeing the Guatemalan Civil War.

which was fought for nearly 40 years from 1960 to 1996.

And what led to the Guatemalan Civil War was the fact that for many years, the United Fruit Company, now Chiquita, had monopolized and exploited huge percentages of Guatemalan land, having stolen it from indigenous people with the assistance of a string of dictators.

In the 1940s, popular pressure forced the existing authoritarian leadership out of power, and elections were held.

The result was a string of relatively progressive leaders for the time, including the 1951 election of Jacobo Arbenz, who implemented some reforms that took land back away from the United Fruit Company.

United Fruit Company, in turn, asked the United States government to overthrow the government of Guatemala.

Casual.

Yeah.

And that put the great and noble United States in a bind.

On one hand, America is the birthplace of modern democracy and of course wants nothing more than to support and affirm democratic self-governments the world over.

On the other hand,

one of the biggest fruit companies in the world

wants some of its land back.

So tough decisions, right?

Yeah, you got to balance these things.

Yeah.

And the United States, after what I imagine was some really tough deliberation, they backed a coup.

and installed arguably the most violent government regime in Latin American history, responsible for a remarkably cruel genocide targeting political opponents and indigenous peoples that spanned decades.

It is the conflict between that regime and a handful of leftist resistance groups that Mr.

Elias Sakarius was fleeing.

So that's just a little overview of the U.S.

and specifically CIA involvement in the turmoil in Guatemala.

In case you didn't know, or if you got it confused with U.S.-sponsored coups in Chile, Nicaragua, Bolivia, the Dominican Republic, Panama, Argentina, Paraguay, Burma, Egypt, Syria, Indonesia, Congo, Laos, Iran, or

one of the others.

Yeah, you would be forgiven for maybe mixing it up.

Yeah.

Anyway, that's the political history.

Rhea, if you want to maybe dig into the details a bit.

Yeah, sure.

So this case is about Jairo Elias Zakarius.

And in 1987, he's just 18 years old when two armed and uniformed guerrilla fighters come into his home forcibly where he lived with his parents.

They demanded that Elias Zacarias join the guerrilla army and fight with them against the government of Guatemala.

Now, Elias Zacarias and his family refused to join because they were scared of violent retaliation by the government for joining the guerrillas.

The guerrillas, though, in turn, promised to come back to their house.

So just two months later, Elias Zacarias fled his native Guatemala and eventually made it to the U.S.

In July 1987, Elias Zacarias was arrested by INS.

That's Immigration Naturalization Service.

That's the organization in the Department of Justice that preceded Border Patrol and ICE.

So he was arrested by INS and put into deportation proceedings.

During those proceedings, he requested that deportation be withheld, and he said that he was seeking political asylum in the U.S.

But the immigration judge concluded that he was ineligible for asylum because he didn't show, allegedly, a well-founded fear of persecution on account of his political opinion.

This was despite the fact that Elias Zakarius showed that the guerrillas had, in fact, returned twice to his house to recruit him since he left Guatemala.

Recruit him.

Yeah.

We should be clear.

We're using that word very loosely.

Yeah.

Yeah.

We're talking about forcible conscription here, right?

Like, yeah, it's not like a high school ROTC recruitment thing.

Exactly.

Yeah.

So the immigration court's decision denying that Elias Zakarius had a claim to political asylum, that decision was appealed.

And the Ninth Circuit actually reversed.

They made a holding that acts of conscription, you know, getting forcibly recruited into an army, are sufficient to establish persecution or the fear of persecution on account of political opinion.

And they further held that refusal to become involved with any political faction was itself an affirmative expression of a political opinion, and that Elias Zakarius had a well-founded fear of persecution because of that opinion.

Of course, this gets appealed up to the Supreme Court and they reverse everything.

Yeah.

So

on to the opinion, you know, the legal question is whether this situation fits one of the categories established by the Immigration and Nationality Act as a legitimate reason for asylum.

Namely, does his situation count as, quote, persecution on account of political opinion?

And the court, of course, says no.

Nope.

They provide two basic reasons.

First, they say wanting to avoid fighting in a war is not really a political opinion.

because you could theoretically agree with the war and still not want to fight.

Second, they say it doesn't matter that the conflict is political.

What matters is whether the victim is being persecuted for his political opinion.

And they don't think that he was.

So

I, you know, look,

the dissent is by Stevens, right?

And makes

some pretty reasonable points.

First, he sort of says, look, wanting to remain neutral is a political decision, right?

For sure.

Which seems obvious enough.

Like, weighing your values against the risks of war is political, right?

Like, yes, you can support the aims of a military force and not want to fight, but not wanting to fight is still the result of an assessment that you make that is necessarily intertwined with your politics.

Absolutely.

And, you know, in other words, to put it maybe a little more pointedly than Stevens, it can't possibly be that the decision to risk your life in service of a cause is a political decision, but the decision not to risk your life in service of a cause isn't.

Right.

Yeah, I mean, it's hard to not just make this point over and over during this episode, but like, yes, obviously not joining a war is a political opinion.

And,

you know, the majority kind of knows they're full of shit on this for a variety of reasons.

One thing I wanted to highlight, although the question is, isn't whether or not he'll face persecution and what the definition of persecution is.

It's about what is and isn't a political opinion.

I think it's really telling that the majority frames this as him fearing conscription or

being

forced into military service, I believe, are the phrases they use.

Whereas as Stephen points out in dissent, the way he describes it is he's going to be kidnapped or killed.

Right.

Right.

Like that's what we're talking about here is I'm going to be kidnapped or killed.

And the majority isn't really,

they don't have the balls to say, yeah,

but you're not going to be killed because of your political opinions.

So,

you know, so instead they try to like rosy it up, right?

They, they sugarcoat this as much as they can to make it not sound as horrific as it is because they know it's horrific and they know they're full of shit.

on this.

I mean, look, everybody knows, like, there's the old aphorism, right?

War is just politics by other means or whatever.

Is it Mao Zedong said something like,

war is politics with bloodshed, and politics is war without bloodshed or something like that?

You get power at the end of a barrel of a gun, right?

Like war always has been politics.

And your decisions around war, whether you support it, whether you oppose it, whether you join it or not, are just inherently political.

They are.

And everybody knows it, right?

Like it's not like the most salient example, I think, for the U.S.

is Muhammad Ali, right?

Who famously refused the draft in Vietnam.

He was drafted and he refused to serve and was arrested and tried and found guilty and given the maximum sentence of five years in prison and a $10,000 fine.

It was a huge news story.

You can't tell me that wasn't political and it wasn't understood as political.

His decision to not fight in the Vietnam War

was highly political.

Like everything about it was political.

They refused to call him Muhammad Ali at trial.

They used his old name, Cassius Clay.

When he was convicted, the New York Times identified him as Cassius Clay in the headlines.

Like the same day he was convicted, Congress passed a law making it illegal to desecrate the American flag, right?

Like this was a time of war.

And

openly and prominently saying, I'm not going to fight war was understood as a very subversive

and very dangerous political opinion that needed to be snuffed out.

Right.

Yeah, that's right.

Just about everybody in Nimpson's majority who was alive and an adult at that time was fucking seething over.

Yeah, the modern Republican Party was like built on the back.

of the not just pro-war sentiment but anti-anti-war sentiment right Reactions to the hippies who were the anti-war hippies, right?

That is a huge part of.

That's the party of Nixon.

That's how this era of like the modern era of politics that we still exist in now, like it's how it kicked off.

Right, right.

Absolutely.

Two things I want to point out here.

I understand the argument in a vacuum that not wanting to die is not necessarily a political opinion in and of itself, right?

But not wanting to die in a particular ideological war is a position that most certainly has, at the least, a political component.

Right.

And more to the point, wanting to be safe is a political thing, right?

Like if you're a law and order conservative like Anthony Scalia, you probably want politicians to focus on crime in your neighborhood because you want you and your family to be safe or whatever, right?

Is that not politics?

Right.

Because it's predicated on your personal safety?

Because that seems to be the argument that the majority is making here, right?

They're saying, well, he doesn't really have a political opinion.

He's just fleeing danger, right?

That's different.

But, you know, is wanting access to health care not political?

Because the fundamental concern is your health and well-being, right?

I mean, that's, it's the same shit.

If Scalia saw some neighborhood watch dipshit.

petitioning the city council about crime on his street, he would immediately understand that that man is doing politics, is expressing a political opinion.

but he sees someone fleeing a war-torn country and he cannot process it the same way.

This is the output of a sheltered,

hoddled group of elites who perceive of politics as like something that happens through the vessel of a series of op-eds and cable news segments or whatever, right?

Like they think that the way you express a political opinion is to write a letter to the editor.

Right.

Yeah.

Get out and vote.

The idea that your politics might be expressed through a series of choices about whether or not to participate in violence is just completely foreign to them.

Right.

Like to an effete little coward like Scalia, politics is just something you tut-tut about at cocktail parties, right?

It's something you're snarky about in your opinions.

But to most people on this planet, Politics is something that you experience.

And the decisions you make about politics are the decisions that you are making about your own life.

Yes.

Not like you trying to petition a politician or something along those lines, but you trying to control the circumstances of your life.

And they just don't understand that, right?

They don't understand that for most people, policy decisions, decisions made by people in power or with power, weigh on your life.

This man is making a decision not to engage in violent political struggle, and he is fleeing fleeing retribution for that decision.

How stilted and hollow of an analysis are you doing to think that that is not political persecution in some meaningful sense?

Yeah.

Right.

Yeah.

It's just a complete misunderstanding of what politics is, what it is to have a political belief and a political opinion.

And it's just this like ivory tower bullshit.

Yeah, I think that's so well put, Peter.

This is a case that really exemplifies just how far the Supreme Court justices are from the real world, the real circumstances that people find themselves in all over our planet, right?

Supreme Court justices like Anton and Scalia cannot imagine, could not imagine what it is like to walk from one country to another, right?

To be crammed into a truck and hidden as you drive across a continent, to swim across a border when you don't know how to swim and you have an infant strapped to your back.

They simply do not understand the significance of that kind of journey and what it means about what you're fleeing, about the fear, the loss, the hopelessness that drives that kind of journey, right?

People do not undertake that kind of journey unless home is fundamentally not safe for them.

And that expression, that that journey, that is an expression of a political opinion, right?

Wanting to be safe from state violence is absolutely a political opinion.

Yeah.

I think it is time for a quick break.

Okay.

We are back.

I think it's worth mentioning about sort of the posture of this is the question isn't whether Elias Acarius gets asylum or not.

It's whether he's eligible for asylum.

Even if he's eligible, it's within the Attorney General's discretion and they still might deny it to him.

Yes.

That's not even what's at stake here.

What's at stake here is whether this is even like a category of people who are entitled to to an individualized determination of asylum.

And the court is saying, no, absolutely not.

It's, it's obscene.

Yeah.

It's absolutely obscene.

But like Rhea was saying, this is something, these conflicts are something they experience as like dramatic photography in like Time magazine or something, right?

Like that's, that's what it is to them, you know, like a fascinating segment on Dateline that makes you go, wow.

If that, right?

If it's not that, then actually, probably it's something more like an understanding of like gang violence or gang warfare in some far-off place right yeah scalia didn't watch dateline he watched fox news so

That's right.

Yeah.

And, you know, we should talk a little bit about how these immigration proceedings actually happen on the ground, like the arbitrariness of this whole system.

You know, we're talking about obviously the Supreme Court opinion in this case and critiquing the kind of political and philosophical arguments that are put forth here.

But it's important to highlight, I think, just how deeply fucked our immigration system is and how arbitrary it is.

So if you are in, say, deportation proceedings or proceedings in which you are asking for asylum in the United States, so much of that decision and what happens to you is left to where they decide to transfer you.

It can be an immigration jurisdiction anywhere across across the country, right?

Depending on where you come into the U.S., you could be sent to an immigration judge in Atlanta who has a grant rate on asylum cases of 1%.

Or completely luck of the draw, you could be sent to an immigration judge in San Francisco who has a grant rate on asylum cases of 50 or 60 percent, right?

That's not fair.

That's not the equal administration of an immigration system that is working.

Right.

Right.

Nor is it due process, to be specific.

That's right.

Not even to mention, we've just hit two years of special provisions in immigration law that are keeping the southern border completely closed to asylum seekers right now.

Some would say this is breaking international law to not allow asylum seekers in when people are needing a place to flee to.

So it's like they're using COVID justifications to.

No, no, no.

I've seen a lot of memes on Facebook.

They're letting all the covet ridden illegal immigrants in that's the biden policy right

and they got covet from raping people yeah that's right

and being in gangs

and you know we have a history of a very arbitrary and unfair immigration system that has been abetted by the Supreme Court for

over a hundred years, right?

Like we've talked about it on this podcast before, but it's worth, you know, repeating.

It bears repeating.

Like going back to the 1880s when the court made up out of nowhere that the Constitution doesn't apply in immigration settings.

And therefore, a law that was literally called the Chinese Exclusion Act was just fine to deporting people for being members of the Communist Party, supposedly

in the 50s, to the Muslim ban more recently.

the court has just given a green light to the very, very worst impulses of our elected branches for its entire history, essentially, for as long as immigration has been its subject that the court has considered.

And here, what you see is like even worse.

It's not just rubber stamping the worst excesses of the executive branch.

In this case, they themselves are like doing everything in their power to to make our immigration system less humane,

less decent, less moral, and less congruent with the values of the Constitution, which is they can do because the Constitution doesn't count.

It doesn't apply.

It doesn't matter.

The grounds for asylum are so thin.

And to narrow them even further than they already are.

right by saying that this is somehow not a matter of political persecution I mean, it's grotesque.

And I mentioned earlier the violence in Guatemala was directly tied to the actions of the United States, which makes this case sort of like multiple layers of cruel and brutal.

Like it's rare you see the reality of the United States contrasted so plainly with the rhetoric that it spews about itself, right?

Like the elementary school propaganda version of America is the Statue of Liberty, give us your tired and poor.

An American tale.

Yeah.

Fival Goes West.

That was an American tale, too.

Oh, sorry.

That's right.

Thank you.

Did you know that they were Jewish refugees?

In

the Fivals.

Yeah.

Fival Mauskowitz.

Mauskowitz.

Right.

The Mauskowitzes.

It was beloved in my Jewish household growing up as a result.

Really underrated.

I just checked the IMDb.

I was going to say like recently, but it was probably like two years ago.

Not very well received by critics.

And I think that's absolute bullshit based on what I remember.

No, it was fucking great.

That movie was amazing.

They were phenomenal.

Yeah.

And when he went west, I mean, it really tied the whole thing together.

Anyway, look, there's like this fucking image of the U.S., like, you know, fighting for freedom across the world, right?

Like, we've, you get taught that bullshit your entire lives.

Meanwhile, the CIA wanted to secure American hegemony in Latin America and protect the profits of Chiquita Banana.

And as a result, you get a coup and a bloody decades-long war,

a genocide, which people naturally want to flee.

and perhaps even seek shelter in America.

And these suit and tie motherfuckers tell you that your reason for coming to America isn't good good enough.

Like even if for some reason you agree with the court's interpretation of the law here, which would make you an idiot, but even if you do,

it's still morally repulsive.

Absolutely.

Like one way or another, this is the output of a country with no ethical compass, with no soul.

And that's why it's the official position of our podcast that when Christ returns, God will rain fire and sulfur upon America like he did Sodom and Gomorrah.

Is that how it works?

I don't know.

Yeah, from three people who were not raised Christian.

I don't know what happens when Christ returns, like according to the Bible or according to people who read the Bible.

I don't think he destroys cities, but like it feels to me like God can do whatever.

Like it's not against the rules for him to destroy.

Sure.

That's like the part of the whole guard thing.

Yeah.

Right.

I think it would be like if he's going to send Jesus back, okay, our producer is telling us that we need to watch the left behind movies.

Okay, so my understanding of the left behind movies is that the chosen people, they just disappear, right?

And everyone else is sort of.

No, that's leftovers.

I think it's.

I don't know.

Rachel, chime in.

Rachel, get in here.

Get in here, Rachel.

Entering part two of this episode.

Okay, so here's what I i here's what i know about i've seen one left behind movie and it's from after kirk cameron like got religion and it's exactly what peter is describing like all of the good people are gone and all that's left are like the people who are ambivalent about jesus and then there's like the tribulation and they have to fight but what i remember most vividly about the movie is that they seem to have only had a budget for one explosion.

So they just kept showing it over and over and over again.

That's movie magic, maybe.

Yeah, that was the, that was god destroying america yeah god only had money for one expression

i think it would rock michael's making a good point if they just like sucked up the evangelicals and left everyone else that would

rock it would be so cool it would be so awesome that would be so like i i wish for that all the time yeah

can't we just get rid of these these people drive them into the ocean or something god take them do us all a favor they would be sitting at the right hand of God and they'd be like, God, can we see what's going on down below?

And it cuts to us just like, you know, at a wine bottle.

Yeah.

Partying.

Chilling.

Just like a harmonious, multiracial democracy.

Yeah.

You know, like everything's basically the same, but like there's healthcare.

Right.

Right.

Yeah.

Exactly.

Yeah.

Fucking rule.

Oh, and so we should mention that Elias Zacharias eventually was able to come to the United States.

He was deported to Guatemala and then was able to come to the U.S.

because he won the Visa lottery.

So, just another layer of cruelty.

So, there's a sort of happy ending there.

You thought that we have a cruel and unforgiving immigration system?

Well, the random number generator selected him out of the genocide in Guatemala.

Jackpot.

You write all your hopes and dreams and like your last chance at life on a little piece of paper and they put it in a little bingo machine and turn the crank.

And then someone closes their eyes and like reaches in.

That's right.

That's the system that we've got.

And you know, we should talk too about the narrowness of the grounds for asylum.

We talked about the arbitrariness of the system.

So so much depends on what judge you end up in front of in immigration court.

And, you know, none of these cases are as clear-cut as you think because so much depends on that judicial discretion in these immigration proceedings.

So I have many friends who work in the immigration system, represent people who are seeking asylum in the United States and trying to avoid being deported.

My friend talked about a case that stuck with her in which a client who was literally in his 70s, disabled and in a wheelchair, he suffered from dementia dementia and had a traumatic brain injury, as well as many mental health diagnoses.

He was in the United States and seeking asylum here.

And evidence in the record and proven in past cases showed that there was a high likelihood of torture in mental health facilities in Mexico where he was from.

And given his situation, it would be most likely like that's where he would end up in one of these mental health facilities.

You know, you can't get a less complex, clear-cut asylum case.

You think that that would be enough to show that you have a fear of persecution on account of you being mentally ill, on account of being a disabled person.

That man was not granted asylum.

That person was deported.

And so it's just to highlight, you know, that the majority of cases in which people are requesting, seeking asylum, the majority of those cases are denied.

And so much depends on this arbitrary system in which you have no control over what immigration judge you're in front of.

Yeah.

And like Rhea was saying, like best case scenario, it's like 50-50, right?

Worst case scenario, it's like, it's zero.

Right.

It's effectively zero.

And so like.

Going back to Peter's point about like the disconnect between American rhetoric and supposed values and the reality and this case, it's worth mentioning that this is like, this is happening in the late 80s.

So this is like the Reagan presidency.

Reagan was the guy who loved calling America the shining city on a hill.

Yeah.

Right.

Like that was his whole thing, his optimism about the greatness of America.

And then they're going to court and fighting tooth and nail to send this guy back to to be killed or kidnapped by, you know, fucking a guerrilla army.

Right.

It's just disgusting.

It's like this is a immigration is like very very much like an area of bipartisan disgust, but

this opinion is like very,

it's just the pits and it feels very Republican in this case.

Yeah.

Yeah.

I mean, there's just no humanity in the way that the court approaches the question.

Right.

And like, if there was ever a law to read some like higher purpose into, you know, the asylum law,

where we are, as a country, deciding that we will provide some shelter to people who are suffering in other countries.

If they're being discriminated against for their race or religion or their political opinion, you know, that we will give them safe harbor.

Not that the United States follows these ideals, but like if there was ever something to strive toward, it would be the principles that undergird this law to watch the court just sort of like rotely walk through it, as if you can just sort of like do this super narrow textual analysis and wash your hands of it.

It's just amoral in the literal sense, right?

Like

just divorced from any concept of like higher good and moral value.

Right.

I think a cool immigration system would be whenever someone wants to become a citizen, they randomly select a current United States citizen.

And then that person has to make the case that they're better than the new immigrant and the burdens on them.

A couple years of that system.

And I feel like we just do away with the whole shebang, you know, and just start letting people in.

Yeah, we just abolish borders at that point.

That's good.

We're like, all right, this guy's fleeing a civil war.

He walked across three countries with his child on his back.

What do you do?

And the guy's like, I do repo for

six landlords

on contract, sort of the 1099 thing.

I'm a corrections officer.

They're like, all right, sir, you're out.

Your tax brain is on.

You no longer have a country.

Next week, Lasseter, the Department of Social Services,

case about whether you have a right to an attorney in child custody and parental rights proceedings.

We know you have a right to an attorney if you're accused of a crime, but what about when the state is trying to take your child away from you?

Do you have one then?

Uh, no.

No, you don't.

Follow us on Twitter at 54Pod.

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We'll see you next week.

Bye-bye.

Bye.

5-4 is presented by Prologue Projects.

This episode was produced by Rachel Ward with editorial support from Leon Napok and Andrew Parsons.

Our production manager is Percia Verlin.

Our artwork is by Teddy Blanks at ChipsNY, and our theme song is by Spatial Relations.

Sorry.

Distracted by the dogs.

Is it me?

Am I following you?

Yeah, sure.

We don't really have a plan here.

So, yeah.