Haitians Deserve Benefits Nicaraguans and Cubans Got Through Legislation

Written Statement of Cheryl Little, Executive Director Florida Immigrants Advocacy Coalition (FIAC), before the Senate Subcommittee On Immigration  on December 17, 1997

• Asylum Process In The United States
• Asylum Seekers And Refugee Processing Outside The United States
• History Of Discrimination
• Conclusion

I want to thank you, Senator Abraham, for your demonstrated concern about the Haitians and other immigrant groups in the United States. Thank you also for inviting me to testify.

I am the Executive Director of the Florida Immigrant Advocacy Center, a non-profit organization with 17 attorneys and 4 offices. FIAC provides free legal services to immigrants of all nationalities, including many Haitians. Prior to this, I coordinated work on Haitian asylum cases in South Florida for Florida Rural Legal Services. Before that, I was the Directing Attorney at the Haitian Refugee Center. I also taught an Immigration Workshop this semester at the University of Miami Law School.

It has been suggested that Haitians don't deserve the same permanent legal resident status that Congress recently afforded Central Americans and other groups because Haitians have been treated better than immigrants from nearly every other country. Unfortunately, this is not true.

We have a responsibility to look at the facts in evaluating the claim that Haitians don't need protective legislation. In this context, I would like to discuss the reasons why Haitians cannot rely on the asylum process to resolve their immigration status and the history of discrimination against Haitians in the immigration process.

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Asylum Process In The United States

Despite well documented political oppression in Haiti, Haitians have historically been granted asylum at a very low rate. Between June 1983 and March 1991, only 1.8% of Haitian applicants were granted asylum by the INS. Among nationalities submitting the largest number of asylum applications, this was the lowest approval rate. For example, the approval rate during that period for China was 69.0% and for the former Soviet Union, 74.5%. The overall approval rate for all applicants was 23.6%.

Despite the bloody outcome of the aborted election in Haiti in 1987 not a single Haitian was granted asylum that year by the INS. Between 1986 and 1991, only 28 Haitians were granted asylum. In 1986, 5 Haitians were granted asylum; in 1988, 8; in 1989, 11; in 1990, 3; and in 1991, 1. These figures are generous, since many other Haitians who would have applied for asylum did not do so because the odds were so great against their claims being fairly considered.

Even when approval rates for Haitians increased after reform of the asylum system in the early 1990's and after the coup d'etat ousting President Aristide, they remained far below the approval rates for other nationalities. For example, the 30.6% approval rate for Haitians in 1992 still lagged far behind the approval rate for Chinese applicants (84.8%) and applicants from the former Soviet Union (49.8%).

Given the grave political situation in Haiti following the 1991 ouster of President Aristide, the number of Haitians granted asylum in the aftermath of the coup was alarmingly low. In 1992, 120 Haitians were granted asylum by the INS; in 1993, 636; in 1994, 1060; in 1995, 749; and in 1996, 1,491. Moreover, any meaningful increase in the approval rate was temporary. On December 5, 1997 the Miami Asylum Office Director stated that the current approval rate for Haitian applicants is less than 15%.

The 11,000 Haitians screened into the U.S. from Guantánamo after INS officials found they had a credible fear of persecution following the 1991 coup d'etat have been, and continue to be, in real danger of being denied asylum. Preliminary assessments by asylum officers in Miami recommended grants of asylum in 33 out of the first 43 of these cases. However, in a May 26, 1992 memorandum to the Associate Deputy Attorney General, the Director and Assistant Director of the Asylum Policy and Review Unit ("APRU") in Washington disagreed with 18 of the recommendations to approve, but with only one recommendation to deny. They also expressed concern that the grant rate was "higher than expected."  Special incentives were given to asylum officers to deny these cases, specifying that "INS could be encouraged to ..[count] a completed denial as a double case completion and a completed grant as a single case completion for purposes of ... officer evaluation."

Indeed, even before asylum officers had interviewed many of the screened-in applicants after their arrival in the U.S., the INS Deputy Commissioner remarked in January, 1992 that it was expected that 90% of these cases would be denied. A 1992 Harvard Law School report on the asylum process expressed concern that "special foreign policy pressures" had been influencing treatment of these cases.

Many Haitians screened in from Guantánamo, who clearly were deserving of asylum, have been denied such relief. For example, one young woman who, on account of her political activity, was beaten and repeatedly raped by a member of the Haitian military following the 1991 coup d'etat was nonetheless denied asylum.

Historically, State Department opinion letters and reports relied upon by the INS have minimized the extent of political oppression in Haiti and taken an unreasonably optimistic view of the political situation there. The INS has relied upon the State Department reports on Haiti even when they are contradicted by human rights organizations such as Amnesty International and Human Rights Watch. Likewise, the INS has prematurely concluded that country conditions in Haiti have changed to such an extent that asylum should now be denied, even for people who have suffered past persecution, on the basis of State Department reports. The INS has also taken a narrow and legally improper view of the circumstances that warrant the grant of asylum to victims of past persecution by not taking into account the humanitarian concerns that warrant a grant of asylum even if country conditions have changed.

Attorneys who represent asylum applicants of different nationalities are familiar with the difference in treatment accorded to Haitians compared to applicants from communist countries. Relatively mild mistreatment of Cubans in their homeland, for example, may result in a grant of asylum while gross mistreatment of Haitians does not.

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Asylum Seekers And Refugee Processing Outside The United States

Haitians outside the U.S. who wish to apply for refugee status or are trying to reach the U.S. to apply for asylum face even greater obstacles.

From 1981 to 1989, over 99% of refugees admitted to the U.S. were from communist countries. When also taking into account refugees from Iran and Iraq during that period, the number reaches 99.9%. Virtually all, if not all, of those admitted as refugees from the Caribbean were Cuban.

Only in 1992 did the U.S. begin to process refugee applications in Haiti for admission to the U.S. But even that process was flawed, as Haitian refugee applicants were required to openly approach the U.S. embassy in Port-au-Prince, thereby putting their lives in jeopardy. Even after sites outside the capital were opened, people in rural areas typically had no way to get there to apply. In any event, few people qualified because the threshold for approval was so high. The approval rates for Haitians were dramatically lower than those for all other nationalities. Refugee processing in Haiti was dropped at the end of 1994, barely months after President Aristide returned to Haiti.

Additionally, Haitians attempting to flee Haiti and seek asylum are not permitted to reach the U.S.  In September, 1981, the Reagan Administration reacted to the migration of Haitian  asylum seekers arriving in boats by establishing a program to interdict them. The Reagan Administration determined that the amount of undocumented Haitians coming to the U.S. had "threatened the welfare and safety of communities," despite the fact that Haitians comprised less than two percent of the undocumented population of the U.S. at that time.

While the 1981 agreement clearly specified that bona fide refugees were not to be returned to Haiti, INS determined that only twenty-eight of the 23,000 Haitians intercepted in the decade following the program's inception were qualified to apply for asylum in the U.S. Twenty of these were brought to the U.S. after INS instituted several changes in the pre-screening interdiction process, which took affect March 1, 1991, after President Aristide took power.

Shortly after the 1991 coup d'etat, a lawsuit was filed challenging the repatriation of Haitians without any meaningful consideration of their asylum claims. The interdicted Guantánamo Haitians who were "screened-in" in 1991 and 1992 were only allowed to come to the U.S. after a federal judge issued a temporary injunction prohibiting their forcible return. And thousands more were forcibly returned. INS conducted 36,596 screening interviews at Guantánamo between October 1991-June 1992 and "screened in" 10,319 Haitians, only 28%. Several interpreters at Guantánamo provided sworn statements detailing the heavy pressure placed on asylum officers by the U.S. Department of State to decrease the number of Haitians screened in.

In 1992 the Eleventh Circuit Court of Appeals upheld the U.S.'s argument that Haitians had no legally enforceable rights in the U.S. because they were outside U.S. territory, even though this was because the U.S. prevented Haitians from freely reaching the continental U.S.  In a brief two sentence order issued without comment on January 31, 1992, the Supreme Court voted to permit repatriations and shortly thereafter President Bush issued an Executive Order from Kennebunkport, Maine, permitting INS to repatriate Haitians interdicted at sea without any investigation into the likelihood of their persecution in Haiti ("Kennebunkport Order").

Amnesty International expressed outrage at the forced returns. In a January 1992 report, Amnesty International said it had received reports of grave human rights violations after the coup d'etat. Amnesty stated they knew of "several cases in the past years where asylum-seekers who were refused asylum in the USA and returned to Haiti were imprisoned and in some cases ill treated on their return."

The United Nations High Commissioner for Refugees ("UNHCR") similarly condemned the repatriations, expressing fear that those returned would be exposed to real danger. Just before the Supreme Court decision allowing repatriations to continue, UNHCR confirmed that dozens of Haitian refugees returned to Haiti due to faulty procedures were persecuted upon their return and forced to flee a second time. The UNHCR said that they and U.S. government officials had documents detailing the harassment, beating, torture, and murder of returned Haitians for the "crime" of having fled. After the UNHCR publicly confirmed that they had evidence of returnees being persecuted, they were informed they could no longer conduct interviews of the Haitians at Guantánamo without a military presence. Even Haitians who had been "screened in" by INS officials were erroneously repatriated, including at least 38 unaccompanied children and a sixteen year old girl, Marie Zette, who was killed in her bed by Tonton Macoutes the first night after her forced return.

In 1994, after mounting pressure from the Congressional Black Caucus and other groups, President Clinton permitted intercepted Haitians to be taken to Guantánamo rather than forcibly repatriated. According to U.S. Government officials, Guantánamo's facilities at peak times during 1994-95 held as many as 32,362 Cubans and 21,638 Haitians.   While the U.S. Government paroled into the U.S. virtually all of all Guantánamo's Cuban refugees, it forcibly returned to Haiti almost all of Guantánamo's Haitian refugees.

Among Guantánamo's Haitian refugees were 356 children who arrived there unaccompanied by an adult. Most of these children had witnessed close family members being murdered by Haiti' s paramilitary forces, and some of them had barely escaped Haiti with their own lives. Conditions for the children in the camps were deplorable, and some attempted suicide. By June, 1995 the majority of these children had been forcibly repatriated. Many are living on the streets in Haiti today and at great risk. Indeed, at least one was raped following her forcible return.

In its 1996 Annual Report, the Inter-American Commission on Human Rights, Organization of American States, concluded that the U.S.'s interdiction and repatriation policy toward Haitians violated the following provisions of the American Declaration of the Rights and Duties of Man: the right to life, the right to liberty, the right to security of the person, the right to equality before the law, the right to resort to the courts, and the right to seek and receive asylum.

Although in the past few years the U.S. has also interdicted Cubans trying to come to the U.S. by boat and returned them to Cuba, Cubans have immigration options open to them that are denied to Haitians. They may apply for refugee status in Cuba. In addition, under an agreement with the Cuban government, at least 20,000 visas must be given to Cubans to come to the U.S. each year. And Cubans who are admitted or paroled into the U.S. may apply for permanent resident status after one year under the Cuban Adjustment Act even if they came to the U.S. for purely economic reasons. None of these options is open to Haitians.

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History Of Discrimination

Haitians were forced to turn to the courts in attempting to put an end to the discriminatory practices directed against them. In the early 1980's, a landmark suit was filed on behalf of over 4,000 Haitians requesting political asylum. The INS, through procedures in effect at that time, had denied all 4,000 applications. The court found that U.S. government agencies had set up a "Haitian Program" designed specifically to adjudicate, and to deny, as quickly as possible the asylum claims of Haitians, a program which "in its planning and executing [was] offensive to every notion of constitutional due process and equal protection."

The court concluded that the backlog of 6000-7000 Haitian cases -- which the government had argued constituted the reasons for instigating the Haitian Program -- was not a result of a massive influx of Haitians to South Florida over a short period, but rather was primarily attributable to a slow trickle of Haitians over a ten-year period and to the confessed inaction of the INS in dealing with these cases. Moreover, the court concluded that the INS was engaging in scare tactics, noting that the INS Deputy Commissioner   encouraged government attorneys to point out "THE DIMENSIONS OF THE HAITIAN THREAT" and called the Haitian cases a threat to the community's social and economic well-being. The court also found that the discriminatory treatment of Haitians was nothing new, but rather that it was part of a pattern of discrimination which began in 1964.

Despite the federal court's absolute condemnation of the U.S. government's Haitian policy, Haitians continued to be dismissed solely as economic migrants and the government continued to demonstrate its bias against the Haitians through improper screening and arbitrary detention. In late May 1981, INS began to systematically detain Haitians entering the U.S. This was a fundamental change from the established policy of detaining only those persons deemed likely to abscond or pose a threat to national security.

In July of 1981, the State of Florida brought an action against the Federal Government due to the overcrowded conditions at Krome Service Processing Center, the INS detention facility in Miami. During litigation, the government promised that efforts would be made to keep the population at Krome at or under 1,000 people. In order to abide by this representation, the INS transferred Haitians out of Krome whenever the population exceeded 1,000.

Advocates for the Haitian refugees again turned to the courts for help, and again the courts noted the INS' callous disregard for the rights of Haitian refugees. A federal court judge in 1982 characterized the transfers as "a human shell game in which the arbitrary Immigration and Naturalization Service has sought to scatter [Haitians] to locations that ... are all in desolate, remote, hostile, culturally diverse areas, containing a paucity of available legal support and few, if any, Creole interpreters."

A successor judge in the same case subsequently ruled that the Haitians were "impacted to a greater degree by the new detention policy than aliens of any other nationality......" Unlike other aliens, the Haitians were subject to mass exclusion hearings behind closed doors, improperly denied access to their attorneys and deported in a manner INS itself admitted was faulty. The detention policy was found to be invalid and the court ordered the release of over 1,000 Haitians, provided they were deemed neither a security risk nor likely to abscond.

The government appealed the district court decision and in an historic decision, an Eleventh Circuit Court of Appeals panel found that statistical evidence disclosed that the federal government had engaged in a "stark pattern" of discrimination against the Haitian asylum seekers. This was the first time in the history of American law that the federal government was found to discriminate on the basis of race or national origin under the Constitution in a nonemployment context. Although the Court of Appeals en banc later vacated the decision on the grounds that Haitians had no constitutional rights, they never disturbed the factual findings of the panel opinion.

Despite the court's order that INS stop illegal transfers of Haitians to remote areas of the country, such transfers continued. In May 1989, a federal judge in Miami blocked the forced transfer of dozens of Haitians, this time from Krome to Louisiana and Texas during a "lock down" of the INS facility. The judge found that the circumstances under which the transfers took place violated the Haitians' due process rights.

Haitians have also documented their mistreatment at Krome, which led to a 1990 FBI and Justice Department investigation into allegations of physical and sexual abuse by Krome officers. While Justice Department officials claimed in March 1991 that the investigation was completed, to date no findings have been made public.

In late September 1992, Amnesty International USA criticized the lengthy detention of Haitians at Krome, claiming that governments should reveal legitimate grounds for any detention of asylum seekers. During the summer of 1992, Florida Senators Bob Graham and Connie Mack unsuccessfully pushed for legislation to limit detention at Krome to ninety days.

Haitians at Krome have engaged in serious hunger strikes to protest their treatment. One of these occurred in January 1993 following the arrival of fifty-two Cubans who had "commandeered" a Cuban commuter flight from Havana to Varadero, Cuba, diverting it to Miami. All the Cubans were released from Krome within forty-eight hours, while the Haitians remained in custody. To the Haitians this was a painful reminder of the double standard of treatment.

Haitians attempting to come here legally have also been discriminated against. In a decision subsequently upheld by the U.S. Supreme Court, a federal district court judge ruled that Haitians who sought to legalize their status under the farm worker amnesty program of 1986 were denied a "meaningful opportunity to be heard."   In addition, based on the largest, most ambitious fraud investigation ever undertaken by the INS, the U.S. government charged mostly poor, uneducated Haitian farm workers with committing fraud in their applications for residency under the amnesty program ("Operation Cucumber"). Federal judges hearing criminal charges against the Haitians criticized the Government for bringing the charges, and the government was forced to dismiss all of the cases.

Haitian children have not been spared the discriminatory policy directed against Haitians attempting to come to the U.S. legally. Haitian children eligible for family-sponsored visas were stranded in Haiti for months following the 1991 coup d'etat, while their applications were subjected to heightened scrutiny imposed on no other nationality. This group included children who had lived with their parents in the U.S. for years, attended school here, and had little familiarity with Haiti or its language.

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Conclusion

In conclusion the history of the U.S. government's treatment of Haitians gives no cause to believe that Haitians should pin their hopes on asylum processing. That is why a grant of residence under proposed legislation is so critical.

Haiti today is a fragile democracy at best. In a June 1997 letter, Amnesty International officials concluded that "[A]ny blanket assessment that the change in government can allow all who fled the country to return without fear of harm is.. incorrect in our view." The United Nation High Commissioner for Refugees similarly concluded in August 1997 that "the weakness of Haiti's institutions, inherited from decades of political repression, undermine the capacity of the State to meet the basic obligation to protect its citizens ... This office believes it would be inappropriate to conclude generally that Haitian asylum seekers would no longer face persecution upon return to Haiti."

Haitians who fled oppression have for years lived, worked, built businesses, paid taxes, and raised children born here. Not only will their forced return to Haiti disrupt their lives, but it will also have a devastating effect on Haiti's fragile economy. Haitian President Rene Preval has asked that Haitians be given equal treatment with the Nicaraguans, and that the United States recognize the current economic and political situation in Haiti. Congress and the White House have taken similar considerations into account in supporting protective legislation for Central Americans.

We believe that similarly situated groups should be treated equally. Nicaraguans and Cubans who arrived in the United States as of December, 1995 will be given residence under the new law. Haitians deserve no less than that.

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