SAN FRANCISCO -- A federal appeals court in San Francisco has granted political asylum to a Cuban, reversing what the judges called a ``Kafka-esque'' decision by U.S. immigration authorities.
The Ninth U.S. Circuit Court of Appeals ruled 3-0 on Wednesday that Francisco Rodriguez Roman, who jumped ship from a Cuban merchant marine vessel while docked in Mexico in 1982 and made his way to the United States, clearly would be persecuted if he returned to his native land.
A U.S. immigration judge acknowledged that there was a clear probability that Rodriguez, 37, would be prosecuted if he were returned to Cuba. But the judge ruled that prosecution for violating a Cuban law against emigrating without permission did not constitute political persecution.
The Board of Immigration Appeals upheld that ruling.
Appellate Judge Stephen Reinhardt said the immigration judge's ``interpretation of the term `persecution' is squarely inconsistent with court and BIA precedent addressing punishment for illegal departure.''
He cited several prior federal appeals court decisions, which he said ``singly and collectively, stand for the proposition that punishment for the crime of illegal departure constitutes persecution when the punishment would be severe.''
Reinhardt called it ``Kafka-esque'' to conclude that Rodriguez could be punished for violating such a crime against the communist state without being punished for his beliefs.
In the Rodriguez case, State Department officials said that people violating this Cuban law are typically sent to prison for three years.
Rodriguez, who described himself as a lifelong anti-communist, expressed fears of even worse treatment -- perhaps even execution -- and testified that members of his family had been arrested by Cuban authorities after he fled his ship.
The Justice Department declined immediate comment on the decision.
However, the ruling was hailed by immigrants' rights advocates, who noted that the ability to obtain judicial review of Immigration and Naturalization Service decisions on asylum petitions has been severely curtailed by a new immigration law enacted last week. The statute permits court review of some INS asylum decision, but it sets up numerous hurdles before review can be granted.
Indeed, all three judges in the Rodriguez case stressed the importance of independent judicial review of administrative decisions by agencies such as the INS, a wing of the Justice Department.
``In the absence of judicial review, grave injustices could take place for which our government and our people would have to bear the moral responsibility,'' noted judges Reinhardt and Michael Hawkins.
In a separate and unusually personal opinion, Judge Alex Kozinski, who fled communist Romania with his parents when he was 12, said the immigration judge's comparison of Cuban laws to U.S. statutes prohibiting desertion and treason was bizarre.
``Rodriguez . . . established that, if returned to his country, he might be shot, imprisoned for many years or simply made to `disappear,' '' Kozinski wrote. ``These are not fantasies. Communist countries are known for their brutality in stemming emigration.''
Reached at his home in Las Vegas, where he is a parking attendant at two casinos, Rodriguez declared: ``I am the happiest man in the world right now. It's a very nice relief for my family and myself. Finally this case got justice.''
Copyright © 1996 The Miami Herald