Haitian Refugee Protection Act of 1992

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Haitian Refugee Protection Act of 1992 report together with dissenting views (to accompany H.R. 3844) (including cost estimate of the Congressional Budget Office)
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Report / 102d Congress, 2d session, House of Representatives ;
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United States -- Congress. -- House. -- Committee on the Judiciary
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Haitians -- Legal status, laws, etc -- United States   ( lcsh )
Refugees -- Legal status, laws, etc -- United States   ( lcsh )
Emigration and immigration law -- United States   ( lcsh )
Haïtiens -- Statut juridique -- États-Unis   ( ram )
Réfugiés -- Statut juridique -- États-Unis   ( ram )
Émigration et immigration -- Droit -- États-Unis   ( ram )
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federal government publication   ( marcgt )
non-fiction   ( marcgt )

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"February 25, 1992."

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102d Congress 2d Session
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HOUSE OF REPRESENTATIVES
Report 102-437
HAITIAN REFUGEE PROTECTION ACT OF 1992
February 25,1992.Committed to the Committee of the Whole House on the State of the Union and ordered to be printed
Mr. Brooks, from the Committee on the Judiciary, submitted the following
The Committee on the Judiciary, to whom was referred the bill (H.R. 3844) to assure the protection of Haitians in the United States or in United States custody pending the resumption of democratic rule in Haiti, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu thereof the following:
section 1. short title.
This Act may be cited as the "Haitian Refugee Protection Act of 1992".
sec. 2. protection of haitians in united states custody.
The President shall provide that no Haitian in the custody or control of the United States as of February 5, 1992, whether on board United States Government vessels, at Guantanamo Bay, Cuba, or elsewhere, outside the United States will be involuntarily returned to Haiti until
(1) 180 days after the date of the enactment of this Act, or
(2) 5 days after the date of submission of the final report under section 3(c), whichever occurs later.
sec. 3. department of state study and report.
(a) Study of Haitians Returned to Haiti.The Assistant Secretary of State for Human Rights and Humanitarian Affairs, in conjunction with the United States Coordinator for Refugee Affairs, shall conduct a study concerning Haitians who were interdicted or rescued by United States Government vessels after September 29,
REPORT
together with
DISSENTING VIEWS
[To accompany H.R. 3844]
[Including cost estimate of the Congressional Budget Office]
59-006


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1991, and were returned to Haiti and concerning Haitians who were deported from the United States after such date. Such study shall assess their condition and circumstances in Haiti after their return, with particular attention to any violations of fundamental human rights.
(b) Participation op Human Rights Organizations.In conducting such study the Assistant Secretary of State for Human Rights and Humanitarian Affairs shall use the resources, information, and expertise of internationally-recognized human rights organizations and such other sources as may be appropriate.
(c) Congressional Reports.The Assistant Secretary of State for Human Rights and Humanitarian Affairs shall prepare and submit to the Speaker of the House of Representatives and the President of the Senate a detailed preliminary report of the findings of the study under subsection (a) not later than 90 days after the date of the enactment of this Act, and a final report not later than 180 days after the date of the enactment of this Act.
(d) Congressional Inquiries.The Assistant Secretary of State for Human Rights and Humanitarian Affairs shall respond not later than 7 working days after receipt of a written request of a Member of Congress for information concerning the study or reports under this section.
sec. 4. reallocation of 2,000 federally funded refugee admissions during fiscal year 1992 to haiti.
(a) In General.The President shall change the allocation of refugee admissions for fiscal year 1992 provided in Presidential Determination 92-2 (pursuant to section 207(aX3) of the Immigration and Nationality Act) so as to provide for an allocation of at least 2,000 Federally funded refugee admissions to Haitian refugees of special humanitarian concern.
(b) Use of Current Federally Funded Refugee Admissions.In changing the allocation of refugee admissions during fiscal year 1992 pursuant to subsection (a)
(1) the total number of such refugee admissions shall remain the same;
(2) the 1,000 refugee admissions allocated to the category "Unallocated (funded)" shall be reallocated to refugees described in subsection (a); and
(3) the remainder of the refugee admissions reallocated under subsection (a) shall come from such other category (or categories) as the President specifies.
sec. 5. congressional statement.
The Congress urges the President and the Secretary of State to participate actively with the United Nations High Commissioner for Refugees and the governments of the member countries of the Organization of American States (OAS) in the convening of an international conference on Haitian refugees and displaced persons which seeks to adopt a comprehensive program of action to solve the Haitian refugee crisis in all its aspects, taking into account the concerns of all interested parties and the rights and welfare of Haitian refugees and displaced persons.
sec. 6. certain haitians ineligible to receive visas and excluded from admission.
(a) Exclusion.During the period specified in subsection (c), an' alien designated under subsection (b) shall be ineligible to receive any visa and shall be excluded from admission into the United States.
(b) Designated Alien.An alien designated under this subsection is any alien who
(1) is a national of Haiti; and
(2XA) provided financial or other material support for, or directly assisted, the military coup of September 30, 1991, which overthrew the democratically-elected Haitian Government of President Jean-Bertrand Aristide; or
(B) provided financial or other material support for, or directly participated in, terrorist acts against the Haitian people after that coup.
(c) Period of Exclusion.The period of exclusion specified in this subsection begins on the date of the enactment of this Act and ends on the date on which the President certifies to the Congress that democratically elected government has been restored in Haiti consistent with the Haitian Constitution.
explanation of amendment
Inasmuch as H.R. 3844 was ordered reported with a single amendment in the nature of a substitute, the contents of this report constitute an explanation of that amendment.


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summary and purpose
The purpose of H.R. 3844 is to prohibit for 180 days the involuntary repatriation of Haitian nationals who were in the custody of the U.S. Government outside the United States on February 5, 1992, to prohibit the admission to the United States of any Haitian national involved in the September 30, 1991 coup, to provide at least 2,000 refugee admissions numbers for Haiti in fiscal year 1992, to ensure that Congress receives from the Department of State full and accurate information concerning the fate of repatriated Haitians, and to call on the President and international organizations to convene a conference on the Haitian refugee crisis.
hearings
On November 20, 1991, the Subcommittee on International Law, Immigration and Refugees held an oversight hearing on Cuban and Haitian immigration to the United States. Witnesses included Members of Congress, representatives of the Departments of State, Transportation, and Justice, and interested private parties.
committee vote
On February 20, 1992, a reporting quorum being present, the Committee on the Judiciary ordered H.R. 3844 favorably reported by a recorded vote of 21 to 12.
discussion
I. Background
Throughout much of its history, Haiti has experienced poverty, violence, and repressive governments. From 1957 to 1986, Francois Duvalier and his son Jean-Claude Duvalier governed Haiti in dictatorships known for corruption, lavish lifestyles among the elite, and using a private militiathe Tontons Macoutesto terrorize dissenters. From 1986 to 1990, Haiti's ongoing political turmoil was evidenced by five abrupt changes in government. Efforts for democratic national elections in 1988 were thwarted by violence, including the massacre of voters on election day.
On December 16, 1990, Father Jean-Bertrand Aristide overwhelmingly won election as President in what most observers considered the first free and fair election in Haiti's history. Although Aristide's brief tenure as President was not without charges of retribution against political enemies, most of the international community, including the United States, strongly condemned the military coup that began on September 30 and ousted him on October 1, 1991.
Reports of human rights abuses in Haiti since the coup nonetheless caused considerable concern in the international community. For example, the State Department's 1991 Human Rights report though subject to some dispute and criticismon Haiti cites evidence of arbitrary arrests, tortures, beatings, extrajudicial killings and disappearances under the new government. Americas Watch issued a report at the end of 1991 maintaining that, although the widespread killings subsided within a few weeks of the coup, the military government has continued selected assassinations, arrests,


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and beatings. In a report issued in January 1992, Amnesty International described a situation of "grave human rights abuses" in Haiti and argued that it is extremely difficult and dangerous to investigate claims of human rights abuse.
In 1981, the Reagan administratioin began a program to interdict, i.e. stop and search, certain vessels suspected of transporting undocumented Haitians to the United States. This program was authorized by an agreement, made with then-dictator Jean-Claude Duvalier, that allows the Coast Guard to board and inspect private Haitian vessels on the high seas and to interrogate the passengers. Haiti is the only foreign government with which the United States has such an alien migrant interdiction agreement.
Until early 1991, an INS interviewer and Coast Guard official, working together, would check the immigration status of the passengers and return those passengers deemed to be undocumented Haitians. Originally, an alien in question must have volunteered information to the Coast Guard or INS interviewer that she or he would be persecuted if returned to Haiti in order for the interdicted Haitian to be considered for asylum. Ultimately, INS would determine the immigration status of the alien in question. From 1981 through 1990, 22,940 Haitians were interdicted at sea. Of this number, INS considered only 11 Haitians qualified to apply for asylum in the United States.
Coast Guard data on Haitian migrants encountered on boats and rafts in the past 10 years show that there was a sharp drop in Haitian interdictions in 1990. This change coincided with the scheduling of democratic elections and the promise of international economic aid that would accompany the political reforms.
Since the military overthrow of President Aristide, the number of Haitian interdictions has dramatically increased, with the Coast Guard interdicting more Haitians in November 1991, (6,013) than were interdicted in all of 1988, the peak year prior to 1991. Interdictions in January 1992 alone (6,653) surpassed the previous yearly high. The total number of Haitians interdicted by the Coast Guard since the coup reached 15,749 by February 18, 1992.
Effective March 1, 1991, INS instituted several changes in the pre-screening process that occurs during interdiction. These changes include an opening statement by the INS representative on board that explains the purpose of the interviews. The interviews are to be conducted in private, and any Haitian asserting a fear of returning home is to receive a more in-depth interview with the INS officer. Haitians who express a credible fear of returning to Haiti are sent to Miami to formally file for asylum.
Between the time of the coup and February 25, 1992, INS found that 5,213 Haitians had made credible claims for asylum and 1,826 of these individuals have been brought to the United States to pursue those claims. The remaining 3,387 are scheduled to be brought in as well.
On November 19, 1991, U.S. Federal District Judge Donald L. Graham in Miami issued a temporary restraining order (TRO) halting the forced return of interdicted Haitians. In bringing the suit, the Haitian Refugee Center (HRC) claimed, among other things, that the repatriation of Haitians under current circumstances violates the principle of nonrefoulement. This principle, as included in


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the United Nations Protocol Relating to the Status of Refugees, forbids the return of an alien to a country where the alien's life or freedom would be threatened on account of race, religion, nationality, political opinion, or membership in a particular social group.
The administration, in response, argued that Haitians interdicted on the high seas have not crossed into the territorial limits of the United States and are not entitled to the protections of the U.S. Constitution or the Immigration and Nationality Act until they arrive in the United States. The administration prevailed in the 11th Circuit Court of Appeals in Atlanta which, in a 2 to 1 ruling on December 17, overturned the lower court decision, dissolved the injunction, and remanded the case to the district court. Within a few hours, however, U.S. Federal District Judge C. Clyde Atkins in Miami issued the second TRO halting the repatriation of the Haitian migrants. The same 11th Circuit Court of Appeals panel stayed that TRO, and Judge Atkins issued a third injunction on December 20, which the administration again appealed. Ultimately, the U.S. Supreme Court, on January 31, 1992, held the Government's right to resume repatriations, and on February 24, 1992, denied HRC's petition for a writ of certiorari.
77. Need for legislation
A. Prohibition against forced repatriation
The Immigration and Nationality Act, as amended by the Refugee Act of 1980, provides for the annual admission of refugees from abroad. The Act defines a "refugee" as a person who is unable or unwilling to return to his native country because of "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion *" (8 U.S.C. 1101(a)(42)(A)). Similarly, an alien already in the United States who can demonstrate that he is a refugee may be granted asylum. (8 U.S.C. 1158(a)). And finally, the Refugee Act specifies that no alien shall be deported to a country where that alien's life or freedom would be threatened on account of race religion, nationality, membership in a particular social group, or political opinion. (8 U.S.C. 1253(h)).
Although there is no universally accepted definition of "persecution," it is clear under international law that a person fleeing a life-threatening situation cannot claim persecutionand therefore cannot be a refugee or asyleesimply on that basis. The "Handbook on Procedures and Criteria for Determining Refugee Status," which was published in 1979 by the United Nations High Commissioner for Refugees, speaks directly to this point: "The expression 'owing to a well-founded fear of persecution,' by indicating a specific motive automatically makes all other reasons for escape irrelevant to the definition." Thus, danger resulting from the existence of a generalized state of violence within a country does not constitute persecution. (See UNHCR Handbook p. 14). This view is consistent with U.S. domestic law. In Chavez v. INS, 723 F.2d 1431, 1433 (9th Cir. 1984), for example, the court held that "tragic and widespread danger of violence" is not persecution under 8 U.S.C. 1253(h).


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That an individual is not, and will not be, persecuted provides no guaranty that he will be allowed to lead a life of peace and security. If there is random violence or civil warfare in a country it is of little consolation to an individual struck by a bullet that the person who pulled the trigger was aiming at someone else.
Recognizing that in some circumstances an individual who cannot show persecution may nonetheless be subjected to great danger if forced to return home, every Administration since and including that of President Eisenhower has permitted one or more groups of otherwise deportable aliens to remain temporarily in the United States out of concern that the forced repatriation of these individuals could endanger their lives or safety. Between 1960 and 1990, this deferral of deportation, which was known as "Extended Voluntary Departure" (or "EVD") was exercised at various times for the benefit of aliens from 15 different nations.
In testimony before the Subcommittee on Immigration, Refugees, and International Law, on October 28, 1987, Assistant Secretary of State for Human Rights and Humanitarian Affairs Richard Schifter spoke of the importance of creating a statutory remedy for persons who, though unable to demonstrate persecution, would nonetheless be endangered if forced to return home:
Mr. Chairman, you mentioned at a hearing a few months ago, and again, just today, that aside from the categories of aliens now living in the United States which are recognized by existing legislation, there is another group which should be given the opportunity of such recognition. Namely, these are persons in the United States whose home countries are strife torn and yet they do not qualify for refugee status.
We recognize, of course, that there are many such countries throughout the world and that we can't offer refuge to all those who are so affected. We believe, however, that you and your colleagues, having recognized the risks posed, have drafted a bill which balances our humanitarian concerns with a need to prevent abuse.
Our prepared modifications suggest further safeguards against further abuse of the humanitarian provisions of the bill. Therefore, Mr. Chairman, I am pleased to appear before you today to present the position of the Department of State on H.R. 2922, the Temporary Safe Haven Act of 1987.
As I indicated, the State Department supports this bill as a reasonable and effective means of dealing with a very important humanitarian issue.
We believe that the bill helps to fill the gap that exists in our current immigration laws, between the treatment of immigrants on the one hand, and refugees and those seeking asylum, on the other hand.
Section 302 of the Immigration Act of 1990 (Public Law 101-649) authorizes the Attorney General to provide Temporary Protected Status (TPS) to aliens in the United States who cannot safely return home. TPS, the conceptual equivalent of the "safe haven bill discussed by Secretary Schifter in his 1987 testimony, has al-


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ready been provided to nationals of Kuwait, Liberia, Lebanon and Somalia by the Attorney General. In addition, in 1990 Congress directed the Attorney General to provide TPS to nationals of El Salvador. At this time, over 200,000 persons in the United States benefit from TPS.
The 32 years of U.S. experience with "safe haven" programs (i.e., EVD and TPS) and the fact that safe haven has been provided to various nationalities in 20 instances since 1960 puts to rest the contention that the prohibition, contained in this bill, against the forced repatriation of Haitian nationals is novel, uniquely generous, or carries unforeseeable consequences. On the contrary, the Committee views this bill as fully consistent with previous episodes in which compelling humantarian circumstances demanded a sympathetic response.
The Committee has taken no view as to the adequacy of the process used by the Administration to determine whether an interdicted Haitian has formulated a credible fear of persecution. Currently, approximately 35 percent of those interviewed have been found to have expressed such a fear. The issue, however, is not whether all or none or some of the Haitian asylum-seekers have legitimate fears of being singled out for persecution. Instead, the question is whether conditions in Haiti are sufficiently safe that the United States can in good faith return to that country all individuals who did not prove to the satisfaction of the INS that they would be singled out for persecution in Haiti.
B. Establishment of Haitian Refugee Program
For decades, the United States has had the most generous refugee resettlement program in the world. This tradition continues, with the United States expected to accept and resettle up to 142,000 refugees from around the world this fiscal year.
Despite this history, the Executive Branch of the U.S. Government has never formally admitted to the United States as a refugee any national of Haiti, a remarkable fact given the history of violence and repression in that country.
On January 30, 1991, the Department of State announced that it would begin to process and screen, in Port-au-Prince, Haitian nationals who wish to apply for refugee status. Although the Committee welcomes this development and urges the Department to begin this program as soon as possible, the State Department's announcement that it would allocate no more than 300 refugee admissions numbers for this program is disappointing. The Committee believes this number must be increased, and accordingly H.R. 3844 requires the administration to allocate not less than 2,000 refugee numbers to Haiti in fiscal year 1992.
C. Monitoring of Haitian returnees
The Committee is concerned that internationally recognized human rights groups, such as Amnesty International and Americas Watch, are not being allowed access to Haitian refugees under U.S. control at the U.S. facility located at Guantanamo Bay, Cuba. The Committee believes that these human rights groups should be allowed to interview Haitians for the purpose of collecting information on their fear of persecution by the Government of Haiti.


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The Committee does not believe that the Administration is now in a position to know the fate of the nearly 6,000 Haitians whom the United States has repatriated since the coup. Our Embassy in Port-au-Prince has access to no reliable, nationwide network of human rights monitors, since none exists. The Embassy staff itself has been severely reduced, therefore making doubly difficult the task of determining the extent of human rights abuses in general and the whereabouts and welfare of repatriated persons in particular. It is the Committee's expectation that the instant legislation will compel the administration to take a more aggressive stance both in devoting more time and resources to human rights monitoring and in encouraging the presence of representatives of OAS, UNHCR and other international organizations throughout Haiti.
III. Analysis of H.R. 3844
H.R. 3844 directs the President to set aside at least 2,000 refugee numbers for Haitians in fiscal year 1992. The refugee numbers are to be taken from the existing fiscal year 1992 worldwide ceiling of 132,000 funded numbers. Of that number, the President, in his October 9, 1991 Presidential Determination (No. 92-2), left 1,000 numbers unallocated. This bill allocates that 1,000 to Haitians and directs the President to set aside an additional 1,000 from the remaining 131,000 as the President sees fitpro rated reductions in other categories, for example. None of the refugee numbers provided under this section are to be allocated to persons within the United States.
The bill specifies that no Haitian in U.S. custody outside the United States on February 5, 1992, shall be involuntarily returned to Haiti during the 180 day period beginning on the date of enactment. The legislation does not provide TPS, nor does the protection against repatriation mean that any individual must be brought to the United States.
H.R. 3844 requires the Assistant Secretary of State for Human Rights and Humanitarian Affairs to conduct a study of Haitians repatriated since the September 30th coup to determine their condition and treatment since their return. The bill requires that a report on this subject be submitted to Congress within 90 days, followed by a second report to be submitted within 180 days.
The bill also urges the President and Secretary of State, in conjunction with OAS and United Nations High Commissioner for Refugees, to convene an international conference aimed at adopting a comprehensive program of action to resolve the Haitian refugee crisis.
Finally, the bill declares excludable from the United States any Haitian national who provided financial or other material support for, or directly assisted, the September 30th coup against President Aristide or was involved in terrorist acts against the Haitian people any time after the coup. Such exclusion from the United States shall be in effect until such time as the President certifies to Congress that a democratically elected government has been restored in Haiti consistent with the Haitian Constitution.


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IV. History of legislation
H.R. 3844, was introduced on November 21, 1991, by the Chairman of the Subcommittee on International Law, Immigration, and Refugees, Congressman Romano L. Mazzoli, and Representatives Schumer, Berman, Bryant, Kopetski, Conyers, Frank of Massachusetts, Lehman of Florida, Rangel, Owens of New York, and Waters.
The Subcommittee on International Law, Immigration, and Refugees marked up H.R. 3844 on February 5, 1992. During the markup Mr. Mazzoli offered an amendment in the nature of a substitute, which was adopted by a recorded vote of 5-3. The legislation was then ordered favorably reported to the full Judiciary Committee with an amendment in the nature of a substitute by a recorded vote of 5-3.
committee oversight findings
In compliance with clause 2(1)(3)(A) of rule XI of the Rules of the House of Representatives, the Committee reports that the findings and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.
committee on government operations oversight findings
No findings or recommendations of the Committee on Government Operations were received as referred to in clause 2(1)(3)(D) of rule XI of the Rules of the House of Representatives.
new budget authority and tax expenditures
Clause 2(1)(3)(B) of House Rule XI is inapplicable because this legislation does not provide new budgetary authority or increased tax expenditures.
congressional budget office cost estimate
In compliance with clause 2(1)(3)(C) of rule XI of the Rules of the House of Representatives, the Committee sets forth, with respect to the bill H.R. 3844, the following estimate and comparison prepared by the Director of the Congressional Budget Office under section 403 of the Congressional Budget Act of 1974:
U.S. Congress, Congressional Budget Office, Washington, DC, February 25, 1992.
Hon. Jack Brooks,
Chairman, Committee on the Judiciary, House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has reviewed H.R. 3844, the Haitian Refugee Protection Act of 1992, as ordered reported by the House Committee on the Judiciary on February 20, 1992. We estimate that enactment of the bill would result in no significant cost to the federal government. Enactment of H.R. 3844 would not affect direct spending on receipts. Therefore, pay-as-you-go procedures would not apply to the bill.


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H.R. 3844 would delay for 180 days the repatriation of Haitians who were in the custody of the United States as of February 5, 1992. The bill also would direct the Assistant Secretary of State for Human Rights to prepare a study on the condition of Haitians who already have been repatirated. Furthermore, the bill would reallocate 2,000 federally funded refugee admissions during fiscal year 1992 to Haitian refugees. Lastly, the bill would deny admission to the United States to any Haitian national who actively supported the September 1991 military coup in Haiti or who actively supported terrorist acts in Haiti after the coup.
The cost of the 180-day delay in repatriation depends largely on the number of Haitians who would be affected. According to the Department of State, on February 5, 1992, there were 11,909 Haitians in U.S. custody at Guantanamo Bay or on U.S. vessels. As of February 21, about 3,900 of these persons had been repatriated; about 3,500 had been screened by the U.S. Immigration and Naturalization Service (INS) and had been cleared for admission to the U.S. as refugees; about 2,500 had been screened out by INS and were awaiting repatriation at Guantanamo Bay, and the remaining 2,000 had yet to be screened, of which about 700 were likely to be cleared for admission as refugees. Therefore, as of February 21 about 3,800 Haitians were candidates for repatriation (2,500 immediate candidates, 1,300 likely candidates), and it is only these persons to whom the delay in repatriation would apply. Since the Administration's policy is to repatriate Haitians at a rate of about 2,000 per week, within two weeks there will be no Haitians, or vi-turally none, at Guantanamo Bay to whom the bill would apply. As a result, CBO estimates that the provision of H.R. 3844 to delay repatriation would result in no significant cost to the federal government.
CBO estimates that the reallocation of 2,000 refugee admissions to Haitians would result in no significant cost to the federal government, because the total number of refugee admission's would remain the same. CBO also estimates that the Depatment of State study and the denial of U.S. admission to Haitians who supported the coup would result in no significant cost to the federal government.
Enactment of H.R. 3844 could result in additional costs to some state and local governments if the reallocation of 2,000 refugee admissions to Haitians resulted in certain states receiving more refugees that they otherwise would. In aggregate, state and local costs would not be affected significantly.
If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Mark Grabowicz, who can be reached at 226-2860. Sincerely,
James L. Blum (For Robert D. Reischauer, Director.)
inflationary impact statement
Pursuant to clause 2(1)(4) of rule XI of the Rules of the House of Representatives, the Committee estimates that H.R. 3844 will have no significant inflationary impact on prices and costs in the national economy.


DISSENTING VIEWS OF HON. BILL McCOLLUM, HON. CARLOS J. MOORHEAD, HON. F. JAMES SENSENBRENNER, HON. GEORGE W. GEKAS, HON. HOWARD COBLE, HON. LAMAR S. SMITH, HON. STEVEN SCHIFF, HON. JIM RAM-STAD, AND HON. GEORGE ALLEN
We oppose H.R. 3844, as reported from the Committee on the Judiciary. This ill-advised piece of legislation would stop the repatriation of Haitians who were interdicted prior to February 5, 1992. The bill does not offer a constructive approach to the situation of the Haitian boat people. Instead it would freeze people where they are regardless of how viable that is; it requires a human rights study similar to studies currently published by the State Department in its human rights report; it reserves 2,000 refugees for people who are not being admitted as refugees; and it calls on the President to work with international organizations to reach a settlement in Haiti, which already is being done.
This bill is not only non-constructive, however. It is also potentially dangerous. It will act as a magnet to encourage a fresh flow of boat people to take to the high seas in rickety, over-crowded, and ill-provisioned boats.
There is a direct correlation between repatriation and reductions in boat people. Delays in repatriating interdictees in November triggered large flows that continued when a federal district court issued an injunction against repatriation. The Supreme Court finally lifted the injunction against interdiction on January 31st, and the effect was immediate. From January 21 through February 1st, 6,000 Haitians interdicted. In the eighteen days after repatriation resumed on February 2, 719 Haitians were picked up.
Last fall, it was argued that there were boats or materials to construct boats for no more than 5,000 Haitians to leave Haiti. More than 15,000 have been interdicted so far. Obviously, boats are being found to meet the demand in what is a lucrative business: trafficking in boat people. People often are charged as much as US$150 per head (more than the yearly per capita income), with unscrupulous boat owners pushing on as many people as they can.
There is no way to determine how many people who set out in rickety, over-crowded, and ill-provisioned boats have died. Some boats spotted from the air have not been interdicted, but the fate of those boats and their occupants is uncertain. Some may return to Haiti, some may land on other islands. None have made it to Miami since November. There would be no trace of boats that sink at sea or of their occupants in the shark-infested waters.
There unquestionably are Haitians who meet the statutory definition of refugee, and no one is suggesting that they should be returned to Haiti. However, many of the Haitians being picked up at sea are leaving their country for economic reasonsthey are seeking a better life in the United States. We empathize with this moti-
(11)


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vation. But there is a legal means for immigrating to the United States that Haitians have used very successfully, and the total number of immigrants legally allowed to come to the United States each year has been increased substantially by the Immigration Act of 1990.
There is a long history of both legal and illegal immigration from Haiti to the United States. During the past 5 years, more than 95,000 Haitians have been granted legal immigrant status in the United States. (By comparison, 77,000 Cubans received legal resident status during the same period.) Haiti, with about 1 million immigrants in the U.S., is the fifth-largest immigrant sending country on a per capita basis.
Under the current process for handling interdicted Haitians, those who are able to make a credible claim that they would be targeted for persecution if returned to Haiti are not returned. Those who cannot establish such a claim are not refugees and are being repatriated to Haiti. This is consistent with U.S. law, which defines a refugee as someone with a well-founded fear of persecution because of his/her political, religious, or ethnic beliefs or affiliations.
Refugee status is an individualized assessment based on fear of persecution. Haitians who have a colorable claim to such fear are being paroled into the United States to pursue asylum claims, unlike citizens of other nations whose refugee claims are fully adjudicated outside of the United States and only a small percentage of whom are subsequently resettled in the United States.
The Immigration and Naturalization Service (INS) is working hard to ensure that the asylum screening process is fair and generous. Trained asylum officers conduct individual interviews of the Haitians to determine why they left Haiti. The purpose of the interview is explained to the group to be interviewed and again individually by the interviewing officer. The interview lasts 20 to 30 minutes, and INS supervisors review decisions of the asylum officers. This process is the same whether the interview is conducted at Guantanamo or on board a Coast Guard cutter.
Over 35 percent, or approximately 4,800, of the interdicted Haitians have been found to have a plausible claim to asylum, of whom about 1,500 so far have been paroled into the United States to pursue their asylum claims.
That leaves 65 percent of the boat people who, as the evidence supports, are economic migrants seeking to come specifically to the United States. The evidence includes the voluntary return to Haiti from third countries of migrants who find they will not be allowed to come to the United States. For example, of the 100 Haitians sent to Venezuela, 73 asked to be returned to Haiti when it was clear they would not be going to Miami. Few Haitians are taking advantage of the open border with the Dominican Republic to flee Haiti, and of the 23 who did in November 1991, 15 have voluntarily returned to Haiti.
Claims that the attempt to leave Haiti will itself make Haitians subject to persecution if" returned are not supported by past or present experience. The interdiction program has been in effect for eleven years, under the Duvalier regime, Aristide, and the current


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de facto government. In all of this time, no allegations of persecution of returned boat people have been substantiated.
The State Department is investigating allegations by some "rein-terdictees" who claim they were mistreated after they were repatriated to Haiti because they had tried to leave. Investigations by U.S. Embassy personnel have found no information to substantiate these allegations and have actually found evidence directly contradicting many of them. Investigations will continue into allegations of persecution of repatriates.
One of the assumptions that seems to be inherent in H.R. 3844 is that the naval base at Guantanamo could or should be a semi-permanent location for refugee camps. Funding for this costly if not totally unfeasible option is not mentioned in the bill.
Some of the problems currently facing the camps on Guantanamo include their location on territory leased from Cuba, very serious sewage disposal problems, and limited availability of fresh water and electrical power. These problems will be added to when the hot season begins in April. The hot temperatures will require major infrastructure improvements, including installation of an underground water delivery system and provision of more permanent living arrangements that will provide more shelter from the sun and heat than the current tents on asphalt. An additional power grid would be required, and the sewage disposal problem would have to be resolved. Dangers posed by disease, especially mosquito-borne disease, are a very real concern for Haitians as well as the military personnel and their families stationed in Guantanamo.
This bill is not needed to protect Haitian interests. A high level of legal immigration allows for a flow of economic immigrants to the United States, in-country refugee processing has been established in Haiti, and a generous policy of asylum-screening allows Haitians with a colorable claim to refugee status to be paroled into the United States to pursue asylum. Ironically, Haitian interests will actually be harmed by this bill if it serves as a magnet to draw people into attempting a dangerous and often deadly sea voyage.
H.R. 3844 should be defeated by the House of Representatives. The interests of Haitian refugees already are being protected, and fairness demands that Haitian economic migrants be allowed to immigrate to the United States only under the framework of our immigration laws and policies, just as millions of people from other nations must wait their turn to immigrate to the United States.
Bill McCollum. Carlos J. Moorhead. F. James Sensenbrenner. George W. Gekas. Howard Coble. Lamar S. Smith. Steven Schiff. Jim Ramstad. George Allen.
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