Asylum Protection News 7

Haitian Asylum Seekers Selectively Targeted by US Detention and Interdiction Policies

U.S. Government Must Change Discriminatory Policies

On October 29, 2002 more than 200 Haitian men, women and children swam ashore near Key Biscayne, Florida. They remain detained in INS custody. Even though they are eligible for release on bond, the INS has refused to set bond for these Haitians, and is invoking a controversial post September 11 regulation to keep them detained even when an immigration judge determines that they can be released.

Earlier this week, the U.S. Coast Guard announced on Tuesday that it would step up its efforts to interdict Haitians and other migrants attempting to reach U.S. shores illegally. At the same time, 19 Haitians who had failed to reach U.S. shores were returned to Haiti without being given the chance to apply for asylum.

Discriminatory Detention: INS Invokes Controversial Post 9-11 regulation to keep Haitian asylum seekers detained even if judge decides they can be released

After a boat carrying about 170 Haitian asylum seekers arrived in Florida in December 2001, the INS instituted a separate parole policy directing that Haitian asylum seekers not generally be released on parole. Other asylum seekers in Florida are routinely paroled. Now, in response to the arrival of the most recent boat on October 29, the INS is again taking a discriminatory approach to the detention of Haitian asylum seekers.

The INS is reportedly invoking a controversial new regulation – a change that was made by the Department of Justice on October 26, 2001 in the wake of the September 11 attacks. The new regulation gives INS trial attorneys the power to, in essence, overrule an immigration judge’s decision to release an immigration detainee on bond. This overly broad provision can be invoked where there is absolutely no suspicion of criminal or terrorist activity, and was immediately applied to Arab and Muslim non-citizens who were detained in the wake of September 11, leading to prolonged periods of detention. The INS is now threatening to use this overly broad power to detain asylum seekers for what will likely end up being prolonged periods of time. The INS has also refused to set bond for these asylum seekers.

The INS’s treatment of Haitian asylum seekers – which in effect deprives them of an individual determination and treats them in a discriminatory manner – violates due process and international law.

Discriminatory Interdiction: Is the US Government Returning Haitian Refugees to Face Persecution?

As noted above, the U.S. Coast Guard announced yesterday that it would step up its efforts to interdict Haitian and other migrants who attempt to come to the U.S. illegally. At the same time, the U.S. reportedly returned the 19 Haitians who had failed to reach shore to Haiti.

Political violence is on the rise in Haiti, and it is not surprising that those in danger feel the need to flee. The United States is obliged, under international law, not to return people to a country where their lives or freedom would be threatened on account of their political opinions. But how can the U.S. be sure that the Haitians it is returning are not in danger of persecution when it does not conduct any screening of the Haitians it returns?

Under U.S. procedures, migrants who are interdicted on boats are not given access to lawyers and are not all screened to make sure that they are not refugees who are in danger of persecution if returned. While Cuban migrants are read a statement in Spanish notifying them that they may come forward and speak with a U.S. representative if they have any concerns and Chinese migrants are provided with a written questionnaire, Haitian and other migrants are not provided with any indication, written or oral, that they can express their fears about being returned. Even if a Haitian asylum seeker should voice a fear of persecution, the U.S. government does not require that translators be present on every interdicted boat so their fears may never be heard.

Take Action!

Human Rights First has urged that the INS: (1) stop discriminating against Haitian asylum seekers and treat them fairly; and (2) ensure that Haitian asylum seekers are given genuinely individualized detention determinations – instead of determinations that are simply a charade. Human Rights First has also urged that all individuals who are interdicted on boats by the U.S. government be individually apprised, in a language that they understand, that they can express any fears or concerns about being returned to their home country. Anyone who does indicate a fear should be interviewed by a trained INS asylum officer.