The detention and treatment of Haitian asylum seekers

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The detention and treatment of Haitian asylum seekers hearing before the Subcommittee on Immigration of the Committee on the Judiciary, United States Senate, One Hundred Seventh Congress, second session, October 1, 2002
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Political refugees -- Legal status, laws, etc -- United States   ( lcsh )
Haitians -- Legal status, laws, etc -- United States   ( lcsh )
Asylum, Right of -- United States   ( lcsh )
Detention of persons -- United States   ( lcsh )
Deportation -- United States   ( lcsh )
Emigration and immigration law -- United States   ( lcsh )
Réfugiés politiques -- Statut juridique -- États-Unis   ( ram )
Haïtiens -- Statut juridique -- États-Unis   ( ram )
Droit d'asile -- États-Unis   ( ram )
Détention de personnes -- États-Unis   ( ram )
Expulsion des étrangers -- États-Unis   ( ram )
Émigration et immigration -- Droit -- États-Unis   ( ram )
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federal government publication   ( marcgt )
bibliography   ( marcgt )
non-fiction   ( marcgt )

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S. HRG. 107-973
THE DETENTION AND TREATMENT OF HAITIAN
ASYLUM SEEKERS

COLUMBIA LAW SCHOOL LIBRARY

3 5005 00910 173Y



HEARING
BEFORE THE

SUBCOMMITTEE ON IMMIGRATION
OF THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION

OCTOBER 1, 2002

Serial No. J-107-107

Printed for the use of the Committee on the Judiciary



COLUMBIA UNIVERSITY
LAW LIBRARY -

@ Sp 2 3 2003
U.S. DEPOSITORY
COPY

U.S. GOVERNMENT PRINTING OFFICE
88-613 PDF WASHINGTON : 2003
For sale by the Superintendent of Documents, U.S. Government Printing Office
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman


EDWARD M. KENNEDY, Massachusetts
JOSEPH R. BIDEN, JR., Delaware
HERBERT KOHL, Wisconsin
DIANNE FEINSTEIN, California
RUSSELL D. FEINGOLD, Wisconsin
CHARLES E. SCHUMER, New York
RICHARD J. DURBIN, Illinois
MARIA CANTWELL, Washington
JOHN EDWARDS, North Carolina


ORRIN G. HATCH, Utah
STROM THURMOND, South Carolina
CHARLES E. GRASSLEY, Iowa
ARLEN SPECTER, Pennsylvania
JON KYL, Arizona
MIKE DEWINE, Ohio
JEFF SESSIONS, Alabama
SAM BROWNBACK, Kansas
MITCH McCONNELL, Kentucky


BRUCE A. COHEN, Majority Chief Counsel and Staff Director
SHARON PROST, Minority Chief Counsel
MAKAN DELRAHIM, Minority Staff Director


SUBCOMMITTEE ON IMMIGRATION
EDWARD M. KENNEDY, Massachusetts, Chairman
DIANNE FEINSTEIN, California SAM BROWNBACK, Kansas
CHARLES E. SCHUMER, New York ARLEN SPECTER, Pennsylvania
RICHARD J. DURBIN, Illinois CHARLES E. GRASSLEY, Iowa
MARIA CANTWELL, Washington JON KYL, Arizona
JOHN EDWARDS, North Carolina MIKE DEWINE, Ohio
MELODY BARNES, Majority Chief Counsel
STUART ANDERSON, Minority Chief Counsel













.... -,:. ^200












CONTENTS


STATEMENTS OF COMMITTEE MEMBERS
Page
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ...................... 2
Conyers, Hon. John, Jr., a Representative in Congress from the State of
M ichigan [ex offi cio] ............................................................. ................................ 7
prepared state ent .......................................................................................... 27
Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 1
WITNESSES
Johnson, Stephen C., Policy Analyst for Latin America, Heritage Foundation,
W ashington, D .C ................................................................................................. 12
Little, Cheryl, Executive Director, Florida Immigrant Advocacy Center,
M iam i, F lorida ................................................................................... ........ .......... 10
Ocean, Marie Jocely, Haitian asylee and former detainee, Miami, Florida ....... 8
Parks, Dina Paul, Executive Director, National Coalition for Haitian Rights,
N ew Y ork, N ew York ........................................................................................... 13
Wenski, Thomas G., Auxiliary Bishop of Miami, Florida, and Chairman, U.S.
Conference of Catholic Bishops' Committee on Migration, Miami, Florida .... 5
SUBMISSIONS FOR THE RECORD
American Civil Liberties Union, Lida Rodriguez-Taseff, President, Miami-
Dade County Chapter, Miami, Florida, statement .......................................... 22
American Federation of Labor and Congress of Industrial Oganizations,
W ashington, D.C., state ent .............................................................................. 24
Carey-Shuler, Barbara M., County Commissioner, Miami-Dade County Board
of County Commissioners, Miami, Florida, statement ................................ 25
Department of Justice, Daniel J. Bryant, Assistant Attorney General, Office
of Legislative Affairs, W ashington, D.C. ................... ................................... 30
Glover, Danny, M iami, Florida, statement .......................................................... 33
Graham, Hon. Bob., a U.S. Senator from the State of Florida, statement ......... 35
Johnson, Stephen C., Policy Analyst for Latin America, Heritage Foundation,
W ashington, D.C., prepared statement ..................... ................................... 38
Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts,
and Hon. Sam Brownback, a U.S. Senator from the State of Kansas, joint
letter ................................................................................................................ 45
Lawyers Committee for Human Rights, Anwen Hughes, Staff Attorney, Wash-
ington, D .C ., state ent ........................................................................................ 47
Little, Cheryl, Executive Director, Florida Immigrant Advocacy Center,
M iam i, Florida, prepared state ent ................................................................... 59
Miami-Dade County Community Relations Board, Adora Obi Nweze, Chair,
Community Relations Board, position statement ............................................ 73
National Association for the Advancement of Colored People, Brad Brown,
President, Miami-Dade Branch of the NAACP, Miami, Florida .................... 74
Nelson, Hon. Bill, a U.S. Senator from the State of Florida, statement .......... 82
Ocean, Marie Jocelyn, Haitian asylee and former INS detainee, prepared
state ent .............................................................................................................. 83
O'Laughlin, Sister Jeanne, OP, President, Barry University, Broward County,
Florida, state ent ................................................................................................ 86
Parks, Dina Paul, Executive Director, National Coalition for Haitian Rights,
New York, New York, prepared statement .................................................. 87
Ros-Lehtinen, Hon. Ileana, a Representative in Congress from the State of
Florida, state ent ................................................................................................ 99





IV
Page
Russo, Monica, President, SEIU 1199 Florida, AFL-CIO, International Execu-
tive Board, Service Employees Interational Union, Florida, statement ........ 101
United Caribbean African Alliance, Inc., Bernier Lauredan, M.D., Chairman,
W ashington, D.C., state ent ........................................... ............................. 103
United Nations High Commissioner for Refugees, Guenet Guebre-Christos,
Regional Representative, Washington, D.C., statement ................................ 105
United States District Court for the Southern District of Florida, Miami
D division ................................................................................................................. 112
Wenski, Thomas G., Auxiliary Bishop of Miami, Florida, and Chairman, U.S.
Conference of Catholic Bishops' Committee on Migration, Miami, Florida,
prepared state ent ........................................................................................... 118
Women's Commission for Refugee Women and Children, Wendy A. Young,
Director of Government Relations, New York, New York, statement .......... 127











THE DETENTION AND TREATMENT OF
HAITIAN ASYLUM SEEKERS


TUESDAY, OCTOBER 1, 2002
U.S. SENATE,
SUBCOMMITTEE ON IMMIGRATION,
COMMITTEE ON THE JUDICIARY,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 2:46 p.m., in room
SD-226, Dirksen Senate Office Building, Hon. Edward M. Ken-
nedy, Chairman of the Subcommittee, presiding.
Present: Senators Kennedy, Brownback, and Representative Con-
yers [ex officio.]
OPENING STATEMENT OF HON. EDWARD M. KENNEDY, A U.S.
SENATOR FROM THE STATE OF MASSACHUSETTS
Chairman KENNEDY. Thank you for your patience. We look for-
ward to our hearing today.
Senator Brownback and I had our consultation with the State
Department on the number of immigrants and we are disappointed
with the administration's decisions in terms of the total numbers,
but we are going to work with them to try and see if we can't per-
suade the administration to respond to the great human tragedy
that is being experienced by refugees all over the world and for
many who meet the criteria which both the United States and the
international community have defined as being the criteria under
which they would be welcomed here into the United States.
I want to welcome some special guests who are longstanding ad-
vocates for Haitian rights. We have representatives here from Mas-
sachusetts, Florida, New York, and Connecticut. I thank all of you
for your leadership and commitment and your support for the fair
treatment of Haitian refugees.
Many of us are troubled by the detention policy of the Depart-
ment of Justice. On December 3, 2001, a refugee boat carrying 187
Haitians ran aground off the coast of Florida. The Coast Guard res-
cued 167 persons and they were detained and placed in removal
proceedings by the Department of Justice.
The INS Deputy Commissioner instructed the INS field officers
to implement a new parole policy in cases of all Haitians arriving
by boat in Florida after December 2001. The instructions stated
that no Haitian should be paroled from detention without approval
from Washington.
One of the express purposes of this new policy is the deterrence
of future Haitian arrivals by sea. Last week, in a letter from the
Justice Department, they confirmed their change in policy and ex-






plained their reasons for the change, that detention was needed to
"prevent against a potential mass migration to the United States."
A major concern is that such a policy violates well-established
international refugee standards which are the basis of U.S. law. As
an advisory opinion of the United Nations High Commissioner for
Refugees states, "[t]he detention of asylum seekers...to deter future
arrivals does not fall within any of the exceptional grounds for de-
tention and is contrary to the principle underlying the inter-
national refugee protection regime."
Another major concern is whether this detention policy is dis-
criminatory. It appears to be a policy based on the national origin
of the detainee, with no regard for the person's individual record
or circumstances. The policy applies only to Haitian asylum seek-
ers. Similarly situated asylum seekers of other nationalities are
routinely released.
Most of the Haitians in question have demonstrated a credible
fear of persecution, have family or community contacts willing to
sponsor them, do not pose a flight risk, and would not pose a dan-
ger to the community. These factors would normally have resulted
in grants or parole from detention and are the same factors cur-
rently used to parole other nationals from detention. Yet, the Hai-
tians have been singled out for more restrictive treatment. Such a
policy appears to violate U.S. law, which according to a 1995 Su-
preme Court decision, must be based on individualized parole de-
terminations without regard to race or national origin.
Prolonged detention has also interfered with the ability of Hai-
tians to present their asylum claims. Few of the Haitians can af-
ford to retain private counsel, and few legal service providers have
the staff and resources to represent all of the detainees.
As a result, many Haitians have been forced to appear in immi-
gration courts unrepresented. In some cases, they have relied on
INS officers to assist them in completing their asylum applications,
a clear conflict of interest. Despite these problems, requests from
local legal service organizations for adequate time and access to
Haitian detainees has at times been denied.
As of last week, only 16 of the 167 detainees from the December
2001 boat have been granted asylum, despite a majority having ini-
tially passed the credible fear interview. Fifty of the detainees have
been deported and another 54 are awaiting removal. Given the cur-
rent escalation of violence in Haiti, the life and death implications
of improper detention practices and inadequate access to represen-
tation are very troubling.
The committee invited the Justice Department to testify today.
Unfortunately, the Department did not send a representative to
participate in this hearing to defend or explain the policy they initi-
ated, implemented, and stand behind. I regret the Department's
absence and I look forward to the testimony of our witnesses.
Senator Brownback?
STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR
FROM THE STATE OF KANSAS
Senator BROWNBACK. Thank you, Mr. Chairman, and thank you
for calling the hearing. I too am disappointed in the numbers that
are coming out, the refugee resettlement numbers in the United






States, and we are going to continue to work together to try to get
those numbers up and to get a larger number of refugees into the
United States. We need to; it is the right thing for us to do.
There are a number of people sitting in very difficult, extraor-
dinarily hostile circumstances in refugee camps around the world
and we really need to help these people out. I know we have had
difficulties after last September 11. Those are well-known and doc-
umented, but it doesn't remove our need to be able to help people
that are in the most dire of circumstances.
I think it ennobles us as a country, and it also speaks volumes
to the rest of the world, when we open our country up to help those
in the worst of circumstances. So I am hopeful that we can con-
tinue to put some pressure forward to get that refugee population
number up. I am eager to hear the testimony by the witnesses here
today.
It needn't be repeated, but it is always worth repeating that our
Nation has a long and noble tradition of being a country or refuge.
We are the world's leader in the protection of refugees and asylum
seekers, and I am pleased that we are and I want us to continue
to be that.
No other nation has made the political, financial, or spiritual
commitment that this Nation has made to sheltering the per-
secuted from harm. It is the Book of Jeremiah for guidance that
we can read. This is what the Lord says: "Do what is just and
right. Rescue from the hand of the oppressor the one who has been
robbed. Do no wrong or violence to the alien." Then you can even
look in the Book of Matthew: "For I was hungry and he gave me
something to eat. I was thirsty and he gave me something to drink.
I was a stranger and you invited me in."
Our Nation's commitment extends to all refugees, irrespective of
their race, nationality, religion, political opinion, or social group.
Our obligation is to rescue from the hand of the oppressor, to treat
the stranger with kindness and respect, no matter where that per-
son comes from.
I appreciate that with respect to Haiti, there are political and ad-
ministrative considerations that guide the administration's deten-
tion policies and have done so with prior administrations. However,
the detention of Haitian asylum seekers is neither a new topic nor
an unfamiliar controversy. To the contrary, it appears to be a
chronic concern that crosses administrations.
Mr. Chairman, I look forward to the testimony of our witnesses
and welcome their insights. I appreciate the passion and compas-
sion that they will bring to the issue. I hope that with their help,
we can bring the NGO community and the administration together
to work out a meaningful and lasting solution to the problems that
will be detailed before us today, and that there will not be a preju-
dice based upon one certain group or another or other consider-
ations. We need to consider and treat everybody as equal and the
same in regard to refugee policy and asylum seekers seeking asy-
lum or refuge in the United States.
Mr. Chairman, as the administration is not here to testify today,
I would like to submit for the record a document that represents
the administration's position. The correspondence is from the As-
sistant Attorney General, Daniel Bryant. It is dated September 25






and it is chronicling the development of the current policy toward
Haitian asylum seekers.
With that, Mr. Chairman, I look forward to the testimony we are
going to hear today, and I do hope we can start to move forward
toward some resolution of this chronic problem.
Chairman KENNEDY. Thank you very much. We will include in
the record.
I would like to have our panel come up.
Bishop Thomas Wenski is the Auxiliary Bishop of Miami, Flor-
ida, and Chairman of the U.S. Conference of Catholic Bishops'
Committee on Migration. He is also Director of Catholic Charities
for the Archdiocese of Miami. For more than 20 years, Bishop
Wenski has been an eloquent and powerful voice for refugees flee-
ing persecution.
Bishop Wenski speaks Creole and is especially well-known both
in the United States and Haiti as a defender of the rights of Hai-
tians, and I am honored to welcome him and look forward to his
testimony.
I would also like to welcome Marie Ocean, who is a Haitian
asylee and a former INS detainee at the Turner Guilford Knight
Correctional Center. Marie Ocean fled her native Haiti after he fa-
ther and brother were already assassinated by political opponents
and she feared for her life. She is one of the original December
2001 boat refugees.
Ms. Ocean, I would like to thank you very much for being here.
I know it took a lot of courage to share your story with us. I also
want to thank Gepsie Metellus, who will be translating for you.
Cheryl Little is the Executive Director of the Florida Immigrant
Advocacy Center in Miami. Ms. Little co-founded the Florida Immi-
grant Advocacy Center that provides free legal help to immigrants
of all nationalities. FIAC serves the most vulnerable immigrants,
including asylum seekers, the homeless, and victims of domestic vi-
olence. Ms. Little is a nationally recognized, tireless advocate deep-
ly committed to safeguarding the rights of asylum seekers and ref-
ugees. I look forward to her testimony.
I would like to welcome Stephen Johnson, a former State Depart-
ment officer who has worked in the Bureau of Inter-American Af-
fairs and Public Affairs. He is a currently the Latin American pol-
icy analyst at the Kathryn and Shelby Cullom Davis Institute for
International Studies at the Heritage Foundation.
During his time at the State Department, Mr. Johnson was a
writer and researcher, serving as the Director of the Central Amer-
ican Staff Working Group, and later as the Chief of the Editorial
Division in the Public Affairs Bureau. We welcome him and thank
him for testifying. I look forward to your views.
Dina Paul Parks is the Executive Director of the National Coali-
tion for Haitian Rights, in New York City. She helps to develop pol-
icy and recommendations on immigration, human rights, and Hai-
tian American community development. NCHR was established in
1982 in response to the waves of refugees fleeing the oppressive
Duvalier regime. For over 20 years, the NCHR has promoted
human rights and democracy in Haiti, while advocating for fair
treatment and policies for Haitian refugees. I am pleased that she
will be testifying today.





We will hear from Bishop Wenski.

STATEMENT OF THOMAS G. WENSKI, AUXILIARY BISHOP OF
MIAMI, FLORIDA, AND CHAIRMAN, UNITED STATES CON-
FERENCE OF CATHOLIC BISHOPS' COMMITTEE ON MIGRA-
TION, MIAMI, FLORIDA

Bishop WENSKI. Thank you, Mr. Chairman, for inviting me to
testify today. First, I would like to thank you and your sub-
committee for holding this hearing today. I thank you for your
longstanding commitment to immigrants and refugees in this Na-
tion.
I would also like to thank Senator Brownback for his support of
fair access for asylum seekers seeking protection in the United
States. Senator Brownback also took time out of his busy schedule
to visit with the United States Catholic Conference of Bishops'
Committee on Migration several weeks ago. At that time, Senator
Brownback spoke of his concern at the treatment accorded Korean
asylum seekers in China. I think today's proceedings might point
out some unfortunate parallels between the way China treats
North Korean asylum seekers and our own policy toward asylum
seekers from Haiti.
Before being ordained a bishop, I worked as a parish priest
among the Haitian population in South Florida for almost 20 years.
During that time, my pastoral duties included visiting Haitians de-
tained at the INS Krome processing center.
The present policy, which holds a group of 160 Haitian nationals
in indefinite detention since December of last year, recalls the ill-
fated detention policies of the early 1980's when thousands of Hai-
tians were held in detention at Krome and in other places for more
than a year, until the Federal courts forced the INS to release
them.
At that time, USCCB's Migration and Refugees Services assisted
the Government in helping these detainees reunite with family
members in the United States, seek legal advice and counsel, and
to comply with periodic reporting to INS while their applications
for asylum were being processed.
In my work with Haitians in South Florida, I have found them
to be hard-working, honest, and God-fearing members of our com-
munities. They have been a positive influence in South Florida and
elsewhere. In recent years, Haitian Americans have distinguished
themselves in all areas of our community's life, and indeed today
several are elected public officials. In other words, whatever fears
there might have been that led to the early policies of the 1980's
have not been realized. They were unfounded. So one must ask
why do we return now to a policy that is unfair and unjust?
The present policy is unfair because it singles out Haitians for
disparate treatment. Other groups of asylum seekers similarly situ-
ated who arrive on the shores of South Florida are not subjected
to indefinite detention. Except for a few cases, nearly all Haitians
arriving by sea to Miami have been detained, while more than 90
percent of other nationalities arriving the same way during the
same period have been released while their claims are adjudicated.






The present policy is unjust, for the indefinite detention of asy-
lum seekers erodes refugee rights provided for under international
law. In my written statement I submitted to the committee, the ap-
propriate references to international laws are cited.
As we have done since the mid-1970's, the United States Bishops
call for an end to a policy that unfairly and unjustly discriminates
against Haitian asylum seekers. Once again, we call for a reexam-
ination of current interdiction policies. Haitians stopped on the
high seas or in airports must not be denied the opportunity to re-
quest asylum and to be heard fairly.
Once again, we call for the reversal of the current policy of in-
definite detention of Haitian asylum seekers. Those already found
to have met credible fear criteria should be immediately released
and afforded a reasonable time to secure counsel and to petition for
asylum.
Once again, we offer our assistance to INS in helping to resettle
asylum seekers from Haiti while their cases go forward. In the
early 1980's when we collaborated with INS in facilitating the re-
lease of Haitians, we helped them to report their whereabouts to
INS and to appear at their hearings. They did not abscond, they
did not pose a flight risk.
USCCB's MRS has long collaborated with INS and ORR in help-
ing Haitian and Cuban entrants process through Krome for over 20
years. This offers a way that builds upon the successes of the past,
that serves the interests of justice, and provides a cost-effective al-
ternative to indefinite detention.
I remember how 1 day in the early 1980's officials from INS in
Miami contacted me at my church. They requested that I accom-
pany them to the home of a woman in Fort Lauderdale. Her son
was detained in Krome for several months after arriving from Haiti
after a harrowing voyage in a rickety boat. Fearing for his life if
forcibly deported to Haiti and despairing of ever leaving the monot-
ony of a then seriously overcrowded facility, he committed suicide
in Krome. The INS officials asked me to interpret for them as they
presented their condolences to his mother.
Today, whether in Krome where the men are held or the TGK
correctional facilities, the county jail where the women are held,
the present revival of the old and cruel policy of indefinite deten-
tion has recreated those same conditions that breed fear and de-
spair, and portend further tragedy. Mr. Chairman, this is not wor-
thy of the United States of America.
[The prepared statement of Bishop Wenski appears as a submis-
sion for the record.]
Chairman KENNEDY. Thank you very much, Bishop.
We are joined by Congressman Conyers, who has been a great
leader nationally on this issue. Certainly, if he had a word to say,
we would welcome it, and we would invite him, as well, if he had
the time, to listen to the rest of our witnesses as someone who
cares very deeply about this issue. We always welcome our col-
leagues from the other side, and more particularly welcome a
friend.





STATEMENT OF HON. JOHN CONYERS, JR., A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF MICHIGAN
Representative CONYERS. Mr. Chairman, I am honored, first of
all, to sit with you anywhere, but in the U.S. Senate it is even bet-
ter, and at a committee that you are chairing is even better yet.
So please know that I am happy to be with you.
I would be happy wherever I was sitting, especially with the wit-
nesses that you have on this panel. Cheryl Little and Marie Ocean
and, our friend, Ms. Parks have all done incredible work on this
subject. It is a labor of love, and I am very privileged to join with
you, Bishop Wenski, in merely discussing this subject for a couple
of minutes.
I am going to put my statement in the record, and so what I
would like to do now is just lift up the main problem here, which
is that Haitian arrivals into this country, particularly through Flor-
ida, seeking asylum are treated differently from everybody else
that comes to the United States-everybody.
There is a policy of, number one, turning them away right on the
spot, no questions asked. They turn the boats around. You may
say, do they need food or nourishment, or are they sick, or is their
little raft capable of going back? They turn it around. That is it,
no questions asked. That is in violation, of course, of our immigra-
tion laws, but it more seriously contravenes any spirit of the treat-
ment that human beings should be afforded anywhere in the world,
much less coming to the shores of the United States.
The other point is about Krome itself, which is a nightmare. I
was talking to the acting superintendent there. Here are some of
the problems encountered during this visit.
[The information referred to appears as a submission for the
record.]
Representative CONYERS. The discriminatory process of the Im-
migration and Naturalization Service has to end, and I sure hope
that they are scheduled to come before you today or sometime soon.
I would sure like to hear their statements under oath about some
of the things that are going on there. The separation of mothers
from their children is disgraceful.
Then the final point that occurs to me is the way the lawyers
representing Haitian asylum seekers are treated in the INS courts.
It is shabby, it is disrespectful, and it is not in keeping with any
sense of fairness that we try to operate our system of laws with.
So I am delighted and congratulate you, Mr. Chairman, for hold-
ing these hearings and I am very pleased to see all of these wit-
nesses with us. Thank you.
[The prepared statement of Mr. Conyers appears as a submission
for the record.]
Chairman KENNEDY. Thank you very much. We might join and
ask the American Bar Association to do a study about how the at-
torneys are treated and give a report back to us.
Representative CONYERS. I would like to join you in such a re-
quest.
Chairman KENNEDY. We might join with Senator Brownback and
others and see if it might make some sense.
Marie Ocean, we thank you for being here. We thank you for
coming and we know it is not easy to talk about the struggles in






one's life as you have had, and so we are very grateful to you for
telling us your story. By telling us your story, we will try and make
sure it doesn't happen to other people.
STATEMENT OF MARIE JOCELYN OCEAN, HAITIAN ASYLEE
AND FORMER DETAINEE, MIAMI, FLORIDA
Ms. OCEAN. [speaking through an interpreter.] Good afternoon,
ladies and gentlemen. Good afternoon, Mr. Chair. My name is
Marie Jocelyn Ocean. I am from Haiti and I am here because of
my difficulties, my problems, with Lavalas.
I suffered quite a few shocks, I suffered several shocks as a re-
sult of Lavalas. They killed a brother of mine. They beat up one
of my brother's children. Fifteen days after my brother's funeral,
my father was killed. Subsequent to that, another brother of mine
was beaten and abused and suffered a stab wound right above his
eyebrow.
They came after me subsequently, but I ran. Because they did
not find me, they beat up on my 9-year-old girl. This year, she is
10 years old. And these are the reasons that I fled the country by
boat-I along with the many other women who are still detained
for the same reasons.
I am not alone to have suffered this problem. My problem is also
the problem of the other women who are still detained. We were
detained by the Immigration and Nationalization Service on De-
cember 3. I was taken to jail, I along with the other women detain-
ees. I was held in a motel that served like a jail along with other
women and we were not treated well at all.
We were in a room. Essentially, it had no windows and we were
not able to see the outside at all. We could not breathe. The only
opportunity to enjoy the outdoors was on our trips to the court.
And there was also a 7-year-old youngster also locked up with us.
A 7-year-old should not be detained in such circumstances.
I was summoned by an official at the jail, supposedly because I
was going to court, and I found myself being transferred to another
facility, a jail, TGK. Upon my arrival at TGK, I was strip-searched.
I along with the other women were equally strip-searched, and this
process of being strip-searched was absolutely humiliating and we
were handcuffed and escorted into the jail.
At the jail, one of the experiences was the evening check-ups
when the guards would come around to check the cells and to make
sure that all the detainees were in place. The locking of the doors,
the banging on the jail doors, and the flashlights was absolutely
traumatizing. The flashlights interrupting our sleep that way was
traumatizing and that made us even more fearful, and that contrib-
uted to taking us back to the experience we had in Haiti.
And certainly we were taken before a judge, but not being able
to speak English, not understanding the process, the procedures,
we were helpless. Among the other women detainees, I was the
only fortunate one to have been benefited from the legal assistance
of a FIAC attorney, and this attorney accompanied me and rep-
resented me before the immigration judge at TGK.
On May 31, 2002, I went before the judge and I was granted asy-
lum in the United States. I was very happy to receive asylum, but
I was still troubled. I was troubled for the other women detainees






because we were in the same boat together, so to speak, because
when we were all captured we did not know where we would end
up.
They were moved from one detention facility to another, and I
think that these women should not have been detained in that
manner. And all of the other nationals who subsequently requested
asylum were released, while the Haitians were kept and were de-
nied every time. All of us have the same blood flowing through our
veins and we are all God's children; we are children of the same
God.
We thought that coming before Americans, coming before Amer-
ica with the problems we endured, with the troubles we had to ex-
perience, and that if we came with our troubles before America,
America would consider this treatment we experienced, as well as
the torture we experienced. Unfortunately, this was not the out-
come that we anticipated or expected.
We were treated worse than common criminals because the facil-
ity in which these women are detained is a jail facility for crimi-
nals. They will have been there 10 months now. They should not
have been there for such a long time because they are not crimi-
nals. They did not kill anyone.
I acknowledge that we arrived illegally, but we are not to be
blamed because conditions in our country forced us to flee. Accord-
ing to the laws of this country, while it is true that we arrived ille-
gally and we could have been detained to be punished for breaking
those laws, we should not been punished or detained for such a
long time.
We were absolutely humiliated. We were devaluated as human
beings. Certainly, the authorities do not view it that way, but we
detainees certainly feel and experience it that way because when
an adult cries, certainly there are problems, and he cries because
he has problems.
Since my arrival in the United States, since my and the other
detainees' arrivals, we have not experienced the same difficulties
as in Haiti, because the conditions under which I fled Haiti are cer-
tainly different from the conditions I live in today. I am no longer
afraid for my life.
I appear before you today to testify and to appeal to you to help
these women detainees because we are all one and the same, be-
cause we must hang in there together, put our heads together so
that they too can be freed.
Thank you very much for the opportunity to appear before you
to testify on my behalf as well as on behalf of the other women de-
tainees.
[The prepared statement of Ms. Ocean appears as a submission
for the record.]
Chairman KENNEDY. Thank you for that extraordinary story of
incredible pain, anguish and misery. No one should have to under-
go that kind of treatment here in the United States. It is an abso-
lutely despicable kind of treatment, and we certainly find it as
shocking an injustice as you do and we will see what we can do
to try to bring that kind of treatment to a halt. It is very powerful
testimony and we appreciate very much your willingness to share
it with us.






Ms. Little?
STATEMENT OF CHERYL LITTLE, EXECUTIVE DIRECTOR,
FLORIDA IMMIGRANT ADVOCACY CENTER, MIAMI, FLORIDA
Ms. LITTLE. On behalf of the Florida Immigrant Advocacy Cen-
ter, I want to thank you, Mr. Chairman, and Senator Brownback
for inviting me to testify today.
And it is always good to see Congressman Conyers. I saw him,
recently in Miami when he was visiting the detention centers there
and meeting with many of the Haitians. I want to thank each of
you for your leadership in defending immigrants' basic rights.
My testimony today is supported by the Women's Commission for
Refugee Women and Children.
In December 2001, following the December 3 arrival of 167 Hai-
tians who fled Haiti by boat, the Acting Deputy INS Commissioner
adopted a secret policy directed solely at Haitians which resulted
in the detention of virtually all Haitian asylum seekers in South
Florida, regardless of how they arrived in the United States and
whether they had demonstrated a credible fear of persecution,
which all but two did.
While adopting the Haitian policy, the INS continued to routinely
release those asylum seekers of other nationalities who had passed
their INS credible fear interviews. The INS policy expressly applied
to Haitian asylum seekers arriving both by plane and by boat.
The effect of the December policy was dramatic and immediate.
The released rate for Haitians who had passed their credible fear
interviews dropped from 96 percent in November 2001 to 6 percent
between December 14, 2001, and March 18, 2002. Even Haitians
who had been granted asylum and could no longer be legally de-
tained by INS were not immediately released.
As a result of the Haitian policy, the INS refused to release over
240 Haitian asylum seekers, while it continued to release asylum
seekers of all other nationalities in the Miami District at an ex-
tremely high rate. The Haitian policy represents a radical depar-
ture from INS' prior policy, which did not make distinctions based
on nationality or race and which expressly permitted the release of
asylum seekers of all nationalities who pass their credible fear
interviews in the Miami District.
For months after the Haitian policy was adopted, INS officials
denied the existence of the policy to advocates and community lead-
ers. Only in March 2002 did INS officials finally acknowledge that
they had indeed adopted a policy of detaining Haitians.
According to Acting INS Commissioner Becraft, the INS adopted
the policy because of concerns that there was going to be a mass
migration of people arriving by boat from Haiti rivaling that of the
Cuban Mariel exodus and the significant number of refugees held
at Guantanamo in 1994.
Yet the overall number of Haitian interdictions in 2001 simply
do not indicate a mass migration, nor do Coast Guard interdiction
statistics for 2002. Indeed, only 1,956 Haitians were interdicted at
sea by the Coast Guard in 2001. This number is significantly
smaller than the 1980 Mariel boatlift, during which 125,000 Cu-
bans arrived in the United States, as well as in 1994, when over
25,000 Haitians and over 37,000 Cubans were detained there.






On March 15, 2002, a class action lawsuit was filed on behalf of
all the detained Haitians in the Southern District of Florida who
arrived on or after December 3 and had passed their credible fear
interviews. The district court summarily dismissed the case with-
out an evidentiary hearing, saying it was up to politicians, not the
courts, to determine the Haitians' fate. An appeal to the Eleventh
Circuit Court of Appeals is pending.
After the lawsuit was filed, INS changed its detention policy to
permit the release of certain Haitian asylum seekers who arrived
at the Miami Airport or other ports of entry. However, the vast ma-
jority of Haitians who arrived by boat on December 3 continue to
languish in INS detention and suffer irreparable harm as a result.
Unlike released asylum seekers of other nationalities, they are
forced to prepare for their asylum cases in an expedited, Haitian-
only docket and have limited access to counsel. Few agencies are
able to provide free legal help to the Haitians and most are unrep-
resented. Without attorneys, the Haitians are far less likely to win
asylum than those with attorneys.
A study conducted by Georgetown University in 2000 indicated
that asylum seekers in detention are more than twice as likely as
those who aren't detained to be without legal representation, and
persons with attorneys are four to six times more likely to be
granted asylum.
Most of the Haitians speak no English and are forced to complete
asylum applications in English. Their cases are expedited and
those attorneys who have agreed to represent them face multiple
barriers in gaining access to their clients. INS itself admitted that
it lacks adequate visitation space to meet the needs of attorneys as-
sisting the Haitians.
The conditions in the facilities in which Haitians have been de-
tained further compromise their ability to seek asylum. These fa-
cilities have been terribly overcrowded, unsanitary, and trauma-
tizing for many. Families have been separated into different deten-
tion centers, sometimes thousands of miles apart.
From December 2001 through August 2002, the Haitian women
were held in a maximum-security county jail and subject to fre-
quent strip-searches, lock-downs, and hourly interruptions of sleep
during the night. In June of this year, a Haitian asylum seeker at
Krome attempted suicide.
In conclusion, FIAC is gravely concerned about the safety of
those Haitians already deported and about the likely deportation of
107 of the Haitian asylum seekers who remain in INS custody after
10 months in the United States. Virtually all of the Haitians on
board the December 3 boat are from Raboteau, a section of
Gonaives which has been the epicenter of recent political violence
and unrest in Haiti.
Our responsibility to protect persons among us who have fled .po-
litical persecution should not depend on politics. Haitian asylum
seekers come to the United States seeking refuge from persecution.
They expect to be treated fairly and equally by the world's leading
democracy and defender of human rights.
While we certainly understand the need after September 11 to
protect our borders, to indefinitely detain Haitian asylum seekers
in the Miami District who have committed no crime and treat them






differently than any other group is a perplexing waste of precious
resources and a waste of U.S. taxpayers' money.
To flee from persecution is not a crime; it is a basic human right.
It is the Government's responsibility now to treat the Haitian asy-
lum seekers as they treat asylum seekers from other countries.
Haitians deserve no less.
[The prepared statement of Ms. Little appears as a submission
for the record.]
Chairman KENNEDY. We will include all the statements in the
record.
Mr. Johnson?
STATEMENT OF STEPHEN C. JOHNSON, POLICY ANALYST FOR
LATIN AMERICA, HERITAGE FOUNDATION, WASHINGTON, D.C.
Mr. JOHNSON. Mr. Chairman and distinguished members of the
subcommittee, I feel honored today by your invitation to allow me
to speak to you on the political and economic conditions in Haiti.
I do not study immigration or refugee policy, and therefore can-
not provide expertise on the immediate issue that you are consid-
ering, but welcome the opportunity to address some of the condi-
tions that encourage Haitians to leave their home. I am also keenly
aware that many of you have experience on this issue that far pre-
dates my own.
One could conclude that Haiti has had a history of political tur-
bulence since independence almost 200 years ago, and that has left
little space for the development of durable institutions and the idea
that government is supposed to serve the people as opposed to the
people serving it.
Such rule has periodically triggered waves of immigrants and mi-
grants that impact Haiti's close neighbors, the Dominican Republic
particularly, which shares the same island, Cuba, the Bahamas,
and the United States. These migrations continue today and are
likely to continue into the near future as long as Haitians and their
leaders fail to agree on a social contract and develop a society that
honors the dignity of each individual, the concept of cooperation,
and free choice.
Haiti is not alone in its problems. In the 1980's, Central Ameri-
cans fled wars and civil conflicts impacting the United States.
Today, families are leaving Colombia, Venezuela, Ecuador, and Ar-
gentina to flee violence or economic disaster.
My view is that asylum decisions can only be made fairly when
heavy migratory pressures are alleviated, and migration numbers
can only be reduced by helping to resolve the problems that trigger
flight to begin with in the country of origin.
Haiti is a country that has an abundance of democratic thinkers
and a wealth of people with entrepreneurial skills who understand
the virtues of consensus and compromise. The problem seems to be
that the playing field has always been arranged by those who wish
to act with an iron fist. Their preoccupation with control has pro-
duced a legacy of impunity, corruption, and criminality that belies
the inherent goodness of the Haitian people.
Political leaders have traditionally fought each other using par-
tisan mobs. Papa Doc Duvalier created an entire army of them
called the Tontons Macoutes. Supporters of President Jean






Bertrand Aristide's Lavalas Party now carry out attacks in a simi-
lar manner against political opponents and journalists using rocks,
guns, and machetes, whether he wants them to or not.
Human Rights Watch and the U.S. State Department report that
the judicial system and police, into which the United States poured
nearly $100 million after President Aristide was restored to power
in 1994, are essentially dysfunctional. Of the 6,000 police trained
when the new Haitian National Police was organized, only about
3,000 remain, and many of them are sympathizers of the Lavalas
Party.
Haiti has a population of about 7.8 million people. By way of
comparison, El Salvador has 6 million people and a civilian police
force of 19,000, and that is barely adequate to deal with common
crime and drug trafficking.
On economic terms, Haiti's gross domestic product fell, on aver-
age, 2.5 percent during the last 10 years. That is 2.5 percent every
year. Gross domestic product per capital is about $370, according to
the Heritage Foundation's Index of Economic Freedom. Eighty per-
cent of the water is contaminated. Half of the adult population is
illiterate, 60 percent are out of work. Aside from the millions who
eke out a living in subsistence agriculture on environmentally de-
graded land, only about 30,000 have jobs in industry. As you can
see, thousands, if not millions more, are needed.
A commitment to good governance would solve a number of Hai-
ti's problems and unlock direct assistance from international do-
nors. But without progress on governance, such aid would be wast-
ed. To help current efforts gain traction, Haiti must look to some
kind of international oversight to help establish a safe environment
for fair elections to help develop good citizenship and government
from the grass roots up and to check authoritarian impulses of any
leader who would unfairly interpret his wishes as being those of
the people.
This is not something that is going to be solved overnight. It is
not going to be solved in a matter of weeks, months, years. Most
likely, it will be solved in a matter of decades, and U.S. policy-
makers and lawmakers, I think, need to be prepared for that long
challenge.
Haiti does deserve our help. We should help Haiti resolve its
problems. We need to look at the long term and be realistic about
what it will take, but we must also think about the fact that, along
with Haiti, there are other countries experiencing conflict in Latin
America that present U.S. lawmakers and policymakers with an
extremely daunting task, and I respect your initiative and your
willingness to take this on.
[The prepared statement of Mr. Johnson appears as a submission
for the record.]
Chairman KENNEDY. Thank you very much.
Dina Paul Parks?
STATEMENT OF DINA PAUL PARKS, EXECUTIVE DIRECTOR,
NATIONAL COALITION FOR HAITIAN RIGHTS, NEW YORK,
NEW YORK
Ms. PARKS. Thank you, Mr. Chairman. Thank you for the oppor-
tunity to be here, and I am particularly honored to address the





committee under your leadership, which has been so instrumental
in establishing and fighting to uphold this Nation's refugee protec-
tion laws.
I would also like to acknowledge Senator Brownback for his dem-
onstrated commitment to the plight of the most vulnerable immi-
grants and refugees, and the Haitian asylum seekers who are the
subject of this hearing today, I think, would certainly belong in
that category.
You have heard from several of our guests here about the basic
and most salient facts of this latest INS policy. As you have
learned by now, it is the just the latest in a very long history of
double-standard treatment for Haitians by the U.S. Government.
Unfortunately, the corollary element to this dynamic is the very
long, painful tradition of political violence and repression of human
rights in Haiti, and it is that that over the next few minutes I will
focus on.
The latest bout of political violence and gridlock harkens back to
the flawed elections of May 2000. Since then, the government and
opposition have been locked in a political stalemate in which nei-
ther side recognizes the legitimacy of the other, and both sides
have also rebuffed serious negotiations, despite the intervention of
the OAS in over 20 trips to settle the dispute.
Additionally, in June of 2001 President Aristide instituted what
was called a zero-tolerance policy. This basically legitimizes the
lynching of delinquents or those accused as such and has been used
as a pretext for these groups to threaten or harass anyone per-
ceived as a menace to Lavalas.
This was taken to the extreme on December 17, 2001, the day
of the attack on the national palace, branded as an alleged coup at-
tempt by the Aristide government. Less than 2 hours after this at-
tack, around of Port-au-Prince and in various locations around the
country, bands of armed Lavalas supporters, known commonly as
popular organizations, occasionally accompanied by elected Lavalas
officials, attacked and burned down the homes and offices of oppo-
sition party members and supporters, attacked journalists, and
began to force the censure of the reporting of these incidents by the
independent Haitian media.
Beginning in November and throughout December, journalists
and human rights defenders were threatened and attacked on a
daily basis. One journalist sympathetic to the opposition named
Brignol Lindor was lynched and assassinated on December 2 by a
crowd who claimed to be getting revenge for an anonymous attack
on a Lavalas supporter a few days earlier.
Shortly afterward, approximately 30 journalists, particularly
those from radio stations who did not auto-censure their broadcasts
after the attacks, fled Haiti. In addition, in early 2002 a small
number of high-profile judges and social and political activists have
continued to flee Haiti as pressure, harassment, and attacks
against person, family, and property have continued.
A report on the investigation of the December 17 attack by the
Inter-American Commission for Human Rights of the OAS issued
on July 1 of this year concluded that the attack was not a coup at-
tempt and that the violent mobs had to have had fore-knowledge






of what was expected of them in order to retaliate in such a man-
ner.
However, as more recent incidents have shown, these armed
gangs are loyal to members of various factions of the Lavalas gov-
ernment and not exclusively to one central figure. They are dis-
parate and operate chaotically, vying for power, and some are be-
ginning to lose their privileges. This is seen as a betrayal by the
gangs, resulting in increasing verbal and other backlash against
the Lavalas movement, which, although fomented this violence, has
to some degree lost control of it as it has taken on a life of its own.
The U.S. Department of State, Human Rights Watch, Amnesty
International, and NCHR have considered Aristide's human rights
record in this second term as poor for a democracy. The biggest
problems identified include impunity for those claiming to act on
behalf or in support of the government, a politicized police force,
the lack of independence of the judiciary, and the harassment and
persecution of members of the opposition, those journalists who do
not self-censure, human rights defenders, and other outspoken crit-
ics of the government, its policies, and the armed popular organiza-
tions.
To run down a few of the recent developments and violations in
the past few months, in July a journalist, Israel Jacky Cantave,
and his cousin disappeared on the way home from work. They were
found beaten and injured several days later by neighbors of the
building where they were being held.
July through September: student protests against the govern-
ment for attacking the foundation of the Independent Haitian Uni-
versity and retaliation against those student protesters. The gov-
ernment unilaterally and without warning decided to dismiss the
vice chancellor of the university and suspend all student and fac-
ulty elections and appoint its own directors.
August 2: the jailbreak of Amiot "Cubain" Metayer out of a pris-
on in Raboteau, Gonaives, which is a word that you have heard be-
fore and we will hear again. Cubain is a former Aristide ally who
was arrested for his role in the December 17, 2001, attacks on the
opposition. The jailbreak also freed close to 160 other prisoners and
these armed gangs continue to roam the streets in Raboteau.
September: a week-long gang war in the Cite Soleil slum over a
cache of arms resulted in at least 20 dead and 100 wounded. Sep-
tember 19: Haitian National Police shut down the concert of a pop-
ular band for playing a song deemed critical of Aristide. "Revolu-
tion" lists some of the country's ills and says "Mr. President, I am
talking to you..." Although government officials declared it had not
ordered the shut-down, no action has been taken to offer an apol-
ogy to the band or its organizers, or to sanction the police officers
responsible.
September 20: The disappearance of a popular pro-Aristide com-
munity leader and two associates after being arrested by the police
over a traffic dispute with government officials sparked tire-burn-
ing and violent protests in the streets of Carrefour Feuilles for sev-
eral days.
Heavily armed gang members demanded the release of Felix
Bien-Aime, and heavily armed members of the police retaliated by
firing tear gas and bullets into the popular neighborhood. At least






one journalist reported being assaulted by the police, while other
casualties included one death and several injuries. A week later,
there had been several attempts to burn down the police station.
September 26: Three popular independent radio stations-Radio
Kiskeya, Radio Caraibes, and Radio Ibo-shut down after receiving
serious and credible threats by armed men. Just days later, Presi-
dent Aristide is cited to have said that if the Haitian press contin-
ued to repeat what the international press is saying, it is a clear
continuation of the damage of the 1991 coup. This type of state-
ment is just what has incited people to act within the guidelines
of the zero-tolerance policy.
In spite of these recent and ongoing developments, there are a
lot of differences between what is happening in Haiti now and
what has been behind the mass exodus of the 1970's and 1980's,
and it is very important to outline those differences.
First, refugees from the 1980's and during the coup d'etat of the
early 1990's show that the numbers of refugees identified and
interdicted are beyond comparison. From some 24,000 throughout
the 1980's to 60,000 in just 3 years in the early 1990's, these fig-
ures have dropped to a scant 1,400 since October 2001.
During this period, according to its own website, the U.S.
Coast Guard reports only one or zero interdictions in the months
of October, January, February, June, and August, meaning that
even in the months before the INS policy on Haitian refugees was
known as such, the Coast Guard picked up no boat people in Janu-
ary or February of 2002, despite the intense turbulence the country
experienced in December 2001 following the attack on the national
palace and the reprisal attacks on members of the opposition.
Again, I would like to remind the committee that these are the
Coast Guard's own numbers and they do not support the notion of
a mass exodus. The interdictions from 1984 to 1989, and then from
1991 to 1995, far exceed these statistics.
However, the reasons for the lack of a larger wave of refugees
are not merely to be found in the statistics. With regard to Haiti,
there are great distinctions to be made between the political and
human rights situations under the Duvaliers, for example, the de
facto Cedras regime that overthrew Aristide, and the current ad-
ministration.
Under the previous regimes, the forces of government and re-
pression were strictly regimented and part of a clear, organized,
and well-known hierarchy. Under the Duvaliers, they were the
military and the macouts, used to balance out each other's power.
Under Cedras, the military's power is complemented by both the
military group FRAPH and an elaborate system of rural "chefs de
section" and "attaches."
However, under the current administration no such organization
or consolidated, centralized power exists. In fact, many human
rights organizations, activists, and political observers diagnose
chaos and disorder instead. Haiti's 7-year-old police force is politi-
cized and corrupt, with staffing far below the original 5,000 re-
cruits, primarily due to attrition.
The country's many armed gangs, the popular organizations, are
primarily loyal to the Aristide government, but not necessarily to
Aristide himself. They are loyal to other popular or local leaders






within Lavalas, such as Senator Dany Toussaint, a former military
officer, and Senator Medard Joseph of Gonaives, whose loyal gangs
include the Cannibal Army, responsible for August's spectacular
jailbreak.
Chairman KENNEDY. This is a fascinating story because it tells
with great authenticity what was happening in the country by re-
lating it to the flow of immigrants. It is very, very powerful because
generally the dialogue lacks that kind of sophistication and under-
standing of these forces. I think it is enormously compelling.
We will put it all in the record and I think it is going to be help-
ful to us as we are trying to get some justice for the Haitian detain-
ees. I think it is going to be very helpful to us in making that case.
I would like you maybe just to summarize and I will put it all
in the record. You have done a lot of background and study of this.
It is an incredible work product. I am very impressed with all of
it, but if you could summarize, I want to get some questions in.
Ms. PARKS. Absolutely. I will summarize by just saying a few
words, if I could, about the contributions of Haitian Americans to
this country.
Despite the treatment that sometimes we receive in this country,
our community has produced individuals such as Pierre-Richard
Prosper, the U.S. Ambassador-at-Large for War Crimes Issues; Dr.
Rose-Marie Toussaint, the first African American woman to head
a liver transplant service in the world; Mr. Dumas Simeus, Chair-
man and CEO of Simeus Food International, the largest black-
owned business in Texas and one of the top in the country; Mario
Elie, the power guard that helped the Houston Rockets to back-to-
back NBA championships in the mid-1990's.
We are doctors, taxi drivers, lawyers, home health aides, journal-
ists, entertainers. And we are elected officials-Marie Ceflau in
Massachusetts, Philip Brutus in Florida, Jose Listan, mayor of
North Miami. We are even executives, like our own Board Chair,
Eddy Bayardelle, First Vice President for Global Philanthropy at
Merrill Lynch.
We are a people who love our country, but when forced to leave
it, we make an extraordinary impact where we land and the com-
munity is enriched for it. There is simply no reason that year after
year, decade after decade, we always, always, always are treated
like second-class citizens.
Again, I thank you for the opportunity to address this committee,
and I am confident that you and your colleagues will exercise due
diligence in addressing our concerns that these Haitian asylum
seekers be treated in a fair and humane manner, consistent with
U.S. and international law.
Thank you.
[The prepared statement of Ms. Parks appears as a submission
for the record.]
Chairman KENNEDY. Thank you very much for an excellent his-
tory.
I was just asking my staff to both listen to you and read your
testimony and remember the various fact. We certainly saw in July
2001, the student protests against the government and the suspen-
sion of student election; in August, the jailbreaks of an Aristide
ally and 160 other prisoners; the September gang wars, 20 dead,





100 wounded; the resignation of two ministers. Then, in December,
the boat leaves.
You don't have to be a rocket scientist to understand what is
happening at this time. And then to try and force people to go
through these hoops is mind-boggling. I think it is fair to go on
through these points that you raise and ask whether these were
motivating factors or not. I am sure there are other considerations,
but it certainly describes a horrific situation. I think putting those
numbers from the past about the ebb and flow of the numbers, too,
is important for us to understand. That is incredibly important. So
I am grateful to you for this.
I was interested in the legality of the detention policy. What was
your sense about the legality of these detention policies? Would you
comment on that?
Ms. LITTLE. Yes. We filed a lawsuit on the basis that the deten-
tion policy is illegal.
Chairman KENNEDY. We will include the lawsuit in the file, not
the record.
Ms. LITTLE. We believe that the policy is illegal for a number of
reasons. First of all, the parole provisions of the Immigration and
Nationality Act call for facially neutral parole decisions to be made.
In fact, the U.S. Supreme Court in Jean v. Nelson held that parole
decisions must be made without regard to race or national origin,
and that decision still stands.
Also, U.S. law is based on the 1951 Refugee Convention, and fun-
damental to that Convention is the principle of refoulement, or
non-return, the idea that asylum seekers are not to be persecuted
for irregular entry. Certainly, the Haitians that we are speaking of
are being punished and penalized by virtue of their indefinite de-
tention because they attempted to come here and pursue asylum
claims.
We also believe that international law is being violated as a re-
sult of this policy. I believe, Senator Kennedy, you referenced the
UNHCR advisory opinion. The UNHCR recently said that to detain
asylum seekers in order to deter them is a violation of inter-
national law. They also said that to detain certain nationalities
while releasing other nationalities is a violation of international
norms of refugee law. So for a whole lot of reasons, including equal
protection provisions of the U.S. Constitution, we believe that this
policy is illegal.
Senator BROWNBACK. Mr. Chairman, I am going to have to go on,
unfortunately, to another meeting, but thank you for holding this
hearing. I appreciate the statements of the people on the panel.
If you don't mind me making a brief statement here, I think it
is very clear what the situation is. This isn't new information. The
bishop, I think, articulated it probably best when he said "this
time, and again and again." I really hope that maybe we can move
past this mistreatment of one group and let's start to get this policy
right.
I appreciate the articulate statements that each of you put for-
ward. Marie, thank you very much for coming here, in particular,
with the difficulty that your family has been through. Hopefully,
maybe we can join in a letter or some advocacy together so that
we can try to press to get this policy changed so that everybody is






treated the same, because this is well-known and well-documented,
and it is time to move past it. So I would certainly give my help
to do that.
Chairman KENNEDY. Well, I want to thank Senator Brownback
because he certainly will be a very powerful ally in helping us deal
with this.
I want to thank you very much, Sam, for being here today and
for all your support.
Finally, a few points. Ms. Little, tell us about the problems that
your organization has in getting legal representation. How difficult
is it to find pro bono attorneys?
Ms. LITTLE. Well, to their credit, the Executive Office of Immi-
gration Review-Steve Lang, who heads their pro bono department,
put out a press release trying to get pro bono lawyers to take on
some of these cases, but unfortunately it was not successful. As a
result, most of these Haitians have no attorneys. Because their
cases are being expedited, access to them is paramount. Yet, we
have faced numerous problems in trying to help the Haitians. Let
me just give you an example of what I mean when I say expedited.
Additional immigration judges were detailed from the Miami
courtrooms to Krome in order to hear these cases. Some of these
cases are scheduled for only an hour, others for half an hour-that
is with translation-versus typically 3 hours in other cases.
Judges are holding up to five merits hearings a day with the
Haitian cases. Some judges have told us that they simply cannot
grant continuances beyond 4 weeks. With other nationalities, that
is not a problem. In one week, we had over 165 requests for assist-
ance from the Haitians. Yet, at a time when we need more access
than ever, access has been more restricted.
For example, at the Krome detention center, we used to have ac-
cess to our clients virtually any time during the weekends. Not
long ago, INS officials told us that we could only visit our clients
there between 7 and 11 a.m. This is a serious problem not only for
us, but for private attorneys wanting to take on some of these
cases.
Also, we typically wait for hours at Krome to see our clients be-
cause head counts can take hours. After the counts finish, often-
times we're told they don't have enough escorts to bring the Hai-
tians meet with us. And there is not enough confidential visitation
space for attorneys to meet with their clients.
At the Turner Guilford Knight Correctional Center, where Ms.
Ocean was detained for several months, we typically wait up to an
hour for an escort. There are constantly changing requirements for
attorneys to get permission to go to the TGK unit where the
women are being held. We have no access at all to the hotel where
Ms. Ocean was originally detained. In fact, the only time I have
been there was when Congressman Conyers was in Miami and he
visited the facility and brought some of us along.
The problems for us are exacerbated by the fact that our clients
are in four different facilities. The men are at Krome. The women
have been moved from TGK to the Broward County Work Release
Center. Women with children are at a local motel, and we also
have clients at a facility in Berks County, Pennsylvania.






I don't think it is surprising that a number of our Haitian clients
are extremely depressed and demoralized. As a result, they are
having great difficulty articulating their claims. Many of their asy-
lum applications, which have to be completed in English, consist of
one or two sentences. The Haitians have no idea how to go about
dealing with the asylum process, which is very complicated even
for immigration attorneys.
Chairman KENNEDY. Bishop Wenski, let me ask you about what
is your own experience in providing pastoral guidance to these ref-
ugees. What amount are economic refugees and what amount are
those that fear asylum? Let's take the ones that you have been
working with, I imagine, in different locations. We are interested
obviously in the ones that you might have provided counselor serv-
ices to.
Bishop WENSKI. I think it is kind of a trick question because usu-
ally in this country when the economy goes bad, we hang the politi-
cians. So the economic and political factors are very much inter-
connected, and I don't know that we can distill somebody that is
purely economic and somebody that is purely political without hav-
ing a mixture of both groups.
Chairman KENNEDY. Well, I am not sure I agree with you. I
think we heard today from Ms. Ocean and that is an extremely
powerful case that you will hear for asylum, especially all that has
happened to that family. It didn't have anything to do with eco-
nomics. Given what we have heard in terms of the political anarchy
that has existed, I am not sure I accept that.
Bishop WENSKI. Well, I would agree with you on the issue of po-
litical anarchy.
Chairman KENNEDY. That is what we are talking about. The
point is you are a counselor, to people like Marie, and they are pa-
rishioners. People are talking to you in ways that they wouldn't
talk to us. I was asking about whether these are real-life stories
or whether this is what we will hear from opponents, saying any-
one can get six witnesses to go up there and say anything.
I listened in the Armed Services Committee about the danger of
the Iraqis of dropping weapons of mass destruction, and one my
colleagues said, well, Senator Kennedy, you can get six generals to
say anything. Well, they just happened to be some of the most im-
portant generals that have led American forces.
So we are trying to find out what the facts are here, and this is
a serious problem and these are serious cases. This isn't the first
time I have heard them, but I was giving you an opportunity to
say-
Bishop WENSKI. Well, in fact, I would say that Marie's case is
certainly based on fact. But even INS would say her case is based
on fact because almost all of her companions in detention have
been found to have a credible fear of persecution. So there is no one
that is questioning the credibility of their basis for asylum, which
is based on political reasons.
The political classes of Haiti have failed their people and that is
one of the sad realities that we have here. There is great Haitian
proverb that describes it well [Creole saying.] You know, what does
the flea care about if the dog is hungry? Basically, we have a fail-
ure of the political classes that the people had much hope in much




21

expectation of. And, of course, they are paying for this in increasing
misery and violence, and therefore are leaving their country look-
ing for new hope.
Chairman KENNEDY. I am going to include in the record a num-
ber of statements, one from my colleague, Senator Graham, and a
number of other leaders in the community, leaders in various orga-
nizations. We will include those in the record.
[The prepared statement of Senator Graham appears as a sub-
mission for the record.]
Chairman KENNEDY. I want to thank all of our panelists very,
very much for coming. It might be said, we have known this for
some time. We are going to try and keep after this until we get
something done, at least I am, and so we will work with others
that feel the same way. I believe that we can and we commit that
we will.
We thank our colleagues.
The subcommittee stands in recess.
[Whereupon, at 4 p.m., the subcommittee was adjourned.]
[Submissions for the record follow.]








SUBMISSIONS FOR THE RECORD


Testimony before the
Senate Committee on the Judiciary Subcommittee on Immigration
On the Detention and Treatment of Haitian Asylum Seekers

October 1, 2002


Lida Rodriguez-Taseff
American Civil Liberties Union


I am Lida Rodriguez-Taseff, the President of the American Civil Liberties Union Miami-
Dade County Chapter ("ACLU"). On behalf of the ACLU and this diverse Community, I want to
thank each of you for the opportunity to submit written testimony regarding the discriminatory
detention and treatment of Haitian Asylum Seekers in South Florida.

The ACLU is a nationwide, nonprofit, nonpartisan organization with nearly 300,000
members, approximately 12,000 in the State of Florida, dedicated to defending the principles of
liberty and equality embodied in the Constitution and this nation's civil rights laws. Because the
ACLU takes to heart the self-evident truth that we are a nation built and bettered by the labors and
struggles of immigrants, our organization has long fought for immigrant access to the courts;
against unconstitutional detention and deportation; and against arbitrary government decision-
making and unconscionable INS procedures that violate due process. The ACLU has repeatedly
assisted in legal efforts to challenge the discriminatory treatment of Haitian as-ylum seekers. For
their part, federal judges have criticized the INS for its wholesale violations of the Haitians'
fundamental legal rights. A reading of their decisions amply demonstrates that no other group of
refugees has been so victimized by blatant and cruel government policies during the past two
decades.

For example, Haitian Refugee Center v. Civiletti was filed in July 1980 on behalf of over
4,000 Haitians requesting asylum. The INS, through procedures in effect at that time, had denied
all 4,000 applications. The trial court held that United States government agencies had set up a
"Haitian Program" designed specifically to adjudicate and to deny as quickly as possible, in
wholesale fashion, the asylum claims of Haitians. The trial court also concluded that the
discriminatory treatment of Haitians was nothing new, but rather that it was part of a pattern of
discrimination which began in the 1960's. Moreover, the trial court found that the INS was
engaging in scare tactics, noting that the INS Deputy Commissioner encouraged government
attorneys to point out "the dimensions of the Haitian threat," calling Haitians a threat to the
community's social and economic well-being.

Jean v. Nelson, the second case, was filed on behalf of the Haitians indefinitely detained at
Krome who were improperly denied access to their attorneys, faced overcrowded conditions and
illegal transfers, and were deported in a manner INS itself admitted was faulty. Again the trial
court noted the INS' callous disregard for the rights of Haitian refugees and ruled that the Haitians
were "impacted to a greater degree by the new detention policy than aliens of any other







nationality...." The detention policy was found to be invalid and Miami District Court Judge
Eugene Spellman ordered the release of over 1,000 Haitians. The Government's claim -- that there
was a massive influx of Haitians coming to the United States -- was rejected by the Appeals Court,
which noted that Haitians represented no more than 2% of the illegal immigration flow into the
U.S. The Appeals Court also found that statistical evidence disclosed that the Federal Government
had engaged in a "stark pattern" of discrimination against the Haitian asylum seekers.

The Government's justification for its current discriminatory Haitian-only detention policy
is bitterly reminiscent of the anti-Haitian policies of the past; policies that were rejected by the
courts and repudiated by right-minded Americans. Once more, the excuse is that without these
policies, we can anticipate a mass exodus of Haitians. Long-time residents of this community
vividly remember the year 1991, when following the coup d'etat in Haiti, lawyers for Haitians on
board Coast Guard cutters were forced to file a class action lawsuit to stop the Government from
forcibly repatriating them. The U.S. Government, whose lead attorney in this case was Solicitor
General Kenneth Starr, filed an emergency petition with the Supreme Court of the United States,
alleging that 20,000 Haitians "were massed" on the Haitian beaches and ready to head to
Guantanamo. They alleged, moreover, that Guantanamo could not accommodate such numbers.
We believe that Government lawyers deliberately misled the courts in 1991 with false claims of
national emergency. For example, under sworn deposition, Undersecretary Bernard Aronson
admitted that the term "massing" was ambiguous and admitted he was quite unsure of the number
of Haitians preparing to leave. And independent observers, including the Coast Guard attache in
Port-au-Prince who frequently flew over the point of departure for Haitians, concluded there was
no threat of mass migration. But the Government's efforts to mislead did not end there. In its brief
to the United States Supreme Court, the Government relied on the declaration of Robert K.
Wolthuis, whom they presented as the Assistant Secretary of Defense. Mr. Wolthuis had assumed
that position for one day only the day he signed the declaration. He readily admitted that most of
the facts he swore to in his declaration were what the lawyers who had drafted it told him. The
declaration was so defective that attorneys for the Haitians filed a separate memorandum
concerning it. Having pushed the panic button, however, the Government was not going to be
stopped. On May 24, 1992 President Bush issued an Executive order, ordering INS to repatriate
Haitians interdicted at sea without any investigation into the likelihood of their persecution in Haiti
("Kennebunkport Order").

The current Haitian-only detention policy is a surreal repetition of the past racist and
discriminatory policies that have been repudiated time and again by our courts. It is bitter irony
that the panic button has again been pushed. For the sake of this Nation's proud immigrant history,
we need to be able to put an end to a system that specifically targets only asylum seekers from Haiti
and summarily denies them release even after an Asylum Officer has found them to have a credible
fear of persecution in Haiti.

We hope that you will seriously consider our concerns regarding this discriminatory policy
directed at Haitian asylum seekers on the basis of their national origin and race.


Thank you.









American Federation of Labor and Congress of Industrial Organizations

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LeoWGeard Mahlsa.ta et E0cMadJ MDiryJr


For Immediate Release


AFL-CIO Statement on Haitian Refugees
June 20, 2002

The working families of the AFL-CIO stand in support of Haitian asylum seekers and
their families, who continue to face discrimination and detention as a result of the Bush
Administration policy of detaining Haitian asylum seekers even after they have established a
"credible fear of persecution." As a result, Haitians who risked a perilous journey to the U.S. in
search of a safe harbor from the persecution and oppression they faced in their homeland now
face unjust and unfair treatment in the U.S. While those seeking asylum from other countries are
released to the community, Haitian asylum seekers are not only detained, but their cases are "fast
tracked." With so little time to prepare their asylum cases and an inability to move freely about
the community to assist their legal representatives, Haitians have suffered a very high denial rate
of their asylum claims.

The union movement joins with members of the Haitian, civil rights, faith-based, and
immigrant and refugee communities in opposing this discriminatory treatment by the
Administration. It is simple justice to treat all asylum seekers, whatever nationality, in the same
fair and even-handed manner. It is the American way to allow all asylum seekers adequate time
and freedom to prepare their asylum cases so that they truly receive a fair hearing. To do so is
not a matter of special treatment for Haitians seeking asylum, but one of fair and equal treatment.

All Americans suffer when one group of people is singled out for unjust and
discriminatory treatment. We call on the Administration to immediately end the discriminatory
treatment of Haitians asylum-seekers and to extend to them the same rights and opportunities
accorded to individuals seeking asylum from other nations.

###










DISTRICT 3
MIAMI-DADE COUNTY FLORIDA
STEPHEN P CLARK CENTER
1 I N W FIRST STREET. SUITE 220
DR. BARBARA M. CAREY-SHULER MIAMI, FLORIDA 33128 1963
(305) 375 5393
FAX (305) 3726104




September 30, 2002



Honorable Edward M. Kennedy
Chairman
U.S. Senate Committee on the Judiciary
Subcommittee on Immigration
224 Dirksen Senate Office Building
Washington, D.C. 20510

Dear Mr. Chairman:

I am writing to express my strong support for the hearing of the Subcommittee on
Immigration of the U.S. Senate Committee on the Judiciary scheduled on Tuesday,
October 1, 2002 on "The Detention and Treatment of Haitian Asylum Seekers." I also
wish to commend you for your leadership and continuous defense of the cause of
Haitians in the United States.

Even prior to that horrible day of December 3"', 2001, when a boatload of 187 Haitian
immigrants grounded off Miami, the treatment and illegal detention of Haitian asylum
seekers has been and regrettably continues to be a cause for concern for me in particular,
and for the Miami-Dade County Board of Commissioners, in general. As a County
Commissioner representing a district, which includes Little Haiti -- an area populated
mostly by Haitian immigrants, I have been involved for most of my public life in issues
directly affecting Haitians in Miami. Whether immigration, employment status,
availability of information in Creole, unimpeded access to the voting process, etc., I have
sponsored many pieces of local legislation in favor of the Haitian community. However,
the matter of the Haitian detainees, while a federal issue, negatively impacts Miami-Dade
County's government and community.

This injustice even prevents the harmonization of all of our residents since only one
ethnic group of our social fabric is seeing its kinship continuously being discriminated
against by the U.S. Government.








Honorable Edward M. Kennedy
September 30, 2002
Page 2



It is a well-documented fact that Haitian refugees have always been subject to a different
treatment under Immigration and Naturalization Service (INS) regulations. A decade
ago, Haitians, fleeing oppressive persecution derived from a military dictatorship, were
taken to camps at the U.S. military base at Guantanamo, Cuba, instead of being allowed
to set foot in the United States. Now, ten tears later, U.S. administration officials are
again treating Haitians differently. A few months ago, the Bush administration secretly
changed its detention policy on Haitian refugees. Instead of routinely releasing newly
arrived Haitians without approval from INS headquarters in Washington, D.C., the
administration puts asylum seekers in jail, and in the case of Haitians, in maximum
security facility.

This is a disgraceful conduct on the part of our government and, personally, I find this
behavior discriminatory because only Haitian asylum seekers and refugees fall under this
policy. The notion of fairness, due process and justice that our government is supposed
to protect is being violated by the administration. This country has and even today
continues to fight for these principles, and yet we are denying those same rights to a
group of people solely because of the color of their skin.

It is for these reasons that I fully support your initiative to hold these hearings and hope
that the a ion will redress the wrongs being done to the Haitian asylum seekers
by giving rm temporary freedom.

incerely, \



, Crey-S hu_ Ed.D.
County Commissi ner, District 3






Statement of Congressman John Conyers Jr.

Offered for the Record of the Senate Judiciary
Subcommittee on Immigration
Hearing on "The Detention and Treatment of Haitian Asylum-
Seekers"

October 1, 2002

I remain completely outraged by the policy of indefinite detention that
the Department of Justice initiated against Haitians asylum-seekers last
December in Miami, Florida.

In March when I visited the Krome Detention Facility where many of
these asylum-seekers are held, an INS official told me that the new detention
policy was intended to protect Haitians from danger on the high seas and that
the U.S. did not want to trigger a wave of immigration by maintaining an
open door.

This policy is abusive, discriminatory, and in many cases has confined
Haitians here on U.S. soil to conditions quite similar to those they fled in
Haiti. Moreover, the INS directive went far beyond its stated intent until
my visit, the INS was singling out and detaining Haitians arriving with false
documents at the airport, as well as Haitian resident aliens in south Florida
who were found with technical immigration law violations.

Rather than following usual policy, the INS is abusing authority
granted in the wake of September 11th to combat terrorism by keeping
people who have no possible links to terrorist activity in detention, even after
they have demonstrated a well founded fear of persecution and been grated
political asylum.

U.S. immigration authorities grant parole to approximately 91 percent
of asylum seekers from other countries. However, Haitians who have been
deemed to have plausible claims for asylum have been singled out and then
left to languish in detention centers for as long as nine months. During my






March visit to facilities in southern Florida I encountered a father with two
minor children who had been granted political asylum, but was still being
held pending appeal by the INS.

Since August, the INS has been removing the Haitians who arrived last
December from the country. Unlike other nationalities, Haitians are returned
to Port-au-Prince in chains and leg-irons like prisoners and they are turned
over to Haitian police upon their arrival. A number of detainees, including
women, have been imprisoned upon their return to Haiti because of their
political convictions or simply the fact that they fled the island in the first
place.

I have witnessed first hand the unacceptable conditions in which many
detainees are held. Facilities are operating far above maximum capacity.
Women who committed no crime but fled persecution and political turmoil,
were being housed like criminals in a maximum security jail with violent
perpetrators until August when they were moved due to the complaints of
advocates and members of Congress. Children are still being detained
indefinitely without access to educational services or playtime outdoors. In
Krome, detainees have been issued only two changes of clothing and limited
access to laundry services for an indefinite stay, and they are denied access to
Creole speaking staff. In one case a woman who was coughing blood had
been denied medical attention because translators were unavailable to inform
authorities that she was in need of medical care.

Valid human rights concerns persist in Haiti and meritless detention
remains an indefensible option for responding to those who are fleeing
persecution. In fact, the greater the incidence of political persecution and
human rights violations in Haiti, the more Haitian citizens ought to qualify
for asylum under our law. Once again, the Bush Administration seems
inclined to unilaterally bend the law to serve its political goals.

We have a duty to ensure the application of due process and equal
protection under the law for all of those who come to this country fleeing
persecution and seeking protection. We have failed to live up to our
responsibility to the Haitians who have arrived on our shores.




29

I call on the INS to end this discriminatory policy immediately; ensure
adequate access to representation and translation; provide programs,
activities and outdoor recreation to children detained with a parent; end the
overcrowding and ensure that each asylum-seeker has an opportunity to raise
their claim for asylum.








09/25/02 nED 17:10 FAX Q002

P U. S. Department of Justice

Office of Legislative Affairs



Ofieo of.th A.itani AaeyGcordI Waht*M DC. 20530
SEP 25 2002


The Honorable Edward M. Kennedy
United States Senate
Washington, DC 20510
Dear Senator Kennedy:
Thank you for your letter of June 19, 2002, to Attorney General John Ashcroft,
co-signed by Senator Sam Brownback, expressing concern about the recent changes in
the Immigration and Naturalization Service (INS) policy towards Haitian asylum seekers.
A separate response will be forwarded to Senator Brownback.
In your letter, you propose a reinstatement of INS' previous policy with regard to
Haitian asylum seekers. While we do not support reverting to our previous policy at this
time, you should be aware that the following events have lead the INS to adopt
alternative criteria in regard to the parole of certain Haitian asylum seekers.
On December 3, 2001, 167 Haitian migrants were rescued by the United States
Coast Guard (USCG) from a boat that was foundering off the coast of Florida. Eighteen
other migrants from the same vessel successfully swamto shore, while two others were
reported drowned. The migrants rescued at sea were brought into the United States in the
Miami area and placed into expedited removal proceedings. As such, these migrants
were subject to mandatory detention- The 1 S migrants who swam to shore were not
subject to expedited removal or mandatory detention, and they were paroled from
custody shortly after their apprehension and placed into ordinary removal proceedings.
Unaccompanied males from the boatload were placed in the Kxome Detention Facility in
Miami (Krome houses only males). Unaccompanied females were housed in the
Turner Gilford Knight facility. These females have since been transferred to anew
facility in Broward County Florida. This facility is staff secure and does not have the
security hardware associated with prisons and jails. Family units and juveniles were
housed in other appropriate facilities.
The vessel that arrived on December 3, 2001, was one of several that departed
Haiti and was interdicted by the USCG since November 2001, marking a sharp increase
irregular maritime departures from Haiti. During Fiscal Year (FY) 2001, the USCO
interdicted vessels carrying 1,391 Haitians at sea. In contrast, by March of FY 2002, the
USCG had already interdicted 1,354 Haitians.
This increase in risky sea travel from Haiti raised concerns of the United States
Government. If the Government continued to parole Haitian nationals arriving by sea,
this might cause others to attempt to leave Haiti by boat. By doing so, they not only
place themselves at risk, but they could also potentially trigger a mass migration from
Haiti to the United States. The United States Government concluded that adjusting the
INS' parole criteria with respect to Haitians arriving by boat in South Florida would be a





31

Ui/2/VuZ 5t51 17:11 ?A i1d 003




The Honorable Edward Kennedy
Page 2

reasonable step to take in order to protect lives and prevent against a potential mass
migration to the United States.

Based on these concerns, the INS Deputy Commissioner instructed the INS
Office of Yield Operations to adjust its parole criteria with respect to all inadmissible
Haitians arriving in South Florida after December 3, 2001, and that none of them should
be paroled without the approval of INS Headquarters. The decision of whether to detain
or parole those individuals takes a number of factors into account including potential for
flight risk and ties to the community

Following the issuance of instructions from the INS Deputy Commissioner and
the Executive Associate Commissioner for Field Operations, the Miami District
conducted a case-by-case review of Haitians detained since December 3,2001, and made
recommendations to INS Headquarters regarding cases that should be considered for
parole. These recommendations were considered and approval was given to parole those
cases with demonstrated extreme hardship, such as pregnant females, juveniles, and
family units.

On April 5, 2002, the Office of Field Operations and the Eastern Regional
Director issued field instructions permitting the Miami District to parole Haitians
arriving by regular means at designated ports in South Florida pursuant to enhanced
procedures for scrutinizing the individual's likelihood to appear. These procedures were
designed to verify that each individual considered for parole would appear for
proceedings and included requirements that sponsors be identified, interviewed and
provide an affidavit of support, that all addresses be verified, the alien be subject to
reporting requirements and the criminal history of any alien being considered for parole
be checked. Any alien who does not comply with parole conditions will be taken back
into custody. These procedures were made discretionary for such Haitians in July.
Haitian nationals who arrive by irregular means, such as by boat, continue to be
processed as before (ie. case-by-case review, recommendation for release based on
unusual hardship conditions, etc.).

On May 17, 2002, the District Court dismissed a class action lawsuit, in which
Haitian plaintiffs claimed that the INS policy with regard to the detention of Haitians in
South Florida was illegal In dismissing the case, the court upheld the legality of the INS
policy. The plaintiffs have since appealed the District Court's decision. We are
enclosing copies of the INS Deputy Commissioner's declarations to the District Court as
well as their decision dismissing the lawsuit.

As of September 20, 2002, of the 167 individuals initially placed in detention
upon arrival, only 7 have not completed their proceedings before an immigration judge.
40 individuals are awaiting the completion of their appeals to the Board of Immigration
Appeals. The remaining 120 have either been granted asylum (16), been removed after





32

09/25/02 TED 17:11 FAX l00oo




The Honorable Edward Kennedy
Page 3

receiving final orders of removal (50), or have received final orders and are awaiting
removal (54).

We trust the information provided is useful. If we may be of assistance in the
future, please contact this office.

Sincerely,




Daniel J. Bryant
Assistant Attorney General

Enclosures







Testimony of Danny Glover

Immigration Subcommittee of the Committee of the Senate Judiciary

Detention and Treatment of Haitian Asylum Seekers

October 1, 2001

Nowhere is the double standard of our immigration policy starker than in Miami, where
nearly one hundred Haitians have been locked up for almost ten months. Following
orders from Washington, local INS officials have discriminatorily denied Haitians who
have proven their "credible fear" of persecution from being released. This, while all
other similarly situated asylum seekers from other countries are routinely released to
prepare their asylum cases.

Why? Officially, it's a preventative measure designed to ensure that more Haitians don't
board unseaworthy vessels in a desperate attempt to reach the United States. The real
desperation, however, may stem from our president's not wanting to deal with the
problem of Haitian boatpeople in a gubernatorial election year.

Last December, the U.S. Coast Guard intercepted 167.Haitians off Miami's shores.
When the asylum seekers were interviewed by U.S. Asylum Officers, all but two were
found to have a credible fear of persecution should they be returned to Haiti.

Routinely, once this interview has taken place, the asylum seekers are released and given
up to a year to prepare their cases. Not only have nearly one hundred Haitian asylum
seekers remained in detention, their cases have been expedited. Additional judges were
brought to the detention site to hear their cases even more quickly. Despite their needing
attorney access more than ever, INS has imposed more restrictive barriers in effect
denying them their right to see the few pro bono lawyers available to them. Many have
had to represent themselves in immigration court. Not surprisingly, scores of Haitian
asylum seekers have already been deported.

This summer, I visited the Haitian women detained under this new discriminatory policy.
At that time, the women were held at the Turner Guilford Knight Correctional Center
(TGK), a maximum-security county jail, where life was far more restrictive than it was
for the men. Two days after my visit, three of the women I spoke with were shackled and
handcuffed and deported to Haiti. Advocates were able to contact one of the asylum
seekers, Rigmane Ovilma, after her deportation. She described horrific conditions in the
Haitian jail, and their families had to pay hundreds of dollars to help them get released.
Ms. Ovilma said, "We were living in a nightmare in Haiti before we left, then we lived a
nightmare in the United States of America and we are living a nightmare again in Haiti. I
still have the scars of the shackles on my ankles they put on us when they deported us
because they were so tight.... Why are we being treated this way? Doesn't anybody care
about our lives?"







These are the same questions asked by the immigration attorneys and Haitian rights
advocates who filed a class action lawsuit on March 15, 2002, on behalf of the detained
Haitian asylum seekers. They charge a discriminatory detention policy that singles out
the Haitians based on their race and/or national origin. Only as a result of this lawsuit did
the INS finally admit, after months of denial, that a new policy has been implemented
against the Haitians. Despite the government's alleged panic of an ensuing mass exodus
of Haitian refugees, no such thing has happened.

It's no surprise that the indefinite nature of their detention and disturbing conditions of
their confinement have caused the Haitians to become incredibly anxious, despondent
and depressed. One young woman at the jail I visited told me the women felt pressured
to withdraw their asylum claims. A number of asylum seekers have become so
disillusioned with the American judicial process that they have succumbed to these
pressures. Imagine the desperation when deportation is a preferable choice than living as
a criminal with an indefinite sentence. Already, about 50 of the asylum seekers have
been deported.

While the government has necessarily buckled down on illegal immigration since 9-11, it
seems misdirected, if not downright racist, to treat Haitian asylum seekers differently
than those from other countries. Let's focus our attention on the real criminals of the
world, not on those seeking a legitimate safe haven in the United States.

Thank you for this opportunity to submit my testimony for your consideration.







October 1, 2002

Senator Bob Graham

Testimony before the Senate Judiciary Committee, Immigration Subcommittee



I commend Senator Kennedy for holding this hearing on the issue of Haitian detainees an issue
that has caused much confusion and frustration in many South Florida communities, and an issue
that I have had a deep personal concern about since last year.

I appreciate the Florida witnesses Bishop Thomas Wenski, Cheryl Little and Marie Ocean
traveling here and sharing their personal experiences, and the many Floridians who have come up
to offer support and who are in the audience this afternoon.

The lengthy, seemingly indefinite, detention of Haitian nationals who have come to the United
States since last autumn has caused each and every one of the detainees to spend an exorbitant
amount of time in uncertain limbo. This is not just misguided. This is not just egregious. This is
inhumane.

Surely, if we must have a national policy of detaining any specific group of people, we have to do
a much better job in providing information and status updates to those individuals, and to the
people who advocate for them and care about them.

This lengthy detention has deepened the feeling in South Florida that different nationalities
receive different treatment. We can't allow this sentiment to continue. All who come to the
United States fleeing persecution deserve at least a level playing field to make their case. There
are times when national immigration policy must be strict, and times when it can allow more
flexibility but at all times, all people, deserve the same fair chance to seek refuge from
persecution they face in their home country.

With fairness and equal treatment in mind, my experience in working on behalf of the detainees in
Krome and TGK has been disturbing to say the least.

The first task I undertook was to try and determine who established this nation-specific detention
policy. Was it the INS? The White House? The State Department? The National Security
Council? The Justice Department? (I would like to submit correspondence about this issue.) At
each agency, my staff or I could find someone willing to discuss the situation, but not able to say
how the policy was developed and who would have final authority for revising it.

I personally contacted Secretary of State Colin Powell, Condeleeza Rice of the NSC, and Jim
Ziglar of the INS about the growing concerns in South Florida. Senator Bill Nelson and I invited







Commissioner Ziglar to come to meet some of the detainees held in the maximum security TGK
facility and he is to be commended for making that trip.
While this trip was needed to understand what is happening at TGK, it is the stories of these
women that bring a horrific reality to the situation. The story of Jesiclaire Clairmont, who came to
the US with her family aboard a boat last December, is the reality of our Haiti policy. Stuck in
detention since December of last year, Clairmont is an evangelical Christian and her only crime
was fleeing her town in Haiti, Si M'ap Viv where violence has become an everyday part of life.
Two of her children are also in custody. The other two are free, living in Little Haiti with their
father, waiting for their mother and siblings to join them.

Liz Balmaseda, a columnist for the Miami Herald wrote about Jesiclaire and her family. I would
like to have the column submitted for the record.

It is these human faces and stories that have strengthened my resolve to find out who is the final
decision-maker on this policy. Although technically, it seems as if the final call rests solely with
the INS, my sense is that this agency was receiving advice and encouragement to hold fast to the
detention policy from other federal agencies.

What could generate such a nation-specific detention policy? Since I could not find a specific
answer from any federal agency, I can only surmise that one factor may be a desire not to create
any incentives for potential immigrants or refugees to travel here heading off a possible mass
migration emergency.

In order to secure the best information about the current situation in Haiti, I have contacted the
United States Embassy in Haiti and asked several questions related to the current climate in the
country. There are always indicators of a potential mass migration event: a surge of boat-building
activities, or gatherings of citizens by the shoreline or ports. I wanted to know, has this actually
occurred in Haiti during the time that Haitian nationals have been detained in South Florida?

The Embassy's response stated that while there do hnot appear to be indicators of a mass migration
emergency at the moment, the potential always exists for a future crisis. Given the first part of
this statement, I would urge that our current detention policy be re-examined. If an imminent
threat of mass migration does not presently exist, our nation should have much more flexibility in
our detention policy. Of course, over the next months and years, if the situation changes and there
is more of a threat, we can amend our policy accordingly.

The various interpretations that our office has heard about the exact climate in Haiti, and the
changing nature of that climate, highlight the fact that we need an open exchange of ideas and
information in this issue.



Because the decision-making process has been shrouded in such secrecy, with no person or







agency seemingly accountable, the feelings of unfairness, of discrimination, of disparate treatment
have deepened in South Florida.

The human impact is real. Legal advocates in Florida communities have dedicated many, many
hours to try and improve the day to day lives of the detainees, and to try and bring resolution to
their cases. They have taken time away from their families to help those in need through a lengthy
and complicated legal process.

Senator Kennedy and my other colleagues on this Committee deserve our thanks for bringing
attention to this issue and I appreciate being given a chance to share my thoughts. I would like to
conclude with three main goals my wish list for resolution of these concerns.

A) Timely, accurate and clear information needs to be made available about the development
and enforcement of this nation-specific detention policy. Once we understand why the
policy was established, a review of the policy should occur on a frequent basis to
determine if the policy is still needed.

B) Advocates who are working on behalf of these detainees need more information and
access to those they are trying to help. More advocates are needed to ensure that all who
arrive here have a fair opportunity to understand our law and make their case.

C) If for some reason, a case can be made that closer supervision of any group of individuals
is needed, mandatory detention should only be used when absolutely no other alternative is
available. In those, hopefully rare, instances, all efforts must be made to resolve the
situation of the detainee in an expeditious manner. Young Haitian women in South
Florida spent far too many weeks and months in a maximum security prison environment.
This is unacceptable, unfair, and we must do something to change this policy.

Again, I thank the Committee and look forward to working with you on this issue.




38

Political and Economic Conditions in Haiti



Testimony of



Stephen C. Johnson

Policy Analyst for Latin America

The Kathryn and Shelby Cullom Davis
Institute for International Studies

The Heritage Foundation



Before the

Subcommittee on Immigration of the

Judiciary Committee

U.S. Senate

Washington, D.C.


October 1, 2002





39

The Heritage Foundation is a public policy, research, and educational organization
operating under section 501 (C)(3). It is privately supported, and receives no funds from any
government at any level, nor does it perform any government or other contract work.

The Heritage Foundaion is the most broadly supported think tank in the United States.
During 2001, it had more than 200,000 individual, foundation, and corporate supporters
representing every state in the U.S. Its 2001 contributions came from the following sources:

Individuals 60.93%
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Foundation upon request.

Members of The Heritage Foundation staff testify as individuals discussing their own
independent research. The views expressed are their own, and do not reflect an institutional
position for The Heritage Foundation or its board of trustees.







Mr. Chairman and distinguished members of the Subcommittee, thank you for
inviting me to address Haiti's political and economic conditions. You are holding hearings today
on a much more specific issue, that of U.S. immigration policies toward Haitians fleeing harsh
conditions in their homeland to find a new life on U.S. shores. In my work as a regional analyst,
I do not normally study immigration or refugee policy and therefore cannot provide expertise on
those topics other than to express my belief that the solution to reducing migratory pressures is to
help improve conditions in the country of origin. Moreover, Haiti is one of 35 countries that I
research in Latin America. But it is a country that demands attention because of its proximity to
the United States, because it has responsibilities as a member of the community of American
states, and by virtue of the seemingly intractable problems of poor governance and deteroriating
economic conditions that inspire out-migrations not just to the United States. but to other close
neighbors as well. Given my research focus. I will try to provide an overview of the political and
economic conditions in Haiti and an assessment of whether they are likely to improve over time.

Between Predation and Opportunism
Haiti is the oldest independent black republic in the world and the second oldest
republic in the Amei icas after the United States. A French plantation society in western
Hispaniola, it gained independence in 1804 after slaves overthrew the local government and
defeated Napoleon's army. Despite this heroic beginning, Haitian leaders had few governing
models to guide them beyond colonial rule. Haiti's first leader declared himself emperor and
was killed by a mob on his way to put down a rebellion. Over the next 100 years, most other
leaders were either deposed or killed, although one served out his full term of office.
Following an uprising in 1915, President Woodrow Wilson sent in U.S. Marines and
the United States ran Haiti for 19 years. Extended U.S. control improved public health,
expanded national infrastructure, and imposed fiscal discipline. But because local officials only
served as figureheads, U.S.-imposed reforms failed to improve governance beyond training more
professional security forces.
Even that disappeared when Francois Duvalier declared himself president-for-life in
1957. He replaced U.S.-trained troops with young followers less likely to challenge his authority
and organized bands of rural vigilantes nicknamed the tonton macouts who soon surpassed the
institutional army in strength. When "Papa Doc," as he was known, tried to obtain U.S.
assistance to train them, the Kennedy Administration cut off aid.
Papa Doc's son Jean Claude succeeded him in 1971 at the age of 19. Uninterested in
government, he left most of the administration to his mother. During the 1980s, hunger and
diseases like AIDs spread while government officials looted the treasury. By 1986, mounting
unrest spurred the Reagan Administration into asking the younger Duvalier to go into exile.
Riots triggered a military coup and the army finally sent him packing. A series of interim
governments followed and a new democratic constitution-still in force today-was approved in
1987.
In 1990. charismatic former Catholic priest Jean Bertrand-Aristide was elected
president with 67 percent of the vote in what foreign observers judged to be a free and fair
election. Barely eight months later, he too was overthrown by a military coup that resulted in
another corrupt and repressive order. As a result some 41,000 Haitians left the island by sea,
four times the number of rafters seeking asylum than in the previous 10 years.





41

Short-Lived Intervention and a Reversion to Old Patterns
On the heels of failed Organization of American States (OAS) and United Nations
(UN) efforts to restore Haiti's elected government, the UN Security Council adopted a resolution
empowering member states to use any means to restore Haiti's constitutional order. Acting with
the best of intentions, the United States led a multinational military mission to Haiti in
September 1994 to pressure the ruling generals to step aside. A month later. President Aristide
was back in the presidency.
But, the U.S.-led Operation Restore Democracy was not the foreign policy slam-dunk
many thought it would be. The Clinton Administration's objective was limited: to return
Aristide to office, slow the exodus of Haitian rafters, and turn over peacekeeping duties to the
United Nations by February 1996. Yet even as President Clinton praised Aristide's
"commitment to reconciliation and the rule of law," the former priest betrayed that trust by
surrounding himself with mobs and by harassing political opponents, some of whom reportedly
turned up murdered. U.S. officials even had to persuade Aristide to step down at the end of his
term to allow his hand-picked successor, Rend Pr6val take office.
Aid programs totaling some $100 million from the United States followed to support
a succession of new elections, build a new police force, revitalize the judiciary, and rebuild other
neglected institutions. None of the money spent on elections-at $6 million to $8 million
apiece-left behind any lasting electoral infrastructure. A professional police force of 6,000
trained by U.S. and Canadian instructors dwindled to about 3,000-most of whom are now
loyalists to the president and do little to protect the public. After a new Coast Guard was set up
to help apprehend drug traffickers, transhipments through the island actually increased from 10
to 14 percent according to a GAO study.' In 2000, some 80 percent of those in prison were
simply awaiting trial.
After Aristide left office, he heavily influenced his successor. Following flawed
parliamentary elections in 1997, President Prival blocked a new vote until most assembly seats
expired, leaving the government with just himself and a handful of unconfirmed cabinet officials
in charge. When parliamentary elections were finally held in May 2000, authorities excluded
nearly a quarter of the votes cast using a formula that violated two articles of Haiti's
constitution.2 Aristide himself was returned to office in November in a questionable vote that the
OAS observer mission boycotted and in which the estimated turnout was only 10 to 15 percent.
Since then, Aristide's government has been locked in a tug-of-war with the opposition known as
the Democratic Convergence over how to remedy the flawed May 2000 vote.
The dispute over the parliamentary elections prompted the Clinton Administration to
suspend direct U.S. assistance to Haiti's government, a policy the Bush Administration has
continued. The European community and multilateral institutions did likewise resulting in some
$500 million in aid being withheld until Anstide and the political opposition come to an
agreement over the elections and when Haiti's government adopts minimal standards of
accountability. But instead of implementing such reforms, President Aristide has engaged in a
costly lobbying effort to restore foreign funding, calling conditioned assistance "economic
terrorism."


' U.S. General Accounting Office. Foreign Assistance: "Any Further Aid to Haitian Justice System Should Be
Linked to Performance-related Conditions," GAO-01-24, October 2000, p 12.
'Shaheen Mozaffar, "The Dilemma of Building a Multiparty Democracy in Hlaiti." Georgetown University, Hati
Papers, July 2001, p. 2.





42

Over the last two years, the OAS has tirelessly attempted to broker an agreement with
both Aristide and the opposition, discussing formulas that ranged from removing a few senators
in contested seats to holding entirely new elections. So far, intransigence on both sides has
blocked success. Last month, in an effort to breath new life into the dialogue, the OAS adopted
Resolution 822 recommending the resumption of direct aid to the government, if it would only
account for it and make a concerted effort to protect human rights--dropping the requirement for
a comprehensive electoral accord with the opposition. Most observers doubt if Aristide will
accept even these more lenient conditions. On September 20, 2002. Aristide's minister in charge
of electoral negotiations. Marc Bazin resigned, faulting the government on human rights and
economic policy. And on September 29, Aristide's Justice Minister Jean Baptiste Brown
stepped down complaining that he found himself "unable to substantively address serious issues
such as professionalization of the Haitian police and fighting against impunity."

Eroded Economy
If Haiti's economy was pillaged by the Duvalier family, it has been battered by
continuous political instability ever since. According to the World Bank, real per capital gross
domestic product (GDP) declined about two percent per year during the 1980s. During the
1990s, it fell 2.5 percent per year. Part of the blame goes to the military coup in 1991 and
embargoes on trade and financial transactions. But since Aristide's return, the continuing
political crisis has blocked needed economic reforms. The World Bank's 1998 Poverty report
put it more bluntly: "Haiti has never had a tradition of governance aimed at providing services
to the population or creating an environment conducive to sustainable growth."
From a practical standpoint, few outside investors would want to launch a business in
a country where electricity is available for only a few hours a day. Few would want the
headache of shepherding equipment and merchandise through a non-functioning customs
bureaucracy. Fewer still are interested in conducting business where there is no rule of law and
where partisan mobs can threaten employees or destroy assets. This, despite the fact that Haitian
workers are known for their work ethic and entrepreneurial spirit.
Last year according to The Heritage Foundation's Index of Economic Freedom, Haiti,
with nearly 8 million people, generated little more than a $2.9 billion gross domestic product.3
That amounts to $371 per capital, one of the lowest figures in the hemisphere. In 1999, it
imported $800 million worth of goods and services (half of it from the United States) while its
exports only totaled $359 million. Adult literacy is now estimated at 48 percent while
unemployment stands at about 60 percent. Millions of adult Haitians eke out a living in
subsistence agriculture in one of the most environmentally degraded places in the world, while
only about 30,000 reportedly have jobs in manufacturing or assembly industries.
Aid to Haiti has generally failed to help. As noted above, the Aristide government is
about as accountable for what it receives as the Duvalier regime before it. Although funds
channeled solely to non-governmental organizations there have been effective in providing
humanitarian relief and building infrastructure, they are at best "short-term solutions" that leave
political institutions largely untouched according to the World Bank Country Assistance
Evaluation dated February 2002. Last year, the United States provided $77 million in such aid
and this year $55 million.

*Gerald P. O'Driscoll. Jr., Kim R. Holmes, and Mary Anastasia O'Grady, 2002 Index of Economic Freedom
(Washington, D.C.: The Heritage Foundation and Dow Jones & Company, Inc.. 2002). p. 217.
4 Senator Mike DeWine. "Haiti: Devastation, destitution, desperation." The Miami Herald, March 17. 2002.





43

Big dollar projects by the United States and the World Bank in the absence of
transparent governance have left no lasting footprint. As a result, the Clinton and Bush
administrations, as well as the International Monetary Fund, the World Bank. and the Inter-
American Development Bank have withheld some $500 million in direct assistance since 2001.
Although OAS Resolution 822 calls for unfreezing these accounts when Haiti fulfills new. less
stringent requirements, much of that aid has already been redirected and may require new
negotiations with donor organizations and countries.
In November 2000, U.N. Secretary-General Kofi Annan recommended curtailing the
United Nations International Civilian Support Mission in Haiti (MICAII). In 2001, he stressed
that any resumption of aid could not take place without a resolution to Haiti's political cnsis.
For its part, the European Union has terminated consultations intended to provide assistance
through its Cotonou Agreement process linking African, Caribbean, and Pacific developing
countries, finding that respect for democratic principles in Haiti has not been restored.

Human Rights Woes
Reports by Human Rights Watch and the U.S. Department of State charge that the
governing Fanmi Lavalas party has promoted a climate of violence and polarization. Aristide
supporters and leaders of allied popular organizations have repeatedly threatened dissidents with
violent attacks and driven opponents into exile. Instead of healing divisions, Aristide seems to
create and exploit them like autocrats before him although the mobs that support him may, in
fact, be beyond his control.
As an example, on May 21, 2001 a pro-government mob surrounded a house where
the opposition Democratic Convergence was meeting in Les Cayes. They threw rocks and fired
weapons. Nearby police took more than an hour to respond. And when they came, they arrested
the Convergence leader Gabriel Fortune inside. The government supposedly established the
Haitian National Police (HNP) in 1995 as the sole institutional security force in the country after
disbanding the military. But in his second term of office, President Aristide politicized it by
filling key positions with Lavalas party loyalists.5
Moreover, Aristide has turned to mob rule to solve the problem of rising crime. His
"zero tolerance" crime policy announced in June 2001 made it unnecessary to bring criminals to
court if citizens or police caught them in the act. According to Human Rights Watch in its 2002
World Report, "his words were widely interpreted by Haitians as an invitation to vigilante justice
and police violence. Human rights groups reported that in the months following the speech,
dozens of suspected thieves were killed by mobs."
Sadly, "zero tolerance" has claimed the lives of others as well. Last December,
Bngnol Lindor, news director of Radio Echo 2000 in Petit-Gofive, was hacked to death by a
partisan mob. A few days before, the town's deputy mayor Duby Bony reportedly called for
"zero tolerance" to be enforced against a list of members of the political opposition that included
Lindor. An inquiry carried out by the Association of Haitian Journalists found that members
from the popular organization, "Domi Nan Bois," close to Lavalas, admitted committing the
murder. According to the French-based Reporters Without Frontiers, 40 journalists were
attacked or threatened and a dozen forced into exile in 2001 alone.



5 See U.S. Dept of State, Country Reports on Human Rights Practices 2001, Bureau of Democracy. Human
Rights, and Labor. March 4, 2002.





44

Outlook
In summary, the politics of winner-take-all, mob rule, and the exercise of power from
the top down have hobbled Haiti's progress since independence and will probably continue to do
so for some time in the future. Hope exists among Haitians who understand the give and take of
democracy and among the working poor whose diligence and entrepreneurial talents help them
succeed outside of Haiti. But promoting a level playing field to enable their influence to flower
will not be easy and it could take decades to accomplish if the experience of the American
occupation can be considered as an example. Blind aid to the regime will not solve any
problems, as previous experience has shown it to be wasted. Assistance through NGOs buys
time, but leaves no lasting solution. Perhaps only sustained commitments on the part of the
international community will help establish the necessary security umbrella and a check on
authoritarian impulses so that the practices of compromise and consensus can take hold. In the
interim. disaffected leaders from the current government, dissidents, and the unemployed poor
will continue to migrate to the United States, the Dominican Republic, Cuba, and the Bahamas,
wherever they think their chances of survival and earning a living are better. But they will be
competing with hundreds of thousands of migrants from the conflict in Colombia, civil unrest in
Venezuela, economic meltdown in Argentina, and other states in the Americas with troubled
economies or simmering disaffection. Helping all of these societies remedy these problems and
dealing fairly with migrants and refugees from them will be a daunting task.





45

PATRICK J LEAHY, VERMONT. CHAIRMAN
FiL AD M- KENNEDY, MASSACHUSETTS ORRIN G HATCH. UTAH
JOSEPH R, BICDEN, J, DELAWARE STROM TURMOND SOUTH CAROLINA
HERBERT KOHL. WISCONSIN an c ,
DIANNE FEINSTEIN. CALIFORNIA -' -,; ...
RL1SSEU.D FEINOLOC. WSCONSEN
CHARLES E SCHU FR. NEW YORK MIKE WIE. 0HIO U itd tats cnate
ICH AE J DURRIN, ILLINQIS JEFF SESSIONS. ALABAMA
ARIA CANTW6LL, WASHINGTON SAM BRORNBACK. KANSAS MIT O TUOAR
0N EDWARDS, NO. CARONH A MITCH MCCONNELL KENTUCKY COMMITTEE ON THE JUDICIARY
WASHINGTON, DC 20510-6275



June 19, 2002

The Honorable John Ashcroft
U.S. Attorney General
U.S. Department of Justice
Washington, D.C.

Re: Detained Haitian Asylum Seekers

Dear Attorney General Ashcroft:

We would like to express our concern about a recent change in policy regarding the
detention of Haitian asylum seekers in Miami. It is our understanding that since December 2001
the Immigration and Naturalization Service (INS) has denied parole to virtually all Haitian boat
arrivals despite compelling equities which normally would permit their release.

Most of these men and women have demonstrated a credible fear of persecution and have
family or community contacts willing to sponsor them. Under past practices in the INS Miami
District, these factors would normally have resulted in grants of parole from detention. Indeed,
legal service providers report that other nationalities continue to be released after establishing a
credible fear of persecution. It therefore appears that the Haitians have been singled out for more
restrictive treatment. This new policy was confirmed by a high-level INS official who stated that
detention is being used to deter future boat arrivals, a clear violation of both U.S. asylum law and
our international obligations.

Prolonged detention is also interfering with the ability of Haitians to adequately present
their asylum claims. Few of the Haitians can afford to retain private counsel and the few legal
service providers lack the staff and resources to represent all of the detainees. As a result, many
Haitians have been forced to appear in immigration court unrepresented. It is our understanding
that in some cases, Haitians have relied on INS officers to assist them in completing their asylum
applications, a clear conflict of interest. Despite these problems, requests from local legal service
organizations for adequate time and access to Haitian detainees has at times been denied. We
understand that only a handful of claims of asylum have been approved. Given the current
escalation of violence in Haiti, the life and death implications of improper detention practices
and inadequate access to representation are unsettling.





46


The Honorable John Ashcrofi
June 19, 2002
Page 2

History has shown that Haitians who are desperate to flee violence in their homeland will
not be deterred from coming to the United States by the threat of detention. It is our
understanding that asylum seekers who establish a credible fear of persecution and that do not
pose a security threat or flight risk should be eligible for parole. We urge you to reinstate the
prior policy that treated Haitians consistently with other asylum seekers and to promptly release
this vulnerable group of asylum seekers. It is both unfair and violative of our own principles of
refugee protection to discriminate against one nationality.


Thank you for your attention to this important matter.


/ JSincerely, SC



Edward M. Kennedy Sam rownback



cc: James Ziglar, INS Commissioner









01,G-13-2002 FRI 08:57 AM


LAWYERS COMMITTEE
W U FOR HUMAN RIGHTS


333 Sevenh Avenue,. 13 loor
New York New York 0001-5004
USA
Telephone (212) 845 5200
Fa-s.mle (212) 845 5299
E -mal nyc@chr org
,epikwwwichr o'q


Washing'to. .C. Office.
100 Marianc Avenu:. N6
Su.e 500
WashCneo, D C. 20C02-5625
Telephone (202) 547 5692
Fasmrle (202) 543 'i,9u
E-ma; wd c@chr o0r


Statement of the Lawyers Committee for Human Rights

Delivered by Anwen Hughes, Staff Attorney

Before the U.S. Commission on Civil Rights

June 21, 2002





























i..cci. a,-cr~e. iti mew'c fl~ar.diO C c. f'Be tft'Cc.eflcnc ercfwr 06 Oc r.' CrB 055 Litii


FAX NO.


P. 02








AUG-16-2002 FRI 08:57 AM FAX NO, p 03







Introduction

I want to begin by thanking the Commission for giving us the opportunity to raise our

concerns about the discriminatory and unfair parole policy that has been initiated by the U.S

Immigration and Naturalization Service with respect to Haitian asylum seekers

The Lawyers Committee for Human Rights, with the assistance of about a thousand

volunteer attorneys, provides legal representation, without charge, to hundreds of indigent

refugees sach year The Lawyers Committee has long advocated for the rights of asylum seekers

detained by the INS, and for the fair and non-discriminatory treatment of asylum seekers

regardless of their race or national origin. We have issued several reports addressing the

deficiencies in the INS's parole procedures for asylum seekers, urged effective and consistent

implementation of parole guidelines for asylum seekers, and advocated for independent review

of INS decisions to detain asylum seekers. Especially in light of the 1996 changes to United

States immigration law, the availability of parole -- and of a fair and individualized process to

obtain it -- is of central importance to refugees who seek asylum in the United States.

The INS Hainan parole policy violates both international refugee law and international

human rights law) International instruments to which the United States is a signatory, including

the 1967 Unised Nations Protocol Relating to the Status of Refugees (the "1967 Protocol") and

the International Covenant on Civil and Pohlitical Rights (the "ICCPR'), and the norms of

international law they embody, permit detention of asylum seekers only when such detention is

in accordance with procedures established by law, is "necessary" under the circumstances of an


The Supreme Court has consistently held that ninerationail aw r-usT be considered part of United St-ies federal
conton aw: "Itoirnaional law a: part of our law, and must be ascertaned and drumstred by the courts of
justice of approprnat jursdicton as often as question of nght depending upon it a r duly presented for their
deermw.nation." Th, Paquer Habana, 175 U S 677. 700 (1900). See a!so Te Nereide, 13 U S 388, 423 (1815)
holdingg that U S ;uttr are "bound by the law of salons which is par- oft'he law of the land"): Kad h v Kirad:tc,





49


MUG-16-2002 FRI 08:57 AM FAX NO. P. 04






individual asylum seeker's case, and is applied in a non-discriminatory manner. The detention of

asylum seekers for purposes of deterrence is impermissible under international law.

It is also inhumane to detain torture survivors and other asylum seekers who have fled from

persecution and are seeking refuge in this country. Detention can and does undermine the health

of torture survivors and other traumatized asylum seekers. It also undermines the ability of

refugees to find legal representation and to prove their asylum cases.

Factual Background

As other experts have explained today, following the arrival of a boatload of Haitian

asylum seekers off the coast of Florida in December 2001, the INS instituted a new parole policy

for Haitian asylum seekers. The stated purpose of the new parole policy, as various INS officials

have confirmed, is deterrence. The INS has in fact conceded, in its federal court submissions,

that it initiated the new Haitian parole policy "to try to deter a mass exodus from Haiti to the

United States." (See Opp. Mcm. at 8 (citing Lee Decl. 11)).

Such a policy calls for parole determinations to be made, not on the basis of the necessity

of detention in the case of each individual asylum seeker -- an analysis focused on the

circumstances of the asylum seekers themselves but instead on the race and national origin of

these asylum seekers. A policy like this, which is based on deterrence, precludes the fair and

individualized review of the necessity for detention called for by the Refugee Convention and the

International Covenant on Civil and Political Rights.

The Refugee Convention and the ICCPR prohibit
Discriminatory Detention or Detention for the Purposes of Deterrence




70 F,3d 232. 246 (2d Cir. 1995) ( is a. "settled proposition thai federal common law incorporates minmaional
law"); Ruodigenee-Fernandeo v tWiiAson,. 654 F.2d 132. 1388 (10th Cir. 1981).




50


G0-16-2002 FRI 08:57 AM FX 00 P. 05







International refugee law developed in the aftermath of World War I1.2 Iternational

recognition of the obligations owed by countries to refugees was then greatly strengthened with

the 1967 Protocol, which the United States signed in 1968.3 Article 31, a key provision of the

Refugee Convention and the 1967 Protocol, exempts refugees from being punished because of

their illegal entry or presence and also provides that states shall not restrict the movements of

entering refugees more than is necessary. The Executive Committee of the United Nations High

Commissioner for Refugees (UNHCR), of which the United States is a member, has concluded

that detention of asylum seekers "should normally be avoided" and may only be resorted to "if

necessary" and on "grounds prescribed by law" for certain specified reasons relating to the

individual asylum seeker.4 A roundtable of experts, convened by the United Nations High

Commissioner for Refugees in November 2001, in their formal conclusions, confirmed that a

determination of whether detention is "necessary" within the meaning of the Refugee

Convention can only be made by considering the individual case of an asylum seeker.s

Article 9(1) of the International Covenant on Civil and Political Rights ("ICCPR"),

ratified by the United States in 1992, provides that: "No one shall be subjected to arbitrary arrest

or detention. No one shall be deprived of his liberty except on such grounds and in accordance




SSee United Naonsw Coaventon Relating to ihe Status of Refugees, adopted July 28, 1951, entered into force Apr.
22, 1954,19 US T. 6259, 189 U.N T.S. 137 (herenafter "Reftgee Conventiof")

SUruied Nanom Protocol Relating to the Status of Refugees, adopted Jan. 31, 1967, entered ito force Oct. 4, 1967,
19 U S.T. 6223, 606 U.N.T S. 267 The 1967 Protocol incorporated by reference and bound the United Sitaes To the
obligations set fonh in Artcles 2 Through 34 of the 195 1 Refugee Convention

UL.NHCR Executive Cominttee Conclusion on Deteinuon of Refugees and Asylum Seekeri No. 44 (19s6)
5 Sunna,- Conclusions on ,rlce 31 of the 1951 Convention Relatng to the S.aius of Refugees. Geneva Expert
Roundiable: Organized by the tjUNHCR and aduate laesrute of Interneaonl Studies (Geneva: Nov 3-9. 20 1),
available at htrpy www L'NHCRich emphasiss added) (hereinafter "Summary Conclusions").





51


AUG-18-2002 FRI 08:57 AM FAX NO. P. 08







with such procedures as are established by law,"' The ICCPR, like the Refugee Convention, calls

for a fair review of the circumstances of the situation of the individual asylum seeker to

determine the necessity of detention. The United Nations Human Rights Committee, in ruling on

the four-year detention of a Cambodian refugee in Australia in a case called A vs. Australia,

confirmed that detention should be considered arbitrary when it was "not necessary in all the

circumstances" of the individual asylum seeker's case.7

On the specific question of deterrence, the UNHCR and experts' in international refugee law

have repeatedly emphasized that detention of asylum seekers for the purpose of deterrence is

contrary to the norms of international refugee law. The UNHCR Detention Guidelines, as

revised in February 1999, specifically state that: "Detention of asylum seekers which is applied

... as part of a policy to deter future asylum seekers is contrary to the principles of international

protection." (UNHCR Detention Guidelines 3.) Most recently, in its April 15, 2002 advisory

opinion on the INS's detention of asylum seekers in South Florida, the UNHCR emphasized that

"[t]he detention of asylum seekers in furtherance of a policy to deter future arrivals does not fall

within any of the exceptional grounds for detention and is contrary to the principle underlying





6 ICCPP, adopted Dec. 19, 1966, entered ino forest March 23, 1976, G.A. res. 2200A (XXI), U.N. Doec. A/6316,
999 U.N.T S. 171
1 UNHuman Rights Comnettee. A. Ausrralia, Commnmication No. 560/1993, U.NT. Doc, CCPRFC/59/D/560/1993
(Apr 30,1997). available at httr,//www.unhchr ch
STha November 2001 expert roundtable convened by the UNHCR to extruae issues relting to Article 31,
spec tically determined that "(rJefugees and asylum seekers should not be detamed for the purposes of
deterrence." Summary Conclusions 1 11 (c).Refugee law experts have repeatedly concluded that detemnon for
deterrent purposes is iacorsisient with iterna-onal law, S.e Guy S. Goodwin-Gdi, Internawonal Law and the
Detennon of Refugees and Asylum Seekers. Intermaional Migrueon Review, VoL 20, No. 2 (1986) ; Arthur C.
Helton. The Legality of Detaimnr Refugees in r/te UnVed Stater, 14 N.Y,U Rev. Law & Soc. Change 353. 372-80
(1986); Arthur C. Helton, Dernnon ofRefuges and 4Asylum SSekers A Mfiguded Threat to refugee fProtecnon i
Git Loescher. Refigees and Intesanonal Relauons (Oxford Univr Press, Oxford; 1969).




52


UG-1.6-2002 FRI 08:58 AM FAX NO, P. 07






the international refugee protection regime" and that "detention for the purpose of discouraging

further arrivals cannot be justified."

The INS's plainly discriminatory policy of detaining Haitians en masse is contrary to

international law. The principle of non-discrimination is central to both the Refugee Convention

and the ICCPR, Article 3 of the Refugee Convention requires signatory nations to "apply the

provisions of [the] Convention to refugees without discrimination as to race, religion or country

of origin." In accordance with this central tenet, the UNHCR Detention Guidelines recommend

that any decision to detain an asylum seeker should "only be imposed in a non-discriminatory

manner."' The November 2001 expert roundtable convened by UNHCR agreed, concluding that

refugeeses and asylum seekers should not be detained on the grounds of their national, ethnic,

racial or religious origins ... ')0

The ICCPR obliges all contracting states to ensure to "all individuals within its territory

and subject to its jurisdiction the rights recognized in the present Covenant without distinction of

any kind "(ICCPR, Art. 2(2)). The ICCPR also specifies that this principle ofnon-

discrimination includes national or social origin, birth or other status." Signatory states are thus

required to prohibit racial and national origin discrirrunation in all areas subject to their

jurisdiction, including in their detention policies

Underlying Problems in the Asylum Detention System



9 UNHCR Dctenion Guidelies i 3

0 Stumary Concluions t 1(c).
SSpecifiSlly, the Convention provides hiar. "All persons re equa! before the law and are er'iled iithouz any
discnria.Ion to the equal proect;:on of dhe law In this respect, the law shall prohibit any diiscrni.at:on and
guarantee to all perso-n equal and creciove ptotcrton against discrm .ann on o any ground such as race, coror. sex,
language, relgon, polncal or other opinion- nnaonal or social aogin. property. birht or other: status "(I'CPR, A.n.
26)





53


AUG-16-2002 FRI 08:58 AM FAX NO. P. 08






The U.S. asylum detention system is plagued with problems, and is fundamentally flawed

in several significant ways First, the 1996 immigration law calls for "mandatory detention" of

arriving asylum seekers who arrive without valid travel documents -meaning that even asylum

seekers who arrive on valid passports are jailed upon their arrival in this country. Second, the

decision to detain or parole an arriving asylum seeker is entrusted to the INS, and that decision

cannot be appealed to an independent authority- or even to an immigration judge. International

law, and the ICCPR specifically, call for independent review of decisions to detain asylum

seekers. Many European countries provide for this important safeguard against arbitrary

detention. In the U.S. however, the INS has been given the power to act, in effect, as both judge

and jailor with respect to parole decisions for arriving asylum seekers.

Third, the decision to detain asylum seekers is often entrusted to local district directors

who interpret INS's parole guidelines in different ways. The decision to detain an asylum seeker

is, as a result, based often on the local INS district director's parole policies, and the availability

of bed space -instead of a meaningful assessment of the circumstances of the individual asylum

seeker's case.

Because of these and other fundamental flaws in the asylum detention system, refugees

who seek asylum in this country can face lengthy and arbitrary detention without any

meaningful opportunity to challenge their individual detentions before an independent authority.

And the INS, as a result, apparently feels free to issue a blatantly discriminatory parole policy,

like the one at issue here today -- confident that there will be no meaningful checks on its

decisions.

Reform is essential. Congress, the Administration and other U.S. government officials

should take steps to ensure that parole decisions for asylum seekers are made in a fair and non-





54


hUll-lb"UU2 [-Kl UB:b8 fA FAX NO. N, 09






discriminatory manner. The INS should be directed to immediately abandon its discriminatory

Haitian parole policy. Immigration judge review of INS detention decisions and other essential

reforms, including the reforms included in the Refugee Protection Act, a bill that has been

introduced with bi-partisan support in both the Senate and House of Representatives, should be

enacted-

The Effects of Detention on Asylum Seekers

In recent years, the press, human rights groups, medical practitioners and faith-based

organizations have documented the harsh impact of detennon on individual detainees. The

Florida press and advocacy organizations, including FIAC, have documented the impact of

detention on asylum seekers and other immigration detainees who are held in this area.

Detention can be particularly difficult for the many asylum seekers who are survivors of

rape, totrure and other traumatic experiences. As one medical professional has noted: "Most

refugees have been exposed to high levels of violence and other types of traumatic events in their

country of origin and during their journey to their host country."'2 Medical experts have

documented the fact that many refugees suffer from post-traumatic stress disorder (PTSD), major

depression, or other illnesses.1

For refugees who are suffering from PTSD and depression, detention is re-traumatizing

and can exacerbate their suffering. As another medical expert has explained: "For someone

who's been tortured and locked up in a cell as a political prisonerin their native countries ... the

12 Catherine J. Locke, Ph.D er al The Psychologreal and Medical Sequelae of War in Central American Refieges
Mother, and Children, 150 Archive of Pdiamcs & Adolescent Med 822, 823 (1996).
13 Michele R. P ione & Philip G Schrag. The iew Atylum Rule Improved buin Snll Unfar, 16 Gc Iemrigr. L J
1, 49 nn.272-73 (Fall 2001) (cetmg numerous medac. repons, ncludimg, Neal R. Holta. Surviors ofTsi,-ure. 114
Pub. Health R.ep. 489 (19991, Dermck Silove. etal Aiety Depression and PTSD n1 Asylum-Sekers. ,tAssocatn
Wirh Pre-Migrarnon Trauma Jnd Posn-Mi-rt-on Stessors. 170 Br:nsh J. Psyehiatry 351, 351-57 (19'7), Haes
Thulesuimn and Ander. Hekansson, rief Repor' Screen'ng for Postrrrumanc Stress Dtsorder Symrosmn Among
Bo-ran Rcfigee. 12 J Traumratc Stress 167, :71-73 (1999)).








AUG-16-2002 FRI 08:58 AfN FAX NO. P. 10







experience of being locked up here again can trigger panic attacks, flashbacks.1"4 The continued

incarceration of such asylum seekers severely impairs their ability to overcome PTSD and in

many cases exacerbates their condition. Dr. Allen Keller, Director of the Bellevue/NYU

Program for Survivors of Torture and member of the Executive Committee of he National

Consortium of Torture Treatment Programs, explained in recent Congressional testimony that:

Imprisonment and treating asylum seekers like criminals is
retraumatizing and can have harmful effects on their physical and
emotional well being ... Imprisonment and such deprivation can
result in exacerbating disturbing memories and nightmares of
abuse the asylum seekers had suffered previously. Depression
can be caused by detention and feelings of isolation, hopelessness
and helplessness. Asylum seekers may experience worsening of
physical symptoms, including musculoskeletal pain, because of
their restricted activity. Somatic symptoms, such as headaches,
stomach aches and palpitations can also result from detention.is


Detention can thus lead to grave harm as "the anxiety, fear, and frustration provoked by

detention may prolong and exacerbate underlying traumatic stress reactions and thereby create

long-term psychosocial disability."16

The impact of detention on children has been the subject of increasing scrutiny over the

last two years.17 About 5,000 children have been reported to be in INS custody; many are held in





Elizabeth Llorente. Dreams Turn to Despair, The Bergen County Record, May 24, 1999 (quoting Dr. Beverly
Pinocu, Durector of Cross-Cultural Counseling Center at the Internaonal Insature of New Jersey),

"J Statement of Alien S. K0llcr, M.D. before the Senate Judiciary Subcommtnuee on Imnigranon, Hearing on
Asylum Policy (May 3, 2001), available at www phrtia.org/researh /refugees/tesrinony.html.

Derrick Silove, er aL, Detention of Asyvm Seekers: assaultt on Health Human Rights, and Social Developent.
The Lancer. Vol. 357, May 5, 2001.

Eliza Amon. Access Dented. Ctlden in r WS Custody Have no Rfght to a Lawyer, The National Law Journal. Apr.
12, 2001; Alan Eisner. Congresnmen Prote W I Treatment ofRetarded Boy, Reuoers, Mar. 27, 2002; rnc Hem-ou,
Immigration. No Ki! G0L s,. The Daily News. Apr. 30, 2000.





56


AUG-16-2002 FRI 08:58 AM FAX NO. P 11







juvenile jails and shelters." Children have also been detained in adult jails and detention

facilities when the INS has mistakenly concluded that they are adults based on dental

examinations -- a procedure that has been widely criticized by medical experts and is no longer

relied upon even by the U.S. State Department."1 The Women's Commission for Refugee

Women and Children has, in recent testimony before the Senate, explained that:

Children are subject to handcuffing and shackling, even at times
during their immigration hearings. Translation assistance is rare.
In some facilities, access to the outdoors is extremely limited.
Education programs are often conducted m English. Children are
sometimes cut off from religious services in their chosen faith.
Children are frequently transferred from facility to facility, even
when represented, and then without prior notice to counsel...
[C]onsideration of the best interests of the child, the cornerstone
of child welfare, is a concept that continues to allude the policies
and practices of the INS- 2

Detention undermines the ability of an asylum seeker to obtain legal representation and,

as a result, his ability to prepare and effectively argue his claim. Finding legal representation can

be extraordinarily difficult for a detainee, who usually is also dealing with serious linguistic,

fiscal and cultural barriers. As the UNHCR has noted: 'Detention creates numerous obstacles

for asylum seekers. Detained asylum seekers are'often unable to secure counsel, have difficulty

communicanng with family members, and have limited access to legal materials and interpreters

to assist them in preparing their claims."1



See Amos and Elsnaer

9 Alan Elner New York Dentists Can Settle Fate ofMigrant, Reuters, Jan. 11. 2002; Chris Hedges, CrucialNS
Garekeeper tie Aaport Deniur. New York Times, July 22, 2001.
20i

Lawyers Committee for Huan Rights. Rhtsefusge Behind ars, supr note 9 at 34 (citing Letter irom Tr.NHCR
Regional Repiesentasive, dated Sept. 5, 1998, to Senator Spencer Abraham, Scaie Sub-Corriiltee on [mrrngranon
:n connection wruh INS oversight hearings on deternon)





57


AUG-16-2002 FRI 08:58 AM FAX NO. P. 12






Statistics on detention analyzed by Georgetown University's Institute for the Study of

International Migration indicated that asylum seekers are four to six times more likely to be

granted asylum when they are represented. The Georgetown analysis also revealed that in

immigration court, more than 33% of asylum seekers lack representation For detained asylum

seekers, the situation is even worse more than twice as many detained asylum seekers lack

representation when compared with non-detained asylum seekers in defensive proceedingsi2

Even when a refugee is able to locate a lawyer, detention is a huge burden on the lawyer

and client seeking to prepare a case. The ability of the attorney and client to meet to prepare the

asylum case is necessarily limited by the need for the attorney to travel to meet with the client.

And some immigration judges refuse to adjourn cases sufficiently to allow attorneys adequate

time to gather evidence and prepare their clients' cases.

In many instances, the asylum seeker is likely to face further persecution and even death

if returned to his or her home country. In this light, the importance of not compromising the

conditions under which an asylum seeker can prepare and present her case cannot be overstated.

Yet detention ultimately poses a significant obstacle to the just resolution of an asylum seeker's

claims. As Professor Pistone, Director of Villanova University School of Law's Clinic for

Asylum, Refugee and Immigrant Services, has written:

Detention adversely impacts an asylum seeker's ability to find
and hire counsel, to prepare and present an asylum claim, and to
provide credible and detailed testimony. The cumulative effect is
to undermine the ability to achieve the ultimate goal of the
process--to distinguish between deserving and undeserving
asylum applicants, and to grant protection to deserving applicants.




Asylum Representation, Summay Statistics, prepared by Dr. Andrew I. Schoenholtz, Director of Law and Policy
Studies, Ins5ture for the Study of Interataonal MigrasonM Georgetown LUniversty (May 2000).








AUG-16-2002 FRI 08:59 AM


This state of affairs is particularly lamentable given that the stakes
are so high.23


We urge the Commission to conduct a full investigation of the INS's parole practices

with respect to asylum seekers, and to recommend significant reforms to the asylum detention

system and the end of the discriminatory Haitian parole policy.



































23Michelo Pis~os Justice Delayeld .s Juice D.ened. A Poposalfor Ending the Unecessary Det ition -fAsyhlum
Seeker, 12 Harvad Human Righut Jouna 197, 215 (Spnns 1999).


FAX NO.

















Testimony before the



Senate Committee on the Judiciary Subcommittee on Immigration


On the Detention and Treatment of Haitian Asylum Seekers












Delivered by Cheryl Little, Executive Director

Florida Immigrant Advocacy Center


October 1, 2002




60

My name is Cheryl Little. I am the Executive Director of the Florida Immigrant Advocacy Center
(FIAC), a non-profit agency that provides free legal assistance to detained as well as non-detained
immigrants including many Haitian asylum seekers. Thank you, Mr. Chairman, for the opportunity to
address this Committee regarding our concerns about the treatment of Haitian asylum seekers. Permit
me to thank both you Senator Brownback and the other members of the Subcommittee as well for your
leadership in defending immigrants' basic rights'.

My testimony is also supported by the Women's Commission for Refugee Women and Children, which
recently conducted an assessment of the treatment of Haitian asylum seekers in the United States and the
Dominican Republic. I participated in that delegation at the invitation of the Women's Commission.

I. Overview

On December 3, 2001, a boatload of 187 Haitians ran aground off the Miami coast. Twenty of the
Haitians jumped overboard, 18 of them swimming to shore. Two reportedly drowned. The remaining
167 Haitians were rescued by the US Coast Guard and placed in INS custody. Pursuant to immigration
laws passed in 1996, they were placed in the expedited removal process and interviewed individually by
INS Asylum Officers while in detention in Mianm. The Asylum Officers determined that all but two of
the Haitians had a "credible fear"of persecution upon return to their home country, which means that
they had a substantial likelihood of proving their eligibility for asylum.

After passing their credible fear interviews, asylum seekers are eligible for release from detention
pending final adjudication of their asylum claims. Indeed, following their interviews, many of the
Haitians were told by Asylum Officers that they would be quickly released, as virtually all Haitian
asylum seekers in the Miami District had been prior to December 3 and as most similarly situated asylum
seekers of other nationalities and races are today.'

INS adopted a policy of detaining Haitians, and only Haitians, in mid-December of last year.2 INS
Headquarters issued a directive to Miami INS not to release any Haitian asylum seekers in expedited
removal without explicit INS approval. INS later claimed thus was done because they feared a mass
migration and sought to deter Haitian boat persons from making the dangerous voyage. However, the
initial detention directive expressly included all Haitians, regardless of whether they arrived by air or by
boat. By including airport arrivals, INS showed that its policy was not to protect Haitians on the high
seas from loss of life because those arriving by plane arrive safely. Instead, it revealed a deeper
discriminatory purpose.




IStatistics derived from INS's own records reveal a stark pattern of discriminatory detention. In November
2001, immediately prior to its change in detention policy, the INS released 96% of all Haitians who had passed their
credible fear interviews. INS released sunilarly situated non-Haitians during the same period at a comparably high
rate. After INS adopted a no-release policy for Haitians in December 2001, the release rate for Haitians dropped to
virtually zero. Only unaccompanied minors and pregnant women were released. At the same time, INS continued to
release non-Haitian asylum seekers at the very high rate. For example, for the period December 1, 2001 to February
15, 2002, the INS released non-Haitian asylum seekers at a rate of 91%
2In documents submitted to the court in March, 2002, INS acknowledged that on March 18, 2002, Peter
Michael Becraft, Acting Deputy Commissioner of the Immigration and Naturalization Service (INS), had issued this
directive.





61


The INS has also claimed that it considered Haitians more of a flight risk than other nationalities because
the Haitians had demonstrated their desperation by leaving Haiti by boat. While this "desperation" may
shed light on the reason the Haitians seek asylum, it neither explains nor justifies a policy of
discriminatory treatment

Haitians released in the past, pending final decisions on their asylum cases, have not absconded. For
example, Sr. Jeanne O'Laughlin, President of Barry University, helped sponsor over 300 Haitians
following their release from detention in 1982. All but a handful appeared for their hearings. Sister
Jeanne's offer to help sponsor all of the female Haitian asylum seekers currently detained has not been
accepted by INS.' Moreover, the very nature of asylum is such that all those genuinely seeking this
protection are truly desperate.

On March 15, 2002, FIAC, along with pro-bono attorneys, filed a class action lawsuit in federal court on
behalf of detained Haitian asylum seekers in South Florida who had passed their credible fear
interviews.' The lawsuit challenges the government's policy of discriminating against Haitian asylum
seekers by detaining them on account of their nationality and/or race. Although the Court made the
important finding that the INS detention policy differentiated between Haitians and non-Haitians, on May
17, 2002 the case was dismissed without a hearing, even though the facts of the case were in dispute. It
was dismissed on the basis that the INS has virtually unfettered statutory and constitutional authority to
discriminate and that it is up to politicians in Washington, not the courts, to determine the Haitians' fate.
In her ruling, the judge wrote, "Petitioners' cry for freedom needs to be directed to those representatives
of the political branches responsible for enacting immigration laws and policies." An appeal is currently
pending with the Court of Appeals for the Eleventh Circuit.

INS has not provided any valid, nondiscriminatory justification for its Haitian policy. The INS stated
that it adopted the policy in order to save Haitian lives and to prevent a mass migration from Haiti. Yet
the only evidence INS has put forth to support its claim of a mass migration are Coast Guard statistics
which show that 350 Haitians were interdicted in November, 2001, compared to a total of 96 in the
preceding three months. However, Coast Guard statistics also show that they were routinely interdicting
more than 350 Haitians a month at various times during the last five years (for example, 395 in January
2000, 477 in October 1998, 428 in September 1998, and 421 in November 1997). Each of these monthly
interdictions represented substantial increases over total interdictions from the preceding three months,
yet no mass migration occurred following any of these months of increased interdictions. The INS has
provided no explanation as to why the 350 interdictions in November 2001 are proof of a threatened
mass migration while the higher interdiction numbers in other months were not.

The overall number of Haitian interdictions in 2001 simply do not indicate a mass migration nor do Coast
Guard interdiction statistics for 2002. In fact, statistics show quite the opposite. There were fewer
interdictions in the first half of 2002 than there were in the first half of 2001.'
The drop in numbers in the first half of 2002, although relatively minor, cannot be attributed to the
Haitian detention policy because the INS denied it had such a policy. Indeed, no Haitians were


3INS officials claimed on August 2002 that Sister Jeanne withdrew the offer that she had made in April,
2002, to help sponsor the Haitians. That was not the case and Sister Jeanne so informed the INS Commissioner. She
has received no response.

'Jeanty v. Bulger, Case No. 02-20822-Civ-Lenard (S.D.Fla 2002).

5Even when interdictions rose to 200 (Feb. 2001; Juane 2001), migrations decreased in subsequent months.




62

interdicted in January or February of 2002, even though this was during the period of time when INS's
detention policy was still a secret. From early December 2001 until March 2002, INS officials gave false
and misleading information to the advocacy community in an apparent attempt to cover-up their policy of
detaining Haitians.' The policy only became public in March, 2002. A secret policy clearly could have
no deterrent effect in Haiti when no one knew about it here or in Haiti. Moreover, 628 Haitians were
interdicted between March and July, the months immediately after the INS's detention policy became
public.

Most importantly, INS' claim that absent the current Haitian detention policy we are likely to see a
Haitian exodus rivaling the Mariel Boatlift or the number of Haitians and Cubans who were detained in
Guantanamo in the mid-90's is absurd. Only 1,956 Haitians were interdicted at sea by the Coast Guard in
2001. This number is significantly smaller than the Mariel Boatlift in the spring of 1980, during which
125,000 Cubans arrived in the United States, as well as the relatively large flow of refugees in 1994
consisting of 25,069 Haitians and 37,191 Cubans.

Haitians who flee by boat know full well the risks they undertake when they take to the high seas in
flimsy boats.' The vast majority are interdicted by the US Coast Guard and forcibly returned. Others,
even less fortunate, lose their lives at sea. History proves that Haitians who are desperate to flee political
violence in their country will not be deterred from coming to the United States by threat of detention.

Based on a recent assessment by the Women's Commission for Refugee Women and Children, in which I
participated, we are also concerned that countries in the Caribbean region, including the Dominican Republic
and the Bahamas, are closing their doors to Haitian refugees. The Haitians are subject to detention,
harassment by local authorities and forced return.

Haitians in fear of their lives have nowhere to go for protection. They are not welcomed in the United
States, and as mentioned above, they are not welcome in the Caribbean. Further, there is no in-country
refugee processing in Haiti and no systemic effort to assess whether interdicted Haitians have viable
asylum claims or reasons to fear return.

Lack of Attorney Access

Asylum applicants in the Miami District generally are released after passing their credible fear interviews
and then have about a year to find lawyers and prepare their cases. The Haitians, by contrast, faced
expedited hearings because they are in detention. Additional immigration judges were detailed from
their downtown Miami courtrooms to Krome Service Processing Center (Krome) to hear the Haitian
cases. Many hearings were scheduled for only one hour and some for only a half hour including
time for translation, whereas non-Haitian cases are routinely set for three hour hearings. Judges held up


'Local INS officials publicly denied the existence of the policy and issued large numbers of boilerplate
decisions denying release to Haitians which contained false reasons for denial. Only when Congressman Conyers
met with these officials in Miami early in March, 2002 did they admit that, with few exceptions (e.g. pregnant
women), the Haitians weren't being released. Sunilarly, only after a lawsuit challenging the detention policy was
filed in mid-March, did INS officials in Washington acknowledge that they had instructed Miana INS not to release
the Haitians. Attorneys wasted precious time preparing release requests for the Haitians rather than assisting them
with their asylum applications.
7The Haitians who arrived on December 3'" named their boat the "Si M'ap Viv Se Jezi" which means "If
I'm still ahve it's because of Jesus." They clearly knew the risk they were undertaking in making the sea voyage, yet
were determined to do so given their grave fear of remaining in Haiti.





63

to five merits hearings a day and some have said they could not grant continuances of more than four (4)
weeks in the Haitian cases. No such restriction applies to non-Haitian cases.

The Haitians have had precious little time to attempt to find lawyers and prepare their cases. Despite
efforts by Steven Lang, Coordinator of the Pro Bono Program of the Executive Office of Immigration
Review (EOIR), to secure attorneys to assist the Haitians, very few have done so. For example, Mary
Kramer, President of the South Florida Chapter of the American Immigration Lawyers Association
(AILA), expressed concern that the Haitian detention policy was discriminatory and she was therefore
reluctant to participate in any effort that would somehow lend it credence. She also pointed out that
AILA's pro-bono resources were already stretched thin.'

Most of the Haitians are therefore without attorneys and have no idea how to effectively present their
case. Many Haitians have already been ordered removed by immigration judges, often times because they
couldn't complete their asylum applications, which are in English and which call for detailed answers in
English. Asylum applications submitted by the Haitians frequently consist of only one or two sentences.
Detention officers with no training in asylum law likely well-intentioned have attempted to help
some of the Haitians with their applications. In January alone, FIAC received 162 requests for help from
the Haitians. FIAC has attempted to assist dozens of Haitians in filing appeals with the Board of
Immigration Appeals (BIA), most of whom went before the immigration judge without legal
representation. The BIA is now streamlining decisions, and a number of the Haitian asylum seekers have
received one or two sentence denials of their appeals, summarily affirming the decisions of the
immigration judges without explanation. FIAC even received a BIA denial for a Haitian client whose
appeal brief was not yet due.

On April 15, 2002, the United Nations High Commission for Refugees (UNHCR) issued an Advisory
Opinion, concluding not only that the policy of using detention in order to deter future refugees flows-
as is being done with the Haitians- violates basic principals of international law, but that detaining
asylum seekers of a particular nationality while releasing asylum seekers of other nationalities is in
violation of international norms of refugee law.

Both the UNHCR and the Lawyers Committee for Human Rights (LCHR) have emphasized that
detention severely hinders an asylum seeker's ability to access legal services and effectively present an
asylum claim.' Indeed, a study conducted by Georgetown University's Institute for the Study of
International Migration indicated that asylum seekers in detention are more than twice as likely as those
who aren't detained to be without legal representation and that persons with attorneys are four to six





8 "At a glance, this new [detention] policy certainly appears to be discriminatory and unconstitutional.
Although these people deserve representation, I am hesitant to lend countenance to EOIR's and INS' highly
objectionable treatment of these people. I note further that our Chapter's pro bono resources are stretched to the
limit... If the INS were to continue to parole Haitian nationals who establish a credible fear of persecution, these
individuals could join their families in the community, seek work authorization, and retain qualified private counsel.
They would also have time to prepare their court cases in a meaningful fashion." Letter from Mary Kramer to Steve
Lang, February 19, 2002.
9The UNHCR wrote this advisory opinion at FIAC's request. On May 9, 2002 the Lawyer's Committee
submitted an amicus brief to the District Court in Miami (Jeanty v Bulger, Case No. 02-20822-Civ-Lenard (S.D.Fla
2002).




64


times more likely to be granted asylum." It is therefore ironic that at a time when FIAC and other pro-
bono attorneys need better access than ever in order to assist the Haitian detainees, attorney access has
become even more restrictive.

Attorneys in South Florida attempting to help the Haitians face innumerable obstacles, including waiting
hours just to meet with clients, and a serious lack of adequate visitation space. For example, headcounts
at Krome have often lasted all morning and sometimes into the afternoon, during which there is no
attorney access at all. Lengthy delays once headcounts are over also occur because escorts are not
available to bring the detainees to meet with their attorneys. FIAC and Catholic Legal Immigration
Network, Inc. (CLINIC) share one small attorney booth at Krome, which is clearly inadequate given the
large number of Krome detainees in need of pro bono help. Additional space that has sometimes been
provided FIAC and CLINIC attorneys is even more problematic, as Krome Officers and other detainees
regularly walk through the area or sit within earshot of the attorney interviews.

In February, 2002, INS officials even restricted weekend and holiday visitation hours at Krome to
between 7:00-11:00 a.m. Previously, attorneys could meet with their clients almost anytime on
weekends. The new policy has prevented many attorneys who wish to provide pro bono help to the
Haitians from doing so.

At the Turner Guilford Knight Correctional Center (TGK), where most of the Haitian women were held
until late August 2002, unreasonable delays just in getting permission to enter the facility were a frequent
problem. At best, FIAC staff typically wait up to an hour just for an escort to take them to the women's
unit." Frequent policy changes without prior notice regarding identification required to enter TGK also
cause considerable delays.

While all female asylum seekers at TGK, including the Haitians, were recently moved to the Broward
County Work Release Center (Broward Center), FIAC staff have experienced unreasonable delays in
meeting with clients there and even have been denied access to them by INS officials. INS has also made
it much more difficult for FIAC to conduct Know Your Rights presentations for the women at the
Broward Center. These presentations are being subject to far harsher requirements than the same
presentations at TGK and Krome.

The problems facing FIAC staff in gaining access to their Haitian clients are exacerbated by the fact that
they are being held in four different facilities: Krome, Broward Center, a local Miami Hotel, and a
detention facility in Berks County, Pennsylvania, each far removed from the other. The Broward Center
in Pompano, Florida, is 73 miles roundtrip north of FIAC's Miami office and Krome is 44 miles
roundtrip to the south. The Pennsylvania facility is over 1200 miles away.

The Haitians are extremely depressed and demoralized, not only because of the conditions of their
confinement but because they see asylum seekers from other countries being quickly released. This is
adversely affecting their ability to articulate their asylum claims. Many Haitians say they feel they're





1 Asylum Representation, Sunnnary Statistics, prepared by Dr. Andrew I. Schoenholtz, Director of Law and
policy Studies, Institute for the Study of International Migration, Georgetown University, May 2000.
1 Female INS detainees who are not asylum seekers continue to be held at TGK.








being pressured to abandon their asylum claims and a number of them have done so recently. The
Haitians have engaged in a number of hunger strikes in order to call attention to their plight."

III Conditions of Detention

Conditions at facilities housing the Haitians have largely been deplorable. For example, Krome which
houses the male detainees has been terribly overcrowded. In May 2002, for example the population at
Krome, was over 800 even though INS officials have said the maximum capacity should be 538. The
overcrowding presents a serious health and safety hazard and adversely affects virtually all aspects of
detainees' lives, including meaningful access to attorneys and to medical care. While the Krome
population has decreased recently, advocates in New York and New Jersey report that 20 to 30 asylum
seekers are being transferred from Miami every week to detention facilities in the Northeast.

Conditions of detention for the women have been even harsher. In mid-December, 2000 all of the
women housed at Krome, an "open" INS Service Processing Center housing no one serving a criminal
sentence, were moved to TGK, a maximum-security county jail in Miami, Florida housing inmates who
have been arrested or are already serving sentences. Most of the women transferred were asylum
seekers. They were moved following allegations by female detainees at Krome of sexual abuse by
guards there, including sexual molestation, harassment, and even rape. These allegations began to
publically surface in late May, 2000 and an investigation was initiated by the Office of Public Integrity,
the Office of Inspector General, the FBI and the U.S. Attorney's Office. It is uncertain, however,
whether this investigation will prove fruitful since some of the victims and witnesses of the abuse have
been deported while a number of the officers implicated in the abuse remain at Krome.

In March, 2001 Amnesty International claimed that the women's move from Krome to TGK effectively
resulted in "punishing" them for the U.S. government's failure to protect them and they called on INS to
take immediate steps to ensure their safety and well-being. Amnesty reported that the women at TGK
were suffering especially harsh treatment, including verbal abuse and insults by guards; frequent cell
"lockdowns" for hours at a time; and inadequate provision of food, medical care and exercise facilities."

The Women's Commission for Refugee Women and Children (Women's Commission) twice assessed
conditions at TGK and found it to be totally inadequate for the housing of asylum seekers, who typically
represent the majority of women detainees in the custody of the Miami District." They also found that
the women were living in deplorable conditions and that incarcerating them at TGK seriously interfered


12Many of the detained Haitian asylum seekers at Krome began a peaceful hunger strike on Saturday, July
6, 2002, after one of the Haitians learned that his child had died in Haiti. On Monday, July 8, 2002, a Creole-
speaking FIAC paralegal who works at FIAC's Krome office was escorted off the facility because he was under
investigation for initiating the hunger strike, even though he had not been present at Krome for nearly a week before
the hunger strike and had consistently advised detainees not to engage in behavior, such as a hunger strike, that could
result in their punishment or transfer. While the paralegal was allowed to return to Krome after INS' accusations
were proven to be baseless, FIAC's access to the Haitians was curtailed during this critical time in which two of the
Haitians were reportedly beaten by guards after the hunger strike began.
13Amnesty International, "USA: 'I'm not an inmate. Why should I be treated as one?' Women asylum-
seekers punished for state's failure to protect them," March 2001.
'"Freedom Denied: Middle Eastern Asylum Seekers Caught Up in U.S. Immigration Sweep," Women's
Commission for Refugee Women & Children, December 2001; "Innocents in Jail: INS Moves Refugee Women from
Krome to Turner Guilford Knight Correctional Center, Miami," Women's Commission for Refugee Women &
Children, June 2001.







with their access to legal assistance and thus jeopardized their ability to successfully pursue their asylum
claims." The Women's Commission concluded that the women in INS custody "have paid the price for
inflicted abuses by INS officers and other officials at the Krome Service Processing Center.""

FIAC issued it's own report about conditions at TKG in December, 2002 and a supplemental report in
April, 2002." The reports focus on the dehumanizing nature of the women's detention, including
invasive strip searches and the lack of translation services which routinely led to some officers
misunderstanding, berating, and humiliating them. The reports also focus on INS' failure to comply with
its own detention standards, which were supposed to be fully implemented at TKG on March 1, 2001.

Ironically, the women reported incidents of sexual harassment and molestation by male trustees in TGK
shortly after their transfer from Krome, again calling into question the safety of the women and the INS'
failure to pursue a solution that recognizes the unique needs of women detainees and offer them the
protection they deserve.

On March 26, 2002, Miami-Dade County Commissioners recognized that TGK was "not designed to
meet the detention needs of immigration detainees" and that conditions at TGK are more severe than
those imposed upon male detainees held at the Krome Service Processing Center. The County
Commission passed a resolution directing the County Manager to work with INS to investigate
alternative sites within Miami-Dade County for the female detainees and to submit a report regarding
such alternatives within 45 days of the resolution." On August 26, 2002, INS began moving female
asylum seekers at TGK to the Broward Center, a Wackenhut-run facility. While this is a far more
appropriate setting for the women and the Broward Center's staff have been extremely cooperative and
helpful, FIAC is concerned that in 1999 a number of women there complained they were being sexually
abused and harassed." Additionally, Wackenhut-run facilities have been subject to a great deal of
criticism and have even been sued by the Department of Justice (DOJ).2o FIAC is hopeful that conditions
at the Broward facility will remain adequate and we plan to monitor the situation to ensure the women
there are safe and provided appropriate services.

Women are also detained at the local Comfort Suites Hotel ("Hotel") in Miami when there is no space for
them elsewhere and where families with minor children are often housed. While it would seem that
detainees would be far better off in the Hotel, those confined there are in effect in a gilded cage. INS
guards monitor the hallways outside their rooms and conditions at the Hotel are particularly troubling.




15Ibid.
"Ibid.
17Cheryl Little and Charu Newhouse aI-Sahli, "INS Detainees in Florida: A Double Standard of Treatment,"
Florida Immigrant Advocacy Center, December 2001, and supplement thereto, January April 2002.
'sMiaminn Dade Legislative Item File Number 021139, "Altemative Facilities to House Female INS
Detainees at TGK," Adopted Resolution, Introduced April 18, 2002.
19Charles, Jacqueline. "Inmates Say They Had Sex with Guards: Work Release Center Plagued with
Problems," The Miami Herald, August 10, 1999; Charles, Jacqueline. "Broward Jail Gets Surprise Review: Jenne
identifies Lapses in Security," The Miami Herald, August 21, 1999.
20For example, in 2000, the Department of Justice sued Wackenhut for the abuse and neglect of juveniles at
a facility in Louisiana, where they claimed conditions were "dangerous and life-threatening."

7







Attorney visitation is not accommodated at all at the Hotel itself. FIAC must request detainees from the
Hotel be brought to Krome for attorney visitation at least 24 hours in advance. The policy for making
such a request has changed numerous times over the past several months, with attorneys and advocates
periodically given new fax numbers or contact persons to ensure their request is received and carried out.
Even given prior notice, detainees are often not brought on time, they sometimes miss meals in order to
meet with their attorneys, and they often spend hours waiting in processing to be transported back to the
hotel after legal visits.

Detainees' families also have no access to the Hotel and must meet with their loved ones at Krome.
Although many women have requested contact visits with family, they claim they are not brought to
Krome, as requested. Indeed, one Haitian woman reported that her parents had traveled to Krome from
their home in West Palm Beach, FL on four occasions and she was never brought to Krome to visit with
them.

Detainees at the Hotel, including children, have absolutely no access to recreational activities, or even
fresh air, as they are confined to their rooms the entire day. Detainees also have no access to educational
activities. Some women say they have gone weeks without a change in uniform and many have not even
been given a change of underwear.

In March, 2002 FIAC staff accompanying Congressman Conyers on a tour of the Hotel observed a family
of five in one room, which included a seventy-nine year old Haitian woman and a nineteen month old
baby. Frequently those in the same room are not related. Although we've been told by INS officials that
the Hotel is for temporary detention only, a number of detainees have been held at the Hotel for months.

On April 29, 2002, FIAC learned that there were 113 INS detainees at the Hotel. Although FIAC was
aware that the INS detainee population at the Hotel had steadily increased since implementation of the
Haitian detention policy, the detainee population there on April 29 was almost double the number in
March 2002. Most of the detainees at that time were single female asylum seekers, over half of whom
were Haitian. While the number of detainees at the hotel has decreased recently, it is in large part
because INS has been transferring large numbers of detainees to New Jersey and Pennsylvania, as
previously mentioned.,

On March 9, 2002, Congressman John Conyers visited the Haitians at Krome, TGK, and the hotel and
found "serious deficiencies" in all three facilities.

Most of the Haitians who arrived on the December 3 boat remain in INS detention. On September 25,
2002, there were approximately 107 such Haitians in Miami, including about 25 women at the Broward
Center and about 80 men at Krome. Another approximately 33 Haitian asylum seekers who arrived by
plane were in detention in Miami on September 25'." Five of the December 3' boat persons are in
Berks, Pennsylvania."




21While the INS is now releasing many of the Haitian asylum seekers who arrived by air, this was only done
after a lawsuit was filed m federal court. Moreover, for months after the INS' decision to consider these Haitians for
release, those arriving by plane faced "enhanced scrutiny" in obtaining release and their sponsors were required to
submta countless documents, such as payroll stubs, bank statements, and notarized affidavits of support. This
documentation was not being required for the release of non-Haitian asylum seekers in South Florida.
2The five include a mother and her son (father at Krome), a father and his son and an 18 year old.

8





68

IV Forcible Separation of Families

A number of Haitian families have been forcibly separated by INS. I focus the Committee's attention on
just one of those cases, the case of Ernst Moise and his family, as representative of the indignities
suffered by Haitian asylum seekers in their quest for justice and safety."

Mr. Moise, along with his two children, his common law wife and her two adult children from a prior
relationship, fled Haiti by boat, arriving off the coast of Florida on December 3, 2001. They made a
drastic decision to face the uncertainties of the voyage at sea and life in a new land because of the
certainties of their circumstance escalating violence perpetrated by an increasingly oppressive regime
which they had openly and vocally opposed. They joined a band of others from their local community,
all similarly targeted by the Aristide regime, on a week-long boat trip.

On December 5, 2001, INS interviewed Mr. Moise and set him for a "credible fear" interview, a
procedure by which the US government ensures that it does not deport individuals who may face
persecution at home. On December 6, 2001, INS conducted that interview, and based upon the facts Mr.
Moise provided to the officer, INS found that he and all the family members traveling with him faced a
credible fear of persecution upon return to Haiti. Had Mr. Moise not been Haitian, he and his family
would then have been paroled from INS custody and allowed to pursue their claim for political asylum
free from detention. As a parolee, he would have been entitled to work in the USA and support his
family pending that claim.

Because of INS policy which targeted Haitian asylum seekers for continued detention, Mr. Moise faced
an accelerated hearing date without representation from an attorney. Within six weeks of his arrival, the
Immigration Judge forced him to submit an asylum application and scheduled him for a full hearing on
the merits of his asylum claim. Mr. Moise does not speak English. His is not even fully literate in his
native Creole. A "friend" helped him fill the asylum application which consisted of four brief sections of
prose text: "Because of insecurity, I am afraid for my life;" "Because of insecurity of my country I am
coming here for safety;" "Applicant was threatened by supporters of Lavalas which led him to leave the
country and seek asylum in the United State;" and, ominously, "They can kill me."

In the meantime, INS split the family, detaining them in three separate places. Initially, INS placed the
father and the two teenage sons in a secured hotel room, while placing the mother in a separate hotel
room at the same facility before moving her to the Turner Guilford Knight Jail (TGK). The adult
daughter and the adult son were placed respectively in TGK and Krome.

In response to FIAC's efforts to obtain pro-bono help for the Haitians, Catholic Charities Legal Services
(CCLS) sent four lawyers to Krome in order to assist individuals in preparing asylum applications.
CCLS interviewed Mr. Moise and his family on the holiday weekend of Saturday, February 16. They
agreed to take the case, only to discover that Mr. Moise had been scheduled for a full hearing the next
Tuesday. With only three days to prepare for a lengthy and legally complex hearing, CCLS attorney
Randy McGrorty personally explained to Mr. Moise that he might have to ask for more time from the
Immigration Judge. At this news, Mr. Moise began to quietly cry. As much as he feared for his life in
Haiti, the seemingly unattainable promise of freedom in the U.S. and the prospect of continued detention
here had taken a tremendous psychological toll.


21This section of my testimony is based on a statement given by Randy McGrorty, Executive Director,
Catholic Charities Legal Services, to the U.S. Commission on Civil Rights, June 21, 2002. Mr. Moise was a named
plaintiff in the lawsuit filed on March 15, 2001.





69

The Immigration Judge fortunately granted a brief 3-day continuance to allow for adequate preparation.
While the office worked hard in preparing a more thorough asylum application, fully detailing the
political difficulties of Mr. Moise, the clear, honest and humble voice of the Haitian fisherman, testifying
on his own behalf, helped convince the Immigration Judge that he had a well-founded fear of future
persecution upon return to Haiti and resulted in the Judge's granting him and his two sons political
asylum.

Even after an immigration officer had found that he had a credible fear of persecution, even after an
Immigration Judge determined that he deserved political asylum, INS continued to detain Mr. Moise and
his family. The INS trial attorney reserved the right to appeal the case before the BIA, which precluded
release pending that appeal. McGrorty strongly believes that had Mr. Moise not been Haitian, INS would
not have reserved the right to appeal and he would have been released immediately.

Mr. Moise was therefore forced to return to the locked hotel with his two sons. The teenage boys had no
access to schooling, recreation, or their mother who was still detained at TGK.

Not until Representative Conyers toured the Miami detention facilities and met with the Moise family,
and not until FIAC filed a lawsuit did INS finally make the decision that they would not, after all, appeal
the case. INS therefore had to release Mr. Moise and his two sons.

However, because Mr. Moise and the boys' mother were never legally married, she could not benefit
from his asylum status. While the law of asylum allows children to benefit form their parents asylum
status, the reverse is not true. Parents cannot benefit from their children's status. Because Mr. Moise
and the boys' mother were not legally married another Immigration Judge heard her claim and that of her
two adult children. He denied that case, refusing to take into account the asylum status of her children.
The mother and her daughter are currently detained at the Broward Center."

Mr. Moise and his sons have overcome political oppression in Haiti, the vagaries of U.S. immigration
law, the trauma of detention, and the myriad of unique barriers faced by Haitian asylum seekers, yet still
face the prospect of fractured family. Separation from their mother eclipses the otherwise bright future
of safety in the United States the boys could enjoy. The cherished bond between a mother and her
children which underlies our notion of family values seems to matter little for Haitians.2

V. Fate of Returnees

FIAC is gravely concerned about the safety of those Haitians already deported and about the likely
deportation of 107 of the Haitian asylum seekers who remain in INS custody after ten months in the
United States. Virtually all of the Haitians on board the December 3" boat are from Rabateau, a section
of Gonaives which has been the epicenter of recent political violence and unrest in Haiti. The US State
Department, Amnesty International and the National Coalition for Haitian Rights have all issued




2wVhile the mother was initially detained at the hotel, after several months she was eventually transferred to
TGK, where her daughter was. Her daughter had not been able to communicate with her family m detention and did
not know where anyone else was until her mother was brought to TGK.
25FIAC represents another Haitian family which has been forcibly separated. In this case, a mother and her
son were transferred to Pennsylvania and separated from the father who is detained at Krome. Their asylum case is
consolidated.





70

statements in recent weeks expressing grave concern regarding the escalating political violence there and
the Haitian government's inability to control it.'

On July 29, 2002, three Haitian women detained in Miami were awoken around 2:00 a.m., shackled,
handcuffed and taken to the airport.? They remained shackled and handcuffed on the plane trip to Haiti,
where they were immediately jailed. According to Rigmane Ovilma, who spoke with FIAC by phone,
conditions in the Haitian jail were horrific: several women were cramped in a cell, they had no water, no
toilet and one tiny cot was shared by three. The women's families were told they had to pay $2000 ($400
US) each to get the women released. Ms. Ovilma told FIAC, "We were living in a nightmare in Haiti
before we left, then we lived a nightmare in the United States of America and we are living a nightmare
again in Haiti. I still have the scars of the shackles on my ankles they put on us when they deported us
because they were so tight.... Why are we being treated this way? Doesn't anybody care about our
lives?"

The women's lives remain at great risk in Haiti. Ms. Ovilma's mother's restaurant was riddled with
bullets following the jail break of Amiot "Cubain" Metayer and the escape of 150 other prisoners, and
Rigmane and her brother beaten so severely that they had to be hospitalized for several days. FIAC has
been unable to maintain consistent contact with the women because they have been forced into hiding.

According to Merrie Archer, Senior Policy Associate at the National Coalition for Human Rights, the
Haitian women's fears are well-founded. Archer told FIAC on August 9, 2002, "Should these refugees
[December 3 boatpersons] be returned to Haiti, they would be unable to return to their homes at this time
because returning to Raboteau would mean putting them in the hands of their aggressors with no hope of
intervention on their behalf by the Haitian government. Unable to return home, they would join the ranks
of the hundreds of internally displaced persons fleeing the terror and the impunity that the government
continues to allow this gang to enjoy."

Following the most recent outbreak in Gonaives, the Haitian women currently detained at the Broward
Center told FIAC: "None of us can sleep at night. We toss and turn and think about what may have
happened to our families and our children who are in Haiti. And we think about what will happen to us
when we are deported. We feel that we will surely die when we are sent back. No one will be able to
protect us, not even our families. There is no democracy in Haiti, only violence."

VI Conclusion

Using the threat of detention to deter the arrival of asylum seekers is neither legally nor morally
acceptable. Indeed, it appears that the INS policy is not about saving Haitian lives, but rather about
keeping Haitians out, at the expense of their legal rights. If our Government is truly concerned about
saving Haitian lives then they should attempt to ensure that those Haitians already in the United States




26U.S. Department of State, "Haiti: Violence in Gonaives," Press Statement, August 5, 2002. Amnesty
International, "Haiti: Human rights and rule of law must be upheld," Press Release, August 7, 2002. National
Coalition for Haitian Rights, "Haitian Coalition Express Grave Concern Over Growing Violence in Haiti," Press
Release, August 7, 2002.
21These women were part of a group of 22 Haitian asylum seekers deported on July 29. It is FIAC's
understanding that the government of Haiti may not have issued travel documents for the 22 Haitian asylum seekers
deported on July 29.




71

have a fair opportunity to make their case for asylum and are afforded the same treatment and protection
as other similarly situated groups.

Our responsibility to protect persons among us who have fled political persecution should not depend on
politics. Haitian asylum seekers come to the United States seeking refuge from persecution. They expect
to be treated fairly and equally by the world's leading democracy and defender of human rights. While
we certainly understand the need after September 11 to protect our borders, to indefinitely detain
Haitian asylum seekers in the Miami District who have committed no crime and treat them differently
than any other group is a perplexing waste of precious resources and a colossal waste of U.S. taxpayers
money. In mid-June, taxpayers had already spent more than 2 million to detain the Haitians.'

The longer the Haitians are detained, the more desperate their situation becomes. Earlier this month, a
Haitian asylum seeker at Krome attempted to hang himself. He told advocates, "I thought Iwanted to die
rather than stay here in Krome being humiliated everyday .... It looks like they are just going to send us
all back anyway. We always feel pressure to just give up. So what am I to do?"

His statement is eerily reminiscent of a letter written by detained Haitian asylum seekers at Krome more
than ten years ago. In September 1991, Haitians there wrote, "We wish to emphasize ... that right now
we are living in the most difficult and painful times of human life .... We prefer to die than to live in
the uncertainty that drowns our thoughts."

The Haitian asylum seekers are not criminals. They are not asking for special treatment, only fair and
equal treatment. To flee from persecution is not a crime; it is a basic .human right. It is the
Government's responsibility now to treat the Haitian asylum seekers as they treat asylum seekers from
other countries. Asylum seekers from countries other than Haiti in the Miami District who pass their
credible fear interviews are quickly released. Haitians deserve no less.























28 Barciela, Susana. "Free the Haitian Asylum Seekers," The Miami Herald, June 20, 2002, p. 6B.







VII Recommendations

Haitians in the Miami District who demonstrate a "credible fear" of persecution upon return to Haiti should
be released from detention, as are all other similarly situated persons.

Haitians should be provided a full and fair opportunity to prepare their asylum claims and to obtain legal
counsel. If paroled, their ability to obtain counsel is greatly increased. If the Haitians remain in detention
their cases should proceed according to the regular Immigration Court schedule, rather than
be expedited, so they have a fair opportunity to obtain counsel and prepare their cases.

The INS must improve conditions of detention in facilities such as Krome and TGK. At a minimum, such
conditions should comply with the INS Detention Standards adopted in September 2000.

In the past, the United States implemented in-country refugee processing in Haiti and conducted on board
Coast Guard screenings. While imperfect, these measures at least provided some check to assess
potential claims from Haitian asylum seekers. At a minimum, such measures should be implemented
again.

Thank you for listening to our concerns.





73


MIAMI-DADE COUNTY, FLORIDA


STEPHEN P. CLARK CENTER
OFFICE OF COMMUNITY RELATIONS
111 N,W. 1st STREET, SUITE 615
MIAMI. FLORIDA 33128-1968
(305) 375-5730
FAX (305) 375-5270
MIAMI-DADE COUNTY COMMUNITY RELATIONS BOARD LyDoo .C.op P.P
AsEtsnt Dcetor

POSITION STATEMENT



A boat containing 185 Haitian refugees arrived in the United States on December 3,
2001, in addition to others that arrived by plane. The-refugees were taken to the Krome
Detention Center and other detention facilities in Florida and other states. Two of those
who arrived by boat drowned in an attempt to reach land, while being chased by the
Coast Guard. Under the "dry foot, wet foot" policy adopted by INS, if a refugee sets foot
on dry land.',he is given special consideration. Eighteen were released based on that
inhumane policy.

Approximately 200 Haitian refugees remain under INS custody, out of which 26 women
are kept at a high security jail Turner Guilford Knight (TGK), and 12 children are
detained at Boystown (including a one-year-old toddler and a 3-year-old boy).

These Haitian refugees passed their "credible fear interviews". Under the law and INS
policies, once an INS asylum officer declares a refugee to have a credible fear of
returning to their homeland, the refugee is normally paroled within 72 hours, and given
the opportunity to retain a lawyer for fair representation and to apply for asylum.

WHEREAS other refugees of different nationalities, under the same circumstances are
being released and some are detained indefinitely for no apparent reasons, now be it
resolved that the US Immigration and Naturalization Service be fair and equitable in the
application and enforcement of their own policy by releasing all persons who have
proven their credible fear of persecution.


This was approved by the Board on this 17th day, of April, 2002.


Respectfully,



Adora Obi Nweze, Chair
Community Relations Board


Asian-Amencan Advisory Board Black Affairs Advisory Board Commission for Women
Community Relations Board Hispanic Affairs Advisory Board







Testimony before the
Senate Committee on the Judiciary Subcommittee on Immigration
On the Detention and Treatment of Haitian Asylum Seekers

October 1, 2002

Dr. Brad Brown, President
Miami-Dade Branch of the National Association for the Advancement of
Colored People (NAACP)


My name is Dr. Brad Brown and I am the President of the Miami-Dade Branch of the NAACP. I
am grateful for the opportunity to submit written testimony to you today regarding the treatment
of Haitian asylum seekers in South Florida. From the beginning, the NAACP has been very
disturbed that Haitian asylum seekers in South Florida are not afforded the same treatment as
other similarly situated groups. While asylum seekers in Miami from all other parts of the world
are quickly released after proving that they have a credible fear of persecution to an Asylum
Officer, Haitians who have also been found to have a credible fear of persecution are indefinitely
detained and their asylum cases put on a fast track. The unfair treatment of both their release
requests and their efforts to pursue asylum serves once again as a cruel reminder of the double
standard in our immigration policies. For years now, the Haitians have been discriminated
against and their asylum claims wrongfully denied.

We have marched and we have prayed. We have spoken at meetings and met with officials. We
have participated in press conferences and written our elected officials. On April 16, 2002, the
Miami-Dade NAACP sent a letter to Attorney General decrying this new discriminatory
detention policy, which was also signed by dozens of other organizations.

The personal testimony by Haitians coming to Miami, that those fleeing today may well face
persecution if returned is back up by independent observers. Countless human rights
organizations have reported on recent political violence in Haiti. In its 2002 Annual Report,
Amnesty International said, "[T]here were repeated indications that the police and justice
systems were becoming more politicized ... [There was] an increase in killings by police in
disputed circumstances; in "popular justice" killings of suspected criminals; and in attacks by
increasingly intolerant partisans of the ruling party Fanmi Lavalas (FL) on perceived opponents,
including human rights defenders and journalists."

Our own State Department has documented extensive human rights violations in Haiti. In March
of this year, the US State Department wrote, "The [Haitian] Government continued to commit
serious abuses during the year, and its generally poor human rights record worsened. .. local
officials committed increasing numbers of serious human rights abuses... [and] frequently beat
and arbitrarily arrested human rights activists, former military, labor activists, and opposition
members ... Political violence continued ... There were credible reports of extrajudicial killings
... Police officers used excessive--and sometimes deadly--force in making arrests or controlling
demonstrations and rarely were punished for such acts ..."







Recent political violence in Gonaives, Haiti, where most of the Haitians from the December 3rd
boat are from, further supports the validity of the Haitians' asylum claims and the extreme
urgency of their situation. In a statement on August 5, 2002, the U.S. State Department said,
"The violent actions of 'popular organizations' and street gangs are deplorable. We call
upon the Government of Haiti to take all necessary steps to restore order and the rule of law in
the city of Gonaives. In order to protect the people of Haiti and prevent further lawlessness,
Haitian authorities should pursue and re-arrest all prison escapees, including "Cubain" Metayer,
who is charged for perpetrating serious acts of violence in Gonaives. A recent Organization of
American States report also cited Metayer as responsible for leading a deadly assault in 2001 on
members of the political opposition." Anmesty International also issued a press release on
August 7, 2002 and said, "The political violence and instability which have followed the prison
escape of political activist Amio M66tayer are seriously undermining the rule of law and may
jeopardize human rights in the Haitian town of Gonaives... Armed gangs supporting political
activists or locally elected officials have been allowed to consolidate their presence and now
constitute a serious challenge to the rule of law in the country." The deteriorating political
situation in Gonaives confirms the worst fears of the detained Haitians, who fled because they
believed the government could not protect them from such violence.

Many Haitians feel they have no other choice but to flee by boat, and as one Haitian asylum
seeker declared, therefore, "The sea is our embassy." Boat persons, including Cubans and
Haitians, generally must make it to "dry land" in order to prevent their forced return. As a result
of this policy, Haitians and Cubans, desperate to make it to shore, frequently jump overboard at
the sight of land. Many have lost their lives as a result and this questionable policy only serves to
put refugees' lives at greater risk.

Cubans and Haitians alike have faced political tyranny at home, albeit tyranny of a different
kind. The Cubans have had favored status under US Law and have become highly successful. In
spite of the discrimination they continue to face, Haitians, too, have proven to be successful and
have made many valuable contributions to our community.

The Nicaraguan Adjustment and Central American Relief Act (NACARA), an immigration law
which passed in 1997, gave a few immigrant groups in the U.S. before December 1995 the
opportunity to obtain legal residency and gave the Haitians and many other groups nothing.
Haitian legislation which subsequently passed gave legal residence to some Haitians but was not
as generous as NACARA. Actions such as these are divisive and pit one group in our community
against another and further destabilizes our communities. As usual, in the United States the
greater burdens falls on those who are Black.

As Americans, we at the NAACP find such radically different treatment of individuals on the
basis of their race and/or national origin to be not only morally offensive, but also in direct
contravention of the values of equality and justice that this country was founded on. The Miami-
Dade Branch of the NAACP introduced a resolution to this effect at the 2002 Annual National
NAACP Convention, which was passed unanimously.

Our responsibility to protect persons arriving to our shores who have fled persecution should not
depend on their race or national origin. Indeed, for us to do so is not only morally wrong, it is a




76

violation of our obligations under international law. After all, the Haitian asylum seekers are not
asking for special or favored treatment. The Haitians are simply asking for equal treatment under
the law. They deserve nothing less.

Thank you for your consideration of our views.








Miami-Dade Branch
National Association For The Advancement of Colored People
P.O. Bo .351 Opa-Lacka, FL 33Ut4 Phone: 315.6h!.8694 Fax: 305.685.7151





April 16,20 2002

The Honorable John Ashcroft
US Attorney General
US Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530-0001

RE: Detained Haitian Asyum Seekers In Miami

DearHonorable John Ashcroft

We write to express our grave concern about Haitian asylum seekers
who have been singled out for special discriminatory treatment. Since
December 3,2001, when a boatload of 167 Haitians was rescued by the
Coast Guard and permitted to apply for asylum in the United States, the
Immigration and Naturalization Service (INS) has refused to release the
vast majority of Haitians in the Miami District who arrived by boat or
plane, while routinely releasing similarly situated asylum seekers of
other nationalities. All of these Haitians have already convinced
Asylum Officers that they have a substantial likelihood ofproving their
eligibility for asylum.

Before December. 2001, Haitians and most others in Miami who passed
their interviews were quickly released. Once released, they generally
have about a year to find lawyers and prepare their cases. However. the
cases of detained Haitians are accelerated and processed within weeks.
This means that most of them go without legal representation. It is our
understanding that at least three additional judges have been brought to
the Krome Detention Center to handle the Haitian cases. Many hearings
are scheduled for only one hour. including time for interprenaton with
as many as five merits hearings scheduled in a single day. At least 50
Haitians have already been ordered removed by immigration judges, in
many cases because they did not ]mow how to complete their asylum
applications.

For those few detained Haitians able to obtain counsel, their
reprsmnmatives report tremendous problems in attempting to prepare the
Haitians' asylum cases, including waiting for hours at detention
facilities just to meet with their clients and a serious lack ofadeqiuate
space to conduct confidential interviews. This is especially problematic
given the accelerated nature of these cases and the large number of





78


Page 2

Haitians who arc being required to go forward with their asylum
cases while in detention.

It is also our understanding that for weeks attorneys wishing to help the Haitians in Miami were
deliberately misled by Miami INS officials and told to submit release requests on the Haitians'
behalf, despite the fact that there was a clear intent to adopt a virtual blanket detention policy.
These advocates, therefore, wasted precious time doing so when they could have instead been
assisting the Haitians in completing their asylum applications.

There are currently more than 270 detained Haitian asylum seekers in Miami. About 200
Haitian men are being held at the Krome Service Processing Center (Krome), and about 45
women are in INS custody at the Turner Guilford Knight Correctional Center (TGK), a
maximum security county jail in Miami which has housed the female detainees since December,
2000, following allegations that Krome guards were sexually abusing the women.
Approximately 30 other Haitians (generally mothers with young children) are detained at a local
hotel where they have no access whatsoever to educational or recreational activities. Since the
Haitians aren't being released, these facilities are terribly overcrowded. On March 9, 2002,
Congressman John Conyers visited the Haitians at Krome, TGK and the hotel and found "serious
deficiencies" in all three facilities. The Haitians themselves feel discriminated against and have
raised serious concerns regarding their treatment while in INS detention. Attorneys say that their
Haitian clients are so traumatized by the conditions of their confinement that they are often
unable to focus on preparation of their asylum claims.

Despite efforts by the Executive Office of Immigration Review (EOIR) to secure pro bono
attorneys for the Haitians, most are unrepresented. Unless released from detention, they will in
effect be denied their day in court. Given the current deteriorating political situation and
escalation of violence in Haiti, as reported by State Department and human rights groups such as
Amnesty International, we are especially alarmed that decisions in these cases could be a matter
of life or death.

On February 15. 2002 a class action lawsuit was filed in Miami District Court on behalf of the
Haitians. In responding to the lawsuit, Acting Deputy INS Commissioner Michael Becraft
claims that he authorized a change in the parole criteria for Haitians in December, 2001 in order
to deter Haitians from risking their lives on the high seas.

Using the threat of detention to deter the arrival of asylum seekers is neither legally nor morally
acceptable. Indeed, it appears that the INS policy is not about saving Haitian lives, but rather
about keeping Haitians out, at the expense of their legal rights.

Moreover, history proves that Haitians who are desperate to flee political violence in their
country will not be deterred from coming to the United States by threat of detention. These
Haitians know full well the risks they undertake when they take to the high seas in flimsy boats,
yet do so because their fear of remaining in Haiti is so grave.

In addition, we are aware that the U.S. interdiction policy implemented by the Coast Guard has

1 01 -





79


Page 3

largely resulted in the prevention of most Haitian boats from arriving in the United States.
While we support rescue at sea, we object to interdiction as a policy of deterrence and question
why the arrival of one boatload of Haitians has triggered such an extreme response. If our
Government is truly concerned about saving Haitian lives then they should attempt to ensure that
those Haitians already in the United States have a fair opportunity to make their case for asylum
and are afforded the same treatment and protection as other similarly situated groups.

In this era of imminent threats to U.S. national security, we believe that the INS is misusing vital
resources by focusing on the deterrence of legitimate asylum seekers rather than the
apprehension of those who wish us harm. Given that the INS iL an agency beleaguered by
multiple and conflicting mandates, now more than ever is the time for the agency to devote its
attention and energy to the legitimate and urgent goal of combating terrorism.

Haitian asylum seekers come to the United States seeldng refuge from persecution. They expect
to be treated fairly and equally by the world's leading democracy and defender of human rights.
We believe that the denial of release to Haitians is discriminatory.

We urge you to treat the Haitians as you treat other groups of asylum seekers in Miami and to
release them after they pass their Asylum Office interviews so that they have a fair opportunity
to find lawyers and properly prepare their immigration court cases. Failure to do so will only
serve to further the perception that our Government continues to implement discriminatory
immigration policies, targeting the most vulnerable among us.


Sincerely,.


Brad Brown, President, Miami-Dade Branch of the NAACP on behalf of:


Americm Guatemalant
Association
Florida Chapter
Miami, FL

American Inmigrarion
Lawyers Association
Washington, DC

Asia America Law Group

Brennan Center for Justice at
NYU School of Law
New York. NY

Catholic Charines Legal
Services


Miami, FL

Catholic Legal Immigrant
Network. Inc.
Washington, DC

Center for Human Rights &
Intemanonal Justice
U.C. Hastings College of the
Law
San Francisco, CA


Church World Service.
Immigration & Refugee
Program
Miami, FL


Citizens & Immigrants For
Equal Justice (CIEJ)
Mesquite, TX

Coalition oflmmoakalee
Inmmokalee, FL

Colombian American Service
Association
Miami, FL

Detention Resource Project
Philadelphia PA

Episcopal Migration
Minist Yories
New York, NY








Page 4

The Florence Inmmigrant &
Refugee Rights Project, Inc.
Florence, AZ

FLORIDA ACORN

Florida Immigrant Advocacy
Center, Inc.
Miami, FL

Guatemalan Immigrttion
Coalition, Nanonal
Miami, FL

Haitian American
Community Association of
Dade County
Miami, FL

Haitian Grassroots Coalition
Miami, FL

Haitian Women of Miami
Miami, FL

Hebrew Immigrant Aid
Society
New York, NY

Hispanic Coalition
Miami, FL

Hispaic Development
Corporation
Newark. NY

Honduran Unity
Miami, FL


Human Services Coalition
Miami, FL

Illinois Coalition for
Immigrants and Refugee
Rights
Chicago, IL

Immigrant Legal Resource


Center '
San Francisco, CA

Immigrant and Refugee
Appellate Center, LLC
Alexandria, Virginia

Immigrant and Refugee
Rights Project
Washington, DC

Immigration and Refugee
Services of America
Washington, DC

Immigration Counseling
Services
Portland, OR

Immigration Law Clinic
University of Arizona
Tucson, AZ

Institute for New Americans
Minneapolis, MN

International Gay and
Lesbian Human Rights
Commission
San Francisco, CA

Justice, Peace and Ecology
Commission,
Capuchin Province of St
Joseph
Milwaukee, WI


Lawyers Committee for Civil
Rights Under Law of Texas
San Antonio, IX

Lawyers Committee for
Human Rights
New York, New York

Loren Warboys Fellow
Youth Law Center
San Francisco, CA


Lutheran Immigration &
Refugee Service
Baltimore, MD

Massachusetts Immigrant and
Refugee Advocacy Coalition
Boston, MA

National Asian Pacific
American Legal Consortium
Washington, DC

National Coalition for
Haian Rights
New York. NY

National Immigration Forum
Washington, DC

New York Association For
New Americans
New York

Northwest Immigrant Rights
Project
Granger, WA

Northwest Immigrant Rights
Project (NWIRP)
Seattle. WA.

Physicians for Human Rights
Asylum Network
Boston, MA

Presbyterian Church (U.S.A.)
Washington Office


PRIME Ecumenical
Commitment to Refugees
Clifton His., PA

Salvadorn American
National Network
Los Angeles, CA

SanKofa
Miami. FL


- 103-








Page 5

Sant La (Haitian
Neighborhood Center)
Miami, FL

St. Matthew's Immigration
Outreach Service Center
Baltimore, MD


Together In America
New York

Unite for Dignity/SEIU 1199
FLA

United Methodist Committee
on Relief (UMCOR)

U.S. Committee for Refugees
Wasahngton, DC

Washington Lawyers'
Committee for
Civil Rights and Urban
Affairs
Washington DC


Washington Defenders
Immigration Project
Seattle, WA

Whitman-Walker Clinic
Legal Services
Washington, DC

Women's Alliance of Miami-
Dade & Broward, Inc.
Miami, FL

Women's Commission for
Refugee Women and
Children
New York, NY


cc: Senator Bob Graham
Senator Bill Nelson
Congresswoman Carrie P. Meek
Congresswoman Deana Ros-Lehrinen
Congressman Lincoln Diaz-Balart
Congressman Al.ce Hasnngs
Al Cardenas, Esq., Chair, Republican Party of Florida




82


Submitted Statement of Senator Bill Nelson before the
Senate Judiciary Committee, Subcommittee on Immigration

The Detention and Treatment of Haitian Asylum Seekers, October 1, 2002

I appreciate this opportunity to discuss the government's reprehensible treatment of Haitian
refugees In my state.

It goes without saying, that the INS blanket policy to detain Haitian asylum seekers Is unfair and
discriminatory -- and must be changed.

Under a new policy announced in March, Haitian asylum seekers who are caught trying to enter
the United States by boat are detained while seeking asylum in the United States from their first
interview until their case has been decided in court.

Other refugees in similar situations are released as soon as they pass the Initial Interview
process.

INS argues that if they don't detain the refugees, there will be a mass exodus of Haitians to the
United States. The State Department claims the change in policy resulted from a spike in Haitians
trying to get to the United States in December 2001. These arguments simply don't stand up to
the facts.

While a boat of about 300 or so asylum seekers was interdicted on December 3rd, the numbers in
October, November, January and February do not indicate a trend in increased boats leaving Haiti
-for the US. In fact, in January and February, before the detention policy for Haitians was made
public as a "deterring factor for boats coming to the US," zero Haitians were interdicted In boats at
sea.

To make matters worse, they're not getting a fair shake in the judicial system.

Because Haitians are detained while seeking asylum, their cases are expedited in the courts. This
gives them less time to prepare for their case making access to their attorneys critical. But
access to attorneys has been limited at best, causing many cases to fall through the cracks.

First and foremost we must end this discriminatory-policy. These people suffered incredible
hardship and it's a shame that when they come to the United States they are treated so unfairly.

I believe we should also consider reinstating in-country refugee processing In Haiti. This service
does not guarantee a person will be placed in the United States because they also can be
repatriated to another country but it guarantees them the opportunity to leave Haiti, if the "well -
founded fear" criteria is met







Testimony before the U.S. Senate Subcommittee on Immigration
On the Detention and Treatment of Haitian Asylum Seekers

October 1, 2002

Marie Jocelyn Ocean
Haitian Asylee and Former INS Detainee


Good afternoon. My name is Marie Jocelyn Ocean and I am from Haiti. On behalf of all of the
asylum seekers still in detention, I would like to thank you for honoring me with the opportunity
to speak to you today about our experience and the treatment we have received here in the United
States.

I was forced to flee Haiti because I was being persecuted by members of Lavalas, a gang that
supported the government. My family was politically active and we all spoke out against
Lavalas. Because he spoke out, my father was killed. My brother was very active in politics, and
he was also killed. My other brother was stabbed by Lavalas and he almost died. They even hurt
our children. My brother's son was beaten. They found my daughter who was nine years old
then, and they kicked her in the mouth. When my life was in danger because they were
threatening me and came after me, I had no other choice but to flee because there was no one to
protect me in Haiti. So I got on that boat with all the other people to flee Haiti and find freedom
somewhere else. We did not know where we would land, only that we had to flee Haiti to save
our lives. The US Coast Guard and INS picked us up at sea on December 3, 2001.

I came to the United States for peace, freedom and protection. And because I am speaking to you
here today, you know that I have found freedom here, and for that I am grateful. On May 31,
2002, the Immigration Judge granted me asylum here in the United States because of the
persecution I suffered in Haiti. I am the lucky one though. I am the only Haitian woman from
TGK that I know of who has been granted asylum so far, although I know that many of the other
women I was detained with also suffered terribly in Haiti. Yet they continue to suffer because
they are still detained.

Like me, all the other Haitian women came here seeking freedom from oppression. We did not
leave our homes because of hunger or lack of food, we left because of the political violence in
Haiti. So when we first arrived we thought the Americans would treat us with dignity and that
they would protect us after what we had suffered. We knew there to be laws in this country to
protect victims of abuse and torture.

So I was shocked by how they treated us. Instead of finding freedom, we were thrown in jail.
We were treated worse than nothing, we were treated as criminals. There was almost no one to
help us when we were in detention. Even though the laws were too complicated for us to
understand alone, our detention made it very difficult for us to get access to lawyers and we had
to go to court very quickly.







Being detained made it so much harder for us to even have a chance in court. At first I was taken
to a local hotel in Miami with many of the other women. There were four women, including me,
and a little seven year old girl in my room, who I was not related to. We were locked in that
room together all day. We were not allowed out of our rooms, and we had nothing to do, there
were no activities and we had no exercise. No one could come to see us there and we felt terribly
isolated and alone, also because we could not communicate with most of the guards because they
did not speak Creole. I was at the hotel for more than two months and in all that time I was only
able to breathe fresh air on four days- three times when I went to court and once when I was
taken to Krome for visitation. Sometimes I felt as if I was suffocating and my heart would begin
to race because we were locked in that small space together for so long. It was impossible to
know what was happening or what we should do because there was no one to explain anything to
us because the lawyers can't come to the hotel. So I went to court alone without understanding
what I was supposed to do or anything that was happening, which was terrifying. One day the
officer yelled, "Ocean, court!" and I left thinking I had a hearing. But they did not take me to
court. They took me to jail, to TGK. They took my picture and they strip-searched me. I was so
afraid I was about to be deported. I was completely humiliated, and it seemed so unnecessary to
treat us like that. But they do this to all the women, not just me.

I never understood what was happening until I got an attorney. At night when I would try to
sleep at the jail they would flash lights in our eyes and bang on our doors, and it would startle me
terribly. Sometimes it made me remember bad things that happened in Haiti. Many of the
officers yelled at us a lot and we didn't understand why. They scared me a lot. Whenever I tried
to tell my lawyer about my experience in Haiti, it was difficult to concentrate because we were in
a place that was only adding to our misery.

It was at the jail though that I met staff from FIAC and they were able to help me and represent
me in court. If I didn't have a lawyer I would never have been able to tell the judge my story
because the laws are very difficult to understand here. We were supposed to fill out our asylum
applications in English, but none of us speak English and many of us cannot read or write. There
were very few organizations like FIAC that understood the laws and could help us when we were
in detention. Many of the other women were not as lucky as me though and did not find anyone
to help them. If it had not been for FIAC, no one would have helped us at all. Most of the
women had to go to court and speak to the judge by themselves. I am very lucky because FIAC
represented me and I won my case in court and now I am free. But my heart cries for the women
that are still there and who did not have a lawyer to help them speak to the judge.

Now some of the Haitian women have been deported and forced to return to the place four
nightmares. The problems we fled in Haiti have only gotten worse since we left. There has been
even more violence recently in the streets, and there was even a prison close to the neighborhood
where we come from, Raboteau, that was broken into and the prisoners freed. There is no rule of
law in Haiti, only chaos. How can they return people to a place like that, people who did not
have lawyers in court and who did not have a chance to tell the judge what happened to them?

My heart breaks for the Haitians from my boat who are still in detention, it has been almost ten
months for them now. They came here because they were afraid for their lives. The women I




85

was in the jail with have been transferred to a different place now, but they still have not been
released. I cannot understand this because everyone else from every other country was quickly
released while the Haitians have stayed in detention. This has made it even more difficult for us,
to watch so many other women from other countries come in and quickly get released. I didn't
think the United States would treat people differently just because of the place they were born, I
thought everyone was equal here. But we were not treated like everyone else, even though we
are all human and we all have the same blood. It became clear to us that the only reason we were
in jail indefinitely is because we are Haitian. But I still cannot understand why the Haitians are
kept in detention and all the others are released.

I pray that my words today will somehow help the Haitians that are still imprisoned. Thank you
for listening to me today.




86

Testimony before the
Senate Committee on the Judiciary Subcommittee on Immigration
On the Detention and Treatment of Haitian Asylum Seekers

October 1, 2002

Sister Jeanne O'Laughlin, OP, Ph.D.
President, Barry University


I write in support of the 24 Haitian women currently detained in Broward County,
Florida. Their incarceration exemplifies the U.S. government's wrongful treatment of
Haitian asylum-seekers.

I write, not only as an American who deplores this immigration injustice, but as a citizen
who has real experience in a number of similar situations and one who has offered to help
this group of Haitian women find sponsors and to monitor them.

While they've been detained and rushed through the asylum-seeking process, these
women have had no real access to legal assistance. It's deplorable that they have been
denied due process. They are not terrorists. They are not criminals. They are women with
intense fear of persecution should they be returned to Haiti. They have already met the
government's "credible fear" criteria and should be released.

I personally met with these women when I visited them at the Turner Guilford Knight
Correctional Center (TGK) in June 2002. I saw first hand the fear and despair in their
eyes. Their tears brought those of us visiting to tears.

In 1982, Barry University helped oversee placing over 300 detainees with sponsors in the
community, following their release from detention. They were released after a class
action lawsuit was filed on their behalf because they were being wrongfully detained. We
were successful in monitoring them and their sponsors. Overwhelmingly, they appeared
for their hearings.

It seems that history is repeating itself and that our Haitian brothers and sisters are once
more wrongly jailed. In April I offered help to place those who can and should be
released, particularly women and children. Then the INS told Congress that we had
withdrawn our offer. That is NOT true. In August I wrote to then-Commissioner Ziegler
telling him we had NOT reneged. To date, I have not received a response.

The most heart-breaking aspect I have observed is that the women have become
depressed and despondent in detention. I am dismayed by the injustice of their situation.
The rules of the INS should be equal and uniform as applied to all asylum seekers. I
mourn this wrongful detention.

May God bless you as you consider this case.





TESTIMONY OF THE NATIONAL COALITION
FOR HAITIAN RIGHTS


BEFORE THE


SENATE JUDICIARY COMMITTEE
SUBCOMMITTEE ON IMMIGRATION









Dina Paul Parks
Executive Director


October 1, 2002







Good afternoon, ladies and gentlemen. My name is Dina Paul Parks, and I am the
Executive Director of the National Coalition for Haitian Rights (NCHR). I would like to
thank you for the opportunity to testify here today before you, members of the Senate
Subcommittee on Immigration, in this matter of the detention and treatment of Haitian
Asylum Seekers. I am particularly honored, Mr. Chairman, to address this committee
under your leadership, which has been so instrumental in establishing and fighting to
protect this nation's refugee protection laws. I would also like, Mr. Chairman, to
acknowledge Senator Brownback for his demonstrated commitment to the plight of the
most vulnerable immigrants and refugees. The Haitian asylum-seekers who are the
subject of this hearing most certainly belong in this category.

Mr. Chairman and members of the Subcommittee, you have heard from several of our
distinguished guests about the basic and most salient facts of the latest INS policy of
detaining Haitian asylum seekers based solely on their nationality. As you have by now
learned, this policy is just the latest in a very long history of double-standard treatment
for Haitians by the US government. Unfortunately, the corollary element to this dynamic
is the long, painful tradition of political violence and repression of human rights in Haiti.
Over the next few minutes, I will attempt to provide some context about Haiti's current
political situation as it relates to these asylum seekers. First, however, a little bit of
history about NCHR and its work in this field.

Introduction and Overview of NCHR

Twenty years ago, the National Emergency Coalition for Haitian Refugees was formed
as a coalition of 42 U.S. and Haitian religious, labor and human rights organizations in
order to ensure that the thousands of Haitian refugees and asylum applicants fleeing
the increasingly repressive Duvalier regime received fair hearings and treatment in the
United States. Once that initial crisis was addressed, NCHR dropped the "Emergency"
from its name and began to educate the American and international public about the
political and economic causes of Haitians' flight from their homeland. We continued our
advocacy to help guarantee fair and equal treatment for Haitian refugees and
immigrants.

Throughout its history, NCHR has spearheaded national litigation, education and
advocacy efforts designed to halt the deportation and secure the legal status of Haitian
boat people. The Coalition's efforts over several years were instrumental in gaining
passage of reforms in U.S. immigration law in 1986 enabling more than 40,000 Haitians
to attain legal residency. As a plaintiff in a landmark case against the Department of
Justice, NCHR helped secure parole into the U.S. for nearly three hundred Haitian
asylum-seekers who had been quarantined for as long as twenty months at the U.S.
naval station at Guant6namo Bay, Cuba. This legal effort led ultimately to the closing of
what was probably the world's first camp for HIV-positive refugees.

NCHR has also assumed international leadership in organizing support for human rights
in Haiti. NCHR staff members have conducted numerous investigative missions to Haiti
and published more than 40 reports on the status of human rights there. Together with






Americas Watch, NCHR set up an Elections Observation Watch in 1987 to monitor what
were meant to be Haiti's first free elections and which instead ended in a military-
sponsored massacre. We followed with a parallel month-long monitoring of the
successful democratic elections in December 1990. In 1992, we established a
permanent NCHR office in Port-au-Prince for promoting human rights and democratic
reform. This office has grown in stature and impact over the past 10 years, with its
Director, Pierre Esperance, receiving the Human Rights Award from the US
Ambassador, Brian Dean Curran, last month.

The Coalition, which changed its name in 1996 to the National Coalition for Haitian
Rights, has become intemationally recognized for its in-depth knowledge of the human
rights situation in Haiti and has been a primary source of information and testimony for
inquiries of the United Nations Commission for Human Rights, the Inter-American
Commission on Human Rights of the Organization of American States, the US
Congress and other influential bodies. Our staff provided intensive training on the
context for promoting human rights in Haiti for observers in the country as part of the
UN/OAS Civilian Mission. In addition, we are often consulted by the information bureau
of the US INS for expertise on the political and human rights situation in Haiti, as well as
by regional INS asylum offices to provide in depth staff training on specific topics.

Overview of Concerns and Recommendations

Background of Haiti's Human Rights and Political Situation

Beginning in 1957, the 14-year rule of Dr. Francois Duvalier was often characterized as
bloody, insidious, and tyrannical, although exceedingly well organized and kept under
rigid control. Papa Doc strategically made the army a very close political ally by
conceding certain powers and fostering a strictly regimented corruption among its
leadership that trickled down to the lowest soldiers to maintain their loyalty. In order to
ensure, however, that the army did not get so powerful that it might eventually become
a threat to him, he created the "Tontons Macoutes", an equally well-organized hierarchy
of para-military henchmen who also took their power directly from the executive branch.
Together, they worked to suppress opposition to the presidency and throughout the
1960s either killed, exiled or forced into hiding between 10,000 and 20,000 primarily
middle- and upper-class Haitians. These Haitian immigrants easily found refuge in the
US, Canada and France.

Succeeded by his young son Jean-Claude Duvalier in 1971, the Duvalier regime quickly
faced significant challenges with infighting and jockeying for position and power. Seen
as weaker than his father and less concerned with consolidating power than with
economic gain and amusement, Baby Doc allowed a certain cosmetic "liberalization"
which resulted in a reduction in torture and arbitrary arrest in exchange for a widening of
the lines of international aid that would help make up for the vast deficits occasioned by
the increased greed of the kleptocracy. By 1980 however, the situation worsened again
to the point where, through the 1980's, thousands of Haitians were fleeing persecution
and other disasters. This time, however, faced with numbers of largely poor and






uneducated Haitians, the US responded with interdiction and forced repatriation. Of the
24,000 Haitians intercepted in international waters by the US Coast Guard from 1981
until Aristide came to office, only eleven out of 24,000 -- less than a mere 1% were
granted asylum; the rest were shipped back. By comparison, 75,000 Cuban refugees
were picked up in that same period. All 75,000 including convicted criminals were
granted immediate asylum.

Four years after the ousting of Baby Doc, Jean-Bertrand Aristide's Lavalas movement
swept Haiti's first democratic elections in 1990. The movement was initially a broad-
based coalition of progressive political parties and grassroots organizations from around
the country, most of whom had banded together in the anti-Duvalier movement in the
mid 1980s. Much hope was placed on this administration to permanently change the
repressive and anti-democratic traditions practiced by successive Haitian governments.
Importantly, during the first seven months of this regime, the flow of those trying to flee
to the United States or elsewhere trickled to almost zero.

Aristide was deposed on September 30, 1991 in a military-led coup. A reign of terror
was quickly resumed and, with the help of the well-organized paramilitary organization
FRAPH, the repression of Aristide supporters lasted through October 1994. During this
time, over 4,000 Haitians were killed, 300,000 became internal refugees, thousands
more fled across.the border to the Dominican Republic, and more than 60,000 took to
the high seas in search of protection from the rampant human rights abuses that were
characterized by the UN and OAS as gross and systematic violations.

US-led efforts returned President Aristide to power in October 1994 to complete his
term in office. He quickly abolished the military, replacing it with a civilian police force,
and hopes ran high, but the loose Lavalas coalition soon began to fragment. When
Aristide's successor, Rene Preval, was elected in the 1995 elections, a divisive element
had taken hold within the party. One year later, Aristide visibly. withdrew his support
from Preval, and broke off from his own Lavalas party (called OPL Organisation
Politique Lavalas) to create a new party with a closer faction of supporters, called
Lafanmi Lavalas, or the Lavalas Family.

Political violence turmoil began in earnest early the following year when 1997 legislative
elections were hotly contested by Lafanmi candidates who accused their former OPL
colleagues of fraud. Problems in which unfilled seats in parliament and the inability to
come to a negotiated settlement resulted in Preval's January 1999 decision to rule -
unconstitutionally by decree. This action was severely criticized both in Haiti and
without as highlighted in the US State Department Country Report on Human Rights
Practices in 1999. In addition, armed groups that began calling themselves "popular
organizations" (OP) loyal to Aristide began to stage violent in protests of the Preval
government and forced the resignation of the Prime Minister, leaving the post unfilled
for nearly 18 months.

In early 1999, an opposition coalition to both OPL and Lafanmi was formed to seek a
consensus among the executive branch, certain opposition parties and members of civil






society about setting up elections, although there was still no functioning legislative
branch. It was called the Espace de Concertation pour la Sauvegarde de la Democratie
(Space for Concord for the Safekeeping of Democracy) and represented a range of
political views, including former Aristide protjg6s.

These elections deemed critical to unblocking a three-year old stand off were
postponed 5 times due to violence, sabotage and allegations of tampering and were
finally held on May 21, 2000. The tension rose with each successive postponement,
raising the stakes each time. The incidence of electoral violence rose at an alarming
rate, and most sources recognize at least 15 politically motivating assassinations during
this time. This statistic does not include the numerous other abuses that took place such
as disappearances, non-fatal shootings, lynchings and the burning down of houses,
businesses and party offices. Many of the victims were outspoken critics of the Lavalas
government and on several occasions, this abuse took place under the eyes of the
police. Although it was rare that any group would claim responsibility for these actions,
it was widely attributed to the so-called popular organizations, or OPs, in the name of
Lavalas.

By the time the OAS declared the elections free but not fair because the method of
tabulation was not done according to regulation, a larger and more eclectic political
opposition calling itself the Convergence Democratique (CD) had formed. Its members
included a wide range of parties across the political spectrum, all in opposition to the
tally of the vote in the May elections, and they boycotted the presidential elections held
in November 2000, which brought President Aristide to power for a second time. Their
criticism of the Lavalas party and its leaders intensified during this period as did the
backlash from sectors close to the government.

On February 7, 2001, when President Aristide was sworn into office, the Convergence
made a public declaration that they would not accept the election of Aristide since the
previous elections had not been resolved, and declared that they were naming a parallel
president to a parallel government. Since then, government and opposition have been
locked in a political stale-mate in which neither side recognizes the legitimacy of the
other. Both sides have also rebuffed serious negotiations despite the intervention of the
OAS in over 20 trips to settle the dispute.

The policy of "zero tolerance" introduced by Aristide in June 2001, which legitimizes the
lynching of delinquents or those accused as such, has been used as a pretext for these
groups to threaten and harass anyone perceived as a menace to Lavalas. This was
taken to the extreme on December 17, 2002, the day of the attack on the National
Palace, branded as an alleged coup attempt by the Aristide government. Less than two
hours after the attack, around Port-au-Prince and in various locations around the
country, bands of armed Lavalas supporters, occasionally accompanied by elected
Lavalas officials, attacked and burned down the homes and offices of Convergence
party members and supporters, attacked journalists and began to force the censure the
reporting of these incidents by the independent Haitian media.







Beginning in November and throughout December 2001, journalists and human rights
defenders were threatened and attacked on a daily basis. One journalist sympathetic to
the Convergence named Brignol Lindor was lynched and assassinated on December
2r by a crowd who claimed to be getting revenge for an anonymous attack on a
Lavalas supporter a few days earlier. Shortly afterward, approximately 30 journalists,
particularly those from radio stations who did not auto-censure their broadcasts after the
attacks, fled Haiti. In addition, early in 2002, a small number of high profile judges,
social and political activists have continued to flee Haiti as pressure, harassment and
attacks against person, family and property have continued.

A report on an investigation of the December 17th attack by the Inter-American
Commission for Human Rights of the OAS, issued on July 1, 2002, concluded that the
attack was not a coup attempt and that the violent mobs had to have had foreknowledge
of what was expected of them in order to retaliate in such a manner. However, as more
recent incidents have shown, these armed gangs are loyal to members of various
factions of the Lavalas government and not exclusively to one central figure. They are
disparate and operate chaotically, vying for power, and some are beginning to lose their
"privileges". This is seen as a betrayal by the gangs, resulting in increasing verbal and
other backlash against the Lavalas movement, which has both fomented this violence
and to some degree lost control of it, as it has taken a life of its own.

Recent Events

The US Department of State, Human Rights Watch, Amnesty International and NCHR
have considered Aristide's human rights record in his second term as poor for a
democracy. The biggest problems identified include:

impunity for those claiming to act on behalf or in support of the government;
a politicized police force;
the lack of independence of the judiciary; and
harassment and persecution of members of the opposition, those journalists who
do not self-censure, human rights defenders, and other outspoken critics of the
government, its policies and the armed OPs.

These obstacles have continued over the last three months.

July
Journalist Israel Jacky Cantave and his cousin disappeared on the way home
from work. They were found beaten and injured several days later by neighbors
of the building where they were being held.
July September: Student protests against the government for attacking the
foundation of the Independent Haitian University and retaliation against student
protesters. The government unilaterally and without warning decided to dismiss
the vice chancellor of the university and suspend all student and faculty elections
and appoint its own directors.







August
Jailbreak of Amiot "Cubain" Metayer out of a prison in Raboteau, Gonaives on
August 2. Cubain is a former Aristide ally who was arrested for his role in the
December 17t attacks after international pressure on Aristide to address the
concerns raised by the OAS report. The jailbreak freed close to 160 other
prisoners. These armed street gangs continue to roam the streets with total
impunity.

September
A week-long gang war in the Cite Soleil slum over a cache of arms resulted in at
least 20 dead and 100 wounded
19th Haitian National Police (HNP) shut down the concert of a popular band for
playing song deemed critical of Aristide. "Revolution" lists some of the country's
ills and says "Mr. President, I am talking to you ..." Although government officials
declared it had not ordered the shut down, no action has been taken to offer an
apology to the band or its organizers or to sanction the police officers
responsible.
20" The disappearance of a popular pro-Aristide community leader and two
associates after being arrested by the police over a traffic dispute with
government officials sparked tire burning and violent protest in the streets of
Carrefour Feuilles for several days. Heavily armed gang members demanded
the release of Felix Bien-Aime, and heavily armed members of the HNP
retaliated by firing teargas and bullets into the popular neighborhood. At least
one journalist reported being assaulted by the police while other casualties
included one death and several injuries. A week later, there had been several
attempts to bum down the local police station.
20t The resignation of two ministers in less than 10 days Minister without
portfolio, in charge of negotiations with the opposition Marc Bazin, announced his
resignation due to frustration with governmental policy while Jean-Baptiste
Brown, Minister of justice and national security, follows his predecessor by 3
short months just days after the release of his report on the events of December
17, 2001.
26th Three popular independent radio stations, Radio Kiskeya and Radio
Caraibes and Radio Ibo shut down after receiving serious and credible threats by
armed men. Just days later, President Aristide is cited to have said that if the
Haitian press continued to repeat what the international press is saying, it is a
clear continuation of the damage of the 1991 coup d'etat. This type of statement
is what has incited people to act within the guidelines of the zero tolerance policy.

Ongoing have been the accusations, consistently leveled but yet to be investigated, at
police and government officials, including former top police officer Mario Andresol,
Senator Dany Toussaint and others of involvement in drug trade, kidnapping and
corruption.





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No Mass Exodus Imminent

In spite of these recent and ongoing developments, the historical information outlined
earlier provides us with many reasons why there is now little fear to be had about a
mass exodus of Haitian refugees at this time. First, the figures from the 1980s and
during the coup d'etat of the early 90s show that the numbers of refugees identified and
interdicted are beyond comparison. From some 24,000 throughout the 1980s to 60,000
in just three years in the early 1990s, these figures have dropped to a scant 1,483 since
October 2001. During this period, according to its website, the USCG reports only 1 or
0 interdictions in the months of October, January, February, June and August, meaning
that even in the months before the INS policy on Haitian refugees was known as such,
the Coast Guard picked up no boat people in January or February 2002, despite the
intense turbulence the country experienced in December 2001 following the attack on
the National Palace and reprisal attacks on members of the opposition. Again, I would
like to remind the Committee that these are the Coast Guard's own numbers, and they
do not support the notion of a mass exodus. The interdictions from 1984 to 1989 and
then from 1991 to 1995 far exceed these statistics.

However, the reasons for a lack of a larger wave of refugees are not merely to be found
in the statistics. With regards to Haiti, there are great distinctions to be made between
the political and human rights situations under the Duvaliers, the de facto Cedras
regime that overthrew Aristide and the current administration. Under the previous
regimes, the forces of government and repression were strictly regimented and part of a
clear, recognized and well-known hierarchy. Under the Duvaliers, there were the military
and the Macoutes used to balance out each others' power. Under Cedras, the
military's power was complemented by both the paramilitary group FRAPH and an
elaborate system of rural "chefs de section" and "attaches".

However, under the current administration, no such organization or consolidated center
of power exists. In fact, many human rights activists and political observers diagnose
chaos and disorder instead. Haiti's seven-year old police force is politicized and corrupt
with staffing far below the original 5,000 recruits primarily due to attrition. The country's
many armed gangs, the popular organizations, are primarily loyal to the Aristide
government, but not necessarily to Aristide. They are loyal to other popular or local
leaders within Lavalas such as Senator Dany Toussaint, former military officer, and
Senator Medard Joseph of Gonalives, whose loyal gangs include the Cannibal Army,
responsible for August's spectacular jailbreak, and others. In fact, with the arrests this
year of Cannibal Army leader Amiot "Cubain" Metayer and Ronald Camille, known as
Ronald Cadavre, leader of one of the most powerful Cite Soleil gangs, there is a sense
that the Lavalas government has begun to betray their "loyal supporters'. As William
Joseph, a Cannibal Army leader warned shortly after the jailbreak, "We are letting
Lavalas know who we are. We helped them get up the mountain. Now we are telling
them to pull us up, too."

This is not to say that the situation in Haiti is not grave and in great need of attention. It
is, rather, to point out that:








1), the repression has not reached the levels found under past oppressive, highly-
organized governments; and 2) there is a much stronger network of human rights
defenders, independent journalists and others in place today.

This network makes it much harder for official, state-sponsored abuse to go
unchallenged. Linkages between the Haitian press and European human rights
organization Reporters Without Borders, as well as the vast movement to seek justice
for slain journalist and political commentator, Jean Dominique, are characteristic of this
movement.

The US State Department's December 2001 travel advisory and its August 2002
response to the violence in Gonai'ves surrounding the jailbreak also clearly
acknowledge and highlight the volatility of the situation. In particular, the August
statement calls "upon the Government of Haiti to take all necessary steps to restore
order" as well as "to protect the people of Haiti and prevent further lawlessness,"
underscoring the lack of control the Haitian Government has been able to exert over
these "popular organizations". The government's inability or unwillingness to re-arrest
Metayer or the authors of the attack two months after the jailbreak while it is known
precisely where they can be found sends a clear signal of the danger faced by local
residents who have evacuated their homes and become internally displaced.

It is into this context that recent deportees from the December 3, 2001 boat have been
returned into the hands of those who were directly responsible for much of the
violence against the opposition party MOCHRENA with which they have been
associated because of their religious affiliation. There is increasing evidence that these
deported Haitians are subject to further human rights abuses upon their return.

Of the 167 Haitians who have been subjected to prolonged detention, almost 50 have
been deported. Detainees are deported in groups by the INS and are subjected to
handcuffing and shackling during transport. Once returned, they are transferred to the
custody of Haitian authorities at the airport in Port-au-Prince. The deportees were then
transferred to Delmas 33, a prison known for its extremely hazardous living conditions.

The story of one woman underscores the plight of the deportees. Upon her return, she
reported to us that while in Delmas she was held in one cell with more than 60 women,
some of whom had committed violent crimes. Others were very sick or pregnant. One
woman was there with a newborn infant. The women had only one cot for every three
women. They were provided no food or water. There were no toilet facilities, forcing the
detainees to urinate and defecate on the floor.

The woman was held at Delmas 33 for two days until her family was able to locate her.
They then were forced to pay a large fine (approximately U.S. $400) to obtain her
release. The woman reported that there were two other women in a similar situation
who were deported at the same time as she, who were also jailed and fined.