U.S. , Case No. 3228, Supplemental petition on behalf of Nat. Coun. Of Ch. by laws. Com. on Human Rts., etc., 38p, c.1982


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U.S. , Case No. 3228, Supplemental petition on behalf of Nat. Coun. Of Ch. by laws. Com. on Human Rts., etc., 38p, c.1982
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CASE NO. 3228

(United States)

Supplemental Petition

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



I. INTRODUCTION....................... ............... 1

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

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


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
Human Rights.

- 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.

5 -

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.

SINCE 1973

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),
Transcript 260-64.

- 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

different tracks."

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
were affected.

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
political asylum.1

IHaitian Refugee Center v. Civiletti, 503 F.2d Supp. 443 (1980).

-7 -

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).

8 -

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,
769, 773.

9 -

flows; and (2) provide relief to Florida where
the impact of the Haitian illegal migration has
been concentrated.1

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.

11 -

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.

12 -

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
medical attention.

13 -

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-
ingful existence.1

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

respective instruments.

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).

15 -

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.


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

concentration camps.

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

the camp:

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.

(Annex N).

19 -

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.

20 -

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

months' detention.1

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).

21 -

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.

22 -


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).

26 -

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).

27 -

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.

28 -

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
"General" Cases

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
at 10.

2Vigile v. Sava, supra, Slip Op. at 2-3.

3Petitioners Observation at 5-6.

29 -

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

Petitioners Observations:

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

30 -

exists in the accused country in spite of
theoretical legal guarantees.i

E. Conclusion

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.

31 -

domestic remedies becomes a limited, confusing, and often

inaccessible barrier to justice for the vast majority of Haitians

seeking asylum in the United States.


Concerning the general treatment of Haitian entrants and
asylum applicants

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,

32 -

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

routinely granted.

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

33 -

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.

Concerning the
the U.S.


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

national groups.

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



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

following actions:

(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
Hurst Hannum
Grant Hanessian
Amy Young-Anawaty

Hogan & Hartson
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
Sandy Berger
Linda Mabry (while an associate at
Hogan & Hartson)

The Lawyers Committee for International
Human Rights
36 West 44th Street
New York, New York 10036
Michael Hooper
Russ Schwartz
Arthur C. Helton


Annex A

Affidavit of an unnamed Haitian, undated (referred to
events between December 1980 and September 1981 ;

Affidavit of unnamed Haitian detained in Krome,
24.May 1982.

Affidavit of unnamed Haitian detained in New York,
25 May 1982.

Annex B

Violations of Human Rights in Haiti -- Report of the
Lawyers Committee for International Human Rights to the
Organization of American States, November 1980.

Annex C

Memorandum regarding human rights violations in Haiti
from October 1980 to October 1981, prepared by the
International Secretariat of Amnesty International,
November 1981.

Annex D

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.

Annex E

INS Field Inspectors Handbook, Ch. 19, Sections 1, 2.

Annex F

Testimony of Sam Bernsen in Louis v. Nelson,
No. 81-1260-CIV-EPS (S.D. Fla. 1981) Transcript 204-217.

Annex G

Testimony by Acting INS Commissioner Doris Meissner
before Senate Immigration and Refugee Sub-Committee,
31 July 1981.

Annex H

U.S. government memoranda, re: Immigration Detention
Policy, 14 September 1981 and undated.

Annex I

Article from the New York Times, Sec. 2, p. 1,
(28 August 1981).

Annex J

Affidavit of Stanley Mailman, 14 August 1981.

Annex K

Opinion of Judge Carter, Vigile v. Sava, 81 Civ. 7372
(RLC) (S.D.N.Y. 5 Mar. 1982).

Annex L

Affidavit of Steven Forester, attorney for the Haitian
Refugee Center, Inc., with exhibits, 19 May 1982.

Annex M

Article from the Miami Herald, p. B4 (23 March 1982)
(reporting testimony by a former information officer
for the Cuban-Haitian Task Force).

Annex N

Affidavit of Steven Shapiro, attorney for the New York
Civil Liberties Union, 18 November 1981.

Annex 0

Declaration of Odvelt.Augustin, alien detained at Krome
Detention Facility, 30 April 1982.

Annex P

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).

Annex Q

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

Annex R

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).

Annex S

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.

Annex T

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.

Annex U

Haitian Refugee Center v. Smith,
24 May 1982).


(5th Cir.

Annex V

Opinion of Judge Carter, Vigile v. Sava, 81 Civ. 7372 (RLC)
(S.D.N.Y. 5 April 1982).