Haitian detention and interdiction

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Haitian detention and interdiction hearing before the Subcommittee on Immigration, Refugees, and International Law of the Committee on the Judiciary, House of Representatives, One Hundred First Congress, first session, June 8, 1989
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United States -- Congress. -- House. -- Committee on the Judiciary. -- Subcommittee on Immigration, Refugees, and International Law
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Haitians -- Legal status, laws, etc -- United States   ( lcsh )
Detention of persons -- United States   ( lcsh )
Haïtiens -- Statut juridique -- États-Unis   ( ram )
Détention de personnes -- États-Unis   ( ram )
Emigration and immigration -- United States   ( lcsh )
Émigration et immigration -- États-Unis   ( ram )
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\JJAITIAN DETENTION AND INTERDICTION
HEARING
BEFORE THE
SUBCOMMITTEE ON IMMIGRATION, REFUGEES, AND INTERNATIONAL LAW
OF THE
COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES
ONE HUNDRED FIRST CONGRESS FIRST SESSION
JUNE 8, 1989
Serial No. 18
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE 19-335 *r WASHINGTON : 1989
T
For sale by the Superintendent of Documents, Congressional Sales Office U.S. Government Printing Office, Washington, DC 20402


COMMITTEE ON THE JUDICIARY
JACK BROOKS, Texas, Chairman
ROBERT W. KASTENMEIER, Wisconsin DON EDWARDS, California JOHN CONYERS, Jr., Michigan ROMANO L. MAZZOLI, Kentucky WILLIAM J. HUGHES, New Jersey MIKE SYNAR, Oklahoma PATRICIA SCHROEDER, Colorado DAN GLICKMAN, Kansas BARNEY FRANK, Massachusetts GEO. W. CROCKETT, Jr., Michigan CHARLES E. SCHUMER, New York BRUCE A. MORRISON, Connecticut EDWARD F. FEIGHAN, Ohio LAWRENCE J. SMITH, Florida HOWARD L. BERMAN, California RICK BOUCHER, Virginia HARLEY O. STAGGERS, Jr., West Virginia JOHN BRYANT, Texas BENJAMIN L. CARDIN, Maryland GEORGE E. SANGMEISTER, Illinois
HAMILTON FISH, Jr., New York CARLOS J. MOORHEAD, California HENRY J. HYDE, Illinois F. JAMES SENSENBRENNER, Jr.,
Wisconsin BILL McCOLLUM, Florida GEORGE W. GEKAS, Pennsylvania MICHAEL DeWINE, Ohio WILLIAM E. DANNEMEYER, California HOWARD COBLE, North Carolina D. FRENCH SLAUGHTER, Jr., Virginia LAMAR S. SMITH, Texas LARKIN I. SMITH, Mississippi CHUCK DOUGLAS, New Hampshire CRAIG T. JAMES, Florida
William M. Jones, General Counsel Robert H. Brink, Deputy General Counsel Alan F. Coffey, Jr., Minority Chief Counsel
Subcommittee on Immigration, Refugees, and International Law
BRUCE A. MORRISON, Connecticut, Chairman BARNEY FRANK, Massachusetts LAMAR S. SMITH, Texas
CHARLES E. SCHUMER, New York BILL McCOLLUM, Florida
HOWARD L. BERMAN, California D. FRENCH SLAUGHTER Jr., Virginia
JOHN BRYANT, Texas HAMILTON FISH, Jr., New York
ROMANO L. MAZZOLI, Kentucky
Eugene Puouese, Counsel Nora Engel, Assistant Counsel Bernadette Maguire, Legislative Assistant Margaret L. Webber, Minority Counsel
(ii)


CONTENTS
HEARING DATE
Page
June 8, 1989....................................................................................................................... 1
OPENING STATEMENT
Morrison, Hon. Bruce A., a Representative in Congress from the State of Connecticut, and chairman, Subcommittee on Immigration, Refugees, and International Law........................................................................................................ 1
WITNESSES
Buck, James L., Deputy Commissioner, Immigration and Naturalization Service, accompanied by Delia Combs, Associate Commissioner, Refuge, Asylum and Parole, and Joan Higgens, Associate Commissioner, Detention and
Deportation.................................................................................................................... 20
Carey, Barbara, commissioner, Dade County, Miami, FL........................................ 79
Fascell, Hon. Dante B., a Representative in Congress from the State of Florida..................................................................................................................................... 3
Fauntroy, Hon. Walter E., a Delegate in Congress from the District of Columbia.................................................................................................................................... 14
Goodwin-Gill, Guy, consultant, United Nations High Commissioner of Refugees ................................................................................................................................. 164
Helton, Arthur C, Esq., director, Political Asylum Project, Lawyers Committee for Human Rights.................................................................................................. 145
Jean-Juste, Gerard, executive director, Haitian Refugee Center........................... 89
Kreczko, Alan J., Deputy Legal Adviser, Department of State, accompanied
by David Zweifel, Director for Caribbean Affairs, and Leon Wintraub............ 33
Lehman, Hon. William, a Representative in Congress from the State of Florida..................................................................................................................................... 10
Leland, Rear Adm. Walter T., Chief, Office of Law Enforcement and Defense
Operations, U.S. Coast Guard.................................................................................... 44
Martin, David, professor of law, University of Virginia.......................................... 189
McCalla, Jocelyn, executive director, National Coalition for Haitian Refugees 102 Smith, Hon. Lawrence J., a Representative in Congress from the State of
Florida............................................................................................................................ 17
Steinhardt, Richard, professor, George Washington University School of Law.. 187 Walsh, Msgr. Bryan O., executive director, Catholic Social Community Services .................................................................................................................................. 122
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Buck, James L., Deputy Commissioner, Immigration and Naturalization Service: Prepared statement.............................................................................................. 23
Carey, Barbara, commissioner, Dade County, Miami, FL: Prepared statement.. 82
Fascell, Hon. Dante B., a Representative in Congress from the State of Florida: Prepared statement............................................................................................... 5
Goodwin-Gill, Guy, consultant, United Nations High Commissioner of Refugees: Prepared statement............................................................................................ 167
Helton, Arthur C, Esq., director, Political Asylum Project, Lawyers Committee for Human Rights: Prepared statement............................................................ 148
Jean-Juste, Gerard, executive director, Haitian Refugee Center: Prepared statement....................................................................................................................... 92
(in)


IV
Page
Jean-Juste, Gerard, executive director, Haitian Refugee CenterContinued
Kreczko, Alan J., Deputy Legal Adviser, Department of State: Prepared statement....................................................................................................................... 34
Lehman, Hon. William, a Representative in Congress from the State of Florida: Prepared statement............................................................................................... 11
Leland, Rear Adm. Walter T., Chief, Office of Law Enforcement and Defense Operations, U.S. Coast Guard: Prepared statement.............................................. 46
Martin, David, professor of law, University of Virginia: Prepared statement.... 192
McCalla, Jocelyn, executive director, National Coalition for Haitian Refugees: Prepared statement..................................................................................................... 105
Morrison, Bruce A., a Representative in Congress from the State of Connecticut, and chairman, Subcommittee on Immigration, Refugees, and International Law: Department of Justice press release dated June 6, 1989, and June 6, 1989, letter to Commissioner Nelson, from Attorney General Thorn-burgh .............................................................................................................................. 51
Walsh, Msgr. Bryan O., executive director, Catholic Community Services: Prepared statement..................................................................................................... 125
APPENDIXES
Appendix 1.Letter to Chairman Morrison from Representative Lehman, dated June 23, 1989...................................................................................................... 207
Appendix 2.Prepared statement of Max J. Castro, executive director, Greater Miami United........................................................................................................... 208
Appendix 3.May 15, 1989, staff memorandum to Representatives Fascell, and Crockett, and Delegate Fauntroy...................................................................... 210
Appendix 4.Excerpts from material concerning detection and interdiction, Jocelyn McCalla, executive director, Haitian Refugee Center............................ 216
Appendix 5.Department of Justice submissions to subcommittee questions.... 248


HAITIAN DETENTION AND INTERDICTION
THURSDAY, JUNE 8, 1989
House of Representatives, Subcommittee on Immigration, Refugees, and International Law, Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:16 a.m., in room 2237, Rayburn House Office Building, Hon. Bruce A. Morrison (chairman of the subcommittee) presiding.
Present: Representatives Bruce A. Morrison and Lamar S. Smith.
Also present: Eugene Pugliese, counsel; Bernadette Maguire, legislative assistant; Debra James-Morris, clerk; and Margaret L. Webber, minority counsel.
OPENING STATEMENT OF CHAIRMAN MORRISON
Mr. Morrison. The hearing will come to order.
Shortly after I was elected to the chairmanship of this subcommittee, I was approached by members of the Florida congressional delegation, in particular, by Congressman Lehman, Congressman Smith, and Congressman Fascell, expressing concern about the treatment of Haitians under the immigration laws of the United States; and they raised concerns about two particular aspects of our law: One, the conditions under which Haitians suffer detention in the United States and the pursuit of a detention policy with respect to Haitians; and, second, the practice of interdiction on the high seas of Haitians, not yet in U.S. waters but leaving Haiti, and the forcible repatriation of those individuals.
I visited south Florida, looking at refugee problems and asylum application problems generally, and had the opportunity to talk to local representatives of the Haitian community about these problems. We made a commitment at that time that we would hold a hearing here in Washington to look further at these questions, and that is the purpose of today's hearing.
In my opinion, Haitians have been singled out for especially harsh treatment under the immigration laws over the last decade. While nationals of other countries have received favored immigration status, through administrative grants and extended voluntary departure, special refugee processing programs and presumptive eligibility standards, Haitians have instead been the vanguard of harsh treatment like interdiction and detention.
For example, the recent decision by the President to grant special status to the hundreds of thousands of Chinese nationals in the United States is in stark contrast to the failure to act on behalf of
(l)


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Haitian nationals when hundreds were gunned down in the streets in 1987 during the abortive attempt to move to democracy in that country. And, when you look at the percentages of Haitians killed compared to the population of Haiti, it, in fact, exceeds the population percentages of Chinese killed in the recent deplorable violence.
Obviously, the President acted with proper concern for the safety of Chinese nationals. But where was that concern when the safety of Haitians was at stake.
Further, we have seen the development of the detention policy applied particularly to the Haitians. Do these policies of interdiction and detention present the only viable options for adequate border enforcement between the United States and Haiti, or is there a better way? Is there a more humanitarian way to respond?
There are real problems associated with detention in Florida that need to be addressed. These include access to counsel, inconsistent bond levels, and apparent disparate treatment on release. Unlike many other ethnic groups in Florida, the Haitians are a relatively new immigrant population and they need some assurances about how they are to be treated, and they certainly ought not to be spurned by the Government of the United States or by State and local government.
Interdiction is not without its problems either. We have tragedies of mothers with babies at risk on the open seas, demonstrating that some real fears and anxieties must be addressed in determining whether the processing and interrogations on Coast Guard vessels is sufficient for yielding the right information about who might meet the refugee definition.
The reception of Haitians in south Florida by the Government has been almost hostile, but numerous local organizations and civic leaders have responded with south Florida's traditional generosity, and that is why we are here today to learn from them firsthand the difficulties that Haitians face on their way to the United States, the problems they have faced in becoming acclimated in south Florida, and to review the immigration laws for their equitable application and to draw upon the experience of Haitian representatives in the United States to make appropriate changes.
Next week, the United States will be in Geneva talking about the treatment of boat people in Southeast Asia and making the case that individuals who are not refugees by international standards but who have left their country and are now arriving in Hong Kong and elsewhere shall not be forceably repatriated; and yet at the same time, off our own shores in Florida we are regularly forceably repatriating the boat people of Haiti.
The inconsistency in this policy gives me special concern, and I hope in this hearing to hear from representatives of the Justice Department, the State Department, and the Coast Guard of how it is that our standard for the boat people of the Western Hemisphere is different from our standard for the boat people of Southeast Asia, and I would thank all the witnesses for providing answers to those kinds of questions.
I yield to the gentleman from Texas, Mr. Smith.
Mr. Smith of Texas. Mr. Chairman, I too would like to welcome the witnesses today, particularly our colleagues. I think we have four colleagues here who are going to testify as well.


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And, in regard to the testimony that we are going to hear, I am particularly interested in hearing comments on the extent of the problem; what changes, if any, there have been in procedures during recent months; whether Haitian boat people are treated differently than individuals from other countries who are seeking entry to the United States; whether or not definitions have changed; whether or not Haitians are true refugees; what our current policy is compared to any changes in past policy; and, finally, whether those who do not quality for refugee status should be returned to Haiti.
Mr. Chairman, we have a very interesting list of witnesses this morning, and we have an interesting subject and I look forward to hearing more on it.
Thank you.
Mr. Morrison. Thank you very much.
I would now like to start with our first panel of witnesses, which will be four Members of Congress: Bill Lehman, Dante Fascell, Walter Fauntroy, and Lawrence Smith. If the four of you would come forward.
We thank you very much for taking the time to be with us this morning and look forward to your testimony and your perspective on the issue before the subcommittee.
I would ask Congressman Lehman if he would proceed first. Your written statement is made a part of the record, without objection.
Mr. Lehman. I think it would be proper if I yielded to the senior member of our delegation, Mr. Fascell. Mr. Morrison. Chairman Fascell.
STATEMENT OF HON. DANTE B. FASCELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Mr. Fascell. Mr. Chairman, I am delighted to start this thing off because we have got a lot of work to do here. Thank you. My statement is in the record, and let me just add a few remarks.
First of all, I think that you have shown your knowledge and your sensitivity in your opening statement. You defined the problem. I don't think we need to dwell on it too long. The question is what is the answer or answers? And as far as I can tell, there is no magical answer. But we certainly have to eliminate what is in reality, as well as perceptually, discrimination. We have to do whatever it takes to make it appear and to be real that we have equal application of the law, period.
Now having said that, the way you adjust this system to make that occur may be an administrative function, it may be a legislative function, and it may be a combination of both. I have no idea how that is going to work. We may have to come up with some entirely new concept with respect to both enforcement or the application of immigration law. We may even have to come up with new definitions, if we are going to be true to our own values and our beliefs.
Now we start with certain constraints that are well-known to all of us. One of them is that as a compassionate Nation we simply cannot open the doors to the entire world. Every sovereign nation


4
and people have a right to regulate the flow of new people coming to their country. If we destroy that process either because we are incapable of handling illegal immigration or because we want to do something else, we have got an entirely new concept.
The definitional problem now arises because when you start to write the law you run into definitions. I am not sure at this point, Mr. Chairman, that current definitions do us any good any more in the implementation of the law, because what looks good on paper and what makes absolute sense in legal terms, makes no sense at all when you get out in the field to apply it. It's difficult to try to explain the difference between refugee and asylum or status under color of law or some other definition under the law. I am not suggesting at all that we just scrap all the laws. That would be ridiculous. We can't do that.
So, as far as Haiti is concerned, the immediate problem, you have already put your finger on it. We appreciate the fact that this committee is taking the time, directing its attention to see what can be done or what needs to be done either administratively or legislatively to correct that problem.
We are very much interested in the long-term problemWalter Fauntroy here, who has done a magnificent job as chairman of the Haiti Task Force in the Congress; we have got a strong bipartisan group, as you know. We want to show the concern of the people of this country and of the U.S. Government for what is happening to the people of Haiti. We want to try to help them with their democratic processes, to participate in their own destiny. We are fully aware of their desperate economic plight which forces those people to make all kinds of difficult decisions. We are working right now with the administration and we hope that we can put together an economic program that will breathe some economic life into Haiti and the people of Haiti and give them some assurance they have got a future. If we can ever get that done, if we can get stability in Haiti, get it started toward a democratic process, put in an economic program that gives them some hope, a lot of the problems that confront us in the United States with respect to these people who are desperate will be resolved. But that is long term, that is not a short term solution.
In the meantime, however, we have the reality of dealing with the problem of people who are desperate, who will do almost anything to get to the land of milk and honey, and one can hardly blame them.
So we wish you well. We see that you have got a firm grasp of the problem. We are looking for what needs to be done, Mr. Chairman, to eliminate the obvious discrimination. Whether it is real in fact, real in law, or real in perception at this point does not matter.
Mr. Morrison. Thank you, Mr. Chairman.
[The prepared statement of Mr. Fascell follows:]


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June 8, 1989
STATEMENT OF CONGRESSMAN DANTE B. FASCELL (D-FLA) TO THE SUBCOMMITTEE ON IMMIGRATION, REFUGEES AND INTERNATIONAL LAW OF THE HOUSE JUDICIARY COMMITTEE CONCERNING HAITIAN DETENTION AND INTERDICTION
Mr. Chairman and distinguished members of the Subcommittee, I commend you for holding this hearing to examine the problems concerning the detention and interdiction of Haitians. This is a subject of considerable concern in South Florida and we are pleased that you have taken the initiative to examine it in depth.
The central issues surrounding Haitian immigration are fairness, equity and the perception of racial prejudice. There is a widespread perception in the Haitian community and in the black community in South Florida and elsewhere that Haitians, because they are black, are being treated less favorably under our immigration laws than other groups. This perception must not be allowed to continue. While I do not believe that our government deliberately created policies which discriminate against Haitians for racial reasons, in fact they do not seem to get the same treatment as do other groups. We must change that; we must insure that there is no prejudice


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in either the perception or the reality of our immigration laws and regulations
Over the last ten years there has been a substantial immigration of Haitians to the U.S. From 1980 through 1988, over 115,000 Haitians have obtained permanent resident status. During the same period, 11,000 have been deported or left voluntarily in lieu of deportation; almost 18,000 have been stopped at sea and returned to Haiti. Over three hundred are in the Krome detention center and 195 were moved from Krome in May because of over-crowding. No one knows for sure how many Haitians are here illegally.
In spite of the barriers we have erected, Haitians keep coming. Why? A major reason is Haiti's extreme poverty. Statistics show Haiti to be the poorest nation in the Hemisphere and one of the poorest in the world. But statistics do not begin to describe the bleak situation in many areas of the country. Haiti has had to endure more than economic deprivation. For 30 years a corrupt and tyrannical regime ruled through fear exemplified by human rights abuses as bad as could be found anywhere. The hope that we all felt when "Baby Doc" Duvalier was deposed has, thus far, not borne fruit. While the prospects for democracy have improved under General Avril, Haiti still has not experienced a free, fair and safe election.
The period since the overthrow/ of Duvalier has been marked by almost constant political turmoil. Dashed hopes for political progress coupled with a downward economic spiral are a potent combination sparking


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emigration. After years of dictatorships which ruled through violence and corruption, it is not easy to create a functioning democracy which can guarantee its citizens their political and human rights and prospects of economic growth. We hope the situation is changing and we see steps in the right direction, but, until the Haitian people are confident the future will be better for them, they will continue to risk their lives to try to come the U.S. The United States, through our foreign assistance programs, has been trying to help Haitians craft a better future, but until fundamental political, economic, and social reforms are achieved we will be lucky if we can simply slow the rate of economic decline.
The underlying factor which feeds the perception of prejudice toward Haitians is, of course, this nation's history of racial prejudice. It is a history we have struggled mightily to overcome. I do not believe that actual prejudice is at work here, but it is understandable that many believe that its insidious influence affects how Haitians are treated. There are two factors which add to the perception of prejudice toward Haitians. One is the practice of stopping Haitians at sea and returning them to Haiti. The other is the detention of large numbers of Haitians at Krome.
As far as I know, the interdiction of Haitians at sea outside the territorial waters of the U.S. is the only case in which INS stops illegal aliens before they actually get to the U.S. In all other cases and for all other nationalities, an illegal alien is caught at the border or inside the U.S. At that point, the alien acquires certain due process rights, including


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the right to appeal. The Haitians stopped on the high seas do not have those rights. There is considerable concern that the INS officers who interview the Haitians at sea do not have enough time to give the individual who is claiming asylum an adequate hearing. Those Haitians have no rights under U.S. law; no right of appeal and no right to legal counsel. The distinction between aliens stopped in international waters and those caught within our territiory may be clear to lawyers, but the distinction is lost for the average citizen.
The other factor which has generated charges of unequal treatment of Haitians has been their lengthy incarceration at Krome detention center. Since the INS has begun to detain Central American asylum seekers in Texas, some of the appearance of unequal treatment has disappeared. But we must be sure that all of it disappears. Haitians and Central Americans are fleeing similiar situations in their home countries and we should apply the same standards to all of them. The human situation is the same whether one waded across the Rio Grande or made it ashore in a rickety sailboat from Haiti. The legal differences between excludable and deportable make no sense today. We should apply the same criteria for determining who is detained and who is paroled to family and friends. The detention facilities should be governed by the same rules and regulations regardless of who is being detained or where.
It is obvious that the United States cannot accept all those who would like to immigrate to the U.S., but we must set the same standard and apply the same regulations to all equally. We would be betraying our


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heritage if we did not treat all who wish to immigrate under the sane laws and the same regulations.
Mr. Chairman, I am here today to plead that our immigration laws and regulations treat Haitians the same as all other nationality groups. They should not be singled out for special treatment which gives them benefits that others in similiar circumstances do not have. Nor should they be treated in a harsher manner. The standards for applying for political asylum must be the same and applied equally to Haitian and Central American alike. There must not be any real or even perceived discrimination against Haitians. If this means extra work for INS, then we must provide additional resources for them to handle it. Illegal aliens are entitled to due process and we must ensure that all, including Haitians, receive it.
In the case of Haitians, this will require a thorough review of the way they are treated. The review may show that the examining officers need to question asylum seekers in greater detail, or use different techniques. Conditions at the Krome detention center should be investigated. There are allegations of lack of access to lawyers and telephones and that detainees were transferred to another facility without adequate notice. No matter how minor the complaint, it must be taken seriously. We must not be complacent nor let other government agencies be complacent. If the current way of doing business does not guarantee fairness to Haitians, then it must be changed.


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Mr. Morrison. Mr. Lehman.
STATEMENT OF HON. WILLIAM LEHMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Mr. Lehman. Thank you, Mr. Chairman. I want to thank you not only for the hearing you are having here today, but for the visit you made to Miami.
I think the problem is a great deal in not only what the legal problem is but in the perception, not just among the Haitians but among the communities in which the Haitians are a presence and in which the Haitians are involved. I would just like to repeat an anecdote about what happened to me last December.
I went to a reception. At the reception was Senator Carrie Meek and the director of the Urban League, and separately they told me that the black community was outraged at the inequity with which the Haitians were being treated in comparison to the way at that time the refugees from Nicaragua were being treated, and that it would only take a spark that would ignite the community to the kind of civil unrest that we shortly after witnessed during the Super Bowl weekend. What happened in Miami in early January could happen elsewhere under the same kind of duress.
I think, as I have said, it is a question of perception which is based on fairness. The Nicaraguans were permitted to enter the community. The Haitians were put in prison when they came in. That is not equality of treatment. The Haitians should be permitted to enter the community instead of remaining in Krome and other detention centers. I think that is one of the ways we can solve the problem.
The other way I think that is so apparently unfair is the process of interdiction on the high seas, where these people are interviewed for maybe 1 minute, maybe 5 minutes. It is just irrational that decisions about a person's whole life are rendered in 2, 3, 4, or 5 minutes. I think we will have to change that process.
So I would say that the two things we have to deal with is to be able to enter the community under the right kind of conditions and change the interdiction policy on the high seas. I also have one possible solution for those entering by air, and maybe it can be worked. We have this in relation to Canada, I think the Bahamas and maybe one or two other countries. It is that we could have a preclearance procedure in Haiti. I don't understand how we can permit people to come on the plane with fraudulent documents, and then when they get to Miami Airport we put them in jail. Why don't we have the same kind of procedure in Port-au-Prince or someplace and prevent this kind of inhuman process from being enforced. It is much better to tell them their documents are fraudulent in Haiti than to tell them they are fraudulent in Miami, if that is the choice.
I think that these are the kinds of situations that we have to deal with. Let them have a chance in the community, change the interdiction policy on the high seas, and establish some kind of a preclearance type of procedure to prevent the inhumaneness of the present system. Thank you very much.


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Mr. Morrison. Thank you very much.
[The prepared statement of Mr. Lehman follows:]
TESTIMONY OF HONORABLE WILLIAM LEHMAN SUBCOMMITTEE ON IMMIGRATION, REFUGEES, AND INTERNATIONAL LAW JUNE 8, 1989
Mr. Chairman, I first want to thank you for holding this hearing today and to commend you for your responsiveness. You had been elected chairman of this subcommittee for perhaps only a few days when I prevailed upon you to attend a meeting with representatives from Dade County to hear of their concerns regarding the treatment of Haitian refugees. We have all been impressed by the way you followed up on that meeting first by going to Miami yourself and now by holding this hearing -on how our immigration policies are applied to Haitians.
We all regret that our late colleague Claude Pepper is not here today to add his own powerful and eloquent plea for justice for Haitians who seek refuge in the United States. He was very much concerned about the treatment of Haitians and, as you know, sponsored legislation that he believed would help ensure due process for those interdicted at sea.
Mr. Chairman, those who come before you today want to see our laws applied in a just manner. There will be disagreements as to what constitutes just treatment. Justice can be harsh or it can be tempered with mercy and compassion. We must consider not only what is fair to the individual, but also to the community.
I first became involved in the plight of the Haitian refugees in 1976. At that time it was our policy to routinely deny asylum to Haitians fleeing Duvalier while welcoming all Cubans fleeing Castro. It was at this time I began hearing the term "economic refugee" being used. Attorneys who took up the cause of the Haitians were eventually able to win some legal victories, and the Refugee Act of 1980 at least gave refugees from right-wing regimes theoretically a better chance of gaining asylum. The Mariel Boatlift, which also occurred in 1980, caused a major immigration crisis. Large numbers of Haitians had been arriving in Florida at about the same time and the inequity of our policy towards them was impossible to ignore. Subsequent legislative efforts to cope with the problem of the Mariel Boatlift included provisions for Haitians as well. The category of Cuban-Haitian entrants was created by the Carter Administration. Haitians had achieved some measure of legitimacy.
The arrival of the Reagan Administration in 1981 signalled a change in our policy towards Haitians. Haitians were to be interdicted at sea and those who actually entered the U.S. were to be detained. The numbers of Haitians arriving in the U.S. subsequently decreased, but the flow was by no means stopped. In recent months, the numbers being interdicted or detained have gone up substantially.
Mr. Chairman, the inequities suffered by Haitians became more apparent as our leaders in the Dade County black community sought to focus attention on the problem. I think it is important for you to know that this issue was raised even before the unfortunate violence that occurred in Overtown and Liberty City earlier this year. There was a great deal of concern about the


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Haitians in the Krome Detention Center, and this concern turned to outrage when thousands of Nicaraguans arrived in Dade County and were met with offers of assistance rather than rejection and detention.
Whatever legal explanations can be given concerning the difference between deportables and excludables, they ring hollow when confronted with the reality of blacks being imprisoned and others being free to enter the community. What we are faced with may not be so much a legal problem but a moral and political problem. The law may indeed be color blind, but is its application?
As the subcommittee examines this problem, I believe that certain questions merit special attention: the continuing political unrest and human rights abuses in Haiti; the cursory nature of asylum interviews held at sea; and our detention policy towards Haitians.
The political situation in Haiti has deteriorated greatly even in the last few weeks. President Avril may have good intentions, but he clearly lacks the authority to control the right-wing elements that still wield considerable power of their own within the country. The legendary ton-ton macoutes still roam the countryside terrorizing at will. Earlier this year I questioned representatives of human rights organizations about conditions in Haiti during hearings before the Foreign Operations Appropriations Subcommittee. I was told that death squad activity had increased and that bodies of victims of political murders were frequently left in the streets for hours to frighten and intimidate others. There is no reliable system of justice to protect those who are victimized by political violence. The situation in Haiti is dangerous and chaotic.
The volatility of Haiti leads me to question the basis on which interviews are conducted when Haitians-are interdicted at sea. These are desperate people, as recent press reports have indicated. So far the Coast Guard has done an admirable job of preventing loss of life, but I fear there is a potential for great tragedy as Haitians increasingly resist U.S. Coast Guard efforts to board their vessels.
It is hard to believe that an accurate evaluation of a person's asylum claim can occur in an interview lasting a minute or less. As your subcommittee learned during the hearing held this Spring on our policy towards Nicaraguan asylum applicants, the advice provided by the State Department is often minimal and of little substantive help in adjudicating individual claims. The interview at sea may be just a preliminary step to determine frivolous claims, but it is crucial to the future of those who are apprehended. The interviewer should have complete and up-to-date information on conditions in Haiti, and we should also be sure that a reliable interpreter is being used. An idea that might be considered is accepting the presence of a representative from the United Nations High Commissioner for Refugees to observe the interviews at sea. If there is to be an interdiction policy, it must allow Haitians a fair opportunity to present their cases. Some would argue that a fair interdiction policy is a contradiction in terms. The burden of proof is on the Administration to show that that is not the case.


13
Oust as we have questions about the fairness of interdiction, we must also question the fairness of our detention policy. We must ensure that detention is not long-term, and we must guard against overcrowding. I understand that a number of women were transferred last month from Krome to Oakdale, Louisiana. Such transfers can cause additional hardship to detainees who may need access to attorneys and community support. We may need to reconsider releasing such persons into the community if some ties to the community can be established. In addition, inasmuch as most of those at Krome were apprehended at the airport because of fraudulent documents, I would support the establishment of some kind of preclearance procedure in Port-au-Prince so that INS could examine documents prior to boarding. It would be much more humane and less costly to stop persons from leaving Haiti with fraudulent documents than to subject them to detention.
Mr. Chairman, I am pleased that your subcommittee is meeting to examine this important issue, and I am sure that we will all learn a great deal today. I look forward to working with you in an effort to ensure justice for all those who seek asylum from persecution, regardless of their country of origin and regardless of color. Thank you for your concern and consideration.


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Mr. Morrison. Mr. Fauntroy.
STATEMENT OF HON. WALTER E. FAUNTROY, A DELEGATE IN CONGRESS FROM THE DISTRICT OF COLUMBIA
Mr. Fauntroy. Thank you so very much, Mr. Chairman. I have two reasons for being delighted to be here. The first is to commend you upon your chairmanship of this very important subcommittee, and I know, on the basis of my experience with you on the Banking, Finance and Urban Affairs Committee that the Judiciary Committee and the Congress are fortunate indeed to have you chairing this committee which deals with this very serious problem that we have in our region and certainly in the State of Florida.
I want to thank you as well for allowing me to testify with three giants in the Congress. To be here beside the chairman of the Foreign Affairs Committee of the House, who has given such great leadership on so many issues is a privilege, and, obviously, to be with Mr. Lehman and Mr. Smith of Texas, both of whom are working where the rubber hits the road in terms of the seriousness of the problem which we address here today. I want to thank you.
I have prepared testimony as well, some of which I want to share with you in particular because of the details that dramatize the need for action by this committee and by our administration. I, as the distinguished chairman indicated, am chairman of a bipartisan task force on Haiti that has been working for several years now to bring not only democratization there but economic revitalization that will enhance not only the lives of the people in Haiti but certainly in the United States, as we will find valuable, energetic, committed and dedicated trading partners in the future, I am convinced.
In the mid-1970's, Congresswoman Shirley Chisholm, you may recall, and I began to investigate the plight of increasing numbers of Haitian refugees who were fleeing in desperation from political repression and economic injustice in Haiti. Initially, the focus of our attention in the Congressional Black Caucus was on protecting the rights of these refugees under the Immigration and Naturalization Act, and specifically the Refugee Act of 1980. Investigation concerning the treatment of Haitian refugees revealed a pattern and practice of illegality and abuse based on a mixture of racial, ideological and class discrimination by the U.S. Government.
In 1979, as Haitian refugee issues became more visible, the Congressional Black Caucus Task Force on Haitian Refugees was created to address more effectively the Haitian refugee issue at the national policy level. In October 1981, Mr. Chairman, I was especially moved by the tragic drowning of 33 Haitian refugees just off the shore of Hillsboro Beach in Florida, and I acted with Congress-woman Chisholm to broaden the focus of our Congressional Black Caucus Task Force to include examining the situation in Haiti as well as instituting intensive public policy oversight concerning U.S. policy toward Haiti. This effort has involved intense scrutiny and many factfinding missions to Haiti.
I would like, therefore, to focus on conditions in Haiti at this point in my testimony. Since 1981 this has been the focus of the our bipartisan Congressional Task Force on Haiti and its predeces-


15
sor the Congressional Black Caucus Task Force. These conditions should be key in this subcommittee's deliberations as to whether the present treatment of Haitian refugees is lawful, fair, and in accord with the Refugee Act of 1980. I think that, based upon results, it is clear that there has been a generalized and functional presumption by the Immigration and Naturalization Service and the Department of State that Haitian refugees do not fall within the definition of the Refugee Act of 1980. The statistics demonstrate this. Since September 1981, when the Reagan administration commenced its Haitian migration interdiction operation, until February of this year, 18,498 Haitians on 281 boats had been interdicted by our U.S. Coast Guard. Of these thousands, Mr. Chairman, only five have been by Immigration and Naturalization officials to have a reasonable basis to establish a claim for asylum under the Refugee Act of 1980; 18,493 have been returned to Haiti, reflecting the generalized presumption that they are illegal economic migrants.
The use of such presumptions based on country of origin is improper within the terms of the Refugee Act of 1980, in my view. I also believe that such a presumption cannot be justified, given the injustice, lawlessness, and widespread of abuse of human rights which still plague the Haitian people.
Time does not permit me, Mr. Chairman, a full review of conditions in Haiti. Suffice it to say that Haiti remains a very dangerous place for its citizens. Haiti has yet to emerge from dictatorship and repression. There is no way to separate out the connection between the domination of the economy by a tiny elite, the resulting gross exploitation of the masses of Haitians, the entrenched corruption, the lack of governmental accountability, and the arbitrary nature of the terror used to intimidate the Haitian people who have demonstrated great courage in their pursuit of democracy and constitutional government.
On November 29, 1987, a day that will live on in infamy, the world watched in horror as thugs and elements of the Haitian military slaughtered and attacked Haitians who were attempting to vote in the aborted national election. Since that date Haiti has experienced a military selection process which, for a little over 4 months, placed a civilian face on a murderous military dictatorship. When this facade failed to win a return of U.S. assistance to the dictatorship, the military ended the transparent charade and took back the face of power. There followed in September 1988, a coup by General Avril with the now familiar promise of democratic reform, adherence to the 1987 Constitution that was so carefully drafted and magnificently ratified by the Haitian people. Since that time some progress has been made in the seating of a provisional electoral council and the restoration of a good part of the Constitution. Last month, my distinguished colleague George W. Crockett, who is Chair of the Subcommittee of Foreign Affairs on Western Hemisphere Affairs, and I sent members of our staff to Haiti in order to evaluate the current situation. I would like to submit at this point a copy of the staff report for the record, without objection, if it is all right.
Mr. Morrison. Without objection, it will be made a part of the record.


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[See app. 5, p. 210.]
Mr. Fauntroy. I think this report describes the situation quite accurately, and I respectfully recommend its use in evaluating the situation of Haitian refugees fleeing to our country.
Mr. Chairman, the current situation in Haiti remains extremely dangerous, indeed explosive, and is disintegrating to the point where there is no security for anyone. The coercive apparatus of the former Duvalier dictatorship remains intact and is well armed. It is available to retaliate and has done so against any Haiti citizen who may pursue his or her human rights. Gunfire is reported in many neighborhoods, and the climate is one of fear and uncertainty.
With these conditions in Haiti and under the requirements of the Refugee Act of 1980, it is simply wrong to continue a policy where the results indicate that we are continuing to make an incorrect blanket assumption that those fleeing from the injustice and insecurity of Haiti are all "economic migrants."
Mr. Chairman, we must institute policies and practices, establish structures, and find leadership within the INS and the Department of State that can provide an environment in which Haitian claims for asylum can securely be filed and adjudicated fairly, with genuine due process. The present policy dominated by the Haitian migrant interdiction operation has set a very bad and dangerous precedent of prejudgment and arbitrary adjudication. After almost 8 years, it is past time to correct this policy which in 1981 the Congressional Black Caucus termed a "flagrant example of both an ideologically and racially biased refugee and human rights policy."
Our recently departed colleague Congressman Claude Pepper introduced H.R. 811, legislation that would point our policy toward undocumented Haitian immigration in a better direction. Under the provisions of this legislation would be immigrants interdicted at sea would be given the same procedural asylum rights as those provided to immigrants who enter the United States by land.
Specifically, H.R. 811 would require that "in the case of an alien attempting to enter the United States who is apprehended in territorial waters of the United States by a member of the Coast Guard, such member shall provide for transport of the alien to a port of entry for an interview by an officer of the INS." While this bill does not address the due process rights of those interdicted on the high seas, it represents a start in ensuring that undocumented Haitians can apply for asylum in a secure environment.
While we work on formulating a policy toward Haiti that can better assist the Haitian people in their struggle for democracy, constitutional government, human rights, and economic justice, it is imperative, Mr. Chairman, that we reform our immigration and refugee policies to remove the taint of blanket presumptions that all undocumented Haitians are economic migrants. Given the situation in Haiti, it is clear to me that many more than 5 of 18,498 Haitians who have been interdicted could have established meritorious claims for asylum if our procedures had been fair and based on principles of due process.
Mr. Chairman, we must do better. I want to thank you for giving me an opportunity to make that point.


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Mr. Morrison. Thank you. And I thank you very much for your kind words about my chairmanship and I hope I will be able to live up to them.
Mr. Morrison. Mr. Smith.
STATEMENT OF HON. LAWRENCE J. SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Mr. Smith of Florida. Thank you very much, Mr. Chairman. It is a pleasure to be here today and to give testimony to this subcommittee. Of course, I am a member of the full committee and sat as a member of this subcommittee in both the 98th and the 99th Congresses, and I am very proud and happy to see you, one of my classmates and friend, as the chairman.
We certainly appreciate you calling this hearing to discuss the treatment by American officials of Haitians who are trying to enter the United States. This treatment has been called into greater question in the past 6 months because of the perceived favorable treatment being given to aliens seeking to enter the United States via our land borders. INS does not detain aliens picked up in Texas. Aliens interdicted on the high seas are returned home. No amount of legal explanations can eliminate the perception that the United States has a two-face policy, one for blacks who happen to come by water and another for nonblacks who happen to travel primarily over land. Some people in Florida see this policy as discriminatory: Some are allowed in while others are kept out. Other people in Florida see this policy as duplicitous: People are admitted regardless of the law.
Mr. Chairman, I blame the executive branch for the problems and the perceptions associated with these aliens and their treatment. That the law is easier to administer at sea than on land does not justify inconsistent enforcement policies. If the problem is the law, then the INS should ask that the law be clarified or amended; and I, serving on the Judiciary Committee, have yet to hear that from this administration. Since entering this House I have pointed out that immigration is the responsibility of the Federal Government, but that it has decided local impact. I have time and again told even this subcommittee certain parts of the country are being forced to assume the vast majority of the economic burden associated with this national policy. These regions did not ask for the burden. It is the result of history and geography. Yet our laws don't recognize these factors.
It is time that Congress develop a solution that provides funding for those areas suffering from the impact. But more importantly, we must develop a body of new or amended laws which bring our policy of immigration into one of fairness and logical treatment. These artificial rules because of Supreme Court rulings and expediency on the part of the administration are just no longer tolerable. Does one really have any more right to be accorded American principles of justice because they have put one foot on American soil as opposed to one who has been brought on a boat within 50 feet of the shore of America? Is it fair to incarcerate some illegal aliens and not others, while all such persons have a "to be determined" status?


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There are those who do not like the influx of refugees in this country, but even they I believe would dislike more the unequal application of due process that has always been the hallmark of the justice system in this country. And right now, unfortunately, there is unequal application of the existing laws. There is confusion. There is significant debate and dichotomy and diversity in and around the laws that we have complicated by Supreme Court rulings. I think it is time, Mr. Chairman, that once and for all we develop a set of laws and see to it that they are implemented by this administration fairly and honestly and equally, that would allow for the reality of what is now the situation. We have always viewed economic refugees as not being status capable. They have to go through the normal immigration process.
We now have a situation, however, where in my district alone I have the largest single population of Nicaraguan refugees, many illegal, merely because they came from Nicaragua. Now I don't have any reason to say to send them back. But neither are the economic refugees from Haiti to be denied the same right accorded to the Nicaraguans merely because Haiti has no land bridge with the United States. They may all, in terms of our existing laws, be illegal. But does that mean that some then are just shooed away as if their life and their safety and their tradition meant nothing, while others are accorded the right to stay here even while their status is being determined? And why are some put in jail when others are left out in society when it is acknowledged by the Federal Government that both are in fact in the same class of "status to be determined"? Is that fair? Is that due process? Is that the equal treatment under the law that this country has so prized and so much fought to defend? I don't think so.
And so this committee has really a unique, significant and difficult opportunity before it to correct a very modern current problem that does exist. It exists in fact for real people. The chairman of this committee was kind enough to come to south Florida and tour the Krome Detention Center and saw for himself what actually is there, and those are real people with real families who are incarcerated for no reason other than they are illegal aliens. And yet we have so many others who are not incarcerated and have exactly the same status at this moment. That is not a palatable situation for anyone that cares about this country and cares about the future that these people will have to look forward.
Mr. Chairman, I appreciate the opportunity. I appreciate the significance of the problem that you are going to have to deal with.
Finally, if I might, on a personal note, although all of the gentlemen at this table I believe are cosponsors, after this hearing on the immigration problems as we have outlined them I would certainly appreciate further consideration of H.R. 1173, which would make it easier for impacted regions to receive reimbursement for the unavoidable costs which are associated with the current immigration policy of this country. After all, while this is going on, the chairman is well aware that the people of south Florida and many other parts of this country are picking up almost all of the costs that are associated with this while it is a Federal problem, and that is wrong too.
Thank you, Mr. Chairman.


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Mr. Morrison. I would like to thank all four of you.
First, Mr. Smith, just to comment on your legislation, we are aware of it and we will try to take a look at it in the context of an overall review of the IRCA legislation and potential needed amendments. I point out, as you know better than I, that that fund that you created has never received any appropriated funds at all, and you might look to the gentleman on your right and urge him to speak to the chairman of his committee with respect to whether funds can be made available.
Mr. Smith of Florida. It would be nice to have the administration also request the funds, which they have never done.
Mr. Morrison. I certainly concur with that. The administration has a different trick up its sleeve, it appears, and I alert you to it if you aren't aware of it. The Senate has inserted in the supplemental appropriation a curious provision which says that entrants of Nicaraguan nationality shall be treated as refugees for the purpose of current funding impact assistance that exists.
Now, at first blush the representatives of south Florida might think this is a godsend since it would affect the formula for distribution of impact aid dramatically, and in favor of the situation in south Florida. But it raises enormous questions of what exactly is going on here as to, first of all, the discriminatory treatment between Nicaraguans and Salvadorans and other Central Americans who are actually here and who have entered in the same ambiguous status as those Nicaraguans and whether or not there is a plan afoot in the administration as we have seen hinted at during the Reagan administration to in some fashion provide wholesale legalization to Nicaraguan entrants while ignoring the plight of Haitians, Salvadorans, Guatemalans, Hondurans, and a whole host of other people who have made similar claims to status in the United States and whose claims are various as to whether or not they really have a right to be here.
So that our problem is not only that the administration is not requesting money for true immigration emergencies as the gentleman from Florida has been attempting to get them to do, but they appear to be pursuing a course of expanding the injustices, of differentiating nationalities one from another and dividing local communities one from another in selecting which particular nationalities will get relief and which particular nationalities will be treated in a different way.
So we are very sensitive here on the subcommittee to that, and I hope, really, to Mr. Lehman in particular, that you will be vigilant as to what is going on here when you go to conference either this week or next on that supplemental appropriation, to understand that something is afoot that at least this subcommittee has been given no briefing on and no notice, et cetera.
Mr. Fascell. Mr. Chairman.
Mr. Morrison. Does the chairman have a comment?
Mr. Fascell. An interesting point you have raised that occurs to me, if this subcommittee decides to get a legal brief on the issue as to what impact the language in the supplemental has in terms of statusI don't claim to be an immigration lawyer, or a lawyer anymore, but it occurs to me that if you by law change the status for


20
one purpose you put the mantle of color of status for another purpose on that individual.
I would like to therefore, if the committee is going to take a look at that seriously, I hope they would share that information with those of us who are struggling with the issue.
Mr. Morrison. We certainly will. We are in pursuit of and will be asking some questions of the Department of Justice and Department of State today to learn where this is going from and why it has arrived in the supplemental appropriation without even being shared on a consultative basis with the subcommittee of substantive jurisdiction over such legislation. But, of course, that is a familiar event for all of us who serve on authorizing committees. So we will see where we go.
The gentleman from Texas.
Mr. Smith of Texas. Thank you. I don't have any questions.
Mr. Morrison. Thank you very much for taking the time this morning to be with us.
Mr. Morrison. I would like to call our next panel, and ask the members to come forward and remain standing so they may be placed under oath.
Mr. Jim Buck, Deputy Commissioner, Immigration and Naturalization Service, Department of Justice; Alan Kreczko, Deputy Legal Adviser, the Department of State; Mr. Richard W. Aherne, Director, Office of Human Rights of the Department of State; Rear Adm. Walter T. Leland, Chief of the Office of Law Enforcement and Defense Operations, U.S. Coast Guard.
[Witnesses sworn.]
Mr. Morrison. For each of you, the written testimony that you have submitted will be made fully a part of the record, without objection, and I request that you would summarize your testimony, trying to adhere to the greatest extent possible to our 5-minute limitation. We do have two more panels of witnesses and I know we will have many questions that we wish to have you answer. We thank you all for being here today.
Mr. Buck, if you would proceed first.
STATEMENT OF JAMES L. BUCK, DEPUTY COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, ACCOMPANIED BY DELIA COMBS, ASSOCIATE COMMISSIONER, REFUGE, ASYLUM AND PAROLE, AND JOAN HIGGINS, ASSOCIATE COMMISSIONER, DETENTION AND DEPORTATION
Mr. Buck. Thank you, Mr. Chairman, and members of the subcommittee. I am pleased to appear before you today. However, in doing so, I must first note that the administration has not yet completed a high-level review of its policy with respect to exclusion and interdiction. I will submit a copy of the complete testimony, and in the interest of conserving the committee's hearing time I will briefly summarize those remarks.
The number of aliens who are attempting to enter the United States illegally appears to have subsided since 1987, but it does continue to be a problem. The Bush administration is committed to dealing effectively with this problem. Wishing to avoid another Mariel/Haitian boatlift situation, the Government instituted a firm


21
detention policy and interdiction program to deter boat arrivals of illegal aliens. The implementation of IRCA has set in place a system of employer sanctions which has also effectively reduced the magnet of illegal entries.
Recently, sizable numbers of Central Americans have attempted to abuse the U.S. asylum system with frivolous claims, seeking to fraudulently gain the ability to live and work in the United States This avenue of illegal immigration was blocked by a policy of interdiction, apprehension and detention in south Texas.
By statute, all excludable aliens are subject to detention during the pendency of their exclusion proceedings, and excludable aliens are not automatically eligible for release on bond. Release of the alien is considered on a case-by-case basis at the discretion of the local district director.
During the 1970's INS saw a pattern of unauthorized Haitian immigration to south Florida by boat. Their arrival coincided with the beginning of the Mariel boatlift from Cuba. While mass entry of Cubans ended in October 1980, the large migration of Haitians continued until 1981. The majority of the newly arrived Haitians filed asylum claims based on fear of persecution if they returned to Haiti. Most applicants were deemed not to have well-founded fear of persecution.
Prior to 1981, excludable aliens not considered a security risk were frequently granted parole into the United States while their cases were processed. In May 1981, administrative steps were taken to ensure that existing laws were firmly and fairly enforced. The Immigration and Naturalization Act authorizes that undocumented and otherwise excludable aliens attempting to come into the United States be detained until a hearing decides whether they legally can enter. This provision was more actively enforced after 1980. Before 1980, aliens were released into local communities, which created a serious burden on those communities, and many never returned for their hearings. The result was more illegal immigration.
The administration then began to detain undocumented and otherwise excludable aliens of all countries. Between January and November 1980, the number of Haitians arriving illegally ranged from 300 to 1,700 per month, exceeding that of illegal aliens of all other nationalities except Mexico. However, from November 1981 forward the number of illegal Haitian arrivals fell to less than 50 arrivals per month. Since 1981 the number of nonexcludable Haitians reaching the Florida coast and being detained has fluctuated. For instance, the years fiscal year 1983 through 1988 the numbers fluctuated from 735 per year up to 1,493. In the years fiscal year 1988October 1988 through February 1989, 1,097 detained aliens arrived. The majority have arrived by commercial airlines and often had fraudulent entry documents. The average stay in custody for Haitians is about 60 days and is consistent with other large populations of detainees such as Nicaraguans and El Salvadorans.
The alien migrant interdiction operation, previously called the Haitian migrant interdiction operation, was instituted as a result of a bilateral agreements between the Governments of Haiti and the United States. That is Executive Order 12324, dated September 29, 1981. The ordered suspension of entry of undocumented aliens


22
resulted on the high seas. I will be happy to describe the interdiction operation at some point if you would like.
The INS has with the cooperation with the Coast Guard taken steps to ensure the enforcement of the immigration laws. Since the interdiction operation began in 1981 more than 350 vessels carrying over 20,000 persons have been interdicted. Only a handful of the 20,000 were found to have a possible claim to persecution and were brought to the United States. All persons on vessels interdicted within territorial limits are brought to the United States and processed for exclusion under section 236 of the INA. These persons are detained pursuant to the law, of the INA, to await processing of an asylum claim or a decision in exclusion proceedings. The alien migration interdiction operation has been a success because it has saved an untold number of lives and prevented a substantial number of persons from illegally entering the United States.
The principal port of entry for most Haitians is Miami. During fiscal year 1987, 345 intending immigrants were intercepted, plus 38 were deemed ineligible for the transit without visa privilege. In fiscal year 1988 this number nearly doubled, up to 614 intercepts and 83 ineligible for transit without visa. Then midyear through fiscal year 1989, the numbers have surpassed the 1988 figures already. Those Haitians whose admissibility is questioned by an INS officer can request a hearing to make a claim for political asylum.
The problem with intending Haitian immigrants is serious and it is continuing to grow. The interdiction program is a viable and worthwhile deterrent. Cost of processing and detention would otherwise be immense, and a cost that the U.S. taxpayer could not afford.
In conclusion, I would say that in response to a very real need to reduce the number of aliens attempting to enter the United States illegally the Government has fairly and equitably initiated measures to deter illegal entry. Strengthening our detention policies and active involvement in the alien migrant interdiction operation have produced measurable results.
I would be happy to take any questions, Mr. Chairman.
Mr. Morrison. Thank you very much, Mr. Buck.
[The prepared statement of Mr. Buck follows:]


23
TMTZMOSY OF JMKfl L. BUCK DIPUTY 00MXIB8I0KIR, Xttfi BKP0R1 ID HOCBB BUBCOKXXTVIB IHXIOJUVTIOK, M7CQBBS AMD XNTIBKAVZCWAL LAW
Mr. Chairman and member* of the Subcommittee!
I am pleased to appear before you today However, in doing so, Z must first note that this Administration has not yet completed a high level review of its policy with respect to exclusion and interdiction.
The number of aliens attempting to enter the United States illegally appears to have subsided Bince 1997, but continues to be a problem. The Bush Administration is committed to dealing effectively with this problem, wishing to prevent repetition of the circumstances resulting from the Mariel and Haitian BoatliftB of 1980, the Government instituted a firm detention policy and interdiction program to deter boat arrivals of illegal aliens. The passage of the Immigration Reform and Control Act of 1986 (IRCA) and other measures have increased our ability to deter illegal immigration.
The Immigration Reform and Control Act of 1986 set in place a system of employer sanctions which has effectively reduced the magnet for illegal entries by imposing penalties on employers who hire illegal aliens. These sanctions have caused jobs to be


24
denied to those aliens without legal authorization to work in the United States. As result, a 40% reduction in apprehensions at
the border in three short years has been realixed.
Furthermore, some aliens fraudulently claim marriage to a United States citizen, in order to gain permanent residence. To address this problem, Congress passed and implemented strong measures in the Marriage Fraud Amendments of 1986. These measures have been effective in eliminating fraud in this area while keeping adjustments on the basis of marriage available to those qualified.
Most recently, sizable numbers of Central American asylum seekers have attempted to enter the United States, many of whom we believe are fleeing for economic reasons without showing a well-founded fear of persecution. This was stopped by a policy of interdiction, apprehension and detention in South Texas. Again, a challenge to America's immigration laws was met by resolve to sustain the integrity of our immigration system.
On several occasions, we have testified before this Subcommittee and other Congressional committees on the subject of detention of excludable aliens. All excludable aliens, regardless of their nationality, are subject to detention during the pendency of their exclusion proceedings.
3


25
Exoludable alien*, bob* of whom are without proper document* to enter the U.0., are not automatically eligible for releaee on bond. Release on parole of an alien in exclusion proceeding* i*
considered on a case-by-case basis, at the discretion of the District Director, in the jurisdiction where the alien is being held. Exceptions to detention are usually made where
humanitarian considerations dictate, as with minor children, pregnant women, or persons with a severe medical condition. Nationality is not a criterion in determining whether an alien is to be released.
EARLT HAiriAJ! MIGRATION
During the 1970'e, ins began to see a pattern of Haitian migration to South Florida by boat. Around 1979, a dramatic increase in the number of Haitian nationals arriving in the United States occurred. Their arrival overlapped with the beginning of the Mariel boatlift from Cuba. While the mass entry of Cubans ended in October 1980, the migration of large numbers of Haitians continued until 1981.
The majority of the newly arrived Haitians filed asylum claims based on fear of persecution if they were returned to Haiti. In the subsequent adjudication of their claims by Service District Directors and Immigration Judges (as well as review by the Department of State for the provision of advisory opinions), the
4


26
applicants war* deemed not to have a well-founded fear or persecution as required by the Refugee Act of 1980, for the granting of refugee status.
u.S. xhmiqratiom detention policy
Prior to 1981, those excludable aliens not considered a security risk were frequently paroled into the United States while their cases were processed. From November 1977 to May 1981, excludable Haitians were usually paroled to voluntary organizations and granted authorization to work.
In May 1981, as part of the Government's program to discourage illegal entry into the U.S., administrative steps were taken to ensure that existing laws were firmly and fairly enforced. Among those laws is one (Section 235(b) of the INA) which authorizes that undocumented and otherwise excludable aliens attempting to COffie into the United States be detained until it is decided, through an exclusion hearing, whether they legally can enter.
This provision, which enables the Service to stop illegal alien migration, was more actively enforced after 1980. Before i960, aliens were released into local communities, even though those communities were seriously burdened, and despite the fact that many who were released never returned for their hearings. Not surprisingly, all of this caused more illegal migration. To
3


27
correct this, tha Service began to detain undocumented and otherwise excludable aliens, as authorized by law. This was done even-handedly with aliens of all countries.
Between January and November 1981, the number of Haitians arriving illegally ranged from 306 to 1,717 per month. The number of illegal Haitians encountered by the Service exoseded the number of illegal aliens of all other nationalities except Mexican. However, from November 1931 forward, illegal arrivals fell to less than 50 arrivals per month. This reeulted from a combination of the firm detention policy and the stationing of a Coast Guard cutter to interdict those attempting to come by way of the windward Passage.
Since 1981, the number of known excludable Haitians reaching the Florida coast and being detained has fluctuated. The total number of detained Haitians has ranged froc 765 to 1,493 per year for fiscal years 1983 through 1988. in fiscal year 1989, we have again experienced an increase in arrivals by excludable Haitians. This time however, most are arriving via the Miami International Airport. Between October 1988 and February 1989, 1,097 Haitians were detained by INS. As of June 5, 1989, 387 Haitians were being held at the Krome detention facility. With the exception of a group arriving by boat on April 10, 1989, the majority have arrived by commercial airlines and often had in their possession fraudulent entry documents.
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Those aliens who remain In ins custody are In various stages of the hearing and appeal process. The average stay in custody for Haitians of 60 days is consistent with other large populations of detainees, such as Nicaraguans and salvadorans.
INS AND INTSRDICTIOH
Tne Alien Migrant Interdiction Operation (AMIO), previously called the Haitian Migrant Interdiction Operation (KMIO), was instituted as a result of a bilateral agreement between the Government of Haiti and the U.S. and Executive Order 12324, dated September 29, 1981. This Order authorized the suspension of \ entry of undocumented aliens from the high seas finding that the continuing migration by sea of large numbers of undocumented aliens into the U.S. was detrimental to the interests of the country. Since that date, the Immigration and Naturalization Service with the cooperation of the Coast Guard, has taken steps in accordance With this Order, to ensure the enforcement of our immigration laws while strictly observing our international obligations concerning those who are genuinely fleeing persecution in their homeland.
Since the Interdiction Operation began in Ootober 1981, more than 350 vassals oarryir.g over 20,000 persons have been interdicted, of that figure, only a handful of these pereone were found to
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have a possible claim of persecution and were brought to the U.S. to pursue their asylum claims before an Immigration Judge. During Fiscal Year 1988, 4,386 persons and 48 vessels were interdicted.
In the actual Operation, an assigned coast Guard cutter intercepts a vessel on the high seas which has usually sailed from the island comprising Haiti and the Dominican Republic in route to southeastern United States. The great majority of these vessels encountered are structurally unsound and lack proper navigational, safety, and medical equipment. Consequently, the interdiction is usually tantamount to a rescue at sea. Once the vessel is boarded and all persons transferred to the cutter, an Immigration Officer, who is specially trained and assisted by a Creole interpreter, individually asks all the persons the reason for departing their homeland, why they wish to go the U.S., and if they have any fear of returning to their country. Those who express a fear which might possibly amount to persecution are brought to the United States where they may pursue an application for asylum.
it should be clearly understood that the service is not adjudicating asylum clalmB on the high seas hut only malcing a preliminary determination as to whether an interdicted person may have a legitimate claim to political asylum that could be pursued once in the U.S. There are also those persons who are
8
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determined by the Coast Guard medical staff to be in need of
immediate medical attention and they ore evacuated to the United States by helicopter. Many of these persons have also filed for
asylum although we do not have any information on the outcome of these claims. All persons not brought to the U.S., along with the vessel they were on, If seaworthy, are returned by the Coast Guard to the country of embarxatlon.
All persons who are on vessels Interdicted within the three nautical miles of the U.S. coastline are brought to the united States and are processed for exclusion under section 336 of the Immigration and Nationality Act(INA), as amended. All persons brought to the United States as a result of the Interdiction Operation are detained pursuant to section 235(b) of the INA, as amended to await either the processing of an asylum claim or a decision in exclusion proceedings.
With a growing number of Haitians who are lawful permanent residents in the U.S., either writing or returning to Haiti and making known the opportunities that exist in this country, the incentive to risk everything and attempt to reach our shores grows stronger. This is equally true of other countries around the world, especially Central America. This factor coupled with the apparent loosening of Haitian government control over vessel departures from that country have been responsible for increased numbers of people using the high seas as an avenue to enter the
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United States illegally. This is evidenced by the increasing
number of interceptions during the past two years by the AMIO, particularly during the month of March 1989, when 16 vessels containing 1,400 persons were interdicted. The Alien Migrant Interdiction Operation is a success because it has saved an untold number of lives and prevented a substantial number of persons from illegally entering the United States.
inspections program
The principal port of entry for moat Haitians is Miami. During fiscal Year 1987, 345 intending immigrants were intercepted, and 38 were deemed ineligible (i.e. unacceptable risk) for the Transit Without Visa (TWOV) privilege. This TWOV category is for aliens who are in immediate and continuous transit through the U.S. to a third country. Aliens falling into this category must (1) have a confirmed flight to their onward destination, (2) be brought into the U.S. by a oarrier signatory to a TWOV agreement with the U.S., and; (3) be otherwise admissible into the U.S. In FY 1988, the numbers nearly doubled to 14 intercepts (178% increase) and 83 ineligible (218% increase) for TWOV. Mid-way through FY 1989, the numbers have already surpassed the 1988 figures,- 843 intercepts plus 129 TWOV inellgibleB, representing a projected 274% and 310% increase by years end, respectively. in addition, immigration officers
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processed 388 Haitians who arrived without documents aboard three private vessels which had eluded the Coast Guard.
Haitians whose admissibility is questioned by an INS Officer can exeroise their right to a hearing before an Immigration Judge where a olaim to political asylum oan be made.
We are of the opinion, and experience has shown, that the problem with intending immigrants from Haiti is serious and growing It is our belief that the interdiction program is a viable and worthwhile deterrent and that the costs of processing and detention would be immense were it not for this program.
CONCLUSION
in response to a very real need to reduce the number of aliens attempting to enter the u.s. illegally, the Government has fairly and equitably initiated measures to deter illegal entry. The congress and the INS have made some tough yet necessary decisions to maintain the Government's control over who may enter the United States. Strengthening our detention policies and active involvement in the Alien Migrant Interdiction Operation have produced measurable results, we are a nation of laws. Through the firm and fair enforcement of our immigration laws against those who would abuse them, we are able to maintain our nation's tradition as a nation of immigrants and a land of opportunity for all. ThanX you Mr. Chairman and I will be happy to take any questions from the Subcommittee at this time.


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Mr. Morrison. Mr. Kreczko.
STATEMENT OF ALAN J. KRECZKO, DEPUTY LEGAL ADVISER, DEPARTMENT OF STATE, ACCOMPANIED BY DAVID ZWEIFEL, DIRECTOR FOR CARIBBEAN AFFAIRS, AND LEON WEINTRAUB
Mr. Kreczko. Thank you, Mr. Chairman. I am accompanied by David Zweifel, from the American Regional Affairs Bureau of the State Department, and also have available representatives of the Refugee Programs and Human Rights Bureaus if that is necessary.
In light of the later panel of legal experts which you have scheduled, we have provided a detailed explanation of why we believe the program comports with our international obligations. I will just take a few minutes to summarize that.
The chief legal issue that has been raised concerning this pro-4 gram is whether the program is consistent with our obligations
under article 33 of the Refugee Convention. That article provides that refugees shall not be expelled or returned to a country where they would face persecution. This article, however, is inapplicable to the Haitian migration interdiction program.
First and foremost, the article only applies with respect to individuals who have entered U.S. territory. This is clear from the negotiating record of article 33 and is accepted by nearly all academic commentators and by the one judicial opinion that has addressed the issue. Since the interdiction and return program applies only beyond the U.S. territory there is no question of compliance with article 33 as a legal matter.
Some commentators have argued nonetheless that the obligation of nonrefoulement, or not returning individuals, has by virtue of customary international law become applicable even outside the territory of the States. This argument simply cannot be substantiated. The formation of customary international law requires a general and consistent practice of states based on a conclusion that this practice is required by international law. As is made clear in the testimony that I have submitted for the record, States have consistently refused to accept a legal obligation of nonrefoulement with respect to individuals who have not entered their territories.
Even though as a matter of law the obligation of nonrefoulement does not apply with respect to individuals outside of the United States, because of humanitarian considerations our program does in fact incorporate a requirement that individuals who claim refugee status not be returned to Haiti until that claim can be adjudicated. And I would stress that this goes beyond our strict legal obligation under the Refugee Convention. This requirement is implemented through the presence of INS officers on the interdicting Coast Guard vessels. Further, I would note that the agreements with Haiti concerning repatriation of Haitians was based on assurances that Haiti would not prosecute individuals other than traffickers for attempting to leave Haiti when those individuals were returned to Haiti.
In short, the United States does not have a legal obligation to give individuals interdicted on the high seas an opportunity to claim asylum; but, nevertheless, as a matter of policy, we do so.
Thank you, sir.
[The prepared statement of Mr. Kreczko follows:]


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Prepared Statement of Alan J. Kreczko, Deputy Legal Adviser, U.S. Department of State Mr. Chairman, and members of the subcommittee on Immigration, Refugees and International Law, I am pleased to be here to testify concerning the compatibility of the Haitian Migration Interdiction Program with international law. I am accompanied by Richard Aherne from the Bureau of Human Rights and Humanitarian Affairs, David zweifel from the American Regional Affairs Bureau and Richard Redmond from the Bureau for Refugee Programs.
The Haitian Migration Agreement and the INS guidelines for implementing the agreement are entirely consistent with international law, including the law of the sea and refugee law. I will touch on both aspects, with emphasis on refugee law, because that is the area in which some legal commentators have faulted the interdiction program.
The Haitian Migration Interdiction Program was initiated on the basis of an executive agreement between the United states and Haiti concluded on September 23, 1981, T.I.A.s. No. 10241. Under the agreement, Haiti permits the U.S. Coast Guard to board any Haitian flag vessel on the high seas or in Haitian territorial waters which the Coast Guard has reason to beiieve may be involved in the irregular carriage of passengers outbound from Haiti, to make inquiries concerning the status of those on board, to detain the vessel if it appears that an offense against United States immigration laws or appropriate Haitian laws has been or is being committed, and to return the vessel and trie persons on board to Haiti. The assent of Haiti


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to U.S. enforcement actions against Haitian vessels on the high seas and in Haitian territorial waters was necessary because otherwise such actions would violate customary international law codified in Article 6(1) of the Geneva Convention on the High Seas, April 29, 1958 U3 U.S.T. 2312; T.I.A.S. No. 5200) and article 92(1) of the 1982 U.N. Convention on the Law of the Sea, which generally provide for exclusive flag-State jurisdiction over vessels on the high seas, as well as violate Haitian sovereignty over its territorial sea.
The agreement also states that "Ihjaving regard to the international obligations mandatea in the Protocol Relating to the Status of Refugees done at New York 31 January 1967," the United States Government "does not intend to return to Haiti any Haitian migrants whom the United States authorities determine to qualify for refugee status." To implement this provision, guidelines were developed oirecting INS officers on board the Coast Guard interdiction vessels to monitor Coast Guard interviews of interdicted Haitians, and, in cases where indications of a claim to refugee status might arise, to conduct further interviews themselves. The guidelines further provide that if the INS interview suggests that a bona fide claim to refugee status may exist, the inoividual shall be brought to the United States so that he or she may apply for political asylum.


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Finally, it is worth noting.that, in the context of the agreement, Haiti provided assurances that it would not prosecute for illegal departure Haitians returned to Haiti who are not traffickers.
The provisions of the agreement and the INS implementing guidelines go well beyond what the United States is obligated to do under the U.N. Refugee Protocol. The obligation of non-refoulement set forth in Article 33 of the U.N. Convention Relation to the Status of Refugees (which is incorporated in the Protocol) extends only to persons who have gained entry into the territory of a Contracting State.
Article 33 provides:
"1. No contracting State shall expel or return ("refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom woula be threatened on account of his race, religion, nationality, membership of a social group or political opinion.
"2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."
While it might be tempting to read the words "expel* and "return" as applying to different categories of refugees --expel" to refugees in the contracting country, and "return" to


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refugees outside -- this reading is not tenable. The second paragraph of Article 33 makes clear that paragraph 1 applies only to persons actually in the territory of a State party when it makes an exception for an individual who is a 'danger to the security of the country in which he is' or "a danger to the community of that country.* Moreover, the negotiating history of the Convention demonstrates that the drafters of the Convention took deliberate measures to ensure that Article 33 of the Convention would not be interpreted to apply to persons outside their territory.
During the final negotiating session for the Convention, in July 1951, the delegates directly confronted the question of how the word "return" in Article 33 (which was then article 28) would be interpreted. At the session of July 11, the Swiss representative expressed concern that the Article would be read to "implly) the existence of two categories of refugees: refugees who were liable to be expelled, and those who were liable to be returned." He thought it essential that the negotiating States make clear that the word "return," like the word "expel," in fact "applied solely to refugees who had already entered a country, but were not yet resident there." This was consistent with the use of the French word refouler, which the Swiss representative noted "could not ... be applied to a refugee who had not yet entered the territory of a


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country." He made clear that his country's assent depended on being assured that Article 33 would not require a state "to allow large groups of persons claiming refugee status to cross its frontiers." The representative of France affirmatively agreed with this interpretation; no one disagreed. U.N. Doc. A/CONF.2/SR.16 at 6 (July 11, 1951). The limited meaning of the word "return" in Article 33 -- that it did not cover "the possibility of mass migrations across frontiers or of attempted mass migrations" was reaffirmed at the second and final reading of the draft Convention, on July 25, 1952, when the President of the Conference ruled that the interpretation should be placed on record since no objection had been expressed. U.N. Doc. A/CONF.2/SR.35, pages 21-22.
In short, the delegates who negotiated the Convention expressly precluded the application of Article 33 to the very situation involved in the Haitian Migration Interdiction Program -- the mass illegal migration of Haitians into the United States. Indeed, it is clear from the negotiating record that at least some countries would never have agreed to Article 33 had it been intended to impose obligations with respect to refugees outside their territory who were seeking entry. Numerous commentators have acknowledged that Article 33 applies only to refugees who have gained entry, not to those who are


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seeking entry. E.g., Robinson, Convention Relating to the Status of Refugees: A Commentary, at 163 (1953); Grahl-Madsen, The status of Refugees in International Law, ii at 94 (1972); Weis, The United Nations Declaration on Territorial Asylum, 7 Can. Y. Int'l L. 92, at 123-24 ( 1969).
The interpretation of Article 33 was also briefed extensively for the U.S. Court of Appeals for the D.C. Circuit in litigation challenging the interdiction program. Only one judge, Judge Harry Edwards, felt it necessary to reach this issue, but he ruled squarely that Article 33 did not apply:
". .it seems clear that the Haitian interdictees are not protected by the Protocol. The negotiating history of the Convention it incorporates leads inescapably to the conclusion that certain compromises were essential to agreement and that the ideal of unconditional asylum was diluted by the need for other practical guarantees."
Haitian Refugee Center v. Gracey, 809 F.2d 794, 841 (D.C. Cir. 1987) .
That Article 33 addresses only those refugees who have already entered a state's territory is confirmea by subsequent, unsuccessful, efforts to broaden the requirement not to expel or return refugees in one's territory to include a prohibition against rejection of refugees at the frontier. The international community in the United Nations Declaration on Territorial Asylum endorsed this more inclusive obligation as a


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goal to be sought, but not as an existing international obligation. It also made clear that cases of mass migration might provide an exception. G.A. Res. 2312, 22 U.N. GAOR, Supp. (No. 16) 81, U.N. Doc. A/6716 (1967). Article 3 of the Declaration provides in part:
'1. No person referred to in Article 1, para. 1 [a refugee], shall be subjected to measures such as rejection, at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State in which he may be subjected to persecution.'
"2. Exception may be made to the foregoing principle only for overriding reasons of national security or in order to safeguard the population as in the case of a mass influx of persons."
The debate preceding adoption of the resolution made clear that the declaration was not intended to propound legal norms, but to lay down broad humanitarian ana moral principles. Nor was the declaration meant to give rise to legal obligations or to affect existing international undertakings or national legislation. See Official Records of the General Assembly, Twenty-second Session, Annexes, agenda item 89, document A/6912. It was clearly understood that the Declaration's reference to rejection at the frontier, even as limited, went beyond the Convention's Article 33 obligation. See Weis, The United Nations Declaration on Territorial Asylum, 7 CAN. Y. B. INT'L L. 92, 123-124, 142 (1969).


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In the mid-1970s, the international community considered whether to go beyond the Declaration to draft a binding instrument incorporating under the precept of non-refoulement protection against rejection at the frontier. Significantly, the Conference of Plenipotentiaries on the Draft Convention on Territorial Asylum failed to adopt the Convention, and the various versions of the Draft Convention's provision on non-refoulement continued to treat separately the concepts of "rejection at the frontier" and "return" or "expulsion". See Elaboration of a Draft Convention on Territorial Asylum, Report of the Secretary-General, August 29, 1975, Doc. A/10177. In fact, at the insistence of the United States, an initial draft of the Convention distinguished between the mandatory obligation not to return or expel refugees who were in the territory of a contracting state and the considerably weaker requirement to use "best endeavors to ensure" refugees were not rejected at the frontier. See ibid; 1975 Digest of United States Practice in International Law at 156-158. These distinctions obviously would not have been drawn had it not been understood that the words "expel or return" in Article 33 of the Convention did not apply to refugees at the frontier.
Despite the evidence that countries have refused to accept a legal obligation of non-refoulement with respect to persons outside their territory or not to reject refugees at the


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frontier, some legal commentators assert that such an obligation has crystallized unaer customary international law. Often this alleged obligation is described as "temporary refuge," an obligation to accept asylum-seekers into one's territory. For a norm of customary international law to exist, however, there must be general and consistent practice of states followed by them from a sense of legal obligation. 1 Restatement of Foreign Relations (Third) S 102(2). Those who put forth this view do not seriously attempt to establish general and consistent state practice, let alone one followed out of a sense of legal obligation. Rather, they summon forth numerous non-legally-binding resolutions, recommendations, and self-referring statements of legal scholars as alleged proof of the illusory norm. In the worla of international law, saying that a principle is or should be customary international law does not make it so. Only States' practice and statements can make it so, and they are far from uniform in this area. In fact, the unsuccessful effort to conclude a multilateral convention on territorial asylum demonstrates aefinitively that States are not willing to take on this obligation.
I do not want to suggest by the above legal analysis that the Executive Branch ignorec humanitarian concerns in designing the interdiction program. That is demonstrably not the case. Although the U.S. Government was not legally obiigatea to do


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so, it decided to give Haitians interdicted by the Coast Guard on the high seas or in Haitian territorial waters an opportunity to express any fears they might have of returning to Haiti, and to afford persons with credible claims to refugee status an opportunity to apply for asylum in the United States. It also sought and received Haitian assurances that returned Haitians would not be prosecuted for their attempts to leave Haiti illegally.
My testimony can perhaps be summarized as saying that debates over the Haitian Migration Interdiction Program cannot legitimately be framed in terms of whether the program comports with international law: it does. The focus should be on the policy merits of the program, which this Administration wholeheartedly supports.
I would be glad to answer your questions on the international law basis for the program. My colleagues can answer questions in their various bailiwicks.


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Mr. Morrison. Before Admiral Leland speaks, are you aware of where Mr. Aherne is? Mr. Kreczko. I am sorry, sir?
Mr. Morrison. Are you aware of where Mr. Aherne is, the other person who was supposed to appear on behalf of the State Department?
Mr. Kreczko. Yes. Yes, I am, sir. He had to stay behind because of issues related to China. But we do have a person here from his bureau who can testify.
Mr. Morrison. But we have not received a written statement, as far as I know, with respect to the Office of Human Rights.
Mr. Weintraub. I am Leon Weintraub. I am the Regional Officer for Inter-American Affairs in the Bureau of Human Rights and Humanitarian Affairs.
Mr. Aherne was asked to work with Ambassador Schifter on affairs relating to China this morning.
Mr. Morrison. Well, would you please come forward and be placed under oath so you are available for questioning.
[Mr. Weintraub sworn.]
Mr. Morrison. Could you please introduce yourself again for the record?
Mr. Weintraub. I am Leon Weintraub, Regional Officer for Inter-American Affairs in the Bureau of Human Rights and Humanitarian Affairs.
Mr. Morrison. Could you just state it once again so that we make sure we pick it up, the reason that Mr. Aherne is not here this morning.
Mr. Weintraub. Mr. Aherne is not here because Ambassador Schifter, the Assistant Secretary, asked him to say and work with him on affairs relating to China this morning.
Mr. Morrison. Could you inform me why we don't have a written statement on behalf of the human rights position of the State Department on these questions?
Mr. Weintraub. I am sorry, I don't know at the moment.
Mr. Morrison. Well, I hope you are prepared to answer the committee's questions.
Mr. Weintraub. Yes, sir.
Mr. Morrison. Admiral Leland, thank you for being here. We look forward to your testimony.
STATEMENT OF REAR ADM. WALTER T. LELAND, CHIEF, OFFICE OF LAW ENFORCEMENT AND DEFENSE OPERATIONS, U.S. COAST GUARD
Admiral Leland. Thank you, Mr. Chairman.
The Coast Guard's migrant interdiction operations, which I might add are some of our most, or is one of our most taxing, as a result of the Presidential proclamation and executive order of September 29, 1981, suspending the entry of undocumented aliens from the high seas. The Coast Guard was tasked with enforcing the suspension of the entry of undocumented aliens and with the interdiction of certain vessels carrying such aliens.
Haiti is the only country with whom the United States has a migrant interdiction agreements. This agreements authorizes the


45
Coast Guard to board, inspect and determine the status of those on board private Haitian vessels. The agreements also gives the Coast Guard authority to return illegal Haitian migrants to Haiti subsequent to an interview by an INS agent.
Since the beginning of migrant interdiction operations in 1981 until the end of the second quarter, the Coast Guard has interdictedwell, I can update it now to the 4th of June, about 21,900 about 21,000, to round that offand returned about 19,890 Haitian migrants.
The Coast Guard migrant interdiction operations include a cutter patrolling the Windward Pass off the coast of Haiti and regular surveillance flights to that area. Other operations conducted off the coast of south Florida, called our northern AMIO patrols, were in response to congressional concerns back in about 1985 and are primarily based on intelligence.
All interdicted migrants are interviewed by INS agents prior to being returned to Haiti. The Coast Guard does not make status determinations of migrants interdicted at sea. If interviews cannot be conducted at sea, the migrants are turned over to INS agents in the United States. A Coast Guard liaison officer stationed in Port-au-Prince coordinates the return of all Haitian migrants to Haiti.
The Coast Guard migrant interdiction program is a humanitarian as well as a law enforcement mission. Due to the conditions under which migrant voyages are conducted, many migrants would have been loss at sea had they not been interdicted by the Coast Guard.
We will continue to interdict migrants of all nationalities who attempt to illegally pass into the United States by sea. We will ensure that our operations continue in a safe and effective manner and will include both care and compassion.
Thank you, sir.
Mr. Morrison. Thank you, Admiral.
[The prepared statement of Admiral Leland follows:]


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PREPARED STATEMENT OF REAR ADM. WALTER T. LELAND, CHIEF, OFFICE OF LAW ENFORCEMENT AND DEFENSE OPERATIONS, U.S COAST GUARD
GOOD MORNING MR. CHAIRMAN. I AM PLEASED TO MEET WITH YOU AND THE OTHER DISTINGUISHED MEMBERS OF THIS SUBCOMMITTEE TO DISCUSS THE COAST GUARD MIGRANT INTERDICTION PROGRAM.
COAST GUARD MIGRANT INTERDICTION OPERATIONS ARE A RESULT OF THE PRESIDENTIAL PROCLAMATION AND EXECUTIVE ORDER OF SEPTEMBER 29, 1981, WHICH SUSPENDED THE ENTRY OF UNDOCUMENTED ALIENS FROM THE HIGH SEAS. THE EXECUTIVE ORDER DIRECTED THE SECRETARY OF STATE TO ENTER INTO COOPERATIVE ARRANGEMENTS WITH APPROPRIATE FOREIGN GOVERNMENTS FOR THE PURPOSE OF PREVENTING ILLEGAL MIGRATION TO THE U.S. BY SEA. THE EXECUTIVE ORDER ALSO DIRECTED THE COAST GUARD TO ENFORCE THE SUSPENSION OF THE ENTRY OF UNDOCUMENTED ALIENS AND TO INTERDICT CERTAIN VESSELS CARRYING SUCH ALIENS. THOSE VESSELS INCLUDE VESSELS OF THE U.S., STATELESS VESSELS AND VESSELS OF NATIONS WITH WHOM THE U.S. HAS SPECIAL ARRANGEMENTS TO TAKE SUCH ACTIONS.
CURRENTLY, HAITI IS THE ONLY COUNTRY WITH WHOM THE U.S. HAS A MIGRANT INTERDICTION AGREEMENT. UNDER THIS AGREEMENT, WHICH WAS SIGNED ON SEPTEMBER 23, 1981, THE COAST GUARD IS AUTHORIZED TO BOARD, INSPECT AND DETERMINE THE STATUS OF THOSE ON BOARD
I
I PRIVATE HAITIAN VESSELS. THE COAST GUARD IS ALSO AUTHORIZED TO
RETURN TO HAITI THOSE INDIVIDUALS OUTSIDE U.S. TERRITORIAL WATERS


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WHO DO NOT QUALIFY FOR REFUGEE STATUS AND WHO ARE DETERMINED TO BE IN VIOLATION OF U.S. IMMIGRATION OR APPROPRIATE HAITIAN LAWS
THE COAST GUARD BEGAN CONDUCTING HAITIAN MIGRANT INTERDICTION OPERATIONS ON OCTOBER 9, 1981. AS OF THE END OF THE SECOND QUARTER OF FY 89, COAST GUARD MIGRANT INTERDICTION OPERATIONS HAVE RESULTED IN THE INTERDICTION OF 20,152 ILLEGAL HAITIAN MIGRANTS. 18,999 OF THOSE WERE REPATRIATED BY THE COAST GUARD.
MIGRANT INTERDICTION OPERATIONS INITIALLY INVOLVED ONE HIGH ENDURANCE CUTTER PATROLLING THE VICINITY OF THE WINDWARD PASSAGE OFF THE COAST OF HAITI AND ROUTINE SURVEILLANCE FLIGHTS IN THE SAME AREA. IN 1983, IN RESPONSE TO CONGRESSIONAL INTEREST AND CONCERN, MIGRANT INTERDICTION OPERATIONS WERE EXPANDED TO INCLUDE ALL THE WATERS OFF SOUTH FLORIDA AND MIGRANTS OF ALL NATIONALITIES. THE WINDWARD PASSAGE, HOWEVER, REMAINS THE PRIMARY AREA OF OPERATIONS. THE COAST GUARD ALSO MAINTAINS A LIAISON OFFICER IN PORT AU PRINCE, HAITI. THE RESPONSIBILITIES OF THE LIAISON OFFICER INCLUDE COORDINATING WITH THE HAITIAN GOVERNMENT THE REPATRIATION OF INTERDICTED HAITIAN MIGRANTS AND ENSURING THE RED CROSS IS NOTIFIED TO MEET THE RETURNED MIGRANTS AT THE PIER.
THE COAST GUARD DOES NOT MAKE DETERMINATIONS AS TO THE STATUS OF MIGRANTS ENCOUNTERED ON THE HIGH SEAS. ONLY IMMIGRATION AND NATURALIZATION (INS) AGENTS DETERMINE WHETHER OR


48
NOT MIGRANTS QUALIFY FOR REFUGEE STATUS OR ARE IN VIOLATION OF IMMIGRATION LAWS. ALL COAST GUARD CUTTERS ON DEDICATED MIGRANT INTERDICTION PATROLS CARRY AN INS AGENT AND AN INTERPRETER. INS AND COAST GUARD PERSONNEL ARE ALSO CO-LOCATED IN AN OFFICE IN MIAMI, FLORIDA, FOR INSTANT LIAISON BETWEEN THE AGENCIES. SITUATIONS INVOLVING ENCOUNTERS WITH MIGRANTS AT SEA BY CUTTERS NOT CARRYING INS AGENTS ARE COORDINATED THROUGH THIS OFFICE. WHERE POSSIBLE, INS AGENTS ARE TRANSPORTED TO THE SCENE TO DETERMINE THE STATUS OF MIGRANTS. IF IT IS NOT POSSIBLE TO DELIVER AN INS AGENT TO THE SCENE, THEN THE MIGRANTS ARE TURNED OVER TO AGENTS UPON ARRIVAL ON SHORE, IN THE U.S. THE COAST GUARD DOES NOT ATTEMPT TO REPATRIATE HAITIAN MIGRANTS THAT HAVE NOT BEEN INTERVIEWED BY AN INS AGENT, ARE WITHIN THE U.S. TERRITORIAL SEAS, OR HAVE MEDICAL CONDITIONS INCLUDING PREGNANCY, DEHYDRATION, OR OTHER APPARENT PHYSICAL AILMENTS OR INJURIES THAT CANNOT BE ADEQUATELY TREATED ON SCENE BY A COAST GUARD CORPSMAN.
THE COAST GUARD MIGRANT INTERDICTION OPERATION IS A HUMANITARIAN AS WELL AS A LAW ENFORCEMENT MISSION. MIGRANTS TAKE GREAT RISKS IN ATTEMPTS TO ENTER THE U.S. IN MOST CASES, MIGRANT VESSELS INTERDICTED AT SEA ARE OVERLOADED, UNSEAWORTHY, LACKING BASIC SAFETY EQUIPMENT AND ARE BEING OPERATED BY INEXPERIENCED SAILORS. A GREAT NUMBER OF MIGRANTS THAT HAVE BEEN RETURNED TO HAITI BY THE COAST GUARD WOULD MOST LIKELY HAVE PERISHED AT SEA HAD THEY NOT "BEEN INTERDICTED.


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THE COAST GUARD WILL CONTINUE TO INTERDICT MIGRANTS OF ALL NATIONALITIES WHO ATTEMPT TO ILLEGALLY PASS INTO THE UNITED STATES BY SEA. EACH INDIVIDUAL WILL BE TREATED WITH PROPER RESPECT AND CARE. THE SAFETY OF INDIVIDUALS WILL ALWAYS BE OF CONCERN, WHETHER THEY ARE FOREIGN NATIONALS OR U.S. GOVERNMENT PERSONNEL. THE COAST GUARD WILL ENSURE THAT THIS OPERATION CONTINUES IN A SAFE AND EFFECTIVE MANNER.
THANK YOU MR. CHAIRMAN. I WILL BE PLEASED TO ANSWER ANY QUESTIONS.


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Mr. Morrison. Mr. Buck, first, before we turn to the specifics of the situation with respect to Haitians, I would like to ask you some questions about the recent directive from the Attorney General to Commissioner Nelson regarding the treatment of Chinese nationals in the United States.
First, I would like to note for the record that, although a press release was issued on Tuesday, June 6, 1989, and a letter was sent on June 6, 1989, staff of this subcommittee had to go to a private advocacy organization in order to get this piece of paper. And, you know, when the DOD lets a contract for $100,000 in my district, I get a phone call and a piece of paper before it is publicly released, and I find it rather surprising that we have extended the stay of over 300,000 Chinese nationals in the United States by executive action and there wasn't as much as a peep out of anyone in the executive branch to the staff or at least to this member of the subcommittee.
And I wonder, perhaps, if you can explain what policy that is in this kinder and gentler administration that doesn't want to at least keep the committee of jurisdiction informed of what is going on?
Mr. Buck. Mr. Chairman, I can assure you that the policy is to keep you early and immediately briefed on any changes or any kind of actions that are taking place within INS, and I can only apologize that you were not given immediate briefing on it. We will make note of that and certainly endeavor to do that in the future. There is no reason why you should not have been.
The actual wire making the change effecting the order of the AG was only executed this morning, so I would suspect probably there is some communication en route to you at this time. But we will make sure that it is en route to you and the other members of the committee.
Mr. Morrison. Now, I would, without objection, like to place in the record the press release dated June 6, 1989, from the Department of Justice and the letter of June 6, 1989, from Attorney General Thornburgh to Commissioner Nelson.
[The press release follows:]


51
for immediate release AS
tuesday, tome (., 1989 202-633-2307
(tdd) 202-766-5731
vashiSgtok Attorney General Dick Thornburgh today directed the Itunlgrefciori and Naturalization Service to extend for up to one year the visas of citizens of to* Peoples' Republic of China currently staying in the United States.
"As result of this action, Chinese citizens who want to remain in the United States will not face deportation if there vieaa expire before June 6, 1990," Thornburgh said.
"I have taken thic action after consultation with the White House and Secretary of State Baker in light of the uncertainly of current oonditionc in China."
According to INS there are son* 73,000 Chinese students attending United States cohools and nearly 220,000 Chinese visitors or business p*r*6n are in the country.
A copy of the Attorney Coneral's directive to Commissioner Nelson is Attached.
MM
B8-170


52
dire of tf|> JMfortifg <5ifral Wahlngton,B.(t.2D53D ..
June 6, 1989
i
Man C. Nelson
Commissioner
Immigration Naturalisation Service Washington, D.c 20SJ8
Dear commissioner Nelcon:
The President has requested that the Dapartnent of justice enfcure that nationals of the People'c Republic of China ("ppc") and their dependents whose visas have or will expire within the coming year will not be deported to the PRC against their wishes.
In implementation of this foreign policy decision ot the United states, I hereby direct you, as cosmlssioner, Immigration and Naturalization Service, to take all steps necessary to derer enforcing the departure, until further notice, of all nationals ot the PRC and their dependents who were in the United States on June 6, 1989,
thia directive shall not apply to!
(1) those PRC nationals who have not evidenced an unwillingness to return to the PRC;
(2) those PRC nationals who are residents of a third country;
(3) those PRC nationals who have been convicted of any criminal act in the United States I or
<4) those PRC nationals arriving in the United States after June 1989.
Thia directive shall continue In affect until June 5. 1990, or until further notice. ^


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Mr. Morrison. Are you familiar with these documents? Mr. Buck. Yes, Mr. Chairman, I am.
Mr. Morrison. Now I take it that this is a grant of extended voluntary departure that has been taken here. Is that the legal context in which this has been done?
Mr. Buck. Actually, I think the legal terminology, as it is, is deferred departure.
Mr. Morrison. It is deferred departure.
Mr. Buck. The term extended voluntary departure as I have been learning is kind of a misnomer and really doesn't reflect anything accurate in terms of law. The correct terminology, as it is, is deferred departure, and the essence of the directive is that those persons from the continent of China will be given deferred departure for 1 year.
Mr. Morrison. And do they have to take any action to avail themselves of this benefit?
Mr. Buck. If they are in the country now and underwith proper documents and visas, and that visa expires, they will have to go to our office and notify our office that they are here and get an extension.
Mr. Morrison. In other words, the only individuals who will gain this benefit are those who get an explicit extension of their visa in their passport?
Mr. Buck. Well, as I understand the implementation process, no one from the Republic of China will be deported.
Mr. Morrison. Regardless of whether they do that?
Mr. Buck. Yes. Will not be deported until the expiration of this period of time, which will be June 6, 1990.
Mr. Morrison. So they don't have to go and get their visa extended?
Mr. Buck. Do they have to in every case?
This is Delia Combs, Assistant Commissioner for Refugee, Asylum and Parole.
Mr. Morrison. Well, perhaps you would introduce yourself for the record, and if you know the answer, please answer.
Ms. Combs. I am Delia Combs. I am the Assistant Commissioner of INS for Refugee, Asylum and Parole and the Haitian migrant interdiction operation.
While no one from the People's Republic of China would be deported whether or not or not they renewthey came in for an extension of their status, they need something to be walking around the United States with indicating that they are here legally. If their B-2 visa, B-2 visitor's visa expires, they would want something else to show for whatever reason. In addition to that, if they want employment authorization, they would need to come to our office. Many of them, of course, will need to work if they are going to be here for--
Mr. Morrison. Well, let's just get into that a minute. They will not beif they are picked up without a visa extension, they will not be deported?
Ms. Combs. That is correct.
Mr. Morrison. Will they be detained?
Ms. Combs. No. My guess is that they would--


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Mr. Morrison. Well, I don't want your guess. I want to know what the policy is.
Ms. Combs. The policy would be that they would be advised that they would need to go to an immigration office to get--
Mr. Morrison. So they will not be detained?
Ms. Combs. Under normal circumstancesno. If they are in the commission of a criminal act or something--
Mr. Morrison. And they won't need to post bond in order to be released from having been confronted without proper authorization?
Ms. Combs. No.
Mr. Morrison. So they don't have any real requirement to do anything but just be here? In other words, they are here and they are not subject to detention for failure to comply with the immigration laws?
Ms. Combs. That is correct.
Mr. Morrison. However, this action does not, as I understand it from Mr. Buck's statement, grant them any status but is a decision not to enforce the immigration laws against them. Isn't that right?
Ms. Combs. Yes.
Mr. Morrison. Now you have spoke of work authorization. The Attorney General's letter says nothing about work authorization. Is there a plan for granting work authorization for these individuals? Either one of you.
Ms. Combs. As the wire only went to the field this morning, I hope I am not misstating any of the technical issues that I have perhaps not been in on discussions of. People who are being allowed to stay in the country under color of law or with an extension of their visa, many, of course, will have to work. This can be done on a case-by-case basis so that those who need work authorization can be granted work authorization to stay in the country. That has been the case with any deferred departure group we have had in the past. I see no reason that that would be different, but I am not fully informed.
Mr. Morrison. As I understand the numbers, there are approximately 73,000 Chinese students here on, primarily, J visas, and that there are some 250,000 here on various forms of visitor visas. Are my numbers approximately right?
Ms. Combs. Yes.
Mr. Morrison. Visitors came here without the expectation that they would be allowed to be gainfully employed within the United States. At what point are they going to be issued work authorizations? What are the conditions under which they will be granted the right to work in the United States?
Ms. Combs. Until their visitor visa expires, at which time they would go out of status and be illegally in the United States. They would not get work authorization because they would not need to come to the INS until their status was about to expire. At that point we would review their need for a work authorization. If they came in before their visa expires, assuming they are here on a V-2 visitor's visa, we would then look at their case. If they have enough money to stay the 3 more weeks before their visitor s visa expires, we would probably not date their work authorization until that point. But that could be very, very case-by-case.


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Mr. Morrison. So it would be fair to say that we now have 325,000 individuals who will, if they need to work in order to support themselves, be entitled to work in the United States, even though they entered as students or they entered as visitors or as business visitors?
Ms. Combs. A number of the 300,000 who are in the United States, or the 375,000, will not go out of status at the same time.
Mr. Morrison. Yes, but you didn't say that. You said if they came in before they went outobviously, visitors may have a 6-month visa but they are unlikely to be planning to stay 6 months. They probably came for 1 week or 1 month and then were planning to go home, and they are likely to run out of money after 1 week or 1 month. So the 6 months is kind of artificial. Most people get longer term visas for visits than they actually use.
And I understood you to say that these individuals would be on a case-by-case basis of humanitarian concern and would be granted work authorizations if they needed to support themselves. And so on some schedule, unless these people leave the country, for the next year they can come and expect to get work authorization. No?
Ms. Combs. A student who is a freshman in college has a 4-year J visa. That student will not be eligible for deferred departure or work authorization until that J visa is ready to expire. So that person is not going to come to our attention for 4 years.
Mr. Morrison. How about the other 250,000 though?
Ms. Combs. Again, it is a case-by-case basis. I am sure we can think of all kinds of examples that I cannot give you answers to at this particular time. However, not all 375,000 are going to be eligible for deferred departure because they don't need to be. Nor do they all need blanket employment authorization until we have seen what the particulars are of their individual cases.
Mr. Morrison. I am going to have some more questions on this. But I have far exceeded my time so, Mr. Smith, go ahead.
Mr. Smith of Texas. Let me suggest to you all before I go into my questions that you might consider it as a part of your answer looking at the big picture, which is that we have an extraordinary situation in China today, perhaps even unique, that we have not seen before ever. And the administration I feel is entirely within its rights to grant extraordinary privileges to individuals who are here from China right now. I might say to you, despite the exceptional nature of the administration's policy in regard to the Chinese individuals who are here, that is not unusual. This committee, probably every member of this committee has been in favor of doing the same kind of preferential treatment, for instance, for immigrants from the Soviet Union for similar and different reasons at the same time.
So I wouldn't be defensive about saying that this is a unique situation that requires extraordinary kinds of remedies. Certainly none of us can accuse you of breaking the rules since we have all endorsed breaking the rules for Soviet immigrants as well in similar situations.
Mr. Buck, let me start with you, if I may, and thank you first of all for your testimony. I think you have responded very well to a lot of the criticisms that we heard earlier at the hearing today, and I appreciate the response by the Department of Justice.


56
Before I get to some other questions I, first of all, want to get a better picture of the extent of the problem. You have testified about Haitians who come in via the airports. Admiral Leland has talked about the 21,000 that are coming in by boats. What is the total figure of Haitians, say, in 1989, who have attempted to gain entry to the United States?
Mr. Buck. Mr. Smith, I don't believe I have the exact numbers. I do have through May 13, 1989: 38 vessels interdicted; aliens interdicted, 3,659, of those 3,655 were Haitians for that fiscal period of time.
Mr. Smith of Texas. Now, that 3,000 is in addition to the 21,000 mentioned by Admiral Leland? Admiral Leland. No, sir.
Mr. Buck. No, the twenty is inclusive, sir. I included them.
Mr. Smith of Texas. Inclusive. OK. The vast majority of whom have been detained; is that correct?
Mr. Buck. No. The vast the majorityI believe I would be correct in saying the vast majority of those people who are interdicted at sea would have been returned home. Only those who profess a claim of fear of persecution if they be returned would be brought to the United States.
Mr. Smith of Texas. I understand. And are the numbers generally increasing or decreasing?
Mr. Buck. The numbers are increasing.
Mr. Smith of Texas. They are increasing. OK.
Both you, Mr. Buck, and Admiral Leland mentioned the 1981 agreements that we have with the government of Haiti. As I understand both of your testimonies, the United States even by considering to give refugee status to those individuals who are arriving either at the airports or on the boats is going beyond what is required. In other words, the agreements with Haiti says everybody can be returned. They are not going to prosecute the individuals who are returned. The United States by considering some individuals for refugee status is really going beyond the agreements.
Mr. Buck. That is correct.
Mr. Smith of Texas. Is that a correct statement? Mr. Buck. Yes, that is correct.
Mr. Smith of Texas. Let me go to a couple of other questions. Excuse me?
Mr. Buck. My colleague could like to comment also.
Mr. Kreczko. Congressman, the agreements with Haiti incorporated in it a statement that we would not return to Haiti individuals who claimed asylum. Now that agreements only applies on the high seas and in Haitian territorial waters. In those areas we have no obligation, no international obligation to give any asylum right. When an individual gets to the United States, say at our airports, then we do have an international obligation to process--
Mr. Smith of Texas. So there is a distinction there. OK. Thank you.
I don't know who would be the better person to answer, Mr. Buck or, perhaps, Admiral Leland, but there was an accusation made earlier today about Haitian boat people being treated differently from other individuals, being discriminated against and so forth. Are individuals from other countries of national origin given


57
favorable treatment, more favorable treatment or unfavorable treatment compared to Haitians?
Mr. Buck. No, they are not, Congressman. The Immigration Service I think has a tough job administering some very complex law, and this issue of the difference between deportability and ex-cludability is a very thorny one. As the law states, those people who are interdicted on the high seas under the interdiction program, it is very clearly stated methodology whereby they are processed. The accusation that they are interviewed at sea on a ship is totally incorrect. They are not. The adjudication process does not take theretake place there. It is a matter of the immigration officerI might say we have four immigration officer and four interpreters in Miami, stationed there permanently to work exclusively with the Coast Guard. These are four of the most well-informed, educated people concerning the Haitian situation as you will find anywhere in the country, and that is all they do is work strictly with the Haitians on this program.
They do a preliminary interview on the boat, on the ship, and at that point determine if this person has a fear of persecution, that person is brought to the United States. But as the numbers show, by and large, most people say they are coming to the United States to get a job or a better place to live or a better lifestyle. It is a matter of economic refugees, rather than political refugees.
Mr. Smith of Texas. Thank you. Mr. Chairman, I will return to my questions after my colleague from Florida has finished.
Mr. Morrison. The gentleman from Florida, Mr. McCollum.
Mr. McCollum. Thank you very much, Mr. Chairman.
Some of the witnesses coming later today have interesting observations to make, and I would like to give you, particularly Mr. Buck, a chance to comment on some of these so we can have a little bit better background.
One of the statistics given to us by one of these witnesses is that since 1981 more than 20,000 Haitians have been interdicted off the Florida coast. Yet, in March 1989 alone 1,535 Haitians and 17 vessels were stopped, representing the largest monthly total in this policy's 8-year history. Is that true?
Mr. Buck. I am not sure if the numbers are exactly correct. We could check them for you. But there is a large numberthere have been a large number of interdictions over the last several years and it is still a high number.
Do you have any more--
Admiral Leland. I have the figure for March, and it is 1,535 that had been interdicted. Mr. McCollum. So it is correct? Admiral Leland. That is correct. Mr. McCollum. Would the 17 vessels be correct? Admiral Leland. Yes, sir.
Mr. McCollum. Now that is being cited as saying that we are seeing actually a substantial increase in the number of Haitians this year, and by vessels, and that therefore the policy on interdiction isn't working and the deterrent of detention is not working. Do you have a thought about that?
Admiral Leland. Well, I would only suggest to you, sir, that I think we are mixing apples and oranges here. This is not a deten-


58
tion policy. We have had large months in the past. There was a August 1986, where there were 1,248 Haitians interdicted. So that this is to some degree cyclical. It may be driven by the economic or political situation in the country. It is hard to say.
I can supply you, or Mr. Buck can supply you or your staff with information and you may make whatever correlations you choose. But I don't think that we set this up as a deterrent to the Haitians as much as we have in an effort the Presidential proclamation was to control access to our borders. To that degree, we are performing that mission, and with this special arrangement we have returned these people to Haiti, not incarcerated them. We have just kept them on the vessel and proceeded back to Port-au-Prince where they are repatriated.
Mr. McCollum. Well, Mr. Buck, your testimony seems to imply that the idea of detention came about and the change in policy in 1981 because of the flood of Haitians coming in here, and that is why the agreements was signed in the first place with the Haitian Government to try to discourage people from doing this and coming over here, was it not, in part at least?
Mr. Buck. I think that I would agree with your statement. The more the numbers come, the more pervasive the problem is the more pointed the action has to be I guess I could say. We have maintained the detention policy because as the law I believe states, the statute says those who come in under excludability shall be detained while their application for asylum is being adjudicated or while their right to be here is being determined.
I think it is important to look at this issue, when we talk about the Haitians to not lose sight of the larger picture. As was noted earlier by the Congressman who spoke before this group, at no time in history has peoples from around the world flooded to the shores of this country. We are not only dealing with the Haitians. We are dealing with the Central Americans, with the Russians, with Afghans, with the people from the African nations, from the Oriental nations. We have millions of people who are wanting to come here every year. Because Central Americans and Haitians are close to us they have an easier chance of getting here. And I would like for us not to lose sight of the fact that Haitians is only part of the total immigration problem that we are having to deal with.
In terms of how they are treated, I can emphatically say that I cannot see any discrimination whatsoever. None.
Mr. McCollum. Well, my point about this is not to try to berate you in any way. In fact, I strongly agree with the idea that we have to discourage people from coming here for economic reasons. I very strongly agree with that. And I think that what was happening in Florida prior to this policy being adopted was that you had a lot of people in Haiti who just thought that they could get here and escape the poverty that is there, and then they were going come. And they were coming. They saw what happened with the Mariel boatlift and so on.
Mr. Buck. I agree with you. And what we would like to see happen is for people from all countries, Haiti included, to use the legal process. We have a fully staffed Embassy in Haiti. The process is for anyone who feels that they are being persecuted in that


59
country to go to our Embassy, to file for asylum in that embassy, get the proper clearance, proper documentation, and come to this country legally.
Mr. McCollum. And I would agree with that too, Mr. Buck. But let me go back to this point that the reason I raised the statistics, and there is another one in here. The witness says the total number of Haitians interdicted in 1988 was 33 percent higher than 1987. I am concerned about whether the policy is working, whether we are really discouraging people from going or whether now all of a sudden they are coming anyway through the airports or whatever means. And that disturbs me a good deal.
So that is a point you really don't, I guess, have a real solid answer to that. But it does bother me.
Admiral Leland. Well, sir, I would say that the Haitian migration, the exodus, responds to a variety of stimuli. One may be a rumor which was passed at about that time when I guess there was something that went out over the radio that indicated that if anyone made it, or the Haitians made it to Florida during the month of March that they might very well get to stay. So this can be attributed to one of the reasons why that was a particularly heavy month.
But, again, we don't know this for certain. We have had other heavy months.
Mr. McCollum. Well, I appreciate it, Admiral. And again, the other statistic I just gave though was also somewhat alarming. If 1988 was 33 percent higher than 1987, maybe 1989 is going to be even higher. And we have the testimony Mr. Buck gave that they are now using the airports even more than the vessels, although the vessel question disturbs me. It seems to me that this is a problem that is increasing and we don't know the complete solution.
On this turn, just one last question on an unrelated issue but the same idea about discrimination, Mr. Buck. In one of the witness' statements there is the representation that your figures reveal that at Krome Detention Center between September 1, 1988, and November 30, 1988, of the 165 Cubans at Krome, 156 were paroled. By contrast, of the 534 Haitians at Krome, 33 were paroled. And the implication, the witness is going to tell us, is that there is discrimination. That you are paroling Cubans and you are not paroling Haitians.
You probably don't know the answer off the top of your head, but I would certainly like for you to check that out. That is just a couple of months' period in 1 year, but this committee, and I particularly, would be interested to know if that is consistently true. Is it true, in the first place? They are citing figures, supposedly. And, second, if it is true, is that an exception that just happened to happen then or is that the kind of ratio we are seeing all the time in terms of the release? And if so, is there an explanation for that.
Mr. Buck. What I would like to do, if I may, Congressman, is to respond to you in writing and also provide the same response to the other members of the committee after I have had a chance to look at it.
The numbers, I think we have to look at, again, the total picture. If you look at Miami, you will see that there is a larger number of Haitians in Krome. If you look at Port Isabel, you will find there is


/
60
a higher level of Central Americans there. If you look in Seattle, if you may find a higher level of Orientals. If you look in New York, you may find a higherit varies by port to port what nationality will be there and each case has to be decided on its own. A particular month you may have seen a high number of one nationality and a low number of another nationality. It depends on the individual situation. Each case is decided individually. But we can check and see if there is some--
Mr. McCollum. I realize there may be a rational explanation for all of this, but I am very concerned. I am very much in favor of discouraging people from coming for economic reasons. As you know, I am in favor of a summary exclusion process and have proposed legislation to do that, to speed up this whole process for those so they don't stay as long, and if they don't have a claim they shouldn't be here.
But, on the other hand, if they are in the detention, I think that regardless they ought to be treated equally. There shouldn't be any distinction. Now there may not be any but the implication of witnesses coming after you is that there is, and I just wanted to give you an example of that and the type of thing that I think the Service is going to have to respond to for this committee, for my satisfaction as well as for other members.
Mr. Buck. Let me give you one other example, then, of how I think we can show that there is no discrimination. In Krome, where most of the Haitians are processed because they come into south Florida, the average number of detention days is approximately 60. The average number of detention days for a Nicaraguan in Post Isabel, for instance, is I think 72.3 days. So there is no disparity between how they are processed. It would depend ontheir length of stay will depend on whether or not they file a number of appeals on their application, if they go the length of due process that is afforded them. It has to be looked at on a case-by-case basis.
Mr. McCollum. Thank you. Thank you, Mr. Chairman,
Mr. Morrison. Let me just follow up on the gentleman's question because I think you didn't quite focus in on it. There are certainly different nationalities that present themselves at different ports of entry of entry and different border locations and that gives rise to disparate populations around the country in different detention centers, at least initially, although sometimes people are transported to other parts of the country.
But the question is why is it that Cubans find it easier to be paroled out of Krome than Haitians? That is the statistic that was presented to you. And you only have to go to Krome to find out who is there and who is not there, and on an anecdotal basis who is there is black and who is not there is Hispanic. And that is really the issue that the local community has seen and observed and brought forward to us as the complaint.
And really the question is why is itif it is not discriminatory treatmentthat Cubans get paroled out of Krome more easily than Haitians?
Mr. Buck. Mr. Chairman, I will refer toI think June 7 is the most recent figures I have seen, and that date I think we had 609 detainees in Krome and about 350 plus or minus were Haitians, the test were of other nationalities, predominantly Hispanic.


61
Again, the high percentage of population in Krome is because that is where they come in. We do transfer some to other locations when the facility becomes overcrowded. But, if you look in Port Isabel, for instance, you will find 90 percent of the people there are Hispanic, with only I think seven Haitians in Port Isabel. So we don'twe can't look at a single location and draw conclusions from the population.
Mr. Morrison. I understand that. I still want to come back to really what I think the gentleman's question was, and either the answer is you don't know why it is that the Cubans get paroled more easily, that the testimony we are going to receive later is incorrect for some reason or, number two, they get outand you know what that reason is. But that is really the question.
Mr. Buck. Well, there is a another factor as well. It may be that a group of one nationality coming forth applying for asylum has a good, well-founded basis for fear of persecution. Another group of nationality in that same facility at the same time just simply may not have a well-founded fear of persecution. Each case has to be looked at individually.
Mr. Morrison. Are you telling us that the Cubans are being paroled out because they are going to be granted asylum?
Mr. Buck. No. I am saying that the only way we can tell you, Congressman, exactly what is going on is to look at each case individually. Now what I can tell you is, to answer the question, no, I do not have an answer for you this morning but we will look at it and get back to you on it.
Mr. Morrison. Well, I would ask that you answer the precise question; that is, why are Cubans paroled out in a statistically significant higher percentage than Haitians are paroled out of Krome. And if that is true, why is it true in the opinion of the Service? I think that is ultimately the question. There are a lot of other questions, but that really was the one that was asked.
Mr. Buck. Mr. Chairman, let me ask our Assistant Commissioner for Deportation, Joan Higgins, to add one additional comment that might shed some light.
[Ms. Higgins was sworn.]
Mr. Morrison. Please state your name for the record. And if you could be helpful, we appreciate it.
Ms. Higgins. My name is Joan Higgins. I am the Assistant Commissioner for Detention and Deportation.
Mr. Chairman, part of the problem with Cubans entering the United States illegally is they are normally entering from third countries. When they do enter the United States and they enter from a third country, when we make an effort after they do have a final order of exclusion deportation most third countries will simply not accept them back.
Now, I think as you are all aware Cuba is the only country in the entire world to which we deport where we are limited to a list. Because of our previous difficulties with Mr. Castro, we do now have an agreements with him. We have not totally normalized an immigration relationship with him. We are limited to only deporting those Mariel Cuban criminals who are on a list, and negotiations are under way to expand but that list. But, essentially, in


62
terms of a reasonable approach, if we know that we cannot effect a deportation we will not keep people in detention indefinitely.
Mr. Morrison. The second thing I would like to clarify, Mr. Buck, you said that these Haitians ought to avail themselves of the alternative legal processes to gain access to the United States, and you said that if they have a claim of persecution, they should go to the U.S. Embassy in Haiti and apply for asylum.
Now, first of all, it is my understanding that there is no legal right to apply for asylum outside the borders of the United States. Isn't that right?
Mr. Buck. Well, let me clarify the terminology. What I say is they should use the legal first choice of appeal, not an alternative one.
Mr. Morrison. But you used the word "asylum" and you used the word if they had a fear of persecution, and I want to go down that road a little bit with you. It is also my understanding of the law that if you are within the borders of your own country, you cannot apply for refugee status. So it seems to me that unless there is a special rule, and there is a special rule for certain countries in the world but Haiti is not one of them, you can neither apply for asylum nor refugee status by going to Port-au-Prince and applying. So, if you have a well-founded fear of persecution in Haiti and you wish to try to come to the United States, it is my understanding that you must remove yourself from Haiti before you have a legal right to make that claim to the United States. Do you understand the law to be different?
Mr. Buck. Well, I will turn to the Department of State to give me some help here on this one.
Mr. Kreczko. I think that your statement is a correct statement of the law, sir.
Mr. Morrison. So they don't have that route. They can be petitioned for as immigrants if they have family in the United States of close enough relationship or if they have a petition for by an employer under third or sixth preference, but you can't come to the United States through the Embassy at Port-au-Prince as an asylee or a refugee.
Now, the question beyond that is that you could if you were a Haitian, at least theoretically, apply for that status, let us say in the Dominican Republic, but you would not be allowed to apply to become a refugee unless Haiti is designated as a country of special humanitarian concern. Is Haiti designated as a country of special humanitarian concern to the United States under the Refugee Act?
Mr. Buck. I will have to defer to someone else on that question. I do not know.
Mr. Morrison. Well, that is a designation. Who makes that designation? Doesn't the INS do that? Who does that? The gentleman from the Human Rights Section? Or the gentleman from the Office of Legal Counsel at State?
Mr. Kreczko. Could we take a minute, sir?
Mr. Morrison. Yes. Sure.
[Pause.]
Mr. Kreczko. Sir, the short answer I think is that we don't have a specified refugee program for Haiti. Decisions are made on an interagency basis and it sounds a little bit more complicated. I can


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try to get more for you for the record, but I think those are the direct answers. [See app. 5, p. 248.]
Mr. Morrison. I am going to come back because my time has expired again. But I want to state that this is a hearing on the treatment of Haitians, and I don't think it is appropriate that nobody knows clearly the answer to this question about how Haitians can get in. And when the representative of the Department of Justice glibly says that people who are suffering persecution can avail themselves of an alternative to getting in a boat and floating themselves out toward Florida and then nobody really knows whether there is any legal avenue for that person to do so other than to get themself to U.S. territory where it is clear you have a right to apply for asylum, I think that is just not adequate. And, frankly, this is the kind of problem that people who represent the Haitian community see as disparate treatment.
There are 3,500 refugee numbers for the Western Hemisphere, for Latin America. Apparently, Cubans can use all of those numbers and nobody else in the Western Hemisphere to speak of, be they from El Salvador, Nicaragua, or Haiti have a shot, and it seems to me that that raises questions. Whether they are called discrimination in a traditional legal sense or disparate treatment of different nationalities in a more benign sense, it certainly gives rise to the problems that gave rise to this hearing.
The gentleman from Texas.
Mr. Smith of Texas. Earlier, before this panel testified there were assertions by others and there are assertions in testimony that we will be hearing later on that the U.S. policy of interdiction on the seas, specifically of Haitians, is very different from the U.S. policy of detention along the land borders.
A question for Mr. Buck is, is there a difference in the U.S. policy; and, if so, why?
Mr. Buck. Congressman, there is no a difference in policy. There may be a difference in the process. If a person crosses the border, they go to a district office and apply for asylum and the process would begin there. On the open seas in the interdiction program there is a first-step process where they are interviewed preliminarily to determine if they have what appears to be a well-founded fear of persecution. If they do, they are brought into the United States and they are processed on land, at our office in Miami. If they do not have a well-founded fear, what appears to be a well-founded fear of persecution, then they are not.
Mr. Smith of Texas. Which is the same standard as, say, along the Texas-Mexican border?
Mr. Buck. It basically is except that on the Mexican border where they have walked across and they are under this term of deportability," then the process is different under the law, where we just can't put someone from Nicaragua back across the border into Mexico and say go home. We can't do that.
Mr. Smith of Texas. The circumstances are different, is what you saying.
Mr. Buck. Yes, sir.
Mr. Smith of Texas. The policy is the same. Mr. Buck. Yes, sir.


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Mr. Smith of Texas. Earlier today, again, and later on with other testimony, we have heard various individuals talk about no magical solutions, though, of course, there are many magical criticisms of current policy. It seems to me that based upon the testimony that we are going to hear later on and some sort of allusions by some of my colleagues earlier that the solutions that are toyed with are a couple, and I would like to run down them and ask you to respond to them as to whether or not you think they are workable and if there is any advantages or disadvantages.
One we have talked about today a little bit, the implication that we should allow economic refugees to the United States. Haiti I think I read somewhere has the lowest per capita income of any nation in this hemisphere. What do you think about economic refugees? Should we consider allowing them to the United States, from Haiti or any other country?
Mr. Buck. Congressman, I don't think that I can comment on that in an official capacity. It is obviously a concern to us, it is a concern to this country when we look at nations around the world who arewhere people are starving and the standard of living is very low. Our concern in the Immigration Service, though, is that we have an orderly system by which people come into this country. There are millions of people who want to come here, and for those who want to get on an airplane and just come here regardless of their status, whether or not it is their turn according to some list that may be maintained at an Embassy overseas, there is the order of fairness. There is also the issue of safety. The Coast Guard has done a marvelous job in saving lives in the interdiction program.
The issue is there must be some order. And, if it begins to break down at one point, then it will break down at many points. This is a particular point where we are concerned with making sure that we have effective measures in place to fairly and equitably enforce the law, at the same time put deterrence in place so that people will not continue to surge the borders wishing to come into this country without order.
Mr. Smith of Texas. OK. Another possible solution would be that we should parole these individuals and others while their applications are being processed. What has been your experience with individuals who are paroled? Do they hang around and do they check into the INS office that they are supposed to? And, if not, what percentage do we lose?
Mr. Buck. Well, our experience has been that they do not hang around. They do not report in. Our most recent experience has been in, as an example, with the Central Americans coming in. Those people who are allowed to apply in Harlingen, TX, and proceed to other cities like Miami and New York or L.A., we have as high as a 75, 8875 and 78 percent ratio no-show. The experience is, when people are paroled on their own recognizance and told to come back in 14 days, they just simply do not and we never see them again.
Mr. Smith of Texas. What effect would those kind of policies have upon future illegal immigration?
Mr. Buck. It would serve as an absolute magnet, which we think it is doing. People come to the country, they see that people are paroled, they have access once they are here, that the Immigration


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Service can't devote enough personnel to go and find all of these hundreds and thousands of peopleit is absolutely a magnet.
Now, when you look at the number of people who are paroled, they are people who have family, they have ties to the community, and that we can legitimately say: Now this person does not look like a potential abscondee. This person does not appear to be a threat to the community. This is the person that deserves to have either parole or bonding privileges given to them.
But, by and large, our experience has shown, if we give a broad parole privilege, we have a high level of no-show.
Mr. Smith of Texas. Thank you, Mr. Chairman.
Mr. Morrison. Mr. McCollum.
Mr. McCollum. Thank you, Mr. Chairman.
I would like to comment to the witnesses that I personally again think that we do need a policy which recognizes country-by-country distinctions, though that has always been one of the arguments. We have to go with the Refugee Act. We will have an asylum provision and we will do it on a person-by-person basis. But the reality is that the country-by-country is also looked at. I think that is the basis for looking at things like the extended voluntary departure or making special deferment cases in the case of China or looking at whatever. And there isn't any question in my mind that when considerations come up on a case-by-case basis that the conditions inside the country are definitely taken into account, and that is the essence of the Refugee Act. So that when we look at Cuba and we see the oppression that is clearly there and the probability of political persecution that occurs for most people who might oppose Castro, the history of that, it is understandable why it would be a fairly easy thing to establish the asylum for somebody claiming that from Cuba.
On the other hand, the same amount of persecution and problems for people politically inside Haiti has never been adequately demonstrated, at least not to my satisfaction; and I don't think to those of you and your various departments and agencies that have had to determine on a case-by-case basis that has not been adequately demonstrated. And some of the witnesses who do follow today assume that conditions in Haiti politically are just as bad for each of these individuals as they are in Cuba. I don't think that is correct, so I want to make that perfectly clear to you.
I do think the economic conditions are worse probably.
Now, in terms of another point that is going to be made later to us, I think it is important to ask a question. And again I have to go to you, Mr. Buck, for this but certainly the State Department has a comment to make. And, if the Coast Guard wants to, I will let you jump in, Admiral.
There are those who are going to come up here today and tell us that we should no longer have the distinction in law between the exclusion and deportation. That we ought to treat everybody the same way. That it is a fiction to have an entry doctrine. That, you know, we should not separate the two. We should go through the same full legal processes for anybody regardless.
What do you say about that, Mr. Buck?
Mr. Buck. I am going to ask one of my associates to also respond, but I would make a comment. Based on my somewhat limited expe-


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rience within the Service already, I have observed the immigration law to be very complex. The cost to the U.S. taxpayer of having everyone come in under deportability versus the excludability process will be extreme. It will be an extremely expensive process.
Now it is not my position here to say it should be one way or the other. That is for the Congress and the administration to decide. But I can say it is much, much more expensive a proposition to go the deportability route.
I would also like to reflect back on your earlier comment about the people who go back to Haiti and it has been alleged that they go back to persecution. It is part of the standard process that when people are taken back to Haiti, and the Coast Guard escorts each boat back and they are off-loaded under the supervision of U.S. Government officials who are in Haiti. They are given, I think it is $15 transportation money to make sure that they get back from their home from whence they traveled, and then there is also in the pastaggressively in the past and in the beginnings of the program people were assigned to follow up on those people who went back to Haiti to make sure that they were not persecuted, to make sure that they were not thrown in jail and make sure that nothing happened to them. And not any single case of those 18,000 plus people was there ever a case that I am aware of where anyone was ever persecuted or suffered any ill harm or ill will due to their attempt to leave Haiti.
So the interdiction program is working I think, and I think that is a testimony of the fact that it is working and it is an economic surge rather than a political persecution issue.
I would like Ms. Combs to address the other question.
If I may, I would like the Deportation Associate Commissioner to address that one.
Mr. McCollum. If you would, please. Do you want me to restate the question or do you understand it?
Ms. Higgins. No. You want to know what our position is in terms of do we think the distinction is important?
Mr. McCollum. Yes, ma'am.
Ms. Higgins. Well, the primary distinction is that under exclusion provisions it is up to thethe burden is on the alien to prove that he or she is admissible. In deportation proceedings, the burden is on the Government to prove that an alien is deportable. And, in numerous court decisions from 1952 onward which have looked at the legislative history, have looked at the intent of Congress, the legality of maintaining that distinction has been supported, and in terms of a tool and a necessary distinction in order to properly maintain control of the immigration process it is felt to be an important distinction.
Mr. McCollum. Oh, I think it is too, but I wanted to hear you say that. I couldn't imagine the Department of Justice would favor eliminating the exclusion difference because it would make a huge difference in terms of--
Ms. Higgins. Exactly.
Mr. McCollum [continuing]. In terms of the burden on our Government and also on the ability of people to come here and stay, and probably on the magnet effectpeople able to come and put their tootsies in the water and then they will get to stay here for


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an interminable period of time, which is why I so strongly support what I think the administration also supports and that is revising the laws in a little bit the opposite direction; and that is, instead of thinking about doing away with exclusion, allowing for a new category for an even faster process, so that people are discouraged from coming here if they really don't have a claim. But still protecting, of course, their rights to file asylum claims if they are here.
Does the State Department have any comment on this? Do you have any views? No. All right.
Well I just wanted to put thatI assume the Coast Guard doesn't get involved in that part of it. That is not your job, Admiral. I am sure you are saying, Thank goodness, it is not.
But I just wanted to get this on the record. Because, again, so often the administration comes up to testify and then we have a whole slew of witnesses that come in here and say something else. And you all don't know what they are going to say. We at least have some advantage of reading their testimony. And they are going to say that today, some of them are.
Thank you.
Mr. Morrison. First, let me just say that I think there are a number of straw men being knocked down up here in terms of potential policy. And speaking for myself, and I don't know who else in the world, but I am going to speak for myself at this point. I have no doubt that we need to enforce our borders and that we need to have sensible processes under which we can remove people who have improperly crossed those borders from the United States and prevent people from crossing the borders who ought not to be crossing those borders. But that really doesn't answer the question of whether you should create complicated legal fictions about whether someone who is in fact physically present in the United States ought to be treated as if he weren't physically present in the United States and other individuals who are not physically present in the United States should be brought into the United States to make claims that can only be made physically in the United States. We are doing both of those things right now. And legal fictions that don't comport with reality usually get you in trouble when you try to demonstrate to people you are not treating one group of people in a discriminatory manner.
I think we can accomplishperhaps we wouldn't agree on exactly the degree of process that is due, but I think we can develop processes that treat people in a more similar fashion and, from where I sit, a more expeditious fashion overall in all of these areas. Because I think it is in no one's interest to have review upon review upon review while people sit in detention, or while people abscond into the country. But I would hope our expediting processing could treat people without all these legal fictions.
I am going to go back to China for a minute. I have one more question on the specifics of this China policy. And let me say that I don't have a problem with the President's humanitarian action with respect to Chinese here in the United States. I do have two problems with it beyond that decision.
One is that we don't have an appropriate legal structure under which this kind of relief is exercised. It is exercised as a matter of prosecutorial discretion without standards about who it is to be ex-
\


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tended to, how you get work authorization, et cetera, et cetera, et cetera, and I think we need legislation to put this in a more appropriate context. The State Department supported such legislation in the last Congress. The Department of Justice opposed it. I would hope that the Department of Justice would reconsider its position on that.
And second, that the specifics of this action raise lots of questions about why this action has been taken in this instance and is so strongly resisted in other instances in which individuals face real dangers in returning to their country. Now, in the Attorney General's direction to Commissioner Nelson he identified one ground under which individuals would not be free from deportation, and that was those PRC nationals who have been convicted of any criminal act in the United States.
I am curious as to the status of all the grounds for exclusion and all the grounds for deportation other than that which the Immigration and Naturalization Act imposes on people who would retain their status here. Membership in the Communist Party is interesting in this context. Engaged in activity contrary to the national interest. Drug addicts and traffickers, as well aswell, it is a very long list that this subcommittee has acted to alter somewhat. But are all these things essentially wiped away from Chinese nationals for the next year?
Mr. Buck. I can say at the moment I don't know, Mr. Chairman. The procedure that we have developed in rather extensive. We will get to that to you before the day is out. It may be that this may be adjusted, as it has been developed quickly over the last couple of days to meet an exigent need. There may be a need for some fine tuning. And I would suspect, if there is a need, that will be done, and of course we will advise you accordingly.
Mr. Morrison. OK. We would like the specific answer. I would like you also in answering this to take a look at H.R. 45, which has been reported without recommendation by this subcommittee to the full Judiciary Committee, amended in substantial fashion to implement a general structure for what we have called temporary protected status and which incorporates some of these exclusions and certain waiver provisions and requires registration in order to avail oneself of these benefits. And we would like very much for the INS and the Department of Justice to look at this legislation in light of the action that has been taken with respect to the Chinese and to do a little soul searching about whether it wouldn't be useful in a more generalized way to have that kind of statutory structure into which to plug these kind of administrative decisions.
And I think you have a case in point to look at this legislation which is developed and it is an evolution from the safe haven legislation which was proposed last year and, as I said, was supported by the State Department and opposed by the Department of Justice.
Going back to the Haitians, do you know whether any consideration was given to any form of protection to Haitians in the United States when the violence surrounding the electoral campaign and the election in 1987 occurred? There were 500 Haitians murdered in street violence related to that in that 6-month period, from June through November, surrounding the election.


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There are only 6 million people in Haiti. It is a higher percentage of the Haitian population killed by far than the proportion of Chinese just killed, and I wonder whether any consideration was given to protecting Haitians in the United States during that period of instability.
Mr. Buck. I don't believe, to my knowledge, Mr. Chairman. Not by the INS. But also I think I am correct in saying that during that period of time there were no deportations of Haitians, nor interdiction activities that returned people to Haiti during that period of time. But, as far as a formal written--
Mr. Morrison. There were no interdictions?
Mr. Buck. I think I am correct that there were no deportations during that period of time, and I am not suremaybe Admiral Leland can help me on this. I don't think there were any interdictions where people were taken back during that same period of time. I am going by memory--
Mr. Morrison. Let me ask each. Let me ask the INS and the Coast Guard to tell us, for the period from June 1987 through May 1988, exactly how many Haitians were interdicted and returned, and how many Haitians were deported to Haiti. If we could have that data for the hearing record, it would be useful.
Mr. Buck. For the entire year?
Mr. Morrison. Well, for that year, which is the year before when the violence erupted and the period after which the Government of the United States imposed serious economic sanctions on Haiti. We withdrew all forms of aid because of the way in which the elections had been disrupted, and Haiti was, essentially, put in a pariah status by the U.S. Government for their failure to implement the constitutional guarantee of free elections. I would be curious about what in fact we did during that period about interdictions or deportations.
Mr. Buck. Obviously, there were deportations during the year. But I think during that period when the violence was at its height there was not. We will give you the information.
Mr. Morrison. Well, we are not on a week-by-week basis with respect to China. We have given them a year whether it is safe to go back in 1 week or 1 month. So we haven't had any trouble giving the Chinese a little bit of rope.
[See app. 5, p. 248.]
Mr. Morrison. I think people believe, people have observed historically that the Haitians get the short end of the stick every time you turn around. There just isn't the spirit of generosity and humanitarian concern with respect to Haitians that we exercise with respect to a variety of other people in the world. And I think, regardless of motivationand I don't question anybody's personal motivation who is before the subcommittee this morningthe facts speak volumes that if you are a Haitian you are usually last in line for humanitarian concern in the United States. And it is a sad fact but I believe it is true, and over and over again we see instances of it. And maybe it is all because of the technicalities of the law. They are excludable, not deportable. They don't have family here so they can t be paroled out. They can be returned, unlike the Cubans, so they will be returned. I mean, maybe it is a series of legalistic differences, but at the end of the day when you get to the bottom line


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the answer is Haiti, where people have been shot down in the streets in recent memory, is a place to which people are routinely deported. Other places not so.
Do you have more questions?
Mr. Smith of Texas. Yes, I do, Mr. Chairman.
First of all, an observation. This subcommittee has over the past couple of months heard testimony about the killings in various countries. We previously heard testimony about killings in Nicaragua. Today we have heard statistics about the killings in Haiti. In the case of Haiti, 500 killings for a population of 6 million. I certainly don't condone one killing anywhere, but just to make a comment here, the 500 killings in Haiti compared to 1,500 killings in another place of a population of 1,000,500, which happens to be the Washington, DC, area, makes me wonder if we ought to declare everyone who lives in the District of Columbia a refugee. I don't say that seriously but I say that to make a point.
Mr. Morrison. Let me ask the gentleman from Virginia--
[Laughter.]
Mr. Smith of Texas. What I would like to do is ask the three primary panelists to respond to a statement that I am going to read you, which in my judgment pretty well summarizes the kind of testimony we are going to be receiving from the next two panels. This happens to be actual testimony that we are going to be receiving from the next panel. Like I say, I think it summarizes the gist of the testimony that we will be hearing for the rest of the day, and I would like for each one of you to respond to this.
"The Haitian interdiction policy is a wholesale denial of asylum and refugee protection. The Department of State and INS has ignored the singlemost important reason for recent Haitian refugee flight, serious human rights abuses perpetrated by the ruling military regime and paramilitary gangs. A discriminatory double standard is applied to Haitian refugees because they are mostly poor and black, and because they are fleeing a country that has supported U.S. foreign policy objectives."
Mr. Kreczko, we will start with you.
Mr. Kreczko. Well, I would start by saying that even though there was no obligation to do so internationally or under our domestic law when we undertook the Haitian interdiction program we consciously built into it a requirement that those individuals that make a claim of persecution are brought back into the United States so they can get the full range of asylum processing and protection. That was a voluntary action on behalf of the United States to make sure that these Haitians were not denied refugee rights. So I think we have tried to structure the program in terms of the process to make sure that any claims for refugee status are in fact adjudicated in accordance with the process that applies in the United States.
The definition of what constitutes refugee status requires two different things. One is persecution. Economic dislocation itself does not amount to persecution, although it can in cases of extremity. Second, persecution alone is not enough under the refugee standard both in international law and in domestic law. Persecution has to be on account of race, religion or political opinion. The fact that an entire group, an entire country is economically disadvantaged


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does not give rise to a claim for refugee status under either international or domestic law. Mr. Smith of Texas. OK. Mr. Buck.
Mr. Buck. I do expect that you will hear some inflammatory statements made this afternoon. I amI can assure you that the U.S. Immigration Service and the Department of Justice and the administration are very sensitive to the state and well-being of people from all over the world. The fact that the Immigration Service is required to enforce the laws of the land necessitates that some people be detained, some people will.be deported, some be excluded, and it is an unfortunate situation. But throughout the world there is obviously a time coming when all nations are looking at the issue of immigration. I still think that this country has one of the most liberal immigration policies in the world. This country takes in more people each year than all of the other countries combined.
To take a look at a single, isolated situation and draw conclusions from it, I think is to do a great disservice to this country's judicial systemto its system of government and to its immigration law and policy. I agree that as circumstances change in different countries like Haiti or China or other nations it always gives us an opportunity to reflect upon our policy and make sure that they are still applicable.
The interdiction operation concerning the Haiti, Haiti and their citizens, has undoubtedly I think been a very humanitarian process. It has saved a lot of lives. The people who are detained and excluded. Let's not lose sight of the fact that it is one of the most humane processes in any government in the world. People are given immediate medical treatment, medical care. They are well fed, clothed, housed and taken care of while they are here, while their status is being determined under our law.
The big picture is: Do we do what we do in a humane manner? The answer is, emphatically, yes. Is the law of the land a fair law? I would say emphatically yes. Is there a need to continue to look for ways to improve it? I would say yes again.
But I would say, this afternoon as the other people testify I would have to say let's not lose sight of the big picture of what is happening in our country in terms of the total immigration situation from all nations of the world. That is not to say that I have lost sight of the fact that we are talking about Haitians. We are very sensitive. We are most sensitive to Haitians. I am sure that everyone else at this table would agree with me. I hope.
Mr. Smith of Texas. Admiral Leland.
Admiral Leland. We were in at the beginning. The Coast Guard has hadwell, almost a 200-year history, 1 year short now, of great concern for human beings on the high seas. Before this resolution or this executive action was taken, I, myself, sailed in the Caribbean waters and passed boat loads of Haitians. This is prior to the interdiction program that we have, and we expressed great concern would they ever make it.
It is not a job that the Coast Guard does eagerly. We are dealing with, perhaps, the poorest country in this Hemisphere, its citizens. We are very, very concerned about them. It is dangerous to go to sea under the best of circumstances, and when you put 220 people


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in a small boat and they leave the coast of Haiti, you hope nothing happens to them before the Coast Guard finds them.
I can say, without being a judge of human rights abuses or double standards, that we in the U.S. Coast Guard do this job with a clear conscious. That we are convinced that our efforts are humanitarian as well as holding up the laws of the United States.
Mr. Smith of Texas. OK. Thank you all. Thank you, Mr. Chairman.
Mr. Morrison. I have some questions for the State Department and I don't know which of the representatives is appropriate to answer it, but I would like an answer. First, from a State Department standpoint has there ever been or was there during the period of the 1987 elections any study of or any recommendation with respect to granting suspension of deportation or extended voluntary departure or a similar status to Haitians?
Mr. Zweifel. David Zweifel, Director for Caribbean Affairs in the State Department.
No, sir, there was not such a systematic study at that time.
Mr. Morrison. Can you explain why there was no consideration? In other words, we have had pictures on the screen of people being shot down in Tiananmen Square in Beijing, and there has been an immediate outcry, and an appropriate one. We had pictures on the screen during that election of troops, Army troops cascading around Port-au-Prince firing automatic weapons and seeing voters lined up to vote being shot down in the street. Vivid images of the same kind of attack by Government or Government-supported entities against people exercising fundamental rights. Why no reaction? Not enough outcry from the American people or what?
Mr. Zweifel. Mr. Morrison, perhaps I misunderstood your first question. There was a very definite reaction, a very positive, a very quick reaction to the events--
Mr. Morrison. Against the Government of Haiti?
Mr. Zweifel. Against those that perpetrated the violence which repelled all of us equally.
Mr. Morrison. Right. But there was no consideration in the same way that we have taken an extraordinary step of preserving the safe haven for 320,000 Chinese nationals in the United States, there was no consideration apparently of any action to protect Haitian nationals in the United States from that. Do you understand why that looks like a double standard or a different reaction or whatever you want to call it?
Mr. Zweifel. If I can go back to what I believe Mr. Buck said earlier on, during that period there were no deportations.
Mr. Morrison. It is your testimony under oath that there were no people during that periodwhat do you mean by "that period"?returned by interdiction or deportation to Haiti?
Mr. Zweifel. Mr. Buck has undertaken to provide you the statistics. He was the one who said that--
Mr. Morrison. I understand. But don't you adopt his statement unless you know, and your own personal knowledge, that it is true. I heard what he said. But you are under oath, and I would suggest that you not adopt his statement unless you know it to be true.
Mr. Zweifel. Mr. Morrison, I was quoting Mr. Buck.


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Mr. Morrison. Well, then you shouldn't quote Mr. Buck when you are under oath because he will have to stand on his own testimony.
The fact is that if the people at the table over there don't understand why this strikes some of us at least as a different level of concern of human beings in the same kind of risk, then I guess we just have an inability to communicate.
Now, in 1987 there were no Haitians granted asylum in the United States, and in 1988 there were six Haitians granted asylum in the United States. Last year, we granted an Italian asylum in the United States. Do you really think that this zero and six reflects the reality in Haiti? Could either the State Department or INS give me a perspective on how that is in this country that we all know to be riddled with political violence against opponents of the Government. I have been to Haiti myself and studied the country. I am a member of the Haitian Task Force that Mr. Fauntroy chairs. Anybody who knows anything about Haiti knows that people get shown down in the streets in Haiti. That the Government and the ton-ton macoute have been related to each other over the years and that this violence is not merely random, but that there is a political basis to it. Can somebody explain to me why so few Haitians can make the grade here? Comments? No comments. Nobody knows.
Ms. Combs. Sir.
Mr. Morrison. Yes.
Ms. Combs. The Haitians as yet have not articulated a claim to asylum. Indeed I have been to Haiti several times as well, and indeed several years ago I followed peopleI went to the inland of Haiti to follow the returnees to see if they had been persecuted or prosecuted upon their return and was satisfied that they had not.
Haitians, either in HMIOAMIO, I'm sorry,or before district directors or, indeed, before the immigration judges have not articulated a fear of persecution or future fear of persecution. Our officers in the AMIO program tell us that indeed they are quite forthcoming in indicating that they have had no problems with the Government other than economic ones. Of course, they are disadvantaged because of the economic situation in that country. They simplyI'm sorry, that is a poor choice of words. They do not make the same degree of claim that others from other nationalities do.
Mr. Morrison. You don't have to be persecuted by the Government to be eligible for asylum. Correct? I mean, if you are persecuted by groups that are operating freely within the country, if it is persecution on the grounds, that is persecution, isn't it? Or is the law that it has to be the Government?
Ms. Combs. It can be any group if the Government cannot protect you from that group.
Mr. Morrison. To the Department of StateI had a meeting with Mr. Eagleburger yesterday in which we discussed the position of the United States at the Geneva Conference coming up this week with respect to the return, the involuntary repatriation of individuals who are out of their country who cannot qualify as refugees under the International Convention. And the United States takes the position, as I understand it, that the involuntary repatriation of individuals of that type, not refugees, not able to make a


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well-founded fear of persecution case, is opposed by the United States, and only voluntary repatriation of these boat people in Hong Kong and in Thailand and elsewhere will be supported by the United States.
Could you please explain to me why that is the policy of the United States when the imposition is on Hong Kong and Malaysia and Thailand, and why the policy of the United States when the imposition is on the United States is that the forced return of boat people under the interdiction treaty is not a problem?
Mr. Kreczko. Yes, sir, I can. And we have a person here from our Refugees Program Bureau who can elaborate if you would like. But I think basically three differences. Number one is that Vietnam refuses to accept individuals back, whereas Haiti has agreed to the return of individuals. Number two, we are working on a comprehensive plan of action with other countries in the region and in Europe to try to deal with the problem that in part depends upon Vietnam's cooperation in an orderly development program, and the sense is that pressing Vietnam to accept back individuals will, in fact, cost us their cooperation even in that limited program, so that it would be counterproductive. And then third, I think there is a different assessment of the situation in Vietnam from a human rights standpoint than there is of the situation in Haiti.
Mr. Morrison. That is a sufficient answer.
There was a suggestion made by Congressman Lehmanand this really goes to both State and Justice. A suggestion made that preclearance processes be instituted at Port-au-Prince, at the airport, in order to avoid the arrival of people with improper, inadequate or no documents at all in Miami who then have to be detained and processed for exclusion. Has any consideration been given to that? Does anyone think that is a good idea? That is really, I guess, Justice's department.
Mr. Zweifel. If I might, Mr. Chairman. This is the first I have heard of it. I thought to myself that it was a rather interesting idea. We have looked at preclearance in some other context. For example, there is in the Gibbons bill, I believe, a proposal for establishment of a preclearance facility, probably at Aruba. The preclearance is actually a two-stage process, as you know. One with the INS, and we have a station at Aruba, a preclearance station at Aruba as well as in the Bahamas; and there are also Customs preclearance facilities, for example, in the Bahamas. I believe they also are in Canada fairly broadly established.
The Customs Service, and I would not presume to speak for them, but in the case of the Aruba instance, for example, has looked at the flow of traffic, the volume of traffic coming out and made sort of cost effectiveness considerations.
Mr. Morrison. Could we leave Customs out of this? Because we are not talking about Customs. We are talking about immigration prescreening as opposed to--
Mr. Zweifel. OK.
Mr. Morrison. Could we answer the question about immigration? I don't think the Haitian problem has been defined as an improper importation of goods at this point, or drugs or whatever.
Mr. Zweifel. We do have that dimension. But I would, of course, defer on the INS question.


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Mr. Morrison. Has INS considered this? Do you have any comment on that proposal?
Ms. Higgins. Mr. Chairman, Congressman Lehman's observations were very much on target in that the majority of the Haitians who are detained at Krome entered at the Miami Airport and they entered with fraudulent documentation or no documentation, having destroyed their documents en route. So, in terms of preclearance, if they had been interviewed before boarding the plane, obviously they would not be detained at Krome at the present time. Because our inspectors are very good at detecting fraudulent documents.
The issue has been under discussion, continues to be under discussion at this time in the Immigration Servicethe issue of preclearance in Haiti.
Mr. Morrison. Well, could we please have a status report on that consideration; in other words, a formal response to Congressman Lehman's proposal at this time?
Ms. Higgins. Definitely.
[See app. 5, p. 249.]
Mr. Morrison. And beyond that, is there any consideration of permitting an Orderly Departure Program such as in Vietnam to deal with the boat people problem in that part of the world, and I understand the distinctions that have been drawn by representatives of the State Department that may apply to differences between Vietnam and Haiti. But we do have a somewhat similar problem of people taking to the seas as Mr. Buck's subsequent answers to my questions, and Mr. Kreczko's answers indicate. That in fact individuals within Haiti do not have an in-country option of availing themselves of a hearing on claims of asylum or refugee status. Would any consideration be given to some form of orderly departure option for the Haitians?
Ms. Combs. Within INS and within my office specifically we have discussed many options for Haitians over the years. To specifically answer your question, the Orderly Departure Program, no. But that is an interesting concept that we would be happy to look at and seewith State Department inclusion, of course, to see if there is an opportunity for that kind of orderly progression into the United States.
I would say, however, that because so few have been found to be refugees thator have been granted asylum once within the United States that I am not sure how effective it would be. But that is the kind of thing that in looking into it further might show us something that we don't already know.
Mr. Morrison. Well, I would hope you would look at it. And let me just comment. In preparing for this hearing I looked carefully at this issue of special humanitarian concern and the identification of countries where refugee status would be recognized, and my conclusion from that is that the Presidential consultations that have occurred in the past have given inadequate attention to the actual nationalities that were going to be eligible for refugee status. And it is my intention in the consultations that we will have for fiscal 1990 numbers to raise quite specifically these determinations of who in the world is of special humanitarian concern to the United States and who can get into the door to these numbers. I don't


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think it has gotten the attention in the past, but you are on notice that it is going to get attention now. And I would hope among the various issues that that raises that you would think twice or three times about the situation of people in Haiti and see whether there isn't at least something that can be done. Even if it is a dozen people a year that qualify, that you could say with assurance that people who are persecuted in Haiti have an alternative beside getting in a boat and hoping that whoever interviews them on a Coast Guard cutter somewhere will understand them to be making a sufficient claim to get them to the United States, to get them in the process, to get them a lawyer, and to be able to have what we would hold out to them if they were in Cuba, for instance.
I have one last question for the admiral. What is the process by which the Haitians are brought into involvement when you are about to stop one of these boats? It is ray understanding from the agreements that you are required to notify the Haitians and that there is supposed to be a Haitian representative on your ship.
Admiral Leland. No. The relationship with Haiti, the agreements with Haiti has matured to an extent that when we encounter Haitians on the high seas we verify the registry of the vessel, the nationality of the individuals concerned. We have on these patrols an INS agent. If we don't have an INS agent, we get one before we take action; and they are either ferried out by another cutter or they are flown out by helicopter.
Mr. Morrison. But you don't have a Haitian national on theI have read the agreements. The agreements says that there shall be a Haitian national on any vessel which is assigned to this activity.
Admiral Leland. Do we have one? OK. Then I am in error.
Mr. Morrison. You do have one? You do have a Haitian national?
Admiral Leland. That is why you bring a commander along.
Mr. Morrison. I understand. And is the notice that is given to the Haitian Government, as required under the agreements, given to that person or is there some other form of notice to the Haitians that you are stopping one of their vessels?
Admiral Leland. George, you get to answer that question again.
To the Embassy. OK.
Mr. Morrison. Now there has been a lot of talk about territorial waters and the differential treatment. That if it is within U.S. territorial waters, people are brought into the United States.
Admiral Leland. Essentially, the Pepper bill is a matter of practice. That if they are detected within the territorial sea, they are brought into the United States, to a port of entry, and turned over to INS.
Mr. Morrison. Which territorial waters, the 3-mile waters or the 12-mile?
Admiral Leland. The 3. For domestic purposes, the 3-mile applies--
Mr. Morrison. Not the 12-mile?
Admiral Leland [continuing]. Until you change the law.
Mr. Morrison. OK. But it is the 3-mile limit, not the--
Admiral Leland. Right.
Mr. Morrison. I mean, the President has proclaimed the 12-mile limit for certain purposes.


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Admiral Leland. For certain purposes.
Mr. Morrison. I am not an expert on the law of the sea or any of that, so I won't try to figure it out. But it is the 3-mile limit that we are talking about?
Admiral Leland. It is the 3-mile limit.
Mr. Morrison. And when these individuals are brought in who are caught within the 3-mile limit, then they are excludables; is that correct? Why is it that they are excludables? Would somebody please explain to me why the territorial waters of the United States are not the United States, but if you get yourself to the beach it is the United States?
Admiral Leland. No. The territorial waters of the United States are, in fact, the United States.
Mr. Morrison. Yes.
Admiral Leland. At that point they are brought in. They have reached U.S. territory and are treated differently than--
Mr. Morrison. I agree. Now I would like to hear the State Department explain to me why it is that when I wade across the Rio Grande and show up on the shore and get arrested there for an illegal entry then I am a deportable, and why it is that when the Coast Guard stops me in the territorial waters of the United States, not having entered at a port of entry, but being in the United States not at a port of entry I am an excludable. Why is that the law?
Mr. Kreczko. I am not sure that you have addressed it to the right--
Mr. Morrison. Well, who? INS? Well, you are the international law expert, so I thought that you kind of knew where the border was.
[Laughter.]
Mr. Kreczko. I think it is a question of our domestic statutes, not a question of our borders.
Ms. Combs. It is, and it is a lawyer's answer. If we might submit that answer for you in writing at a later date, we would be happy to do that.
[See app. 5, p. 250.]
Ms. Combs. To be eligible for deportation, one must be within the United States or at a port of entry. It is my understandingand these people are not at a port of entry or within the United States, then you get into the territorial waters part, and I would only confuse--
Mr. Morrison. Well, I would be happy to have your legal interpretation. I think the distinction is that people who are at a port of entry are the very people who are not in the United States. That is why at the airport you can treat these people as excludables. But out on the beach you are supposed to treat them as deportables, although apparently you have got people on the beach that you treat as excludables by some fiction that they are on their way to a port of entry.
But once again, the law comes down differently on the Haitians and the Central Americans as fact, and you stretch the legal fictions in a way that make it seem like you have it in mind to treat the Haitians different from the Central Americans. And, you know, that is a lawyer's answer.


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Does the gentleman from Texas have any further questions?
Mr. Smith of Texas. Yes, one more comment, Mr. Chairman. And let me try to paraphrase what I thinx the panel is trying to say, and that is, isn't the fundamental point that you all are engaged in the activity of enforcing the law as you have been given the law. It so happens you have been given the law by Congress. And what determines the number of individuals coming from other countries cannot and should not be the numbers that we would like to see come from those countries^ it is the definition of "refugee." It is those who have an actual or well-founded fear of persecution because of race, religion/affiliation with social organizations, or political beliefs. And that, by definition, means that you are going to be admitting as refugees those from different countries depending on how thatdepending on the facts, depending on what the individuals themselves say, and that to a large extent is going to determine what the numbers are based upon the definition of "refugee" that you all have been given.
So it seems to me that, perhaps, rather than blame you all for enforcing the law as you know it, the solution is for Congress to change the law. We shouldn't be saying to you all that you all have double standards if, in fact, those standardsif they do existare caused by the laws that you are being forced to enforce. Is that a fair statement?
Mr. Morrison. Well, I think that is a fine statement, Mr. Smith, to the extent that it is true. [Laughter.]
Mr. Morrison. But I would like to add that the executive branch knows exactly where the House of Representatives is located. And, if they are put in a position of enforcing laws in a way that they think is not consistent with the basic values that we hold in this country, the doors are openat least the doors of my office are open, to hear from them on proposals.
And it didn't take any time for Justice and State to get up here to just admitting 150,000 additional people of special humanitarian concern to the United States who are not refugees and not immigrants under existing law, and it didn't take them any time to find the parole authority available to admit Soviet Jews who didn't qualify as adjudicated refugees to the United States, and none of those options have been exercised with respect to the Haitians, with respect to the problems of beaches and territorial waters and interdiction. So it isn't enough.
You know, we initiate legislation, we also respond to legislative proposals. So, as far as it goes, you are right.
Mr. Smith of Texas. Mr. Chairman.
Mr. Morrison. I would be glad to yield.
Mr. Smith of Texas. Mr. Chairman, I am just glad to hear you imply that you will respond to the Bush initiatives of the future. [Laughter.]
Mr. Smith of Texas. I would simply sayand the individuals from the administration can speak better than Ithat what you would say is that the laws are not being enforced inconsistently, which is why you are not beating a path to the chairman's door.
Do you all have anything you want to add beyond that?


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Mr. Kreczko. I would add one thing, Congressman, and that is to reiterate that by giving access to a claim for asylum on the high seas and in Haitian territorial waters we go beyond the law, both our domestic law and our international law.
Mr. Morrison. And, in fact, you may be breaking the law. I mean, you may be doing something you have no legal authority to do.
Mr. Smith of Texas. Maybe we ought not give anyone refugee status, if that is breaking the law.
Mr. Morrison. With all due respect, you know, somebody thinks this is a bleeding heart appeal here, when you are missing the point that it is an appeal to the rule of law and to having laws that make sense. And when you come up here and defend your conduct by sayingOh, by the way, over here we can't do anything because the law won't let us; and, oh, by the way, over here we do something the law won't permit usthen it raises real questions about whether Mr. Smith's characterization of the problem as your inability to act because of the straitjacket imposed on you by the Congress is really the problem. Maybe it is not a straitjacket at all. You seem to have flexibility when you want to find it.
I think we will stop this debate; we will have plenty of time for it in the future. And I thank you for your patience and for your expansive answers to our questions.
Mr. Morrison. I would like now to call the next panel:
Barbara Carey, who is a commissioner of Dade County, from Miami, FL.
Rev. Gerard Jean-Juste, executive director of the Haitian Refugee Center.
Jocelyn McCalla, executive director of the National Coalition for Haitian Refugees.
Msgr. Brian Walsh, executive director of the Catholic Social Services.
Mr. Roger Biamby, executive director of the Haitian American Community Association.
If you would all please come forward and prepare to be placed under oath.
Apparently Mr. Biamby will not be with us.
[Witnesses sworn.]
Mr. Morrison. I want to thank all four of you for coming, and traveling here to Washington today to give us your testimony. Your written statements that have been submitted will be made a part of the record in full. I would ask you to summarize those statements, emphasize the important points we need to hear, and try to adhere to our 5-minute limit, even though we in questions don't adhere to the 5-minute limitation.
Ms. Carey, if you would go first.
STATEMENT OF BARBARA CAREY, COMMISSIONER, DADE COUNTY, MIAMI, FL
Ms. Carey. Thank you, Mr. Chairman. And I was going to say members of the subcommittee, but I think they have gone. I am Barbara Carey, vice mayor of Dade County and also chairman of


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the Immigration Advisory Committee for Dade County, and I certainly appreciate the opportunity to appear before you here today.
I would also like to express our extreme gratitude to you, Mr. Chairman, for your recent visit to Dade County. It is another clear expression of the leadership; and commitment that you have taken as the subcommittee chairperson. And I have been sitting here listening today, and I want to say that you have certainly got a good grasp of the picture of the Haitian situation in Dade County.
I know that as you review the policies you will closely, as you have done already, for comparisons to policies implemented toward other foreign nationals who seek respite within our borders, and you have done that today so very clearly. And your task is not going to be easy because as I sat here and listened to the panel just before we came on I must say that our immigration laws are more complex than our tax laws. They can't even figure them out.
We haveI am very honored also to be a part of this panel with such distinguished gentlemen who have always fought so hard for justice and freedom for people, and who have a special humanitarian concern for all people.
And so I come here today because, with this panel, we have 30 years of experience in dealing with immigration and refugee matters in our local government, and so we are not newcomers to this immigration problem and this immigration debate.
I have submitted to you my statement, and I must say that Mr. McCollum in his acute observations I think picked up a picture that I was trying to present in my written statement; and that is, that we have assessed the effectiveness of the interdiction policy and it is not working. And I think that earlier he shared with you some facts that I presented, and I would like to just read, or state those facts.
No. 1, is that in 1981 more than 20,000 Haitians have been interdicted off the Florida coast; yet, in March 1989 alone, 1,535 Haitians in 17 vessels were stopped, representing the largest monthly total in this policy's 8-year history.
No. 2, so far this year, 2,545 Haitians have been interdicted.
No. 3, the total number of Haitians interdicted in 1988 was 33 percent higher than in 1987, and, based upon the numbers reflected so far this year, the percentage will increase in 1989 as well.
And so it goes to a point that you made earlier: When we had the problem with the Chinese nationals, we moved expeditiously to do something about that; and when we had the bloody battle in Haiti after the elections we did nothing to work with the Haitian nationals:
That brings me to another point, and that is, after that bloody outcome of the 1987 elections in Haiti not a single Haitian was granted political asylum in 1987. Not a single Haitian.
No. 2, according to refugee reports, of the more than 20,000 Haitians interdicted, only six have been brought to the United States to pursue political asylum claims.
Number three, the same report stated that between June 1983 and September 1988, of the more than 1,700 Haitian asylum cases decided, only 2 percent were approved. And you stated that earlier, Mr. Chairman.


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And, number four, the Krome Detention Center has a capacity for 525 persons. Currently there are approximately 700 individuals incarcerated there. An estimated 70 percent are Haitians, and very few of the immigration staff at the center speak Creole.
These situations paint a very questionable picture with regard to fairness with which our immigration laws are applied. The inconsistencies in the policy as they are directed towards Haitians versus other foreign nationals who migrate to this country are witnesses more closely in Dade County than any other locale.
I close by saying that it is nothing fair, it is nothing equitable about the policies. They are discriminatory. And, in conclusion, I say that political and economic systems are too closely intertwined to allow arbitrary classifications to be applied automatically. That the Haitians undertake a life-threatening journey when they leave their island by boat in their quest for freedom. These desperate acts by men and women willing to give their lives in the pursuit of their dreams demand priority consideration and your immediate attention, and I am so happy to see that you are doing that. It gives me hope that something is going to happen. Haitians fleeing their country should be dealt with fairly as other nationals. The perceptions, Mr. Chairman, are real. Eliminate the double standards.
And thank you very much for allowing me these few minutes. Mr. Morrison. Thank you for being with us. [The prepared statement of Ms. Carey follows:]


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PREPARED STATEMENT OF BARBARA CAREY, COMMISSIONER, DADE COUNTY, MIAMI, FL
Mr. Chairman and members of the Subcommittee on Immigration, Refugees, and International Law, I am Barbara Carey, County Commissioner, from Metropolitan Dade County, Florida. I appreciate the opportunity to appear before you today as you begin an oversight hearing on the interdiction and detention of Haitians attempting to enter the United States. I sincerely hope that as you review these policies you will look closely for comparisons to policies Implemented towards other foreign nationals who seek respite within our borders. I believe that as a result of your search for similarities and comparisons you will only find disparity and extremes in our nation's treatment of Haitian Nationals. It is to that point that I will address my comments.
Representing Metropolitan Dade County, a community which has had 30 years of experience in dealing with Immigration and refugee matters, affords me an opportunity, rare to most local officials, to experience the effects of immigration policies firsthand. We in Dade County, are not newcomers to the irrmlgration debate. Therefore, I must share with you that the current policies governing the immigration of Haitians have created feelings and beliefs on the part of the Black
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community and residents of Dade County as a whole, that these Individuals are being deliberately and unfairly singled out for treatment not experienced by any other Immigrant groups. Since the rationale for this policy cannot be clearly expanded and justified when comparisons are made, 1t leads to the perception that the only possible reason for these actions to be taken against Haitians is because of the color of their skin.
Anticipating this perception and desiring equality of treatment for all who come to our community, my colleagues on the Commission as well as the administration have, since 1980, taken the position that immigration policy must guarantee fairness and equity in the treatment of all Individuals who seek to enter this country. Over the past nine years I have actively opposed the interdiction policy, the creation of a permanent detention facility at the Krome Avenue site, and have asked for humanitarian releases for Haitians detained there.
All changes 1n policy must be accompanied by facts which should provide the foundation through which the change Is made. Clearly, public perception is not enough. In addition, we assess the effectiveness of our policies through the
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successes they achieve. Thus the question should be posed, has the interdiction policy worked by reducing the number of Haitians attempting to enter the United States? On face value, the answer would appear to be yes. However, let me share some facts that should be considered:
1) Since 1981, more than 20,000 Haitians have been interdicted off the Florida coast, yet in March 1989 alone, 1,535 Haitians In 17 vessels were stopped representing the largest monthly total in this policy's 8 year history.
2) So far this year, 2,545 Haitians have been Interdicted.
3) The total number of Haitians Interdicted in 1988 was 33% higher than in 1987, and based upon the numbers reflected so far this year, the percentage will increase In 1989 as well.
Based upon these facts, the interdiction policy is having no appreciable impact on discouraging Haitians from fleeing their homeland. However, it is creating acts of desperation by Haitians at sea who, when faced by the Coast Guard, are threatening suicide rather than be boarded, resulting 1n lengthy and emotional negotiations In order for the Coast Guard to carry out their orders. An example of this
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emotionally charged situation occurred off the Florida coast as recently as June 1. When a boat containing more than 100 Haitians was confronted by the Coast Guard, Individuals on board threatened to throw their Infant children into the seas rather than be forced to return to Haiti. Negotiations which began In the early afternoon were not successfully completed until after 10 p.m. that night and the Coast Guard cutter required the assistance of three additional Coast Guard ships to calm the situation. Besides the Issues of fair play, due process, and simple human compassion that are called into question as a result of these actions, the cost to the federal government to implement its policy on June 1, alone must be staggering. This 1s the second of this type of confrontation since March of this year and if they continue only tragedy will result.
Clearly, the interdiction policy is not reducing the number of Haitians attempting to enter the United States, is becoming increasingly confrontational, is diverting desperately needed resources away from the battle against incoming drugs, and 1s.effectively Implemented only against Haitian Nationals. Therefore, 1t must be rescinded unilaterally.
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As with the Interdiction policy, a close review of the policy regarding the detention of Haitians calls Into light questions of fairness, equity, and due process. Haitians are caught between legal definitions that are separated only by interpretations. They are considered, for the most part, as excludable rather than deportable aliens. Theoretically speaking, they have never entered the country and therefore are not entitled to lengthy due process rights including various levels of appeals or work permits as they await the outcome of their case. On the other hand, individuals who cross our borders 1n Texas, who are not caught by INS are oftentimes considered deportable aliens and afforded the very rights that the Haitians are denied. These legal distinctions, albeit defensible from INS's standpoint, leave our country's immigration policy subject to charges of favoritism or political expediency, neither of which has a place in an equitable immigration policy.
The concept of "economic refugees" consistently seems to be applied to Haitians as opposed to other immigrant groups, thereby effectively eliminating their claims of political asylum and making their detention more easily Justified. Certain occurrences demand that this "label" be more closely reviewed. For example:
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1) Although we all witnessed the bloody outcome of the attempted 1987 elections 1n Haiti, according to a viewpoint article 1n New3day, not a single Haitian was granted political asylum 1n 1987.
2) According to Refugee Reports, of the more than 20,000 Haitians interdicted only 6 have been brought to the United States to pursue political asylum claims.
3) That same report stated that between June of 1983 and September 1988, of the more than 1,700 Haitian asylum cases decided only 2% were approved.
4) The Krome Detention Center has a capacity for 525 persons. Currently, there are approximately 700 Individuals incarcerated there, an estimated 70% are Haitians, and very few of the immigration staff at the center speak Creole.
These situations when looked at collectly, paint a questionable picture with regard to fairness in which our Immigration laws are applied. The inconsistencies in the policies as they are directed towards Haitians versus other foreign nationals who migrate to this country are witnessed more closely in Dade County than in other locales. These
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disparities, both real and perceived, serve only to heighten the frustration and anger 1n the Black community as a whole. I respectfully request that this committee move swiftly to restore fairness and equity to our immigration laws.
In conclusion, this country's founders fled their homelands not only because of religious or political persecution, but because they were unable, as a result of their government's policies, to provide the basic needs for their families' survival. Political and economic systems are too closely intertwined to allow arbitrary classifications to be applied automatically. The Statue of Liberty hold out her arms to the tired, poor and huddled masses yearning to be free. The Haitians undertake a life threatening journey when they leave their Island by boat in their quest for freedom. These desperate acts by men and women willing to give their lives 1n pursuit of their dream demands priority consideration and your attention.
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Mr. Morrison. Reverend.
STATEMENT OF REV. GERARD JEAN-JUSTE, EXECUTIVE DIRECTOR, HAITIAN REFUGEE CENTER
Reverend Jean-Juste. Good afternoon, Mr. Chairman. Good afternoon, everyone.
We thank you, Mr. Chairman, for allowing us to testify today, and on behalf of the Haitian Refugee Center, I would like to present some evidences, and we have submitted our written statement already. We have added the package of affidavits to corroborate our statement.
Mr. Morrison. Those affidavits will be made a part of the record as well.
Reverend Jean-Juste. Thank you very much, Mr. Chairman.
And also on behalf of many pregnant women who are suffering so much, on behalf of the minors, on behalf of the parents whose hearts are bleeding, on behalf of the husbands and wives who are separated, on behalf of America, those who have conscience in America, I have to say thanks to them for allowing us to speak out some of the truth here. Because I don't think this present administration is aware of what is going on in south Florida, is aware of what is going on in some of the camps in Texas and Louisiana. So we will appreciate that, if anyone of you can present this documentation to the administration, to Mr. Bush's administration, because this is everything going on in America, and if we can correct that I think God will bless not only you, Mr. Chairman, but will bless America and will bless many other Americans and keep this country in good shape for further generations.
Also, Mr. Chairman, I would like to tell you that the interdiction policy that INS, that this Government is implementing is really devastating. It is ugly. It is an ugly scar on the face of America, and we would like to see that these Haitians, the black boat people of America, we would like to see these group of refugees stop being interdicted.
And we must understand that the Haitians are fleeing a regime where they cannot survive. There is a new saying in Haiti these days: The teeth of the shark are sweeter than the jaws of Prosper Avril, the President of Haiti. And we would like people to understand that the Haitians are not fleeing Haiti because they do not love Haiti; it is because they cannot tolerate, they cannot survive that repression in Haiti.
And the covert manner in which these boat people are dealt with offends the conscience and tradition of the American people. The amount of time and money spent in returning Haitian boat people is in stark contrast to President Bush's calls for a kinder and gentler America.
Also, Mr. Chairman, I would like to say despite several landmark cases in the Federal court over the past decades finding that Haitians have been subjected to blatant discrimination and denial of due process, despite irrefutable evidence of continued political oppression in Haiti, despite the Refugee Act of 1980 removing a bias in law favoring those fleeing from Communist regimes, the INS, the executive officer of Immigration Review and the U.S. State De-


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partment have single mindly pursued their prior course of misconduct. Discharging their legal obligations, these executive and administrative bodies have continued to engage in such invidious action as issuing form letters which conclude there is no persecution of dissidents in Haiti, demeaning evidence and testimony offered in support and of clearly meritorious individual asylum claims and repeatedly violating the Haitian asylees' due process rights to a full and fair hearing, and all to effect a blanket denial of asylum for Haitians.
Also, we presented some facts about detention, what is going on at the camps. Minors are being detained at different camps of INS. They were detained in Krome, sent to Texas and to Louisiana, and also I have to bring to your attention that the INS is detaining minors on the basis of statements made by the Krome dentist or dental assistant that the detainees in question may be 18 years of age. These minors are being held at Krome and being held at some other facilities.
Krome, the conditions at Krome. The conditionit is filled. Krome, as you know, is mostly Haitians. It is mostly packed with Haitians. And Haitians are confined to dormitories for unusually long periods of time during the day and locked in their room immediately after dinner until the following morning. Detainees had severely limited access to bathrooms, and sometimes detainees are forced to do their urine on themself. Detainees are forced to do their human wastes on themself because they are not allowed to go to the bathroom. It is inhumane that this is happening in America.
They have no access to telephones, and most of the time they cannot get in touch with their lawyers. They cannot get in touch with the Haitian Refugee Center. It is very difficult.
And detainees are not receiving proper medical attention. And the way things are goingas the light is turning red nowI would say, Mr. Chairman, what is going on in a prelude of a concentration camp in America 30 miles southwest of Miami Beach. These things should not take place in the United States of America.
And, also, these days we are celebrating the 40th anniversary of the SS St. Louis boat, packed with Jews being returned to Europe. It is a disgrace. It had been a disgrace to send these people back to their deathsome of them back to their death. Some of the survivors who are living in Miami are angry of what happened. And we, today, we are seeing the same thing being repeated. So we say no to Hitlerism in America. We say no to fascism in America. We appreciate that this committee gave us the opportunity to come here and tell you that things are not good. And we thank God Almighty because you have a good heart to bring this subject. You come to visit us in Florida and you meant business. You have further discussed, and called upon us to come here to witness about the situation. What you are doing is preserving the tradition of America America giving shelter, giving opportunity to everyone regardless of color. These black boat people of America, we are God's children like everybody else.
And we would like that Mr. Bush understand what those pregnant women are suffering. This administration calls themselves a champion on pregnancy, against abortion, and they have support all around the Nation. The church supports them. It is about time


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that these black pregnant women find some support. They should be united with their husbands. One of them almost gave birth at the INS district director's office the other day.
Mr. Chairman, I would like that if we can find ways to make these things public so the suffering of these people in Texas and Louisiana, in Florida, could stop. We appreciate very much your help, Mr. Chairman. And remember, in Haiti the jaws of Mr. Avril are worse than the jaws of the sharks at sea.
Mr. Morrison. Thank you very much, Reverend.
[The prepared statement of Reverend Jean-Juste follows:]


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Haitian Refugee Center
22 north East 34th Street / Miami, Tlorfda 33137 I (305) 737-3538 STATEMENT Of THE HAITIAN REEUGE2 COTTER
Th Haitian Refugee Center, Inc. t'HRC") is a non-profit corporation located in Miami, Florida which, provides free legal assistance to indigent Haitians seeking political asylum in the Onitad Statas. We thank you for the opportunity to present oux views regarding tha cooplax issues surrounding Haitian datantion and interdiction.
Haitians who have arrivad on our shores in search of political asylum hava been singled out for special discrimination. Those daring the perils of tha ocean in unseaworthy boats fare no better and are mat by an army of Coast Guard officials who turn them back to the land they fled by the thousands, without recourse. Generally dismissed solely ea'economic" refugees by the IKS, they are judged unworthy of refugee status...a status awarded indiscriminately to all Cubans seeking refuge in the U.S. prior to 1980.
Typically less than 1* of Haitians are awarded political asylum in this country on an annual basis. During 1967-1938, only eight Haitians nationwide vera deemed worthy of asylum status. According to tha INS, no more than sixty (60) Haitians have been granted asylum in the past eight years. Those denied asylum are ordered deported, and generally have no other relief available to them. By contrast, all Cubans who arrive here who have not affected an "entry" into the OS, whether or not they seek asylum, can apply for lawful permanent resident status after one year of physical presence in the United States under the Cuban Adjustment Act of 1966. To those of us who have worked with Haitians in order to assist them in their dealings with the IKS and the immigration courts, it clearly appears that the bias currently directed toward the Haitians is to a large extant racially motivated.
Despite several landmark cases in the federal courts over the past decade finding that the Haitians have been subjected to blatant discrimination and denial of due process, despite the irrefutable evidence of continued political oppression in Haiti, despite the Refugee Act of 1930 removing a bias in law favoring those fleeing from Communist regimes, the INS, the Executive Office of Immigration Review and the US State Department have singla-mindedly pursued their prior course of misconduct. Discharging their legal obligations, these executive and administrative bodies have continued to engage in such invidious actions as Issuing form letters which conclude there is no persecution of dissidents in Haiti, demeaning cogent evidence and.testimony offered in support of clearly meritorious individual asylum claims and repeatedly violating the Haitian asylees' due process rights to a full and fair hearing, all to effect a blanket denial of Haitian asylum claims.
A pressing need exists for Haitians to be treated in a fair,and equitable manner at all stages of the asylum process. The administration's lackadaisical tolerance of the existing disparity is utterly unacceptable. Haitians who come to our country in search of freedom are languishing indefinitely behind barbed wire, never knowing whether they will see an attorney, never knowing whether they will be arbitrarily subjected to a loekdewn, never knowing whether they will be forced to undergo physical and/or mental abuse, never knowing whether they will be transferred to a place far removed from family and attorneys, and never knowing whether they will be forcefully returned to Haiti without even a fair hearing.


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Nothing excuses the current inhumane policy of imprisoning hopeful, helpless Haitian refugees behind barbed wire month after month, under the most questionable of conditions, without offering them a fighting chance to present their asylum cases. The treatment of the Haitians is a very real measure of our commitment to equal justice tinder the law. Judging from that measure today, cur policy of interdiction and detention is seriously wanting. Effective April 7, 1989, the Canadian government suspended the deportation of all Haitian nationals. Canada's Minister of Employment and Immigration, Barbara McOougall, undertook thia measure in response to the political upheaval in Haiti. Similar measures by our own government are long; overdue*
What follows is a summary analysis of certain of the obstacles imposed on Haitian
asylum seekers, whether interned at detention camps inside the United States or
Interdicted at sea. Affidavits and other evidence bearing on these matters will be made available at tha hearing.
I. DETENTION OP HAITIAN ASYXEES
1. Detention of Minora
The INS routinely detains Haitian minors at the Krone North Processing Center ('Krome) in Miami, Florida, despite the fact that these individuals frequently have legitimate proof of their age, such as an original birth certificate. The XHS is detaining these minora on the basis of statements made by the Krome dentist and/or dental assistant that the detainee-in-question may be 18 years of age. These minors are being held at Krome along with the general population.
2. Conditions at the Krome Detention Center
The Krome camp is filled primarily with Haitian detainees. As of April 26, 1989, there were 700 detainees at Krome, 51S cf whom were Haitian. We have received numerous reports from private attorneys as well as from the Haitian detainees themselves that the following conditions exist at Kromej
a. From approximately April 15, 1989 May 11 1989 (during this time there was no lockdown in effect and no reports of inmate misbehavior or any other kind of disturbance)
Detainees were confined to dormitories for unusually long periods of time during the day and locked in their rooms immediately after dinner until the following morning.
Detainees had severely limited aceess to bathrooms which apparently were not available to them from the time breaXfast was completed until lunchtime. After lunch the bathrooms were opened for a brief time and then locked again until dinner. Many detainees were forced to resort to the unsanitary practice of using soda cans to relieve themselves, creating an unbearable smell in the men's dormitories. Similarly, access to showers was limited as shower facilities were locked arbitrarily.
Access to telephones was arbitrary and limited, as detainees were only.allowed to make calls zor brief periods of time during specific times of the day, often only in the evening, and never knew in advance when they would be able to place such calls. Access to phones was routinely provided on a ceil block/section basis and
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entire blocks consisting of Approximately 50 people were frequently alloted only 30-45 minutes of phone time per day. Such restrictions in effect prevented many detainees from reaching organizations like the Haitian Refugee Center, Inc. {"HRC"), where phone lines are constantly very busy and several calls must be made before getting through. Additionally, from January 1, 1989, until approximately the beginning of May, detainees frequently could only make collect calls from Krone, making it impossible to get through to parties not accepting such calls. This situation was exacerbated for the Haitian detainees who often spoke no English but had to go through an English-speaking telephone operator to place a collect call.
Detainees were not receiving proper medical attention. Many of the women complained about itching sores appearing on their body a few days after their arrival at Krome. Others complained of severe flu symptoms or acute depression. The only medical treatment given in these cases appears to have been aspirin.
Clean clothing and/or linen was generally not available on a regular and reasonable basis.
Detainees were placed in solitary for long periods of time, without explanation, and often subjected to uncomfortable temperatures and unsanitary conditions while so confined.
Detainees were subjected to physical abuse by INS guards* Such abuse included actual physical battery by officers who struck tha detainees .with fists and handcuffs, in addition to pushing and manhandling them. The Haitians appear to have received rougher treatment than the rest of the population.
Detainees were pressured by INS officials to sign statements agreeing to return to Haiti. Detainees were told they would remain in Krome until their death unless they returned to Haiti.
b. May 11, 1989 May 18, 1989 (Krome was in a complete lockdown during this time)
Detainees had absolutely no access to telephones during the eight days of the lockdown (telephones were disconnected). Detainees report they were told they could not use the telephones because they intended to "spread lies-' about what the INS was doing to them. They also could not send out or receive any mail.
Attorneys had no access to clients or potential clients, except in a few limited cases to file notices of appearance or to appear at a motion to change venue hearing. During lockdown when change of venue hearings were being held, attorneys frequently were not apprised that these hearings were taking place and were prevented from filing 0-23's (notices of appearance).
Detainees had severely restricted access to bathrooms and showers. Certain callblocks/sections, consisting of approximately 45-50 detainees, had access to bathrooms for about 5 minutes, two to three times a day. Other csllblocks/ sections had to depend on a guard to gain access to the bathrooms. Detainees in desperation urinated and defecated on such items as towels. Use ot showers was similarly restricted or forbidden.
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Detainees were oftan given only a few minutes (2-5 minutes) to eat their meals and were effectively prevented from eating a full meal. As soon as detainees put food on their plates, they were ordered to leave the area*
Detainees were confined to dormitories around the clock, except for trips to meals and bathrooms, and were not allowed to participate in scheduled classes, etc.
Detainees were awakened in the middle of the night.and-forced to engage in vigorous exercise. They were also forced to jog back and forth to the cafeteria, frequently in the hot sun.
Detainees were physically assaulted and battered by INS officers* Acts of physical abuse suffered by the detainees included being hit on the arms and neck with handcuffs, being hit on the back off the head with a radio, being choked with a towel, being pushed against a fence, and being struck on the neck with a walkie-talkie which was held by an officer.
Hale detainees were ordered to undress were strip searched and forced to stand naked in front of female officers for 20-2S minutes. During'this time, officers searched detainees' rooms and confiscated such items as money, cigarettes, pipes, letters, phone books, diaries, dictionaries. Bibles, pens, pencils, INS documents, identification papers, work permits and birth certificates. These items.have not been returned to the detainees.
c. May 18, 1989 present (after lockdown lifted)
on May 18, the day the lockdown at Krome was lifted, an announcement came over the loudspeakers at Krome informing the detainees, among other things, that while they would now be allowed to speak with their attorneys and families, any mention by tha detainees about events that occurred during the lockdown would result In their being shipped to Texas or placed in jail within 24 hours after the incident occurred. This announcement was apparently made in English, Creole and Spanish, further, the women were told by the guards they could be sent to Haiti or Texas if they spoke of events during tha lockdown and the men were similarly instructed by a non-uniformed INS official, apparently of high rank.
While detainees report shocking events have taken place at Krome in recent weeks, they are very frightened to sign any statement to thi effect for fear of reprisals in the form of having communication with attorneys- and family members cut off, being transferred to remote areas of the country, being denied parole, being jailed indefinitely, being placed in isolation or being deported.
d. The INS maintains the lockdown went into effect because they discovered a conspiracy among certain Haitian detainees to burn the Krome facility down and escape, with the help of certain Haitian advocate organizations who were planning a major demonstration at Krome on the day these alleged criminal acts were to take place (May 14). We are extremely hesitant to believe these allegations for several reasons. First, detainees tell us that many of the items the INS claims to have found during their search and which the detainees allegedly planned to use to riot and escape wore items which were given to detainees by the INS prior to the lockdown and/or openly used by the detainees for weeks before lockdown. For example, wires displayed by the INS during a press conference appear to have