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Yale Law School Lillian Goldman Library
CASE NO. 3228
on behalf of
The National Council of Churches
The International Human Rights Law Group
Hogan & Hartson
The Lawyers Committee for International Human Rights
June 17, 1982
TABLE OF CONTENTS
I. INTRODUCTION....................... ............... 1
II. HISTORICAL BACKGROUND: TREATMENT OF HAITIAN
ASYLUM CASES SINCE 1973 ............................ 5
III. DETENTION........................................... 7
A. Prior Policy of Release........................... 7
B. Summer 1981 Change in Policy .................... 8
C. Transfer of Detainees to Remote Camps ........... 10
D. Refusal to Grant Parole to Haitian Asylum
Applicants ...................................... 12
E. Violation of International Law .................. 13
IV. CONDITIONS OF DETENTION ............................. 16
A. Physical Conditions............................ 16
B. Psychological Impacts of Detention.............. 19
C. Violations of International Law................. 20
V. INTERDICTION..................... ................... 20
VI. EXHAUSTION OF DOMESTIC REMEDIES/STATUS OF
DOMESTIC LITIGATION................................ 22
A.. Persons Outside the Jurisdiction of U.S.
Courts...... . ........ .. .......... 23
B. Persons Within the Jurisdiction of U.S.
SCourts.. ........ . ........................ 23
C. Position of the U.S. Government................. 27
D. The Competence of the Commission to Investigate
"General" Cases ................................. 28
E. Conclusion...................................... 30
VII. SUGGESTED FINDINGS OF FACT AND CONCLUSION OF LAW.... 31
VIII. REQUEST FOR RELIEF................................... 37
LIST OF ANNEXES .....................................
Since the inception of its "Haitian Program" in 1978, the
United States Government has adopted various special programs to
stop the entry of Haitians seeking political asylum in the U.S.
These policies, designed not only to discourage Haitian
immigration but to expel Haitian arrivals from U.S. territory
whether or not they are refugees, have been directed primarily
against Haitian nationals. This discrimination against Haitians
clearly violates international obligations of the U.S., including
prohibitions against discrimination on the basis of race or
national origin. Such treatment stands in sharp contrast to the
treatment received by groups which meet with the political favor
of the U.S., such as Cubans, Eastern Europeans, and Southeast
On July 18, 1981, the U.S. Attorney General announced a new
policy which has resulted in the indefinite detention of Haitians
in the U.S., and the interdiction and forced return of Haitians
on the high seas. In the last eleven months more than 3,000
Haitians have been detained and denied fundamental human rights
in the U.S., including approximately 1,000 persons who have now
"voluntarily" returned to Haiti due to the coercive influence of
continued detention; approximately 160 others have been
interdicted and forced to return to Haiti.
Some of those returned to Haiti have not been heard from by
close relatives or friends. Various efforts by U.S. Government
- 2 -
officials and representatives of nongovernmental organizations
also have failed to discover their whereabouts. Several
returnees from the Federal Correctional Institution in Lexington,
Kentucky, and the Miami Immigration Service Prison and two of
three Haitians who "voluntarily" returned to Haiti from Raybrook,
New York, in December 1981 continue to receive mail at these
prisons from their closest relatives, even though all of these
persons left for Haiti more than five months ago.
In March 1982 a representative of the Lawyers Committee for
International Human Rights unsuccessfully attempted to interview
five persons living in Port-au-Prince who had been "interdicted"
by the U.S. Coast Guard and forced to return to Haiti. None
could be found at the addresses given to the Coast Guard; none of
the addresses had ever been visited by Haitian or U.S.
authorities in order to verify their safety; and people at four
of the five residences were extremely nervous in talking about
the returned individuals.1
Haitians now in the U.S. have reported imprisonments and
beatings of returnees, and Haitians repeatedly claim serious
1Statement of Michael Hooper, Lawyers Committee for International
- 3 -
fears for their safety if they were to return to Haiti.1
This Supplemental Petition to the Inter-American Commission
on Human Rights describes some of the recent actions taken by the
U.S. government against Haitians. The Commission was first
presented with information on the treatment of Haitians in the
U.S. on 22 June 1979, in a petition prepared by the International
Human Rights Law Group ("Law Group"), on behalf of the National
Council of Churches.2
Following an oral hearing of the Petitioners, the Commission
sent a telegram to then Secretary of State Cyrus Vance on
7 April 1980, requesting that the United States refrain from
1See affidavits of an unnamed Haitian, undated; an unnamed
Haitian presently detained in Krome, 24 May 1982; and an unnamed
Haitian .who voluntarily returned to Haiti, 28 May 1982 (Annex A).
On present conditions in Haiti,-see Lawyers Committee, Violations
of Human Rights in Haiti (November 1980) (Annex B); Amnesty
International, Haiti: Human Rights Violations: October 1980 -
October 1981 (Annex C); and Hooper, Report on the August 1981
Trial and November 1981 Appeal of 26 Political Defendants in
Haiti (Annex D).
2The United States response to the Petition on 1 Feb. 1980
argued that the petitioners had failed to exhaust domestic
remedies and that the Commission therefore lacked jurisdiction to
consider the case. In support of this contention, the United
States pointed to the ongoing litigation in Haitian Refugee
Center v. Civiletti.
In response, the Law Group emphasized that general principles
of international law do not require that domestic remedies be
exhausted where such remedies would be inadequate or ineffective.
It also noted that the complaint raised a number of international
human rights law issues which were appropriate for the Commission
to consider. These issues are addressed below at pp. 22-31.
- 4 -
deporting Haitians who were members of the class covered by
Haitian Refugee Center v. Civiletti in the event of a decision
adverse to the plaintiffs in that case, so that the Commission
could have time to review the Petition.
On 18 April 1980 the United States responded to the
Commission's telegram by stating that, while it would make every
effort to cooperate fully with the Commission, it would not
commit itself in advance with regard to any decisions that might
be reached in Haitian Refugee Center v. Civiletti.
On 5 August 1981 the Law Group sent a telegram to Secretary
of State Alexander Haig asking the U.S. to refrain from taking
any action which would cause irreparable injury to Haitians in
this country pending final decisions either in the domestic
proceedings or the proceedings before the Commission. No further
action has been taken with respect to the Petition since that time.
The present submission ("Supplemental Petition") apprises
the Commission of significant developments since June 1979 with
regard to U.S. policy toward the Haitians. It considers (1) the
historical background of the situation; (2) the new detention
policy which was announced in July 1981; (3) conditions of
detention in INS detention centers; (4) the policy of
interdiction of Haitian vessels on the high seas; and (5) the
issue of exhaustion of domestic remedies. In conclusion,
suggested findings of fact and conclusions of law are set forth
for the Commission's consideration.
This submission has been prepared by the International Human
Rights Law Group; Hogan and Hartson, a private U.S. law firm in
Washington, D.C.; and the Lawyers Committee for International
Human Rights, a nongovernmental organization based in New York.
II. HISTORICAL BACKGROUND: TREATMENT OF HAITIAN ASYLUM CASES
The present U.S. government policy regarding Haitian
refugees is not the first time in recent history that Haitians
have been singled out for special treatment. In the 1970s, the
Immigration and Naturalization Service ("INS") instituted a
"Haitian Program" as a result of the influx into southern Florida
of several thousand Haitian asylum applicants. This accelerated
processing program was subsequently found to be illegal in many
respects, and it was obviously unfair to Haitian asylum
As Monsignor Brian Walsh, an expert on refugee matters,
.from 1972 until May of 1980 the consistent
practice of the Immigration Service was to
grant refugee status to any Cuban who came
into South Florida, no matter how he arrived
and at the same time to deny refugee
status to the Haitians who arrived on the
same small boats at the same time.1
1This and following quotes are excerpted from Walsh's testimony
in Louis v. Nelson, No. 81-1260-Civ.-EPS (S.D. Fla. 1981),
- 6 -
He noted the same discriminatory conduct with respect to other
matters, including release, work authorization, and length of
detention. While Cubans and Nicaraguans were released and given
work authorizations, Haitians were denied both and were often
detained for long periods of time. In addition, while the
question of access of counsel for non-Haitians rarely was an
issue, Haitians in detention "seemed to have consistent problems
in having easy access to legal counsel." Walsh concluded that
"it was evident to us during this whole period of time that the
Immigration and Naturalization Service was operating on two
Similar discrimination was found by a federal District Court
in a challenge to the government's Haitian Program as it existed
prior to 10 May 1979.
Those Haitians who came to the United States
seeking freedom and justice did not find it.
Instead, they were confronted with an Immigra-
tion and Naturalization Service determined to
deport them. The decision was made among high
INS officials to expel Haitians, despite what-
ever claims to asylum individual Haitians might
have. A Program was set out to accomplish this
goal. The Program resulted in wholesale
violations of due process, and only Haitians
This Program, in its planning and execution,
is offensive to every notion of constitutional
due process and equal protection. The Haitians
whose claims for asylum were rejected during the
Program, shall not be deported until they are
given a fair chance to present their claims for
IHaitian Refugee Center v. Civiletti, 503 F.2d Supp. 443 (1980).
The current U.S. policy of detention and other discriminatory
treatment of Haitians can be understood only against this
background of governmental practices which for several years have
been biased against Haitians seeking asylum. Today's policies
are, in effect, a variation of the Haitian Program judged illegal
in the late 1970s.
A. Prior Policy of Release
INS policy prior to the spring of 1981 was routinely and
regularly to release virtually all aliens seeking admission to the
U.S., including Haitian nationals. As the United States Supreme
Court explained in 1958:
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 civiliza-
tion (citation omitted].1
Government documents, including INS instructions to its
field officers, confirm this release policy,2 as does a recent
1Ma v. Barber, 357 U.S. 185, 190 (1958).
2INS Field Inspectors Handbook, ch. 19, secs. 1 & 2. (Annex E).
challenge to the current detention program. A former INS general
counsel stated that aliens have been released on parole "in
tremendous number," including a "large majority" of aliens whose
admissibility is questioned. A noted immigration attorney stated
that this practice included aliens making asylum claims, who are
commonly paroled during the time in which their claims are
processed. Both agreed that the parole practice did not
distinguish between persons who were documented and those who
were undocumented or whose documentation was challenged.1
B. Summer 1981 Change in Policy
On 31 July 1981, the U.S. Attorney General announced a new
immigration-entrant program which included detention of all
undocumented Haitian arrivals in the U.S. Government memoranda
make clear not only the abrupt change in policy from previous
practices of release on parole, but they also underscore that
detention was ordered not for any legitimate purpose of ensuring
public safety or the orderly processing of asylum claims.
the Attorney General determined that a
policy of detention and speedy return of aliens
in exclusion status was required to (1) achieve
deterrence to counteract continuing illegal alien
1Louis v. Nelson, testimony of Sam Bernsen (Annex F) and James
Orlow, Tr. at 123-24, 204, 207, 213, 214, 217, 606-11, 760-64,
flows; and (2) provide relief to Florida where
the impact of the Haitian illegal migration has
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."2 This new detention policy, actually implemented in
late May 1981, totally ignores U.S. obligations to refugees
seeking asylum, both under the American Declaration and the
Refugee Convention and Protocol. It has resulted in the
detention of thousands of Haitians at INS detention centers
around the country; 1,900 to 2,000 remain detained today.
While in recent months the INS has begun detaining nationals
of countries other than Haiti in an apparent post hoc attempt to
demonstrate that the no-release detention program is not being
applied.discriminatorily against Haitians, a spokesman for the
U.S. Department of Justice asserted less than a month after
announcement of the detention program that the policy was a
"discretionary" one then applied only to Haitians.3
lTestimony by Acting INS Commissioner Doris Meissner before
the Senate Immigration and Refugee Sub-Committee, 31 July 1981.
Emphasis added] (Annex G); see also U.S. Government memoranda,
one dated 14 September 1981 and the other undated (Annex H).
2New York Times, 23 Oct. 1981, sec. 2 at 6, col. 2.
3New York Times, 28 Aug. 1981, sec. 2 at 1, col. 1. (Annex I).
- 10 -
In response to the growing numbers of detainees, INS
officials established temporary court rooms within the Krome
Avenue detention center in Miami, 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 effective access to counsel. These
practices were subsequently declared illegal and temporarily
enjoined in late 1981.1
C. Transfer of Detainees to Remote Camps
As an apparent result of political pressures (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,2 the INS transferred hundreds of Haitians from Miami
to various locations throughout the U.S. in July and August 1981.
Most of the facilities to which the Haitians were transferred
are in remote and isolated areas, such as Otisville and Raybrook,
New York; Morgantown and Alderson, West Virginia; Lexington,
Kentucky; Big Spring, Port Island, and La Tuna, Texas; and Fort
Allen, Puerto Rico. However, potential witnesses for Haitian
asylum claims who could testify as to conditions in Haiti and
1Louis v. Nelson, No. 81-1260-Civ.-ACH (S.D. Fla. 1981).
2Graham v. 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.
the likelihood of persecution generally are located in Haitian
communities in large urban areas, including Miami and New York
City.1 In addition, legal services in these rural areas are
often unavailable, and Creole interpreters and voluntary agency
representatives are scarce or non-existent.
A representative example is the transfer of Haitians from
Miami to Camp Raybrook, a federal prison facility in Plattsburg,
New York. On 19 July 1981, 40 Haitians were sent to Raybrook and
subsequent transfers have raised the number of Haitian detainees
there to approximately 150.2 Upon transfer to Raybrook, all
Haitians requested counsel. While they were given lists of
lawyers or organizations that provide free legal services in the
area, only two detainees have thus far been able to arrange for
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
ISee, e.g., Haitian Refugee Center v. Civiletti, 503 F.Supp.
442 (S.D. Fla. 1980).
2Telephone conversation between the Lawyers Committee for
International Human Rights and Paul Kelly, Associate Pastor of
St. Agnes Church, Lake Placid, New York, and Catholic Contract
Chaplain at Raybrook, on 14 June 1982.
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 the INS.1
D. Refusal to Grant Parole to Haitian Asylum Applicants
Most Haitians who have secured counsel have applied for
political asylum in the U.S. Based on their formal asylum
applications and offers of sponsorship by responsible individuals
and private organizations, the asylum applicants have also
requested release on "parole" from the appropriate INS District
Director pending adjudication of their claims. These parole
requests, however, have been invariably denied.2
Illustrative of the no-release detention policy applied
exclusively to Haitians is the experience of 86 Haitians
transferred from Miami to the Service Processing Center ("SPC")
in Brooklyn, New York, on 18 July 1981.
Nearly every non-Haitian alien who arrived in New York in
1981 and was subject to exclusion hearings was released on parole
under a wide variety of conditions (e.g., some on bond and some
without, some with low bonds and some with higher bonds), thus
1Affidavit of Stanley Mailman, 14 Aug. 1981. (Annex J).
2The only exceptions to this practice have been the occasional
release of pregnant Haitian women or those requiring serious
reflecting the individual differences which should properly be
considered in the parole decision. Haitians, on the other hand,
were uniformly denied parole through actions "motivated by a
desire to discriminate against Haitian aliens."I This blanket
denial occurred despite the fact that the District Director had
no reason to believe that Haitians posed any greater risk of
absconding thdn any other group of aliens or that they presented
any particular security risk.2
While other aliens received responses to their parole
requests within days, the Haitians waited for months to receive
form letter denials, in many cases only after lawsuits had been
filed. Only Haitians were told that State Department action on
their asylum applications was a necessary pre-condition to their
E; Violation of International Law
The abrupt shift in U.S. treatment of undocumented Haitian
entrants in the summer of 1981, the discriminatory refusal to
grant parole to Haitian asylum applicants, and the continued
indefinite detention of all Haitian asylum applicants are in
direct contravention of provisions of the American Declaration
and the Refugee Convention, which establish certain minimum
standards of fairness and decency with respect to the treatment
of persons seeking asylum.
1Vigile v. Sava, 81 Civ. 7372 (RLC) (S.D.N.Y. 5 Mar. 1982),
slip op. at 27. (Annex K).
2Id. at 11, 26.
- 14 -
Ironically, the most eloquent articulation of why the
Haitians' continued detention violates the Refugee Convention and
Protocol was provided by the government itself in testimony
before Congress while the Protocol was being debated.
The Protocol -- like its predecessor, the
1951 Convention Relating to the Status of
Refugees -- is a determined effort by the
United Nations to secure world-wide agree-
ment that refugees everywhere must be given
the protection and certain basic rights
which are essential if they are to be
given the chance to live as self-supporting
and self-respecting human beings. We are
all too familiar with the tragic human and
political consequences which derive from
situations in which refugees are denied
these fundamental human rights, and instead
are kept in camps indefinitely, and are thus
committed to dependency and denial of mean-
As noted herein, the new detention policy is not based on a
rational or justifiable governmental need but rather is a
continuation of a multifaceted effort by the U.S. government to
deter and prevent persons who are black and Haitian from seeking
and obtaining asylum in the United States. As such, it violates
Article 3 of the Refugee Covention and Article 2 of the American
Declaration, both of which require the non-discriminatory
application of the rights and protections established in their
The detention of the Haitians is designed as punishment for
those imprisoned and as a deterrent to future arrivals. The
1Appendix to Sen. Exec. K. 90th Cong., 2d Sess., at p. 5 (1968).
Haitians are confined not because they constitute any threat to
the community or because they have been determined to be more
likely to escape than other aliens or for any other bona fide
reason, but rather as a punishment to discourage them from
asserting or pursuing asylum claims and to deter their countrymen
from seeking refuge in the United States. This is a clear
violation of Article 31, Section 1, of the Refugee Convention
which prohibits the imposition of "penalties" on aliens "on
account of their illegal entry."
The detention of the Haitians without any consideration of
individual circumstances, including the absence of any prior
criminal record or the availability of sponsors or family members
on the outside who will provide assurances that they will attend
future proceedings, violates Article 31, Section 2, of the
Refugee Convention, which prohibits the imposition of
restrictions on the movement of refugees "other than those which
are necessary." The mass detention of Haitians is plainly not
"necessary" for any proper reason.
The prolonged detention of Haitians without any
consideration of individual circumstances also contravenes
Article 25 of the American Declaration which guarantees the right
of every individual "who has been deprived of his liberty" to
"have the legality of his detention ascertained without delay
. or, otherwise, to be released." The circumstances of their
detention -in inadequate facilities violates their right under
Article 25 of the American Declaration to "humane treatment"
during the time they are in custody.
Finally, the substantive violations of due process which
have resulted in the almost unanimous denial of Haitian asylum
claims, coupled with procedural due process violations1
(effective denial of the right to counsel, bias of
INS judges, refusal to permit the introduction of relevant
evidence), violate the elementary right of every Haitian "to seek
and receive asylum in foreign territory" pursuant to Article 27
of the American Declaration.
IV. CONDITIONS OF DETENTION
A. Physical Conditions
The punitive detention of the Haitians is made particularly
egregious by the nature of the facilities in which they are being
held. Approximately 2,000 Haitians are presently interned at
different INS centers or federal prisons from New York to Puerto
Rico. Many of them have been held for almost a year with
virtually no contact with the outside world. Many of the
facilities were designed as temporary holding facilities, not as
places of long-term confinement. They are typically overcrowded
and underequipped and often resemble nothing short of
1See original Petition for an outline of due process violations
in the "Haitian Program" of the late 1970s. For recent examples
of simultaneous scheduling of asylum hearings and other due
process abuses, see Affidavit of Steven Forester and attachments
(including depositions from INS judges), 19 May 1982 (Annex L),
and the testimony of a former public information officer for the
Cuban-Haitian Task Force (Annex M).
- 17 -
The Krome Avenue Center in Miami, Florida, is a good
example. It is a former Nike missile base, opened at the height
of the Cuban boatlift to detain Cuban boat people for up to 72
hours pending a decision on their petitions for admission. The
Krome facility now houses 500-600 Haitians, a much larger number
than the facility was ever designed to hold. A recent
independent press account offered the following description of
It is a bleak place, carved out of coral rock
and lying on the edge of the Everglades. Three
rows of chain-link fence, each topped with razor-
sharp concertina wire, surround the compound.
Armed guards patrol the perimeter. The buildings
inside recall the camp's military mission --
bunkers, hangars and barracks converted now to
dorms and a cafeteria. Sanitary facilities are
primitive: a row of pungent portable toilets
lines one of the fences, while indoors the refugees
struggle with low water pressure in the camp's few
showers and bathrooms. In an outburse of candor
last fall, Krome's camp commandant, Cecilio Ruiz
of the U.S. Immigration and Naturalization Service
(INS) told a newspaper that he had even "seen
people showering in the urinals."
The pervasive fact of life at Krome, as at the
other camps, is a crushing boredom. Aside from
eating three times a day, there is little to do
but pace the main yard or doze off under the sun.
A promised soccer field has yet to materia-
lize and, even if there were such facilities,
the dispirited inmates might ignore them, as they
have elsewhere. Not even romance has a chance at
Krome: men and women, married or not, are segregated
by a wire fence, with any children sent either to
relatives or to a school-like children's center in
New York State.1
1"Refugees or Prisoners," Newsweek, 1 Feb. 1982 at 25.
- 18 -
Conditions at other detention centers may be worse. An
affidavit by a New York Civil Liberties Union attorney concludes
that the Service Processing Center in Brooklyn, New York
is indisputably a jail, although the
overwhelming majority of detainees have never
been accused or convicted of any crime. There
are bars throughout the facility, including on
all the windows. The activities of the detainees
are constantly monitored by a closed circuit
camera. The detainees are strip-searched when
they arrive at the facility, after any contact
visit and before they leave the facility.
Their rooms and possessions are searched
periodically. Any infraction of the rules
can result in confinement in maximum security
cells which are separated from the rest of the
facility and have no direct access to light.
Upon entering the detention center for the
first time, the overwhelming impression is that
it is literally falling apart. .
The squalor of the surroundings is compounded
by the lack of anything to do. Most importantly,
there is no provision for any outdoor exercise.
As a result, detainees never get fresh air. The
physical consequences of this deprivation are
severe enough. But the physhological consequences
are even worse for those, like these petitioners,
who spent more of their lives in the sun before
coming to this country.1
Not surprisingly, tensions are mounting both within and
outside the detention camps. In December 1981, detainees at the
Krome facility staged a hunger strike because of prison
conditions and supporters from the local Haitian community, known
as "Little Haiti," held a demonstration that was broken up by
1Affidavit of Steven R. Shapiro, 18 Nov. 1981.
There have been frequent complaints of inadequate medical care
and facilities. A month after the Krome hunger strike, a detainee
was allegedly attacked by Krome guards, and the broken wrist that
resulted from that attack was not treated for approximately a month.
Conflicting medical treatment led to the premature removal by a
"government" doctor of a cast placed on the wrist by another doctor.1
Of particular concern is the extremely high incidence of
enlarged breasts gynecomastiaa) and swollen testicles in Haitian
males at several INS detention centers, including Krome Avenue; Fort
Allen; Otisville, New York; Brooklyn, New York; and La Tuna, Texas.2
Lack of INS cooperation with respect to medical problems in the
Brooklyn Service Processing Center is summarized in a letter from
the Immigration Law Clinic of Columbia Law School.3
B. Psychological Impacts of Detention
Perhaps even more serious than physical ailments is the severe
psychological depression suffered by many Haitian detainees. This
depression has led to an alarming increase in the incidence of
attempted suicides by Haitian detainees, especially at Krome. While
there were only two confirmed suicide attempts during the first
seven months of Krome's operation, the INS itself has confirmed that
there were approximately 20 suicide attempts in the months of
April-May 1982.4 A 24-year-old Haitian woman detained in Brooklyn,
1Affidavit of Advelt Augustin, 30 April 1982, attached as Annex 0.
2See summary and press clipping attached as Annex P.
3See Annex Q.
4See Annex R.
after one suicide attempt, was judged to be "actively suicidal" by
a psychiatric specialist; without notice to her attorney, the woman
was eventually released while visiting a relative, after six
C. Violations of International Law
Taken as a whole, the lack of adequate medical attention, the
deteriorating physical conditions at many of the INS detention
centers, the lack of educational and recreational facilities, and
the intense psychological pressures to which all Haitian detainees
are subjected constitute a violation of their right to humane
treatment under Article 25 of the American Declaration.
The U.S. interdiction program was first announced on
31 July 1981 by U.S. Attorney General William French Smith.
Pursuant to an agreement between the Haitian government and the
U.S., the interdiction program was formally announced by
President Reagan on 29 September 1981.2
Since the inception of the interdiction program, more than
70 vessels have been boarded and checked by the United States
Coast Guard. To date there have been two announced interdictions
1See correspondence attached as Annex S.
2Presidential Proclamation 4865 of 29 Sept. 1981; 46 F.Reg. 190
(1981); Executive Order 12324 of 30 Sept. 1981, 46 F.Reg. 48, 107
(1981). (Annex T).
resulting in the forced return of Haitians to Haiti. One vessel,
the Exoribe, was interdicted on 25 October 1981, and all 56 Haitians
aboard that vessel were returned to Haiti. On 10 January 1982, the
Grace a Dieu was intercepted; all 106 Haitians on board were
returned to Haiti. It is not known what became of these people afte:
their forced return to Haiti.
It is not disputed that Haiti is the only foreign country with
which an agreement to permit the interdiction of non-U.S. flag
vessels by the U.S. Coast Guard has been concluded. Both in
practice and in law, interdiction is applied only to Haitians; it
forms a third deliberate attempt to discriminate against Haitian
refugees, along with the complementary policies of indefinite
detention and special "Haitian Programs" violative of due process
which are outlined herein and in earlier submissions.
In view of the Commission's focus in the next several weeks on
the legality of indefinite detention by the U.S. of Haitian refugees
and of alleged violations of procedural and substantive due process
within the territory of the U.S., Petitioners respectfully reserve
their right to submit in the near future a detailed memorandum to
the Commission on the legality of the U.S. interdiction program.
At this time, Petitioners would ask only that the Commission
consider the existence of an interdiction program directed solely
and explicitly at Haitians fleeing their own country as additional
evidence of the U.S. practice of discrimination against Haitians on
the basis of their race and/or national origin, in violation of
relevant international agreements.
VI. EXHAUSTION OF DOMESTIC REMEDIES/STATUS OF DOMESTIC LITIGATION
The Petitioners have consistently maintained that the
requirement in Article 20(c) of the Commission's Statute that it
"verify," as a condition precedent to its consideration of
petitions submitted to it, whether "domestic legal procedures and
remedies have been duly applied and exhausted," should be
waived in this case. In support of this contention the
Petitioners argue (1) that certain of the Haitians -- those
coerced into voluntary departure, those who have concluded all
administrative and judicial appeals and found to be excludable or
deportable, and, most recently, those who have been interdicted
on the high seas and returned to Haiti -- are wholly outside the
jurisdiction of U.S. courts and hence have no domestic remedies
available to them; (2) that the theoretical remedies available to
those Haitians who are within the jurisdiction of U.S. courts are
inadequate and ineffective to deal with the issues before the
Commission; and (3) that the issues before the Commission
constitute a "general" case rather than a plea on behalf of
specific individuals and that the availability of otherwise
appropriate domestic remedies is therefore irrelevant to
consideration of the illegal administrative practices alleged.
These arguments are set forth in some detail in the
Observations of Petitioners on the United States Memorandum of
1 February 1980 ("Petitioners Observations") previously submitted
to the Commission and incorporated herein by reference. The
United States has the burden of establishing to the Commission's
satisfaction that there are adequate and effective domestic
- 23 -
remedies which the Petitioners have failed to exhaust. We submit
that the United States has not met this burden.
A. Persons Outside the Jurisdiction of U.S. Courts
The United States has admitted that at least two classes of
Haitian refugees are outside the jurisdiction of U.S. courts and
as such have no domestic remedies available to them: (1) those
who have "voluntarily" returned to Haiti, and (2) those regarding
whom a final determination of deportability or excludability has
been made.1 The interdiction program has produced yet a third
class of Haitians for whom there are no domestic remedies, namely
those Haitians who have been interdicted and returned to Haiti
and are not within the jurisdiction of U.S. courts.
The Commission's jurisdiction over at least these three
classes of Haitians is beyond doubt, and, accordingly,
petitioners respectfully request that the Commission investigate
the merits of the allegations presented in this petition
regarding U.S. treatment of Haitians in these classes at the
earliest possible date.
B. Persons Within the Jurisdiction of U.S. Courts
Those Haitians who are within the jurisdiction of U.S.
courts are in different legal positions depending on the time of
their arrival and/or entry into INS proceedings.
1Petitioners Observations, at 13-14.
- 24 -
Those who arrived and were known to the INS as of
10 October 1980,1 were granted a special "Cuban-Haitian Entrant
Status" and deportation proceedings against them were
suspended.2 While no action is apparently being taken to deport
or exclude these Haitians, their status has not been regularized
through legislation and could be changed by administrative
directive at any time. To the best of our knowledge, there are
4,000 5,500 Haitians in this class.
The estimated 7,500 Haitians who arrived between 1 January
and approximately 20 May 1981, have no formal administrative
designation similar to that of pre-January 1981 arrivals.3 In
practice, however, they were briefly detained, found to be
excludable, permitted to file asylum applications, and then
released. Although their cases have not progressed beyond this
point, the INS could begin further processing at any time.
Haitians arriving after 20 May 1981, are subject to the new
policy of wholesale detention. As noted above, some 2,000
Haitians are presently in detention.
The remedies and protections sought in each of the pending
U.S. court actions apply only to certain discrete groups of
1This class may have been enlarged to include Haitians arriving
in the United States and known to the INS as of 3 Dec. 1980.
2See Petitioners letter to the Commission of 19 Feb. 1981.
3While the new detention policy was formally announced at the
end of July 1981, it is believed that a de facto change in policy
occurred in late May.'
- 25 -
As the Commission will recall, on 2 July 1980, the District
Court in Haitian Refugee Center v. Civiletti issued an order
enjoining the INS from expelling or deporting any of the
plaintiffs, from otherwise proceeding with their deportation or
exclusion hearings, and from further processing their asylum
applications.1 The order required the INS to submit for the
Court's approval a detailed plan providing for the orderly, case
by case, nondiscriminatory and procedurally reprocessing of
plaintiffs' asylum applications. On appeal, the Circuit Court
confirmed the District Court's jurisdiction and finding of due
process violations, and it affirmed the District Court's order
(with modifications).2 It is not known whether the United States
will make a final appeal to the U.S Supreme Court. In any event,
the District Court order applies only to those Haitians who had
applied'for asylum prior to 10 May 1979, the date on which new
INS regulations become effective. It does not include Haitians
claiming asylum or arriving in the U.S. after that date, whether
or not presently detained.
In November 1981, in Vigile v. Sava,3 petitions for writs of
habeas corpus were filed in the U.S. District Court for the
Southern District of New York, on behalf of eight named Haitian
1Petitioners sent a copy of the District Court decision to the
Commission on 19 February 1981.
2Haitian Refugee Center v. Smith, ____ F.2d (5th Cir.
24 May 1982) (Annex U).
3No. 81 Civ. 73, 72 (S.D.N.Y. 5 March 1982).
plaintiffs seeking temporary release from the Service Processing
Center ("SPC"), the INS detention center in Brooklyn, New York,
pending determination of their asylum claims. On 5 March 1982
the District Court found that the actions of the INS District
Director in refusing to parole the petitioners were "motivated by
a desire to discriminate against Haitian aliens," and that the
Refugee Protocol "was clearly violated by the abusive and
discriminatory way in which these parole requests were handled."I
The petitioners were ordered to be released on parole, and on
-6 April 1982, the order was expanded to include 53 more Haitians
detained at SPC.2
The United States has appealed the Vigile decision to the
Circuit Court of Appeals and requested that the release order be
stayed pending a decision by the appellate court. To date, no
Haitians have been released under the District Court order.
Moveover, the Vigile order is limited to the SPC detainees in New
York and does not directly affect or provide any immediate relief
to the thousands of other Haitians languishing in the Krome
Avenue facility in Miami, Fort Allen in Puerto Rico and other
detention centers in various locations in the United States.
The second case, Louis v. Nelson,3 was filed on behalf of
all Haitians detained on or after 20 May 1981, and who are
lId. at 27, 37.
2The decision and order of 5 April 1982 is attached at Annex V.
3No. 81-1260-Civ.-ACH (S.D. Fla. 1981).
unrepresented by legal counsel in INS proceedings. The action
seeks declaratory and injunctive relief with regard to the
procedures and policies used in processing the class members,
including denial of access to counsel, arbitrary detention, and
failure to inform them of their right to seek asylum. A
preliminary injunction was issued barring any further processing
of class members unless they are represented by counsel. Trial
on the merits has recently concluded, although no final decision
has yet been rendered.
C. Position of the U.S. Government
While the United States has vigorously opposed any waiver of
the exhaustion of domestic remedies requirement in the case
before the Commission, it has, at the same time, sought to avoid
any domestic judicial oversight of INS processing or detention of
Haitians. As stated in Petitioners Observations, with respect to
Haitian Refugee Center v. Civiletti:
the U.S. government has argued in
federal court not for a full factual and
legal determination of the issues involved,
but rather has opposed at every opportunity
the right of the judiciary to investigate
the administrative practice which allegedly
has resulted in the wholesale denial of due
process to Haitian refugees.1
The U.S. position in Haitian Refugee Center v. Civiletti that
"the District Court acted improperly in considering the denial of
lPetitioners Observations at 9.
political asylum on the merits,"I is underscored by its
subsequent argument in the Vigile case:
The government opposes the petition as
both substantively and procedurally
infirm. It argues that the Court lacks
jurisdiction to review the District
Director's parole decision that
these aliens have no right under the
EU.S.] Constitution or ERefugee] Protocol
and that, in any event, neither the Protocol
nor the Constitution has been violated.2
In view of the consistent efforts of the United States to
avoid any domestic judicial consideration of the merits of the
complaints brought by Haitian refugees, its argument to the
Commission that petitioners have failed to exhaust their domestic
remedies is hypocritical. Every effort of the United States has
been directed toward preventing U.S. courts from considering the
substantive complaints of ill-treatment, lack of due process, and
arbitrary detention, yet it now argues that the Commission is
equally incapable of addressing the merits of these charges.
D. The Competence of the Commission to Investigate
Finally, as we have argued previously, the availability of
otherwise appropriate domestic remedies is irrevelant when the
issues before the Commission constitute a "general" rather than
an "individual" case.3 In addition to Case No. 1684 (Brazil),
1U.S. Brief to the 5th Cir., quoted in Petitioners Observations
2Vigile v. Sava, supra, Slip Op. at 2-3.
3Petitioners Observation at 5-6.
discussed both by petitioners and in the U.S. Government's
Memorandum of 1 February 1980, the Commission has considered this
issue in Case No. 1641 (Nicaragua) and cases Nos. 1702 and 1748
The appropriateness of the Commission's considering a
general situation in a country even where particular individuals
may not have fully exhausted domestic remedies is well
established. In such a situation, the Commission must be
concerned with the prospective protection of the rights of large
numbers of people and not merely with a decision which affects
only a limited number of specific individuals. As noted in
The U.S. government's failure to distinguish
persuasively between the Commission's treatment
of general and individual cases stems from a
failure to understand the reasons for the
adoption of the rule requiring exhaustion of
domestic remedies prior to the Commission's
investigation of a case. The exhaustion rule
is not merely a technical barrier to admissi-
bility, but rests on the sound assumption that
a government should be granted the opportunity
to redress alleged human rights violations
within its own domestic system of justice,
provided that the system offers the real
possibility of adequate and effective relief
to the complainants. If, however, a practice
or pattern of violations has developed in a
country -- even if that practice may be in
violation of domestic law -- then it is self-
evident that domestic remedies have already
failed to correct the alleged abuses. In
such a situation, the Commission is not asked
to decide in a particular case whether a mis-
carriage has occurred; rather, it is requested
to examine an entire situation which allegedly
exists in the accused country in spite of
theoretical legal guarantees.i
There is no adequate and effective domestic forum in which
the pattern of widespread violations alleged in the present case
can be addressed, particularly when the United States itself has
done everything possible to preclude any domestic judicial
consideration of the challenged practices. No single U.S. court
is likely to be able to address the myriad issues affecting
Haitians in the United States, nor can it address the issues
confronted by those who never come within its jurisdiction
because they have been interdicted and returned or coerced into
leaving the United States under the guise of "voluntary
The Commission remains the most appropriate forum to
consider the wide range of violations alleged in the present
case, many of which continue even though they may be illegal
under U.S. law. Poor, frightened, often illiterate aliens are
extremely susceptible to pressure and persecution when faced with
the power and apparent authority of the INS. Given their
uncertain position under U.S. law and the continued U.S.
insistence that domestic courts are not competent to oversee the
administrative practices of the INS or to question substantive
determinations of the entitlement to asylum, the pursuit of
1Petitioners Observations at 6.
domestic remedies becomes a limited, confusing, and often
inaccessible barrier to justice for the vast majority of Haitians
seeking asylum in the United States.
VII. SUGGESTED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Concerning the general treatment of Haitian entrants and
1. Haitian entrants to the U.S., in -particular those
who have applied for asylum, have been the victims
of a consistent pattern of discriminatory treatment,
based on their national origin and/or race, in
violation of Article 2, American Declaration of the
Rights and Duties of Man and Article 3, Convention
on the Status of Refugees. This discrimination has
been evidenced by the different and less favorable
treatment accorded Haitians compared to asylum
applicants of other nationalities.
a. The existence of separate "Haitian Programs"
subject Haitians to discriminatory,
accelerated, and unfair procedures by which
their asylum claims are considered.
b. Procedural due process guarantees are
violated through simultaneous scheduling of
hearings which effectively result in the
denial of counsel, refusal to admit probative
evidence relevant to asylum claims,
inadequate time and facilities for
communication with counsel, and other means.
c. Substantive due process is violated by INS
and Justice Department directives to "expel"
Haitians as soon as possible, bias on the part
of INS judges against Haitian asylum claims,
and the lack of relevant criteria on which to
base decisions to grant or deny asylum.
Substantive discrimination against Haitians is
evidenced by the quasi-unanimous denial of
all Haitian asylum claims in proportions far
greater than the treatment of any other
national group and, in particular, by the
routine denial of Haitian asylum applications
while asylum applications of, e.g., Cubans,
Eastern Europeans, and Southeast Asians are
2. The procedures utilized in processing Haitian
asylum claims and the subtantive bias outlined
above constitute a violation of Articles 18 (right
to a fair trial and protection "from acts of
authority that, to his prejudice, violate any
fundamental constitutional rights") and 27 (right
to seek and receive asylum) of the American
Declaration of the Rights and Duties of Man and
Article 33 (non-refoulement) of the Convention on
the Status of Refugees, an international agreement
within the meaning of Article 27 of the American
a. In addition to violations of due process in
the consideration of Haitian asylum
applications, the U.S. government has
violated the rights of Haitians by attempting
to coerce Haitian asylum applicants into
accepting "voluntary departure" to Haiti
through threats, misrepresentations, and
psychological pressures brought about by the
U. S. policy of indefinite detention.
indefinite detention of Haitian arrivals in
The detention for an indefinite period (in some
cases, more than one year) of all Haitians
arriving in the U.S. without documentation
constitutes arbitrary detention in violation of
Article 25 of the American Declaration of the
Rights and Duties of Man and further constitutes
imposition of a penalty on Haitian refugees in
violation of Article 31(1) of the Convention on
the Status of Refugees.
a. The U.S. policy since at least July 1981 of
wholesale detention of Haitian asylum
applicants is designed to deter Haitian
flight to the U.S. and to facilitate the
- 34 -
illegal expulsion of Haitians, and not for
legitimate government interests consistent
with international law.
b. The policy of indefinite detention was
originally developed exclusively for use
against Haitians. Despite subsequent
detention by the U.S. of small numbers of
asylum applicants of other nationalities, the
policy remains primarily and discriminatorily
directed against Haitian nationals.
2. The policy of indefinite detention of Haitian
arrivals in the U.S. constitutes an impermissible
and unnecessary restriction on the movement of
Haitian refugees in violation of Article 31(2) of
the Convention on the Status of Refugees.
a. Even if temporary restrictions on Haitians
may be "necessary" for a brief period in
order to process or regularize the status of
Haitian refugees, the punitive and
discriminatory U.S. detention program falls
outside this limited exception. By the U.S.
Government's own admission, the purpose of
the detention policy is to deter future
arrivals and to facilitate expulsion of
Haitians, not to accomplish any legitimate
- 35 -
government purpose in determining the merits
of asylum applications.
b. Any alleged problems relating to the
non-appearance of Haitian asylum applicants
at INS hearings result primarily from the
U.S. government's own administrative
failings, as no probative evidence submitted
indicates that the appearance rate for
Haitians is lower than that for other
Concerning the conditions of detention facilities in which
Haitians are held
1. The physical conditions and psychological pressures
to which Haitian detainees are subjected at Krome
Avenue North, Fort Allen, and the Brooklyn Service
Processing Center constitute inhumane treatment in
violation of Article 25 of the American
Declaration of the Rights and Duties of Man.
a. The separation of spouses from one another
and of minor children from their parents is
unjustifiable and a violation of the human
rights of all parties.
b. Medical treatment for Haitian detainees is
c. Water and sanitary facilities are inadequate.
- 36 -
d. The lack of recreational and educational
facilities, combined with the indefinite
nature of their detention, has created
conditions of extreme psychological stress
among Haitian detainees and has resulted in
an increasing number of suicide attempts.
e. The imposition of disciplinary punishments by
camp authorities, without hearing, violates
detainees' due process rights and further
contributes to deliberate psychological
pressures on Haitian detainees to accept
"voluntary" return to Haiti.
Concerning the U.S. policy of interdiction of Haitian
vessels on the high seas
1. The interdiction by the U.S. government of Haitian
vessels on the high seas constitutes a violation
of Article 27 of the American Declaration of the
Rights and Duties of Man (right to seek and
receive asylum), Article 22(2) of the American
Convention on Human Rights (right to leave one's
own country), and, by making possible the
extra-legal punishment of returned Haitians by the
government of Haiti, violates Articles 18, 25, and
26 of the American Declaration of the Rights and
Duties of Man.
- 37 -
a. The U.S. interdiction policy is applied only
to Haitians, thus constituting further
evidence of U.S. discriminatory treatment of
Haitian nationals attempting to seek asylum
in the U.S.
b. Those Haitians returned to Haiti by
interdiction or through so-called "voluntary"
departure are liable to serious violations of
human rights, including imprisonment,
ill-treatment, and death, by the Haitian
c. No adequate supervisory mechanism exists to
monitor the safety of Haitians returned to
Haiti, and the numerous instances of
returnees who have not returned to their
normal place of residence indicates, at
least, a continuing fear of persecution in
VIII. REQUEST FOR RELIEF
The continuing and deteriorating pattern of violations of
the human rights of Haitians by the United States, in spite of a
myriad of efforts in domestic fora on their behalf, argues
strongly for the prompt intervention of the Commission. We
- 38 -
therefore respectfully request that the Commission undertake the
(1) request that the U.S. government release all Haitians
currently detained, if necessary under appropriate
sponsorship arrangements, and refrain from returning
any Haitian nationals to Haiti pending the Commission's
consideration of the present case;
(2) conduct an on-site investigation of conditions at the
Krome Avenue detention center in Miami, Florida, and
the Camp Allen detention center in Puerto Rico and
recommend measures to improve conditions in all
detention centers; and
(3) request that the U.S. government immediately terminate
its program of interdicting Haitian vessels on the high
Respectfully submitted on behalf of the National Council of
Churches this 17th day of June, 1982.
The International Human Rights Law Group
1346 Connecticut Avenue, N.W., Suite 502
Washington, D.C. 20036
Hogan & Hartson
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
Linda Mabry (while an associate at
Hogan & Hartson)
The Lawyers Committee for International
36 West 44th Street
New York, New York 10036
Arthur C. Helton
LIST OF ANNEXES
Affidavit of an unnamed Haitian, undated (referred to
events between December 1980 and September 1981 ;
Affidavit of unnamed Haitian detained in Krome,
Affidavit of unnamed Haitian detained in New York,
25 May 1982.
Violations of Human Rights in Haiti -- Report of the
Lawyers Committee for International Human Rights to the
Organization of American States, November 1980.
Memorandum regarding human rights violations in Haiti
from October 1980 to October 1981, prepared by the
International Secretariat of Amnesty International,
Report on the August 1981 Trial and November 1981
Appeal of 26 Political Defendants in Haiti, prepared by
Michael Hooper for the Lawyers Committee for Inter-
national Human Rights, March 1982.
INS Field Inspectors Handbook, Ch. 19, Sections 1, 2.
Testimony of Sam Bernsen in Louis v. Nelson,
No. 81-1260-CIV-EPS (S.D. Fla. 1981) Transcript 204-217.
Testimony by Acting INS Commissioner Doris Meissner
before Senate Immigration and Refugee Sub-Committee,
31 July 1981.
U.S. government memoranda, re: Immigration Detention
Policy, 14 September 1981 and undated.
Article from the New York Times, Sec. 2, p. 1,
(28 August 1981).
Affidavit of Stanley Mailman, 14 August 1981.
Opinion of Judge Carter, Vigile v. Sava, 81 Civ. 7372
(RLC) (S.D.N.Y. 5 Mar. 1982).
Affidavit of Steven Forester, attorney for the Haitian
Refugee Center, Inc., with exhibits, 19 May 1982.
Article from the Miami Herald, p. B4 (23 March 1982)
(reporting testimony by a former information officer
for the Cuban-Haitian Task Force).
Affidavit of Steven Shapiro, attorney for the New York
Civil Liberties Union, 18 November 1981.
Declaration of Odvelt.Augustin, alien detained at Krome
Detention Facility, 30 April 1982.
Summary of problem of gynecomastia by Haitian Refugee Center,
Inc., accompanied by medical report 30 April 1982.
Article from the Miami News, (23 April 1982).
Letter from Janice Wasserstrom, Social Work Consultant, to Steven
Shapiro, American Civil Liberties Union, 30 March 1982.
Letter from Janice Wasserstrom to Kevin Doyle, INS, 26 April
Article from the Miami Herald (9 June 1982), (INS spokeswoman
acknowledges 20 suicide attempts in April and May, 1982).
Informal summary of situation by the Haitian Refugee Center,
Inc., June 1982.
Affidavits from Krome detainees:
Elucenne Nazaire, 8 June 1982
Lucia Joseph, 8 June 1982
Clara Dorceus, 8 June 1982
Article from the Miami Herald, PTC (7 May 1982).
Article from the Miami Herald (26 February 1982).
Letter from Lydia Savoyka, attorney for the U.S. Catholic
Conference, to Charles Sava of INS with attached materials
regarding psychiatric evaluation, 2 February 1982.
Presidential Proclamation 4865 of 29 September 1981 regarding
High Seas Interdiction of Illegal Aliens.
Executive Order 12324 of 29 September 1981 regarding Interdiction
of Illegal Aliens.
Haitian Refugee Center v. Smith,
24 May 1982).
Opinion of Judge Carter, Vigile v. Sava, 81 Civ. 7372 (RLC)
(S.D.N.Y. 5 April 1982).