Execution just moments away

It was a late night in the Kenyan woods in 1993 when David Ngaruri Kenney was tied to a tree and a pistol pressed against his head. Death, he thought, was moments away.
An argument ensued between the two executioners who could believed that Kenney was an insurgent, part of the ring that so strongly opposed the administration of then Kenyan President Daniel Toroitich arap Moi.
Instead of pulling the trigger and ending Kenney’s life, they put him in a torture pit where water would be raised to his neck, then lowered to his ankles, a procedure that would last for one week. The idea was to break their prisoner and obtain information about other opposition ringleaders. That attempt failed.
Then he was put into isolation for eight months before being released and placed under house arrest.
It was at that time that a series of events began that helped him escape his native Kenya and begin an odyssey that would forever change a private Oklahoma college, provide Georgetown University law students an opportunity to take on the American legal system helping people gain asylum in the U.S.
Despite their efforts and that of Georgetown University Law Professor Philip G. Schrag, Kenney lost appeals and had to return to Kenya.
He since has been granted asylum and that part of the story will be told during a lecture on Nov. 5 at the University of Tulsa College of Law.
The lecture ‘‘Asylum Denied: A Refugee’s Struggle for Safety In America,’’ co-authored by Schrag and Kenney, will be at 6 p.m. in the Price Turpen Courtroom of John Rogers Hall, 3120 E. 4th Pl.
Schrag described the encounter between the two men ‘‘as luck.’’
It was Schrag who initially directed the Georgetown law students, then became Kenney’s attorney in his fight to gain asylum.
The entire journey was sprinkled with luck.
Even though Kenney had been freed from prison in Kenya and placed under house arrest, he still had virtually no access to visits from neighbors and friends.
He became acquainted with a Peace Corps worker who came to Kenney to learn Swahili. That was a good arrangement because the imprisoned man wanted to learn English.
It was during this time that the Peace Corps worker learned of his host’s plight and the urgent need to escape Kenya.
The story was shared with a basketball coach in another country by the Peace Corps worker and it was decided that Kenney would get a basketball scholarship to a then unnamed American college.
Kenney chuckled as he recalled meeting the basketball coach.
‘‘I had never seen a basketball and when the coach threw it to me, the ball hit me in the stomach and rolled into the nearby bushes,’’ he said.
Despite that inexperience in basketball, Kenney did come to the U.S. and went to St. Gregory’s College in Shawnee on an academic scholarship.
At that time, St. Gregory’s was a two year college and the Kenyan felt that it could just as easily serve as a four-year university.
He went to the president who advised that while the four-year college was a good idea, he also didn’t think there would be enough student support.
Kenney turned to his organizing skills and got those students at that time to commit to a four-year program if it was offered.
As those changes at St. Gregory’s were being made, Kenney was accepted by the University of San Francisco and was able to get his visa extended for another year.
When that academic year neared an end, he sought asylum and went to the interview without an attorney. He could not explain his story in the correct manner and his application was denied.
The process became more difficult when he appealed his case. The attorney he had hired did not show up for the hearing.
Frustrated, Kenney went to Georgetown University and told the dean that he wanted to become a lawyer so he could represent himself during his asylum hearings.
‘‘Dean Bellamy said I was over my head on this issue and it would be a year before I could start if I was lucky enough to be admitted to law school,’’ Kenney said.
Rather than attending law school, the dean suggested that Kenney go around the corner and meet with Schrag and ‘‘maybe he could help.’’
‘‘I thought the dean was trying to get me out of his office,’’ Kenney admitted. Instead, he found help.
Georgetown University students studying immigration law had been assisting with these cases for at least 15 years, Schrag said. Some are very complex. Students receive 10 credit hours for representation clients in court.
These next appeals were Kenney’s last chance for asylum.
Students worked three months on his case only to lose on what Schrag called a ‘‘really strange ruling’’ from the judge.
The judge agreed that Kenney had a strong enough case to remain in the U.S. and would have found in his favor except for one issue — he had returned to Kenya briefly in 1997.
Kenney’s brother had been arrested and he returned despite personal peril to help get him out of prison, thereby saving his brother’s life. Despite his heroic act that required only a few weeks, his application was rejected.
At that point, Schrag personally took on the case, representing Kenney on a series of appeals.
If things were going well, the scene suddenly changed on Sept. 11, 2001.
After that, all cases were placed under the Department of Homeland Security for an even closer review.
Secretary John Ashcroft removed five people in the court system, all named during the Clinton Administration, and replaced them with people named by President George H.W. Bush. That changed the rate of approvals for people seeking asylum from 25 percent to 10 percent.
Rejection at that level meant the final step was the U.S. Court of Appeals, Schrag said. It’s ironic that Kenney also was caught in a type of court roulette where approvals varied widely. Had he been living in San Francisco success might have been easier because the Ninth Circuit Court had a 20 percent record of approval. Since he lived in Virginia where the Fourth Circuit Court had jurisdiction, there was about a 4 percent approval rate.
Approvals also varied from judge to judge.
One New York judge handling asylum applicants from Albania approved 95 percent of the requests while another judge approved only 5 percent.
One might approve a high number of applicants while few would be approved by another.
It is this type of scenario that makes it difficult in the legal process, Schrag said. That is where the playing field needs to be leveled.
Schrag said the asylum application process needs to be stringent.
People have tried to cheat the system, he said. Everyone undergoes a fingerprinting process and their photos must be taken. Paperwork is very detailed and if there is any type of contradiction, they are automatically rejected. It is arduous and some try to commit fraud.
Despite the difficulty, the Department of Homeland Security grants asylum to about 35 percent of the applicants. Other countries are in the single digits.
Mr. Kenney learned lessons from the start about the importance of having legal representation, Schrag said. Those who get attorneys at the start have about a 45 percent success rate. That number drops to 16 percent for those without legal representation. The success rate to 90 percent when asylum applicants work with law students.
After Kenney’s applications had failed, he returned to Kenya.
Efforts did not end and eventually he did return to the U.S.
Schrag said that part of the story would be told at the lecture so people would have to attend to find out what happened next — and learn the rest of the story.



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