Immigration Law Essays
U.S. Treatment of Haitian Refugees, Rita J. Verga
Despite the recent violent uprising and reports of politically motivated killings in Haiti, in February 2004 President Bush proclaimed that "We will turn back any refugee that attempts to reach our shore, and that message needs to be very clear as well to the Haitian people." Although U.S. officials subsequently clarified that they would not return those with a credible fear of persecution, the current practice for identifying people who have such a fear is totally inadequate, and results in the return of individuals who qualify for refugee status. The attached article describes the implementation of Bush's "interdiction" policy by the Coast Guard, which patrols the waters off Haiti, and immediately returns fleeing Haitians. The implementation of the interdiction policy is contrary to both domestic and international law and norms, and is grossly discriminatory in light of the treatment of Cubans by the United States.
Under the 1951 U.N. Refugee Convention and its 1967 Protocol, the United States is prohibited from returning refugees to countries where their lives or freedom are threatened. Likewise, 243(h) of the Immigration and Nationality Act (INA) prohibits the return of any refugee to a country where their life or freedom would be threatened on account of membership in a particular social group, or political opinion. Anecdotal evidence and the widely reported political situation in Haiti strongly indicate that some of the Haitians who are fleeing are doing so for reasons related to persecution for political beliefs and/or associations. Logic dictates that they should therefore qualify as refugees, and be protected from return to Haiti by both international and domestic law...
In spite of this, the United States does not recognize its international and domestic obligations. In Sale v. Haitian Centers Council, Inc., the Supreme Court declared that the U.S. policy of intercepting boats carrying Haitians seeking political asylum and returning them to Haiti without a hearing to determine whether they qualify as refugees did not contravene domestic or international law.
Regardless of the underlying cause for the difference in treatment, a persuasive argument can and must be made that fundamental principles of fairness require equal treatment of all refugees...The Lawyers Committee for Human Rights proposes 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. They propose that anyone who does indicate a fear should be interviewed by a trained INS asylum officer.
The Lawyers Committee's proposal is sensible. The U.S. Coast Guard recently has interdicted well over five hundred Haitians. It is therefore crucial for the Bush administration to immediately set out a clear policy that complies with its legal obligations to protect refugees. It must establish procedures, and allocate the necessary resources to ensure that no one is returned to Haiti who is in danger of being persecuted, tortured, or killed. To do so requires giving each interdicted Haitian a meaningful opportunity to tell his or her story and carefully assessing the claims made.