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The Lawyers Committee for International Human Rights
36 West 44th St., New York, New York, 10036 (212) 921-2160
Marvin E Frankel 300 Park Avenue New York. New York 10022
EXECUTIVE DIRECTOR Michael H. Posner
BOARD OF DIRECTORS
Maureen R Berman Robert L Bernstein G. LuKongwa Binaisa Bruce Bushey Merrell E. Clark. Jr. Ramsey Clark Wayne D. Collins Jack David Michael I. Davis Adrian W. DeWind Norman Dorsen Fr. Robert F. Drinan Bruce J. Ennis Benjamin Gim R Scott Greathead Deborah Greenberg Louis Henkin Elizabeth Holtzman Virginia A. Leary Bruce Rabb Barbara A, Schatz Orville H. Schell Jerome J. Shestack James R S.lkenat Rose Styron Teltord Taylor
STATEMENT OF ARTHUR C. HELTON
LAWYERS COMMITTEE FOR INTERNATIONAL HUMAN RIGHTS
THE HAITIAN DETENTION PROGRAM
SUBCOMMITTEE ON COMMERCE, JUSTICE, STATE JUDICIARY, AND RELATED AGENCIES AMD THE ADMINISTRATION OF JUSTICE COMMITTEE ON APPROPRIATIONS U.S. HOUSE OF REPRESENTATIVES
JULY 14, 1982
FOUNDED BY THE INTERNATIONAL LEAGUE FOR HUMAN RIGHTS AND THE COUNCIL OF NEW YORK LAW ASSOCIATES
Chairman Smith, thank you for inviting our views at today's hearing. My name is Arthur Helton. I am Director of the Political Asylum Project of the Lawyers
Committee for International Human Rights in New York.
Since 1978, the Lawyers Committee has been a public interest law center working in the areas of international human rights, refugee and asylum law. The Political Asylum Project of the Committee was created in late 19 80 to provide representation to individual asylum applicants in the United States. The Project utilizes volunteer lawyers whom it trains and supervises. Since 19 78 the Lawyers Committee has represented more than 250 asylum applicants from 33 countries. Based on this experience the Committee has testified in Congress and prepared papers on various asylum and refugee policy matters.
In the last year, the Committee has devoted significant time and attention to the problems of Haitian asylum applicants who have been detained in the U.S. Specifically, we have undertaken an extensive effort to recruit, train and supervise volunteer lawyers to represent Haitians who were originally detained in Miami and then transferred to an INS detention facility in Brooklyn and
jV The preparation of this statement was assisted by Russell Schwartz, Regine Dely and Marie-Rose Jean, interns with the Lawyers Committee.
a Federal Correctional facility in Otisville, New York. In addition, the Committee has served as a clearinghouse for information and coordinator for various church, community and legal organizations throughout the country who have been working on behalf of the Haitians.
Our testimony today examines the Reagan Administration's detention policy as it has affected Haitian nationals who arrive in the United States. We have also been asked to comment on the Administration's request for funds to construct two new Bureau of Prisons facilities to house aliens awaiting INS adjudication of their cases.
Based on our experience with and observation of the Haitians, we strongly oppose the Administration's unprecedented policy of prolonged mass detention of asylum applicants. We also object to the discriminatory manner in which the Haitians have been treated.
THE IMPACT OF DETENTION UPON THE HAITIANS
The detention policy has been costly, not only from a fiscal perspective, but also in terms of human suffering. After more than a year in detention, many of the Haitians now exhibit various symtoms of physical and psychological distress. Last month, Dr. William G. Prescott, Director of the Cuban-Haitian Unit at the National Institute
of Mental Health, reported that there have been 29 suicide attempts or "suicide gestures" among the Haitians in the last ten weeks. Some of the Haitians have tried to hang themselves using bedsheets or their pants, others have attempted to swallow broken glass or to slash their wrists.
In describing the current conditions of the Haitians, Dr. Prescott noted that government doctors were observing:
...dissociative phenomenon of depersonalization in which the "mind" separates from the body and sees the body as something almost inanimate and passively acted upon by events.1/
Another report, prepared by Joseph Zogby, a psychiatric social worker for the Department of Health and Human Services, concluded that many of the detained Haitians
are "becoming hopeless and depressed over their detention."
The conditions of imprisonment, furthermore, have coerced Haitians into giving up their right to apply for political asylum in the U.S. Since the detention program began in the summer of 1981, at least several hundred of the 3,000 detained Haitians who have been detained have gone back to Haiti. Our government characterizes these returns as cases of "voluntary departure." It is plain, however, to anyone involved in these cases, that these departures are anything but voluntary. One man who returned "voluntarily" earlier this month told a federal judge:
After 11 months in detention in the United States, I wish to return to Haiti. My decision is based on the fact that, over the past month, I have become very depressed and ill and have not been able to receive medical treatment.
I wish to state that this decision to leave in no way indicates a change from my previous position of fearing political persecution upon return. I fully expect that I may be mistreated or even killed upon my return to Haiti. However, I would rather die in my own country than remain any longer in prison in the United States without any indication that I will ever be released. (Affidavit of Haitian who "voluntarily" departed.)
While we do not know what has happened or will happen to all of these people, we know that some have already been subject to mistreatment at the hands of the Haitians security forces. One Haitian woman, who is still in detention, first tried to escape from Haiti in the spring of 1981. The sailboat on which she and seventy others were traveling was badly damaged and forced to return to Haiti. When they arrived on the shore they were met by members of the Haitian security force, the Tonton Macoutes. Tied with cords, they were eventually taken to a town called Jean-Rabel, from where they were taken to a notorious military prison in Port-au-Prince, the Cassernes Dessalines.
There, ten of the men from our boat were tied up in front of us. Their pants were removed and they were put on their stomachs. Then four guards began to beat them with sticks as big as my arm. They were beaten so much that their behinds were bruised and bloody, and horrible to see.
When we saw that, the women started crying. The authorities told us that if we did not stop crying they would beat and kill us. They told us that we were "kamokin" (opponents of the regime) who were trying to leave the country in order to go out to talk against the government. (Affidavit of Haitian now in detention;)
Another Haitian who is currently detained in the U.S., was arrested in late 1980 as he returned to Haiti from the Dominican Republic. While he was in detention at the National Penitentiary he witnessed the arrival in late summer or early fall of 1981, of 15 prisoners who had been returned from Ft. Allen, Puerto Rico. All had been given assurances by the Haitian Consul in Puerto Rico that they would be treated well on their return. Instead, they were immediately arrested, taken to the Cassernes Dessalines, and later transferred to the National Penitentiary where:
... they were brought before Col. Albert Pierre who ordered that several of them be beaten. Two of these men appeared to have been hurt very badly. (Affidavit of Haitian detainee.)
In addition, we are aware of cases of "voluntary" returnees from Ray Brook, New York; Lexington, Kentucky and Miami, Florida, who continue to receive recent mail from their immediate families, more than six months after they have left for Haiti. Additional efforts to gather information about the fate of the returnees have been hampered by the refusal of the Justice Department to make available to us the names and addresses of those who have thus far returned to Haiti, under the procedure of "voluntary departure."
CHRONOLOGY OF THE DETENTION POLICY
The current policy of detention and other discriminatory measures against the Haitians can best be understood against a background of prior governmental practices, including the 1978 "Haitian Program" which a federal court in Florida found to be "offensive to every notion of constitutional due process and equal protection." Haitian Refugee Center v. Civiletti, 503 F. Supp. 442, 532 (S.D. Fla. 1980), aff'd. sub. nom., Haitian Refugee Center v. Smith, F.2d (5th Cir., Unit B, 1982).
A. Prior Policy of Release
Prior to the spring of 1981 INS policy was routinely and regularly to release virtually all aliens seeking admission to the United States, including Haitian
nationals. In 1958 the United States Supreme Court in Ma v. Barber, 357 U.S. 185, 190 (1958) explained:
The parole of aliens seeking admission is simply a device through which needless confinement is avoided while administrative proceedings are conducted.... Physical detention of aliens is now the exception, not the rule, and is generally employed only as to security risk or those likely to abscond.... Certainly this policy reflects the humane qualities of an enlightened civilization (citation omitted). 357 U.S. at 190.
The liberal release policy is confirmed in government docu-
ments, including INS instructions to its field officers, as well as expert testimony in Louis et al. v. Nelson, Commissioner, Immigration and Naturalization Service, No. 81-1260 Civ. EPS (S.D. Fla., 1982), a national class action in which a federal court recently ruled that the current detention policy is illegal because it was initiated without formal rule-making procedures in violation of the Administrative Procedure Act. Indeed, in the decision, District Judge Eugene P. Spellman found that:
The new release criteria radically departs from the existing practice of regularly releasing Haitian aliens. It makes detention the rule, not the exception; and prescribes very narrow circumstances where parole will be allowed....
The Court cannot think of any administrative action that would have a greater impact on a regulated group of people than a change in policy which results in their indefinite incarceration where, under the previous policy, they would have been free. Louis et al. v. Nelson, Commissioner, Immigration and Naturalization Service, 81-1260-CIV-EPS (S.D. Fla., June 1982J at 32.
B. Summer 1981 the Change in Policy
The detention of the Haitians was announced in July of 1981 by Attorney General Smith as part of a broader policy that also included the interdiction and forced return of Haitian boats on the high seas by the United States Coast Guard. In explaining the new policy, the Attorney General stated that "detention of aliens seeking asylum was necessary to discourage people like the Haitians from setting sail in the first place."
In response to the growing numbers of detainees, INS officials established temporary court rooms within the Krome facility in Florida, and sought to expedite the return of Haitians to Haiti. Mass hearings of Haitians --including those who had applied for asylum -- were scheduled, and Haitians were denied access to counsel. These practices were subsequently declared illegal and temporarily enjoined by a federal court in late 1981.
C. Transfer of Detainees to Remote Camps
In an apparent response to political pressures in Florida (the INS had promised the Governor of Florida that no more than 1,000 persons would be held at the Krome Avenue Center), as well as a lawsuit filed by the State of Florida against the federal government, the INS transferred hundreds of Haitians from Miami to various locations throughout the U.S. in July and August of 1981.
Several of the facilities to which the Haitians were transferred are Bureau of Prisons facilities that are located in remote areas, such as Ray Brook and Otisville in New York; Alderson, West Virginia; and Port Isabelle, Big Spring and La Tuna, Texas.
The transfers introduced a series of new problems for the Haitians. First, none of the Haitians have ever been accused, much less convicted, of any crimes. The decision to place them in federal prisons exacerbated the existing problems. Second, by placing them in a number of facilities in remote areas, Haitians were effectively denied access to family members and friends. Many of the facilities lack adequate counseling and social service programming, a problem that is magnified by language difficulties. For example, there are simply no Creole-speaking people in La Tuna, Texas or Ray Brook and Otisville, New York.
A third problem relates to the preparation of claims for political asylum in the United States. Local legal services are often unavailable in these areas, particularly counsel with a background in immigration law. It is virtually impossible to find any lawyers to travel with interpreters to these facilities. As a result, most of the Haitians have remained in detention for one year without ever speaking with a lawyer. The situation at Camp Ray Brook in New York is illustrative of the current difficulties.
On July 19, 1981, 40 Haitians were sent to Ray Brook and subsequent transfers have raised the number of Haitian detainees there to approximately 150. Upon transfer to Ray Brook, all Haitians requested counsel. While they were given lists of lawyers or organizations that provide free legal services in the area, only three detainees have thus far been able to arrange for representation.
At least eight of the Haitian detainees have formally applied for asylum, but the complex forms were prepared by an INS officer who speaks only "some" Creole. Despite comprehensive efforts, including inquiries of the faculty at the State University of New York at Plattsburg, no potential witnesses who would be able to testify about the current political and social conditions in Haiti or the
likelihood of persecution upon return to Haiti have been
located. The only potential interpreter located for the
detainees has already been retained as an interpreter for 7/
D. Refusal to Grant Parole to Haitian Asylum Applicants_
Even for the Haitians who have secured legal
counsel, applied for political asylum, obtained offers of
sponsorship by responsible individuals and private
organizations, and formally requested release on "parole",
detention is the rule. Release requests have been routinely
and almost uniformly rejected. The only exceptions to this
practice have been the occasional release of pregnant women
and those requiring serious medical attention.
Representatives of the Lawyers Committee have either visited or been in contact with local representatives at virtually all of the facilities where the Haitians are now being held. The following section summarizes current conditions at a number of the facilities.
A. Federal Correctional Institution, Ray Brook, New York_
There are presently 157 men being detained at the FCI in Ray Brook, New York. All the men are located in a special section (Unit E). The detainees are segregated from the rest of the prison facility.
Because of the remote location of FCI, visits by family and friends have been practically non-existent. To date, only one detainee has had family members visit him. Another detainee had relatives come to visit him from Montreal, Canada. Since they did not all have proper identification and prior approval of the prison officials, his relatives were denied access.
Very few of the detainees have attorneys. Those who do, are represented by counsel in New York City and Miami, an arrangement with obvious limitations.
B. Federal Correctional Institution, Alderson, West Virginia_
There are now 58 women detainees at the FCI in
Alderson, West Virginia. This is a maximum-security facility.
The women are in a cottage (Old Orientation Cottage). This
cottage is segregated from the rest of the prison with an
eight to ten foot fence. The women are allowed to leave their quarters for meals and work details.
Recreational programs were provided when the detainees were first incarcerated; however, such activity has been discontinued.
Though a number of detainees are now ill, medical care is less than adequate. In a telephone conversation earlier this week, one detainee told us that when she was visited by a doctor at the facility he simply told her to drink more water. Previously, she has been given medication which made her more ill. Although she complained to the doctor about her reaction, he continued to give her the same medication, until she stopped taking it.
Because of the remote location of the facility, there have been no visits by family members of the detainees. Although groups such as the Women's Task Force in Washington, B.C. and various clergy members have been allowed to visit Alderson, such visits have been restricted by the prison officials from twice a month to once a month. Further, no more than two persons from these groups are allowed to visit the facility at a time.
A Haitian professor at nearby West Virginia Wesleyan College, has been denied access to the facility to talk to the detainees. Last week, a Catholic sister who has been visiting the women with other Haitians was informed that in order to visit, she must give prison officials two weeks notice, along with the names of all of the Haitians who will be accompanying her.
There is one particularly disturbing report from Alderson involving the mistreatment of a Haitian detainee. In April, she was physically dragged out of her bed, shoved up against a wall by two prison guards, and subsequently dragged out of the sleeping area into solitary confinement where she was held for three days. There is particular concern about her condition, because she had attempted suicide in January.
C. Minimum Security Prison, Lexington, Kentucky_
There are currently 197 people being held at Lexington, Kentucky, in a separate building away from the general prison population. Reports from the facility indicate that there are limited recreational facilities, and a restrictive visitation policy under which voluntary organizations, such as the Haitian Refugee Task Force, are being denied entry.
Several of the detainees report that the guards have threatened to place them in with the general prison population. At least one detainee was placed with the general criminal population in early May for five days for no apparent reason.
One detainee died at Lexington following an injury during a soccer game. He was hospitalized, x-rayed, and then sent back to the facility in great pain. He subsequently requested a doctor but apparently none was available. We have been unable to determine whether he died before or after the doctor finally did arrive.
The problems at Alderson, Lexington and New Orleans are representative of those encountered in the various Bureau of Prison's facilities where the Haitians are being held. While the conditions at these facilities are considerably less onerous than those at the INS facilities, we do not believe that the Bureau of Prisons should be involved in the incarceration of non-criminal asylum applicants such as the Haitians.
On June 18, 1982, United States District Judge Eugene P. Spellman ruled in a national class action that the governmental policy implemented in the summer of 19 81 to detain all undocumented Haitians who arrived in the United States was not adopted in accordance with the requirements of the Administrative Procedure Act. Louis, et al. v. Nelson, Commissioner, Immigration and Naturalization Service, et al., Case No. 81-1260-CIV-EPS (S.D. Fla. 1982). In particular, the failure to give interested persons notice and an opportunity to comment on the new detention policy, and thereafter to promulgate that policy prior to its implementation, was held to render the new detention rule "null and void." The court explained that it "will not sanction enforcement of...(the) new detention policy." On June 29, 19 82, Judge Spellman ordered the release of the about 1900 Haitians currently in detention. Release was ordered to sponsors for the period of time necessary for the determination of the asylum claim, including any necessary administrative appeal or court review, as well as under terms and conditions designed to assure that the Haitians would appear at subsequent administrative hearings.
Th e government appealed Judge Spellman's decision and sought a stay of the release order. On July 13, 1982, the Eleventh Circuit Court of Appeals denied the stay application and the release order remains valid and outstanding. The Lawyers Committee has agreed to play a lead role in assisting in the recruitment and training of lawyers to represent released Haitians in accordance with the Spellman decision. A copy of the Committee's release plan is submitted herewith.
We oppose the construction of new detention
facilities for asylum applicants and other aliens. The
Haitian Program has served only to inflame racial tensions
in our society, while causing unnecessary suffering to
the 2,000 victims of its discriminatory application. At the same time, the Program has been extraordinarily expensive
and has caused unnecessary delay in the adjudication of
asylum claims. Denied access to relatives, friends, evidence
and attorneys, most of the Haitians have been unable to even
begin the preparation of their asylum applications.
Mr. Chairman, we submit that this is not an experience that our country ought to spend additional money to institutionalize. On May 14, 1982, the Haitian Embassy in Washington issued a "Memorandum on the Refugee Issue." The Lawyers Committee has been, and remains, sharply critical of the government of Haiti for its internal human rights practices. Nonetheless, the language of the Memorandum is so extraordinary that it deserves special emphasis. In its statement, the Haitian Embassy at page 3 concludes:
The Haitian refugees are forced by the U.S. Administration to remain in concentration camps awaiting a lengthy hearing process. There is a matter of principle involved. The government of Haiti, along with civil rights and religious groups in this country, find unacceptable that desperate people be forced by the U.S. government to live in confinement while they have committed no crime. Moreover, it is hard to believe that this is happening in the United States of America and to people whose fathers have had to die for the freedom and independence of this land.
1/ New York Times, June 22, 1982, sec. A at 15, cols. 3 and 4.
3/ INS Field Inspectors Handbook, ch. 19, sees. 1 2.
4/ New York Times, October 23, 1981, sec. 2 at 6, col. 2.
5/ Louis,et al. v. Nelson, Com., INS, et al., No. 81-1260 Civ.-ACH (S.D. Fla. 1981).
6/ Graham y. Smith, No. 81-1497 Civ.-JE (S.D. Fla. 1981), which challenged INS policy on environmental grounds and claimed that overcrowding at Krome was creating unsanitary conditions and a public health hazard.
7/ Affidavit of Stanley Mailman, Esquire, in support of
motion to change the venue of the exclusion proceedings of the Haitians from Ray Brook, sworn to on August 14, 1981.
Louis, et al. v. Nelson, Commissioner, Immigration and
Naturalization Service, et al., Case No. 8T-126 0-CIV-EPS (S.D.- Fla. iy2) at 41,42.