Haitians At Sea: Asylum Denied

...citizens not to travel to Haiti...

...High Commissioner for Refugees, EXCOM Conclusion No...

...The nature of this case from beginning to end was extraordinarily political," said Ira J. Kurzban, lead attorney for the Haitian Refugee Center...

...Although Johnson indicated that "on its face, Article 33 imposes a mandatory duty...not to return refugees to countries in which they face political persecution," he found a "controlling precedent [Bertrand v. Sava]...which indicates that the Protocol's provisions are not self-executing...

...In March, the Haitian Centers Council (HCC), made up of several New York-based advocacy groups, filed a new legal challenge to defend the right of those "screened in" to a fair hearing...

...Although some were received from the State Department and the Immigration and Naturalization Service, both cite the Coast Guard as their source...

...See also, Americas Watch, National Coalition for Haitian Refugees, and Physicians for Human Rights, "Return to the Darkest Days: Human Rights in Haiti since the Coup" (Dec...

...The majority gave no indication of its reasoning, but it was apparently convinced by the government's argument that "aliens interdicted outside the United States have no constitutional right to due process...

...Charles B. Rangel (D-NY) confronted Immigration and Naturalization Service Commissioner Gene McNary...

...Dennis DeConcini (D-AR) also introduced a bill to make Haitians, "in the custody or control of the United States A boat crammed with Haitian refugees...

...7. See Statement of Donna Hrinak, deputy assistant Secretary of State for Inter-American Affairs, before the House Foreign Affairs Committee, Subcommittee on Western Hemisphere Affairs, Feb...

...On the Senate side, Sen...

...Amnesty International reported that "hundreds of people have been brutally executed, or detained without warrant and tortured...

...VOLUME XXVI, NUMBER 1 (JULY 1992) 37Re immigration Am as Immigration "The screened-in plaintiffs are non-hostile individuals who were brought to Guant.namo forcibly, and who are 'in custody,' and incommunicado," the judge observed when he made the order a preliminary injunction on April 6. "They are unable to move...and cannot even make a telephone call at their own expense...

...9. Washington Post, Nov...

...The Haitian Migrant Interdiction Operation actually began in 1981 when Ronald Reagan signed an agreement with Haitian dictator Jean-Claude Duvalier...

...The chief asylum officer of the United States," Kurzban continued, "concluded in a memo on November 12, 1991 that the interview process should be suspended...

...The United States supported the OAS economic embargo to force the military regime to restore democracy...

...29, 1991), p. 1. 6. Organization of American States, Outgoing Telex, Case No...

...Bush's distinction between economic migrants and political refugees set the parameters of the debate for the coming months...

...As it stands now," the judge wrote, "Article 33 is a cruel hoax and not worth the paper it is printed on unless Congress enacts legislation implementing its provisions or a higher court reconsiders Bertrand...

...Again, the Supreme Court lifted the injunction...

...The debate revolved around the adequacy of the screening procedure-whether political refugees were being screened out as economic migrants...

...issued a temporary restraining order blocking the forced repatriation of the 3,446 Haitians remaining at Guantinamo...

...On December 3, Judge Atkins issued a preliminary injunction maintaining the bar to forced repatriation, and gave the administration one week to show how it would "ensure that Haitians with bona fide political asylum claims are not forced to return to Haiti...

...Processing of Haitian Asylum Seekers," (GAO/T-NSIAD-92-25), April 9, 1991, pp...

...Coast Guard...

...The "America First" movement took on a particularly xenophobic cast with a rise in Japan-bashing, the failure of Congress to enact a foreign-aid bill in October, and California Governor Pete Wilson blaming foreign immigrants for "taxpayer squeeze...

...Is there any question in your mind," Rangel asked, "that if the people on these boats came from Ireland we would exercise the same policy, notwithstanding the law...

...This was the momentum building behind the Buchanan presidential bid...

...After the council filed the suit, the Justice Department told its attorneys-all working pro bono, among them Yale Law School students and faculty-and its clients to post a $10 million bond, the largest bond everrequested in the history ofthe New York federal courts, and ten times the size of the bond in the Texaco-Pennzoil case...

...He subsequently authorized the Coast Guard to stop and board vessels "of foreign nations with whom we have arrangements," and to "return the vessel and its passengers to the country from which it came, when there is reason to believe that an offense is being committed against the United States immigration laws...provided that no person who is a refugee will be returned without his consent...

...13 Immigration officers were also applying incorrect legal standards, Kurzban continued...

...Hereafter, he ordered, all interdicted Haitians, refugees or not, would be returned to Haiti...

...In addition, the margin of the House vote would not protect the bill from a threatened presidential veto...

...4 Meanwhile, the class action suit, HRC v. Baker, was on a rapid roller-coaster ride REPORT ON THE AMERICAS ^^" '"'^""" """^'"'through the courts...

...The Coast Guard could return them without even trying to determine whether they might face persecution upon return...

...1, 1991...

...shores...

...As Coast Guard cutters became more and more crowded, the government was caught in a quandary...

...The choices-Belize, Venezuela and Honduras-were demonstrably less wellequipped than the United States to shoulder the burden, but they generously took in some refugees...

...190 (Oct...

...W ITHIN TWO HOURS OF THE SECOND offloading, a protracted legal battle began...

...Article 33 proscribes the return of refugees 'in any manner whatsoever' to the frontiers of territories where their lives or freedom would be endangered...

...At the bottom of this case," he wrote, "is the government's decision to intercept Haitian refugees on the high seas, in international waters, to prevent them from reaching United States territory...

...The issues were directed from the National Security Council and the White House...

...government...

...4 Even the U.S...

...3. This relatively dramatic increase in the number found to have credible asylum claims occurred despite the findings ofreputable human rights groups that, although his human rights record was far from clean, there was a notable improvement in human rights conditions during the Aristide presidency...

...Secretary of State, from Edith Marquez Rodriguez, Executive Secretary, IACHR, GSB-8th floor, Oct...

...SGIIACHR/034/91 to James A. Baker, III, U.S...

...It is a fair policy," he said, which "does make a distinction between economic refugees and political refugees...

...Coast Guard cutters or detained at Guant.namo...

...The November 5 victory of Harris Wofford over a prominent member of the Bush cabinet, Attorney General Dick Thornburgh, in the Pennsylvania Senate race was widely touted as a referendum on the Bush Administration's neglect of the "domestic agenda...

...They are isolated from the world and treated worse than...a criminal defendant...

...law which prohibits the return of refugees does not apply outside U.S...

...Connie Mack (R-FL) introduced concurrent congressional resolutions calling upon the administration to stop interdictions, to suspend deportation of Haitians, and to grant them Temporary Protected Status (TPS)-a time-limited stay of deportation with authorization to work, due to unsafe conditions in the home country-which at the time was being offered to people from El Salvador, Kuwait, Lebanon, Liberia and Somalia...

...The Haitian Centers Council did launch a new lawsuit, but Judge Sterling Johnson denied the preliminary injunction that would have put the policy on hold...

...FAIR Warns of Potential Haitian 'Mariel': Calls for Repeal of Cuban Adjustment Act," Press Release, FAIR, Nov...

...The bill that finally passed on February 27 was a watered-down version of those introduced in the fall...

...The fact that they were fleeing the poorest country in the hemisphere led many people in this country to ignore the political persecution they were suffering, and to assume the refugees were simply poor immigrants...

...actions in the months following the coup...

...The similarities between Cuba 1980 and Haiti 1991 are eerie...

...The statutes of the United Nations High Commission on Refugees (UNHCR) state: "In cases of large-scale influx, asylum seekers rescued at sea should always be admitted, at least on a temporary basis...

...The Bush Administration argued that Article 33 applies only to refugees within the territory of the contracting state, and not to Haitians aboard U.S...

...One officer could not even name all the grounds necessary to obtain asylum...

...29, 1981, paragraphs (b)(3) and (c)(3...

...Coast Guard cutters or detained (including on Coast Guard vessels on the high seas)" eligible for TPS...

...Federal Register, Vol...

...history, the Solicitor General of the United States argued on behalf of the executive branch before a U.S...

...Along with a handful of legitimate political refugees is an army of economic migrants waiting to descend on south Florida...

...AVING WON THE BATTLE TO RETURN those initially "screened out," the government turned its attention to the more than 9,000 Haitians-about a third of the total-who had been "screened in" for having established credible asylum claims...

...3 For the first month after the coup, Haitians stayed put...

...This attitude was reflected in Pentagon spokesman Greg Hartung's sum-up of the logic of U.S...

...As of this writing, not even this bill is assured of passage...

...economic and social ills were being blamed on foreigners...

...After the Supreme Court ruling, the INS resumed screening aboard the Coast Guard cutters...

...Not only was stronger opposition to a bill anticipated there, but the Democratic leadership showed little interest in pursuing the matter...

...Haiti is the only nation "with whom we have arrangements," though it is not mentioned in Reagan's order...

...policy: "There is no room at the inn...

...territory...

...Stephen J. Solarz (D-NY) introduced a bill that "reaffirms" that Article 33 applies to individuals outside the United States and that the U.S...

...base in Guant.namo Bay, Cuba, where make-shift camps were constructed to house the refugees...

...Another officer admitted that she had applied an incorrect legal standard, and that those persons were not re-interviewed...

...2 Of that number, only 28 were allowed to pursue asylum claims...

...The Haitian Refugee Center took the case to the Supreme Court, but on February 24, the court voted 8-1 not to hear it...

...During Aristide's eight-month tenure, even though the number picked up dropped dramatically to 1,312, the INS recognized 20 potentially legitimate asylum claims...

...XII, No...

...23 (XXXII) 1980...

...for a fuller discussion, see Bill Frelick, "The Haitian Boat People," Christian Science Monitor, Nov...

...Bush appeared to be motivated not only by the desire to clear out the naval base, but to send a message to voters in New Hampshire, where four days after the Supreme Court decision the president would face Patrick Buchanan in the primary...

...Coast Guard] vessels to be disembarked in the United States and admitted for determination of their refugee status...

...The Haitian Centers Council won finally in the Second Circuit despite intensive pressure from the Bush Administration to prevent them from even bringing the case to court...

...21, 1991...

...Congress is asking for very little...

...1 0 The anti-immigrant lobby was quick to sound the alarm...

...However, because Congress was in recess from Thanksgiving until late January, no action was taken on the measures, and the legislative branch remained on the sidelines while advocates and the executive faced off in court...

...And it would like to maintain the outrageous fiction that Haitians do not have legitimate fears of persecution upon return...

...So after a perfunctory screening, the Coast Guard began returning Haitians to Port-au-Prince...

...Committee for Refugees in Washington...

...If these refugees reach United States territory, they will have the right to insist, in United States courts, that they be accorded proper, fair, and adequate screening procedures....The interdiction program is a clear effort by the government to circumvent this result...

...The Supreme Court returned the case to the appeals court, which in June-too late for many of the "screened in" who had been returned without a second hearing-affirmed Judge Johnson's order allowing lawyers for the "screened in" to meet with their clients in Guantdinamo.' 5 On May 24, President Bush issued an executive order that dropped even the pretense of screening...

...This concept holds that countries immediately bordering a refugee-producing state-called countries of first asylum-are obliged to accept refugees until the rest of the world can pitch in and help...

...For only the third time in U.S...

...10.675 (Jeanette Gedeon et al...

...Bush Administration policy ensures that the refugees' need for shelter remains secondary to the comfort of the innkeepers...

...All congress seeks is a "reaffirmation" of the principle of nonrefoulement-the presumably universally accepted right of a refugee not to be handed over to his or her persecutors...

...By the tenth anniversary of this operation, the day before the September 1991 coup, a total of 24,559 Haitians had been picked up in international waters by the U.S...

...Washington joined the OAS in condemning the coup and refusing to recognize the de facto regime...

...government's intention...

...By November 10, some of the cutters began mooring at the U.S...

...Ibid., pp.6-7...

...On February 5, a bill that would suspend forced repatriations of Haitians for six months passed the House Subcommittee on International Law, Immigration and Refugees, but stalled again as Congress took another recess from February 7 to 18, a critical period in the court battle...

...The message is clear: If you stop refugees before they reach your territory, you can do whatever you want with them...

...Who, after all, would risk his or her life to make ajourney that not only would fail to find refuge, but would result in being turned over to his or her persecutors...

...At that point the battle was effectively over...

...The legal battle was not immune from these political pressures...

...7 By November, thousands of Haitians were fleeing by boat...

...19, 1992, for a summary of U.S...

...High Commissioner for Refugees Madame Sadako Ogata told me, "will be taken as a lesson of how, for example, Southeast Asian countries should deal with the Vietnamese boat people or any others who might come under similar circumstances...

...30, 1991...

...So the Haitians remained on board the ships in extremely cramped conditions...

...Rangel and Sen...

...Following that decision, the government moved quickly to return as many Haitians from Guantinamo as it could...

...Instead, Haitian army and security forces conducted large-scale searches for his supporters...

...1, 1981...

...Edward M. Kennedy (D-MA) and Mark O. Hatfield (R-OR...

...courts accepte argument that it was legally obligated to grant refuge to tho not to Haitians aboard U.S...

...He agreed with the Solicitor General, who again represented the government personally, that the section of U.S...

...Deterring more boat departures appeared to be the President's prime concern...

...48, No...

...During the period of the HRC suit, Haitians were brought to Guantinamo to rest and recover from the sea journey before being screened...

...1992...

...Congressman," McNary responded, "that's even an offensive question...

...The Court split 5-to-4, with Justices Blackmun, Stevens, O'Connor and Souter in dissent...

...4. Amnesty International, "Haiti: The Human Rights Tragedy: Human Rights Violations since the Coup," AI Index Jan...

...Cedras was, and not knowing any of the organizations that were supportive of President Aristide...

...Testimony of Ira J. Kurzban, General counsel for the Haitian Refugee Center, before the House Subcommittee on Legislation and National Security, April 9, 1992, p. 10...

...The first two boatloads, totaling 538 people, disembarked on November 18 and 19...

...Suddenly, the United States found itself in the position of a country of first asylum...

...11 (Nov...

...But let me assure you, it is not based on some race or double standard...

...Hecited the depositions of John Baker, James Schneider, Leon C. Jennings, Christina Tilbury and Gregg Beyer...

...He testified that "INS officers readily admitted that they had interviewed hundreds of Haitians without receiving any information about the political conditions in Haiti....This lack of knowledge extended to such issues as not knowing who the president and prime minister of Haiti were, not knowing who [coup-leader] Gen...

...Such a contention makes a sham of our international treaty obligations and domestic laws for the protection of refugees...

...Haitians at Sea: Asylum Denied 1. Executive Order 12324, Sept...

...Embassy noted "credible reports of indiscriminate killings, police harassment, illegal searches and looting of private homes and of radio stations, arrests without warrants, and detention of persons without charges and mistreatment of persons in the custody of Haiti's de facto authorities...

...Haitians should not be returned to their country, the OAS insisted, "because of the danger to their lives, until the situation has been normalized...

...The proposed legislation no longer calls for Temporary Protected Status, nor does it say anything about the adequacy of screening procedures...

...It's almost like dtdja vu...

...In addition, record keeping was so poor and chaotic that the INS did not know who they had agreed to screen in or screen out and send back to Haiti...

...The order, effectively blocking any escape, succeeded in stopping the boats from departing...

...At least 54 Haitians were apparently mistakenly repatriated," a GAO report states, adding that "we believe our numbers may understate the problem...

...2 But supporters of refugee rights stood up as well...

...We return everyone who is supposed to be returned under the laws of the United States of America...

...It is unconscionable," he wrote, "that the United States should accede to the Protocol and later claim not to be bound by it...

...Aristide would return, maybe tomorrow, perhaps the next REPORT ON THE AMERICAS I 34day-so said the rumors circulating around the Haitian capital of Port-au-Prince and the rest of the country...

...Romano L. Mazzoli (D-KY) introduced a bill that would protect Haitians from involuntary repatriation, "until the President certifies to the Congress that a democratically elected government is securely in power in Haiti...

...The way the United States deals with the Haitians," U.N...

...But he didn't...

...Judge Atkins based his ruling primarily on Article 33 of the 1951 U.N...

...General Accounting Office (GAO) confirmed that lax administrative procedures had resulted in mistaken deportations from Guantinamo...

...On November 11, UNHCR called on the United States to "allow all of the individuals now on board [U.S...

...The U.S...

...5. Refugee Reports, Vol...

...Over the years, the United States has insisted that such nations as Thailand, Malaysia and Zimbabwe not turn away refugees at their borders...

...The government also changed the screening policy for newly interdicted Haitians...

...General Accounting Office, "U.S...

...Responding to a complaint filed by the Haitian Refugee Center (HRC) in Miami, Judge Donald L. Graham of the district court for southern Florida issued a temporary restraining order to prevent the Coast Guard from returning any more people...

...policy is causing Haitians hunted down for their political beliefs, it holds grave implications for the rest of the world...

...The HCC's lawyers noted that the percentage of Haitians found to have credible persecution claims, which stood at about 80% just before the HRC petition reached the Supreme Court, dropped to about 30% after the court refused to hear the case...

...The Justice Department also asked the trial court to fine the Haitian Centers Council litigants for filing a "frivolous" lawsuit...

...The judge called the government's conduct "particularly hypocritical" since it had condemned other countries for failing to abide by Article 33, including Great Britain for its forced repatriation of Vietnamese boat people...

...Judge Joseph W. Hatchett wrote a blistering, detailed dissent...

...Haitians had the misfortune of being persecuted at a time when U.S...

...Though the government had told the Supreme Court that these Haitians would be brought to the United States for full asylum hearings, shortly after the Supreme Court decision it decided to hold further hearings at Guantinamo, where the Haitians had no access to legal counsel...

...20, 1991...

...Johnson was clearly uncomfortable with his own ruling...

...T)he principle of nonrefoulement contained in Article 33 guarantees to refugees a specific and fundamental protection that is independent from the question of admission to the United States or the grant of asylum....Article 33 identifies the place to which no refugee may be sent...

...But until democracy is restored to Haiti, anything less than providing temporary refuge puts the United States in violation of the fundamental principles of refugee protection which it has heretofore consistently promoted...

...It seemed reluctant to return the refugees to Haiti, yet it had no interest in bringing them to the United States in the midst of a presidential campaign...

...Two days previous the Coast Guard had begun forcibly returning Haitians caught fleeing the terror unleashed against supporters of deposed President Jean-Bertrand Aristide...

...EPOSITIONS TAKEN BY LAWYERS FOR THE Haitian Refugee Center revealed what lead attorney Kurzban called "shocking...wholly arbitrary [screening] procedures...

...This court is astonished that the United States would return Haitians to the jaws of political persecution, terror, death and uncertainty when it was contracted not to do so...

...If the same situation existed in Ireland with this ragtag, crooked, violent group of gangsters who call themselves soldiers, do you think for one minute that the United States of America would return these Irish people to Ireland...

...Following Judge Johnson's signal, Rep...

...The fate of the more than 27,000 Haitians picked up by the United States as they fled their country in small boats hung in the balance...

...If the United States had followed established norms, it would have allowed the Haitians to land and given them the opportunity to apply for asylum...

...The willingness of President Bush to trod on poor, black non-voters to suit his political interests could well have wrought the end of asylum as we have known it...

...Beyond the obvious suffering U.S...

...6 The Bush Administration's initial response looked hopeful to refugee advocates...

...Its argument convinced an appeals court on December 17 to dissolve the preliminary injunction and remand the case to the district court...

...Senate Majority Leader George Mitchell (D-ME) applauded the Supreme Court's ruling that lifted the ban on repatriations, and was unlikely to challenge the administration's position...

...Meanwhile, having returned from its recess on January 22, Congress joined in the fray...

...The Bush Administration would like to pretend that those risking their lives on the high seas do not exist...

...We made a mistake in Cuba and VOLUM xxvi NUBE 1~~ (JUL 1992)35- 35 VOLUME XXVI, NUMBER JULY 1992)mmigrati on AmeC as Immigration we ought not to compound that error by repeating it with Haiti...

...The HRC complaint requested an injunction "until the INS has followed its own rules setting forth procedures to identify and protect those who are potential refugees...

...after his supervisor relieved him of his prescreening responsibilities at Guanti-namo...

...At the rate the Administration was returning Haitians from Guantinamo, it appeared unlikely that anyone covered by the bill would be left by the time a companion measure could wend its way through the Senate...

...20, 1991...

...At stake was the principle of "first asylum," a foundation of the international system of refugee protection...

...On November 22, Rep...

...See Americas Watch, the National Coalition for Haitian Refugees, and Caribbean Rights, "Haiti: The Aristide Government's Human Rights Record" (Nov...

...The UNHCR, which rarely confronts the United States, its largest donor, wrote an amicus brief that challenged the administration's stance...

...The United States withdrew its ambassador and urged U.S...

...no exception is provided that conditions the obligation on the placefrom which a refugee is returned...

...gove rnment "shall not return, cause to be returned, or affect the movement in any manner which results in returning, a national or habitual resident of a country, who is outside the United States, to the territorial boundaries of the country...unless the United States Government has determined that the individual is not a refugee...

...See statement of Harold Hongju Koh, Professor of Law, Yale University, on "The Nonrefoulement Reaffirmation Act of 1992," before the House Subcommittees on International Operations and the Western Hemisphere, June 11, 1992, p. 2...

...President Bush quickly weighed in on November 20...

...He found the interviews were 'increasingly inconclusive' and 'also of rapidly decreasing validity.' A superior returned his memo to him, did not discuss it, and uIrougI a suoUdld the Bush Administration's nate instructed him to se within its territory, but 'file it.' Promptly there- d at Guantnamo...

...The policy decisions concerning this case were not made by the INS or even the Department of State," said Kurzban...

...Curiously, only eight of these were admitted during the Duvalier family dictatorship and the anti-democratic regimes that succeeded it...

...The six-month suspension of forced repatriation only applied to Haitians picked up prior to February 5--in order to prevent the "magnet effect" that purportedly would encourage others to flee...

...But just what these laws say has been the subject of a drawn-out court battle between a president intent on demonstrating he's tough on immigrants, and advocates who believe refugee rights are being sacrificed Bill Frelick is seniorpolicy analyst at the U.S...

...Seeing the prospects for a legislative remedy as remote, the Senate folded its arms...

...5 On October 4, in an unusual public move, the InterAmerican Human Rights Commission of the Organization of American States (OAS) urged the United States for humanitarian reasons "to suspend its policy of interdiction of Haitian nationals who are attempting to seek asylum in the United States...

...A mass exodus of Haitians to south Florida would not play well in his re-election battle with challengers Patrick Buchanan and David Duke, each of whom assumed a strong anti-immigrant, "America First" stand...

...to domestic politics...

...Thatclearly was not the U.S...

...Convention Relating to the Status of Refugees, and its 1967 Protocol...

...Many others have been brutally beaten in the streets....The military has systematically targeted President Aristide's political supporters,...residents of poorer areas of Port-au-Prince,...and those in the rural areas, where most of the people supported President Aristide...

...2. All interdiction statistics are from the U.S...

...These "dumping grounds," however, proved limited...

...The Bush Administration began shopping around the Caribbean for middlemen, seeking to create an artificial tier of first-asylum countries...

...He continued: "Having promised the international community of nations that it would not turn back refugees at the border, the government yet contends that it may go out into international waters and actively prevent Haitian refugees from reaching the border...

...4, 1991...

...district court...

...8. U.N...

...Article 33 states: "No contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers or territories where his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion...

...Rangel's resolution also called on the Coast Guard to rescue Haitians at sea and bring them safely to U.S...

...The suit claimed that the return of Haitians violated Reagan's 1981 executive order, which said explicitly that "no one who is a refugee will be returned...

...We've got another Mariel boatlift in the making in Haiti," said Dan Stein, executive director of the largest anti-immigrant advocacy group, the Federation for American Immigration Reform...

...On March 27, District Court Judge Sterling Johnson, Jr...

...A similar bill was introduced on June 9 in the Senate by Sens...