Haitians At Sea: Asylum Denied

September 25, 2007

On November 20, at the first of several congressional hearings on U.S. policy toward Haitian refugees, Rep. Charles B. Rangel (D-NY) confronted Immigration and Naturalization Service Commissioner Gene McNary. Two days previous the Coast Guard had begun forcibly returning Haitians caught fleeing the terror unleashed against supporters of deposed President Jean-Bertrand Aristide.

“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, not withstanding the law? 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?”

“Congressman,” McNary responded, “that’s even an offensive question. We return everyone who is supposed to be returned under the laws of the United States of America.” 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 to domestic politics. 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.

The Haitian Migrant Interdiction Operation actually began in 1981 when Ronald Reagan signed an agreement with Haitian dictator Jean-Claude Duvalier. 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.”[1]

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. Coast Guard.[2] Of that number, only 28 were allowed to pursue asylum claims. Curiously, only eight of these were admitted during the Duvalier family dictatorship and the anti-democratic regimes that succeeded 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.[3]

For the first month after the coup, Haitians stayed put. Aristide would return, maybe tomorrow, perhaps the next day––so said the rumors circulating around the Haitian capital of Port-au-Prince and the rest of the country. But he didn’t. Instead, Haitian army and security forces conducted large-scale searches for his supporters. Amnesty International reported that “hundreds of people have been brutally executed, or detained without warrant and tortured. 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.”[4] Even the U.S. 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.”[5]

On October 4, in an unusual public move, the Inter-American 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.” Haitians should not be returned to their country, the OAS insisted, “because of the danger to their lives, until the situation has been normalized.”[6]

The Bush Administration’s initial response looked hopeful to refugee advocates. The United States withdrew its ambassador and urged U.S. citizens not to travel to Haiti. Washington joined the OAS in condemning the coup and refusing to recognize the de facto regime. The United States supported the OAS economic embargo to force the military regime to restore democracy.[7]

By November, thousands of Haitians were fleeing by boat. As Coast Guard cutters became more and more crowded, the government was caught in a quandary. 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. So the Haitians remained on board the ships in extremely cramped conditions. By November 10, some of the cutters began mooring at the U.S. base in Guantánamo Bay, Cuba, where make-shift camps were constructedto house the refugees.

At stake was the principle of “first asylum,” a foundation of the international system of refugee protection. 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. Over the years, the United States has insisted that such nations as Thailand, Malaysia and Zimbabwe not turn away refugees at their borders. Suddenly, the United States found itself in the position of a country of first asylum.

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 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.”[8] On November 11, UNHCR called on the United States to “allow all of the individuals now on board [U.S. Coast Guard] vessels to be disembarked in the United States and admitted for determination of their refugee status.” That clearly was not the U.S. government’s intention.

The Bush Administration began shopping around the Caribbean for middlemen, seeking to create an artificial tier of first-asylum countries. The choices––Belize, Venezuela and Honduras––were demonstrably less well-equipped than the United States to shoulder the burden, but they generously took in some refugees. These “dumping grounds,” however, proved limited. So after a perfunctory screening, the Coast Guard began returning Haitians to Port-au-Prince. The first two boatloads, totaling 538 people, disembarked on November 18 and 19.

Within two housr of the second offloading, a protracted legal battle began. 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. 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.” 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.”

President Bush quickly weighed in on November 20. “It is a fair policy,” he said, which “does make a distinction between economic refugees and political refugees. But let me assure you, it is not based on some race or double standard.”[9] Bush’s distinction between economic migrants and political refugees set the parameters of the debate for the coming months. The debate revolved around the adequacy of the screening procedure–– whether political refugees were being screened out as economic migrants.

Deterring more boat departures appeared to be the President’s prime concern. 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.[10]

The anti-immigrant lobby was quick to sound the alarm. “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. “It’s almost like déjá vu. The similarities between Cuba 1980 and Haiti 1991 are eerie. Along with a handful of legitimate political refugees is an army of economic migrants waiting to descend on south Florida. We made a mistake in Cuba and we ought not to compound that error by repeating it with Haiti.”[11]

The legal battle was not immune from these political pressures. “The nature of this case from beginning to end was extraordinarily political,” said Ira J. Kurzban, lead attorney for the Haitian Refugee Center. For only the third time in U.S. history, the Solicitor General of the United States argued on behalf of the executive branch before a U.S. district court. “Tire policy decisions concerning this case were not made by the INS or even the Department of State,” said Kurzban. “The issues were directed from the National Security Council and the White House.”[12]

But supporters of refugee rights stood up as well. Rep. Rangel and Sen. 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. Rangel’s resolution also called on the Coast Guard to rescue Haitians at sea and bring them safely to U.S. shores.

On November 22, Rep. 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.” On the Senate side, Sen. Dennis DeConcini (D-AR) also introduced a bill to make Haitians, “in the custody or control of the United States (including on Coast Guard vessels on the high seas)” eligible for TPS. 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.

Depositons taken by lawyers for the Haitian Refugee Center revealed what lead attorney Kurzban called “shocking... wholly arbitrary [screening] procedures.” 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 unit minister of Haiti were, not knowing who [coup-leader] Gen. Cedras was, and not knowing any of the organizations that were supportive of President Aristide.”[13]

Immigration officers were also applying incorrect legal standards, Kurzban continued. “One officer could not even name all the grounds necessary to obtain asylum. Another officer admitted that she had applied an incorrect legal standard, and that those persons were not re-interviewed. 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 chief asylum officer of the United States,” Kurzban continued, “concluded in a memo on November 12, 1991 that the interview process should be suspended. He found the interviews were ‘increasingly inconclusive’ and ‘also of rapidly decreasing validity. A superior retumed his memo to him, did not discuss it, and through a subordinate instructed him to ‘file it.’ Promptly there-after his supervisor relieved him of his prescreening responsibilities at Guantánamo.”

The U.S. General Accounting Office (GAO) confirmed that lax administrative procedures had resulted in mistaken deportatiom from Guantánamo. At least 54 Haitians were apparently mistakenly repatriated,” a GAO report states, adding that “we believe our numbers may understate the problem.”[14]

Meanwhile, the class action suit, HRC v. Baker, was on a rapid roller-coaster ride through the courts. 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.” Judge Atkins based his ruling primarily on Article 33 of the 1951 U.N. Convention Relating to the Status of Refugees, and its 1967 Protocol. 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.”

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. Coast Guard cutters or detained at Guantanamo. Its argument convinced an appeals court on December 17 to dissolve the preliminary injunction and remand the case to the district court.

Judge Joseph W. Hatchert wrote a blistering, detailed dissent. “At the bottom of this case,” he wrote, “is the government’s decision to intercept Haitian refugees on the high seas, in intemational waters, to prevent them from reaching United States territory. 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.” 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. Such a contention makes a sham of our international treaty obligations and domestic laws for the protection of refugees.”

The UNHCR, which rarely confronts the United States, its largest donor, wrote an amicus brief that challenged the administration’s stance. “Article 33 proscribes the return of refugees ‘in any manner whatsoever’ to the frontiers of territories where their lives or freedom would be endangered.... (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 besent; no exception is provided that conditions the obligation on the place from which a refugee is returned.”

The Haitian Refugee Center took the case to the Supreme Court, but on February 24, the court voted 8-1 not to hear it. Following that decision, the government moved quickly to return as many Haitians from Guantanamo as it could. 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.

Meanwhile, having returned from its recess on January 22, Congress joined in the fray. 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 bill that finally passed on February 27 was a watered-down version of those introduced in the fall, The six-month suspension of forced repatriation only applied to Haitians picked up prior to February 5––in order to prevent the “magnet effecf’ that purportedly would encourage others to flee. At the rate the Administration was returning Haitians from Guantánamo, 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. In addition, the margin of the House vote would not protect the bill from a threatened presidential veto.

Seeing the prospects for a legislative remedy as remote, the Senate folded its arms. Not only was stronger opposition to a bill anticipated there, but the Democratic leadership showed little interest in pursuing the matter. 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.

Having 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. 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 Guantanamo, where the Haitians had do access to legal counsel. The government also changed the screening policy for newly interdicted Haitians. During the period of the HRC suit, Haitians were brought to Guantánamo to rest and recover from the sea journey before being screened. After the Supreme Court ruling, the INS resumed screening aboard the Coast Guard cutters.

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. 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. On March 27, District Court Judge Sterling Johnson, Jr. issued a temporary restraining order blocking the forced repatriation of the 3,446 Haitians remaining at Guantánamo.

“The screened-in plaintiffs are non-hostile individuals who were brought to Guantánamo 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. They are isolated from the world and treated worse than... a criminal defendant.”

Again, the Supreme Court lifted the injunction. The Court split 5-to-4, with Justices Blackmun, Stevens, O’Connor and Sorter in dissent. 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.” 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 Guantánamo.[15]

On May 24, President Bush issued an executive order that dropped even the pretense of screening. Hereafter, he ordered, all interdicted Haitians, refugees or not, would be returned to Haiti. The Coast Guard could return them without even trying to determine whether they might face persecution upon return. The order, effectively blocking any escape, succeeded in stopping the boats from departing. Who, after all, would risk his or her life to make a journey 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 Haitian Centers Council did launch a new lawsuit, but Judge Sterling Johnson denied the preliminary injunction that would have put the policy on hold. 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.” He agreed with the Solicitor General, who again represented the government personally, that the section of U.S. law which prohibits the return of refugees does not apply outside U.S. territory.

Johnson was clearly uncomfortable with his own ruling. “It is unconscionable,” he wrote, “that the United States should accede to the Protocol and later claim not to be bound by it. 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.”

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. “As its tands 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.”

Following Judge Johnson’s signal, Rep. Stephen J. Solarz (D-NY) introduced a bill that “reaffirms” that if Article 33 applies to individuals outside the United States and that the U.S. government “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.” A similar bill was introduced on June 9 in the Sente by Sens. Edward M. Kennedy (D-MA) and Mark O. Hatfield (R-OR).

Congress is asking for very little. The proposed legislation no longer call s for Temporary Protected Status, nor does it say anything about the adequacy of screening procedures. All congress seeks is a “reaffirmation” of the principle of nonrefoulement––the presumably universally accepted right of it refugee not to be handed over to his or her persecutors. As of this writing, not even this bill is assured of passage.

The Bush Administration would like to pretend that those risking their lives on the high seas do not exist. And it would like to maintain the outrageous fiction that Haitians do not have legitimate fears of persecution upon return. 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.

Haitians had the misfortune of being persecuted at a time when U.S. economic and social ills were being blamed on foreigners. 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. This attitude was reflected in Pentagon spokesman Greg Hartung’s sum-up of the logic of U.S. policy: “There is no room at the inn.” Bush Administration policy ensures that the refugees’ need for shelter remains a secondary to the comfort of the innkeepers.

Beyond the obvious suffering U.S. policy is causing Haitians hunted down for their political beliefs, it holds grave implications for the rest of the world. “The way the United States deals with the Haitians,” U.N. High Commissioner for Refugees Madame Sadakc, 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.”

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

ABOUT THE AUTHOR Bill Frelick is senior policy analyst at the U.S. Committee for Refugees in Washington.

NOTES 1. Executive Order 12324, Sept. 29, 1981, paragraphs (b)(3) and (c)(3). Federal Register, Vol. 48, No. 190 (Oct. 1, 1981). Haiti is the only nation “with whom we have arrangements,” though it is not mentioned in Reagan’s order. 2. All interdiction statistics are from the U.S. government. Although some were received from the State Department and the Immigration and Naturalization Service, both cite the Coast Guard as their source. 3. This relatively dramatic increase in the number found to have credible asylum claims occurred despite the findings of reputable 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. See Americas Watch, the National Coalition for Haitian Refugees, and Caribbean Rights, “Haiti: The Aristide, Gorvernment’s Human Rights Record” (Nov. 1, 1991). 4. Amnesty international. “Haiti: The Human Rights Tragedy: Human Rights Violations since the Coup,” Al Index Jan. 1992. 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. 30, 1991). 5. Refugee Reports, Vol. XII, No. 11 (Nov. 29, 1991), p. 1. 6. Organization of American States, Outgoing Telex, Case No. 10.675 (Jeanette Gedeon et al.) SG/IACHR/034/91 to James A. Baker, III, U.S. Secretary of State, from Edith Márquez Rodríguez, Executive Secretary, IACHR, GSB-8th floor, Oct. 4, 1991. 7. See Statement of Donna Hrinak, deputy assistant Secretary of State for Inter-American Affairs, before the House Foreign Affairs Committee, Subcommittee on Western Hemispherc Affairs, Feb. 19, 1992, for a summary of U.S. actions in the months following the coup. 8. UN High Commissioner for Refugees, EXCOM Conclusion No. 23 (XXXII) 1980; for a fuller discussion, see Bill Frefick, “The Haitian Boat People,” Christian Science Monitor, Nov. 20, 1991. 9. Washington Post, Nov . 21, 1991. 10. 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 turned as a referendum on the Bush Administration’s neglect of the “domestic agenda.” The “America First” movement took on a particularly xenophobic cast with a rise in Japan-bashing, the failure of Congress to color a foreign-aid bill in October, and California Governor Pete Wilson blaming foreign immigrants for “taxpayer squeeze.” This was the momentum building behind the Buchman presidential bid. 11. “FAIR Warns of Potential Haitian ‘Mariel’: Calls for Repeat of Cuban Adjustment Act,” Press Release, FAIR, Nov. 20, 1991. 12. Testimony Ira J. Kurzban, General counsel for the Haitian Refugee Center, before the House Subcommittee on Legislation and National Security. April 9, 1992, p 10. 13. Ibid., pp. 6-7. He cited the depositions of John Baker, James Schaviden, Leon C. Jennings, Christina Tilbury and Gregg Beyer. 14. U.S. General Accounting Office, “U.S. Processing of Haitian Asylum Seekers,” (GAO/T-NSIAD-92-25), April 9, 1991. pp. 3-4. 15. 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. 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 ever requested in the history of the New York federal count, and ten times the Size of the bond in the Texaco-Pennzoil case. The Justice Department also asked the trial court to fine the Haitian Centers Council litigants for filing a “frivolous” lawsuit. 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.

Tags: US immigration, Haiti, asylum, refugees, UNHCR

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