WASHINGTON – Homeland Security Department (search) nominee Michael Chertoff denied asylum, ordered deportation or otherwise ruled against foreigners in 14 of 18 immigration cases he handled during his short tenure as a federal appeals court judge.
But he has secured grudging respect from immigration rights groups who applaud his legal support of a family trying to escape China's forced abortion policies.
An Associated Press review of Chertoff's decisions offers insight on how he may run the nation's immigration system that will become his responsibility as Homeland Security if, as expected, he wins Senate confirmation.
Chertoff wrote the majority opinion in 17 immigration-related cases and a dissent in one since being seated on the Philadelphia-based 3rd U.S. Court of Appeals in June 2003.
"We're watching to see what happens," said Erin Corcoran, staff attorney for Human Rights First (search), which advocates for asylum cases. "We have concerns, but at the same time, he's been less hardline on the issues than some other people have been."
The Senate Homeland Security and Governmental Affairs Committee is scheduled to vote Monday night to advance Chertoff's nomination to the Senate floor.
As Homeland Security secretary, Chertoff will have wide discretion in carrying out immigration policy. While on the bench, he said, he gained insight "into the complexities of our immigration structure."
Answering lawmakers' written questions before his nomination hearing last week, Chertoff pledged to ensure, if confirmed, "that our immigration policy welcomes those lawful travelers and entrants, while continuing to provide sufficient safeguards against those who seek to harm the United States."
The cases Chertoff examined covered a gamut of immigrants' claims of abuse, from being beaten by police, forced into prostitution rings or denied protection from hate crimes against gays.
Most were routine cases that did not set a legal precedent, and may have "raised a somewhat strained defense in the context of otherwise provable immigration violations," said Pepperdine University constitutional law scholar Douglas Kmiec, a Justice Department legal counsel during the Reagan and first Bush administrations.
But those cases trouble critics who fear the former prosecutor and Justice Department criminal division chief -- with his tough-on-crime-and-terrorism reputation -- will fail to uphold immigrants' rights.
In an Aug. 24, 2004 decision, Chertoff wrote that a Bangladeshi man did not meet the requirements for asylum under United Nations (search) torture standards. The man claimed he was arrested after participating in a peaceful political rally and beaten by police with canes, kicked in the face and forced to denounce his political party during six days in jail. He also provided documentation of 19 days of medical care he received after being released.
"Such treatment is, to say the least, troubling," Chertoff wrote. "Nevertheless, this evidence alone does not undermine the conclusion that there was substantial evidence to support the denial of his application for asylum."
Chertoff's opinion "takes a very extreme view of what constitutes torture," said Christopher Anders, legislative counsel to the American Civil Liberties Union.
"He will be the person in charge of enforcing immigration laws and processing immigrants," Anders said. "And if he's setting up such a harsh requirement, it's going to mean that we're going to have people who are here looking for humanitarian relief, and instead they will be turned away and sent back to a country where we know they're likely to be tortured."
But a careful reading of Chertoff's orders shows he is not as unsympathetic to immigrants as his critics fear.
In his sole dissent, Chertoff sharply rapped a lower-court immigration judge for failing to adequately explain why he denied asylum to a Chinese man whose wife was forced to abort a pregnancy and was involuntarily sterilized.
The immigration judge's ruling against the Chinese "does not come close to meeting these requirements," Chertoff wrote in his Oct. 14, 2003 dissent. Moreover, he wrote, the judge's "view of the credibility of applicant Chen is a mystery."
"He's known to be a law-and-order type of guy, but it's interesting that he actually understands the kinds of burdens that asylum seekers carry," said Corcoran, the Human Rights First attorney. "We may not always agree with him on how he comes out on the opinions. But he's a reasonable guy -- he's thoughtful and he understands some of the issues affecting immigrants and civil liberties issues."
Chertoff has come under fire for his role in ordering the roundup of hundreds of foreigners -- many for minor immigration violations -- during the Justice Department's investigation immediately following the Sept. 11, 2001 terror attacks.
But Kmiec, the constitution law scholar, said Chertoff's time on the court may have helped balance his views on immigration rights.
"It's rare to have anybody who has the experience of law from both sides of the bench," Kmiec said. "That will mean an aggressive view of immigration laws, but also one that stays within the boundaries of the law as it's written."
As the Senate panel handling Chertoff's nomination prepared to meet, The New Yorker magazine reported in this week's issue on a secretive government program called "extraordinary rendition" under which terrorism suspects are extradited from one foreign country to another under U.S. auspices for questioning and prosecution.
The magazine said critics contend that the real purpose of the program is to make suspects subject to methods of interrogation, including torture, that are illegal in the United States.