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Cuban and Haitian immigration

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Title:
Cuban and Haitian immigration hearing before the Subcommittee on International Law, Immigration, and Refugees of the Committee on the Judiciary, House of Representatives, One Hundred Second Congress, first session, November 20, 1991
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United States -- Congress. -- House. -- Committee on the Judiciary. -- Subcommittee on International Law, Immigration, and Refugees
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For sale by the U.S. G.P.O., Supt. of Docs., Congressional Sales Office
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Emigration and immigration -- Cuba ( lcsh )
Emigration and immigration -- Haiti ( lcsh )
Emigration and immigration -- United States ( lcsh )
Émigration et immigration -- Cuba ( ram )
Émigration et immigration -- Haïti ( ram )
Émigration et immigration -- États-Unis ( ram )
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bibliography ( marcgt )
federal government publication ( marcgt )
non-fiction ( marcgt )

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Includes bibliographical references.
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Title from PDF t.p. (LLMC Digital, viewed on Sept. 27, 2010)
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"Serial no. 31."

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oz 8-31 (O12-3 I


CUBAN AND HAITIAN IMMIGRATION


COLUMDIL UT!VERSITy
LI BEARIES

JUN 4 o

U. S. DErING
COPY BEFORE THE
SUBCOMMITTEE ON INTERNATIONAL LAW,
IMMIGRATION, AND REFUGEES
OF THE
COMMITTEE ON THE JUDICIARY 1, HOUSE OF REPRESENTATIVES
\' ONE HUNDRED SECOND CONGRESS
FIRST SESSION

NOVEMBER 20, 1991

Serial No. 31










Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE 51-225 WASHINGTON : 1992
For sale by the U.S. Government Printing Office
Superintendent of Documents. Congressional Sales Office, Washington, DC 20402
ISBN 0-16-037674-2


\ u gu- r

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21















COMMITTEE ON THE JUDICIARY

JACK BROOKS, Texas, Chairman


DON EDWARDS, California JOHN CONYERS, JR., Michigan ROMANO L. MAZZOLI, Kentucky WILLIAM J. HUGHES, New Jersey MIKE SYNAR, Oklahoma PATRICIA SCHROEDER, Colorado DAN GLICKMAN, Kansas BARNEY FRANK, Massachusetts CHARLES E. SCHUMER, New York EDWARD F. FEIGHAN, Ohio HOWARD L. BERMAN, California RICK BOUCHER, Virginia HARLEY O. STAGGERS, JR., West Virginia JOHN BRYANT, Texas MEL LEVINE, California GEORGE E. SANGMEISTER, Illinois CRAIG A. WASHINGTON, Texas PETER HOAGLAND, Nebraska MICHAEL J. KOPETSKI, Oregon JOHN F. REED, Rhode Island


HAMILTON FISH, JR., New York CARLOS J. MOORHEAD, California HENRY J. HYDE, Illinois F. JAMES SENSENBRENNER, JR., Wisconsin
BILL McCOLLUM, Florida GEORGE W. GEKAS, Pennsylvania HOWARD COBLE, North Carolina D. FRENCH SLAUGHTER, JR., Virginia LAMAR S. SMITH, Texas TOM CAMPBELL, California STEVEN SCHIFF, New Mexico JIM RAMSTAD, Minnesota GEORGE ALLEN, Virginia


JONATHAN R. YAROWSKY, General Counsel ROBERT H. BRINK, Deputy General Counsel ALAN F. COFFEY, JR., Minority Chief Counsel


SUBCOMMITTEE ON INTERNATIONAL LAW, IMMIGRATION, AND REFUGEES

ROMANO L. MAZZOLI, Kentucky, Chairman CHARLES E. SCHUMER, New York BILL McCOLLUM, Florida
HOWARD L. BERMAN, California LAMAR S. SMITH, Texas
JOHN BRYANT, Texas GEORGE ALLEN, Virginia
MICHAEL J. KOPETSKI, Oregon

EUGENE PUGLIESE, Counsel LESLIE L. MEGYERI, Assistant Counsel CARMEL FISK, Minority Counsel
(II)

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CONTENTS


HEARING DATE
Page
November 20, 1991 1

OPENING STATEMENT
Mazzoli, Hon. Romano L., a Representative in Congress from the State of
Kentucky, and chairman, Subcommittee on International Law,
Immigration, and Refugees 1

WITNESSES
Dominguez, Maria R., directoring attorney, American Immigration Lawyers
Association Pro Bono Project, South Florida Chapter 154
Fascell, Hon. Dante B., a Representative in Congress from the State of
Florida 5
Gelbard, Robert S., Principal Deputy Assistant Secretary of State for InterAmerican Affairs, Department of State, accompanied by Brunson McKinley, Deputy Assistant Secretary of State, Bureau of Refugee
Programs 57
Guttentag, Lucas, director, Immigrants' Rights Project, American Civil
Liberties Union 164
Helton, Arthur C., director, Refugee Project, Lawyers Committee for Human
Rights 113
Leahy, Rear Adm. William P., Jr., Chief, Office of Law Enforcement and
Defense Operations, U.S. Coast Guard, Department of Transportation. 83 Lehman, Hon. William, a Representative in Congress from the State of
Florida 26
Lewis, Hon. Tom, a Representative in Congress from the State of Florida. 42 Little, Cheryl A.E., supervising attorney, on behalf of Haitian Refugee Center,
Inc 141
McCalla, Jocelyn, executive director, National Coalition for Haitian Refugees. 134 McNary, Gene, Commissioner, Immigration and Naturalization Service, accompanied by Ricardo Inzunza, Deputy Commissioner, and Rex J. Ford, Associate Deputy Attorney General, Office of the Deputy Attorney General,
Department of Justice 68
Owens, Hon. Major R., a Representative in Congress from the State of New York 44
Rangel, Hon. Charles B., a Representative in Congress from the State of New York 20
Smith, Hon. Lawrence J., a Representative in Congress from the State of Florida 33
Stein, Daniel A., executive director, Federation for American Immigration Reform 182

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Dominguez, Maria R., directoring attorney, American Immigration Lawyers Association Pro Bono Project, South Florida Chapter: Prepared statement. 157 (III)

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Page
Fascell, Hon. Dante B., a Representative in Congress from the State of Florida:
Editorial, "Stop Haitian Interdiction!", the Miami Herald, dated
November 20, 1991 41
Letter to President Bush from Representatives Fascell, Lehman, and
Smith of Florida, dated July 18, 1991 18
Prepared statement 8
Gelbard, Robert S., Principal Deputy Assistant Secretary of State for InterAmerican Affairs, Department of State:
Prepared statement 60
Reply to Representative Kopetski's request on Haiti 102
Guttentag, Lucas, director, Immigrants Rights Project, American Civil
Liberties Union, and Judy Rabinovitz, staff counsel: Prepared statement. 166 Helton, Arthur C., director, Refugee Project, Lawyers Committee for Human
Rights: Prepared statement 116
Kopetski, Hon. Michael J., a Representative in Congress from the State of
Oregon: Prepared statement 48
Leahy, Rear Adm. William P., Jr., Chief, Office of Law Enforcement and
Defense Operations, U.S. Coast Guard, Department of Transportation:
Prepared statement 86
Lehman, Hon. William, a Representative in Congress from the State of
Florida: Prepared statement 28
Little, Cheryl A.E., supervising attorney, on behalf of Haitian Refugee Center,
Inc.: Prepared statement 144
Mazzoli, Hon. Romano L., a Representative in Congress from the State of
Kentucky, and chairman, Subcommittee on International Law, Immigration, and Refugees:
Temporary restraining order issued November 19, 1991, concerning
Haitians 52
Letter to Acting Attorney General William J. Barr, from Robert D.
Evans, director, American Bar Association, dated November 18, 1991. 55 McCalla, Jocelyn, executive director, National Coalition for Haitian Refugees:
Prepared statement 136
McNary, Gene, Commissioner, Immigration and Naturalization Service:
Prepared statement 70
Rangel, Hon. Charles B., a Representative in Congress from the State of New
York: Prepared statement 23
Smith, Hon. Lawrence J., a Representative in Congress from the State of
Florida: Prepared statement 37
Stein, Daniel A., executive director, Federation for American Immigration
Reform: Prepared statement 184

APPENDIXES
Appendix 1.-Statement of Talbot D'Alemberte, president, American Bar
Association 213
Appendix 2.-Statement of Ralston H. Defenbaugh, Jr., executive director,
Lutheran Immigration and Refugee Service 214
Appendix 3.-Statement of Dale S. De Haan, director, Immigration and
Refugee Program, Church World Service 218
Appendix 4.-Letter from Robert D. Evans, director, Washington Office of the
American Bar Association 223
Appendix 5.-Statement of Rev. Richard S.J. Rsycavage, executive director,
Migration and Refugee Services, U.S. Catholic Conference 225
Appendix 6.-Statement of the American Jewish Committee 236
Appendix 7.-Statement of Hon. Ed Towns, a Representative in Congress
from the State of New York 237
Appendix 8.-Statement of Washington Office on Haiti 241

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CUBAN AND HAITIAN IMMIGRATION


WEDNESDAY, NOVEMBER 20, 1991
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON INTERNATIONAL LAW,
IMMIGRATION, AND REFUGEES,
COMMITTEE ON THE JUDICIARY,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:05 a.m., in room 2237, Rayburn House Office Building, Hon. Romano L. Mazzoli (chairman of the subcommittee) presiding.
Present: Representatives Romano L. Mazzoli, Howard L. Berman, John Bryant, Michael J. Kopetski, and Bill McCollum.
Also present: Representatives John Conyers, Jr., and Benjamin A. Gilman.
Staff present: Eugene Pugliese, counsel; Leslie L. Megyeri, assistant counsel; Lizzie Daniels, secretary; and Carmel Fisk, minority counsel.
Mr. MAZZOLI. The subcommittee will come to order.
Mr. McCollum.
Mr. MCCOLLUM. Mr. Chairman, if I might ask unanimous consent that the subcommittee permit the coverage of this hearing in whole or in part by television broadcast, radio broadcast, or still photography, in accordance with committee rule 5.
Mr. MAZZOLI. Is there objection?
The Chair hears none. It is so ordered.
Mr. MCCOLLUM. Thank you.
OPENING STATEMENT OF CHAIRMAN MAZZOLI
Mr. MAZZOLI. The subcommittee will come to order. We will have an extensive hearing today on the whole question of the Cuban/ Haitian immigration movement. I have a few statements to make, and then I would certainly yield to my friend from Florida.
Events are moving at a breakneck pace, and of course just this morning's paper contains the story of the fact that a Federal judge yesterday issued an order restraining the further movement of people back to Haiti who are on the high seas or who are in Cuba at Guantanamo, and it would not surprise me that even as we proceed today through our hearing if other material developments occur. So what we talk about today is in the context of fast-breaking developments and of our trying in some respect to play a little bit of catchup.
It is interesting to note that this hearing today was set several weeks ago, and it is propitious that it occurs right in the middle of this maelstrom of activity, because I do think it gives us, all of us

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on the panel and our distinguished witnesses, an opportunity to frame the issue and the opportunity to put a context to it that I think is so very important. These issues involve human beings, and therefore they have special pertinence to all of us.
I realize that foreign policy is many-faceted and therefore composed of separate elements, and these elements have shadings, and they have texture, they have nuances, and it is hard to put an absolute yes or an absolute no to the issue.
I do think, though, that foreign policy, while it has to be applicable to a number of situations-it may need again to have that texture and that shading-ought to have underlying principles, immutable principles. Our foreign policy ought to be consistent, it ought to be fair-handed, it ought to be even-handed, it must be equitable, it must treat the people in a balanced and fair way.
Another element, another principle, I would say, is that of compassion. There has to be always concern for the human dimension. There has to be a humanity in this foreign policy. There must be a morality in the foreign policy.
Therefore, applying these few thoughts to the factors before us, and particularly the factor of the Haitian immigration, it seems to me that our policy at this point toward Haiti and Haitians is constructed on legal principles, statutory principles, treaties, precedence. These are, intended or not, cold, inflexible, hard-edged; they don't have that kind of compassion, that feeling that I think they must have.
I think our policy ought to be constructed not just along the lines of treaties and precedents and what-have-you but also with that humanitarian feeling, the principle of compassion, because people, human beings, are involved. I don't know that those are mutually exclusive. I don't think that they are somehow inconsistent one with the other. I think you can have a foreign policy based that way, and that is what I hope we can arrive at.
Now this is not the province of this subcommittee or this committee, it is a province, among others, of the gentleman from Florida Mr. Fascell's Foreign Affairs Committee, the gentleman from New York's Committee on Ways and Means, a number of committees. However, I think our committee has an opportunity to help in the unified effort to reach that goal of a fair, even-handed foreign policy that does take into consideration the human dimension.
Today, among many other things we will talk about is the temporary protected status, which the gentleman from Florida and I began working on many Congresses ago. In those days, it was called safe harbor; now it is called TPS. Should that be granted to the Haitians on the high seas, wherever they might be? It has been frequently granted and has been granted more recently to Liberians, Somali, Lebanese, and Kuwaits. We need to reexamine the whole policy of interdiction. That was a policy built along lines in the early 1980's with another government, and the Government has been long since deposed, and yet the policy continues. Should it be retained? Should it be abolished? Is it possible to modify that policy and make it applicable to what we have today?
The embargo and asset freeze is a unified policy, I think it is an OAS policy. Has it outlived its usefulness? I mean it clearly is con-

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tributing to the dimensions of the debacle in Haiti itself, the economic debacle. It obviously doesn't make it easier for people who live in Haiti who want to stay there. On the other hand, should we relieve it at this point? Is there a chance to modify it? Are there other types of sanctions that can show the depth of our disgust at a freely elected democratic government being overthrown but, at the same time, help the people without hurting them?
Is this an immigration emergency? Are we on the verge of it? We have at least three members from the State of Florida in our first panel today. Should this trigger the release of the money under the program the gentleman from Florida, Mr. Smith, among others, helped put together?
The gentleman from Florida, Mr. Fascell, has some very interesting statements this morning on the question: Are we prepared? Do we have a contingency plan? Is that a valid plan? Has it been tested? Is there any way to test it? Are we prepared to move in the event that there is something that would lead to a kind of repeat of 1980?
Many postulate the fact that under the 1966 Cuban Adjustment Act people coming from Cuba can be very quickly adjusted to the status of resident alien, but that is not possible for people from other lands. Should it be kept? Is there something specific about Cuba, specific about the 1966 act, or should it be somehow changed?
Having said that, I believe we have an opportunity, this subcommittee and the gentlemen before us and the people to follow, to make a contribution to the overall effort to try to find our way through it, and, again, these are very quick-paced times. What we say today may be considered outdated by this afternoon, but I think we ought to give it a try.
I would now yield to the gentleman from Florida.
Mr. MCCOLLUM. Thank you very much, Mr. Chairman.
We certainly did not anticipate when we began to set this hearing that it would be a focal point for the situation with regard to Haiti. It was rather, as I recall, out of the concerns that you and I shared with some of our colleagues over the whole question of what happens in the future on a contingency situation with respect to perhaps Cuba, maybe Haiti, or whatever, and the increased flow that we began to see coming by boat-but not in these sizable numbers-some time in the early part of this year and last year.
So times have overtaken us a little bit, and it is an even more timely hearing that we are having today, and I appreciate very much your holding it.
I would like to make an opening comment with respect to Haiti. I certainly think that the people of Haiti are suffering. There is no doubt in my mind. Economically, they have been disadvantaged for quite some time, regardless of the Government. There is also no question that all of us share a concern over the Government of Haiti presently and the fact that it is of the nature that it is and that the elected government was recently overthrown. What isn't so clear to us at this point-at least it isn't clear to this member-is the degree to which the people are being politically oppressed, even though there are human rights violations there. As we all know, the laws in this country with respect to asylum

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and refugee status are fairly well defined, and I think that they are good laws. I think that they do require the threat of persecution, political persecution or religious persecution, and they are not laws designed to give refuge to those who are economically deprived simply because that number in the world, unfortunately, is too large.
So as we look at this today, and as I listen to the testimony that comes before us, not only with respect to Haiti but with respect to the whole question of Florida and the issue of how we treat interdiction and so forth, I'm going to have to put on a double set of glasses. One, I certainly share the compassion and the concern for the people of Haiti, but I also share the concern that our laws be fairly and appropriately applied to protect America and its citizens.
One of the questions that has always been the case with regard to boat people coming, whether they are coming from Cuba or Haiti or wherever, to the shores of this country and particularly the State of Florida has been the question of their safety in the kind of vessels they choose to come in and what harm is likely to result if larger and larger numbers decide to come as a result of encouragement that we might give.
In addition to that, we have the very question as to whether we want to encourage this. Is there not a necessity that we have some deterrence lest we get another Cuban Mariel situation on our hands, be it from Haiti or be it from Cuba? and I don't think any of us want that. Some of us in Florida lived through that process and remember it very well. That is why we are holding this hearing today, to see if there were contingency plans and how far along they have developed to keep something like that from happening.
So while I may have compassion for the Haitian people and it may well be that there is a legitimate argument, as some have made, for temporary status in this country or safe harbor for those who are already here, I think it is a whole other story as to whether we set aside principles that have guided us for some time in this respect as far as interdiction is concerned and whether or not we, by doing so, would be encouraging thousands upon thousands of people to attempt to come to this country in vessels or by means which simply are unsafe for them and in a way which would flood and put a burden on the State of Florida and on this country, and we don't want to do that, I don't believe.
So I'm looking forward to hearing the various views that are presented today with regard to the particulars of the Haitian matter but also with regard to the whole big picture of our interdiction policy and of our contingency plans with regard to the questions that arose after the Mariel incident now almost a decade ago.
Thank you, Mr. Chairman.
Mr. MAZZOLI. The gentleman's comments were very well stated, and we are now pleased to be joined by our friend from California, if he has any opening statements.
Mr. BERMAN. No, Mr. Chairman, I don't have an opening statement as such. I just have two thoughts to share with the administration in hopes that they can explain to me the current policy, I guess temporarily restrained by court, but the current policy in light of the policy toward refugees from other countries, most noticeably Cuba-how they can justify the present policy with respect

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to Haiti, and what happened to the assurances that were given in briefings last week that no refugees from Haiti would ever be repatriated to that country.
There are, I think, serious questions about the morality uf our current policy that need to be explained, and I'm sure the members of this distinguished panel which is testifying first will have something to say about all this, but I guess I want to just put myself on their side of this issue in urging the administration to think again about the implications of its current policy.
Mr. MAZZOLI. I thank the gentleman very much, and now we are pleased to turn to our panel. We have a panel of remarkably talented people, and I think I would say that everybody is equal but I guess you have the primus inter pares, so we will start with the gentleman from Florida, Mr. Fascell, since he is the chairman and one of the senior Members of the House.
Dante, we welcome you, and we would be happy to have your statements. As I have told my friends, because of the length of the day and the fact that we are in session, I would respectfully suggest maybe statements within the 5 minutes, and then we could get on to questions or comments.
STATEMENT OF HON. DANTE B. FASCELL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Mr. FASCELL. Mr. Chairman, members of the committee, first let me express my appreciation for responding to the request that several of us made to you to have a hearing on this subject some time ago.
First of all, I have a prepared statement which I would like to submit for the record, and then let me proceed extemporaneously on some points.
Mr. MAZZOLI. Certainly. Without objection, it will be made part of the record.
Mr. FASCELL. I think the chairman and the ranking member have set the benchmarks for this hearing. As far as the long-term implications are concerned, those are matters for serious study when we have time, however, right now, we are confronted with an emergency, which needs to be addressed by this committee and by our Government and by other governments.
I think that the criterion which the chairman has laid down is a fair criterion. I don't know that I could add too much to it. I think we start out with the safety of the individuals and with their rights as human beings, consistent with our own value system and our own laws. Many of us have said that it was inhuman and unfair to keep these people on boats while we tried to make up our minds, although I believe the delay was in good conscience. The fact that there was a response beyond the United States is welcome. We should extend a great deal of thanks and credit to the UNHCR, the United Nations, the OAS, and other countries which have volunteered to at least look at this problem to see if the question of safe haven can't be a temporary respite while the-political situation in Haiti is being sorted out. I think that is commendable and that ultimately something may be done.

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Unfortunately, under the court order right now, there are still people on boats. That is not a good thing. Something needs to be done about that right now, and the answer is to get the people off the boats. Since repatriation is perceived as immoral, and racist and unfair, something else will have to be done either with safe havens in the United States or in other countries or with a combination of both, and it will have to be done immediately.
What do we do about other Haitians? Certainly, if we are going to be concerned and humane in our treatment, we can't send the wrong message. The people in Haiti are desperate. The political upheavals, and economic disasters which have characterized Haiti are not new. The disaster has been there for a long time.
I won't comment on whether or not Haiti, rightly or wrongly, has been the stepchild of this hemisphere, but the fact is that, despite the best efforts of many countries, the United States included, to do something about the political situation and economic development in Haiti, it has not worked. It is not surprising, therefore, that for many years the people of Haiti and other islands in the Caribbean have sought refuge in the United States, and other islands and other countries in order to change their position either for political reasons or economic reasons or for personal safety reasons. All of those considerations are valid and cannot be ignored.
If the situation is desperate-and it certainly is if you are black and living in Haiti in a situation where you are not sure whether the Tonton Macoutes still exist or not, or you are going to get shot, or you are going to get thrown in jail because you don't look right, and you are starving to death, and your family is starving to death, I can understand why you would do almost anything, whether to take a leaky boat or to swim on the back of a crocodile, to go some place else to get out of where you are. But that does not mean any one particular area can take all these people at this time.
We cannot ignore these are human factors which will impact on our policy. The first thing that needs to be done is to deal with the immediate problem of the people who are on the boats. Then let's get on to the next question where the United States needs the kind of help that is coming out of the United Nations, and the support of other countries and the OAS, in order to fashion a response that is going to deal with the inevitable outflow of people in the short run.
We also have other long-term problems which this committee needs to address. I have told this committee before that we cannot escape the problem of asylum. As you know, under the court order, the rights of individuals have to be respected, and once they reach the jurisdiction of the United States, whether it is on board a ship or on land or in the air or wherever it is, the laws of this country will apply. One of those is the law of asylum.
When people apply for asylum, you cannot put them in a camp some place. You are going to have the problem of whether or not they are walking the streets; you are going to have the problem of whether or not they are entitled to a green card; and you are going to have the problem of whether or not they are entitled to health facilities, food, and all of the other elements that make a decent life.

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If you put that all in one community you are not being fair to that community. That is another problem that has to be considered. It is easy to talk about safe haven in other countries; it is quite another thing for the UNHCR to have the persuasive capability to get those countries to cooperate. It is the same in the United States. It is one thing to say you will have a dispersal policy; it is another thing to have that policy implemented in a fair and proportionate manner.
Then, when you add the additional burden on local facilities which has to be borne by the local taxpayer, fairness goes out the window and you begin to lose compassion. What you are doing is impacting on all of the local facilities-schools, hospitals, et cetera-and right away people say, "Wait a minute, I'm a good guy, but this is as much as I can take; I can't take any more, somebody help."
This kind of situation is a practical one, it has nothing to do with racism-although unfortunately it may with some people since there is still some of that around. But the distribution of asylumseekers once they are in the United States is not easy, given the court decisions and current law. Asylum was conceived of as applying to individual cases. Nobody ever conceived of asylum as applying to 10,000 people at one time. Asylum should be quite different from refugee status.
As a result court action by people who are concerned asylumseekers go into the community. Once they go into the community, we have the same problem we name with respect to the Cuban Adjustment Act. But it is multiplied by millions of people. If you do let the doors down, you have to do it for everybody.
I don't envy this committee in trying to sort through the problems, but I do think that we have to look very carefully at how you deal with asylum cases in the long term.
Mr. Chairman, let me thank you and the committee once again, for tackling this difficult problem and helping us get past this emergency which is at hand right now.
In the long term, I would think that some kind of a multinational economical effort has to be undertaken-and it should start immediately-in Haiti to give the Haitian people hope so they don't jump in leaky boats and try to travel 800 miles in search of safety, food, and medical attention. Economic development is the only solution.
The embargo which is now in place to force a change on the elite and the rich in Haiti who supported the coup may work some day; but, in the meantime, the embargo is creating a disaster for poor people. It is undermining economic development. That needs to be changed. We need to turn the situation around in some way which is supportive of the principles of the democratic process.
[The prepared statement of Mr. Fascell follows:]

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8



November 20, 1991



STATEMENT BY CONGRESSMAN DANTE B. FASCELL (D-FLA) on

CUBAN AND HAITIAN IMMIGRATION

to the

SUBCOMMITTEE ON IMMIGRATION, REFUGEES AND INTERNATIONAL LAW OF THE HOUSE JUDICIARY COMMITTEE



Mr. Chairman and distinguished members of the Subcommittee, I wish to thank you for inviting me to testify today and to commend you for holding this hearing to examine a number of vital issues related to the entry into the United States of citizens of Haiti and Cuba. The flow from these two countries has had a major and disproportionate affect on the State of Florida -- both in the benefits that have accrued to the State through the thousands of new and highly productive citizens making contributions to their new communities in many walks of life and in the administrative, legal and financial problems which ensue whenever large of numbers of new arrivals need to be absorbed in a short period of time. And so, I am particularly pleased to join my colleagues from South Florida in outlining our perspective on this national question.



Haitian Immigration



Mr. Chairman, in July of this year, fully two months before the coup in Haiti, I joined my colleagues from South Florida, Bill Lehman and

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Larry Smith, in writing to you and to President Bush about the need for urgent attention to the issue of Cubans and Haitians entering the United States without documentation. With your permission, Mr. Chairman, I would like to include the full text of that letter in the record as part of my statement.



In our letter we urged a thorough review of United States policy as it applies to Haitians with a view toward once and for all eliminating-either legislatively or administratively--the perception of discrimination or unequal treatment. Unfortunately, the response we received from the President was a non-response and the perception of discrimination has continued to grow and has now been severely exacerbated in the tragic aftermath of the Haitian coup. I hope our deliberations today will be the beginning of a process whereby we can eliminate any vestiges of discrimination and unfair and unequal treatment in the spirit and practice of our immigration law and our law enforcement agencies.



Mr. Chairman, since our letter in July, the situation with regard to Haitians has deteriorated as a result of the tragic coup d'etat which has deprived the citizens of Haiti of their hard won constitutional democracy. The United States correctly has condemned the coup and called for the restoration of democracy; the United States has correctly ended all military and economic aid to Haiti; and the United States has correctly participated

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in an international embargo of trade and financial dealings with Haiti. While it is hoped that this international pressure will lead to the restoration of constitutional government and human rights in that hapless land, it will also inevitably have the unfortunate side effect of, perhaps even in the short term, the collapse of the Haitian economy which, in turn, will lead to food shortages and general instability which will increase pressure on desperately poor Haitians to seek to better their lives and those of their families by attempting to enter the United States illegally.



Since the United States and Haiti reached agreement in 1982 on the policy of interdiction, thousands of Haitians have been returned to Haiti after having been intercepted on the high seas. In recent years, these numbers have been falling; from 3,368 interceptions by the Coast Guard in 1989, to 1,131 in 1990. During the whole of 1991 before the coup, only 1,558 Haitians were intercepted by the Coast Guard. Since the coup, the numbers of desperate Haitians trying to escape Haiti has increased dramatically. In the past six weeks, I understand the Coast Guard has intercepted almost 2,000 Haitians. Of these, only a very few have been found legally qualified to enter the United States. Hundreds were forced to stay on board Coast Guard cutters. You will recall, Mr. Chairman, that last week I called on the Administration to act quickly to get these people off our Coast Guard cutters. No matter how well intentioned our Coast Guard, no matter how well

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intentioned the Immigration and Naturalization Service, and no matter how many amenities are provided to these poor people on board our ships, keeping them at sea constituted unfair and inhuman treatment.



I also believe that until the situation in Haiti is stabilized, the United States should not forcibly deport anyone to Haiti. On October 15, 1991, my colleagues and I from South Florida wrote acting Attorney General Barr urging him to grant Temporary Protective status (TPS) to Haitians already in the United States and facing deportation. Although I understand there have been no deportations since the coup, we have not received an answer to our letter and TPS has not been formally granted to Haitians, as it was to Salvadorans, Kuwaitis, Somalis and others. Mr. Chairman, to deny Haitians TPS under the current circumstances would appear to me to be unfair. I call again on the Administration to grant TPS immediately to those Haitians who are already in the United States and who may be facing deportation.



Mr. Chairman, in my view, all this adds up to the appearance of discrimination in the way federal authorities are applying the law. While I certainly understand the legal basis for their actions, the present situation is simply not fair and does not take account of the situation in Haiti and the special compassion we should have for Haitians under the current circumstances. Change is urgently needed.

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Of course, Mr. Chairman, the larger problem -- and it has clearly reached the proportions of a crisis -- is what to do with the thousands who are fleeing Haiti today and will continue to do so until the situation in Haiti is stabilized. This situation must be resolved now. Those fleeing cannot be kept on boats, they cannot be kept at the Guantanamo Naval Base and they cannot all be brought to the United States. Mr. Chairman, in my statement last week I called on the Organization of American States to assume its responsibilities for the human dimensions of the present crisis. The international effort to bring about the restoration of democracy in Haiti is an OAS effort; the embargo which is bringing untold hardship to Haitians in the ultimate aim, perhaps vain, of securing their democratic and human rights is an OAS effort. The solution to the plight of those fleeing Haiti must also be an OAS effort.



Mr. Chairman, I applaud the efforts of the State Department and the United Nations High Commissioner for Refugees to find safe havens for displaced Haitians in OAS member countries. This effort needs to be pursued vigorously; nations of the hemisphere must assume their responsibilities. And, the United States too must play its part by taking its fair share of these people and paying a fair share of the costs of safe haven and potential resettlement in third countries.


Only as a last resort should we resort to returning Haitians

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to their home county. But we must insist that anyone returned to Haiti be turned over to a reputable organization, like the Red Cross, which is willing and has the capacity to monitor that individual's return to Haitian society. It would be intolerable, Mr. Chairman, should any one returned to Haiti face persecution by the Haitian authorities simply because he or she attempted to flee the country. And, I believe, the OAS has an important role to play here as well, in insuring that Haitians who are returned can live in safety and without fear of persecution. As I have said before, if this requires a more active multinational presence, under the aegis of the OAS, on the ground in Haiti, then we must consider it.



Temporary Protective Status, safe havens, even repatriation are all temporary measures. The ultimate solution must be the reestablishment of conditions in Haiti which make it possible for the Haitian people to lead economically and politically viable lives in the country of their birth. While I know the embargo is designed to bring about this situation and I have supported it, I must also say it is adding to the hardship which forces people to leave. I am coming to the conclusion, Mr. Chairman, that we cannot wait forever for the embargo to work. Other options may have to be considered lest the human toll increase beyond the capacity of all of us in the OAS to bear.

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Cuban Immigration



Mr. Chairman, the problem we are encountering with undocumented

immigration from Cuba is of a different order. There, the question is are we ready for the massive numbers of Cubans who will want to come to the United States once the Castro regime releases its stranglehold on the Cuban people? I, for one, believe that day is coming sooner rather than later and that the totalitarian Castro regime will not escape the winds of change which have swept so many Communist dictatorships from power. No manner of sham and shallow reforms as we were treated to at Cuba's Fourth Communist Party Congress will succeed in postponing this long awaited day. But, Mr. Chairman, I ask again, "Are we ready?" From what I know of planning by the federal authorities, I am very much afraid the answer to my question is in the negative.



Already this year, the number of Cubans attempting to reach the United States using the most flimsy craft -- even inner tubes -- has grown almost five times over last year's rates.



On October 24, 1991, I joined a number of my colleagues in Florida in raising our concerns with the Administration. The Coast Guard has developed a contingency plan intended to prevent another chaotic mass

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movement of people like we saw in the Mariel Boat lift in 1980. However, I doubt very much the Coast Guard, despite its fine and well deserved reputation, has the resources to prevent a flotilla of ships from leaving Florida to go to Cuba to pick up relatives, friends and even paying passengers as soon as the floodgates are opened. And what plans are there to deal with undesirable aliens who may, as in Mariel, mix in with others? What are the plans to deal with the possible outbreak of violence and disorder and violations of United States laws? We have no answers to these vital questions; our letter remains unanswered. Mr. Chairman, answers to these questions are urgently needed if we are to have the time to revamp contingency plans to make them more realistic and more likely to succeed.








Mr. Chairman, we cannot condone illegal immigration to the United States, but neither can we ignore the suffering of the Haitian people nor should we abandon our firmly held beliefs of non-discrimination and equal treatment in the application of our laws. I call on the Administration to accord Haitians already in the United States the temporary protective status we have accorded to so many other nationalities whose countries have been undergoing instability and revolution and to insure that Haitians, like all other nationalities are treated fairly. I call on the Administration, the OAS and the UNHCR to redouble efforts to secure safe havens for Haitians

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fleeing their country. And, I call on the Administration to review its overall approach to the restoration of democracy in Haiti and to consider what additional measures may be necessary to bring this crisis, with its growing human cost, to as early a solution as possible. I also call on the Administration to review its contingency planning with regard to the inevitable dramatic increase in immigration from Cuba which will result from the end of the Castro regime. We need a rational plan, which draws on the considerable experience and expertise of the Cuban American community in South Florida.



Finally, Mr. Chairman, there is the vital subject of responsibility for taking care of the needs of these new arrivals once they reach the United States. Under the Constitution, immigration is a federal responsibility. But, this is a responsibility that the federal government is not meeting fully.



Dade County, Florida, has for many years had a history of accepting wave after wave of aliens seeking entry to the United States. Many of these individuals have gone on to very successful careers in business, the professions, and the arts. They have made significant contributions to making Dade County the multicultural and dynamic area that it is. But there is always a transition period when new arrivals are a burden on the local government. The last time this occurred was after the Mariel boat lift when

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thousands of Cubans, many destitute, had to be absorbed by the health, welfare and education systems of Dade County. Dade and the State of Florida have done an excellent job, but the strain on their ability to pay has reached the breaking point. Large numbers of Haitians or Cubans could cause a collapse of Dade's ability to cope.

The federal government has provided some funds to help Dade and other heavily affected counties and cities in the United States. The burden on South Florida is the result of federal policy and is a national responsibility. Too much of the burden has been left to the local taxpayers of Dade County and Florida. Initial resettlement costs, education of newly arrived children who do not speak English, health care for the often malnourished, and other social needs will all require substantial federal funds. Mr. Chairman, as part of your review of our policy toward Cuba and Haiti, it will be imperative to address the question of funding and to insist that the federal government pay its fair share.



Just as we must be fair in the application of our laws to those seeking a new life in the United States, we in Washington must be fair to those areas which bear the initial burdens of incorporating these new arrivals into our country.



Once again, Mr. Chairman and members of the Subcommittee, I want to thank you for inviting me here today and to commend you for your initiative in addressing these important issues.

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Congress of the Minite (tates

douse of Representatites

Mastington, iBC 20515



July 18, 1991




The Honorable George Bush
President
The White House
Washington, D.C. 20500


Dear Mr. President:

As Members of Congress from South Florida we have been concerned for some time by the disparate treatment that is afforded different nationalities seeking to enter the United States.

We all agree that every possible effort must be made to maintain control of our borders and to uphold a normal immigration policy whereby those seeking to emigrate must apply for the appropriate visa and be considered for entry on a case-by-case basis. The cornerstone of our immigration policy has always been family reunification, refuge from persecution and equitable consideration of those seeking a better life in this country.

With increasing numbers seeking to enter the country illegally, however, it has become even more apparent that not all are being treated equally. While the policy has existed for some time, it was brought forcefully home when a boatload of Haitians and two Cubans was interdicted by the Coast Guard. The Cubans were taken to the United States and the Haitians, with the exception of six requiring medical attention, were forced to return to their country. Furthermore, when Haitians do manage to reach this country they are detained for far longer periods than any other nationality before a determination is made on their legal status. This kind of disparity is outrageous and destructive to our South Florida community.

We understand the legal basis for this action. However, we believe the time has come for a thorough review of this policy with a view toward once and for all eliminating even the perception of discrimination or unequal treatment. The present situation is simply not fair and cannot be allowed to continue.

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The President July 17, 1991 Page 2




We urge you to give this matter your urgent and full consideration.

Sincerely,


DANTE B. FASCELL


' WILLIAM LEHMAN


cc: The Attorney General
Commissioner of Immigration and Naturalization

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Mr. MAZZOLI. The gentleman's time has expired. I appreciate it very much.
The gentleman has really focused our attention on what perhaps could be considered the case of a person in trauma. First you have the EMS who provide oxygen and medical assistance of an emergency nature, until they can go to the hospital when the surgeons and the internists take over. I think here, as the gentleman points out, we have really a two-tier problem. One is to deliver emergency first aid and then later go to the long-term care.
We now welcome our friend and colleague from New York, Charlie Rangel, my congressional classmate.
Welcome, Charlie.
STATEMENT OF HON. CHARLES B. RANGEL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK
Mr. RANGEL. Thank you, Mr. Chairman, and thank you for the sensitive leadership that you have provided for this emergency that we face as a nation, and I am so pleased to follow the chairman of Foreign Affairs, because he has now given a backdrop, he has explained the broader problem that we as a nation have to face, and I was even moved by his testimony, because there is not an American here, except a Native American, that doesn't have some story of how their people were seeking a better way of life, how America was that beacon, and who doesn't choke up when they see that Statue of Liberty, because they know that, no matter how poor they may be, or whatever they lack, that they have more than somebody else. That compassion has really made us a great nation and a great republic.
The chairman has pointed out, there reaches a point that you have to establish a balance. You have to make certain that you don't depreciate the qualify of life for all because you are allowing your compassion to open up the doors when you don't have the economic and political ability to have these people assimilate into society.
So these are complex problems, and I hope that I will be able to make some contribution at this point. I would like to introduce my full statement in the record.
Mr. MAZZOLI. Without objection, it is so ordered.
Mr. RANGEL. Because it deals with some legislation that I would like to work with you on. It deals with problems of expertise that we need all the committees to work with.
But right now, I would like to join with Dante Fascell and say we are now talking about an emergency. We are not talking about existing law, and I challenge anyone to talk about existing policy, because what we are talking about are lives that are now bobbing up on the sea on U.S. Coast Guard vessels and, I would like to add, manned by dedicated Coast Guard people who have always followed the direction that has been given to them. In this case, if this committee hearing does nothing else at all, we will find out perhaps whose policy this is. I have been on the phone with the administration for an entire week, and everyone believes that this is not the answer, but nobody has said yet who has said that these Haitians should be returned to Haiti, should be

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returned. And how are they being returned? To ruthless, criminal, out-of-control military people that the President has condemned, the Congress has condemned, the United Nations has condemned, the Organization of American States has condemned, and yet the United States of America, with these 2,000 lives in our hands, on our ships, are prepared to deliver them to a handful of Red Cross agents and cut out of town as we drop them on shore.
Is this America? Is this the country that is going to say that if any of these people die on the ship, if they are killed, as these military people have sought out the supporters of Aristide and shot them, and killed them, and they know it-are we going to hear now that these poor, illiterate people that are escaping at the risk of their lives on a cutter-many of them ill, some are pregnantare now going to have to explain to some bureaucrat that they fall within the four corners of some law that someone is going to ask them?
Are we going to ask them whether they were shot at by an economic bullet? Was it a political bullet? And suppose the whole crisis somehow, a philosopher could say, is based on economic conditions. Are we now going to say, well, that justifies us to turn them over to potential killers? And these are not my words, these are the bums that we are dealing with, and, I might hurriedly add, these are the bums that we have armed, and these are the bums that we have trained, and these are the bums that we have supported over the years even when it was a dictatorship.
I'm suggesting to you, let's try to find out what the law should be. Let's try to reform where we can. Let's deal with what Mr. Smith, Mr. Fascell, and others want to do in the long run, but let's not have the blood on our hands during this time of the year to say that we have turned them away from our shores.
The President of the United States reached the height of his popularity in the United States and the world when Saddam Hussein viciously and ruthlessly crossed the borders in Kuwait. Did he say, "Send in the Marines,' that some of us would have resented? No. He went to heads of nations, he picked up the phone, used the moral and political power that we as a people invested in him, and said, "You have to be partners in this international crisis."
Has the President picked up the phone for these poor folks that have no oil and asked other nations that they have a responsibility? You bet these poor Caribbean nations should provide at least the moral leadership in saying what should be done there. You bet the OAS should be opening up its doors, and so should Europe. So should France. Talk about a thousand points of light. Where are the churches that allowed me to be angry with all of the innkeepers because of the way they treated Mary and Joseph? Are they to be heard as they confer, as they have conferences, to say that we are asking everyone to share?
Don't tell me there is not enough compassion in this great country of ours to absorb 1,600/2,000 people, and don't tell me that there are enough rickety boats or resources left for someone else to take a gamble that they may be picked up by the Coast Guard cutters.
But I am saying that if Europe and Japan and the rest of Asia all come and say this is not a question of the poor and the rich,

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this is not a question of the black and the white, this is a question where a ruthless, unauthorized, illegal, military has overthrown a legitimate democracy, and those of us who appreciate the fact that we need democratic leaders supported should be the first ones to say that those who are really being killed-and this is not the first time the military has done it-because they participated in a democratic process, that we should find some place in our hearts to say that, "We are not going to return you to Haiti."
If you want to debate how you share this responsibility, count me in. If the President of the United States wants to tell me what Japan has said, what France has said, what England has said, what Germany has said, what the Caribbean Basin Initiative countries who enjoy tax incentives have said, then we have to talk about it. But I'm here to say that the reasons that I introduced the bill, the reasons that you are having the hearings, are moot. This is an emergency, and we should say what the judge has said any place but Haiti.
I hope that you can find some compassion in your hearts to be able to go back to your constituents and say that this was not a political issue, it was not a legal issue, it was an issue of compassion, and even David Duke-even David Duke-has proclaimed this to be a Christian nation. We are on the eve of Christmas. I might add that I don't think that David Duke believes that any Jews or blacks should be in the manger, but he has a different idea of what Christ is all about.
But it would seem to me that, as a Christian nation, we could say that this is our gift to these people on the sea, and we are not opening up our doors to everybody, but we are asking everyone to share in the burden that these people have. Thank you, Mr. Chairman.
Mr. MAZZOLI. Thank you very much, Charlie. That was a beautiful statement.
[The prepared statement of Mr. Rangel follows:]

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Statement
by
Hon. Charles B. Rangel


Subcommittee on Immigration,
Refugees, and International Law

November 20, 1991


It was just a few months ago that President Bush was pleading to the world to come to the rescue of the people of Kuwait. This oil-rich nation in the Middle East suddenly had come under siege from its neighbor, Iraq, and our country, being the leader of the free world and carriers of the torch of democracy and human rights across the globe, vowed not to stand by idly. In a speech to the United Nations, the President used every ounce of influence and persuasion to impart to world leaders the importance of restoring democracy to the war-torn country, and of returning Kuwait to its people. It was, some had hoped, a new era in U.S. world leadership on freedom,
democracy and the preservation of human rights.

In the end, we saw the rapid formation of a multinational armed force that drew a line in the sand, then blasted Saddam Hussein and the evil vestiges of illegal occupation and dictatorship when he crossed it.

For two days this week hundreds of poor, homeless, refugees from Haiti were being unloaded off U.S. Coast Guard cutters in a repatriation to Haiti. They were being returned, battered and bruised, to the site of the military coup and subsequent violence and terror from which they had fled.

Despite the fact that these people, like the Kuwaitis, are literally fighting for their lives and fleeing wanton violence, they were being told, in effect, "you do not qualify." If this is the New World Order, I do not want any part of it. Our policy toward the Haitian refugee situation is abominable and deserves to be reversed.

I am grateful that as I sit here today, a Federal judge's order has put a temporary halt to this disgraceful exercise, and those Haitians who twenty-four hours ago were bound to be returned by our Coast

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Guard to the quagmire in Haiti have been granted a reprieve. But the order is only temporary and we may soon return to the disgraceful policy that required it.

Actually it would be inaccurate to say that we even have a policy on Haitian refugees, as no one in the White House or the State Department, where I have called continuously in recent days, seems to be willing to own up to that cruel action.

Our response to the dramatic attempts by some Haitians to escape persecution in their homeland is tantamount to having fire and police personnel in our cities decide, case by case, which calls they will answer and which ones they will ignore.

We are being told by officials in both the White House and the State Department that the distinction between the Haitians and others who have successfully sought political asylum in the United States is that these Haitian refugees fall into the category of economic, rather than political, victimization.

It seems to me that the two in this case are inextricable linked. In Haiti, there is no separating the economics from politics. Certainly the OAS embargo is an economic measure that is meant to have a political effect of forcing out the renegade government and allowing the return of the legitimate government of President Aristide. In the final analysis, the refugees themselves do not stop to ask whether the bullets they are fleeing are economic or political.

We have acted most insensitively toward the Haitian refugees. How would we respond, I ask, if the people knocking on the doors of our shores were from Europe, or a wealthy nation or communist dictatorship. How would we respond if another group of people from a Middle Eastern oil kingdom suddenly were invaded or even faced the threat of an invasion? Would we waste time in deciding whether to come to their defense? I doubt that we would as we have with these Haitian refugees. In my view, our policy toward these Haitian refugees has been not only vicious but racist.

With this policy, our nation is failing a basic political and moral test. We have claimed that we are bound to adhere to a treaty agreement with the government of Haiti, signed during the corrupt Duvalier government. That is a tacit acknowledgement of the current renegade government, which President Bush himself has condemned

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as illegitimate. Such a stance is not only politically bankrupt, but hypocritical.

Likewise is our posture in asking the nation's of the Caribbean to shoulder the burden of accepting for safe haven all of the refugees whom we have not condemned to return to the firestorm in Haiti. I have asked the ambassadors of these nations to share the burden, but not to suffer it all themselves. No nation in the Caribbean has the economic resources to do that, and how can we ask them to when we have not suggested the same to the economic powerhouses of Europe and Asia, and worse, refused to accept any of the responsibility ourselves.

This is not the type of international leadership that the President Bush demonstrated so well in selling the Persian Gulf War to the American people and the rest of the world. It is that kind of leadership that is needed in this case, where the President picks up the phone and asks his fellow presidents for their support.

Some are saying that to accept into this country the 3,000 Haitian refugees currently adrift would invite a flood of others. At this point, that is speculation, but what is certain is that during the Persian Gulf crisis, we demonstrated no similar meanness of spirit by rejecting desperate people who were in need of our help.

If we can spend $65 billion to free Kuwait, offer up a $1 billion aid package to feed the people of our former enemies in the Soviet Union, why can we not open our hearts and share the burden of the Haitian refugees. During the civil war in Nicaragua, we financed the Contras and accepted thousands of them onto our shores. We have accepted into our country, rightly, 20,000 Soviet Jews within the last year. Why can we not assist these, the most desperate people in our hemisphere?

Mr. Chairman, why can we not demonstrate the same humanity and compassion in this case that we have proved so often in the past to be a hallmark of the American spirit?

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Mr. MAZZOLI. The gentleman from Florida, Mr. Lehman.
STATEMENT OF HON. WILLIAM LEHMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Mr. LEHMAN. I want to congratulate Mr. Rangel and Mr. Fascell for their eloquent statements, and I want to associate myself with them. Mr. Chairman, I don't envy you your job or the job of your subcommittee, but you are doing great, and I appreciate all you do.
I have left a longer statement with you for the record, and I have a short statement to read, but before I read my short statement I would just like to let you know what is happening in south Florida as it relates to all this.
On TV from time to time, they will show the Cubans picked up at sea and welcomed with open arms, and right after that come the Haitian pictures, being repatriated back to Haiti. Now what does that do to our society in south Florida? We have enough tension already. All it does is create tension we are having a hard time dealing with, and certainly the Haitian community and those that care about them have a hard time dealing with it. We are just exacerbating the tensions throughout south Florida and eventually throughout this country by having these kinds of scenes pictured over and over again on our television at night.
Mr. Chairman, as I said, I would like to thank you for taking the initiative in seeking just treatment for Haitians who are fleeing the terrible political and economic conditions in Haiti. As you know, for a number of years Haitian refugees have suffered in comparison to others that have come to the United States seeking freedom.
In 1980, with the passage of the Refugee Act, I had hoped that equal treatment of Haitian claims to asylum would be the result, but unfortunately discrepancies continue to exist. Cubans, Nicaraguans, and others do receive more generous treatment. Incidents such as Mariel and Brownsville, TX, demonstrated that the orderly process envisioned by the Refugee Act was just not a reality.
Today there are new circumstances in Haiti which lend even greater credence to Haitian asylum claims. A democratically elected government has been overthrown, and it was overthrown while President Bush was in Miami talking about the capital gains tax, and he never mentioned anything about what was happening in Haiti. An illegal government is actively engaged in repression and terror.
I do support Congressman Rangel's bill calling for temporary protected status for those Haitians already in the United States and permitting those whom we save at sea to come to a safe haven, and this save haven should have underlying Federal responsibility both abroad and in this country, especially in south Florida.
I understand the administration's fear of a magnet effect, and I certainly do not want to see an exodus on the scale of Mariel. We cannot, however, ignore the horrendous situation in Haiti and turn our backs on those who, at great personal risk, seek freedom.
My understanding was, actually, that the administration was trying to arrange for a regional approach to safe haven even for those Haitians who had not yet been picked up at sea. Apparently,

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the administration's agreement with Venezuela, Belize, Honduras, and Trinidad-Tobago is limited to providing refuge for only the 550 Haitians who were at sea last week but not the 1,000 or more who have been picked up since then; they are in never-never land. These countries should be urged to continue their role so that we have an emergency process worked out until a legitimate government is restored.
The restoration of the Aristide government would resolve the immediate problem we face, but questions that have arisen over the years concerning the treatment of Haitian asylum-seekers will not go away. It is important to address the issues of interdiction, detention, and the adequacy of asylum interviews.
It is my hope that the subcommittee will deal with these issues during the reauthorization of the Refugee Act, and I am sure my other south Florida colleagues and I would like to invite the chairman and members of the subcommittee to visit Dade County and see first hand some of the human consequences of our current law, to visit our schools, visit our hospitals, and see what the impact is now of the Federal policy. Come on down. We'll go fishing, too.
The administration, however, must bear a large share of the blame for the spectacle of the Coast Guard cutters filled with Haitians stranded on the high seas with nowhere to go. At the time of the Aristide overthrow, the likelihood of Haitians feeling the island should have been obvious. The administration should not have waited for the Coast Guard to intercept Haitians at sea before they decided what the hell to do with them. This was unfair to the Coast Guard and their drug interdiction program and certainly grossly unfair to the Haitians themselves.
The problem was compounded last weekend by an outrageous decision made at the highest levels. It had appeared to the Congress last week-at least I understood-until the restoration of President Aristide and of legal authority in Haiti, that the administration would agree to provide temporary safe haven for all the Haitians intercepted at sea. But, instead, the White House has directed the Coast Guard to return interdicted refugees, as the policy had been before the coup.
Can the administration honestly certify that Haiti is now a stable and a safe place for these fleeing people? I certainly doubt it. The administration is making a mistake by returning Haitians to a country upon which we have imposed an embargo, a country that is under a military coup which rules by the gun and not by law. The administration is not in a position to monitor what happens to them after they return, and nobody knows what happens to them at this point. It is unconscionable for the United States to turn away these boat people under these unstable political circumstances.
The United States' tradition has always been to welcome refugees when their countries have been unable to vouchsafe their human and civil rights, yet the Haitians have always been given the short end of the stick. We need to remove the taint of discrimination in dealing with Haitians versus the Cubans, Afghans, and all other groups.
Mr. Chairman, I again thank you for focusing attention on this very serious matter, and I and certainly my colleagues from south

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Florida look forward to working with you in seeking fair and equitable solutions to this and other Federal Government related dilemmas.
Mr. MAZZOLI. I thank the gentleman from Florida. We have talked many times about the issue, and he has been indefatigable in pursuing any solution to these problems, and we appreciate that.
[The prepared statement of Mr. Lehman follows:]

1
STATEMENT OF THE HONORABLE WILLIAM LEHMAN
SUBCOMMITTEE ON INTERNATIONAL LAW, IMMIGRATION, AND REFUGEES
NOVEMBER 20, 1991



Mr. Chairman, I would first like to thank you for taking the initiative in seeking just treatment for the Haitians who are fleeing the terrible political and economic conditions in Haiti. As you know, for a number of years Haitian refugees have suffered in comparison to other ethnic groups that have come to the U.S. seeking freedom. In 1980, with the passage of the Refugee Act, I had hoped that equitable treatment of Haitian claims to asylum would be the result, but discrepancies continued to exist. Cubans, Nicaraguans, and others received far more generous treatment. Incidents such as Mariel and Brownsville demonstrated that the orderly process envisioned by the Refugee Act was just not a reality.



Today there are new circumstances in Haiti which lend even greater credence to Haitian asylum claims, whatever one may have thought in the past. A democratically-elected government has been overthrown. An illegal government is in power and is actively engaged in repression and terror. Our response should be one of compassion and justice.

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I support Congressman Rangel's bill calling for temporary protected status for those Haitians already in the United States and permitting those whom we save at sea to come to a safe haven. I understand the Administration's fear of a magnet effect, and I certainly do not want to see an exodus on the scale of Mariel. We cannot, however, ignore the horrendous situation in Haiti and turn our backs on those who at great personal risk seek freedom.



We need good intelligence so we can better predict what kind of outflow to expect. With the current embargo in place, economic conditions in Haiti will definitely deteriorate. It is of course my hope that the embargo will result in the demise of the illegal government and the restoration of democracy. In the meantime, the number of people trying to leave Haiti has been increasing, although the means of leaving is likely to be limited by the lack of fuel. Nevertheless, greater desperation may result in Haitians attempting to take even more unseaworthy vessels.



Once we are committed to providing a safe haven for the refugees, we need to share the burden. I have no problem with sending Haitians to third countries as long as we do not end up with permanent refugee camps such as we


51-225 0 92 2

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3
have seen in Southeast Asia. Burden-sharing within the United States should exist as well, with other states besides Florida lending a hand.



It was my understanding that the Administration was trying to arrange for a regional approach to safe haven for even those Haitians who had not yet been picked up at sea. Apparently, the Administrations agreement with Venezuela, Belize, Honduras and Trinidad-Tobago is limited to providing refuge for only the 550 Haitians who were at sea last week, but not the 1,000 or more who have been picked up since. Those countries should be urged to continue their role so that we have an emergency process worked out until a legitimate government is restored. The restoration of the Aristide government would resolve the immediate problem we face, but questions that have arisen over the years concerning the treatment of Haitian asylum seekers will not go away. It is important to address the issues of interdiction, detention and the adequacy of asylum interviews. It is my hope that the subcommittee will deal with these issues during the reauthorization of the Refugee Act, and I would invite the chairman and members of the subcommittee to visit Dade County and see first hand some of the human consequences of our current law.

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I would also like to salute the Coast Guard for carrying out the difficult tasks placed upon it. The Coast Guard's role in immigration enforcement has been to follow the policy directives set by other agencies. It has tried to carry out its role in a professional and humane manner. I know that during the recent crisis the Coast Guard was very vocal in pressing for a resolution to the problem of where to bring the refugees.



The administration, however, must bear a large share of the blame for the spectacle of Coast Guard cutters filled with Haitians stranded on the high seas for days with nowhere to go. At the time of the Aristide overthrow, the likelihood of Haitians fleeing the island should have been obvious. The administration should not have waited for the Coast Guard to intercept Haitians at sea before deciding what to do with them. This was unfair to the Coast Guard and grossly unfair to the Haitians themselves.



The problem was compounded just this last weekend by an outrageous decision made at the highest levels. It had appeared to the Congress last week that, until the restoration of President Aristide and of legal authority in the country, the Administration would agree to help provide temporary safe haven

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5
to Haitians intercepted at sea. Instead, the White House has directed the Coast Guard to return interdicted refugees, as the policy had been before the coup. Can the Administration honestly certify that Haiti is now stable and a safe place for these fleeing people? I doubt it. The Adminstration is making a mistake by returning Haitians to a country upon which we have imposed an embargo, a country that is under a military coup which rules by the gun, not by the law. The Administration is not in a position to monitor what happens to returnees. It is unconscionable for the U.S. to turn away these boat people under these unstable political circumstances.



The U.S.'s tradition has been to welcome refugees from around the world when their countries have been unable to vouchsafe their human and civil rights, yet the Haitians have somehow always been given short shrift. We need to remove the taint of discrimination in dealing with the Haitians versus the Cubans, the Afghans, and all others who have sought safe haven in desperate times.



Mr. Chairman, I thank you again for focusing attention on this very serious problem, and I look forward to working with you in seeking fair and equitable solutions to this and other refugee-related dilemmas.

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Mr. MAZZOLI. The gentleman from Florida, Mr. Smith.
STATEMENT OF HON. LAWRENCE J. SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA
Mr. SMITH. Thank you, Mr. Chairman. I certainly appreciate your having scheduled this hearing and having been so sympathetic to the problems of the refugees in general and the problems of Florida specifically with reference to that situation.
I seem to be spending nearly as much time on this side of the dais as I did when I was in my first years in the House with you up there on the committee.
Mr. MAZZOLI. I remember that very well. The gentleman was a very valuable member of the subcommittee, and I enjoyed working with him.
Mr. SMITH. I appreciate that.
In addition to what Mr. Rangel said, I just want to make one further statement. Whether or not Mr. Duke wants blacks and Jews in the manger, he can never avoid the reality that it was all Jews in the manger to begin with, and at least Balthazar, if not others of the wise men, was black.
I need not tell you, of course, how this situation that currently exists dismays the people of south Florida. But, in any event, since the hearing is on a broader basis, let me first address the interdiction of Haitians seeking to enter this country and the current problem.
I repeatedly have stated, Mr. Chairman, that we need a program that is both fair and humane and that can be supported by the American people. I joined a number of my colleagues in sending to the White House a letter asking for temporary protected status for the Haitians a number of weeks ago. To date, we have received no response at all-not any.
Mr. Chairman, the issue before us is a humanitarian one. I want to repeat, humanitarian, not political, not even legal, not in the short term. Too many people remember what occurred more than 50 years ago when this country refused to allow Jewish refugees from Nazi Germany to disembark in the United States. We cannot repeat this sorry episode in our history with the Haitians.
South Floridians and the entire Florida delegation, in fact, are well acquainted with the tiny Caribbean nation of Haiti and its wonderful people. For those among us who have not had the pleasure to be associated with these people, let me say a few words. The people of Haiti are generally forthright, sincere, and hard working. They are also star-crossed. Unfortunately, this has been the case for Haitians for the entire history of their beleaguered republic, the second oldest republic in this hemisphere.
The citizens of Haiti have experienced democracy for only 7 months in their almost 200-year history. Their first and rightful democratic leader is Jean-Bertrand Aristide, a man who, unlike perhaps any other world leader today, truly personifies the hopes and aspirations of his people. A full 67 percent of the Haitian people freely and fairly elected Mr. Aristide to office last December in elections we demanded, in elections that we helped supervise, and elections that we certified. They expressed their hope in him.

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Not only would he end Haiti's sad distinction of being this hemisphere's poorest country, but he would also put an end to the Statesanctioned political persecution that has historically wracked Haiti. Anyone opposing the entrenched forces of oppression in Haiti was sure to come under attack. Mr. Aristide bravely took these forces on and nearly paid for it with his life. And I want to join Mr. Lehman, quite honestly, in telling you how dismayed I was that, on the very day that this President of Haiti, democratically elected, was being marched out of the presidential palace at the front end of the muzzle of a loaded gun, the President of the United States, in Miami, the closest spot of the United States practically to Haiti, didn't even say a word about that coup actually taking place.
In the hope that his struggle was not in vain, we have all now joined an international effort by the OAS to rightfully restore the legitimate government of Haiti. But I submit to you all that our responsibility does not stop short of humanitarian considerations. Frankly, it is that which should control our policy right now. We also should do what we can to help the people of Haiti who are fleeing political persecution in Haiti.
The provisional government acknowledges 300 dead. Other observers claim that as many as 1,000 have died. According to Amnesty International, a group of uniformed military men seeking revenge for the death of a soldier, entered the homes of 30 to 40 residents in Lamentin 54, a suburb of Port-au-Prince, and gunned them down at close range. The soldiers then forced other residents to dig mass graves and bury them. If these instances do not constitute ruthless terror and political persecution, then I don't know what that word means.
We should remember that President Aristide has been the most effective problem solver for our immigration problem with respect to Haiti. How? He simply earned the trust and love of his people. However bad things were economically during his 7-month tenure, the Haitian people did not wish to and did not leave their country. More accurately, they didn't feel compelled to escape. They had been poor, but Aristide made them feel safe, and he made them proud to be Haitians.
Along with freezing Haitian assets here and declaring a commercial embargo on Haiti, we should be likewise committed at a humanitarian level to temporarily providing a safe haven for those Haitians who seek it. Mr. Chairman, the President should declare an immigration emergency so that the $35 million immigration emergency fund authorized by section 113 of the Immigration Reform and Control Act of 1986 may be used to finance the transport and stay of these currently cutter-housed desperate refugees. That was one of the uses envisioned by me and by you when I introduced this legislation which this committee and Congress approved.
Let us immediately get away from a policy of adhering to an interdiction agreement that we made 10 years ago with the brutal Duvalier regime who has now been deposed and is currently living in exile, in luxury, I might add, in the south of France. We should allow the Haitians in and give them a safe haven in a nonprisontype facility, such as Homestead Air Force Base or other military

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facilities, returning them to Haiti when it is safe and the situation has stabilized. The temporary nature of it would be, hopefully, fully explained and, I believe, fully sanctioned by the American people.
The way to do this is to have a policy which everyone can join in and live with. These Haitians didn't come here when Aristide was the President; they obviously don't want to leave Haiti. This means that they obviously would want to go back when the time comes for them to be able to do so safely. Meanwhile, the United States should provide a place for them, a legitimately decent, safe place for them to be protected temporarily and to give them safe refuge. With the emergency immigration fund available-fully funded-obviously what would happen is that we would be able to have a funded policy, money already available, and a policy joined in by the vast majority of the people of the United States.
You have heard from our dear friend, the chairman of the Foreign Affairs Committee, about the long-term realities of what you are attempting to do. Having worked on this committee and this subcommittee for many years, obviously I am fully aware of that, and this hearing will eventually address those issues, but the issue that is currently at hand on such a desperate emergency basis needs to be addressed first.
I want to address also the preparedness, or lack thereof of our Government for another Mariel-type exodus of Cubans. As of November 12, the Coast Guard had intercepted 2,056 Cuban arrivals by boat or raft. Unfortunately, since the current mass immigration contingency plan is classified, I cannot get into specifics in open session, but I can tell you that the plan, classified or not, is unrealistic and probably ineffective. It fails to consider the facts that will surround an expected immigration emergency which might originate in Cuba, and it assumes factors that are really not that presumable. It is a "plan" without a recognizable director in Washington to whom State and local officials can direct their concerns. Neither FEMA, DOJ, nor the White House appears to be "in charge" of this contingency plan-somewhat similar to what Mr. Rangel has indicated is the status of who is in charge of the current plan dealing with the Haitians.
Coordination-so vital in Operation Desert Storm-appears to be nonexistent in the contingency plan. Indeed, I doubt anybody in Florida knows who or what would activate the plan. The plan all but ignores voluntary agencies and private groups, not to mention human nature. The plan assumes an unrealistically low number of new arrivals, thereby ignoring the extra personnel and logistics that would be needed to respond adequately to an influx.
The last version of the plan that I saw assumes no new additional Federal funding which would be required to manage an influx of new arrivals. Might I add at this juncture that Dade, Broward, and other counties, including the State of Florida, have expended over $400 million on regulations in the last 11 years and have yet to get reimbursement for the large bulk of that money. Anyone who lived through the events of 1980 in south Florida knows that the assumption of no additional money is absurd. We have incurred millions of dollars in unreimbursed expenses, as I indicated, and it is ludicrous to draft a plan that involves the use of

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thousands of Federal, State, and local government employees and that fails to fund their use.
Unfortunately, based on my reading, the contingency plan envisions that an immigration emergency would never occur. Why do I say that? The plan does not even mention the emergency fund authorized by section 113 of IRCA. Regretfully, I believe, the failure to utilize the emergency fund is deliberate. The administration never wanted this fund and has failed to provide guidelines to the States that would seek reimbursement of appropriate expenses.
Mr. Chairman, the people of south Florida know that another boat-lift could begin at any minute. Only the Bush administration seems oblivious to this fact, as evidenced by the insufficient immigration emergency contingency plan. I urge the administration, in the limited time that we may have left to us, to work with the State of Florida and all Floridians to develop a realistic and workable plan for dealing with the problem.
Let me just finally add something, as you mentioned the Cuban Adjustment Act of 1966. The Cuban Adjustment Act is the law The presumption of political asylee status is given to Cubans as they come here. The law is 25 years old. You can't even make a comparison between that and what is happening currently with the Haitians, and no one should try, I don't believe; it is not appropriate.
By the same token, what is appropriate is to deal with how this administration has dealt with, during its tenure, other crises of the same nature and type as the one we are now faced with, with the Haitians, and that would be to look only 2 years back at what happened with the Nicaraguans. They came from a country in economic turmoil and in political turmoil. They came through Mexico, arrived on the borders of Texas, and were led into the United States. They were given asylum applications; everybody filed, whether they could qualify or not, and then they were all allowed to bleed into the mainstream of this country. Most of them, frankly, wound up in south Florida. We are not complaining. We have made a home for them. They have been productive residents and may some day become citizens as their applications are reviewed, which is taking a very long time, I might add.
But, in any event, Mr. Chairman, one has to ask the question: Why it is that we could, as a nation, out of the four corners of the existing immigration law, allow the Nicaraguans in, with the turmoil in their own country exactly the same to a large degree as exists now in Haiti-random violence, a chaotic government, a despot at the till-and, at the same time refuse the Haitians and allow for this policy, which is bankrupt in its workings because it is basically generated from a 10-year-old treaty that it does dishonor for us as a nation to honor.
That is the question to ask: Can we find a way to accommodate the emergencies of people that find themselves in that emergency and yet, at the same time, as Mr. McCollum has indicated, protect the laws of the United States, show compassion, and, show that we care about all of the problems that are attendant on these refugee emergency situations?
I think we can. I think the answer is temporary safe haven, paid for by the Federal Government, with the understanding to those given the safe haven, who are asking for it, that then when the

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problem no longer exists in their own country, since they stayed there when there was no problem, they obviously want to be back again when there is no problem. I think that is at least the temporary solution for the Haitian problem.
Mr. MAZZOLI. Thank you. That is a very good statement.
[The prepared statement of Mr. Smith follows:]

STATEMENT OF REP. LARRY SMITH OF FLORIDA
Subcommittee on International Law, Immigration and Refugees November 20, 1991


Mr. Chairman, this year, I seem to be spending nearly as much time on this side of the dais as I spent up there with you in my first year in the House.

I very much appreciate your holding this hearing on CubanHaitian interdiction efforts by the U.S. Government. I need not tell you that this situation dismays the people of South Florida.

I first want to address the interdiction of Haitians seeking to enter this country.

I repeatedly have stated that we need a program that is both fair and humane and that can be supported by the American people. I joined a number of my colleagues in sending to the White House a letter asking for temporary protected status (TPS) for these Haitians. To date, we have received no response.

Mr. Chairman, the issue before us is a humanitarian one. I want to repeat: humanitarian. Not political. Not racial. Too many people remember what occurred more than fifty years ago when this country refused to allow Jewish refugees from Nazi Germany to disembark in the US. We cannot repeat this sorry episode in our history.

South Floridians, and the entire Florida delegation in fact, are very well acquainted with the tiny Caribbean nation of Haiti and its wonderful people. For those among us who have not had the pleasure to be associated with these great people, let me say a few words.

The people of Haiti are forthright, sincere, and hardworking. But, they are also star crossed. Unfortunately, this has been the case for Haitians during the entire history of their beleaguered republic -- the second oldest in this hemisphere. The citizens of Haiti have experienced democracy only for 7 months in their 200-year history. Their first and rightful democratic leader is Mr. Jean-Bertrand Aristide, a man who, unlike perhaps any other world leader today, truly personifies the hopes and aspirations of his people.

A full 67 percent of the Haitian people freely and fairly elected Mr. Aristide to office last December. They expressed their hope in him. Not only would he end Haiti's sad distinction of being this hemisphere's poorest country, but also he would put an end to the state-sanctioned political persecution that has historically racked Haiti. Anyone opposing the entrenched
forces of oppression in Haiti was sure to come under attack. Mr. Aristide bravely took these forces on and nearly paid for it with his life. In the hope that his struggle was not in vain, we have

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38


-2


joined in an international effort led by the OAS to rightfully restore the legitimate government of Haiti.

I submit to all of you that our responsibility does not stop short of humanitarian considerations. Frankly, it is that which should control our policy. We also should do what we can to help the people of Haiti who are fleeing political persecution in Haiti. The provisional government acknowledges 300 dead, and other observers claim that as many as 1,000 have died. According to Amnesty International, a group of uniformed military men seeking revenge for the death of a soldier entered the homes of 30 to 40 residents in Lamentin 54, a suburb of Port-au-Prince, and gunned them down at close range. The soldiers then forced other residents to dig mass graves and bury them. If these
instances do not constitute ruthless terror and political persecution, I do not know what does.

We should remember that President Aristide has been the most effective problem solver for our immigration problem with respect to Haiti. How? He simply earned the trust and love of his people. However bad things were economically during his sevenmonth tenure, the Haitian people did not wish to leave. More
accurately, they did not feel compelled to escape. They may have been poor, but Aristide made them feel safe and proud to be Haitian.

Along with freezing Haitian assets here and declaring a commercial embargo on Haiti, we should be likewise committed at a humanitarian level to temporarily providing a safe haven for those Haitians who seek it. The President should declare an immigration emergency so that the $35 million Immigration Emergency Fund authorized by section 113 of the Immigration Reform anid Control Act of 1986 may be used to finance the transport and stay of these desperate refugees. That was one of the uses envisioned by me when I introduced the legislation which this committee and Congress approved.

Let us immediately get away from a policy of adhering to an interdiction agreement that we made ten years ago with the brutal Duvalier regime. We should allow them in and give them a safe haven in a non-prison facility, returning them to Haiti only when it is safe.


I now want to address the preparedness or lack thereof of our government for another Mariel-type exodus of Cubans. As of November 12, the Coast Guard had intercepted 2,056 Cuban arrivals by boat or raft.

Unfortunately, since the current mass immigration contingency "plan" is classified, I cannot get into specifics in open session. But, I can tell you that the plan is unrealistic and probably ineffective. It fails to consider the facts that will surround an expected immigration emergency originating in

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-3

Cuba. It assumes factors that are presumable.

It is a "plan" without a recognizable director in Washington to whom state and local officials can direct their concerns. Neither FEMA, DOJ, nor the White House appears to be "in charge" of the contingency.

Coordination--so vital in Operation Desert Storm--appears to be non-existent; indeed, I doubt that anybody in Florida knows what or who would activate the plan.

The plan all but ignores voluntary agencies and private groups not to mention human nature.

The plan assumes an unrealistically low number of new arrivals, thereby ignoring the extra personnel and logistics that would be needed to respond adequately to an influx.

The last version that I saw assumes that no additional federal funding would be required to manage an influx of new arrivals.

Anybody who lived through the events of 1980 in South Florida knows that this assumption is absolutely absurd. The
State of Florida and Dade County incurred millions of dollars of unreimbursed expenses in the Mariel boatlift. It is ludicrous to draft a plan that involves the use of thousands of federal, state, and local government employees and that fails to fund their use.

Unfortunately, based on my reading, the contingency plan envisions that an "immigration emergency" NEVER would occur. Why do I say it? The plan does not even mention the emergency fund authorized by section 113 of IRCA. Regretfully, I believe that the failure to utilize the emergency fund is deliberate. The
administration never wanted this fund, and it has failed to provide guidelines to the states that would seek reimbursement of appropriate expenses.

Mr. Chairman, the people of South Florida know that another Mariel boatlift could begin at any moment. Only the Bush
Administration seems oblivious to this fact, as evidenced by this insufficient immigration emergency contingency plan.

I urge the Administration, in the limited time that we may have left to us, to work with the State of Florida and all Floridians to develop a realistic and workable plan for dealing with this problem.

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40

Mr. MAZZOLI. I might say, the gentleman and I talked during the August recess, as a matter of fact, about this very problem, so the gentleman's contact with it has been steady and consistent.
I would like for the record to note that our distinguished colleague, the senior member of our full Judiciary Committee, the gentleman from Michigan, Mr. Conyers, has joined us and has consented to sit with the panel as long as his time permits.
We would, before getting to your statement, John-and I believe our next two colleagues came in the same class; I think they are classmates. I think you came in the 98th Congress. Is that correct?
Anyway, taking them in alphabetical order, L is a little bit earlier than O, so maybe we will start with Tom and then go to Major.
Mr. FASCELL. Mr. Chairman, I ask unanimous consent to put in the record with my remarks-the editorial from the Miami Herald of November 20, 1991, which is headlined: "Stop Haitian Interdiction." It not only gives the background on the issue at hand but also makes some pertinent, cogent suggestions which I believe merit the review of this committee. Mr. MAZZOLI. It certainly will be made a part of the record, and I intend to read that before the day is over. [The editorial follows:]

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DICK NELLIUS 3058566779


Stop Haitian interdiction!
/,41 /y e /a l 17-0 (-1 t


IT SEEMS incredible to have to be saying anew, more than a decade later, what The Herald first said in September 1981, when the Reagan Administration first began stopping boatloads of Haitians. This interdiction of Haitians and only of these black people, no other is racist. It is immoral, a deal struck with.a Duvalier devil. It shames this great nation. It must
To no other people except this hemisphere's poorest, blackest nation does the United States, beacon of liberty, give not just its back but the back of its hand. To no other people does Washington say: "We have placed an economic embargo against those who usurped your government, but we will not let you flee its consequences."
Search the Judeo-Christian ethic from topmast to keel, and you'll find no moral justification for this interdiction policy. It hangs like an albatross, dead these 10 years and two months, around the Statue of Liberty. It turns her stomach.
But not the Bush Administration's. On Monday, the Bush heirs of the Reagan policy began returning to Haiti the first of some 2,000 Haitians interdicted at sea. Yesterday Federal Judge Donald Graham in Miami halted the repatriation. He granted a temporary restraining order requested by
the Haitian Refugee Center, Inc. (HRC) of Miami. Bless you, Judge!
The HRC argues and the evidence attests that forcibly returning the Haitians violates the Refugee Act of 1980, the 1981 Presidential order implementing interdiction, and the U.N's Universal Declaration of Human Rights.
Let's examine the Darest figures. From September 1981 to June 1991, more than 24,000 Haitians were interdicted. Only 28
- twenty-eight! were found eligible for political asylum. Of the 2,000-plus Haitians interdicted since the Sept. 30 coup, only 53 have been ruled eligible for asylum.
Only 53. Do no others have a wellfounded fear of persecution if returned to a land whose rogue soldiers have killed hundreds nobody knows the total since overthrowing President Jean-Bertrand
Aristide? Or is 53 just a sampler? Given Haiti's violence since Sept. 30, how many of these boat people might be judged legitimate political refugees if they had a full and fair opportunity to make their case?
But these hearings cannot be fair, because they cannot be full. Though longer


JUDGE HALTS REPATRIATION
than before, the hearings remain unduly brief. The Haitians are frightened, often seasick, probably unable to comprehend the legal gravity of their interview with the INS officers aboard the Coast Guard cutters. In short, of all people who deserve due process, these Haitians do.
But they are black. They are poor. They are powerless. Because Haitians are black, and poor, and powerless, the U.S. Government sends its ships near their island and stuffs them back when they try to flee.
Some argue that interdiction is piracy. No nation owns the high seas. No nation has the right, outside its own territorial waters, to stop foreign vessels and force foreign citizens to go where they wish not to go.
But Washington struck this interdiction deal with the Duvalier despots. So it is not piracy, one supposes. It's only Faustian.

O

The chaos in Haiti is going to get worse before it gets better. In order to cleanse its own conscience and play by its own rules, the United States must stop this interdiction. Then it should treat Haitians as it would treat any other nationality. It should:
Allow Haitians the human right to leave their country and to sail wherever the current carries them. If some perish, and some surely will, they do so as free people making free choices.
0 Haitians reaching U.S. shores should be given full due-process rights, not a harried, truncated shipboard hearing.
4 Haitians who can show a well-founded fear of persecution should be granted asylum. Those who cannot should be returned home, like any other illegal alien found ineligible for asylum.
As the number of Haitians granted asylum increases, as it inevitably will, Washington must recognize that South Florida's counties cannot be expected to foot the bill for the consequences of U.S. policy. We've paid Washington's bills for too long. The White House must stand ready to send refugee-aid funds to this area.
If the White House won't halt this interdiction voluntarily, it invites Judge Graham to rule that the result of interdiction repatriation is illegal as now done. Illegal or not, it is racist and immoral.


P.02

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Mr. MAZZOLI. Tom, do you want to give your statement, and then we will take a break for the vote and come back, or would you rather that we vote now and come back?
Mr. LEWIS. I would rather vote now and come back.
Mr. MAZZOLI. All right. With that, the subcommittee will stand in recess until we go vote, and we will come right back.
[Recess.]
Mr. MAZZOLI. The subcommittee will come to order, and we will resume where we suspended a moment ago with Tom Lewis, our friend from Florida.
Tom, you may proceed. Your statement, as Mr. Owens', will be made a part of the record.
STATEMENT OF HON. TOM LEWIS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF FLORIDA
Mr. LEWIS. Thank you, Mr. Chairman.
Let me take this opportunity to thank you, Mr. McCollum, and the rest of the subcommittee for your foresight in reviewing this problem and bringing this hearing forth.
Over recent years, we have witnessed a dramatic disintegration of the political and economic infrastructure of both Cuba and Haiti. This drastic decline has brought refugees to Florida's shores en masse. We have seen them arrive from Cuba and Haiti on overcrowded boats, makeshift rafts, inner tubes, and basically anything that will float, and even with illegal hucksters that bring them close to shore and throw them overboard.
Oftentimes, the only possessions these refugees have are the ones that they carry with them. Therein lies the problem that confronts the social and economic structure of south Florida, Mr. Chairman, and the people of south Florida, I've got to point out very strongly, are compassionate, concerned, they understand, and are sympathetic toward the Haitian's problems. The Federal law requires the State to extend basic medical, educational, and social programs to these refugees when they hit our shores.
Unfortunately, the Federal Government refuses to address the powers with which it is vested through the U.S. Constitution. The Federal Government has exclusive responsibility for the area of immigration and its related products. It does not appear that we have learned any lessons from the Mariel boat-lift or any other immigration influxes that America has faced over the past decade.
Mr. Chairman, we are always apprehensive in south Florida. We know that these potential boat-lift and refugee problems can happen from the south. They have happened over the years and will probably continue to happen in the future, and we feel it is high time we had a policy that would address the situation.
Since 1982, excluding the over 150,000 Cubans and Haitians brought to Florida during the Mariel boat-lift in 1980 and 1981, almost 410,000 immigrants have been granted permanent residency, naming Florida as their intended home. This number does not include the refugees who have come to Florida illegally and have not attempted to apply for any type of status. During this same period, we have seen a drastic decline in the amount of Federal dollars given to Florida to offset expenses in-

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curred through their refugee programs. Federal funds have decreased from $53.2 million in fiscal year 1983 to $33 million in fiscal year 1990. In addition, Florida is still owed $150 million from expenses incurred during the Mariel boat-lift.
Let me dispel a belief currently held by many Members of Congress and the administration, the belief that States are not financially impacted by immigration policy. Immigration, legal or illegal, does impact State and local governments as well as local entities. Just ask the Jackson Memorial Medical Center administrator whose hospital has provided services to over 140,000 refugees from Cuba and Haiti since 1982. Ask the school district administrators who must find Spanish-speaking teachers in order to accommodate the influx of school-age refugees knocking on their doors. Ask the local religious and volunteer organizations that attempt to meet the basic human needs of these refugees and their families.
I want to make it clear that I sympathize with the plight of the Haitian refugees attempting to flee the persecution of their repressive government. Unfortunately, our lack of a sound policy concerning mass immigration is evidenced in the fact that we have roughly 1,500 Haitian refugees-bless their souls-on U.S. Coast Guard cutters off the coast of Florida. Until the administration and Congress properly address the instances of mass immigration, Mr. Chairman, such as our current Haitian situation or the imminent return of another Mariel boat-lift, Florida cannot continue to shoulder the burden of future refugees.
Mr. Chairman, I was elected to represent the U.S. citizens of the 12th District of Florida. Unfortunately, the influx of refugees has strained access to programs such as health care, education, housing, and numerous vital programs that citizens of my district support with their tax dollars. Until we face the facts regarding the impact of immigration on the United States, Americans who depend on these programs will continue to be shortchanged.
And I want to caution this committee with respect to future legislation that may appear to make positive changes in immigration policy but in turn has devastating impacts on the citizens of this country.
I thank you, Mr. Chairman, for this opportunity and certainly want to endorse most of what my colleagues prior to me have stated about this Haitian situation, but I do believe that we do have to have a policy that will be forthwith when we have these types of problems arise. They are going to arise, we know they are going to happen, they have happened in the past 20-30 years, they are going to continue to happen.
Every time there is unrest to the south, people in the southSouth America, Haiti, Cuba, and other places in the Caribbeanlook to the United States, and, when they do, they look to south Florida. That is where they feel the United States is; that is where they have friends; that is where they have family.
Mr. Chairman, we need some relief, and we are asking this subcommittee to take a look at this.
Mr. MAZZOLI. Thank you very much, Tom. It is very true, there are a lot of things the State of Florida can control for itself, but it cannot control immigration, and it therefore ought not to bear the biggest burden of paying for it.

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One of the earlier witnesses mentioned the fact of the need to consider all the States as part of the solution, not just single out the one State.
Mr. LEWIS. Absolutely.
Mr. MAZZOLL It is a two-tiered problem here, you have different levels, and that is certainly one of them.
We are happy to have your statement, and we are also happy now to welcome Major Owens, the gentleman from New York.
Major.
STATEMENT OF HON. MAJOR R. OWENS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK
Mr. OWENS. Yes, Mr. Chairman. I want to join my colleagues in thanking you for holding these timely hearings.
I represent the 12th Congressional District in New York, which has the second largest concentration of Haitians in this country. I will not take the full 5 minutes; I don't want to be redundant and repeat what my colleagues have said. There are representatives of the administration here, and I think the administration should have maximum time to state clearly what the policy is that they are pursuing in this particular case.
The impression has been given that they are pursuing a David Duke policy where special standards have been set up for the Haitians because they are black. I would like to see them correct that impression by stating clearly what the policy is at this point.
The best way not to have the problem that has been placed on our doorstep by this current wave of Haitians trying to leave is to have a policy where we support unequivocally the democracy and the democratic process in Haiti. It is quite clear, I don't think anybody disputes the fact, that the number of Haitians seeking to leave the country and get into this country went down almost to zero during the period after Aristide was elected by 70 percent of the people who came out to vote.
If it is economic hardship that they are fleeing, then something happened after the election of Aristide. Hope maybe is what kept people at home, but the number of people trying to escape greatly decreased, which means that our best and most effective way of solving the problem is to support the democratic process in Haiti.
In New York City, there were 80,000 Haitians who demonstrated after the military junta had thrown Aristide out of the country. Many of the people who demonstrated were not necessarily supporters of Aristide, some were critics, but they were supporters and came out in solidarity for a democratic process. Whatever disagreements they may have with the current Government of Haiti, they feel that if there is a democratic process and it is supported, they can take the necessary steps to correct it. There is a reign of terror in Haiti now, without a doubt. One of the people who was murdered was a constituent of mine, a Haitian American, an American citizen, who went back after Aristide was elected and started a disco business, and because his name happened to similar to somebody else's name, he was mistakenly dragged out of bed and slain by Haitian soldiers as a result of their seeking somebody who did have political connections.

..





In many cases, people are shot down in the street merely to make a point, merely to break their spirit. They have no political position whatsoever. So the people who are fleeing are fleeing a reign of terror, and the line between economic refugees and political refugees is very thin indeed. Whatever they may say, among the reasons they are fleeing obviously is the fact that the terror has escalated in the last few months following the deposition of Aristide.
Given the fact that a series of U.S. Governments have had a hand in creating Haiti's puppet civilian regimes in the past and military regimes, and they have supported them, given them military aid and training, we have a special obligation toward the Haitian refugees. We have not allowed any other country to have a dominant role in the affairs of Haiti. We have always insisted that the United States must dominate the affairs of Haiti. Therefore, we have this special responsibility. They are the harvest the years of misguided U.S. policy toward Haiti has reaped; the refugees are the harvest of that policy. They are the result of our Government's winking or looking the other way as Haiti's dictators oppressed their own people and plundered the resources of their own country, often with our Government's assistance.
We must change our Haitian immigration policy, immediately suspend the deportations and exclusions, and give Haitian refugees what we give any other refugees, temporary protected status, until the current crisis in Haiti is resolved, and Aristide must be restored to his rightful place as the country's President. We must denounce our policy which appears to be a David Duke immigration policy, a policy which says, in effect, there are special standards for Haitians because they are black and only whites need apply for asylum in this country.
I thank you for the opportunity to testify, Mr. Chairman.
Mr. MAZZOLI. I thank the gentleman, and I appreciate the return of our friend from New York, Mr. Rangel.
Let me just yield myself a couple of minutes for some comments. I thank you. I think this panel has had some of the best testimony that we have ever received and, I hope through the dissemination process, that the Nation has ever received on this issue of the problems of Haiti, singular as they might be but then also as they are applicable to the whole problem of movement of people from one place to the other-and the gentleman from New York reflected that in his statement particularly-and the fact that we have tiers of problems here. We have a first tier, and we have a second tier, and probably even a third tier, and I think it is important to keep those tiers in mind. Some may be harder to deal with, and some may be perhaps intractable.
But one area I think can be dealt with, and dealt with promptly, and doesn't need major, major activity in a broad base, and that is those people currently on board the cutters in the Windward Passage or wherever, currently the people who are at Guantanamo. If I might ask my friend from New York, Mr. Rangel, perhaps he might give this committee a few words about his bill, H. Con. Res. 220, and how he might see this as dovetailing into a broader program dealing with this first-tier activity of the people who are currently at sea. As Chairman Rangel is one of our noted legal people

..





too, how we might handle the judge's order, which we applaud but, at the same time, don't want to leave as more or less people just circling or staying on board the ship. At some point, those people currently on board the cutters have to be dealt with in a more fundamental way than they are being dealt with now.
So I would ask my friend to just sort of share a few thoughts with me on that.
Mr. RANGEL. Thank you, Mr. Chairman. I will be brief and will be glad to follow through with other questions.
Let me deal with the last part of your question first, and that is the people on the ship. I think, as you do and others, that this is an emergency and one that requires the direct hand of leadership of the President of the United States. This is human life. We cannot talk about treaties with Duvalier, we cannot talk about political, economic, we are talking about human life. We are talking particularly about human life that is on Coast Guard cutters.
It would seem to me that, notwithstanding the difficulty that some people have in absorbing these 2,000, or perhaps 3,000 now, Haitians into the U.S. population, that, at the very least, we should ask friendly countries to assume some responsibility-and that includes the poor countries in the region, with us providing the resources for them to be able to do the right thing-as you know, the hearings and my legislation dealt with a situation that did not even perceive that the United States would take the people on the boats and return them to the dangers that exist in Haiti, and so what I am saying is that, one, we should not deport Haitians to this war-torn zone with these heathen type of military people there that have a reputation of shooting down anyone that disagrees with them.
Mr. MAZZOLI. We start off with the premise then, Congressman Rangel, that we should not return any of the Haitians to Haiti right now. That is the bottom line.
Mr. RANGEL. And the way I see it is, any place but Haiti. Of course, I think that we can absorb them here; we can get a thousand points of light; we can get the Red Cross, the churches, and the synagogues. We are not talking about Miami and New York assuming all.
The question of how they are taken care of this time in the year-I could take a leave of absence and direct that. It is just the right thing to do. The President has nothing to fear except doing the right thing, and by doing this, he would encourage these smaller countries, who are now saying, "You are asking us to accept a standard and accepting people that you don't accept." The hypocrisy in asking a small country to take an "economic" refugee, but we will screen and only take the political refugee-there is no sense in that at all.
Mr. MAZZOLI. Will the gentleman, who is my friend and congressional classmate and near-neighbor here in Rayburn, be interested this afternoon in the two of us trying to place a call to the President and perhaps in a joint conference or perhaps request a chance to sit with the President for a few moments today or tomorrow to talk with him about this issue?
Mr. RANGEL. I would welcome that.

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Unfortunately, I wasn't present in my office, I was in committee, when the President did return my call yesterday. I did talk with John Sununu. He indicated that he is working with the State Department in trying to find some solution that is more compatible.
I would welcome that opportunity.
Mr. MAZZOLI. I think I might try to pursue that. It may be, since Governor Sununu has said that, perhaps three or four could meet and talk, and others as well, to maybe try to find a solution. I thank the gentleman, and I will follow up on that.
Mr. RANGEL. Thank you for your leadership and sensitivity on this issue, Mr. Chairman.
Mr. MAZZOLI. Thank you.
My time has expired.
The gentleman from Oregon-if the gentleman from Oregon would yield to the gentleman from Michigan, who has been with us for a whileMr. KOPETSKI. I would be glad to yield.
Mr. MAZZOLI. My friend from Michigan, John Conyers-John, you are welcome to stay with us for whatever time you have today.
Mr. CONYERS. Thank you very much.
I need only to commend you and my colleagues from New York, both Mr. Rangel and Mr. Owens, for us moving with such dispatch on this subject.
I am sensitive to the fact that we are operating against the backdrop of a history of discrimination in immigration policy toward this country, and what we are now faced with is an emergency on top of that history. The point now is, how do we move expeditiously?
We are now talking about getting to President Bush, having him make the proper resolution of this matter. This is an emergency circumstance, and I think it will set the pattern for other countries to help us share the load, so that this matter of proceeding in a way that reverses history I think will keep hope alive.
Aristide's election was a historic decision that was made by the Haitian people. They chose to democratically elect one of their own, a person who was a noncandidate almost up until the last minute. What we need to do here is to move as quickly as we can, and I think this committee, the witnesses, and the Congress will do so.
Mr. MAZZOLI. Thank you very much. I appreciate that. The gentleman from Oregon.
Mr. KOPETSKI. Thank you, Mr. Chairman, and I concur in the statements my colleague from Michigan has made. In reading about the Coast Guard having to process these people, I think we need to recognize that we have put them in a difficult position as well. But I couldn't help but think that the way the Haitian people are being treated, it was almost no different than a fish processing ship out there in the ocean, sorting the "keepers" from the ones that we don't want. I find this, and I think the American people find this, just reprehensible, the policy that we have. We represent freedom, and we represent a safe harbor, and the gentleman from Michigan is right, that there are other countries that would help us help these people in their time of great need. I think we can show and demonstrate

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to the American people that the Congress and the administration can act quickly in a humanitarian sense to help these people that are so distressed.
Mr. MAZZOLI. I thank the gentleman. [The prepared statement of Mr. Kopetski follows:]
PREPARED STATEMENT OF HON. MICHAEL J. KOPETSKI, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON

Mr. Chairman, America has been a safe harbor for the world's oppressed peoples since the first colonists arrived on these shores. Moreover, our national policy of welcome to the homeless of the world has served our country and our traditions well. It was not without good cause that France chose to give to the United States on the centennial anniversary of our independence in 1876 the Statue of Liberty with its famous inscription:

Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden
door.

But, in the case of Haiti, we are running away from our heritage. Personal whim, not law or fact, appears to be influencing the establishment of eligibility for asylum.

Between 1981 and 1990, 22,940 Haitians were interdicted at sea by the United States. Only eleven qualified for asylum.

From January to October of this year, the U.S. has interdicted approximately 1,900 Haitians at sea; only 20 were allowed to apply for asylum.

Of the 2,458 refugees we have interdicted since the September 30th coup, 1,920 Haitians are aboard Coast Guard cutters or being held at Guantanamo Naval Base. Only 53 have been transported to the U.S. for asylum consideration-but 538 have been forcibly repatriated.

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Page 2
Traditionally, U.S. foreign policy has always treated Haitians as economic migrants, not victims of persecution. And so far, even in this post coup period, we have not adjusted our policy or approach to the plight of Haitians.

It is interesting to note that Haiti is the only country with which the U.S. has a migrant interdiction agreement. The President and our Organization of American States partners believe the consequences of the coup are serious enough to warrant an embargo, but apparently not serious enough to warrant a humane change to our treatment of fleeing Haitians.

I believe the handling of the Haitian situation will warrant a hard look at a legislative remedy to the manner in which our asylum policies are being carried out when Congress takes up reauthorization of the Refugee Act next year.

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Mr. MAZZOLI. I think it ought to be noted that temporary protected status is a condition which is in the law, and it is currently being exercised in behalf of Liberians, Somali, people from Lebanon, people from Kuwait, so it is not exactly as if this has never been utilized or exercised.
Mr. KOPETSKI. Mr. Chairman, if you will yield, you know with the Iraqi war situation, we have some Kuwaits and Iraqis settled in North Carolina today.
Mr. MAZZOLI. That is right.
I think also the gentleman and I, if we are able to visit with the President, or talk with him together today, ought to commend him on what he did very recently to extend for 4 years the safe harbor granted to the Palestinians who are in the United States, who came from Kuwait, who can't go back home for obvious reasons, and I think it was wonderful on his part. I saluted him, and I think all of us doff our fedora to him for having done that. That was done in his capacity as chief executive; it is an executive fiat; it is one that receives wide acclaim. But even if a person would have objected to it, there would be no way to object to it in any official way. You can't reject that handling in any legal sense.
So the President is certainly capable, has the authority to exercise that same kind of executive fiat in behalf of these people, and I think that it could be done, and I think it ought to be very important that no one of us is oblivious to the fact that the second-tier and the third-tier problems also have to be dealt with, and that is where we have to get OAS people, the United Nations, we have to get contributions.
As the gentleman from New York said in a very eloquent way, that is the way the President handled Desert Storm and Desert Shield, by being the leader of an organization, a coalition of nations, and all of us bore a share of it. I can see the same kind of result coming out in this hemisphere for these people. Maybe this is the new world order that we have been hearing about. Maybe this is the way the new world order will be handled in regional ways, in matters not on a war and battlefield, but in the sense of dealing with human deprivation, and human misery, and human danger, and human fear, and I think if that is the case, well, maybe that is a very welcome new world order; maybe that is a halcyon moment for the world and for this Nation as its leader.
So, anyway, I think we have every opportunity to help the President in the longer run problems even as he can now, in a very quick way take care of these people.
So I want to thank our friends-both of you-and you are welcome to sit with us if you wish.
Mr. RANGEL. Thank you, Mr. Chairman.
I would like to say to Mr. Kopetski that I agree with what he said, and the Coast Guard doesn't need me really to give support. But they are dedicated men and women. They have really done the best they could. It is the Immigration people who are doing the interrogation. They are dedicated. They find themselves in this awkward and embarrassing position, and I hope one of the things that comes out of this hearing is who put them in this position, whose policy is it, so at least we will know whom to go to, to possibly get an explanation for this inhumane decision that has been made.

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51

That is why I welcome the Chair going to the ultimate source, which is the President of the United States, to assist us in turning back this policy, and I thank you for your comments. I would like to join you.
Mr. MAZZOLI. Thank you very much.
Before we move to our next panel, I would like to put in the record, first, the temporary restraining order which Judge Graham issued yesterday in those cases to which we have referred; and I would also like to put in the record-I don't have it in front of me at the moment, but there is a letter that was served on us by the American Bar Association in which they urge the grant of temporary protected status to the Haitians. Here it is. It is a letter, actually, to Mr. Barr, who is Acting Attorney General, to designate Haiti as a country for temporary protected status, citing the law and the background of the law. I think implicit in this is to consider a Coast Guard cutter part of the United States for the purpose of deciding when these prescreening applications will be taking place.
[The restraining order and letter follow:]

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a 'd OCItI 16rta/ I O6





WAITED STATES DXbTRICT COURT
BouTras@ DXsTRUd OP }OA. Cae Nlo p1-2633-pZV-A TX


HAITTLA REPUGHE CBNTEs, INC., a notfox-profit corporation,
Plaintiff?
V.o
JAMES AxER, II%# Secretary ( State, I EAR ADMIRA ROBRT XRA (J, and ADIRAL RIMS, Commandantp United itat coast Guard, $ HoNAAY, Co vsioner, mmigrtrati and Saturalisation Service, a UNTZD 8~ATta DEPARTMENT OF JUSTI Immigrat on and Haturalizati Service, and the UNITED STATES F AMERICA,
Defendants.



TCBa CAUS came before the Court upon Plaintiff'# ewOrgenc application for a temporary restralfing order to prevent fernvg41 fro returning to HatiL, Haitians Lnterooptod and/or to the oarse custody and control of the Unite4 Qtatea CoOt Guard, Preentlyi the tlaLtfans are being dotainod o. the high soas and at the oi)j Coast Guard Dae at Ouantanamo Bay, Cuba,
Tu COU'r has considered tht~~ption, argument of cpunsel, a tho pertinent portions of the record, and b~ing otherwise 1uAi. advised in the premises, it is heyaby
ORDER$D AND ADJUDGED that the said Application is GRAM.ER. Defendants are precluded from oostinuing to repntriata uait~an

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'd 55%!t :6/6 itt t00@





Page 2 UNITED STATES DISTRICT COUT
0VT88RN DiTRXCT 08 FL4I4 curtontly on board U.S.- flagged vessel* and Haitians oprrptly being held on land under United States' control and at Ouantaliga Bay, Cuba until further order, to maintain the s tas guas
Due to the importance of the patters presented and tha pxigeAt. circumstances surrounding this caPe, additional conseldsato on the issue of standing is oxtioe). Therefore, it Io further
OkDED AND DJUDGZD that elointiff'a oonaas halll, wAl.thin five (S) days from the date of thi Ordor, file a memorandum if lew diopueuing whether Plaintiff has standing to file suit on beha)t of the Haitians that have been intercepted by thle United S&tate Coast Guard, and addressing the following elements required for-ta isauAnce of a temporary retraining orders
1. that there is a substantial
likelihood that Plaintiff will
revall on merits)
2. that there is a substantial threat
that PlaintLi will suffer Irreparable Lmnury.1 the injunction
is not granted;
3. that threatened injury to Plaittiff
outwligha threatened harm the injuhotion may do to aDef.dant and
4. that granting plminary injunction
will hot di~atvo@ the public
Interest.
kait4n refugee Cvotpr, Jn. v, yeleor, 72 r.20 155, 1$61.1512 (11th Cir, 1989) (listing factor for granting injunotive relief), AfI.'., 11l 8. Ct. 888 (1991). Defenrdants shall file A repy rromorandum of law within two (2) days of the filing of Plaintiffc'

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54



'd i lOL P 'd Or+.L 1 /81/,:1 w:





Page 3 UNITEBD TATB DIdfaCT COURT
SOUTSEBe DISTRIcT oF mlRItcA memorandum. The Court will thon determine the appropriateness o4 granting continuing or further injunotive relief.
Dq1 AND ORDERED In Chambers at Mi Florida, this of November, 1991.



A. RABAM
UNITED STATES DISTRICT JUDGB copies provided a J. Kurzban, Eeq. Loxtor Lee, AUSA

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55






/IA
covErNMS.tu AMMIn AMERICAN BAR ASSOCIATION Governmental Affairs Office
S 1800 M Street. N.W.
Washington, DC 20036
e.n o. Ems (202) 331-2200
SENIOR LECISILTIV CO SN L

November 18, 1991

ACO*CC, Hon. William J. Barr
Lk.nO,. Acting Attorney General
sS4rr.'01 Department of Justice
-M Washington, D.C. 20530

ndDo .s t Dear Mr. Attorney General:

NC As we witness the momentous growth of democratic ideals and
Rra.8,Iee institutions abroad, recent events in Haiti provide a tragic
TELICISSTI reminder of how fragile democracy may be. In a matter of -.,saisn.o weeks, at least three hundred lives have been lost and an
n u o uncertain number of Haitians have been imprisoned, gone into
hiding, or fled the country. Now that the international
Nan.'O community has imposed sanctions, the health and welfare of the
c14as entire nation is imperiled by deteriorating economic
cL conditions. Meanwhile, Haitians who have fled to the United
States for safety fear they may be forced to return to Haiti
before peace and constitutional order are restored.

In view of this deepening crisis, the American Bar Association
urges you in your capacity as acting Attorney General to
designate Haiti as a country for Temporary Protected Status.
We believe such recognition will help ensure that Haitians who
have reached the United States are provided physical safety
and given the same treatment that our nation currently extends
to Kuwaitis, Lebanese, Liberians, Salvadorans and Somalians.

The Immigration Act of 1990 authorizes the Attorney General to
grant safe haven status to nationals from countries
experiencing war, natural disaster or other extraordinary
conditions that endanger physical safety. As you know, the
TPS law does not create an admissions program and does not
modify the refugee, asylum or withholding of deportation
provisions. The statute only permits nationals from
designated states who are already in the United States, but
who may not fit the textbook definition of "refugee" or
"asylee", to remain and work until they can safely return
home, provided they register and meet the other eligibility
requirements. This framework is intended to provide
sufficient flexibility and the necessary authority to respond

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56



swiftly to changing world developments. We believe that conditions in Haiti are so "extraordinary" to warrant immediate designation. Even under a best-case scenario, conditions in that country are not likely to permit the safe repatriation of Haitians for the foreseeable future. In the meantime, Haitians in this country should be treated with dignity and compassion.

While TPS is the appropriate remedy for individuals already in the United States, we also have concerns for those who have risked their lives but not yet reached our shores. We understand from news accounts that at least 38 Haitians on coast guard cutters at sea have been preliminarily identified as potential refugees yet have not been allowed to apply for asylum. In our judgment, those individuals should immediately be permitted to apply for asylum pursuant to international agreements and established INS procedures.

Furthermore, we understand that the INS "pre-screening" interviews taking place on the Coast Guard cutters lack normal procedural protections to ensure that eligible refugees are not erroneously rejected. If such individuals are taken to camps in third countries, as has been proposed, they will be precluded from proving that they do qualify for asylum. We note that the U.S. treats no other group of potential refugees in the manner proposed for the Haitians, and that about 2000 Cuban rafters have been paroled into the United States so far this year.

In conclusion, we are aware that the Administration is deeply troubled by the situation in Haiti and is developing a response to those who flee. We urge you to grant TPS to Haitians who are fortunate to be in the United States and to give all Haitians in U.S. custody a meaningful opportunity to demonstrate their eligibility for asylum.

Sincerely,




Robert D. Evans


cc: James A. Baker III, Secretary of State
J. William Kime, Commandant, U.S. Coast Guard

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Mr. MAZZOLI. Let me now ask to come forward Ambassador Robert Gelbard, who is the Principal Deputy Assistant Secretary for Latin America of the Department of State, who will be accompanied by Ambassador Princeton Lyman, Director of the Refugee Bureau, Department of State; then the Honorable Gene McNary, the Commissioner of the Immigration and Naturalization Service, who will be accompanied by Rex Ford, Associate Deputy Attorney General, Department of Justice, and Ricardo Inzunza, Deputy Commissioner of the Immigration and Naturalization Service; and then Adm. William P. Leahy, Jr., the Chief of the Office of Law Enforcement and Defense Operations of the U.S. Coast Guard Headquarters.
Thank you very much, gentlemen.
Mr. Ambassador, I am aware of your discommodation. If you have to leave, or if you wish to leave after Mr. McKinley-whatever is in your pleasure-but we would start with you.
All the statements will be made a part of the record, and I will be forced to use the clock a little bit today in order that we try to keep our statements to 5 minutes in order that our panel have a chance to answer questions.
So I would start with you, Mr. Ambassador, and thank you very much for joining us.
STATEMENT OF ROBERT S. GELBARD, PRINCIPAL DEPUTY ASSISTANT SECRETARY OF STATE FOR INTER-AMERICAN AFFAIRS, DEPARTMENT OF STATE, ACCOMPANIED BY BRUNSON McKINLEY, DEPUTY ASSISTANT SECRETARY OF STATE,
BUREAU OF REFUGEE PROGRAMS Mr. GELBARD. Thank you, Mr. Chairman, members of the committee.
If I may, Mr. Chairman, I would like to go through part of my statement, particularly the part that deals with Haiti.
Mr. MAZZOLI. Yes. And the current part-again, not to try to prompt you in your statement in any fashion, because the context is very important, but, the committee is interested in the current events, or if you want to say the first tier, which is the emergency problem. What to do with the people who are currently on the boats? What the State Department can or can't do there? How can we encourage furtherance of democracy? What happens to the Aristide government? How can OAS perhaps be a force to play a role in that?
So that would be a long-term solution, but we have two tier problem, and I think the first tier would be the part-so let me give you back your 5 minutes.
Mr. GELBARD. Thank you, Mr. Chairman. In the aftermath of the military coup which took place on September 30, we have been working with the nations of the Organization of American States and other nations in the world in an effort to restore the democratic Government of Haiti led by President Aristide.
We have a standing agreement with the Government -of Haiti which permits us to rescue at sea Haitians who are intending to immigrate to the United States and to return to Haiti those who

..




lack a basis for asylum. This agreement was reached in 1981 to give the Haitian and American Governments a mutually acceptable way of dealing with the regular flow of Haitians who seek to come illegally to the United States for economic reasons.
When President Aristide was forced from office, we expected that an exodus of Haitians might occur immediately in response to that political crisis, but it did not occur. From the time President Aristide left Haiti on September 30 until October 28, the Coast Guard found no boats with Haitians coming to the United States. On October 28, the cutter Steadfast picked up a boat with 19 Haitians aboard. The next boat came on November 4, and the flow has greatly increased since then.
As of yesterday, November 19, we had picked up nearly 2,200 Haitians. I believe the number has increased to 2,800 as of today.
Mr. MAZZOLI. 2,800, Mr. Ambassador, as of today?
Mr. GELBARD. Yes, sir.
Seven of these boats had over 100 Haitians on board. None of these crafts was over 40 feet in length. For example, on November 14 the cutter Confidence interdicted a 40-foot sailing vessel with 238 Haitians. This boat was not designed for use on the high seas. It was severely overloaded, carried no life jackets, no flares, radio, beacons, charts, navigational equipment-in short, not equipped to survive the voyage it intended to make. This was typical of the conditions on these boats, any of which could easily have capsized in rough seas.
In responding to this extremely difficult situation, our overriding concern has been to save lives. We have taken the following factors into account. In keeping with the intent of the United States-Haitian Immigration Agreement, the interdiction program, and U.S. law, we have an obligation to prevent an unimpeded flow of Haitians to the United States. We want to rescue people from vessels that put them at high risk of losing their lives at sea. We want to ensure that those who have a well-founded fear of persecution, and hence a good claim to asylum, are interviewed carefully, identified, and brought to the United States. Above all, we want to avoid any action that would encourage more Haitians to risk their lives by boarding unsafe vessels in the belief that this would ensure them passage to the United States.
At first, we sought a regional solution, and on November 8 we began to work with the U.N. High Commissioner for Refugees, the International Organization for Migration, and countries throughout the Caribbean region to see which countries might accept a number of Haitians picked up by Coast Guard vessels. We had hoped that a sufficient number of countries would accept these people and that arrangements could be made for their temporary safe haven under the auspices of the UNHCR.
Regrettably, after nearly 2 weeks of intense diplomacy with both the United States and UNHCR canvassing the region, we have not yet been able to elicit a sufficient number of positive responses from the countries of the region. Many are already host to large numbers of Haitians. For example, the Bahamas has 40,000 illegal Haitian immigrants.
We will continue to pursue discussions with countries in the region to arrange temporary safe haven for additional Haitians.

..




Yesterday in a meeting hosted by the OAS in Washington, the UNHCR made a renewed appeal to countries in the region to accept Haitians.
By the beginning of this week, we had 483 Haitians temporarily ashore at our naval base in Guantanamo and over 1,200 on Coast Guard vessels. Despite renewed warnings broadcast over the Voice of America's Creole service beginning November 15 to urge Haitians not to set sail, the numbers have been growing. Four countries-Honduras, Venezuela, Belize, and Trinidad and Tobagohave generously agreed to accept some refugees, but they would only accept a total of 550.
It became clear that the regional safe haven solution was not going to be sufficient to deal with the number of Haitians who were leaving Haiti and another solution would have to be found. As a result, we reluctantly reached a decision on Monday, November 18, to repatriate those Haitians on Coast Guard vessels, to bring to the United States those Haitians who appear to qualify for asylum, and to bring those at Guantanamo to regional countries for temporary safe haven.
As of yesterday, 53 people have been brought to Miami to have their asylum claims processed by INS and 538 have been repatriated to Haiti by the Coast Guard.
Mr. MAZZOLI. Mr. Ambassador, I am sorry to bother you, but the time has expired. Do you think you could wrap up in about a minute or so? I know it is asking almost the impossible to summarize decades of travail into 5 minutes, but I think maybe some of the questions will flesh out some of the very areas that you would be dealing with.
Mr. GELBARD. Well, in sum, Mr. Chairman, we have pursued a policy of looking for a regional solution to find temporary safe haven for these refugees from Haiti. [The prepared statement of Mr. Gelbard follows:]

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60


EMBARGOED FOR RELEASE UPON DELIVERY



Statement of Amb. Robert Gelbard
Deputy Assistant Secretary of State for Inter-American Affairs before the
House Judiciary Committee
Subcommittee on International Law, Immigration and Refugees November 20, 1991


Mr. Chairman, Members of the Committee:



I appreciate this opportunity to discuss our actions in response to the recent exodus of Haitian boat people, and our immigration policy toward Cuba.



The democratically elected government of Haiti was usurped September 30 when elements of the Haitian military drove President Aristide from office and forced him to leave the country. Acting through the Organization of American States, the nations of this hemisphere unanimously condemned this attack on Haitian democracy, then voted on October 8 in favor of a trade embargo until Haitian democracy is restored.



Within days of the coup, the United States cut off aid, froze Haitian government assets, blocked financial transfers to the Haitian regime and blocked exports to the Haitian military and police. In the course of the month, we and our neighbors in the OAS -- including Venezuela, Haiti's oil supplier -proceeded to cut off our trade. The trade embargo is having a clear impact: there is little traffic in the streets, there are long lines for fuel and business activity is markedly down.

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We have a standing agreement with the Government of Haiti which permits us to rescue at sea Haitians who are intending to emigrate to the United States and to return to Haiti those who lack a basis for asylum. This agreement was reached in 1981 to give the Haitian and U.S. governments a mutually acceptable way of dealing with the regular flow of Haitians who seek to come illegally to the United States for economic reasons.



When President Aristide was forced from office, we

expected that an exodus of Haitians might occur in response to that political crisis. That did not occur. From the time President Aristide left Haiti until October 28, the Coast Guard found no boats with Haitians coming to the United States. On October 28 the cutter Steadfast picked up a boat with 19 Haitians aboard. The next boat was found November 4, and the flow has greatly increased since then.



As of November 19, we had picked up nearly 2200

Haitians. Seven of these boats had over 100 Haitians on board; none of these craft was over 40 feet in length. For example, on November 14 the cutter Confidence interdicted a 40-foot sailing vessel with 238 Haitians aboard. This boat was not designed for use on the high seas. It was severely overloaded. It carried no life jackets, no flares, no radio, no beacons, no charts, no navigational equipment -- in short,


51-225 0 92 3

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it was not equipped to survive the voyage it intended to make. This was typical of the conditions on these boats, any of which could easily have capsized in rough seas.



In responding to this difficult situation, our overriding concern has been to save lives. We have taken the following factors into account:



-- In keeping with the intent of the U.S.-Haitian

immigration agreement, the interdiction program and

U.S. law, we have an obligation to prevent an

unimpeded flow of Haitians to the United States.



-- We want to rescue people from vessels that put them

at high risk of losing their lives at sea.



-- We want to ensure that those who have a

well-founded fear of persecution, and hence a good

claim to asylum, are interviewed carefully, identified and brought to the United States.



-- Above all, we want to avoid any action that would

encourage more Haitians to risk their lives by boarding unsafe vessels in the belief that this would ensure them passage to the United States.

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At first, we sought a regional solution. On November 8 we began to work with the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration and countries across the Caribbean region to see which countries might accept a number of Haitians that had been picked up by Coast Guard vessels. We had hoped that a sufficient number of countries would accept these people, and that arrangements could be made for their temporary safe haven under the auspices of the UNHCR.



Regrettably, after nearly two weeks of intense diplomacy, with both the United States and UNHCR canvassing the region, we have not yet been able to elicit a sufficient number of positive responses from the countries of the region. Many are already host to large numbers of Haitians -- the Bahamas has 40,000 illegal Haitian immigrants, for example. We will continue to pursue discussions with countries in the region to arrange temporary safe haven for additional Haitians. Yesterday at a meeting hosted by the OAS in Washington, the UNHCR made a renewed appeal to countries in the region to accept some Haitians.



By the beginning of this week, we had 483 Haitians

temporarily ashore at our naval base at Guantanamo and over

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1200 on Coast Guard vessels. Despite renewed warnings broadcast over the Voice of America's Creole service beginning November 15 to urge Haitians not to set sail, the numbers were growing. Four countries -- Honduras, Venezuela, Belize and Trinidad and Tobago -- had generously agreed to accept some refugees, but they would only accept a total of 550. It was clear that the regional safe haven solution was not going to be sufficient to deal with the number of Haitians who were leaving Haiti, and another solution would have to be found.



As a result, we reluctantly reached a decision on Monday, November 18 to repatriate those Haitians on Coast Guard vessels, to bring to the United States those Haitians who appear to qualify for asylum, and to bring those at Guantanamo to regional countries for temporary safehaven. As of yesterday, 53 have been brought to Miami to have their asylum claims processed by INS and 538 have been repatriated to Haiti by the Coast Guard. Today we expect that a number of Haitians will begin to be transported from Guantanamo to Honduras and Venezuela under UNHCR auspices. The repartiation has now been suspended by court order. As long as that order remains in effect, we expect it will encourage Haitians to continue to go to sea in small, dangerous boats, and we fear it will lead to loss of life.



This was a difficult set of circumstances that offered no

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perfect solution. Given a range of difficult choices, we would have preferred to arrange safe haven in the region for all the Haitians, but the numbers of Haitians and the difficulty of making those arrangements made it impossible to continue pursuing that option alone. Under the circumstances, we strongly believe we have made the right decision.



-- The Coast Guard has without any doubt saved

hundreds of lives by rescuing people from boats that had only a minimal chance of reaching any

destination safely.



-- People who fled Haiti for political reasons and

fear political persecution are being identified

through careful interviews and brought to the

United States. No Haitian is being repatriated

without a careful interview that gives him or her a chance to describe circumstances that might justify

an asylum claim.



-- Our Embassy is observing the repatriations, which

have been uneventful to date. The Haitian Red

Cross has been present to receive the returnees and

to give them a cash stipend. Our Embassy will

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remain in contact with local and international

human rights and humanitarian organizations to see

if there is any evidence that these people are

mistreated after their return. I underscore that there is no history of reprisals against Haitians

repatriated under our bilateral agreement.



-- Most important of all, this course of action will

send a clear message to discourage more Haitians

from going to sea in dangerous conditions based on

the mistaken belief that they will be guaranteed entry into the United States. That message will

save lives.



Some have drawn comparisons to our immigration law and policy toward Cuba and charged that we are wrong to repatriate Haitians when we don't repatriate Cubans. The facts are these:



-- Cubans are fleeing one of the world's remaining

communist dictatorships; they fear returning, if

for no other reason than that it is a crime in Cuba to leave without an exit permit. Cubans have been

prosecuted and jailed for that offense. Those

conditions do not apply in Haiti.



-- Haiti is now under the control of a

military-dominated government. We hope that

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negotiations about to begin between President

Aristide and Haitian legislators will lead to the

prompt restoration of constitutional rule.

However, neither Haiti's current conditions nor the conditions before September 30 can be compared with

the systematic, extensive repression that is a

condition of daily life in Cuba.



-- The current exodus from Haiti began not when the

Aristide government was forced from power, nor in

the violence that followed, but one month later.

This indicates that the political crisis in itself

did not spark significant emigration. We are interviewing each Haitian in careful detail to

determine whether there is a well-founded fear of persecution. As I noted, we are bringing to the

United States those who establish a sound basis for

an asylum claim.



In conclusion, Mr. Chairman, we believe we have executed U.S. law and immigration policy in a fair and humane manner. We believe the Coast Guard's actions and our policy decisions have saved lives. We welcome your interest in this situation and look forward to continuing consultations with Congress as we continue to work for the restoration of Haiti's democratically elected government.

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Mr. MAZZOLI. Could I ask you just one brief question and perhaps a second one. Was that treaty of 1981 ratified by the Aristide government as such?
Mr. GELBARD. Well, it wasn't a treaty, it was an agreement between governments.
Mr. MAZZOLI. An agreement. Was it ratified or somehow extended or acknowledged?
Mr. GELBARD. It was acknowledged by the Aristide government, yes.
Mr. MAZZOLI. Acknowledged as being in existence to be looked at, or acknowledged because they wanted it? It is a term of art "to acknowledge."
Mr. GELBARD. No, it is no term of art, sir. They program continued to function during the Aristide government.
Mr. MAZZOLI. With their knowledge andMr. GELBARD. Yes, it has to be done with their knowledge and acceptance.
Mr. MAZZOLI. Thank you very much.
Mr. McKinley is here with the Ambassador-and you have no statement of your own. If you have any comments, obviously, we may direct some to you on that.
We will now go to Mr. McNary, the Commissioner of Immigration.
STATEMENT OF GENE McNARY, COMMISSIONER, IMMIGRATION
AND NATURALIZATION SERVICE, ACCOMPANIED BY RICARDO INZUNZA, DEPUTY COMMISSIONER, AND REX J. FORD, ASSOCIATE DEPUTY ATTORNEY GENERAL, OFFICE OF THE DEPUTY
ATTORNEY GENERAL, DEPARTMENT OF JUSTICE
Mr. MCNARY. Mr. Chairman, let me say that, first of all, I admire your timing.
Mr. MAZZOLI. I'm not sure the timingMr. MCNARY. I anticipated the tone of this hearing, and I have a lengthy statement which I will submit for the record.
Mr. MAZZOLI. It will be made a part of the record.
Mr. McNARY. My statement addresses the interdiction and detention of Haitian nationals, the parole of Cuban nationals into the United States, and the Immigration and Naturalization Service's plan for emergency immigration situations, particularly in south Florida. All of that is included in my statement.
With regard to the current situation, I would like to point out that the role of INS is to adjudicate and determine whether Haitians who have been interdicted and who are on Coast Guard cutters are, in fact, refugees under the definition of the law as written by this Congress.
At this point, we have a cadre of 12 teams that are on the Coast Guard cutters. Those teams include interpreters who speak Creole. The interviews are especially designed to even ask the same questions in several different ways in order to make sure that we can find anyone and give them the benefit of the doubt who has a credible claim to asylum. It is not even an asylum adjudication, it is just something close enough that would entitle them to come to the United States for an asylum hearing.

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We have at this point interviewed 1,600 people, and 85 have been determined to have a credible claim; 53 have already been brought to the United States; 32 are still at Guantanamo and will be brought in immediately. That is 5 percent.
Again, let me emphasize that it is not quite a year old, but this is a special, trained corps of adjudicators who have gone through a lengthy training procedure in interview, to determine techniques, to really go into it so that it is an objective, consistent, uniform procedure, not based on any political consideration, and those are the people who are presently doing the interviewing.
I would be happy to answer any questions.
Mr. MAZZOLI. Thank you. Thank you very much, Mr.
Commissioner.
[The prepared statement of Mr. McNary follows:]

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PREPARED STATEMENT OF GENE MCNARY, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE

Mr. Chairman and members of the Subcommittee:



I am pleased to be here today to provide testimony regarding the immigration of Cuban and Haitian nationals to the United States. Specifically, I will address the interdiction and detention of Haitian nationals, the parole of Cuban nationals into the United States, and the Immigration and Naturalization Service (INS) plan for emergency immigration situations, particularly in the South Florida region.



Interdiction

The Alien Migrant Interdiction Operation (AMIO) was authorized by Executive Order in September 1981 and is implemented by the U.S. Coast Guard. The Order provides that the United States may interdict vessels of nations with whom the United States has an agreement concerning interdiction. Also, vessels without nationality may be interdicted. The purpose of the operation is to: (1) interdict illegal drugs and other

contraband being smuggled into the United States; (2) save lives at sea; and, (3) serve as a deterrent for the illegal entry of persons into the United States.



Since the beginning of the interdiction operation, more than 25,000 aliens, mostly Haitian nationals, have been interdicted. In Fiscal Year 1991, 2,595 aliens were interdicted, of which 1,976 were Haitian nationals.

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The Executive Order provides that "no person who is a refugee will be returned without his consent." The INS has been charged with the responsibility for determining whether an alien is a refugee. Accordingly, INS Asylum Branch officers travel on board the Coast Guard cutters to conduct interviews of those aliens interdicted at sea. An asylum pre-screening interview is conducted to assess a person's eligibility for asylum based on his or her credible fear of return on account of race, religion, nationality, membership in a particular social group, or political opinion.



In an effort to improve the program, the following changes were implemented:



A detailed introductory briefing on the purpose of the

INS interview at sea is provided to all interdicted

aliens;



Asylum adjudicators are utilizing a new interview

questionnaire to ensure that interviews are

thorough and complete;



The parole into the United States of any interdicted

alien who presents a credible fear of persecution so

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that the person may pursue the claim further with the

INS;



The adjudication of asylum claims in the United States

by an officer of the Asylum Officer Corps;



The provision of additional specialized training for

our asylum pre-screening officers in interview

techniques, asylum law, and current conditions in

the affected countries;



Revision of reporting formats used by the pre-screening

officers to record interview results; and,



The establishment of a quality control mechanism at INS Headquarters to review the documentation resulting from

interdiction interviews in order to refine the

interview process.



Parole of Cuban Nationals

Cuban nationals continue to arrive by sea on boats, rafts, inner tubes, or other flotation devices. Cubans also are brought to the United States by the U.S. Coast Guard from unseaworthy water craft found in international waters. Currently, paroling Cuban nationals into the United States is the only viable response as the Cuban government is not willing to accept the

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return of its citizens, with the exception of a limited number of excludable Mariel Cubans.



The procedure presently in place provides that when Cuban nationals arrive at a port of entry, usually Key West, they are immediately transported to our Krome Service Processing Center. There, each Cuban national is interviewed by an INS inspector to determine the ground of exclusion applicable to the Cuban national. INS specifically attempts to determine whether the alien has a history of criminal conduct. The inspector reviews available criminal indices, considers statements made by the alien, and looks for the appearance of tattoos or other indications of incarceration. Public Health Service officers also screen aliens for health problems.



Unlike those who arrived in the Mariel "Boatlift" of 1980, (during which Cuban nationals were released from prisons to come to the United States) a very small percentage of the current arrivals are identified as having serious criminal backgrounds. Also, the current arrivals are less likely to admit to criminal involvement than many Mariel Cubans. Mariel Cubans often

admitted to criminal conduct, particularly when it could be viewed as action against the Castro government, (e. ., theft of government property), believing that such an admission would enhance their chances of remaining in the United States. While an alien is at Krome, his or her fingerprints are compared with

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those of persons wanted by law enforcement agencies and persons previously deported. Depending on the circumstances, a Cuban national may also be interviewed by the FBI and other law enforcement and intelligence entities.



The inspection process normally results in the parole of the Cuban national pursuant to subsection 212(d)(5)(A) of the Immigration and Nationality Act. With the exception of the 2,746 Mariel Cubans who were in detention as of December 14, 1984, Cuba has been unwilling to accept the return of Cuban nationals deemed excludablee" under our law. Because of INS' limited detention space, detention of Cubans is limited to criminals and parole violators. Of course, this situation could change if the Cuban government alters its policy and permits the return of additional Cuban nationals who are excludable and who have been denied asylum. If INS decides not to parole a Cuban national into the community, but instead to commence exclusion proceedings, that person is transferred from the Krome facility to either a Bureau of Prisons facility or a contracted facility, usually a local jail.



In accordance with the Chiles Amendment, our current policy is not to detain criminal aliens at Krome. However, Congress has approved 4.5 million dollars for a 300-bed detention facility at Krome to house criminal aliens. Additional funds may be

requested by the Administration to construct support facilities

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to accommodate the increased population. The projected completion date for all construction is December 1994.



If the determination is made to parole a Cuban national, current policy requires that such parole be in conjunction with a sponsorship approved by the Department of Justice Community Relations Service. The sponsor may be a relative of the parolee or may be an approved group or agency. It should be noted that the parole of Cuban nationals is not always to a sponsor in the South Florida region. In fact, a substantial percentage of sponsors are located in states other than Florida.



Legal Immigration and Special Adjustment Proqrams for Cubans and Haitians

Legal immigration from Cuba was suspended after the beginning of the Mariel Boatlift in 1980. It resumed briefly after the signing of the agreement with the Castro government for the return of the criminal Mariel Cubans, but was suspended again from July 1985 through November 1987. Even with the pent up demand that this should have caused, legal Cuban immigration to the United Sates has not exceeded 3,800 per year since FY 1987. Most Cuban immigrants gain permanent resident status by "adjusting" their status from a temporary nonimmigrantt" category. Specifically, more than 75 percent of all the Cuban legal immigrants admitted during the period 1986-1990 were

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admitted under the Cuban Adjustment Act of 1966, which I will discuss in detail below.



During the period 1986-1990, an average of 7,500 immigrants were admitted from Haiti as spouses or children of U.S. permanent residents or citizens. In addition to this immigration under the preference and immediate relative categories, Haitians benefitted greatly from two special adjustment programs. As of 1990, a total of 31,595 Haitians have been granted permanent residence under the Cuban-Haitian entrant provision of the Immigration Reform and Control Act (IRCA) of 1986. Another 12,420 Haitians have been adjusted to permanent residence under the legalization and Special Agricultural Worker provisions of IRCA.



The naturalization patterns for Cubans and Haitians are comparable, with an estimated 30 to 40 percent of the immigrants from these two countries eventually gaining citizenship. In

1990, a total of 10,291 Cubans and 5,009 Haitians became

naturalized citizens.



Cuban Adjustment Act of 1966

The Cuban Adjustment Act of 1966 is still in effect. This Act provides that the status of any admissible alien who is a native or citizen of Cuba and has been inspected and admitted or has been paroled into the United States after January 1, 1959, may be adjusted to that of a permanent resident after one year of

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physical presence in the United States. The statute does not preclude the adjustment of a person who has overstayed a temporary visa. As initially enacted in 1966, the Cuban Adjustment Act required a two year period of presence in the United States before adjustment. This time period was shortened to one year by the Refugee Act of 1980.



INS is often criticized by representatives of Haitian or other non-Cuban nationals for treating Cuban nationals differently with respect to immigration benefits. The simple fact is that, because of the Cuban Adjustment Act, Cuban nationals are treated differently under the law. Thus, the

provisions of this Act, combined with the difficulty of returning Cuban nationals to Cuba, provides a substantial incentive for Cuban nationals to come to the United States.



Countering this incentive is the difficulty the Cuban national faces in actually arriving at our shores. The fine

provisions of 8 U.S.C. 1323 and the anti-smuggling provisions of 8 U.S.C. 1324, with potential for a prison term and seizure of the conveyance, deter owners and operators of boats and aircraft from bringing aliens who are not in possession of passports and valid visas into the United States. Because of the fine proceedings discussed above, it is unlikely that, without government sanction, commercial fishing, shrimping and charter fishing boat owners and captains will bring Cuban nationals or

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other aliens to the United States. Finally, Cubans who are

currently caught attempting to leave Cuba are generally detained for only a short period of time and then allowed to return to their homes, whereas in the past more severe penalties, including long term imprisonment, were imposed. As far as the admission of Cubans on temporary visas is concerned, the State Department and INS seek to screen out those actually intending to overstay their visas and benefit from the Cuban Adjustment Act.



The Immigration Emergency Plan

During 1981, the President directed the Attorney General to oversee and coordinate a government-wide response to a potential mass illegal immigration emergency. In February 1982, the

Department of Justice prepared a plan for a coordinated Federal effort for utilizing the resources of appropriate agencies to respond to and control an attempted mass illegal migration to the United States.



Recognizing the serious responsibilities that would be placed on the INS in the event of such an emergency, the Commissioner directed the INS to prepare its own operational plan consistent with the overall Departmental plan. A Mass

Immigration Emergency Plan for South Florida was drafted and recently updated in June of this year.

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It should be recognized that the INS plan is reactive in nature, that is, once an immigration emergency has been determined to exist, the necessary resources would be applied to address the emergency. Through routine day-to-day contacts, the INS offices in Miami maintain a liaison with other Federal, state and local agencies. If an emergency situation were to occur in South Florida, the framework for an appropriate response is in place. Coordination meetings were held earlier this year, and agencies and offices with significant roles in the South Florida Plan have developed contingency plans consistent with the framework of that plan. Planning meetings were also recently held with the Federal Emergency Management Agency and applicable U.S. military components.



The Immiration Emergency Fund

A $35 million dollar Immigration Emergency Fund was created by IRCA for use in providing for increased enforcement activities and for reimbursement of state and local governments in providing assistance in meeting an immigration emergency as determined by the President and certified to the House and Senate Judiciary Committees. The Immigration Act of 1990 provided that up to $20 million of the Fund is available to reimburse states and

localities for providing assistance as required by the Attorney General. Such reimbursements may be made to states and localities upon application to the Attorney General without the requirement of a Presidential declaration.

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State and local officials in Florida have recently contended that their social welfare and medical systems are being overwhelmed by the increasing number of Cuban arrivals in the Miami area. Regulations for access to the fund have been drafted by the INS. The draft regulations require applications for reimbursements to be in writing, detailing the nature of the assistance provided and a justification for the amount of the reimbursement being sought. Following receipt of the

application, the Attorney General would determine within 15 days whether the reimbursement is appropriate.



Asylum in Florida

The number of asylum applications filed in the Miami

District Office has fluctuated greatly over the past eleven years. We estimate that approximately 6,500 applications were filed in calender year 1991, down from 30,500 in 1989 and 21,500 in 1990. The substantially higher numbers in 1989 and 1990 were primarily due to applications filed by Central Americans.



Since the final asylum regulations became effective in October 1990, a number of improvements have ensued. The

establishment of the Asylum Officer Corps, the training of these Officers, and the supervision of Officers by the Refugee, Asylum, and Parole Office at INS headquarters has enhanced the quality of adjudication decisions and the process used to arrive at these

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decisions. In addition to the enhanced training, the

establishment of a refugee documentation center, the promulgation of clearer operating instructions, and the more efficient use of legal resource -and humans rights conditions materials have allowed the INS to provide clearer supervision and greater quality control. All of these factors should serve to provide greater consistency within the asylum process and more expeditious processing.



This concludes my statement. I would be pleased to respond to any questions you may have.

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Mr. MAZZOLI. I read your statement. It is very interesting. I would encourage my colleagues to read it. It does point out what you have done and the special training, including language training, that these new adjudicators have.
I guess numbers are changing. Can we agree on a set of numbers? I have before me a chart which suggests the total interdiction is 2,817. That is as of November 20. To the best of your knowledge, is that about right? Everybody sort of nods.
Admiral LEAHY. 2,819.
Mr. MAZZOLI. Sir?
Admiral LEAHY. 2,819, I have.
Mr. MAZZOLI. 2,819, OK. 2,819, as of the best knowledge we have as of today.
Returned to Haiti, 538.
Admiral LEAHY. 538.
Mr. MAZZOLI. 538, Admiral, OK.
Brought to the United States, 53?
Admiral LEAHY. 53.
Mr. MAZZOLI. 53 brought to the United States.
At Guantanamo, 483?
Admiral LEAHY. That number decreased because we have taken some out of there.
Mr. MAZZOLI. 447?
Admiral LEAHY. 447, that is right.
Mr. MAZZOLI. OK, 447.
Mr. MCKINLEY. Mr. Chairman, could I make a comment?
Mr. MAZZOLI. Sure.
Mr. MCKINLEY. On that particular number, 447 was where we started the day in Guantanamo. One flight of Haitians has already left, destination Honduras, with about 125 on board. We expect to have two more flights during the course of the day, an additional one to Honduras and one to Venezuela, which shows that the safe haven concept is working, and if it all goes as planned we will have removed 350 Haitians from Guantanamo in the course of the day, leaving a total of 97 there.
Mr. MAZZOLI. So the next two flights would be about 225, total, which would then come to 325 for the day. Mr. MCKINLEY. That is correct, Mr. Chairman. Mr. MAZZOLI. Which would leave 125-Mr. MCKINLEY. That leaves 97 by my count. Mr. MAZZOLI. Something under 100? Mr. MCKINLEY. I think 97. We started the day with 447; it was the 483 minus the 53 that went out. Mr. MAZZOLI. Admiral, on cutters, 1,779? Admiral LEAHY. 1,781, sir. Mr. MAZZOLI. 1,781.
Just to clear up, and then we will come to the admiral for his statement, the court order covers all of the people at Guantanamo-whoever is a legal expert-it covers the people at sea, which is 1,781 people.
Mr. MCKINLEY. I think the right way to put that, Mr. Chairman, is that it covers repatriation. The court order deals with repatriation. It prevents taking anybody back into Port-au-Prince.

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Mr. MAZZOLI. So it doesn't have a number, it just says you cannot repatriate anybody of this group, whatever their category.
Mr. MCKINLEY. That is right. I don't think it says you can't take them to safe haven in the region. We are working on the assumption that a safe haven in the region is still an option that the court order allows, and, in fact, we are doing it.
Mr. MAZZOLI. Thank you.
Admiral.
STATEMENT OF REAR ADM. WILLIAM P. LEAHY, JR., CHIEF,
OFFICE OF LAW ENFORCEMENT AND DEFENSE OPERATIONS,
U.S. COAST GUARD, DEPARTMENT OF TRANSPORTATION
Admiral LEAHY. Good morning, Mr. Chairman and members of the subcommittee. I appreciate this opportunity to be here before you today and represent the Commandant of the Coast Guard, Admiral Kime, and discuss the Coast Guard's migrant interdiction program.
I have a prepared statement to submit for the record, and, with your permission, I would like to read a brief summary of my statement.
Mr. MAZZOLI. Certainly. Your statement will be made a part of the record, Admiral.
Admiral LEAHY. Thank you, sir.
The Coast Guard is our Nation's primary maritime Federal law enforcement agency. Coast Guard migrant interdiction operations are a result of the Presidential proclamation and Executive order of September 29, 1981, which suspended the entry of undocumented aliens into the United States from the high seas. The Coast Guard was directed to enforce this order at sea.
In carrying out the Executive order, the Coast Guard, assisted by Immigration and Naturalization Service--or INS--agents and interpreters, stops and boards certain vessels when there is reason to believe such vessels are engaged in the transportation of illegal aliens. The passengers are interviewed by INS agents to determine whether they are economic migrants or persons with a colorable claim of political asylum. Migrants are returned to their point of origin if they are in violation of the United States or foreign immigration laws.
The Coast Guard does not repatriate Haitians or any other migrants if they have not been interviewed by an INS agent, if they have been interdicted within the U.S. territorial seas, or if they have an emergency medical condition that requires evacuation prior to a status determination.
Haiti is the only nation with which the United States has a migrant interdiction agreement. This agreement allows the Coast Guard to board Haitian flag vessels on the high seas when we suspect there are illegal aliens aboard. INS agents then screen the passengers and determine who should be returned to Haiti. Normally, migrant interdiction operations consist of one cutter stationed in the Windward Pass supported by air surveillance from a Coast Guard aviation detachment at Guantanamo Bay, Cuba. Prior to the September coup, repatriation of economic migrants and delivery to the United States of persons requiring further

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screening occurred as routine procedure under the bilateral agreement. A Coast Guard liaison officer stationed in Port-au-Prince, Haiti, coordinates the return of boat people with representatives of the Haitian Government and the International Red Cross. Our location in the Windward Pass departure zone provides both a critical interdiction presence and an important search-and-rescue response capability.
Coast Guard migrant interdiction is very much a humanitarian as well as a law enforcement mission. Migrants take great risk and endure significant hardships in their attempts to get to the United States. Typically, their vessels are overloaded, unseaworthy, lacking basic safety equipment, and are operated by inexperienced people. A great number of migrants that have been returned to Haiti by the Coast Guard would most likely have perished at sea had they not been interdicted.
Since 1981, the Coast Guard has interdicted over 32,500 illegal aliens, over 25,000 of whom have been Haitian. We have also interdicted increasing numbers of migrants from Cuba and the Dominican Republic.
Mr. Chairman, I will now update you on what has happened since the September coup. We initially saw a lull of activity until our first interdiction of October 28 when we recovered 19 people. Since then, we have picked up 2,817 Haitian boat people.
Mr. MAZZOLI. What was it? From the coup to Admiral LEAHY. From the coup until October 28.
Mr. MAZZOLI. Was it about 1 month or so?
Admiral LEAHY. I think the coup was on September 30.
Mr. MAZZOLI. So roughly 1 month.
Admiral LEAHY. Twenty-eight days-yes, sir.
Mr. MAZZOLI. And are your cutters in a position where they can identify Haitians who have left 1 day earlier? Two days earlier? How long does it take the Haitians to get to where the cutters are?
Admiral LEAHY. It depends where they depart from, sir.
Mr. MAZZOLI. There are different departure points in Haiti?
Admiral LEAHY. Yes, sir, there are.
Mr. MAZZOLI. Are there two or three familiar ones?
Admiral LEAHY. Well, we get some that come right out of what they call the jaw, which is the western part of Haiti, and you get those that come out of the northern part-the northwestern part.
Mr. MAZZOLI. So it takes them longer to get to the point.
Admiral LEAHY. Yes, sir.
Mr. MAZZOLI. How many days had they been at sea?
Admiral LEAHY. I can't answer that. I don't know.
Mr. MAZZOLI. Thank you. I appreciate it.
Admiral LEAHY. OK.
Since that time, we have picked up 2,817 Haitian boat people.
There continues to be an increase in the numbers and the rate of people leaving Haiti. Yesterday, we recovered 645 people. We returned 538 people on November 18 and 19 to Port-au-Prince, Haiti. As of November 19, a temporary restraining order issued by the U.S. District Court, Southern District of Florida, has precluded further repatriation. Four hundred and forty-seven Haitians remain onshore at Guantanamo Bay, Cuba, minus the ones that we were just told about by the State Department here. A small number of

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Haitians with colorable claims of asylum have been flown to the United States for further processing. The remainder, some 1,788 Haitians, remain aboard seven cutters while we continue with recovery efforts.
In response to this increased outflow, we have assigned additional vessels to this operation. As of this morning, there are 15 Coast Guard cutters involved. This response has substantially decreased our counternarcotics and fisheries enforcement efforts and reduced our capacity to respond to domestic search and rescue.
We have also sent additional medical personnel down, along with shipments of blankets, food, and medical supplies. Our crews are doing their very best to provide food and shelter to those we recover. At the present rate, however, and based upon the constraints placed upon us by the restraining order, our ships will be loaded to capacity in about 2 days. Once we reach this point, we will not be able to continue recovery operations unless we can off-load those we have recovered.
Thank you, Mr. Chairman.
Mr. MAZZOLI. Thank you, Admiral. [The prepared statement of Admiral Leahy follows:]

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PREPARED STATEMENT OF REAR ADM. WILLIAM P. LEAHY, JR., CHIEF, OFFICE OF LAW
ENFORCEMENT AND DEFENSE OPERATIONS, DEPARTMENT OF TRANSPORTATION

GOOD MORNING, MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE. IT IS A PLEASURE TO APPEAR BEFORE YOU TODAY TO REPRESENT THE COMMANDANT, ADMIRAL KIME, AND DISCUSS THE COAST GUARD'S MIGRANT INTERDICTION PROGRAM.

THE COAST GUARD IS OUR NATION'S PRIMARY FEDERAL LAW

ENFORCEMENT AGENCY IN THE MARITIME ENVIRONMENT. COAST GUARD MIGRANT INTERDICTION OPERATIONS ARE A RESULT OF THE PRESIDENTIAL PROCLAMATION 4865 HIGH SEAS INTERDICTION OF ILLEGAL ALIENS AND EXECUTIVE ORDER 12324 INTERDICTION OF ILLEGAL ALIENS, THAT WERE BOTH ISSUED ON SEPTEMBER 29, 1981. THE EXECUTIVE ORDER DIRECTED THE SECRETARY OF STATE TO ENTER INTO COOPERATIVE ARRANGEMENTS WITh FOREIGN GOVERNMENTS FOR THE PURPOSE OF PREVENTING ILLEGAL MIGRATION TO THE UNITED STATES BY SEA. THE EXECUTIVE ORDER ALSO TASKED THE COAST GUARD WITH ENFORCING THIS DIRECTIVE THROUGH THE INTERDICTION OF A CLASS OF "DEFINED VESSELS" CARRYING UNDOCUMENTED ALIENS. VESSELS WITHIN THAT CLASS INCLUDE VESSELS OF THE U.S., STATELESS VESSELS, AND VESSELS OF NATIONS WITH WHOM THE U.S. HAS SPECIAL ARRANGEMENTS TO TAKE SUCH ACTIONS. FINALLY, THE DEPARTMENT OF JUSTICE, IN CONSULTATION WITH THE SECRETARY OF STATE AND THE SECRETARY OF THE DEPARTMENT IN WHICH THE COAST GUARD IS OPERATING, WAS TASKED WITH ENSURING THAT THE U.S. MEETS

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ITS INTERNATIONAL OBLIGATIONS CONCERNING THOSE WHO FLEE THEIR HOMELAND TO AVOID POLITICAL PERSECUTION.

IN IMPLEMENTING THE EXECUTIVE ORDER, THE COAST GUARD, ASSISTED BY IMMIGRATION AND NATURALIZATION SERVICE (I.N.S.) AGENTS AND INTERPRETERS, STOPS AND BOARDS "DEFINED VESSELS" WHEN THERE IS REASON TO BELIEVE SUCH VESSELS ARE ENGAGED IN THE TRANSPORTATION OF ILLEGAL ALIENS. A VESSEL AND ITS PASSENGERS ARE RETURNED TO THEIR POINT OF ORIGIN WHEN THERE IS REASON TO BELIEVE THERE HAS BEEN A VIOLATION OF EITHER U.S. OR FOREIGN

IMMIGRATION LAWS.

SINCE 1981, THE COAST GUARD HAS INTERDICTED OVER 32.500

ILLEGAL ALIENS; WHILE THE VAST MAJORITY (OVER 25.000) HAVE BEEN HAITIAN, RECENT TRENDS HAVE SHOWN A DRAMATIC INCREASE IN BOTH DOMINICAN REPUBLIC AND CUBAN INTERDICTIONS.

CURRENTLY, HAITI IS THE ONLY NATION WITH WHICH THE U.S. HAS A MIGRANT INTERDICTION AGREEMENT. THE HAITIAN INTERDICTION AGREEMENT, WHICH WAS SIGNED ON SEPTEMBER 23, 1981, ALLOWS THE COAST GUARD TO BOARD HAITIAN FLAG VESSELS ON THE HIGH SEAS WHEN U.S. AUTHORITIES BELIEVE THE VESSEL MAY BE INVOLVED IN THE IRREGULAR CARRIAGE OF PASSENGERS FROM HAITI. WHEN INQUIRIES SUGGEST AN OFFENSE AGAINST EITHER U.S. OR HAITIAN LAWS, THE AGREEMENT CONSTITUTES CONSENT BY THE GOVERNMENT OF HAITI TO DETENTION OF THEIR VESSEL AND PASSENGERS, PENDING THE OUTCOME OF I.N.S. INTERVIEWS TO DETERMINE PASSENGER STATUS. DURING INDIVIDUAL INTERVIEWS, THE I.N.S. AGENTS ATTEMPT TO DETERMINE WHETHER PASSENGERS ARE ECONOMIC MIGRANTS OR PERSONS WITH A VALID CLAIM OF POLITICAL ASYLUM. PRIOR TO THE SEPTEMBER 1991 COUP IN

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HAITI, REPATRIATION OF ECONOMIC MIGRANTS NOT QUALIFYING FOR REFUGEE STATUS, AS WELL AS THE DELIVERY TO THE U.S. OF PERSONS REQUIRING FURTHER SCREENING, HAS OCCURRED AS ROUTINE PROCEDURE UNDER THE BILATERAL AGREEMENT.

THE COAST GUARD MIGRANT INTERDICTION OPERATION IS VERY MUCH A HUMANITARIAN AS WELL AS A LAW ENFORCEMENT MISSION. MIGRANTS TAKE GREAT RISKS AND ENDURE SIGNIFICANT HARDSHIPS IN THEIR ATTEMPTS TO FLEE THEIR COUNTRY AND TRAVEL TO THE U.S. IN MOST CASES, MIGRANT VESSELS INTERDICTED AT SEA ARE OVERLOADED, UNSEAWORTHY, LACKING BASIC SAFETY EQUIPMENT, AND OPERATED BY INEXPERIENCED SAILORS. A GREAT NUMBER OF MIGRANTS THAT HAVE BEEN RETURNED TO HAITI BY THE COAST GUARD WOULD MOST LIKELY HAVE PERISHED AT SEA HAD THEY NOT BEEN INTERDICTED.

NORMAL COAST GUARD MIGRANT INTERDICTION OPERATIONS CONSIST OF ONE MEDIUM ENDURANCE CUTTER, TYPICALLY EQUIPPED WITH A HELICOPTER, PATROLLING IN THE VICINITY OF THE WINDWARD PASSAGE BETWEEN CUBA AND HAITI, WITH AN I.N.S. INTERVIEW TEAM ABOARD. THE CUTTER RECEIVES SURVEILLANCE SUPPORT FROM A COAST GUARD AVIATION DETACHMENT STAGED AT GUANTANAMO BAY, CUBA. OUR PRESENCE IN THE WINDWARD PASS DEPARTURE ZONE PROVIDES BOTH A CRITICAL INTERDICTION PRESENCE AND AN IMPORTANT SEARCH AND RESCUE RESPONSE CAPABILITY. IN ADDITION TO BEING EXTREMELY UNSAFE, THE HAITIAN VESSELS WHICH HAVE BEEN INTERDICTED INVARIABLY LACK SUFFICIENT FOOD AND WATER. THESE REALITIES UNDERSCORE THE NECESSITY OF APPROACHING MIGRANT INTERDICTION AS A POTENTIAL SEARCH AND RESCUE CASE FIRST, LEAVING THE ISSUE OF STATUS AND DISPOSITION OF PASSENGERS TO BE RESOLVED LATER. A COAST GUARD LIAISON OFFICER

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STATIONED IN PORT AU PRINCE, HAITI, COORDINATES WITH THE HAITIAN GOVERNMENT DURING REPATRIATION OF INTERDICTED HAITIAN MIGRANTS, AND ENSURES THAT THE INTERNATIONAL COMMITTEE OF THE RED CROSS IS NOTIFIED TO MEET THE RETURNING MIGRANTS UPON ARRIVAL.

THE COAST GUARD DOES NOT MAKE DETERMINATIONS AS TO THE

STATUS OF MIGRANTS ENCOUNTERED ON THE HIGH SEAS. I.N.S. AGENTS INTERVIEW ALL PERSONS INTERCEPTED BY THE COAST GUARD AND DETERMINE WHETHER MIGRANTS QUALIFY FOR REFUGEE STATUS OR ARE ECONOMIC MIGRANTS IN VIOLATION OF IMMIGRATION LAWS. ALL COAST GUARD CUTTERS ON DEDICATED MIGRANT INTERDICTION PATROLS CARRY AN I.N.S. AGENT AND AN INTERPRETER. ALSO, I.N.S. AND COAST GUARD PERSONNEL ARE COLLOCATED IN AN OFFICE IN MIAMI, FLORIDA, FOR EFFICIENT COORDINATION BETWEEN THE AGENCIES. INCIDENTS INVOLVING ENCOUNTERS WITH MIGRANTS AT SEA BY CUTTERS NOT CARRYING I.N.S. AGENTS ARE COORDINATED THROUGH THIS OFFICE. WHERE POSSIBLE, I.N.S. AGENTS ARE TRANSPORTED TO THE CUTTER TO DETERMINE THE STATUS OF THOSE INTERDICTED. IN CIRCUMSTANCES WHERE IT IS NOT POSSIBLE TO DELIVER AN I.N.S. AGENT TO THE CUTTER, THE MIGRANTS ARE TURNED OVER TO AGENTS UPON ARRIVAL IN A U.S. PORT. THE COAST GUARD DOES NOT REPATRIATE HAITIAN MIGRANTS WHO HAVE NOT BEEN INTERVIEWED BY AN I.N.S. AGENT, OR WHO ARE INTERDICTED WITHIN THE U.S. TERRITORIAL SEAS. ADDITIONALLY, THOSE HAVING EMERGENCY MEDICAL CONDITIONS THAT CANNOT BE ADEQUATELY TREATED ON SCENE BY COAST GUARD MEDICAL PERSONNEL ARE EVACUATED ASHORE FOR FURTHER CARE.

THERE IS NO MIGRANT INTERDICTION AGREEMENT WITH THE

DOMINICAN REPUBLIC. IN THE PAST TWO YEARS, HOWEVER, THERE HAVE

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BEEN INCREASING NUMBERS OF DOMINICAN REPUBLIC NATIONALS ATTEMPTING TO MAKE THE CROSSING OF THE MONA PASSAGE TO REACH PUERTO RICO. AS OF NOVEMBER 10, COAST GUARD VESSELS HAVE INTERCEPTED 1.034 DOMINICAN MIGRANTS IN 1991. OUR UNITS OPERATING IN THIS AREA ROUTINELY ENCOUNTER SMALL DOMINICAN REPUBLIC VESSELS WHICH ARE OFTEN UNSEAWORTHY AND OVERLOADED. IN ALL CASES TO DATE, PASSENGERS HAVE ACCEPTED REMOVAL TO THE SAFETY OF THE COAST GUARD CUTTER. I.N.S. TEAMS HAVE BEEN FLOWN TO THE SCENE TO CONDUCT ASYLUM SCREENING INTERVIEWS. A SPECIAL ARRANGEMENT FOR EACH CASE HAS THEN BEEN MADE WITH THE GOVERNMENT OF THE DOMINICAN REPUBLIC FOR THOSE QUALIFYING FOR REPATRIATION; TO DATE, THAT GOVERNMENT HAS BEEN RESPONSIVE IN ARRANGING FOR PROMPT RETURN. IN VIEW OF THE INCREASE IN CASES INVOLVING DOMINICANS, THE COAST GUARD AND I.N.S. JOINTLY REQUESTED THE DEPARTMENT OF STATE, IN ACCORDANCE WITH THE EXECUTIVE ORDER ON MIGRANT INTERDICTION, TO PURSUE AN AGREEMENT WITH THE DOMINICAN REPUBLIC SIMILAR TO THE ONE THE U.S. HAS WITH HAITI.

THE NUMBER OF CUBANS ARRIVING IN FLORIDA OR ASSISTED BY THE COAST GUARD HAS ALSO INCREASED DRAMATICALLY. THIS CALENDAR YEAR WE HAVE INTERCEPTED 1.796 CUBANS. THIS NUMBER IS GREATER THAN THE NUMBER OF CUBANS INTERCEPTED IN THE PREVIOUS EIGHT YEARS COMBINED. THIS INCREASE IS GENERALLY ATTRIBUTED TO THE DETERIORATING ECONOMIC CONDITIONS IN CUBA COUPLED, AT TIMES, WITH LAX CUBAN ENFORCEMENT PATROLS. WE INTERCEPT A LARGE NUMBER OF THESE PEOPLE BECAUSE OF THE CLOSE PROXIMITY OF CUBA TO FLORIDA. WHILE SOME OF THOSE MAKING THE TRANSIT FROM CUBA DO SO IN VARIOUS SMALL FISHING VESSELS AND PLEASURE CRAFT, MANY OTHERS CONTINUE TO

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ATTEMPT THIS PERILOUS TRANSIT ON RAFTS, INNER TUBES, AND OTHER MAKE-SHIFT CONVEYANCES. THE INDIVIDUALS MAKING SUCH TRANSITS ARE AT THE MERCY OF THE WINDS AND SEA CURRENTS. BASED ON THE PREVALENCE OF DEHYDRATION AND SHARK BITES AMONG THOSE WE HAVE INTERCEPTED, IT IS LIKELY THAT THERE ARE MANY RAFTERS WHO PERISH IN THEIR ATTEMPT TO REACH THE U.S. COAST GUARD UNITS ENCOUNTER THESE CASES WHILE CONDUCTING ROUTINE OPERATIONS IN THE FLORIDA STRAITS. WHEN WE INTERDICT CUBANS ENROUTE THE UNITED STATES, OUR PROCEDURE IS TO DELIVER THEM TO AN APPROPRIATE U.S. PORT AND TURN THEM OVER TO THE I.N.S. FOR FURTHER PROCESSING. IN THE PAST YEAR, DUE TO THE INCREASED POTENTIAL FOR LOSS OF LIFE IN THIS AREA, WE HAVE INCREASED BOTH OUR AIRCRAFT AND VESSEL PATROL PRESENCE.

THE COAST GUARD WILL CONTINUE TO INTERDICT MIGRANTS OF ALL NATIONALITIES WHO ATTEMPT TO ILLEGALLY ENTER THE UNITED STATES BY SEA. EACH PERSON WILL BE TREATED WITH PROPER RESPECT AND CARE -THE SAFETY OF EVERYONE INVOLVED IN THIS MISSION WILL ALWAYS BE OUR HIGHEST PRIORITY.

THANK YOU MR. CHAIRMAN. I WOULD BE HAPPY TO ANSWER ANY QUESTIONS.

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Mr. MAZZOLI. Let me yield myself 5 minutes.
Let me start out by once again underscoring-not that any of you need it-a couple of points. One is that you are not individually responsible for anything that has happened; you are not being chastised or admonished in any way by this panel. But certainly we need information in order to carry to the policymakers above you our views, such as they are, about this problem. So I want you to be sure of that. We appreciate the work you are doing as Federal servants and, in the case of the Coast Guard, in dangerous service at that, and we appreciate that, and we honor it, and we respect it.
Let me ask you, Admiral: Would the Coast Guard normally sail and patrol the Windward Passage? and would it normally have done that since 1981 without the interdiction treaty?
Admiral LEAHY. We possibly would have had a craft down there from time to time, because it is a choke point involved with the counternarcotics effort.
Mr. MAZZOLI. All right.
Absent the 1981 agreement, would the Coast Guard-you mentioned the term "search and rescue," because you say your search and rescue operations and your antidrug enforcement duties are being imperiled or reduced because of the 15 cutters who are involved in interdiction.
Admiral LEAHY. Right. The search and rescue effort that I am talking about would be the search and rescue effort that we do with the Haitians. They would never make it up here, most of them, if they weren't interdicted, sir.
Mr. MAZZOLI. Does the Coast Guard do any routine search and rescue in any of that area of the Caribbean-absent this treaty, would it do that?
Admiral LEAHY. In the vicinity, within 150 to 200 miles, yes, sir. We had a case yesterday, as a matter of fact. They were going to get back to Guantanamo Bay today.
Mr. MAZZOLI. How many cutters do you have involved?
Admiral LEAHY. We have 15 down there now.
Mr. MAZZOLI. How many do you have totally?
Admiral LEAHY. Well, we have a total of about 33 medium-endurance and high-endurance cutters on the east coast.
Mr. MAZZOLI. That is the total east coast, that is not just in the Caribbean.
Admiral LEAHY. That is the total; yes, sir.
Mr. MAZZOLI. Are your cutters out of a certain port?
Admiral LEAHY. Yes, sir-all up and down the east coast.
Mr. MAZZOLI. Several ports, not just one.
Admiral LEAHY. Yes, sir.
Mr. MAZZOLI. I think it is fair to say then, in this first-tier activity, which is what we are talking about, which is trying to take care of the emergency, we have reached almost the point that we can't even take care of the emergency people unless we find some solution to get them to some safe harbor either by granting them temporary protected status or by providing some other type of executive parole. We have reached the point of capacity of your 15 cutters. You have only 30 cutters totally along the eastern seaboard, and you could not probably assign all those boats if you wished to, to that Windward Passage. Is that correct?

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Admiral LEAHY. Correct, sir.
Mr. MAZZOLI. Which is all the more reason why the quicker we can get something done for the emergency, the quicker you can get back to normal search and rescue and normal antidrug activity.
Admiral LEAHY. Yes, sir.
Mr. MAZZOLI. Let me ask you, since you are the sort of senior lawyer here, tell me a little bit about the interdiction agreement of 1981.
Mr. RANGEL. Mr. Ford.
Mr. MAZZOLI. Excuse me. I apologize, Mr. Ford.
Tell me about that agreement. The Ambassador said it was acknowledged by the Aristide government. What does that mean? Was there a formal declaration by the Aristide government that the interdiction treaty was a good thing and they wanted it continued as is?
Mr. FORD. I am not privy to that information. The only thing that I am privy to--and I think maybe the Coast Guard could answer this-there were some inconsistent statements as to numbers of people leaving Haiti during the Aristide tenure in office. I heard a number that 1,360 people did, in fact, depart Haiti on boats during Aristide's tenure.
Mr. MAZZOLI. Let me ask you a question. If you do not, I will try to figure out who does know something about that agreement and whether or not, in fact, it is the way we ought to continue. I said in my statement at the beginning of our hearing today, we have to perhaps make some recommendation to the Committee on Foreign Affairs that deals with this, whether or not this agreement of 1981 should be continued, or whether it ought to be modified, or whether it is no longer useful.
May I just ask one final question, Mr. Ford? Are you privy to any knowledge that within the Justice Department, Mr. Barr or others, that there is any discussion now of extending TPS to these people?
Mr. FORD. Yes, sir. The way that temporary protected status happens-and it is generally by letter from Members of Congress-a letter is addressed to the Attorney General, or some instances have been by phone call, and we have asked people to put all of the pertinent facts in the letter.
As you know, there are specific requirements under the temporary protected status legislation, and when this first came up a mechanism had to be put together, if you will. Priscilla Clapp from the Office of Refugee Programs, and myself, and INS, we put together kind of a working group to discuss not just countries that are written about but situations around the hemisphere where things may come up, and, as you know, in the case of Somalia, a designation was made for a period of a year.
Lebanon, Liberia, and Kuwait were mentioned in the committee report language as likely countries for this type of thing, and a decision was made by former Attorney General Thornburgh to include those.
Mr. MAZZOLI. And are you aware of any conversations today with Mr. Barr or in your Department dealing with TPS for Haitians? Mr. FORD. We have been meeting on TPS and Haitian issues for the last 4 months.


51-225 0 92 4

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Mr. MAZZOLI. Did you meet yesterday? Did you all talk about it yesterday?
Mr. FORD. No. We talked about it as recently as Sunday.
Mr. MAZZOLI. As recently as Sunday. And do you know whether or not there is any denouement to this discussion?
Mr. FORD. I think the feeling of most of the people at the time is that this issue probably is not ripe regarding Haiti.
Mr. MAZZOLI. I will yield, because I don't want to go too far beyond my time, but I believe I am aware that some of our colleagues, perhaps some present today, have written and have never gotten a letter back from the Attorney General.
Mr. FORD. Well, I think that is a sign, a good sign, because it means it is under consideration.
Mr. MAZZOLI. Well, the way we handle case work in my office is not to stiff the people who write but to send them an acknowledgment: "Thank you very much for your letter. It is being taken under advisement." That, you know, makes them aware that their letter hasn't been lost in the great maw of the Federal Government.
Mr. FORD. We call that an interim response, and after our briefing last Thursday, Congressman, I went back to our executive secretariat and said that if a letter cannot be answered in 2 weeks that an interim response is to go out.
Mr. MAZZOLI. Those interim responses have been dispatched?
Mr. FORD. Yes.
Mr. MAZZOLI. Thank you very much.
My time has expired. Let me start, in fairness to the gentlemen from the committee, with the gentleman from California, Mr. Berman.
Mr. BERMAN. Thank you, Mr. Chairman.
I missed the testimony of this panel, so if it has been covered just let me know, and I'll find out the answers from staff.
On Monday, the State Department expressed its confidence that returning Haitians will not be harmed by those in power in Haiti. On what basis did the State Department make those assurances? And did we receive assurances from those in power in Haiti regarding that?
Mr. GELBARD. The decision to repatriate people was based on the sense that the people who were being repatriated did not have political backgrounds on the basis of the extensive interviews conducted with the INS.
Mr. BERMAN. Extensive interviews? Mr. GELBARD. By the INS.
Mr. BERMAN. On the boats?
Mr. GELBARD. Yes, sir. This is the normal procedure and has been conducted
Mr. BERMAN. I say seriously and not at all facetiously, I wonder how the interview process on a packed boat in the context of the situation of apprehension can really delve at and get at the truth and allow for a fair application of the asylum standards. Mr. MCNARY. Perhaps we can explain that procedure, Congressman.
Mr. BERMAN. Pardon?
Mr. MCNARY. We can explain that procedure because-

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Mr. BERMAN. I would be interested in hearing that, but I guess first I would like to hear about the repatriation.
Mr. GELBARD. The normal procedure when people have been repatriated has been to deal with the Haitian Red Cross. The Haitian Red Cross was consulted and held discussions with the de facto regime in Haiti and received sufficient assurances that the process went ahead. We have no reason to believe at this point that any of the people who have been repatriated, based on the sense that the Haitian Red Cross had, are going to suffer any reprisals, and historically, under a wide range of nondemocratic regimes in Haiti, this has been the case, and we have no record of any reprisals against Haitians who have returned.
Mr. BERMAN. Are we able to monitor that, or are we depending on the Haitian Red Cross to monitor that?
Mr. GELBARD. We have a very reduced Embassy at this time due to circumstances in Haiti. We are attempting to monitor this ourselves and also in conjunction with private voluntary organizations, human rights groups operating in Haiti, the Red Cross, and other entities, and our Embassy intends to stay in very close contact with all of these groups.
Mr. BERMAN. So it is fair to say then, from what you have said, that the assurances we received were indirect; they came through the Haitian Red Cross based on their contacts with the Haitian rulers at the present time, not on our own direct contacts; and that the monitoring of the condition of the people repatriated will be done, as much as possible, by the Embassy but with a great deal of reliance on the voluntary organizations, human rights groups, and other organizations in Haiti.
Mr. GELBARD. Yes, Congressman, and those have been the same kinds of entities we have relied upon in the past because of the extensive nature, the widespread network, of these organizations throughout Haiti. The experience thus far has been that none of the people who have returned have received any kind of reprisals.
Mr. BERMAN. Then for my final question on this round, if I could just hear a little description of the interview process on the boats, how that works in what would seem to be serious impediments to having someone fully and adequately recite their own situation in that condition, having just been picked up-how that is going to be really a truth-finding process.
Mr. McNARY. Let me start out by saying the conditions are not optimal. We have some teams of interviewers there, and these teams include an interpreter-there are 12 teams-an interpreter who speaks Creole.
First of all, all of the adjudicators have been specially trained to make this adjudication, to apply the standards, to tap the various country conditions, and to take the facts. They have certain techniques they have been trained in. They have started out with a certain introductory briefing for the applicant, which explains the purpose of the interview. Then they go into something on the order of a 20-minute indepth interview which is conducted through the use of a new interview questionnaire that has been established.
If a credible claim from that interview is made-and I don't think you were here; I mentioned that so far 85 people have made a credible claim; 53 have been brought into the United States; 32

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'T CUBAN AND HAITIAN IMMIGRATION COLUMDIA UNI'VERSImy LIBRARIES JUN -LPca U. S. DEJrId4-glNG COPY BEFORE THE SUBCOMMITTEE ON INTERNATIONAL LAW, IMMIGRATION, AND REFUGEES OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED SECOND CONGRESS FIRST SESSION NOVEMBER 20, 1991 Serial No. 31 Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE WASHINGTON : 1992 For sale by the U.S. Government Printing Office Superintendent of Documents. Congressional Sales Office, Washington, DC 20402 ISBN 0-16-037674-2 t02e J 1 K' 51-225

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r P a~7 E 199qI E. COMMITTEE ON THE JUDICIARY JACK BROOKS, Texas, Chairman DON EDWARDS, California JOHN CONYERS, JR., Michigan ROMANO L. MAZZOLI, Kentucky WILLIAM J. HUGHES, New Jersey MIKE SYNAR, Oklahoma PATRICIA SCHROEDER, Colorado DAN GLICKMAN, Kansas BARNEY FRANK, Massachusetts CHARLES E. SCHUMER, New York EDWARD F. FEIGHAN, Ohio HOWARD L. BERMAN, California RICK BOUCHER, Virginia HARLEY O. STAGGERS, JR., West Virginia JOHN BRYANT, Texas MEL LEVINE, California GEORGE E. SANGMEISTER, Illinois CRAIG A. WASHINGTON, Texas PETER HOAGLAND, Nebraska MICHAEL J. KOPETSKI, Oregon JOHN F. REED, Rhode Island HAMILTON FISH, JR., New York CARLOS J. MOORHEAD, California HENRY J. HYDE, Illinois F. JAMES SENSENBRENNER, JR., Wisconsin BILL McCOLLUM, Florida GEORGE W. GEKAS, Pennsylvania HOWARD COBLE, North Carolina D. FRENCH SLAUGHTER, JR., Virginia LAMAR S. SMITH, Texas TOM CAMPBELL, California STEVEN SCHIFF, New Mexico JIM RAMSTAD, Minnesota GEORGE ALLEN, Virginia JONATHAN R. YAROWSKY, General Counsel ROBERT H. BRINK, Deputy General Counsel ALAN F. COFFEY, JR., Minority Chief Counsel SUBCOMMITTEE ON INTERNATIONAL LAW, IMMIGRATION, AND REFUGEES ROMANO L. MAZZOLI, Kentucky, Chairman CHARLES E. SCHUMER, New York HOWARD L. BERMAN, California JOHN BRYANT, Texas MICHAEL J. KOPETSKI, Oregon BILL McCOLLUM, Florida LAMAR S. SMITH, Texas GEORGE ALLEN, Virginia EUGENE PUGLIESE, Counsel LESLIE L. MEGYERI, Assistant Counsel CARMEL FISK, Minority Counsel (II) 178c q

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CONTENTS HEARING DATE Page November 20, 1991. ...1 OPENING STATEMENT Mazzoli, Hon. Romano L., a Representative in Congress from the State of Kentucky, and chairman, Subcommittee on International Law, Immigration, and Refugees .1 WITNESSES Dominguez, Maria R., directoring attorney, American Immigration Lawyers Association Pro Bono Project, South Florida Chapter. 154 Fascell, Hon. Dante B., a Representative in Congress from the State of Florida. 5 Gelbard, Robert S., Principal Deputy Assistant Secretary of State for InterAmerican Affairs, Department of State, accompanied by Brunson McKinley, Deputy Assistant Secretary of State, Bureau of Refugee Programs. ..57 Guttentag, Lucas, director, Immigrants' Rights Project, American Civil Liberties Union .164 Helton, Arthur C., director, Refugee Project, Lawyers Committee for Human Rights .113 Leahy, Rear Adm. William P., Jr., Chief, Office of Law Enforcement and Defense Operations, U.S. Coast Guard, Department of Transportation. 83 Lehman, Hon. William, a Representative in Congress from the State of Florida. .26 Lewis, Hon. Tom, a Representative in Congress from the State of Florida .42 Little, Cheryl A.E., supervising attorney, on behalf of Haitian Refugee Center, Inc ..141 McCalla, Jocelyn, executive director, National Coalition for Haitian Refugees. 134 McNary, Gene, Commissioner, Immigration and Naturalization Service, accompanied by Ricardo Inzunza, Deputy Commissioner, and Rex J. Ford, Associate Deputy Attorney General, Office of the Deputy Attorney General, D epartm ent of Justice. 68 Owens, Hon. Major R., a Representative in Congress from the State of New York. 44 Rangel, Hon. Charles B., a Representative in Congress from the State of New York. 20 Smith, Hon. Lawrence J., a Representative in Congress from the State of Florida. .33 Stein, Daniel A., executive director, Federation for American Immigration Reform. .182 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Dominguez, Maria R., directoring attorney, American Immigration Lawyers Association Pro Bono Project, South Florida Chapter: Prepared statement. 157 (III)

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IV Page Fascell, Hon. Dante B., a Representative in Congress from the State of Florida: Editorial, "Stop Haitian Interdiction!", the Miami Herald, dated November 20, 1991. 41 Letter to President Bush from Representatives Fascell, Lehman, and Smith of Florida, dated July 18, 1991. .18 P repared statem ent .8 Gelbard, Robert S., Principal Deputy Assistant Secretary of State for InterAmerican Affairs, Department of State: Prepared statement .60 Reply to Representative Kopetski's request on Haiti .102 Guttentag, Lucas, director, Immigrants Rights Project, American Civil Liberties Union, and Judy Rabinovitz, staff counsel: Prepared statement. 166 Helton, Arthur C., director, Refugee Project, Lawyers Committee for Human R ights: Prepared statem ent. 116 Kopetski, Hon. Michael J., a Representative in Congress from the State of Oregon: Prepared statement .48 Leahy, Rear Adm. William P., Jr., Chief, Office of Law Enforcement and Defense Operations, U.S. Coast Guard, Department of Transportation: Prepared statement ....86 Lehman, Hon. William, a Representative in Congress from the State of Florida: Prepared statement ..28 Little, Cheryl A.E., supervising attorney, on behalf of Haitian Refugee Center, Inc.: Prepared statement. 144 Mazzoli, Hon. Romano L., a Representative in Congress from the State of Kentucky, and chairman, Subcommittee on International Law, Immigration, and Refugees: Temporary restraining order issued November 19, 1991, concerning Haitians .52 Letter to Acting Attorney General William J. Barr, from Robert D. Evans, director, American Bar Association, dated November 18, 1991. 55 McCalla, Jocelyn, executive director, National Coalition for Haitian Refugees: Prepared statement ..136 McNary, Gene, Commissioner, Immigration and Naturalization Service: Prepared statement .70 Rangel, Hon. Charles B., a Representative in Congress from the State of New York: Prepared statement ..23 Smith, Hon. Lawrence J., a Representative in Congress from the State of Florida: Prepared statement ..37 Stein, Daniel A., executive director, Federation for American Immigration Reform: Prepared statement .184 APPENDIXES Appendix 1.-Statement of Talbot D'Alemberte, president, American Bar Association. 213 Appendix 2.-Statement of Ralston H. Defenbaugh, Jr., executive director, Lutheran Immigration and Refugee Service .214 Appendix 3.-Statement of Dale S. De Haan, director, Immigration and Refugee Program Church W orld Service. 218 Appendix 4.-Letter from Robert D. Evans, director, Washington Office of the A m erican Bar A ssociation .223 Appendix 5.-Statement of Rev. Richard S.J. Rsycavage, executive director, Migration and Refugee Services, U.S. Catholic Conference. 225 Appendix 6.-Statement of the American Jewish Committee. 236 Appendix 7.-Statement of Hon. Ed Towns, a Representative in Congress from the State of N ew Y ork. 237 Appendix 8.-Statement of Washington Office on Haiti ..241

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CUBAN AND HAITIAN IMMIGRATION WEDNESDAY, NOVEMBER 20, 1991 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON INTERNATIONAL LAW, IMMIGRATION, AND REFUGEES, COMMITTEE ON THE JUDICIARY, Washington, DC. The subcommittee met, pursuant to notice, at 10:05 a.m., in room 2237, Rayburn House Office Building, Hon. Romano L. Mazzoli (chairman of the subcommittee) presiding. Present: Representatives Romano L. Mazzoli, Howard L. Berman, John Bryant, Michael J. Kopetski, and Bill McCollum. Also present: Representatives John Conyers, Jr., and Benjamin A. Gilman. Staff present: Eugene Pugliese, counsel; Leslie L. Megyeri, assistant counsel; Lizzie Daniels, secretary; and Carmel Fisk, minority counsel. Mr. MAZZOLL The subcommittee will come to order. Mr. McCollum. Mr. MCCOLLUM. Mr. Chairman, if I might ask unanimous consent that the subcommittee permit the coverage of this hearing in whole or in part by television broadcast, radio broadcast, or still photography, in accordance with committee rule 5. Mr. MAZZOLI. Is there objection? The Chair hears none. It is so ordered. Mr. MCCOLLUM. Thank you. OPENING STATEMENT OF CHAIRMAN MAZZOLI Mr. MAZZOLI. The subcommittee will come to order. We will have an extensive hearing today on the whole question of the Cuban/ Haitian immigration movement. I have a few statements to make, and then I would certainly yield to my friend from Florida. Events are moving at a breakneck pace, and of course just this morning's paper contains the story of the fact that a Federal judge yesterday issued an order restraining the further movement of people back to Haiti who are on the high seas or who are in Cuba at Guantanamo, and it would not surprise me that even as we proceed today through our hearing if other material developments occur. So what we talk about today is in the context of fast-breaking developments and of our trying in some respect to play a little bit of catchup. It is interesting to note that this hearing today was set several weeks ago, and it is propitious that it occurs right in the niiddle of this maelstrom of activity, because I do think it gives us, all of us (1)

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2 on the panel and our distinguished witnesses, an opportunity to frame the issue and the opportunity to put a context to it that I think is so very important. These issues involve human beings, and therefore they have special pertinence to all of us. I realize that foreign policy is many-faceted and therefore composed of separate elements, and these elements have shadings, and they have texture, they have nuances, and it is hard to put an absolute yes or an absolute no to the issue. I do think, though, that foreign policy, while it has to be applicable to a number of situations-it may need again to have that texture and that shading-ought to have underlying principles, immutable principles. Our foreign policy ought to be consistent, it ought to be fair-handed, it ought to be even-handed, it must be equitable, it must treat the people in a balanced and fair way. Another element, another principle, I would say, is that of compassion. There has to be always concern for the human dimension. There has to be a humanity in this foreign policy. There must be a morality in the foreign policy. Therefore, applying these few thoughts to the factors before us, and particularly the factor of the Haitian immigration, it seems to me that our policy at this point toward Haiti and Haitians is constructed on legal principles, statutory principles, treaties, precedence. These are, intended or not, cold, inflexible, hard-edged; they don't have that kind of compassion, that feeling that I think they must have. I think our policy ought to be constructed not just along the lines of treaties and precedents and what-have-you but also with that humanitarian feeling, the principle of compassion, because people, human beings, are involved. I don't know that those are mutually exclusive. I don't think that they are somehow inconsistent one with the other. I think you can have a foreign policy based that way, and that is what I hope we can arrive at. Now this is not the province of this subcommittee or this committee, it is a province, among others, of the gentleman from Florida Mr. Fascell's Foreign Affairs Committee, the gentleman from New York's Committee on Ways and Means, a number of committees. However, I think our committee has an opportunity to help in the unified effort to reach that goal of a fair, even-handed foreign policy that does take into consideration the human dimension. Today, among many other things we will talk about is the temporary protected status, which the gentleman from Florida and I began working on many Congresses ago. In those days, it was called safe harbor; now it is called TPS. Should that be granted to the Haitians on the high seas, wherever they might be? It has been frequently granted and has been granted more recently to Liberians, Somali, Lebanese, and Kuwaits. We need to reexamine the whole policy of interdiction. That was a policy built along lines in the early 1980's with another government, and the Government has been long since deposed, and yet the policy continues. Should it be retained? Should it be abolished? Is it possible to modify that policy and make it applicable to what we have today? The embargo and asset freeze is a unified policy, I think it is an OAS policy. Has it outlived its usefulness? I mean it clearly is con-

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3 tributing to the dimensions of the debacle in Haiti itself, the economic debacle. It obviously doesn't make it easier for people who live in Haiti who want to stay there. On the other hand, should we relieve it at this point? Is there a chance to modify it? Are there other types of sanctions that can show the depth of our disgust at a freely elected democratic government being overthrown but, at the same time, help the people without hurting them? Is this an immigration emergency? Are we on the verge of it? We have at least three members from the State of Florida in our first panel today. Should this trigger the release of the money under the program the gentleman from Florida, Mr. Smith, among others, helped put together? The gentleman from Florida, Mr. Fascell, has some very interesting statements this morning on the question: Are we prepared? Do we have a contingency plan? Is that a valid plan? Has it been tested? Is there any way to test it? Are we prepared to move in the event that there is something that would lead to a kind of repeat of 1980? Many postulate the fact that under the 1966 Cuban Adjustment Act people coming from Cuba can be very quickly adjusted to the status of resident alien, but that is not possible for people from other lands. Should it be kept? Is there something specific about Cuba, specific about the 1966 act, or should it be somehow changed? Having said that, I believe we have an opportunity, this subcommittee and the gentlemen before us and the people to follow, to make a contribution to the overall effort to try to find our way through it, and, again, these are very quick-paced times. What we say today may be considered outdated by this afternoon, but I think we ought to give it a try. I would now yield to the gentleman from Florida. Mr. MCCOLLUM. Thank you very much, Mr. Chairman. We certainly did not anticipate when we began to set this hearing that it would be a focal point for the situation with regard to Haiti. It was rather, as I recall, out of the concerns that you and I shared with some of our colleagues over the whole question of what happens in the future on a contingency situation with respect to perhaps Cuba, maybe Haiti, or whatever, and the increased flow that we began to see coming by boat-but not in these sizable numbers-some time in the early part of this year and last year. So times have overtaken us a little bit, and it is an even more timely hearing that we are having today, and I appreciate very much your holding it. I would like to make an opening comment with respect to Haiti. I certainly think that the people of Haiti are suffering. There is no doubt in my mind. Economically, they have been disadvantaged for quite some time, regardless of the Government. There is also no question that all of us share a concern over the Government of Haiti presently and the fact that it is of the nature that it is and that the elected government was recently overthrown. What isn't so clear to us at this point-at least it isn't clear to this member-is the degree to which the people are being politically oppressed, even though there are human rights violations there. As we all know, the laws in this country with respect to asylum

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4 and refugee status are fairly well defined, and I think that they are good laws. I think that they do require the threat of persecution, political persecution or religious persecution, and they are not laws designed to give refuge to those who are economically deprived simply because that number in the world, unfortunately, is too large. So as we look at this today, and as I listen to the testimony that comes before us, not only with respect to Haiti but with respect to the whole question of Florida and the issue of how we treat interdiction and so forth, I'm going to have to put on a double set of glasses. One, I certainly share the compassion and the concern for the people of Haiti, but I also share the concern that our laws be fairly and appropriately applied to protect America and its citizens. One of the questions that has always been the case with regard to boat people coming, whether they are coming from Cuba or Haiti or wherever, to the shores of this country and particularly the State of Florida has been the question of their safety in the kind of vessels they choose to come in and what harm is likely to result if larger and larger numbers decide to come as a result of encouragement that we might give. In addition to that, we have the very question as to whether we want to encourage this. Is there not a necessity that we have some deterrence lest we get another Cuban Mariel situation on our hands, be it from Haiti or be it from Cuba? and I don't think any of us want that. Some of us in Florida lived through that process and remember it very well. That is why we are holding this hearing today, to see if there were contingency plans and how far along they have developed to keep something like that from happening. So while I may have compassion for the Haitian people and it may well be that there is a legitimate argument, as some have made, for temporary status in this country or safe harbor for those who are already here, I think it is a whole other story as to whether we set aside principles that have guided us for some time in this respect as far as interdiction is concerned and whether or not we, by doing so, would be encouraging thousands upon thousands of people to attempt to come to this country in vessels or by means which simply are unsafe for them and in a way which would flood and put a burden on the State of Florida and on this country, and we don't want to do that, I don't believe. So I'm looking forward to hearing the various views that are presented today with regard to the particulars of the Haitian matter but also with regard to the whole big picture of our interdiction policy and of our contingency plans with regard to the questions that arose after the Mariel incident now almost a decade ago. Thank you, Mr. Chairman. Mr. MAZZOLI. The gentleman's comments were very well stated, and we are now pleased to be joined by our friend from California, if he has any opening statements. Mr. BERMAN. No, Mr. Chairman, I don't have an opening statement as such. I just have two thoughts to share with the administration in hopes that they can explain to me the current policy, I guess temporarily restrained by court, but the current policy in light of the policy toward refugees from other countries, most noticeably Cuba-how they can justify the present policy with respect

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5 to Haiti, and what happened to the assurances that were given in briefings last week that no refugees from Haiti would ever be repatriated to that country. There are, I think, serious questions about the morality uf our current policy that need to be explained, and I'm sure the members of this distinguished panel which is testifying first will have something to say about all this, but I guess I want to just put myself on their side of this issue in urging the administration to think again about the implications of its current policy. Mr. MAZZOLI. I thank the gentleman very much, and now we are pleased to turn to our panel. We have a panel of remarkably talented people, and I think I would say that everybody is equal but I guess you have the primus inter pares, so we will start with the gentleman from Florida, Mr. Fascell, since he is the chairman and one of the senior Members of the House. Dante, we welcome you, and we would be happy to have your statements. As I have told my friends, because of the length of the day and the fact that we are in session, I would respectfully suggest maybe statements within the 5 minutes, and then we could get on to questions or comments. STATEMENT OF HON. DANTE B. FASCELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA Mr. FASCELL. Mr. Chairman, members of the committee, first let me express my appreciation for responding to the request that several of us made to you to have a hearing on this subject some time ago. First of all, I have a prepared statement which I would like to submit for the record, and then let me proceed extemporaneously on some points. Mr. MAZZOLI. Certainly. Without objection, it will be made part of the record. Mr. FASCELL. I think the chairman and the ranking member have set the benchmarks for this hearing. As far as the long-term implications are concerned, those are matters for serious study when we have time, however, right now, we are confronted with an emergency, which needs to be addressed by this committee and by our Government and by other governments. I think that the criterion which the chairman has laid down is a fair criterion. I don't know that I could add too much to it. I think we start out with the safety of the individuals and with their rights as human beings, consistent with our own value system and our own laws. Many of us have said that it was inhuman and unfair to keep these people on boats while we tried to make up our minds, although I believe the delay was in good conscience. The fact that there was a response beyond the United States is welcome. We should extend a great deal of thanks and credit to the UNHCR, the United Nations, the OAS, and other countries which have volunteered to at least look at this problem to see if the question of safe haven can't be a temporary respite while the-political situation in Haiti is being sorted out. I think that is commendable and that ultimately something may be done.

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6 Unfortunately, under the court order right now, there are still people on boats. That is not a good thing. Something needs to be done about that right now, and the answer is to get the people off the boats. Since repatriation is perceived as immoral, and racist and unfair, something else will have to be done either with safe havens in the United States or in other countries or with a combination of both, and it will have to be done immediately. What do we do about other Haitians? Certainly, if we are going to be concerned and humane in our treatment, we can't send the wrong message. The people in Haiti are desperate. The political upheavals, and economic disasters which have characterized Haiti are not new. The disaster has been there for a long time. I won't comment on whether or not Haiti, rightly. or wrongly, has been the stepchild of this hemisphere, but the fact is that, despite the best efforts of many countries, the United States included, to do something about the political situation and economic development in Haiti, it has not worked. It is not surprising, therefore, that for many years the people of Haiti and other islands in the Caribbean have sought refuge in the United States, and other islands and other countries in order to change their position either for political reasons or economic reasons or for personal safety reasons. All of those considerations are valid and cannot be ignored. If the situation is desperate-and it certainly is if you are black and living in Haiti in a situation where you are not sure whether the Tonton Macoutes still exist or not, or you are going to get shot, or you are going to get thrown in jail because you don't look right, and you are starving to death, and your family is starving to death, I can understand why you would do almost anything, whether to take a leaky boat or to swim on the back of a crocodile, to go some place else to get out of where you are. But that does not mean any one particular area can take all these people at this time. We cannot ignore these are human factors which will impact on our policy. The first thing that needs to be done is to deal with the immediate problem of the people who are on the boats. Then let's get on to the next question where the United States needs the kind of help that is coming out of the United Nations, and the support of other countries and the OAS, in order to fashion a response that is going to deal with the inevitable outflow of people in the short run. We also have other long-term problems which this committee needs to address. I have told this committee before that we cannot escape the problem of asylum. As you know, under the court order, the rights of individuals have to be respected, and once they reach the jurisdiction of the United States, whether it is on board a ship or on land or in the air or wherever it is, the laws of this country will apply. One of those is the law of asylum. When people apply for asylum, you cannot put them in a camp some place. You are going to have the problem of whether or not they are walking the streets; you are going to have the problem of whether or not they are entitled to a green card; and you are going to have the problem of whether or not they are entitled to health facilities, food, and all of the other elements that make a decent life.

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7 If you put that all in one community you are not being fair to that community. That is another problem that has to be considered. It is easy to talk about safe haven in other countries; it is quite another thing for the UNHCR to have the persuasive capability to get those countries to cooperate. It is the same in the United States. It is one thing to say you will have a dispersal policy; it is another thing to have that policy implemented in a fair and proportionate manner. Then, when you add the additional burden on local facilities which has to be borne by the local taxpayer, fairness goes out the window and you begin to lose compassion. What you are doing is impacting on all of the local facilities-schools, hospitals, et cetera-and right away people say, "Wait a minute, I'm a good guy, but this is as much as I can take; I can't take any more, somebody help." This kind of situation is a practical one, it has nothing to do with racism-although unfortunately it may with some people since there is still some of that around. But the distribution of asylumseekers once they are in the United States is not easy, given the court decisions and current law. Asylum was conceived of as applying to individual cases. Nobody ever conceived of asylum as applying to 10,000 people at one time. Asylum should be quite different from refugee status. As a result court action by people who are concerned asylumseekers go into the community. Once they go into the community, we have the same problem we name with respect to the Cuban Adjustment Act. But it is multiplied by millions of people. If you do let the doors down, you have to do it for everybody. I don't envy this committee in trying to sort through the problems, but I do think that we have to look very carefully at how you deal with asylum cases in the long term. Mr. Chairman, let me thank you and the committee once again, for tackling this difficult problem and helping us get past this emergency which is at hand right now. In the long term, I would think that some kind of a multinational economical effort has to be undertaken-and it should start immediately-in Haiti to give the Haitian people hope so they don't jump in leaky boats and try to travel 800 miles in search of safety, food, and medical attention. Economic development is the only solution. The embargo which is now in place to force a change on the elite and the rich in Haiti who supported the coup may work some day; but, in the meantime, the embargo is creating a disaster for poor people. It is undermining economic development. That needs to be changed. We need to turn the situation around in some way which is supportive of the principles of the democratic process. [The prepared statement of Mr. Fascell follows:]

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8 November 20, 1991 STATEMENT BY CONGRESSMAN DANTE B. FASCELL (D-FLA) on CUBAN AND HAITIAN IMMIGRATION to the SUBCOMMITTEE ON IMMIGRATION, REFUGEES AND INTERNATIONAL LAW OF THE HOUSE JUDICIARY COMMITTEE Mr. Chairman and distinguished members of the Subcommittee, I wish to thank you for inviting me to testify today and to commend you for holding this hearing to examine a number of vital issues related to the entry into the United States of citizens of Haiti and Cuba. The flow from these two countries has had a major and disproportionate affect on the State of Florida -both in the benefits that have accrued to the State through the thousands of new and highly productive citizens making contributions to their new communities in many walks of life and in the administrative, legal and financial problems which ensue whenever large of numbers of new arrivals need to be absorbed in a short period of time. And so, I am particularly pleased to join my colleagues from South Florida in outlining our perspective on this national question. Haitian Immigration Mr. Chairman, in July of this year, fully two months before the coup in Haiti, I joined my colleagues from South Florida, Bill Lehman and

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9 -2 Larry Smith, in writing to you and to President Bush about the need for urgent attention to the issue of Cubans and Haitians entering the United States without documentation. With your permission, Mr. Chairman, I would like to include the full text of that letter in the record as part of my statement. In our letter we urged a thorough review of United States policy as it applies to Haitians with a view toward once and for all eliminating-either legislatively or administratively--the perception of discrimination or unequal treatment. Unfortunately, the response we received from the President was a non-response and the perception of discrimination has continued to grow and has now been severely exacerbated in the tragic aftermath of the Haitian coup. I hope our deliberations today will be the beginning of a process whereby we can eliminate any vestiges of discrimination and unfair and unequal treatment in the spirit and practice of our immigration law and our law enforcement agencies. Mr. Chairman, since our letter in July, the situation with regard to Haitians has deteriorated as a result of the tragic coup d'etat which has deprived the citizens of Haiti of their hard won constitutional democracy. The United States correctly has condemned the coup and called for the restoration of democracy; the United States has correctly ended all military and economic aid to Haiti; and the United States has correctly participated

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10 -3 in an international embargo of trade and financial dealings with Haiti. While it is hoped that this international pressure will lead to the restoration of constitutional government and human rights in that hapless land, it will also inevitably have the unfortunate side effect of, perhaps even in the short term, the collapse of the Haitian economy which, in turn, will lead to food shortages and general instability which will increase pressure on desperately poor Haitians to seek to better their lives and those of their families by attempting to enter the United States illegally. Since the United States and Haiti reached agreement in 1982 on the policy of interdiction, thousands of Haitians have been returned to Haiti after having been intercepted on the high seas. In recent years, these numbers have been falling; from 3,368 interceptions by the Coast Guard in 1989, to 1,131 in 1990. During the whole of 1991 before the coup, only 1,558 Haitians were intercepted by the Coast Guard. Since the coup, the numbers of desperate Haitians trying to escape Haiti has increased dramatically. In the past six weeks, I understand the Coast Guard has intercepted almost 2,000 Haitians. Of these, only a very few have been found legally qualified to enter the United States. Hundreds were forced to stay on board Coast Guard cutters. You will recall, Mr. Chairman, that last week I called on the Administration to act quickly to get these people off our Coast Guard cutters. No matter how well intentioned our Coast Guard, no matter how well

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11 intentioned the Immigration and Naturalization Service, and no matter how many amenities are provided to these poor people on board our ships, keeping them at sea constituted unfair and inhuman treatment. I also believe that until the situation in Haiti is stabilized, the United States should not forcibly deport anyone to Haiti. On October 15, 1991, my colleagues and I from South Florida wrote acting Attorney General Barr urging him to grant Temporary Protective status (TPS) to Haitians already in the United States and facing deportation. Although I understand there have been no deportations since the coup, we have not received an answer to our letter and TPS has not been formally granted to Haitians, as it was to Salvadorans, Kuwaitis, Somalis and others. Mr. Chairman, to deny Haitians TPS under the current circumstances would appear to me to be unfair. I call again on the Administration to grant TPS immediately to those Haitians who are already in the United States and who may be facing deportation. Mr. Chairman, in my view, all this adds up to the appearance of discrimination in the way federal authorities are applying the law. While I certainly understand the legal basis for their actions, the present situation is simply not fair and does not take account of the situation in Haiti and the special compassion we should have for Haitians under the current circumstances. Change is urgently needed.

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12 -5 Of course, Mr. Chairman, the larger problem -and it has clearly reached the proportions of a crisis -is what to do with the thousands who are fleeing Haiti today and will continue to do so until the situation in Haiti is stabilized. This situation must be resolved now. Those fleeing cannot be kept on boats, they cannot be kept at the Guantanamo Naval Base and they cannot all be brought to the United States. Mr. Chairman, in my statement last week I called on the Organization of American States to assume its responsibilities for the human dimensions of the present crisis. The international effort to bring about the restoration of democracy in Haiti is an OAS effort; the embargo which is bringing untold hardship to Haitians in the ultimate aim, perhaps vain, of securing their democratic and human rights is an OAS effort. The solution to the plight of those fleeing Haiti must also be an OAS effort. Mr. Chairman, I applaud the efforts of the State Department and the United Nations High Commissioner for Refugees to find safe havens for displaced Haitians in OAS member countries. This effort needs to be pursued vigorously; nations of the hemisphere must assume their responsibilities. And, the United States too must play its part by taking its fair share of these people and paying a fair share of the costs of safe haven and potential resettlement in third countries. Only as a last resort should we resort to returning Haitians

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13 -6 to their home county. But we must insist that anyone returned to Haiti be turned over to a reputable organization, like the Red Cross, which is willing and has the capacity to monitor that individual's return to Haitian society. It would be intolerable, Mr. Chairman, should any one returned to Haiti face persecution by the Haitian authorities simply because he or she attempted to flee the country. And, I believe, the OAS has an important role to play here as well, in insuring that Haitians who are returned can live in safety and without fear of persecution. As I have said before, if this requires a more active multinational presence, under the aegis of the OAS, on the ground in Haiti, then we must consider it. Temporary Protective Status, safe havens, even repatriation are all temporary measures. The ultimate solution must be the reestablishment of conditions in Haiti which make it possible for the Haitian people to lead economically and politically viable lives in the country of their birth. While I know the embargo is designed to bring about this situation and I have supported it, I must also say it is adding to the hardship which forces people to leave. I am coming to the conclusion, Mr. Chairman, that we cannot wait forever for the embargo to work. Other options may have to be considered lest the human toll increase beyond the capacity of all of us in the OAS to bear.

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14 -7Cuban Immigration Mr. Chairman, the problem we are encountering with undocumented immigration from Cuba is of a different order. There, the question is are we ready for the massive numbers of Cubans who will want to come to the United States once the Castro regime releases its stranglehold on the Cuban people? I, for one, believe that day is coming sooner rather than later and that the totalitarian Castro regime will not escape the winds of change which have swept so many Communist dictatorships from power. No manner of sham and shallow reforms as we were treated to at Cuba's Fourth Communist Party Congress will succeed in postponing this long awaited day. But, Mr. Chairman, I ask again, "Are we ready?" From what I know of planning by the federal authorities, I am very much afraid the answer to my question is in the negative. Already this year, the number of Cubans attempting to reach the United States using the most flimsy craft -even inner tubes -has grown almost five times over last year's rates. On October 24, 1991, I joined a number of my colleagues in Florida in raising our concerns with the Administration. The Coast Guard has developed a contingency plan intended to prevent another chaotic mass

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.15 -8movement of people like we saw in the Mariel Boat lift in 1980. However, I doubt very much the Coast Guard, despite its fine and well deserved reputation, has the resources to prevent a flotilla of ships from leaving Florida to go to Cuba to pick up relatives, friends and even paying passengers as soon as the floodgates are opened. And what plans are there to deal with undesirable aliens who may, as in Mariel, mix in with others? What are the plans to deal with the possible outbreak of violence and disorder and violations of United States laws? We have no answers to these vital questions; our letter remains unanswered. Mr. Chairman, answers to these questions are urgently needed if we are to have the time to revamp contingency plans to make them more realistic and more likely to succeed. Mr. Chairman, we cannot condone illegal immigration to the United States, but neither can we ignore the suffering of the Haitian people nor should we abandon our firmly held beliefs of non-discrimination and equal treatment in the application of our laws. I call on the Administration to accord Haitians already in the United States the temporary protective status we have accorded to so many other nationalities whose countries have been undergoing instability and revolution and to insure that Haitians, like all other nationalities are treated fairly. I call on the Administration, the OAS and the UNHCR to redouble efforts to secure safe havens for Haitians

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-9 fleeing their country. And, I call on the Administration to review its overall approach to the restoration of democracy in Haiti and to consider what additional measures may be necessary to bring this crisis, with its growing human cost, to as early a solution as possible. I also call on the Administration to review its contingency planning with regard to the inevitable dramatic increase in immigration from Cuba which will result from the end of the Castro regime. We need a rational plan, which draws on the considerable experience and expertise of the Cuban American community in South Florida. Finally, Mr. Chairman, there is the vital subject of responsibility for taking care of the needs of these new arrivals once they reach the United States. Under the Constitution, immigration is a federal responsibility. But, this is a responsibility that the federal government is not meeting fully. Dade County, Florida, has for many years had a history of accepting wave after wave of aliens seeking entry to the United States. Many of these individuals have gone on to very successful careers in business, the professions, and the arts. They have made significant contributions to making Dade County the multicultural and dynamic area that it is. But there is always a transition period when new arrivals are a burden on the local government. The last time this occurred was after the Mariel boat lift when

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17 -10 thousands of Cubans, many destitute, had to be absorbed by the health, welfare and education systems of Dade County. Dade and the State of Florida have done an excellent job, but the strain on their ability to pay has reached the breaking point. Large numbers of Haitians or Cubans could cause a collapse of Dade's ability to cope. The federal government has provided some funds to help Dade and other heavily affected counties and cities in the United States. The burden on South Florida is the result of federal policy and is a national responsibility. Too much of the burden has been left to the local taxpayers of Dade County and Florida. Initial resettlement costs, education of newly arrived children who do not speak English, health care for the often malnourished, and other social needs will all require substantial federal funds. Mr. Chairman, as part of your review of our policy toward Cuba and Haiti, it will be imperative to address the question of funding and to insist that the federal government pay its fair share. Just as we must be fair in the application of our laws to those seeking a new life in the United States, we in Washington must be fair to those areas which bear the initial burdens of incorporating these new arrivals into our country. Once again, Mr. Chairman and members of the Subcommittee, I want to thank you for inviting me here today and to commend you for your initiative in addressing these important issues.

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18 Congez of the Mniteb Mtates douse of Representatibes Mastington, It 20515 July 18, 1991 the Honorable George Bush President The White House Washington, D.C. 20500 Dear Mr. President: As Members of Congress from South Florida we have been concerned for some rime by the disparate treatment that is afforded different nationalities seeking to enter the United States. We all agree that every possible effort must be made to maintain control of our borders and to uphold a normal immigration policy whereby those seeking to emigrate must apply for the appropriate visa and be considered for entry on a case-by-case basis. The cornerstone of our immigration policy has always been family reunification, refuge from persecution and equitable consideration of those seeking a better life in this country. With increasing numbers seeking to enter the country illegally, however, it has become even more apparent that not all are being treated equally. While the policy has existed for some time, it was brought forcefully home when a boatload of Haitians and two Cubans was interdicted by the Coast Guard. The Cubans were taken to the United States and the Haitians, with the exception of six requiring medical attention, were forced to return to their country. Furthermore, when Haitians do manage to reach this country they are detained for far longer periods than any other nationality before a determination is made on their legal status. This kind of disparity is outrageous and destructive to our South Florida community. We understand the legal basis for this action. However, we believe the Lime has come for a thorough review of this policy with a view toward once and for all eliminating even the perception of discrimination or unequal treatment. The present situation is simply not fair and cannot be allowed to continue.

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19 The President July 17, 1991 Page 2 We urge you to give this matter your urgent and full consideration. Sincerely, DANTE B. FASCELL WILLIAM LEHMAN cc: The Attorney General Commissioner of Immigration and Naturalization Y ITH

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20 Mr. MAZZOLI. The gentleman's time has expired. I appreciate it very much. The gentleman has really focused our attention on what perhaps could be considered the case of a person in trauma. First you have the EMS who provide oxygen and medical assistance of an emergency nature, until they can go to the hospital when the surgeons and the internists take over. I think here, as the gentleman points out, we have really a two-tier problem. One is to deliver emergency first aid and then later go to the long-term care. We now welcome our friend and colleague from New York, Charlie Rangel, my congressional classmate. Welcome, Charlie. STATEMENT OF HON. CHARLES B. RANGEL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK Mr. RANGEL. Thank you, Mr. Chairman, and thank you for the sensitive leadership that you have provided for this emergency that we face as a nation, and I am so pleased to follow the chairman of Foreign Affairs, because he has now given a backdrop, he has explained the broader problem that we as a nation have to face, and I was even moved by his testimony, because there is not an American here, except a Native American, that doesn't have some story of how their people were seeking a better way of life, how America was that beacon, and who doesn't choke up when they see that Statue of Liberty, because they know that, no matter how poor they may be, or whatever they lack, that they have more than somebody else. That compassion has really made us a great nation and a great republic. The chairman has pointed out, there reaches a point that you have to establish a balance. You have to make certain that you don't depreciate the qualify of life for all because you are allowing your compassion to open up the doors when you don't have the economic and political ability to have these people assimilate into society. So these are complex problems, and I hope that I will be able to make some contribution at this point. I would like to introduce my full statement in the record. Mr. MAZZOLI. Without objection, it is so ordered. Mr. RANGEL. Because it deals with some legislation that I would like to work with you on. It deals with problems of expertise that we need all the committees to work with. But right now, I would like to join with Dante Fascell and say we are now talking about an emergency. We are not talking about existing law, and I challenge anyone to talk about existing policy, because what we are talking about are lives that are now bobbing up on the sea on U.S. Coast Guard vessels and, I would like to add, manned by dedicated Coast Guard people who have always followed the direction that has been given to them. In this case, if this committee hearing does nothing else at all, we will find out perhaps whose policy this is. I have been on the phone with the administration for an entire week, and everyone believes that this is not the answer, but nobody has said yet who has said that these Haitians should be returned to Haiti, should be

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21 returned. And how are they being returned? To ruthless, criminal, out-of-control military people that the President has condemned, the Congress has condemned, the United Nations has condemned, the Organization of American States has condemned, and yet the United States of America, with these 2,000 lives in our hands, on our ships, are prepared to deliver them to a handful of Red Cross agents and cut out of town as we drop them on shore. Is this America? Is this the country that is going to say that if any of these people die on the ship, if they are killed, as these military people have sought out the supporters of Aristide and shot them, and killed them, and they know it-are we going to hear now that these poor, illiterate people that are escaping at the risk of their lives on a cutter-many of them ill, some are pregnantare now going to have to explain to some bureaucrat that they fall within the four corners of some law that someone is going to ask them? Are we going to ask them whether they were shot at by an economic bullet? Was it a political bullet? And suppose the whole crisis somehow, a philosopher could say, is based on economic conditions. Are we now going to say, well, that justifies us to turn them over to potential killers? And these are not my words, these are the bums that we are dealing with, and, I might hurriedly add, these are the bums that we have armed, and these are the bums that we have trained, and these are the bums that we have supported over the years even when it was a dictatorship. I'm suggesting to you, let's try to find out what the law should be. Let's try to reform where we can. Let's deal with what Mr. Smith, Mr. Fascell, and others want to do in the long run, but let's not have the blood on our hands during this time of the year to say that we have turned them away from our shores. The President of the United States reached the height of his popularity in the United States and the world when Saddam Hussein viciously and ruthlessly crossed the borders in Kuwait. Did he say, "Send in the Marines, that some of us would have resented? No. He went to heads of nations, he picked up the phone, used the moral and political power that we as a people invested in him, and said, "You have to be partners in this international crisis." Has the President picked up the phone for these poor folks that have no oil and asked other nations that they have a responsibility? You bet these poor Caribbean nations should provide at least the moral leadership in saying what should be done there. You bet the OAS should be opening up its doors, and so should Europe. So should France. Talk about a thousand points of light. Where are the churches that allowed me to be angry with all of the innkeepers because of the way they treated Mary and Joseph? Are they to be heard as they confer, as they have conferences, to say that we are asking everyone to share? Don't tell me there is not enough compassion in this great country of ours to absorb 1,600/2,000 people, and don't tell me that there are enough rickety boats or resources left for someone else to take a gamble that they may be picked up by the Coast Guard cutters. But I am saying that if Europe and Japan and the rest of Asia all come and say this is not a question of the poor and the rich,

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22 this is not a question of the black and the white, this is a question where a ruthless, unauthorized, illegal, military has overthrown a legitimate democracy, and those of us who appreciate the fact that we need democratic leaders supported should be the first ones to say that those who are really being killed-and this is not the first time the military has done it-because they participated in a democratic process, that we should find some place in our hearts to say that, "We are not going to return you to Haiti." If you want to debate how you share this responsibility, count me in. If the President of the United States wants to tell me what Japan has said, what France has said, what England has said, what Germany has said, what the Caribbean Basin Initiative countries who enjoy tax incentives have said, then we have to talk about it. But I'm here to say that the reasons that I introduced the bill, the reasons that you are having the hearings, are moot. This is an emergency, and we should say what the judge has said any place but Haiti. I hope that you can find some compassion in your hearts to be able to go back to your constituents and say that this was not a political issue, it was not a legal issue, it was an issue of compassion, and even David Duke-even David Duke-has proclaimed this to be a Christian nation. We are on the eve of Christmas. I might add that I don't think that David Duke believes that any Jews or blacks should be in the manger, but he has a different idea of what Christ is all about. But it would seem to me that, as a Christian nation, we could say that this is our gift to these people on the sea, and we are not opening up our doors to everybody, but we are asking everyone to share in the burden that these people have. Thank you, Mr. Chairman. Mr. MAZZOLI. Thank you very much, Charlie. That was a beautiful statement. [The prepared statement of Mr. Rangel follows:]

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23 Statement by Hon. Charles B. Rangel Subcommittee on Immigration, Refugees, and International Law November 20, 1991 It was just a few months ago that President Bush was pleading to the world to come to the rescue of the people of Kuwait. This oil-rich nation in the Middle East suddenly had come under siege from its neighbor, Iraq, and our country, being the leader of the free world and carriers of the torch of democracy and human rights across the globe, vowed not to stand by idly. In a speech to the United Nations, the President used every ounce of influence and persuasion to impart to world leaders the importance of restoring democracy to the war-torn country, and of returning Kuwait to its people. It was, some had hoped, a new era in U.S. world leadership on freedom, democracy and the preservation of human rights. In the end, we saw the rapid formation of a multinational armed force that drew a line in the sand, then blasted Saddam Hussein and the evil vestiges of illegal occupation and dictatorship when he crossed it. For two days this week hundreds of poor, homeless, refugees from Haiti were being unloaded off U.S. Coast Guard cutters in a repatriation to Haiti. They were being returned, battered and bruised, to the site of the military coup and subsequent violence and terror from which they had fled. Despite the fact that these people, like the Kuwaitis, are literally fighting for their lives and fleeing wanton violence, they were being told, in effect, "you do not qualify." If this is the New World Order, I do not want any part of it. Our policy toward the Haitian refugee situation is abominable and deserves to be reversed. I am grateful that as I sit here today, a Federal judge's order has put a temporary halt to this disgraceful exercise, and those Haitians who twenty-four hours ago were bound to be returned by our Coast

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24 Guard to the quagmire in Haiti have been granted a reprieve. But the order is only temporary and we may soon return to the disgraceful policy that required it. Actually it would be inaccurate to say that we even have a policy on Haitian refugees, as no one in the White House or the State Department, where I have called continuously in recent days, seems to be willing to own up to that cruel action. Our response to the dramatic attempts by some Haitians to escape persecution in their homeland is tantamount to having fire and police personnel in our cities decide, case by case, which calls they will answer and which ones they will ignore. We are being told by officials in both the White House and the State Department that the distinction between the Haitians and others who have successfully sought political asylum in the United States is that these Haitian refugees fall into the category of economic, rather than political, victimization. It seems to me that the two in this case are inextricable linked. In Haiti, there is no separating the economics from politics. Certainly the OAS embargo is an economic measure that is meant to have a political effect of forcing out the renegade government and allowing the return of the legitimate government of President Aristide. In the final analysis, the refugees themselves do not stop to ask whether the bullets they are fleeing are economic or political. We have acted most insensitively toward the Haitian refugees. How would we respond, I ask, if the people knocking on the doors of our shores were from Europe, or a wealthy nation or communist dictatorship. How would we respond if another group of people from a Middle Eastern oil kingdom suddenly were invaded or even faced the threat of an invasion? Would we waste time in deciding whether to come to their defense? I doubt that we would as we have with these Haitian refugees. In my view, our policy toward these Haitian refugees has been not only vicious but racist. With this policy, our nation is failing a basic political and moral test. We have claimed that we are bound to adhere to a treaty agreement with the government of Haiti, signed during the corrupt Duvalier government. That is a tacit acknowledgement of the current renegade government, which President Bush himself has condemned

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25 as illegitimate. Such a stance is not only politically bankrupt, but hypocritical. Likewise is our posture in asking the nation's of the Caribbean to shoulder the burden of accepting for safe haven all of the refugees whom we have not condemned to return to the firestorm in Haiti. I have asked the ambassadors of these nations to share the burden, but not to suffer it all themselves. No nation in the Caribbean has the economic resources to do that, and how can we ask them to when we have not suggested the same to the economic powerhouses of Europe and Asia, and worse, refused to accept any of the responsibility ourselves. This is not the type of international leadership that the President Bush demonstrated so well in selling the Persian Gulf War to the American people and the rest of the world. It is that kind of leadership that is needed in this case, where the President picks up the phone and asks his fellow presidents for their support. Some are saying that to accept into this country the 3,000 Haitian refugees currently adrift would invite a flood of others. At this point, that is speculation, but what is certain is that during the Persian Gulf crisis, we demonstrated no similar meanness of spirit by rejecting desperate people who were in need of our help. If we can spend $65 billion to free Kuwait, offer up a $1 billion aid package to feed the people of our former enemies in the Soviet Union, why can we not open our hearts and share the burden of the Haitian refugees. During the civil war in Nicaragua, we financed the Contras and accepted thousands of them onto our shores. We have accepted into our country, rightly, 20,000 Soviet Jews within the last year. Why can we not assist these, the most desperate people in our hemisphere? Mr. Chairman, why can we not demonstrate the same humanity and compassion in this case that we have proved so often in the past to be a hallmark of the American spirit?

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26 Mr. MAZZOLI. The gentleman from Florida, Mr. Lehman. STATEMENT OF HON. WILLIAM LEHMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA Mr. LEHMAN. I want to congratulate Mr. Rangel and Mr. Fascell for their eloquent statements, and I want to associate myself with them. Mr. Chairman, I don't envy you your job or the job of your subcommittee, but you are doing great, and I appreciate all you do. I have left a longer statement with you for the record, and I have a short statement to read, but before I read my short statement I would just like to let you know what is happening in south Florida as it relates to all this. On TV from time to time, they will show the Cubans picked up at sea and welcomed with open arms, and right after that come the Haitian pictures, being repatriated back to Haiti. Now what does that do to our society in south Florida? We have enough tension already. All it does is create tension we are having a hard time dealing with, and certainly the Haitian community and those that care about them have a hard time dealing with it. We are just exacerbating the tensions throughout south Florida and eventually throughout this country by having these kinds of scenes pictured over and over again on our television at night. Mr. Chairman, as I said, I would like to thank you for taking the initiative in seeking just treatment for Haitians who are fleeing the terrible political and economic conditions in Haiti. As you know, for a number of years Haitian refugees have suffered in comparison to others that have come to the United States seeking freedom. In 1980, with the passage of the Refugee Act, I had hoped that equal treatment of Haitian claims to asylum would be the result, but unfortunately discrepancies continue to exist. Cubans, Nicaraguans, and others do receive more generous treatment. Incidents such as Mariel and Brownsville, TX, demonstrated that the orderly process envisioned by the Refugee Act was just not a reality. Today there are new circumstances in Haiti which lend even greater credence to Haitian asylum claims. A democratically elected government has been overthrown, and it was overthrown while President Bush was in Miami talking about the capital gains tax, and he never mentioned anything about what was happening in Haiti. An illegal government is actively engaged in repression and terror. I do support Congressman Rangel's bill calling for temporary protected status for those Haitians already in the United States and permitting those whom we save at sea to come to a safe haven, and this save haven should have underlying Federal responsibility both abroad and in this country, especially in south Florida. I understand the administration's fear of a magnet effect, and I certainly do not want to see an exodus on the scale of Mariel. We cannot, however, ignore the horrendous situation in Haiti and turn our backs on those who, at great personal risk, seek freedom. My understanding was, actually, that the administration was trying to arrange for a regional approach to safe haven even for those Haitians who had not yet been picked up at sea. Apparently,

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27 the administration's agreement with Venezuela, Belize, Honduras, and Trinidad-Tobago is limited to providing refuge for only the 550 Haitians who were at sea last week but not the 1,000 or more who have been picked up since then; they are in never-never land. These countries should be urged to continue their role so that we have an emergency process worked out until a legitimate government is restored. The restoration of the Aristide government would resolve the immediate problem we face, but questions that have arisen over the years concerning the treatment of Haitian asylum-seekers will not go away. It is important to address the issues of interdiction, detention, and the adequacy of asylum interviews. It is my hope that the subcommittee will deal with these issues during the reauthorization of the Refugee Act, and I am sure my other south Florida colleagues and I would like to invite the chairman and members of the subcommittee to visit Dade County and see first hand some of the human consequences of our current law, to visit our schools, visit our hospitals, and see what the impact is now of the Federal policy. Come on down. We'll go fishing, too. The administration, however, must bear a large share of the blame for the spectacle of the Coast Guard cutters filled with Haitians stranded on the high seas with nowhere to go. At the time of the Aristide overthrow, the likelihood of Haitians feeling the island should have been obvious. The administration should not have waited for the Coast Guard to intercept Haitians at sea before they decided what the hell to do with them. This was unfair to the Coast Guard and their drug interdiction program and certainly grossly unfair to the Haitians themselves. The problem was compounded last weekend by an outrageous decision made at the highest levels. It had appeared to the Congress last week-at least I understood-until the restoration of President Aristide and of legal authority in Haiti, that the administration would agree to provide temporary safe haven for all the Haitians intercepted at sea. But, instead, the White House has directed the Coast Guard to return interdicted refugees, as the policy had been before the coup. Can the administration honestly certify that Haiti is now a stable and a safe place for these fleeing people? I certainly doubt it. The administration is making a mistake by returning Haitians to a country upon which we have imposed an embargo, a country that is under a military coup which rules by the gun and not by law. The administration is not in a position to monitor what happens to them after they return, and nobody knows what happens to them at this point. It is unconscionable for the United States to turn away these boat people under these unstable political circumstances. The United States' tradition has always been to welcome refugees when their countries have been unable to vouchsafe their human and civil rights, yet the Haitians have always been given the short end of the stick. We need to remove the taint of discrimination in dealing with Haitians versus the Cubans, Afghans, and all other groups. Mr. Chairman, I again thank you for focusing attention on this very serious matter, and I and certainly my colleagues from south

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28 Florida look forward to working with you in seeking fair and equitable solutions to this and other Federal Government related dilemmas. Mr. MAZZOLI. I thank the gentleman from Florida. We have talked many times about the issue, and he has been indefatigable in pursuing any solution to these problems, and we appreciate that. [The prepared statement of Mr. Lehman follows:] 1 STATEMENT OF THE HONORABLE WILLIAM LEHMAN SUBCOMMITTEE ON INTERNATIONAL LAW, IMMIGRATION, AND REFUGEES NOVEMBER 20, 1991 Mr. Chairman, I would first like to thank you for taking the initiative in seeking just treatment for the Haitians who are fleeing the terrible political and economic conditions in Haiti. As you know, for a number of years Haitian refugees have suffered in comparison to other ethnic groups that have come to the U.S. seeking freedom. In 1980, with the passage of the Refugee Act, I had hoped that equitable treatment of Haitian claims to asylum would be the result, but discrepancies continued to exist. Cubans, Nicaraguans, and others received far more generous treatment. Incidents such as Mariel and Brownsville demonstrated that the orderly process envisioned by the Refugee Act was just not a reality. Today there are new circumstances in Haiti which lend even greater credence to Haitian asylum claims, whatever one may have thought in the past. A democratically-elected government has been overthrown. An illegal government is in power and is actively engaged in repression and terror. Our response should be one of compassion and justice.

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29 2 I support Congressman Rangel's bill calling for temporary protected status for those Haitians already in the United States and permitting those whom we save at sea to come to a safe haven. I understand the Administration's fear of a magnet effect, and I certainly do not want to see an exodus on the scale of Mariel. We cannot, however, ignore the horrendous situation in Haiti and turn our backs on those who at great personal risk seek freedom. We need good intelligence so we can better predict what kind of outflow to expect. With the current embargo in place, economic conditions in Haiti will definitely deteriorate. It is of course my hope that the embargo will result in the demise of the illegal government and the restoration of democracy. In the meantime, the number of people trying to leave Haiti has been increasing, although the means of leaving is likely to be limited by the lack of fuel. Nevertheless, greater desperation may result in Haitians attempting to take even more unseaworthy vessels. Once we are committed to providing a safe haven for the refugees, we need to share the burden. I have no problem with sending Haitians to third countries as long as we do not end up with permanent refugee camps such as we 51-225 0 -92 -2

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30 3 have seen in Southeast Asia. Burden-sharing within the United States should exist as well, with other states besides Florida lending a hand. It was my understanding that the Administration was trying to arrange for a regional approach to safe haven for even those Haitians who had not yet been picked up at sea. Apparently, the Administrations agreement with Venezuela, Belize, Honduras and Trinidad-Tobago is limited to providing refuge for only the 550 Haitians who were at sea last week, but not the 1,000 or more who have been picked up since. Those countries should be urged to continue their role so that we have an emergency process worked out until a legitimate government is restored. The restoration of the Aristide government would resolve the immediate problem we face, but questions that have arisen over the years concerning the treatment of Haitian asylum seekers will not go away. It is important to address the issues of interdiction, detention and the adequacy of asylum interviews. It is my hope that the subcommittee will deal with these issues during the reauthorization of the Refugee Act, and I would invite the chairman and members of the subcommittee to visit Dade County and see first hand some of the human consequences of our current law.

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31 4 I would also like to salute the Coast Guard for carrying out the difficult tasks placed upon it. The Coast Guard's role in immigration enforcement has been to follow the policy directives set by other agencies. It has tried to carry out its role in a professional and humane manner. I know that during the recent crisis the Coast Guard was very vocal in pressing for a resolution to the problem of where to bring the refugees. The administration, however, must bear a large share of the blame for the spectacle of Coast Guard cutters filled with Haitians stranded on the high seas for days with nowhere to go. At the time of the Aristide overthrow, the likelihood of Haitians fleeing the island should have been obvious. The administration should not have waited for the Coast Guard to intercept Haitians at sea before deciding what to do with them. This was unfair to the Coast Guard and grossly unfair to the Haitians themselves. The problem was compounded just this last weekend by an outrageous decision made at the highest levels. It had appeared to the Congress last week that, until the restoration of President Aristide and of legal authority in the country, the Administration would agree to help provide temporary safe haven

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32 5 to Haitians intercepted at sea. Instead, the White House has directed the Coast Guard to return interdicted refugees, as the policy had been before the coup. Can the Administration honestly certify that Haiti is now stable and a safe place for these fleeing people? I doubt it. The Adminstration is making a mistake by returning Haitians to a country upon which we have imposed an embargo, a country that is under a military coup which rules by the gun, not by the law. The Administration is not in a position to monitor what happens to returnees. It is unconscionable for the U.S. to turn away these boat people under these unstable political circumstances. The U.S.'s tradition has been to welcome refugees from around the world when their countries have been unable to vouchsafe their human and civil rights, yet the Haitians have somehow always been given short shrift. We need to remove the taint of discrimination in dealing with the Haitians versus the Cubans, the Afghans, and all others who have sought safe haven in desperate times. Mr. Chairman, I thank you again for focusing attention on this very serious problem, and I look forward to working with you in seeking fair and equitable solutions to this and other refugee-related dilemmas.

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33 Mr. MAZZOI. The gentleman from Florida, Mr. Smith. STATEMENT OF HON. LAWRENCE J. SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA Mr. SMITH. Thank you, Mr. Chairman. I certainly appreciate your having scheduled this hearing and having been so sympathetic to the problems of the refugees in general and the problems of Florida specifically with reference to that situation. I seem to be spending nearly as much time on this side of the dais as I did when I was in my first years in the House with you up there on the committee. Mr. MAZZOLI. I remember that very well. The gentleman was a very valuable member of the subcommittee, and I enjoyed working with him. Mr. SMITH. I appreciate that. In addition to what Mr. Rangel said, I just want to make one further statement. Whether or not Mr. Duke wants blacks and Jews in the manger, he can never avoid the reality that it was all Jews in the manger to begin with, and at least Balthazar, if not others of the wise men, was black. I need not tell you, of course, how this situation that currently exists dismays the people of south Florida. But, in any event, since the hearing is on a broader basis, let me first address the interdiction of Haitians seeking to enter this country and the current problem. I repeatedly have stated, Mr. Chairman, that we need a program that is both fair and humane and that can be supported by the American people. I joined a number of my colleagues in sending to the White House a letter asking for temporary protected status for the Haitians a number of weeks ago. To date, we have received no response at all-not any. Mr. Chairman, the issue before us is a humanitarian one. I want to repeat, humanitarian, not political, not even legal, not in the short term. Too many people remember what occurred more than 50 years ago when this country refused to allow Jewish refugees from Nazi Germany to disembark in the United States. We cannot repeat this sorry episode in our history with the Haitians. South Floridians and the entire Florida delegation, in fact, are well acquainted with the tiny Caribbean nation of Haiti and its wonderful people. For those among us who have not had the pleasure to be associated with these people, let me say a few words. The people of Haiti are generally forthright, sincere, and hard working. They are also star-crossed. Unfortunately, this has been the case for Haitians for the entire history of their beleaguered republic, the second oldest republic in this hemisphere. The citizens of Haiti have experienced democracy for only 7 months in their almost 200-year history. Their first and rightful democratic leader is Jean-Bertrand Aristide, a man who, unlike perhaps any other world leader today, truly personifies the hopes and aspirations of his people. A full 67 percent of the Haitian people freely and fairly elected Mr. Aristide to office last December in elections we demanded, in elections that we helped supervise, and elections that we certified. They expressed their hope in him.

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34 Not only would he end Haiti's sad distinction of being this hemisphere's poorest country, but he would also put an end to the Statesanctioned political persecution that has historically wracked Haiti. Anyone opposing the entrenched forces of oppression in Haiti was sure to come under attack. Mr. Aristide bravely took these forces on and nearly paid for it with his life. And I want to join Mr. Lehman, quite honestly, in telling you how dismayed I was that, on the very day that this President of Haiti, democratically elected, was being marched out of the presidential palace at the front end of the muzzle of a loaded gun, the President of the United States, in Miami, the closest spot of the United States practically to Haiti, didn't even say a word about that coup actually taking place. In the hope that his struggle was not in vain, we have all now joined an international effort by the OAS to rightfully restore the legitimate government of Haiti. But I submit to you all that our responsibility does not stop short of humanitarian considerations. Frankly, it is that which should control our policy right now. We also should do what we can to help the people of Haiti who are fleeing political persecution in Haiti. The provisional government acknowledges 300 dead. Other observers claim that as many as 1,000 have died. According to Amnesty International, a group of uniformed military men seeking revenge for the death of a soldier, entered the homes of 30 to 40 residents in Lamentin 54, a suburb of Port-au-Prince, and gunned them down at close range. The soldiers then forced other residents to dig mass graves and bury them. If these instances do not constitute ruthless terror and political persecution, then I don't know what that word means. We should remember that President Aristide has been the most effective problem solver for our immigration problem with respect to Haiti. How? He simply earned the trust and love of his people. However bad things were economically during his 7-month tenure, the Haitian people did not wish to and did not leave their country. More accurately, they didn't feel compelled to escape. They had been poor, but Aristide made them feel safe, and he made them proud to be Haitians. Along with freezing Haitian assets here and declaring a commercial embargo on Haiti, we should be likewise committed at a humanitarian level to temporarily providing a safe haven for those Haitians who seek it. Mr. Chairman, the President should declare an immigration emergency so that the $35 million immigration emergency fund authorized by section 113 of the Immigration Reform and Control Act of 1986 may be used to finance the transport and stay of these currently cutter-housed desperate refugees. That was one of the uses envisioned by me and by you when I introduced this legislation which this committee and Congress approved. Let us immediately get away from a policy of adhering to an interdiction agreement that we made 10 years ago with the brutal Duvalier regime who has now been deposed and is currently living in exile, in luxury, I might add, in the south of France. We should allow the Haitians in and give them a safe haven in a nonprisontype facility, such as Homestead Air Force Base or other military

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35 facilities, returning them to Haiti when it is safe and the situation has stabilized. The temporary nature of it would be, hopefully, fully explained and, I believe, fully sanctioned by the American people. The way to do this is to have a policy which everyone can join in and live with. These Haitians didn't come here when Aristide was the President; they obviously don't want to leave Haiti. This means that they obviously would want to go back when the time comes for them to be able to do so safely. Meanwhile, the United States should provide a place for them, a legitimately decent, safe place for them to be protected temporarily and to give them safe refuge. With the emergency immigration fund available-fully funded-obviously what would happen is that we would be able to have a funded policy, money already available, and a policy joined in by the vast majority of the people of the United States. You have heard from our dear friend, the chairman of the Foreign Affairs Committee, about the long-term realities of what you are attempting to do. Having worked on this committee and this subcommittee for many years, obviously I am fully aware of that, and this hearing will eventually address those issues, but the issue that is currently at hand on such a desperate emergency basis needs to be addressed first. I want to address also the preparedness, or lack thereof of our Government for another Mariel-type exodus of Cubans. As of November 12, the Coast Guard had intercepted 2,056 Cuban arrivals by boat or raft. Unfortunately, since the current mass immigration contingency plan is classified, I cannot get into specifics in open session, but I can tell you that the plan, classified or not, is unrealistic and probably ineffective. It fails to consider the facts that will surround an expected immigration emergency which might originate in Cuba, and it assumes factors that are really not that presumable. It is a "plan" without a recognizable director in Washington to whom State and local officials can direct their concerns. Neither FEMA, DOJ, nor the White House appears to be "in charge" of this contingency plan-somewhat similar to what Mr. Rangel has indicated is the status of who is in charge of the current plan dealing with the Haitians. Coordination-so vital in Operation Desert Storm-appears to be nonexistent in the contingency plan. Indeed, I doubt anybody in Florida knows who or what would activate the plan. The plan all but ignores voluntary agencies and private groups, not to mention human nature. The plan assumes an unrealistically low number of new arrivals, thereby ignoring the extra personnel and logistics that would be needed to respond adequately to an influx. The last version of the plan that I saw assumes no new additional Federal funding which would be required to manage an influx of new arrivals. Might I add at this juncture that Dade, Broward, and other counties, including the State of Florida, have expended over $400 million on regulations in the last 11 years and have yet to get reimbursement for the large bulk of that money. Anyone who lived through the events of 1980 in southFlorida knows that the assumption of no additional money is absurd. We have incurred millions of dollars in unreimbursed expenses, as I indicated, and it is ludicrous to draft a plan that involves the use of

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36 thousands of Federal, State, and local government employees and that fails to fund their use. Unfortunately, based on my reading, the contingency plan envisions that an immigration emergency would never occur. Why do I say that? The plan does not even mention the emergency fund authorized by section 113 of IRCA. Regretfully, I believe, the failure to utilize the emergency fund is deliberate. The administration never wanted this fund and has failed to provide guidelines to the States that would seek reimbursement of appropriate expenses. Mr. Chairman, the people of south Florida know that another boat-lift could begin at any minute. Only the Bush administration seems oblivious to this fact, as evidenced by the insufficient immigration emergency contingency plan. I urge the administration, in the limited time that we may have left to us, to work with the State of Florida and all Floridians to develop a realistic and workable plan for dealing with the problem. Let me just finally add something, as you mentioned the Cuban Adjustment Act of 1966. The Cuban Adjustment Act is the law The presumption of political asylee status is given to Cubans as they come here. The law is 25 years old. You can't even make a comparison between that and what is happening currently with the Haitians, and no one should try, I don't believe; it is not appropriate. By the same token, what is appropriate is to deal with how this administration has dealt with, during its tenure, other crises of the same nature and type as the one we are now faced with, with the Haitians, and that would be to look only 2 years back at what happened with the Nicaraguans. They came from a country in economic turmoil and in political turmoil. They came through Mexico, arrived on the borders of Texas, and were led into the United States. They were given asylum applications; everybody filed, whether they could qualify or not, and then they were all allowed to bleed into the mainstream of this country. Most of them, frankly, wound up in south Florida. We are not complaining. We have made a home for them. They have been productive residents and may some day become citizens as their applications are reviewed, which is taking a very long time, I might add. But, in any event, Mr. Chairman, one has to ask the question: Why it is that we could, as a nation, out of the four corners of the existing immigration law, allow the Nicaraguans in, with the turmoil in their own country exactly the same to a large degree as exists now in Haiti-random violence, a chaotic government, a despot at the till-and, at the same time refuse the Haitians and allow for this policy, which is bankrupt in its workings because it is basically generated from a 10-year-old treaty that it does dishonor for us as a nation to honor. That is the question to ask: Can we find a way to accommodate the emergencies of people that find themselves in that emergency and yet, at the same time, as Mr. McCollum has indicated, protect the laws of the United States, show compassion, and, show that we care about all of the problems that are attendant on these refugee emergency situations? I think we can. I think the answer is temporary safe haven, paid for by the Federal Government, with the understanding to those given the safe haven, who are asking for it, that then when the

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37 problem no longer exists in their own country, since they stayed there when there was no problem, they obviously want to be back again when there is no problem. I think that is at least the temporary solution for the Haitian problem. Mr. MAZZOLI. Thank you. That is a very good statement. [The prepared statement of Mr. Smith follows:] STATEMENT OF REP. LARRY SMITH OF FLORIDA Subcommittee on International Law, Immigration and Refugees November 20, 1991 Mr. Chairman, this year, I seem to be spending nearly as much time on this side of the dais as I spent up there with you in my first year in the House. I very much appreciate your holding this hearing on CubanHaitian interdiction efforts by the U.S. Government. I need not tell you that this situation dismays the people of South Florida. I first want to address the interdiction of Haitians seeking to enter this country. I repeatedly have stated that we need a program that is both fair and humane and that can be supported by the American people. I joined a number of my colleagues in sending to the White House a letter asking for temporary protected status (TPS) for these Haitians. To date, we have received no response. Mr. Chairman, the issue before us is a humanitarian one. I want to repeat: humanitarian. Not political. Not racial. Too many people remember what occurred more than fifty years ago when this country refused to allow Jewish refugees from Nazi Germany to disembark in the US. We cannot repeat this sorry episode in our history. South Floridians, and the entire Florida delegation in fact, are very well acquainted with the tiny Caribbean nation of Haiti and its wonderful people. For those among us who have not had the pleasure to be associated with these great people, let me say a few words. The people of Haiti are forthright, sincere, and hardworking. But, they are also star crossed. Unfortunately, this has been the case for Haitians during the entire history of their beleaguered republic -the second oldest in this hemisphere. The citizens of Haiti have experienced democracy only for 7 months in their 200-year history. Their first and rightful democratic leader is Mr. Jean-Bertrand Aristide, a man who, unlike perhaps any other world leader today, truly personifies the hopes and aspirations of his people. A full 67 percent of the Haitian people freely and fairly elected Mr. Aristide to office last December. They expressed their hope in him. Not only would he end Haiti's sad distinction of being this hemisphere's poorest country, but also he would put an end to the state-sanctioned political persecution that has historically racked Haiti. Anyone opposing the entrenched forces of oppression in Haiti was sure to come under attack. Mr. Aristide bravely took these forces on and nearly paid for it with his life. In the hope that his struggle was not in vain, we have

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38 -2joined in an international effort led by the OAS to rightfully restore the legitimate government of Haiti. I submit to all of you that our responsibility does not stop short of humanitarian considerations. Frankly, it is that which should control our policy. We also should do what we can to help the people of Haiti who are fleeing political persecution in Haiti. The provisional government acknowledges 300 dead, and other observers claim that as many as 1,000 have died. According to Amnesty International, a group of uniformed military men seeking revenge for the death of a soldier entered the homes of 30 to 40 residents in Lamentin 54, a suburb of Port-au-Prince, and gunned them down at close range. The soldiers then forced other residents to dig mass graves and bury them. If these instances do not constitute ruthless terror and political persecution, I do not know what does. We should remember that President Aristide has been the most effective problem solver for our immigration problem with respect to Haiti. How? He simply earned the trust and love of his people. However bad things were economically during his sevenmonth tenure, the Haitian people did not wish to leave. More accurately, they did not feel compelled to escape. They may have been poor, but Aristide made them feel safe and proud to be Haitian. Along with freezing Haitian assets here and declaring a commercial embargo on Haiti, we should be likewise committed at a humanitarian level to temporarily providing a safe haven for those Haitians who seek it. The President should declare an immigration emergency so that the $35 million Immigration Emergency Fund authorized by section 113 of the Immigration Reform and Control Act of 1986 may be used to finance the transport and stay of these desperate refugees. That was one of the uses envisioned by me when I introduced the legislation which this committee and Congress approved. Let us immediately get away from a policy of adhering to an interdiction agreement that we made ten years ago with the brutal Duvalier regime. We should allow them in and give them a safe haven in a non-prison facility, returning them to Haiti only when it is safe. I now want to address the preparedness or lack thereof of our government for another Mariel-type exodus of Cubans. As of November 12, the Coast Guard had intercepted 2,056 Cuban arrivals by boat or raft. Unfortunately, since the current mass immigration contingency "plan" is classified, I cannot get into specifics in open session. But, I can tell you that the plan is unrealistic and probably ineffective. It fails to consider the facts that will surround an expected immigration emergency originating in

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39 -3Cuba. It assumes factors that are presumable. It is a "plan" without a recognizable director in Washington to whom state and local officials can direct their concerns. Neither FEMA, DOJ, nor the White House appears to be "in charge" of the contingency. Coordination--so vital in Operation Desert Storm--appears to be non-existent; indeed, I doubt that anybody in Florida knows what or who would activate the plan. The plan all but ignores voluntary agencies and private groups not to mention human nature. The plan assumes an unrealistically low number of new arrivals, thereby ignoring the extra personnel and logistics that would be needed to respond adequately to an influx. The last version that I saw assumes that no additional federal funding would be required to manage an influx of new arrivals. Anybody who lived through the events of 1980 in South Florida knows that this assumption is absolutely absurd. The State of Florida and Dade County incurred millions of dollars of unreimbursed expenses in the Mariel boatlift. It is ludicrous to draft a plan that involves the use of thousands of federal, state, and local government employees and that fails to fund their use. Unfortunately, based on my reading, the contingency plan envisions that an "immigration emergency" NEVER would occur. Why do I say it? The plan does not even mention the emergency fund authorized by section 113 of IRCA. Regretfully, I believe that the failure to utilize the emergency fund is deliberate. The administration never wanted this fund, and it has failed to provide guidelines to the states that would seek reimbursement of appropriate expenses. Mr. Chairman, the people of South Florida know that another Mariel boatlift could begin at any moment. Only the Bush Administration seems oblivious to this fact, as evidenced by this insufficient immigration emergency contingency plan. I urge the Administration, in the limited time that we may have left to us, to work with the State of Florida and all Floridians to develop a realistic and workable plan for dealing with this problem.

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40 Mr. MAZZOLI. I might say, the gentleman and I talked during the August recess, as a matter of fact, about this very problem, so the gentleman's contact with it has been steady and consistent. I would like for the record to note that our distinguished colleague, the senior member of our full Judiciary Committee, the gentleman from Michigan, Mr. Conyers, has joined us and has consented to sit with the panel as long as his time permits. We would, before getting to your statement, John-and I believe our next two colleagues came in the same class; I think they are classmates. I think you came in the 98th Congress. Is that correct? Anyway, taking them in alphabetical order, L is a little bit earlier than O, so maybe we will start with Tom and then go to Major. Mr. FASCELL. Mr. Chairman, I ask unanimous consent to put in the record with my remarks-the editorial from the Miami Herald of November 20, 1991, which is headlined: "Stop Haitian Interdiction." It not only gives the background on the issue at hand but also makes some pertinent, cogent suggestions which I believe merit the review of this committee. Mr. MAZZOLI. It certainly will be made a part of the record, and I intend to read that before the day is over. [The editorial follows:]

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41 DICK NELLIUS 3058566779 Stop Haitian interdiction! jf LQI( Z t~ IT SEEMS incredible to have to be saying anew, more than a decade later, what The Herald first said in September 1981, when the Reagan Administration first began stopping boatloads of Haitians. This interdiction -of Haitians and only of these black people, no other -is racist. It is immoral, a deal struck with.a Duvalier devil. It shames this great nation. It must stop. o no other people except this hemisphere's poorest, blackest nation does the United States, beacon of liberty, give not just its back but the back of its hand. To no other people does Washington say: "We have placed an economic embargo against those who usurped your government, but we will not let you flee its consequences." Search the Judeo-Christian ethic from top mast to keel, and you'll find no moral justification for this interdiction policy. It hangs like an albatross, dead these 10 years and two months, around the Statue of Liberty. It turns her stomach. But not the Bush Administration's. On Monday, the Bush heirs of the Reagan policy began returning to Haiti the first of some 2,000 Haitians interdicted at sea. Yesterday Federal Judge Donald Graham in Miami halted the repatriation. He granted a temporary restraining order requested by the Haitian Refugee Center, Inc. (HRC) of Miami. Bless you, Judge! The HRC argues -and the evidence attests -that forcibly returning the Haitians violates the Refugee Act of 1980, the 1981 Presidential order implementing interdiction, and the U.N,'s Universal Declaration of Human Rights. Let's examine the barest figures. From September 1981 to June 1991, more than 24,000 Haitians were interdicted. Only 28 -twenty-eight! -were found eligible for political asylum. Of the 2,000-plus Haitians interdicted since the Sept. 30 coup, only 53 have been ruled eligible for asylum. Only 53. Do no others have a wellfounded fear of persecution if returned to a land whose rogue soldiers have killed hundreds -nobody knows the total -since overthrowing President Jean-Bertrand Aristide? Or is 53 just a sampler? Given Haiti's violence since Sept. 30, how many of these boat people might be judged legitimate political refugees if they had a full and fair opportunity to make their case? But these hearings cannot be fair, because they cannot be full. Though longer JUDGE HALTS REPATRIATION than before, the hearings remain unduly brief. The Haitians are frightened, often seasick, probably unable to comprehend the legal gravity of their interview with the INS officers aboard the Coast Guard cutters. In short, of all people who deserve due process, these Haitians do. But they are black. They are poor. They are powerless. Because Haitians are black, and poor, and powerless, the U.S. Government sends its ships near their island and stuffs them back when they try to flee. Some argue that interdiction is piracy. No nation owns the high seas. No nation has the right, outside its own territorial waters, to stop foreign vessels and force foreign citizens to go where they wish not to go. But Washington struck this interdiction deal with the Duvalier despots. So it is not piracy, one supposes. It's only Faustian. O The chaos in Haiti is going to get worse before it gets better. In order to cleanse its own conscience and play by its own rules, the United States must stop this interdiction. Then it should treat Haitians as it would treat any other nationality. It should: S Allow Haitians the human right to leave their country and to sail wherever the current carries them. If some perish, and some surely will, they do so as free people making free choices. 0 Haitians reaching U.S. shores should be given full due-process rights, not a herried. truncated shipboard hearing. Haitians who can show a well-founded fear of persecution should be granted asylum. Those who cannot should be returned home, like any other illegal alien found ineligible for asylum. As the number of Haitians granted asylum increases, as it inevitably will, Washington must recognize that South Florida's counties cannot be expected to foot the bill for the consequences of U.S. policy. We've paid Washington's bills for too long. The White House must stand ready to send refugee-aid funds to this area. If the White House won't halt this interdiction voluntarily, it invites Judge Graham to rule that the result of interdiction repatriation -is illegal as now done. Illegal or not. it is racist and unmoral. P.02 -1 l Art r .a

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42 Mr. MAZZOLI. Tom, do you want to give your statement, and then we will take a break for the vote and come back, or would you rather that we vote now and come back? Mr. LEWIS. I would rather vote now and come back. Mr. MAZZOLL All right. With that, the subcommittee will stand in recess until we go vote, and we will come right back. [Recess.] Mr. MAZZOLI. The subcommittee will come to order, and we will resume where we suspended a moment ago with Tom Lewis, our friend from Florida. Tom, you may proceed. Your statement, as Mr. Owens', will be made a part of the record. STATEMENT OF HON. TOM LEWIS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA Mr. LEWIS. Thank you, Mr. Chairman. Let me take this opportunity to thank you, Mr. McCollum, and the rest of the subcommittee for your foresight in reviewing this problem and bringing this hearing forth. Over recent years, we have witnessed a dramatic disintegration of the political and economic infrastructure of both Cuba and Haiti. This drastic decline has brought refugees to Florida's shores en masse. We have seen them arrive from Cuba and Haiti on overcrowded boats, makeshift rafts, inner tubes, and basically anything that will float, and even with illegal hucksters that bring them close to shore and throw them overboard. Oftentimes, the only possessions these refugees have are the ones that they carry with them. Therein lies the problem that confronts the social and economic structure of south Florida, Mr. Chairman, and the people of south Florida, I've got to point out very strongly, are compassionate, concerned, they understand, and are sympathetic toward the Haitian's problems. The Federal law requires the State to extend basic medical, educational, and social programs to these refugees when they hit our shores. Unfortunately, the Federal Government refuses to address the powers with which it is vested through the U.S. Constitution. The Federal Government has exclusive responsibility for the area of immigration and its related products. It does not appear that we have learned any lessons from the Mariel boat-lift or any other immigration influxes that America has faced over the past decade. Mr. Chairman, we are always apprehensive in south Florida. We know that these potential boat-lift and refugee problems can happen from the south. They have happened over the years and will probably continue to happen in the future, and we feel it is high time we had a policy that would address the situation. Since 1982, excluding the over 150,000 Cubans and Haitians brought to Florida during the Mariel boat-lift in 1980 and 1981, almost 410,000 immigrants have been granted permanent residency, naming Florida as their intended home. This number does not include the refugees who have come to Florida illegally and have not attempted to apply for any type of status. During this same period, we have seen a drastic decline in the amount of Federal dollars given to Florida to offset expenses in-

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43 curred through their refugee programs. Federal funds have decreased from $53.2 million in fiscal year 1983 to $33 million in fiscal year 1990. In addition, Florida is still owed $150 million from expenses incurred during the Mariel boat-lift. Let me dispel a belief currently held by many Members of Congress and the administration, the belief that States are not financially impacted by immigration policy. Immigration, legal or illegal, does impact State and local governments as well as local entities. Just ask the Jackson Memorial Medical Center administrator whose hospital has provided services to over 140,000 refugees from Cuba and Haiti since 1982. Ask the school district administrators who must find Spanish-speaking teachers in order to accommodate the influx of school-age refugees knocking on their doors. Ask the local religious and volunteer organizations that attempt to meet the basic human needs of these refugees and their families. I want to make it clear that I sympathize with the plight of the Haitian refugees attempting to flee the persecution of their repressive government. Unfortunately, our lack of a sound policy concerning mass immigration is evidenced in the fact that we have roughly 1,500 Haitian refugees-bless their souls-on U.S. Coast Guard cutters off the coast of Florida. Until the administration and Congress properly address the instances of mass immigration, Mr. Chairman, such as our current Haitian situation or the imminent return of another Mariel boat-lift, Florida cannot continue to shoulder the burden of future refugees. Mr. Chairman, I was elected to represent the U.S. citizens of the 12th District of Florida. Unfortunately, the influx of refugees has strained access to programs such as health care, education, housing, and numerous vital programs that citizens of my district support with their tax dollars. Until we face the facts regarding the impact of immigration on the United States, Americans who depend on these programs will continue to be shortchanged. And I want to caution this committee with respect to future legislation that may appear to make positive changes in immigration policy but in turn has devastating impacts on the citizens of this country. I thank you, Mr. Chairman, for this opportunity and certainly want to endorse most of what my colleagues prior to me have stated about this Haitian situation, but I do believe that we do have to have a policy that will be forthwith when we have these types of problems arise. They are going to arise, we know they are going to happen, they have happened in the past 20-30 years, they are going to continue to happen. Every time there is unrest to the south, people in the southSouth America, Haiti, Cuba, and other places in the Caribbeanlook to the United States, and, when they do, they look to south Florida. That is where they feel the United States is; that is where they have friends; that is where they have family. Mr. Chairman, we need some relief, and we are asking this subcommittee to take a look at this. Mr. MAZZOLI. Thank you very much, Tom. It is very true, there are a lot of things the State of Florida can control for itself, but it cannot control immigration, and it therefore ought not to bear the biggest burden of paying for it.

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44 One of the earlier witnesses mentioned the fact of the need to consider all the States as part of the solution, not just single out the one State. Mr. LEWIs. Absolutely. Mr. MAZZOLL It is a two-tiered problem here, you have different levels, and that is certainly one of them. We are happy to have your statement, and we are also happy now to welcome Major Owens, the gentleman from New York. Major. STATEMENT OF HON. MAJOR R. OWENS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK Mr. OWENS. Yes, Mr. Chairman. I want to join my colleagues in thanking you for holding these timely hearings. I represent the 12th Congressional District in New York, which has the second largest concentration of Haitians in this country. I will not take the full 5 minutes; I don't want to be redundant and repeat what my colleagues have said. There are representatives of the administration here, and I think the administration should have maximum time to state clearly what the policy is that they are pursuing in this particular case. The impression has been given that they are pursuing a David Duke policy where special standards have been set up for the Haitians because they are black. I would like to see them correct that impression by stating clearly what the policy is at this point. The best way not to have the problem that has been placed on our doorstep by this current wave of Haitians trying to leave is to have a policy where we support unequivocally the democracy and the democratic process in Haiti. It is quite clear, I don't think anybody disputes the fact, that the number of Haitians seeking to leave the country and get into this country went down almost to zero during the period after Aristide was elected by 70 percent of the people who came out to vote. If it is economic hardship that they are fleeing, then something happened after the election of Aristide. Hope maybe is what kept people at home, but the number of people trying to escape greatly decreased, which means that our best and most effective way of solving the problem is to support the democratic process in Haiti. In New York City, there were 80,000 Haitians who demonstrated after the military junta had thrown Aristide out of the country. Many of the people who demonstrated were not necessarily supporters of Aristide, some were critics, but they were supporters and came out in solidarity for a democratic process. Whatever disagreements they may have with the current Government of Haiti, they feel that if there is a democratic process and it is supported, they can take the necessary steps to correct it. There is a reign of terror in Haiti now, without a doubt. One of the people who was murdered was a constituent of mine, a Haitian American, an American citizen, who went back after Aristide was elected and started a disco business, and because his name happened to similar to somebody else's name, he was mistakenly dragged out of bed and slain by Haitian soldiers as a result of their seeking somebody who did have political connections.

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45 In many cases, people are shot down in the street merely to make a point, merely to break their spirit. They have no political position whatsoever. So the people who are fleeing are fleeing a reign of terror, and the line between economic refugees and political refugees is very thin indeed. Whatever they may say, among the reasons they are fleeing obviously is the fact that the terror has escalated in the last few months following the deposition of Aristide. Given the fact that a series of U.S. Governments have had a hand in creating Haiti's puppet civilian regimes in the past and military regimes, and they have supported them, given them military aid and training, we have a special obligation toward the Haitian refugees. We have not allowed any other country to have a dominant role in the affairs of Haiti. We have always insisted that the United States must dominate the affairs of Haiti. Therefore, we have this special responsibility. They are the harvest the years of misguided U.S. policy toward Haiti has reaped; the refugees are the harvest of that policy. They are the result of our Government's winking or looking the other way as Haiti's dictators oppressed their own people and plundered the resources of their own country, often with our Government's assistance. We must change our Haitian immigration policy, immediately suspend the deportations and exclusions, and give Haitian refugees what we give any other refugees, temporary protected status, until the current crisis in Haiti is resolved, and Aristide must be restored to his rightful place as the country's President. We must denounce our policy which appears to be a .David Duke immigration policy, a policy which says, in effect, there are special standards for Haitians because they are black and only whites need apply for asylum in this country. I thank you for the opportunity to testify, Mr. Chairman. Mr. MAZZOLI. I thank the gentleman, and I appreciate the return of our friend from New York, Mr. Rangel. Let me just yield myself a couple of minutes for some comments. I thank you. I think this panel has had some of the best testimony that we have ever received and, I hope through the dissemination process, that the Nation has ever received on this issue of the problems of Haiti, singular as they might be but then also as they are applicable to the whole problem of movement of people from one place to the other-and the gentleman from New York reflected that in his statement particularly-and the fact that we have tiers of problems here. We have a first tier, and we have a second tier, and probably even a third tier, and I think it is important to keep those tiers in mind. Some may be harder to deal with, and some may be perhaps intractable. But one area I think can be dealt with, and dealt with promptly, and doesn't need major, major activity in a broad base, and that is those people currently on board the cutters in the Windward Passage or wherever, currently the people who are at Guantanamo. If I might ask my friend from New York, Mr. Rangel, perhaps he might give this committee a few words about his bill, H. Con. Res. 220, and how he might see this as dovetailing into a broader program dealing with this first-tier activity of the people who are currently at sea. As Chairman Rangel is one of our noted legal people

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46 too, how we might handle the judge's order, which we applaud but, at the same time, don't want to leave as more or less people just circling or staying on board the ship. At some point, those people currently on board the cutters have to be dealt with in a more fundamental way than they are being dealt with now. So I would ask my friend to just sort of share a few thoughts with me on that. Mr. RANGEL. Thank you, Mr. Chairman. I will be brief and will be glad to follow through with other questions. Let me deal with the last part of your question first, and that is the people on the ship. I think, as you do and others, that this is an emergency and one that requires the direct hand of leadership of the President of the United States. This is human life. We cannot talk about treaties with Duvalier, we cannot talk about political, economic, we are talking about human life. We are talking particularly about human life that is on Coast Guard cutters. It would seem to me that, notwithstanding the difficulty that some people have in absorbing these 2,000, or perhaps 3,000 now, Haitians into the U.S. population, that, at the very least, we should ask friendly countries to assume some responsibility-and that includes the poor countries in the region, with us providing the resources for them to be able to do the right thing-as you know, the hearings and my legislation dealt with a situation that did not even perceive that the United States would take the people on the boats and return them to the dangers that exist in Haiti, and so what I am saying is that, one, we should not deport Haitians to this war-torn zone with these heathen type of military people there that have a reputation of shooting down anyone that disagrees with them. Mr. MAZZOLI. We start off with the premise then, Congressman Rangel, that we should not return any of the Haitians to Haiti right now. That is the bottom line. Mr. RANGEL. And the way I see it is, any place but Haiti. Of course, I think that we can absorb them here; we can get a thousand points of light; we can get the Red Cross, the churches, and the synagogues. We are not talking about Miami and New York assuming all. The question of how they are taken care of this time in the year-I could take a leave of absence and direct that. It is just the right thing to do. The President has nothing to fear except doing the right thing, and by doing this, he would encourage these smaller countries, who are now saying, "You are asking us to accept a standard and accepting people that you don't accept." The hypocrisy in asking a small country to take an "economic" refugee, but we will screen and only take the political refugee-there is no sense in that at all. Mr. MAZZOLI. Will the gentleman, who is my friend and congressional classmate and near-neighbor here in Rayburn, be interested this afternoon in the two of us trying to place a call to the President and perhaps in a joint conference or perhaps request a chance to sit with the President for a few moments today or tomorrow to talk with him about this issue? Mr. RANGEL. I would welcome that.

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47 Unfortunately, I wasn't present in my office, I was in committee, when the President did return my call yesterday. I did talk with John Sununu. He indicated that he is working with the State Department in trying to find some solution that is more compatible. I would welcome that opportunity. Mr. MAZZOLL I think I might try to pursue that. It may be, since Governor Sununu has said that, perhaps three or four could meet and talk, and others as well, to maybe try to find a solution. I thank the gentleman, and I will follow up on that. Mr. RANGEL. Thank you for your leadership and sensitivity on this issue, Mr. Chairman. Mr. MAZZOLI. Thank you. My time has expired. The gentleman from Oregon-if the gentleman from Oregon would yield to the gentleman from Michigan, who has been with us for a whileMr. KOPETSKI. I would be glad to yield. Mr. MAZZOLL My friend from Michigan, John Conyers-John, you are welcome to stay with us for whatever time you have today. Mr. CONYERS. Thank you very much. I need only to commend you and my colleagues from New York, both Mr. Rangel and Mr. Owens, for us moving with such dispatch on this subject. I am sensitive to the fact that we are operating against the backdrop of a history of discrimination in immigration policy toward this country, and what we are now faced with is an emergency on top of that history. The point now is, how do we move expeditiously? We are now talking about getting to President Bush, having him make the proper resolution of this matter. This is an emergency circumstance, and I think it will set the pattern for other countries to help us share the load, so that this matter of proceeding in a way that reverses history I think will keep hope alive. Aristide's election was a historic decision that was made by the Haitian people. They chose to democratically elect one of their own, a person who was a noncandidate almost up until the last minute. What we need to do here is to move as quickly as we can, and I think this committee, the witnesses, and the Congress will do so. Mr. MAZZOLL Thank you very much. I appreciate that. The gentleman from Oregon. Mr. KOPETSKI. Thank you, Mr. Chairman, and I concur in the statements my colleague from Michigan has made. In reading about the Coast Guard having to process these people, I think we need to recognize that we have put them in a difficult position as well. But I couldn't help but think that the way the Haitian people are being treated, it was almost no different than a fish processing ship out there in the ocean, sorting the "keepers" from the ones that we don't want. I find this, and I think the American people find this, just reprehensible, the policy that we have. We represent freedom, and we represent a safe harbor, and the gentleman from Michigan is right, that there are other countries that would help us help these people in their time of great need. I think we can show and demonstrate

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48 to the American people that the Congress and the administration can act quickly in a humanitarian sense to help these people that are so distressed. Mr. MAZZOLI. I thank the gentleman. [The prepared statement of Mr. Kopetski follows:] PREPARED STATEMENT OF HON. MICHAEL J. KOPETSKI, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OREGON Mr. Chairman, America has been a safe harbor for the world's oppressed peoples since the first colonists arrived on these shores. Moreover, our national policy of welcome to the homeless of the world has served our country and our traditions well. It was not without good cause that France chose to give to the United States on the centennial anniversary of our independence in 1876 the Statue of Liberty with its famous inscription: Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door. But, in the case of Haiti, we are running away from our heritage. Personal whim, not law or fact, appears to be influencing the establishment of eligibility for asylum. Between 1981 and 1990, 22,940 Haitians were interdicted at sea by the United States. Only eleven qualified for asylum. From January to October of this year, the U.S. has interdicted approximately 1,900 Haitians at sea; only 20 were allowed to apply for asylum. Of the 2,458 refugees we have interdicted since the September 30th coup, 1,920 Haitians are aboard Coast Guard cutters or being held at Guantanamo Naval Base. Only 53 have been transported to the U.S. for asylum consideration-but 538 have been forcibly repatriated.

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49 Page 2 Traditionally, U.S. foreign policy has always treated Haitians as economic migrants, not victims of persecution. And so far, even in this post coup period, we have not adjusted our policy or approach to the plight of Haitians. It is interesting to note that Haiti is the only country with which the U.S. has a migrant interdiction agreement. The President and our Organization of American States partners believe the consequences of the coup are serious enough to warrant an embargo, but apparently not serious enough to warrant a humane change to our treatment of fleeing Haitians. I believe the handling of the Haitian situation will warrant a hard look at a legislative remedy to the manner in which our asylum policies are being carried out when Congress takes up reauthorization of the Refugee Act next year.

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50 Mr. MAZZOLI. I think it ought to be noted that temporary protected status is a condition which is in the law, and it is currently being exercised in behalf of Liberians, Somali, people from Lebanon, people from Kuwait, so it is not exactly as if this has never been utilized or exercised. Mr. KOPETSKI. Mr. Chairman, if you will yield, you know with the Iraqi war situation, we have some Kuwaits and Iraqis settled in North Carolina today. Mr. MAZZOLI. That is right. I think also the gentleman and I, if we are able to visit with the President, or talk with him together today, ought to commend him on what he did very recently to extend for 4 years the safe harbor granted to the Palestinians who are in the United States, who came from Kuwait, who can't go back home for obvious reasons, and I think it was wonderful on his part. I saluted him, and I think all of us doff our fedora to him for having done that. That was done in his capacity as chief executive; it is an executive fiat; it is one that receives wide acclaim. But even if a person would have objected to it, there would be no way to object to it in any official way. You can't reject that handling in any legal sense. So the President is certainly capable, has the authority to exercise that same kind of executive fiat in behalf of these people, and I think that it could be done, and I think it ought to be very important that no one of us is oblivious to the fact that the second-tier and the third-tier problems also have to be dealt with, and that is where we have to get OAS people, the United Nations, we have to get contributions. As the gentleman from New York said in a very eloquent way, that is the way the President handled Desert Storm and Desert Shield, by being the leader of an organization, a coalition of nations, and all of us bore a share of it. I can see the same kind of result coming out in this hemisphere for these people. Maybe this is the new world order that we have been hearing about. Maybe this is the way the new world order will be handled in regional ways, in matters not on a war and battlefield, but in the sense of dealing with human deprivation, and human misery, and human danger, and human fear, and I think if that is the case, well, maybe that is a very welcome new world order; maybe that is a halcyon moment for the world and for this Nation as its leader. So, anyway, I think we have every opportunity to help the President in the longer run problems even as he can now, in a very quick way take care of these people. So I want to thank our friends-both of you-and you are welcome to sit with us if you wish. Mr. RANGEL. Thank you, Mr. Chairman. I would like to say to Mr. Kopetski that I agree with what he said, and the Coast Guard doesn't need me really to give support. But they are dedicated men and women. They have really done the best they could. It is the Immigration people who are doing the interrogation. They are dedicated. They find themselves in this awkward and embarrassing position, and I hope one of the things that comes out of this hearing is who put them in this position, whose policy is it, so at least we will know whom to go to, to possibly get an explanation for this inhumane decision that has been made.

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51 That is why I welcome the Chair going to the ultimate source, which is the President of the United States, to assist us in turning back this policy, and I thank you for your comments. I would like to join you. Mr. MAZZOLL Thank you very much. Before we move to our next panel, I would like to put in the record, first, the temporary restraining order which Judge Graham issued yesterday in those cases to which we have referred; and I would also like to put in the record-I don't have it in front of me at the moment, but there is a letter that was served on us by the American Bar Association in which they urge the grant of temporary protected status to the Haitians. Here it is. It is a letter, actually, to Mr. Barr, who is Acting Attorney General, to designate Haiti as a country for temporary protected status, citing the law and the background of the law. I think implicit in this is to consider a Coast Guard cutter part of the United States for the purpose of deciding when these prescreening applications will be taking place. [The restraining order and letter follow:]

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52 a "d 8CAt It~t'I11 06 WIxTED STATES DX TRICT CQURT" BoITauQ DXSTRIC2 08 10 Case No, 91-2633-ZV-A TXZEi HAAkIA REPUGH CmHTnis, INC., a notfo-profit corporation, Plaintiff, Vo JAMES aAxER, II, Secretary ft 86tat, EAR ADMIRAL RO3ET XRAMI and ADIRAL RIK, Command&nt, united Cates Coast Guard, GES6 HobMAY, Comigsioner, Immigratf n and aturalisation Service, UNTZD S ATha DEPARTMENT O JU3IT Immigrat on and Naturalizati Service, and the UNTED STATES F AMERICA, Defendants. TrMPORARY RSfRAINING ORDSR Tait CAUS eae before the Court upon Plaintiff' eerenc application for a temporary restrabing order to prevent DefcnAq4t fros returning to gatt, HattLansu-nterooptod and/or to the Wtei custody and control of tbe Unite .tatea Coast Guards Preentlyi the lnit$anu are being detained .oR the high seas and at the oil) Coast Guard oaue at Guantanamo Day, Cuba, TIM COUr has considered thqotion, argument of counsel, an the pertinent portions of the record, and bping Otharwite 1u. advieod in the premises, it to hea;by ORDERSD AND ADJUDGED that the said Application is GRAHDf Defendants are precluded from continuing torepatriata uKitin&

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53 C 'd 5E l .'56t/tt '5'0@ Page 2 UNITED 8TATES DISTRICT COUOT SOUT!BRN DXSTRXCT O FL 4 currently on board U.S.flagged vessels and Haitians oprently being held on land under United $tatea' Control and at Ouantas~ijo say, Cuba until turther order, to maintain the sta aue* Due to the importance of the patters presented and the, pxige~t ciroumstancoes surrounding this cspe, additional oonsidsratioh o the Leone of standing La oxidte). Therefore, it io further OkbRRED AND DJUDGZD that flointiff'a oounstl,@hall4 within tive (5) days from the date of thip Order, file a memorandum of ew discussing whether Plaintift ha standing to file suit on behsjt of the faitians that have been intercepted by the United States Coast Ouard, and addressing the following elements required foort o tesAAnce of a temporary reetraittng orders 1. that there is a substantial likelihood that Plaintiff will prevail on merita) 2. that there is a substantial threat that Plaintiff will suffer irreparable injuryv.t the injunction is not granted: 3. that threatened injury to Plaintiff outYSig he threatened harm the injuhotion may do to Defer.dantp and 4. that granting prelimsnary injunction will hot ditectvO the public interest. Paition nofugee Center, Ince v, Jeleonj a72 r.2d 1$55, 1$61.1512 (11th Cir, 1989) (listing factor for granting injunctive relief), EAffe, 111 8. Ct. 888 (1991). Defendants shall file A reply morocandum of law within two (2) days of the filing &C Plaintifft'

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54 d1V i ~' C -' O d 0 4 1 8 8 / 1W M *d 1itlQ1 Sd Ot+it 1S/S!/'A 'y ** 1 Page 3 UNITED STATRO DIOTaXCT COURT SOUThEEN DISTRICT Qr ,0afti0 remorandum. The Court will then determine the appropriateness o4 granting continuing or further injunctive relief. DqUa AND ORDElD in Chambers at Mi Florida, this ) of November, 1991. DO VI RA8M UNITED STATES DISTRICT JUDGE copies provided Zra J. Kurtban, Eq. Doxtor Lee, AUSA

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55 COVERNMENTAL MFAIS OauICE DIRECTOR toert D Evans SENIOR LEGISLATIVE COUNSEL re R. msetm Mark .SchemnM.c Aawt SCHEINESON.M LEGISLATIVE COUNSEL .~n CARDAAN.D Ll. &wG~ AS&If CASINI. .au'. NctnIS AW m a12 Cay. & $*eas STAFF DIRECTOR FOR INEoiMAYO SERVICES Sharon Green Al net 284 WASXNION LTin~t KNeads I. nCOORDINATrOR INTELLECTUAL PROPETY LAV CONSAATANT IAOAICATION PROtECT Co NS nT Cm1-SwdcIO&e AMERICAN BAR ASSOCIATION Governmental Affairs Office 1800 M Street. N.W. Washington, DC 20036 (2021 331-2200 November 18, 1991 Hon. William J. Barr Acting Attorney General Department of Justice Washington, D.C. 20530 Dear Mr. Attorney General: As we witness the momentous growth of democratic ideals and institutions abroad, recent events in Haiti provide a tragic reminder of how fragile democracy may be. In a matter of weeks, at least three hundred lives have been lost and an uncertain number of Haitians have been imprisoned, gone into hiding, or fled the country. Now that the international community has imposed sanctions, the health and welfare of the entire nation is imperiled by deteriorating economic conditions. Meanwhile, Haitians who have fled to the United States for safety fear they may be forced to return to Haiti before peace and constitutional order are restored. In view of this deepening crisis, the American Bar Association urges you in your capacity as acting Attorney General to designate Haiti as a country for Temporary Protected Status. We believe such recognition will help ensure that Haitians who have reached the United States are provided physical safety and given the same treatment that our nation currently extends to Kuwaitis, Lebanese, Liberians, Salvadorans and Somalians. The Immigration Act of 1990 authorizes the Attorney General to grant safe haven status to nationals from countries experiencing war, natural disaster or other extraordinary conditions that endanger physical safety. As you know, the TPS law does not create an admissions program and does not modify the refugee, asylum or withholding of deportation provisions. The statute only permits nationals from designated states who are already in the United States, but who may not fit the textbook definition of "refugee" or "asylee", to remain and work until they can safely return home, provided they register and meet the other eligibility requirements. This framework is intended to provide sufficient flexibility and the necessary authority to respond

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56 swiftly to changing world developments. We believe that conditions in Haiti are so "extraordinary" to warrant immediate designation. Even under a best-case scenario, conditions in that country are not likely to permit the safe repatriation of Haitians for the foreseeable future. In the meantime, Haitians in this country should be treated with dignity and compassion. While TPS is the appropriate remedy for individuals already in the United States, we also have concerns for those who have risked their lives but not yet reached our shores. We understand from news accounts that at least 38 Haitians on coast guard cutters at sea have been preliminarily identified as potential refugees yet have not been allowed to apply for asylum. In our judgment, those individuals should immediately be permitted to apply for asylum pursuant to international agreements and established INS procedures. Furthermore, we understand that the INS "pre-screening" interviews taking place on the Coast Guard cutters lack normal procedural protections to ensure that eligible refugees are not erroneously rejected. If such individuals are taken to camps in third countries, as has been proposed, they will be precluded from proving that they do qualify for asylum. We note that the U.S. treats no other group of potential refugees in the manner proposed for the Haitians, and that about 2000 Cuban rafters have been paroled into the United States so far this year. In conclusion, we are aware that the Administration is deeply troubled by the situation in Haiti and is developing a response to those who flee. We urge you to grant TPS to Haitians who are fortunate to be in the United States and to give all Haitians in U.S. custody a meaningful opportunity to demonstrate their eligibility for asylum. Sincerely, Robert D. Evans cc: James A. Baker III, Secretary of State J. William Kime, Commandant, U.S. Coast Guard

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57 Mr. MAZZOLI. Let me now ask to come forward Ambassador Robert Gelbard, who is the Principal Deputy Assistant Secretary for Latin America of the Department of State, who will be accompanied by Ambassador Princeton Lyman, Director of the Refugee Bureau, Department of State; then the Honorable Gene McNary, the Commissioner of the Immigration and Naturalization Service, who will be accompanied by Rex Ford, Associate Deputy Attorney General, Department of Justice, and Ricardo Inzunza, Deputy Commissioner of the Immigration and Naturalization Service; and then Adm. William P. Leahy, Jr., the Chief of the Office of Law Enforcement and Defense Operations of the U.S. Coast Guard Headquarters. Thank you very much, gentlemen. Mr. Ambassador, I am aware of your discommodation. If you have to leave, or if you wish to leave after Mr. McKinley-whatever is in your pleasure-but we would start with you. All the statements will be made a part of the record, and I will be forced to use the clock a little bit today in order that we try to keep our statements to 5 minutes in order that our panel have a chance to answer questions. So I would start with you, Mr. Ambassador, and thank you very much for joining us. STATEMENT OF ROBERT S. GELBARD, PRINCIPAL DEPUTY ASSISTANT SECRETARY OF STATE FOR INTER-AMERICAN AFFAIRS, DEPARTMENT OF STATE, ACCOMPANIED BY BRUNSON McKINLEY, DEPUTY ASSISTANT SECRETARY OF STATE, BUREAU OF REFUGEE PROGRAMS Mr. GELBARD. Thank you, Mr. Chairman, members of the committee. If I may, Mr. Chairman, I would like to go through part of my statement, particularly the part that deals with Haiti. Mr. MAZZOLL Yes. And the current part-again, not to try to prompt you in your statement in any fashion, because the context is very important, but, the committee is interested in the current events, or if you want to say the first tier, which is the emergency problem. What to do with the people who are currently on the boats? What the State Department can or can't do there? How can we encourage furtherance of democracy? What happens to the Aristide government? How can OAS perhaps be a force to play a role in that? So that would be a long-term solution, but we have two tier problem, and I think the first tier would be the part-so let me give you back your 5 minutes. Mr. GELBARD. Thank you, Mr. Chairman. In the aftermath of the military coup which took place on September 30, we have been working with the nations of the Organization of American States and other nations in the world in an effort to restore the democratic Government of Haiti led by President Aristide. We have a standing agreement with the Government -of Haiti which permits us to rescue at sea Haitians who are intending to immigrate to the United States and to return to Haiti those who

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58 lack a basis for asylum. This agreement was reached in 1981 to give the Haitian and American Governments a mutually acceptable way of dealing with the regular flow of Haitians who seek to come illegally to the United States for economic reasons. When President Aristide was forced from office, we expected that an exodus of Haitians might occur immediately in response to that political crisis, but it did not occur. From the time President Aristide left Haiti on September 30 until October 28, the Coast Guard found no boats with Haitians coming to the United States. On October 28, the cutter Steadfast picked up a boat with 19 Haitians aboard. The next boat came on November 4, and the flow has greatly increased since then. As of yesterday, November 19, we had picked up nearly 2,200 Haitians. I believe the number has increased to 2,800 as of today. Mr. MAZZOLI. 2,800, Mr. Ambassador, as of today? Mr. GELBARD. Yes, sir. Seven of these boats had over 100 Haitians on board. None of these crafts was over 40 feet in length. For example, on November 14 the cutter Confidence interdicted a 40-foot sailing vessel with 238 Haitians. This boat was not designed for use on the high seas. It was severely overloaded, carried no life jackets, no flares, radio, beacons, charts, navigational equipment-in short, not equipped to survive the voyage it intended to make. This was typical of the conditions on these boats, any of which could easily have capsized in rough seas. In responding to this extremely difficult situation, our overriding concern has been to save lives. We have taken the following factors into account. In keeping with the intent of the United States-Haitian Immigration Agreement, the interdiction program, and U.S. law, we have an obligation to prevent an unimpeded flow of Haitians to the United States. We want to rescue people from vessels that put them at high risk of losing their lives at sea. We want to ensure that those who have a well-founded fear of persecution, and hence a good claim to asylum, are interviewed carefully, identified, and brought to the United States. Above all, we want to avoid any action that would encourage more Haitians to risk their lives by boarding unsafe vessels in the belief that this would ensure them passage to the United States. At first, we sought a regional solution, and on November 8 we began to work with the U.N. High Commissioner for Refugees, the International Organization for Migration, and countries throughout the Caribbean region to see which countries might accept a number of Haitians picked up by Coast Guard vessels. We had hoped that a sufficient number of countries would accept these people and that arrangements could be made for their temporary safe haven under the auspices of the UNHCR. Regrettably, after nearly 2 weeks of intense diplomacy with both the United States and UNHCR canvassing the region, we have not yet been able to elicit a sufficient number of positive responses from the countries of the region. Many are already host to large numbers of Haitians. For example, the Bahamas has 40,000 illegal Haitian immigrants. We will continue to pursue discussions with countries in the region to arrange temporary safe haven for additional Haitians.

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59 Yesterday in a meeting hosted by the OAS in Washington, the UNHCR made a renewed appeal to countries in the region to accept Haitians. By the beginning of this week, we had 483 Haitians temporarily ashore at our naval base in Guantanamo and over 1,200 on Coast Guard vessels. Despite renewed warnings broadcast over the Voice of America's Creole service beginning November 15 to urge Haitians not to set sail, the numbers have been growing. Four countries-Honduras, Venezuela, Belize, and Trinidad and Tobagohave generously agreed to accept some refugees, but they would only accept a total of 550. It became clear that the regional safe haven solution was not going to be sufficient to deal with the number of Haitians who were leaving Haiti and another solution would have to be found. As a result, we reluctantly reached a decision on Monday, November 18, to repatriate those Haitians on Coast Guard vessels, to bring to the United States those Haitians who appear to qualify for asylum, and to bring those at Guantanamo to regional countries for temporary safe haven. As of yesterday, 53 people have been brought to Miami to have their asylum claims processed by INS and 538 have been repatriated to Haiti by the Coast Guard. Mr. MAZZOLI. Mr. Ambassador, I am sorry to bother you, but the time has expired. Do you think you could wrap up in about a minute or so? I know it is asking almost the impossible to summarize decades of travail into 5 minutes, but I think maybe some of the questions will flesh out some of the very areas that you would be dealing with. Mr. GELBARD. Well, in sum, Mr. Chairman, we have pursued a policy of looking for a regional solution to find temporary safe haven for these refugees from Haiti. [The prepared statement of Mr. Gelbard follows:]

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60 EMBARGOED FOR RELEASE UPON DELIVERY Statement of Amb. Robert Gelbard Deputy Assistant Secretary of State for Inter-American Affairs before the House Judiciary Committee Subcommittee on International Law, Immigration and Refugees November 20, 1991 Mr. Chairman, Members of the Committee: I appreciate this opportunity to discuss our actions in response to the recent exodus of Haitian boat people, and our immigration policy toward Cuba. The democratically elected government of Haiti was usurped September 30 when elements of the Haitian military drove President Aristide from office and forced him to leave the country. Acting through the Organization of American States, the nations of this hemisphere unanimously condemned this attack on Haitian democracy, then voted on October 8 in favor of a trade embargo until Haitian democracy is restored. Within days of the coup, the United States cut off aid, froze Haitian government assets, blocked financial transfers to the Haitian regime and blocked exports to the Haitian military and police. In the course of the month, we and our neighbors in the OAS -including Venezuela, Haiti's oil supplier -proceeded to cut off our trade. The trade embargo is having a clear impact: there is little traffic in the streets, there are long lines for fuel and business activity is markedly down.

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61 -2We have a standing agreement with the Government of Haiti which permits us to rescue at sea Haitians who are intending to emigrate to the United States and to return to Haiti those who lack a basis for asylum. This agreement was reached in 1981 to give the Haitian and U.S. governments a mutually acceptable way of dealing with the regular flow of Haitians who seek to come illegally to the United States for economic reasons. When President Aristide was forced from office, we expected that an exodus of Haitians might occur in response to that political crisis. That did not occur. From the time President Aristide left Haiti until October 28, the Coast Guard found no boats with Haitians coming to the United States. On October 28 the cutter Steadfast picked up a boat with 19 Haitians aboard. The next boat was found November 4, and the flow has greatly increased since then. As of November 19, we had picked up nearly 2200 Haitians. Seven of these boats had over 100 Haitians on board; none of these craft was over 40 feet in length. For example, on November 14 the cutter Confidence interdicted a 40-foot sailing vessel with 238 Haitians aboard. This boat was not designed for use on the high seas. It was severely overloaded. It carried no life jackets, no flares, no radio, no beacons, no charts, no navigational equipment -in short, 51-225 0 -92 -3

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62 -3it was not equipped to survive the voyage it intended to make. This was typical of the conditions on these boats, any of which could easily have capsized in rough seas. In responding to this difficult situation, our overriding concern has been to save lives. We have taken the following factors into account: -In keeping with the intent of the U.S.-Haitian immigration agreement, the interdiction program and U.S. law, we have an obligation to prevent an unimpeded flow of Haitians to the United States. -We want to rescue people from vessels that put them at high risk of losing their lives at sea. -We want to ensure that those who have a well-founded fear of persecution, and hence a good claim to asylum, are interviewed carefully, identified and brought to the United States. -Above all, we want to avoid any action that would encourage more Haitians to risk their lives by boarding unsafe vessels in the belief that this would ensure them passage to the United States.

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63 -4At first, we sought a regional solution. On November 8 we began to work with the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration and countries across the Caribbean region to see which countries might accept a number of Haitians that had been picked up by Coast Guard vessels. We had hoped that a sufficient number of countries would accept these people, and that arrangements could be made for their temporary safe haven under the auspices of the UNHCR. Regrettably, after nearly two weeks of intense diplomacy, with both the United States and UNHCR canvassing the region, we have not yet been able to elicit a sufficient number of positive responses from the countries of the region. Many are already host to large numbers of Haitians -the Bahamas has 40,000 illegal Haitian immigrants, for example. We will continue to pursue discussions with countries in the region to arrange temporary safe haven for additional Haitians. Yesterday at a meeting hosted by the OAS in Washington, the UNHCR made a renewed appeal to countries in the region to accept some Haitians. By the beginning of this week, we had 483 Haitians temporarily ashore at our naval base at Guantanamo and over

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64 -51200 on Coast Guard vessels. Despite renewed warnings broadcast over the Voice of America's Creole service beginning November 15 to urge Haitians not to set sail, the numbers were growing. Four countries -Honduras, Venezuela, Belize and Trinidad and Tobago -had generously agreed to accept some refugees, but they would only accept a total of 550. It was clear that the regional safe haven solution was not going to be sufficient to deal with the number of Haitians who were leaving Haiti, and another solution would have to be found. As a result, we reluctantly reached a decision on Monday, November 18 to repatriate those Haitians on Coast Guard vessels, to bring to the United States those Haitians who appear to qualify for asylum, and to bring those at Guantanamo to regional countries for temporary safehaven. As of yesterday, 53 have been brought to Miami to have their asylum claims processed by INS and 538 have been repatriated to Haiti by the Coast Guard. Today we expect that a number of Haitians will begin to be transported from Guantanamo to Honduras and Venezuela under UNHCR auspices. The repartiation has now been suspended by court order. As long as that order remains in effect, we expect it will encourage Haitians to continue to go to sea in small, dangerous boats, and we fear it will lead to loss of life. This was a difficult set of circumstances that offered no

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65 -6perfect solution. Given a range of difficult choices, we would have preferred to arrange safe haven in the region for all the Haitians, but the numbers of Haitians and the difficulty of making those arrangements made it impossible to continue pursuing that option alone. Under the circumstances, we strongly believe we have made the right decision. -The Coast Guard has without any doubt saved hundreds of lives by rescuing people from boats that had only a minimal chance of reaching any destination safely. -People who fled Haiti for political reasons and fear political persecution are being identified through careful interviews and brought to the United States. No Haitian is being repatriated without a careful interview that gives him or her a chance to describe circumstances that might justify an asylum claim. -Our Embassy is observing the repatriations, which have been uneventful to date. The Haitian Red Cross has been present to receive the returnees and to give them a cash stipend. Our Embassy will

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66 -7remain in contact with local and international human rights and humanitarian organizations to see if there is any evidence that these people are mistreated after their return. I underscore that there is no history of reprisals against Haitians repatriated under our bilateral agreement. -Most important of all, this course of action will send a clear message to discourage more Haitians from going to sea in dangerous conditions based on the mistaken belief that they will be guaranteed entry into the United States. That message will save lives. Some have drawn comparisons to our immigration law and policy toward Cuba and charged that we are wrong to repatriate Haitians when we don't repatriate Cubans. The facts are these: -Cubans are fleeing one of the world's remaining communist dictatorships; they fear returning, if for no other reason than that it is a crime in Cuba to leave without an exit permit. Cubans have been prosecuted and jailed for that offense. Those conditions do not apply in Haiti. -Haiti is now under the control of a military-dominated government. We hope that

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67 -8negotiations about to begin between President Aristide and Haitian legislators will lead to the prompt restoration of constitutional rule. However, neither Haiti's current conditions nor the conditions before September 30 can be compared with the systematic, extensive repression that is a condition of daily life in Cuba. -The current exodus from Haiti began not when the Aristide government was forced from power, nor in the violence that followed, but one month later. This indicates that the political crisis in itself did not spark significant emigration. We are interviewing each Haitian in careful detail to determine whether there is a well-founded fear of persecution. As I noted, we are bringing to the United States those who establish a sound basis for an asylum claim. In conclusion, Mr. Chairman, we believe we have executed U.S. law and immigration policy in a fair and humane manner. We believe the Coast Guard's actions and our policy decisions have saved lives. We welcome your interest in this situation and look forward to continuing consultations with Congress as we continue to work for the restoration of Haiti's democratically elected government.

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68 Mr. MAZZOLI. Could I ask you just one brief question and perhaps a second one. Was that treaty of 1981 ratified by the Aristide government as such? Mr. GELBARD. Well, it wasn't a treaty, it was an agreement between governments. Mr. MAZZOLI. An agreement. Was it ratified or somehow extended or acknowledged? Mr. GELBARD. It was acknowledged by the Aristide government, yes. Mr. MAZZOLI. Acknowledged as being in existence to be looked at, or acknowledged because they wanted it? It is a term of art "to acknowledge." Mr. GELBARD. No, it is no term of art, sir. They program continued to function during the Aristide government. Mr. MAZZOLI. With their knowledge and Mr. GELBARD. Yes, it has to be done with their knowledge and acceptance. Mr. MAZZOLI. Thank you very much. Mr. McKinley is here with the Ambassador-and you have no statement of your own. If you have any comments, obviously, we may direct some to you on that. We will now go to Mr. McNary, the Commissioner of Immigration. STATEMENT OF GENE McNARY, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, ACCOMPANIED BY RICARDO INZUNZA, DEPUTY COMMISSIONER, AND REX J. FORD, ASSOCIATE DEPUTY ATTORNEY GENERAL, OFFICE OF THE DEPUTY ATTORNEY GENERAL, DEPARTMENT OF JUSTICE Mr. McNARY. Mr. Chairman, let me say that, first of all, I admire your timing. Mr. MAZZOLI. I'm not sure the timingMr. McNARY. I anticipated the tone of this hearing, and I have a lengthy statement which I will submit for the record. Mr. MAZZOLI. It will be made a part of the record. Mr. McNARY. My statement addresses the interdiction and detention of Haitian nationals, the parole of Cuban nationals into the United States, and the Immigration and Naturalization Service's plan for emergency immigration situations, particularly in south Florida. All of that is included in my statement. With regard to the current situation, I would like to point out that the role of INS is to adjudicate and determine whether Haitians who have been interdicted and who are on Coast Guard cutters are, in fact, refugees under the definition of the law as written by this Congress. At this point, we have a cadre of 12 teams that are on the Coast Guard cutters. Those teams include interpreters who speak Creole. The interviews are especially designed to even ask the same questions in several different ways in order to make sure that we can find anyone and give them the benefit of the doubt who has a credible claim to asylum. It is not even an asylum adjudication, it is just something close enough that would entitle them to come to the United States for an asylum hearing.

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69 We have at this point interviewed 1,600 people, and 85 have been determined to have a credible claim; 53 have already been brought to the United States; 32 are still at Guantanamo and will be brought in immediately. That is 5 percent. Again, let me emphasize that it is not quite a year old, but this is a special, trained corps of adjudicators who have gone through a lengthy training procedure in interview, to determine techniques, to really go into it so that it is an objective, consistent, uniform procedure, not based on any political consideration, and those are the people who are presently doing the interviewing. I would be happy to answer any questions. Mr. MAZZOLI. Thank you. Thank you very much, Mr. Commissioner. [The prepared statement of Mr. McNary follows:]

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70 PREPARED STATEMENT OF GENE MCNARY, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE Mr. Chairman and members of the Subcommittee: I am pleased to be here today to provide testimony regarding the immigration of Cuban and Haitian nationals to the United States. Specifically, I will address the interdiction and detention of Haitian nationals, the parole of Cuban nationals into the United States, and the Immigration and Naturalization Service (INS) plan for emergency immigration situations, particularly in the South Florida region. Interdiction The Alien Migrant Interdiction Operation (AMIO) was authorized by Executive Order in September 1981 and is implemented by the U.S. Coast Guard. The Order provides that the United States may interdict vessels of nations with whom the United States has an agreement concerning interdiction. Also, vessels without nationality may be interdicted. The purpose of the operation is to: (1) interdict illegal drugs and other contraband being smuggled into the United States; (2) save lives at sea; and, (3) serve as a deterrent for the illegal entry of persons into the United States. Since the beginning of the interdiction operation, more than 25,000 aliens, mostly Haitian nationals, have been interdicted. In Fiscal Year 1991, 2,595 aliens were interdicted, of which 1,976 were Haitian nationals.

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71 The Executive Order provides that "no person who is a refugee will be returned without his consent," The INS has been charged with the responsibility for determining whether an alien is a refugee. Accordingly, INS Asylum Branch officers travel on board the Coast Guard cutters to conduct interviews of those aliens interdicted at sea. An asylum pre-screening interview is conducted to assess a person's eligibility for asylum based on his or her credible fear of return on account of race, religion, nationality, membership in a particular social group, or political opinion. In an effort to improve the program, the following changes were implemented: -A detailed introductory briefing on the purpose of the INS interview at sea is provided to all interdicted aliens; -Asylum adjudicators are utilizing a new interview questionnaire to ensure that interviews are thorough and complete; -The parole into the United States of any interdicted alien who presents a credible fear of persecution so

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72 that the person may pursue the claim further with the INS; -The adjudication of asylum claims in the United States by an officer of the Asylum Officer Corps; -The provision of additional specialized training for our asylum pre-screening officers in interview techniques, asylum law, and current conditions in the affected countries; -Revision of reporting formats used by the pre-screening officers to record interview results; and, -The establishment of a quality control mechanism at INS Headquarters to review the documentation resulting from interdiction interviews in order to refine the interview process. Parole of Cuban Nationals Cuban nationals continue to arrive by sea on boats, rafts, inner tubes, or other flotation devices. Cubans also are brought to the United States by the U.S. Coast Guard from unseaworthy water craft found in international waters. Currently, paroling Cuban nationals into the United States is the only viable response as the Cuban government is not willing to accept the

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73 return of its citizens, with the exception of a limited number of excludable Mariel Cubans. The procedure presently in place provides that when Cuban nationals arrive at a port of entry, usually Key West, they are immediately transported to our Krome Service Processing Center. There, each Cuban national is interviewed by an INS inspector to determine the ground of exclusion applicable to the Cuban national. INS specifically attempts to determine whether the alien has a history of criminal conduct. The inspector reviews available criminal indices, considers statements made by the alien, and looks for the appearance of tattoos or other indications of incarceration. Public Health Service officers also screen aliens for health problems. Unlike those who arrived in the Mariel "Boatlift" of 1980, (during which Cuban nationals were released from prisons to come to the United States) a very small percentage of the current arrivals are identified as having serious criminal backgrounds. Also, the current arrivals are less likely to admit to criminal involvement than many Mariel Cubans. Mariel Cubans often admitted to criminal conduct, particularly when it could be viewed as action against the Castro government, (e.a., theft of government property), believing that such an admission would enhance their chances of remaining in the United States. While an alien is at Krome, his or her fingerprints are compared with

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74 those of persons wanted by law enforcement agencies and persons previously deported. Depending on the circumstances, a Cuban national may also be interviewed by the FBI and other law enforcement and intelligence entities. The inspection process normally results in the parole of the Cuban national pursuant to subsection 212(d)(5)(A) of the Immigration and Nationality Act. With the exception of the 2,746 Mariel Cubans who were in detention as of December 14, 1984, Cuba has been unwilling to accept the return of Cuban nationals deemed "excludable" under our law. Because of INS' limited detention space, detention of Cubans is limited to criminals and parole violators. Of course, this situation could change if the Cuban government alters its policy and permits the return of additional Cuban nationals who are excludable and who have been denied asylum. If INS decides not to parole a Cuban national into the community, but instead to commence exclusion proceedings, that person is transferred from the Krome facility to either a Bureau of Prisons facility or a contracted facility, usually a local jail. In accordance with the Chiles Amendment, our current policy is not to detain criminal aliens at Krome. However, Congress has approved 4.5 million dollars for a 300-bed detention facility at Krome to house criminal aliens. Additional funds may be requested by the Administration to construct support facilities

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75 to accommodate the increased population. The projected completion date for all construction is December 1994. If the determination is made to parole a Cuban national, current policy requires that such parole be in conjunction with a sponsorship approved by the Department of Justice Community Relations Service. The sponsor may be a relative of the parolee or may be an approved group or agency. It should be noted that the parole of Cuban nationals is not always to a sponsor in the South Florida region. In fact, a substantial percentage of sponsors are located in states other than Florida. Legal Immigration and Special Adjustment Programs for Cubans and Haitians Legal immigration from Cuba was suspended after the beginning of the Mariel Boatlift in 1980. It resumed briefly after the signing of the agreement with the Castro government for the return of the criminal Mariel Cubans, but was suspended again from July 1985 through November 1987. Even with the pent up demand that this should have caused, legal Cuban immigration to the United Sates has not exceeded 3,800 per year since FY 1987. Most Cuban immigrants gain permanent resident status by "adjusting" their status from a temporary "nonimmigrant" category. Specifically, more than 75 percent of all the Cuban legal immigrants admitted during the period 1986-1990 were

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76 admitted under the Cuban Adjustment Act of 1966, which I will discuss in detail below. During the period 1986-1990, an average of 7,500 immigrants were admitted from Haiti as spouses or children of U.S. permanent residents or citizens. In addition to this immigration under the preference and immediate relative categories, Haitians benefitted greatly from two special adjustment programs. As of 1990, a total of 31,595 Haitians have been granted permanent residence under the Cuban-Haitian entrant provision of the Immigration Reform and Control Act (IRCA) of 1986. Another 12,420 Haitians have been adjusted to permanent residence under the legalization and Special Agricultural Worker provisions of IRCA. The naturalization patterns for Cubans and Haitians are comparable, with an estimated 30 to 40 percent of the immigrants from these two countries eventually gaining citizenship. In 1990, a total of 10,291 Cubans and 5,009 Haitians became naturalized citizens. Cuban Adjustment Act of 1966 The Cuban Adjustment Act of 1966 is still in effect. This Act provides that the status of any admissible alien who is a native or citizen of Cuba and has been inspected and admitted or has been paroled into the United States after January 1, 1959, may be adjusted to that of a permanent resident after one year of

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77 physical presence in the United States. The statute does not preclude the adjustment of a person who has overstayed a temporary visa. As initially enacted in 1966, the Cuban Adjustment Act required a two year period of presence in the United States before adjustment. This time period was shortened to one year by the Refugee Act of 1980. INS is often criticized by representatives of Haitian or other non-Cuban nationals for treating Cuban nationals differently with respect to immigration benefits. The simple fact is that, because of the Cuban Adjustment Act, Cuban nationals are treated differently under the law. Thus, the provisions of this Act, combined with the difficulty of returning Cuban nationals to Cuba, provides a substantial incentive for Cuban nationals to come to the United States. Countering this incentive is the difficulty the Cuban national faces in actually arriving at our shores. The fine provisions of 8 U.S.C. 5 1323 and the anti-smuggling provisions of 8 U.S.C. 5 1324, with potential for a prison term and seizure of the conveyance, deter owners and operators of boats and aircraft from bringing aliens who are not in possession of passports and valid visas into the United States. Because of the fine proceedings discussed above, it is unlikely that, without government sanction, commercial fishing, shrimping and charter fishing boat owners and captains will bring Cuban nationals or

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78 other aliens to the United States. Finally, Cubans who are currently caught attempting to leave Cuba are generally detained for only a short period of time and then allowed to return to their homes, whereas in the past more severe penalties, including long term imprisonment, were imposed. As far as the admission of Cubans on temporary visas is concerned, the State Department and INS seek to screen out those actually intending to overstay their visas and benefit from the Cuban Adjustment Act. The Immigration Emergency Plan During 1981, the President directed the Attorney General to oversee and coordinate a government-wide response to a potential mass illegal immigration emergency. In February 1982, the Department of Justice prepared a plan for a coordinated Federal effort for utilizing the resources of appropriate agencies to respond to and control an attempted mass illegal migration to the United States. Recognizing the serious responsibilities that would be placed on the INS in the event of such an emergency, the Commissioner directed the INS to prepare its own operational plan consistent with the overall Departmental plan. A Mass Immigration Emergency Plan for South Florida was drafted and recently updated in June of this year.

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79 It should be recognized that the INS plan is reactive in nature, that is, once an immigration emergency has been determined to exist, the necessary resources would be applied to address the emergency. Through routine day-to-day contacts, the INS offices in Miami maintain a liaison with other Federal, state and local agencies. If an emergency situation were to occur in South Florida, the framework for an appropriate response is in place. Coordination meetings were held earlier this year, and agencies and offices with significant roles in the South Florida Plan have developed contingency plans consistent with the framework of that plan. Planning meetings were also recently held with the Federal Emergency Management Agency and applicable U.S. military components. The Immigration Emercency Fund A $35 million dollar Immigration Emergency Fund was created by IRCA for use in providing for increased enforcement activities and for reimbursement of state and local governments in providing assistance in meeting an immigration emergency as determined by the President and certified to the House and Senate Judiciary Committees. The Immigration Act of 1990 provided that up to $20 million of the Fund is available to reimburse states and localities for providing assistance as required by the Attorney General. Such reimbursements may be made to states and localities upon application to the Attorney General without the requirement of a Presidential declaration.

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80 State and local officials in Florida have recently contended that their social welfare and medical systems are being overwhelmed by the increasing number of Cuban arrivals in the Miami area. Regulations for access to the fund have been drafted by the INS. The draft regulations require applications for reimbursements to be in writing, detailing the nature of the assistance provided and a justification for the amount of the reimbursement being sought. Following receipt of the application, the Attorney General would determine within 15 days whether the reimbursement is appropriate. Asylum in Florida The number of asylum applications filed in the Miami District Office has fluctuated greatly over the past eleven years. We estimate that approximately 6,500 applications were filed in calender year 1991, down from 30,500 in 1989 and 21,500 in 1990. The substantially higher numbers in 1989 and 1990 were primarily due to applications filed by Central Americans. Since the final asylum regulations became effective in October 1990, a number of improvements have ensued. The establishment of the Asylum Officer Corps, the training of these Officers, and the supervision of Officers by the Refugee, Asylum, and Parole Office at INS headquarters has enhanced the quality of adjudication decisions and the process used to arrive at these

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81 decisions. In addition to the enhanced training, the establishment of a refugee documentation center, the promulgation of clearer operating instructions, and the more efficient use of legal resource -and humans rights conditions materials have allowed the INS to provide clearer supervision and greater quality control. All of these factors should serve to provide greater consistency within the asylum process and more expeditious processing. This concludes my statement. I would be pleased to respond to any questions you may have.

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82 Mr. MAZZOLI. I read your statement. It is very interesting. I would encourage my colleagues to read it. It does point out what you have done and the special training, including language training, that these new adjudicators have. I guess numbers are changing. Can we agree on a set of numbers? I have before me a chart which suggests the total interdiction is 2,817. That is as of November 20. To the best of your knowledge, is that about right? Everybody sort of nods. Admiral LEAHY. 2,819. Mr. MAZZOLI. Sir? Admiral LEAHY. 2,819, I have. Mr. MAZZOLI. 2,819, OK. 2,819, as of the best knowledge we have as of today. Returned to Haiti, 538. Admiral LEAHY. 538. Mr. MAZZOLI. 538, Admiral, OK. Brought to the United States, 53? Admiral LEAHY. 53. Mr. MAZZOLI. 53 brought to the United States. At Guantanamo, 483? Admiral LEAHY. That number decreased because we have taken some out of there. Mr. MAZZOLI. 447? Admiral LEAHY. 447, that is right. Mr. MAZZOLI. OK, 447. Mr. McKINLEY. Mr. Chairman, could I make a comment? Mr. MAZZOLI. Sure. Mr. McKINLEY. On that particular number, 447 was where we started the day in Guantanamo. One flight of Haitians has already left, destination Honduras, with about 125 on board. We expect to have two more flights during the course of the day, an additional one to Honduras and one to Venezuela, which shows that the safe haven concept is working, and if it all goes as planned we will have removed 350 Haitians from Guantanamo in the course of the day, leaving a total of 97 there. Mr. MAZZOLI. So the next two flights would be about 225, total, which would then come to 325 for the day. Mr. McKINLEY. That is correct, Mr. Chairman. Mr. MAZZOLI. Which would leave 125Mr. McKINLEY. That leaves 97 by my count. Mr. MAZZOLI. Something under 100? Mr. McKINLEY. I think 97. We started the day with 447; it was the 483 minus the 53 that went out. Mr. MAZZOLI. Admiral, on cutters, 1,779? Admiral LEAHY. 1,781, sir. Mr. MAZZOLI. 1,781. Just to clear up, and then we will come to the admiral for his statement, the court order covers all of the people at Guantanamo-whoever is a legal expert-it covers the people at sea, which is 1,781 people. Mr. McKINLEY. I think the right way to put that, Mr. Chairman, is that it covers repatriation. The court order deals with repatriation. It prevents taking anybody back into Port-au-Prince.

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83 Mr. MAZZOLL So it doesn't have a number, it just says you cannot repatriate anybody of this group, whatever their category. Mr. McKINLEY. That is right. I don't think it says you can't take them to safe haven in the region. We are working on the assumption that a safe haven in the region is still an option that the court order allows, and, in fact, we are doing it. Mr. MAZZOLI. Thank you. Admiral. STATEMENT OF REAR ADM. WILLIAM P. LEAHY, JR., CHIEF, OFFICE OF LAW ENFORCEMENT AND DEFENSE OPERATIONS, U.S. COAST GUARD, DEPARTMENT OF TRANSPORTATION Admiral LEAHY. Good morning, Mr. Chairman and members of the subcommittee. I appreciate this opportunity to be here before you today and represent the Commandant of the Coast Guard, Admiral Kime, and discuss the Coast Guard's migrant interdiction program. I have a prepared statement to submit for the record, and, with your permission, I would like to read a brief summary of my statement. Mr. MAZZOLI. Certainly. Your statement will be made a part of the record, Admiral. Admiral LEAHY. Thank you, sir. The Coast Guard is our Nation's primary maritime Federal law enforcement agency. Coast Guard migrant interdiction operations are a result of the Presidential proclamation and Executive order of September 29, 1981, which suspended the entry of undocumented aliens into the United States from the high seas. The Coast Guard was directed to enforce this order at sea. In carrying out the Executive order, the Coast Guard, assisted by Immigration and Naturalization Service-or INS-agents and interpreters, stops and boards certain vessels when there is reason to believe such vessels are engaged in the transportation of illegal aliens. The passengers are interviewed by INS agents to determine whether they are economic migrants or persons with a colorable claim of political asylum. Migrants are returned to their point of origin if they are in violation of the United States or foreign immigration laws. The Coast Guard does not repatriate Haitians or any other migrants if they have not been interviewed by an INS agent, if they have been interdicted within the U.S. territorial seas, or if they have an emergency medical condition that requires evacuation prior to a status determination. Haiti is the only nation with which the United States has a migrant interdiction agreement. This agreement allows the Coast Guard to board Haitian flag vessels on the high seas when we suspect there are illegal aliens aboard. INS agents then screen the passengers and determine who should be returned to Haiti. Normally, migrant interdiction operations consist of one cutter stationed in the Windward Pass supported by air surveillance from a Coast Guard aviation detachment at Guantanamo Bay, Cuba. Prior to the September coup, repatriation of economic migrants and delivery to the United States of persons requiring further

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84 screening occurred as routine procedure under the bilateral agreement. A Coast Guard liaison officer stationed in Port-au-Prince, Haiti, coordinates the return of boat people with representatives of the Haitian Government and the International Red Cross. Our location in the Windward Pass departure zone provides both a critical interdiction presence and an important search-and-rescue response capability. Coast Guard migrant interdiction is very much a humanitarian as well as a law enforcement mission. Migrants take great risk and endure significant hardships in their attempts to get to the United States. Typically, their vessels are overloaded, unseaworthy, lacking basic safety equipment, and are operated by inexperienced people. A great number of migrants that have been returned to Haiti by the Coast Guard would most likely have perished at sea had they not been interdicted. Since 1981, the Coast Guard has interdicted over 32,500 illegal aliens, over 25,000 of whom have been Haitian. We have also interdicted increasing numbers of migrants from Cuba and the Dominican Republic. Mr. Chairman, I will now update you on what has happened since the September coup. We initially saw a lull of activity until our first interdiction of October 28 when we recovered 19 people. Since then, we have picked up 2,817 Haitian boat people. Mr. MAZZOLI. What was it? From the coup to Admiral LEAHY. From the coup until October 28. Mr. MAZZOLI. Was it about 1 month or so? Admiral LEAHY. I think the coup was on September 30. Mr. MAZZOLI. So roughly 1 month. Admiral LEAHY. Twenty-eight days-yes, sir. Mr. MAZZOLI. And are your cutters in a position where they can identify Haitians who have left 1 day earlier? Two days earlier? How long does it take the Haitians to get to where the cutters are? Admiral LEAHY. It depends where they depart from, sir. Mr. MAZZOLI. There are different departure points in Haiti? Admiral LEAHY. Yes, sir, there are. Mr. MAZZOLI. Are there two or three familiar ones? Admiral LEAHY. Well, we get some that come right out of what they call the jaw, which is the western part of Haiti, and you get those that come out of the northern part-the northwestern part. Mr. MAZZOLI. So it takes them longer to get to the point. Admiral LEAHY. Yes, sir. Mr. MAZZOLI. How many days had they been at sea? Admiral LEAHY. I can't answer that. I don't know. Mr. MAZZOLI. Thank you. I appreciate it. Admiral LEAHY. OK. Since that time, we have picked up 2,817 Haitian boat people. There continues to be an increase in the numbers and the rate of people leaving Haiti. Yesterday, we recovered 645 people. We returned 538 people on November 18 and 19 to Port-au-Prince, Haiti. As of November 19, a temporary restraining order issued by the U.S. District Court, Southern District of Florida, has precluded further repatriation. Four hundred and forty-seven Haitians remain onshore at Guantanamo Bay, Cuba, minus the ones that we were just told about by the State Department here. A small number of

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85 Haitians with colorable claims of asylum have been flown to the United States for further processing. The remainder, some 1,788 Haitians, remain aboard seven cutters while we continue with recovery efforts. In response to this increased outflow, we have assigned additional vessels to this operation. As of this morning, there are 15 Coast Guard cutters involved. This response has substantially decreased our counternarcotics and fisheries enforcement efforts and reduced our capacity to respond to domestic search and rescue. We have also sent additional medical personnel down, along with shipments of blankets, food, and medical supplies. Our crews are doing their very best to provide food and shelter to those we recover. At the present rate, however, and based upon the constraints placed upon us by the restraining order, our ships will be loaded to capacity in about 2 days. Once we reach this point, we will not be able to continue recovery operations unless we can off-load those we have recovered. Thank you, Mr. Chairman. Mr. MAZZOLI. Thank you, Admiral. [The prepared statement of Admiral Leahy follows:]

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86 PREPARED STATEMENT OF REAR ADM. WILLIAM P. LEAHY, JR., CHIEF, OFFICE OF LAW ENFORCEMENT AND DEFENSE OPERATIONS, DEPARTMENT OF TRANSPORTATION GOOD MORNING, MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE. IT IS A PLEASURE TO APPEAR BEFORE YOU TODAY TO REPRESENT THE COMMANDANT, ADMIRAL KIME, AND DISCUSS THE COAST GUARD'S MIGRANT INTERDICTION PROGRAM. THE COAST GUARD IS OUR NATION'S PRIMARY FEDERAL LAW ENFORCEMENT AGENCY IN THE MARITIME ENVIRONMENT. COAST GUARD MIGRANT INTERDICTION OPERATIONS ARE A RESULT OF THE PRESIDENTIAL PROCLAMATION 4865 HIGH SEAS INTERDICTION OF ILLEGAL ALIENS AND EXECUTIVE ORDER 12324 INTERDICTION OF ILLEGAL ALIENS, THAT WERE BOTH ISSUED ON SEPTEMBER 29, 1981. THE EXECUTIVE ORDER DIRECTED THE SECRETARY OF STATE TO ENTER INTO COOPERATIVE ARRANGEMENTS WITh FOREIGN GOVERNMENTS FOR THE PURPOSE OF PREVENTING ILLEGAL MIGRATION TO THE UNITED STATES BY SEA. THE EXECUTIVE ORDER ALSO TASKED THE COAST GUARD WITH ENFORCING THIS DIRECTIVE THROUGH THE INTERDICTION OF A CLASS OF "DEFINED VESSELS" CARRYING UNDOCUMENTED ALIENS. VESSELS WITHIN THAT CLASS INCLUDE VESSELS OF THE U.S., STATELESS VESSELS, AND VESSELS OF NATIONS WITH WHOM THE U.S. HAS SPECIAL ARRANGEMENTS TO TAKE SUCH ACTIONS. FINALLY, THE DEPARTMENT OF JUSTICE, IN CONSULTATION WITH THE SECRETARY OF STATE AND THE SECRETARY OF THE DEPARTMENT IN WHICH THE COAST GUARD IS OPERATING, WAS TASKED WITH ENSURING THAT THE U.S. MEETS 1

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87 ITS INTERNATIONAL OBLIGATIONS CONCERNING THOSE WHO FLEE THEIR HOMELAND TO AVOID POLITICAL PERSECUTION. IN IMPLEMENTING THE EXECUTIVE ORDER, THE COAST GUARD, ASSISTED BY IMMIGRATION AND NATURALIZATION SERVICE (I.N.S.) AGENTS AND INTERPRETERS, STOPS AND BOARDS "DEFINED VESSELS" WHEN THERE IS REASON TO BELIEVE SUCH VESSELS ARE ENGAGED IN THE TRANSPORTATION OF ILLEGAL ALIENS. A VESSEL AND ITS PASSENGERS ARE RETURNED TO THEIR POINT OF ORIGIN WHEN THERE IS REASON TO BELIEVE THERE HAS BEEN A VIOLATION OF EITHER U.S. OR FOREIGN IMMIGRATION LAWS. SINCE 1981, THE COAST GUARD HAS INTERDICTED OVER 32,500 ILLEGAL ALIENS; WHILE THE VAST MAJORITY (OVER 25.000) HAVE BEEN HAITIAN, RECENT TRENDS HAVE SHOWN A DRAMATIC INCREASE IN BOTH DOMINICAN REPUBLIC AND CUBAN INTERDICTIONS. CURRENTLY, HAITI IS THE ONLY NATION WITH WHICH THE U.S. HAS A MIGRANT INTERDICTION AGREEMENT. THE HAITIAN INTERDICTION AGREEMENT, WHICH WAS SIGNED ON SEPTEMBER 23, 1981, ALLOWS THE COAST GUARD TO BOARD HAITIAN FLAG VESSELS ON THE HIGH SEAS WHEN U.S. AUTHORITIES BELIEVE THE VESSEL MAY BE INVOLVED IN THE IRREGULAR CARRIAGE OF PASSENGERS FROM HAITI. WHEN INQUIRIES SUGGEST AN OFFENSE AGAINST EITHER U.S. OR HAITIAN LAWS, THE AGREEMENT CONSTITUTES CONSENT BY THE GOVERNMENT OF HAITI TO DETENTION OF THEIR VESSEL AND PASSENGERS, PENDING THE OUTCOME OF I.N.S. INTERVIEWS TO DETERMINE PASSENGER STATUS. DURING INDIVIDUAL INTERVIEWS, THE I.N.S. AGENTS ATTEMPT TO DETERMINE WHETHER PASSENGERS ARE ECONOMIC MIGRANTS OR PERSONS WITH A VALID CLAIM OF POLITICAL ASYLUM. PRIOR TO THE SEPTEMBER 1991 COUP IN 2

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88 HAITI, REPATRIATION OF ECONOMIC MIGRANTS NOT QUALIFYING FOR REFUGEE STATUS, AS WELL AS THE DELIVERY TO THE U.S. OF PERSONS REQUIRING FURTHER SCREENING, HAS OCCURRED AS ROUTINE PROCEDURE UNDER THE BILATERAL AGREEMENT. THE COAST GUARD MIGRANT INTERDICTION OPERATION IS VERY MUCH A HUMANITARIAN AS WELL AS A LAW ENFORCEMENT MISSION. MIGRANTS TAKE GREAT RISKS AND ENDURE SIGNIFICANT HARDSHIPS IN THEIR ATTEMPTS TO FLEE THEIR COUNTRY AND TRAVEL TO THE U.S. IN MOST CASES, MIGRANT VESSELS INTERDICTED AT SEA ARE OVERLOADED, UNSEAWORTHY, LACKING BASIC SAFETY EQUIPMENT, AND OPERATED BY INEXPERIENCED SAILORS. A GREAT NUMBER OF MIGRANTS THAT HAVE BEEN RETURNED TO HAITI BY THE COAST GUARD WOULD MOST LIKELY HAVE PERISHED AT SEA HAD THEY NOT BEEN INTERDICTED. NORMAL COAST GUARD MIGRANT INTERDICTION OPERATIONS CONSIST OF ONE MEDIUM ENDURANCE CUTTER, TYPICALLY EQUIPPED WITH A HELICOPTER, PATROLLING IN THE VICINITY OF THE WINDWARD PASSAGE BETWEEN CUBA AND HAITI, WITH AN I.N.S. INTERVIEW TEAM ABOARD. THE CUTTER RECEIVES SURVEILLANCE SUPPORT FROM A COAST GUARD AVIATION DETACHMENT STAGED AT GUANTANAMO BAY, CUBA. OUR PRESENCE IN THE WINDWARD PASS DEPARTURE ZONE PROVIDES BOTH A CRITICAL INTERDICTION PRESENCE AND AN IMPORTANT SEARCH AND RESCUE RESPONSE CAPABILITY. IN ADDITION TO BEING EXTREMELY UNSAFE, THE HAITIAN VESSELS WHICH HAVE BEEN INTERDICTED INVARIABLY LACK SUFFICIENT FOOD AND WATER. THESE REALITIES UNDERSCORE THE NECESSITY OF APPROACHING MIGRANT INTERDICTION AS A POTENTIAL SEARCH AND RESCUE CASE FIRST, LEAVING THE ISSUE OF STATUS AND DISPOSITION OF PASSENGERS TO BE RESOLVED LATER. A COAST GUARD LIAISON OFFICER 3

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89 STATIONED IN PORT AU PRINCE, HAITI, COORDINATES WITH THE HAITIAN GOVERNMENT DURING REPATRIATION OF INTERDICTED HAITIAN MIGRANTS, AND ENSURES THAT THE INTERNATIONAL COMMITTEE OF THE RED CROSS IS NOTIFIED TO MEET THE RETURNING MIGRANTS UPON ARRIVAL. THE COAST GUARD DOES NOT MAKE DETERMINATIONS AS TO THE STATUS OF MIGRANTS ENCOUNTERED ON THE HIGH SEAS. I.N.S. AGENTS INTERVIEW ALL PERSONS INTERCEPTED BY THE COAST GUARD AND DETERMINE WHETHER MIGRANTS QUALIFY FOR REFUGEE STATUS OR ARE ECONOMIC MIGRANTS IN VIOLATION OF IMMIGRATION LAWS. ALL COAST GUARD CUTTERS ON DEDICATED MIGRANT INTERDICTION PATROLS CARRY AN I.N.S. AGENT AND AN INTERPRETER. ALSO, I.N.S. AND COAST GUARD PERSONNEL ARE COLLOCATED IN AN OFFICE IN MIAMI, FLORIDA, FOR EFFICIENT COORDINATION BETWEEN THE AGENCIES. INCIDENTS INVOLVING ENCOUNTERS WITH MIGRANTS AT SEA BY CUTTERS NOT CARRYING I.N.S. AGENTS ARE COORDINATED THROUGH THIS OFFICE. WHERE POSSIBLE, I.N.S. AGENTS ARE TRANSPORTED TO THE CUTTER TO DETERMINE THE STATUS OF THOSE INTERDICTED. IN CIRCUMSTANCES WHERE IT IS NOT POSSIBLE TO DELIVER AN I.N.S. AGENT TO THE CUTTER, THE MIGRANTS ARE TURNED OVER TO AGENTS UPON ARRIVAL IN A U.S. PORT. THE COAST GUARD DOES NOT REPATRIATE HAITIAN MIGRANTS WHO HAVE NOT BEEN INTERVIEWED BY AN I.N.S. AGENT, OR WHO ARE INTERDICTED WITHIN THE U.S. TERRITORIAL SEAS. ADDITIONALLY, THOSE HAVING EMERGENCY MEDICAL CONDITIONS THAT CANNOT BE ADEQUATELY TREATED ON SCENE BY COAST GUARD MEDICAL PERSONNEL ARE EVACUATED ASHORE FOR FURTHER CARE. THERE IS NO MIGRANT INTERDICTION AGREEMENT WITH THE DOMINICAN REPUBLIC. IN THE PAST TWO YEARS, HOWEVER, THERE HAVE 4

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90 BEEN INCREASING NUMBERS OF DOMINICAN REPUBLIC NATIONALS ATTEMPTING TO MAKE THE CROSSING OF THE MONA PASSAGE TO REACH PUERTO RICO. AS OF NOVEMBER 10, COAST GUARD VESSELS HAVE INTERCEPTED 1.031 DOMINICAN MIGRANTS IN 1991. OUR UNITS OPERATING IN THIS AREA ROUTINELY ENCOUNTER SMALL DOMINICAN REPUBLIC VESSELS WHICH ARE OFTEN UNSEAWORTHY AND OVERLOADED. IN ALL CASES TO DATE, PASSENGERS HAVE ACCEPTED REMOVAL TO THE SAFETY OF THE COAST GUARD CUTTER. I.N.S. TEAMS HAVE BEEN FLOWN TO THE SCENE TO CONDUCT ASYLUM SCREENING INTERVIEWS. A SPECIAL ARRANGEMENT FOR EACH CASE HAS THEN BEEN MADE WITH THE GOVERNMENT OF THE DOMINICAN REPUBLIC FOR THOSE QUALIFYING FOR REPATRIATION; TO DATE, THAT GOVERNMENT HAS BEEN RESPONSIVE IN ARRANGING FOR PROMPT RETURN. IN VIEW OF THE INCREASE IN CASES INVOLVING DOMINICANS, THE COAST GUARD AND I.N.S. JOINTLY REQUESTED THE DEPARTMENT OF STATE, IN ACCORDANCE WITH THE EXECUTIVE ORDER ON MIGRANT INTERDICTION, TO PURSUE AN AGREEMENT WITH THE DOMINICAN REPUBLIC SIMILAR TO THE ONE THE U.S. HAS WITH HAITI. THE NUMBER OF CUBANS ARRIVING IN FLORIDA OR ASSISTED BY THE COAST GUARD HAS ALSO INCREASED DRAMATICALLY. THIS CALENDAR YEAR WE HAVE INTERCEPTED 1.796 CUBANS. THIS NUMBER IS GREATER THAN THE NUMBER OF CUBANS INTERCEPTED IN THE PREVIOUS EIGHT YEARS COMBINED. THIS INCREASE IS GENERALLY ATTRIBUTED TO THE DETERIORATING ECONOMIC CONDITIONS IN CUBA COUPLED, AT TIMES, WITH LAX CUBAN ENFORCEMENT PATROLS. WE INTERCEPT A LARGE NUMBER OF THESE PEOPLE BECAUSE OF THE CLOSE PROXIMITY OF CUBA TO FLORIDA. WHILE SOME OF THOSE MAKING THE TRANSIT FROM CUBA DO SO IN VARIOUS SMALL FISHING VESSELS AND PLEASURE CRAFT, MANY OTHERS CONTINUE TO 5

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91 ATTEMPT THIS PERILOUS TRANSIT ON RAFTS, INNER TUBES, AND OTHER MAKE-SHIFT CONVEYANCES. THE INDIVIDUALS MAKING SUCH TRANSITS ARE AT THE MERCY OF THE WINDS AND SEA CURRENTS. BASED ON THE PREVALENCE OF DEHYDRATION AND SHARK BITES AMONG THOSE WE HAVE INTERCEPTED, IT IS LIKELY THAT THERE ARE MANY RAFTERS WHO PERISH IN THEIR ATTEMPT TO REACH THE U.S. COAST GUARD UNITS ENCOUNTER THESE CASES WHILE CONDUCTING ROUTINE OPERATIONS IN THE FLORIDA STRAITS. WHEN WE INTERDICT CUBANS ENROUTE THE UNITED STATES, OUR PROCEDURE IS TO DELIVER THEM TO AN APPROPRIATE U.S. PORT AND TURN THEM OVER TO THE I.N.S. FOR FURTHER PROCESSING. IN THE PAST YEAR, DUE TO THE INCREASED POTENTIAL FOR LOSS OF LIFE IN THIS AREA, WE HAVE INCREASED BOTH OUR AIRCRAFT AND VESSEL PATROL PRESENCE. THE COAST GUARD WILL CONTINUE TO INTERDICT MIGRANTS OF ALL NATIONALITIES WHO ATTEMPT-TO ILLEGALLY ENTER THE UNITED STATES BY SEA. EACH PERSON WILL BE TREATED WITH PROPER RESPECT AND CARE -THE SAFETY OF EVERYONE INVOLVED IN THIS MISSION WILL ALWAYS BE OUR HIGHEST PRIORITY. THANK YOU MR. CHAIRMAN. I WOULD BE HAPPY TO ANSWER ANY QUESTIONS. 6

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92 Mr. MAZZOLI. Let me yield myself 5 minutes. Let me start out by once again underscoring-not that any of you need it-a couple of points. One is that you are not individually responsible for anything that has happened; you are not being chastised or admonished in any way by this panel. But certainly we need information in order to carry to the policymakers above you our views, such as they are, about this problem. So I want you to be sure of that. We appreciate the work you are doing as Federal servants and, in the case of the Coast Guard, in dangerous service at that, and we appreciate that, and we honor it, and we respect it. Let me ask you, Admiral: Would the Coast Guard normally sail and patrol the Windward Passage? and would it normally have done that since 1981 without the interdiction treaty? Admiral LEAHY. We possibly would have had a craft down there from time to time, because it is a choke point involved with the counternarcotics effort. Mr. MAZZOLI. All right. Absent the 1981 agreement, would the Coast Guard-you mentioned the term "search and rescue," because you say your search and rescue operations and your antidrug enforcement duties are being imperiled or reduced because of the 15 cutters who are involved in interdiction. Admiral LEAHY. Right. The search and rescue effort that I am talking about would be the search and rescue effort that we do with the Haitians. They would never make it up here, most of them, if they weren't interdicted, sir. Mr. MAZZOLI. Does the Coast Guard do any routine search and rescue in any of that area of the Caribbean-absent this treaty, would it do that? Admiral LEAHY. In the vicinity, within 150 to 200 miles, yes, sir. We had a case yesterday, as a matter of fact. They were going to get back to Guantanamo Bay today. Mr. MAZZOLI. How many cutters do you have involved? Admiral LEAHY. We have 15 down there now. Mr. MAZZOLI. How many do you have totally? Admiral LEAHY. Well, we have a total of about 33 medium-endurance and high-endurance cutters on the east coast. Mr. MAZZOLI. That is the total east coast, that is not just in the Caribbean. Admiral LEAHY. That is the total; yes, sir. Mr. MAZZOLI. Are your cutters out of a certain port? Admiral LEAHY. Yes, sir-all up and down the east coast. Mr. MAZZOLI. Several ports, not just one. Admiral LEAHY. Yes, sir. Mr. MAZZOLI. I think it is fair to say then, in this first-tier activity, which is what we are talking about, which is trying to take care of the emergency, we have reached almost the point that we can't even take care of the emergency people unless we find some solution to get them to some safe harbor either by granting them temporary protected status or by providing some other type of executive parole. We have reached the point of capacity of your 15 cutters. You have only 30 cutters totally along the eastern seaboard, and you could not probably assign all those boats if you wished to, to that Windward Passage. Is that correct?

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93 Admiral LEAHY. Correct, sir. Mr. MAZZOLI. Which is all the more reason why the quicker we can get something done for the emergency, the quicker you can get back to normal search and rescue and normal antidrug activity. Admiral LEAHY. Yes, sir. Mr. MAZZOLI. Let me ask you, since you are the sort of senior lawyer here, tell me a little bit about the interdiction agreement of 1981. Mr. RANGEL. Mr. Ford. Mr. MAZZOLI. Excuse me. I apologize, Mr. Ford. Tell me about that agreement. The Ambassador said it was acknowledged by the Aristide government. What does that mean? Was there a formal declaration by the Aristide government that the interdiction treaty was a good thing and they wanted it continued as is? Mr. FORD. I am not privy to that information. The only thing that I am privy to-and I think maybe the Coast Guard could answer this-there were some inconsistent statements as to numbers of people leaving Haiti during the Aristide tenure in office. I heard a number that 1,360 people did, in fact, depart Haiti on boats during Aristide's tenure. Mr. MAZZOLI. Let me ask you a question. If you do not, I will try to figure out who does know something about that agreement and whether or not, in fact, it is the way we ought to continue. I said in my statement at the beginning of our hearing today, we have to perhaps make some recommendation to the Committee on Foreign Affairs that deals with this, whether or not this agreement of 1981 should be continued, or whether it ought to be modified, or whether it is no longer useful. May I just ask one final question, Mr. Ford? Are you privy to any knowledge that within the Justice Department, Mr. Barr or others, that there is any discussion now of extending TPS to these people? Mr. FORD. Yes, sir. The way that temporary protected status happens-and it is generally by letter from Members of Congress-a letter is addressed to the Attorney General, or some instances have been by phone call, and we have asked people to put all of the pertinent facts in the letter. As you know, there are specific requirements under the temporary protected status legislation, and when this first came up a mechanism had to be put together, if you will. Priscilla Clapp from the Office of Refugee Programs, and myself, and INS, we put together kind of a working group to discuss not just countries that are written about but situations around the hemisphere where things may come up, and, as you know, in the case of Somalia, a designation was made for a period of a year. Lebanon, Liberia, and Kuwait were mentioned in the committee report language as likely countries for this type of thing, and a decision was made by former Attorney General Thornburgh to include those. Mr. MAZZOLI. And are you aware of any conversations today with Mr. Barr or in your Department dealing with TPS for Haitians? Mr. FORD. We have been meeting on TPS and Haitian issues for the last 4 months. 51-225 0 -92 -4

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94 Mr. MAZZOLI. Did you meet yesterday? Did you all talk about it yesterday? Mr. FORD. No. We talked about it as recently as Sunday. Mr. MAZZOLI. As recently as Sunday. And do you know whether or not there is any denouement to this discussion? Mr. FORD. I think the feeling of most of the people at the time is that this issue probably is not ripe regarding Haiti. Mr. MAZZOLI. I will yield, because I don't want to go too far beyond my time, but I believe I am aware that some of our colleagues, perhaps some present today, have written and have never gotten a letter back from the Attorney General. Mr. FORD. Well, I think that is a sign, a good sign, because it means it is under consideration. Mr. MAZZOLI. Well, the way we handle case work in my office is not to stiff the people who write but to send them an acknowledgment: "Thank you very much for your letter. It is being taken under advisement." That, you know, makes them aware that their letter hasn't been lost in the great maw of the Federal Government. Mr. FORD. We call that an interim response, and after our briefing last Thursday, Congressman, I went back to our executive secretariat and said that if a letter cannot be answered in 2 weeks that an interim response is to go out. Mr. MAZZOLI. Those interim responses have been dispatched? Mr. FORD. Yes. Mr. MAZZOLL Thank you very much. My time has expired. Let me start, in fairness to the gentlemen from the committee, with the gentleman from California, Mr. Berman. Mr. BERMAN. Thank you, Mr. Chairman. I missed the testimony of this panel, so if it has been covered just let me know, and I'll find out the answers from staff. On Monday, the State Department expressed its confidence that returning Haitians will not be harmed by those in power in Haiti. On what basis did the State Department make those assurances? And did we receive assurances from those in power in Haiti regarding that? Mr. GELBARD. The decision to repatriate people was based on the sense that the people who were being repatriated did not have political backgrounds on the basis of the extensive interviews conducted with the INS. Mr. BERMAN. Extensive interviews? Mr. GELBARD. By the INS. Mr. BERMAN. On the boats? Mr. GELBARD. Yes, sir. This is the normal procedure and has been conducted Mr. BERMAN. I say seriously and not at all facetiously, I wonder how the interview process on a packed boat in the context of the situation of apprehension can really delve at and get at the truth and allow for a fair application of the asylum standards. Mr. McNARY. Perhaps we can explain that procedure, Congressman. Mr. BERMAN. Pardon? Mr. McNARY. We can explain that procedure because-

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95 Mr. BERMAN. I would be interested in hearing that, but I guess first I would like to hear about the repatriation. Mr. GELBARD. The normal procedure when people have been repatriated has been to deal with the Haitian Red Cross. The Haitian Red Cross was consulted and held discussions with the de facto regime in Haiti and received sufficient assurances that the process went ahead. We have no reason to believe at this point that any of the people who have been repatriated, based on the sense that the Haitian Red Cross had, are going to suffer any reprisals, and historically, under a wide range of nondemocratic regimes in Haiti, this has been the case, and we have no record of any reprisals against Haitians who have returned. Mr. BERMAN. Are we able to monitor that, or are we depending on the Haitian Red Cross to monitor that? Mr. GELBARD. We have a very reduced Embassy at this time due to circumstances in Haiti. We are attempting to monitor this ourselves and also in conjunction with private voluntary organizations, human rights groups operating in Haiti, the Red Cross, and other entities, and our Embassy intends to stay in very close contact with all of these groups. Mr. BERMAN. So it is fair to say then, from what you have said, that the assurances we received were indirect; they came through the Haitian Red Cross based on their contacts with the Haitian rulers at the present time, not on our own direct contacts; and that the monitoring of the condition of the people repatriated will be done, as much as possible, by the Embassy but with a great deal of reliance on the voluntary organizations, human rights groups, and other organizations in Haiti. Mr. GELBARD. Yes, Congressman, and those have been the same kinds of entities we have relied upon in the past because of the extensive nature, the widespread network, of these organizations throughout Haiti. The experience thus far has been that none of the people who have returned have received any kind of reprisals. Mr. BERMAN. Then for my final question on this round, if I could just hear a little description of the interview process on the boats, how that works in what would seem to be serious impediments to having someone fully and adequately recite their own situation in that condition, having just been picked up-how that is going to be really a truth-finding process. Mr. McNARY. Let me start out by saying the conditions are not optimal. We have some teams of interviewers there, and these teams include an interpreter-there are 12 teams-an interpreter who speaks Creole. First of all, all of the adjudicators have been specially trained to make this adjudication, to apply the standards, to tap the various country conditions, and to take the facts. They have certain techniques they have been trained in. They have started out with a certain introductory briefing for the applicant, which explains the purpose of the interview. Then they go into something on the order of a 20-minute indepth interview which is conducted through the use of a new interview questionnaire that has been established. If a credible claim from that interview is made-and I don't think you were here; I mentioned that so far 85 people have made a credible claim; 53 have been brought into the United States; 32

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96 will be imminently-and then they will be in a position to have a hearing that is under better conditions, but at least they are brought into the United States for that purpose. Frankly, the situation is one that the economic conditions in Haiti are deplorable. They are deplorable, and people, for the most part, are leaving for economic reasons, and they tell our interpreters and our interviews just that, they can't get a job, or if they left because some member of the family was threatened, and then they are asked what members were threatened, they have no answer, and so there has been a genuine effort to find all the people who can make a credible claim for asylum under our laws, the Refugee Act of 1980. Mr. MAZZOLI. The gentleman's time has expired. I would say before I go to the gentleman from Florida, if he is ready, that the American Bar Association, in the second full paragraph of their letter, which we will send to you, does make some claims with regard to the procedural protections, and they call them normal procedural protections, with respect to the prescreening discussions on board the cutters. So that may be something you may want to take a look at. The gentleman from Florida is recognized for 5 minutes. Mr. MCCOLLUM. Thank you very much, Mr. Chairman. I apologize for having to be out of the room, but we do have a major markup going on in the Banking Committee, of which I am a member, and I have to spend some time down there. It is a pretty difficult thing to juggle, to say the least. Mr. MAZZOLL To say the least. It is tough to juggle the tough schedule for all this session really. Mr. MCCOLLUM. Well, thank you. I wanted to inquire a little bit with regard to a few things here today though, and I'm glad I could get back for this, because one of the areas that has been of concern to me for a long time is the problem that we have got in the law, or the absence of the law, of having what was referred to back in 1984 as summary exclusion, and some may have corporate memories-I know the chairman would-of the fact that this member authored an amendment which we actually passed on the floor of the House in 1984 which, if it had become law, today probably would have made Mr. McNary's job considerably easier in this respect, because it did provide a procedure for summary exclusion for people who were apprehended as they began to set foot on our soil and really had not come into the country fully, so that they didn't get caught up in our court systems and so on. One of the things that concerns me about this whole debate, whether it is over the Haitian immigration or the Cuban question as well, is what we are going to continue to do to deter people from getting into our system in large numbers, larger than the numbers that you have described in your testimony today which we have taken in, for the most part, legally-and we have taken in by grandfathering and so on. I am concerned-and I am going to ask you a question, if I could, Mr. McNary-as to whether or not the current legal requirements that are involved are satisfactory in the case of a mass influx to deal with this problem. If we aren't able to interdict everybody at

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97 sea, and they begin to come on the shore, won't they, under the law now-and maybe Mr. Ford can help you with this as the legal counsel-aren't they eligible to get into the complete asylum and complete court system and stay here quite a while through procedures that wouldn't otherwise be available if we had a summary exclusion procedure that said they aren't eligible for all of that if you screen them out? Isn't that potentially a big problem? That is one of the reasons for this hearing originally being called, to discuss our preparedness to deal with a mass influx. It is not quite that with the Haitians yet, but it is getting close. Could you respond to that? Mr. McNARY. Yes. You have described it very well, and we have had that experience with those coming across the southwest border, being overwhelmed with asylum applications. This is a different situation. Interdiction does not provide that attachment to our soil, and so the same rights do not accrue so far as a work permit and the other things that go with waiting for your asylum hearing. The biggest problem, Congressman, in my judgment, is not the law so much as following it. We know that not only U.S. law but world law is to the effect that we can accommodate political refugees, we cannot accommodate economic refugees, no nation can do that, and the suggestions that we parole people in, in large numbers, that we grant TPS in large numbers, would completely circumvent that law, that policy, and would give us problems in dealing with thousands of people that we are not capable of dealing with, and no telling in this particular case if it gets out of hand. This is something that everybody on this panel has groped with, not only with Haiti, but how many other countries where the economic conditions are not good will people set sail for this country if they know that, once they are picked up by a Coast Guard cutter, they are going to be brought to our shore? Mr. MCCOLLUM. I know that the issue Mr. Gelbard was asked about is a critical one, and that is the question of the persecutions: Do we know if they are or aren't in reasonable fear? Obviously you have also answered that to some extent because you said you screened a number out and have allowed some to come to this country. I think that is very significant. None of us want to see forced repatriation of people who are under duress or threat of actual persecution, but we also don't want to encourage-at least this member doesn't-huge numbers to start heading out with boats in this direction from either Haiti, or Cuba, or any other country nearby. So I think the policy balance is really important here, and sometimes the personal compassion interests have overcome that concern and we haven't been able to view it clearly. I am appreciative of your comments with respect to that and the difficulty of your task because, quite frankly, I would prefer these Haitians weren't returned to Haiti, but I don't want them coming here and getting into our process either and encouraging other people to come. So the effort to put them with other countries, to the degree that works, is fine, and that is what we should be doing, but youhave had trouble doing that, and so I respect what you are saying. I thank you, Mr. Chairman.

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98 Mr. MAZZOLL I thank the gentleman. Mr. McNARY. Mr. Chairman, can I point out that-I don't need to defend the State Department, but it is encouraging to me that these 325 or 350 people are going to third countries, because, unless I'm wrong, those were the first people out of Haiti. That was the group that probably had the greatest fear. Then, after it seemed possible to get picked up by the cutter and brought in, others were encouraged to jump on board, and I think that we are getting in more to the economic migrant, and still the doubt resolved in favor of those early ones who left is encouraging. Mr. MAZZOLI. That is encouraging. I was going to ask-and I don't have time now-about the whole collapse of the OAS discussions. The gentleman from Texas. Mr. BRYANT. Thank you. Ambassador Gelbard, since we recognize the legitimacy of the Aristide government, was President Aristide or his Ambassador consulted prior to implementation of our current procedure? Mr. GELBARD. We have had some discussions, Congressman, with his Ambassador. President Aristide has been traveling, so we have not discussed this with him. We acknowledge that they have not been in agreement with this. They have supported the idea of third country repatriation and, as far as I am aware, approached one or two countries, but the bulk, the overwhelming bulk, of the efforts to approach third countries for temporary safe haven have been done by us, supported by the UNHCR. Mr. BRYANT. Haiti is in the control of a group of people whom we do not recognize as a legitimate government of Haiti. Has there ever been a time in our history where we have repatriated people to a nation governed by a group of people whom we did not recognize? Mr. GELBARD. I'm afraid I can't answer that. Mr. BRYANT. The administration has been peppered by questions from Members of Congress and elsewhere comparing the way we treat Cubans to the way we treat Haitians, and I'm curious to know, since the administration argues that Cubans are treated differently in this situation than others when they are rescued at sea because of the Cuban Adjustment Act of 1966, does the administration advocate a change or an amendment to the act that would also include Haitians? Mr. GELBARD. Congressman, the fundamental difference between the treatment of Cubans at sea and Haitians at sea is that any Cubans who are returned will, by definition, go to prison, because that is the way the Cuban Government has treated them and continues to treat them. As I mentioned earlier in response to Congressman Berman's question, we have no indication at all to believe this is how Haitians would be treated. Mr. BRYANT. All right. You have also said that one good reason for pursuing this policy is to avoid a magnet effect in which the word gets out that you can be picked up and make to the United States. I'm curious to know about the question of the magnet

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99 effect. Has there been a magnet effect with regard to Cubans inasmuch as we rescue them at sea? Mr. GELBARD. Let me say first that the fundamental basis for, first, the 1981 bilateral agreement that resulted in the Coast Guard's presence in the Windward Passage, involving the search and rescue program, has been that there is an estimate of 50 percent mortality rate for Haitians attempting to leave Haiti by boat. There is a significant difference in the length of the journey-600 miles versus 90 miles from Cuba-a significant difference in the difficulty of the journey because of the nature of the seas, and we had a fundamental concern that we maintained about the large number of Haitians who died attempting to leave Haiti, or people who were dying attempting to find Coast Guard cutters. The basic nature of the program has no doubt resulted in saving many hundreds, and perhaps thousands, of lives of Haitians who attempted to leave solely with the hope that they would be picked up by these Coast Guard cutters, and in many cases, I'm sure-I know; I have heard-there have been people who have died because of their fruitless attempts to do this. If we at this point were to change our policy and to take in all Haitians who were leaving by boat-and I have to note parenthetically the very fragile nature of these boats, as I mentioned in my opening statement-this will undoubtedly produce a significantly increased number of people who would be attempting to leave and would undoubtedly result in the deaths of many, many hundreds of these people. Mr. BRYANT. Ambassador, I have asked the hardest questions which have been suggested to me or that I could think of. If, indeed, the interviews you are giving, Mr. McNary, are adequate, and if indeed people are not being persecuted when they return home, I'm not sure I can suggest an improvement on your policy. I came here with a most critical attitude, but I'm quite sure that you don't want to send people to their deaths or their torture or persecution or imprisonment. I just hope, though, that those interviews are adequate. I think my time is up, but I hope, maybe in response to somebody else's question, you will explain that interview process a little more, and if it is lengthy enough, and if you are really finding out the facts. If that is the case, I don't know what else we can do. Mr. MAZZOLI. The gentleman's time has expired. I would be curious to find out the justification for the continuation of the 1966 Cuban Adjustment Act, which many people suggest shows a skewing of our law with regard to the treatment of people. Could not we change that and say Cubans aren't going to be sent back, but they are going to be kept under TPS? I don't know what argument you make as a justification for the 1966 act which justifies never sending them back. I would like to hear some thoughts on that at some point. The gentleman from Oregon. Mr. KOPETSKI. Thank you, Mr. Chairman. As the chairman and the committee know, I had the opportunity earlier this year to visit Turkey and Iraq and look at the Kurdish refugee situations there, and I know from that experience in learning about Operation Provide Comfort that the U.S. military, both

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100 as an institution and as individuals, are doing all they can in the humanitarian sense to help the plight of the Kurds. I also learned that war does cause refugees and that sometimes there is a delayed effect-that the war can break out but people may not move and make that difficult decision to leave their homeland until weeks or maybe even months later, after the change in government occurs. We saw that with the Kurds in Iraq, and we are seeing that with the Haitians today. I think there is a different situation here with Haiti. Haiti is the only country in the world with which the United States has a migrant interdiction agreement, the only nation in the world. We treat these people from this nation differently than anybody else. That is our stated policy, and my questions are to Ambassador Gelbard. We can suspend aid to Haiti, we can suspend or help cut off the flow of oil, we can freeze Haitian assets, we can do all these economic pressures, but your testimony says when it comes to the people, we can't suspend law, we can't make a temporary exception. Let me read your testimony, on page 3: "In keeping with the intent of the United States-Haitian immigration agreement, the interdiction program, and U.S. law, we have an obligation to prevent an unimpeded flow of Haitians to the United States." Let me say that the gentleman from Florida is correct, that our first policy is resettlement in the country of origin; the second policy is settlement in the region, or, third, a third country asylum. I don't think anybody on this committee differs from that. But here we have a life-threatening situation possibly for individuals, and your testimony is, we have an obligation, and my question to you at the outset is: To whom do we have this obligation? And why? Mr. GELBARD. First of all, Congressman, it is not the case that this is an agreement which cannot be waived under any circumstances, and if I gave that impression, I apologize. Mr. KOPETSKI. So your testimony is, your policy could change. You are willing to waive this agreement? Mr. GELBARD. The circumstances which could-and I emphasize "could"-cause the policy to change would depend on the circumstances within Haiti. If we felt there were circumstances under which Haitians who were picked up at sea would risk reprisals, would risk their lives, would risk imprisonment of any kind upon their return, the administration does have the ability to do that, and I would ask Mr. Ford to correct me if I'm wrong. But let me say, we do not believe that that is the case at this time with people who do not have political affiliations and do not have a claim for political asylum. Mr. KOPETSKI. And what kind of civilian or independent human rights, civil rights, observers you have direct communication you have with in Haiti, and on what kind of regular basis are you in contact with them? Mr. GELBARD. Our Embassy is in constant contact with a wide range of human rights groups, with other private charitable groups-the entire range of them who are there, involving the Catholic Church

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101 Mr. MAZZOLI. Would the gentleman yield for just 1 second? Mr. KOPETSKI. Yes. Mr. MAZZOLI. I am wondering, if we were to unilaterally abrogate the 1981 agreement because the gentleman said we are the only nation in the world that has this agreement with Haiti-if we were to abrogate the agreement, could not, Admiral, the Coast Guard still search for and rescue these people? Could you not still pick them up in your normal work of coming alongside unseaworthy craft and offering aid and succor to those people? Admiral, would you be able to pick up people? Admiral LEAHY. Well, the Coast Guard would rescue and assist anybody at sea in distress. Whether or not there would be a permanent cutter in that area would be another question. Mr. MAZZOLL Like along the Ohio River near Louisville where you have eddies and you have an awful lot of the big tow barges coming around, we have a Coast Guard station right there in Louisville, because that is a point of problem, and so you keep your people there. If it happens that the Windward Passage is a point of problem, then you would probably keep cutters nearby or sort of deployable. So I would like to pursue at some point the gentleman's question. Mr. GELBARD. Mr. Chairman, I would just hazard a guess that if we were to do that, I don't think the Coast Guard would have enough cutters, nor would the Navy have enough ships to be able to pick up all the people who would be leaving Haiti in the hope that they would be picked up in the hope of reaching the United States. Mr. MAZZOLI. So you then suggest this is a deterrent policy; it may not be a magnet policy after all. Mr. GELBARD. That would become the magnet. Mr. MAZZOI. If you say it is a deterrent, in your judgment, having those cutters there deters people from leaving Haiti. Mr. GELBARD. Having the cutters-the cutters are there to pick up people to prevent them from dying. Returning the people to Haiti who do not have what the INS calls a colorable claim to refugee status is the preventative part. Picking up people and bringing them to the United States on an unimpeded basis would no doubt create an extraordinary and unimpeded flow of illegal aliens to the United States. Mr. MAZZOLI. Unless at tier two we are doing something about the problem at home. I don't think any of us suggest we are just going to stop at tier one; we have a tier two. Anyway, I took about 1 minute of the gentleman's time. The gentleman is entitled to it. Mr. KOPETSKI. Thank you, Mr. Chairman. Just to counter, it seems to me that the issue of the safety of the returning Haitians lies greatly, and probably entirely, with the credibility and competency of the information that the U.S. Embassy is receiving on the ground there. I would like the Ambassador to provide to the committee a listing of the different sources of information-and what credibility they give to the various organizations. [The information follows:]

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102 SUBJECT: Reply to Rep. Kopetski's Request on Haiti In response to Rep. Kopetski's request during my testimony before the Mazzoli subcommittee, I provide the following language to be inserted on page 110 of the transcript: Our Embassy in Haiti maintains a wide range of contacts in all sectors of Haitian society and in the American and international communities there. The Embassy's Haitian contacts include large numbers of key figures in government and politics, at all levels and across the political spectrum, business persons, educators, the clergy, the media, health care workers, and human rights activists. The international community includes a large number of private voluntary agencies working throughout the country in such areas as agriculture, health care and education, missionary and other religious groups, representatives of international organizations such as the Red Cross, OAS and UNDP, human rights organizations, and the diplomatic corps. In addition, the Embassy operates its own "warden" system through which it maintains contact with American citizens scattered throughout Haiti and thereby receives information on conditions outside the capital. Members of the Embassy's staff also travel through the country as circumstances permit to observe local conditions and talk with residents. Information from these and other sources is considered in making our classified and unclassified evaluations of conditions in Haiti.

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103 Mr. MAZZOLL The gentleman's time has expired. The gentleman from Michigan. Mr. CONYERS. Thank you very much. We haven't discussed why these citizens of Haiti are leaving, and I'm very disturbed about that. I think the interdiction agreement may be not worth the paper it is written on. It is highly discriminatory. It was signed by Jean Claude Duvalier known to most as Baby Doc. So we ought to come clean about this document, Mr. Chairman. If this discriminatory agreement, interdiction agreement, between the poorest nation on the planet, a colored people, is going to now be justified and honored here before this subcommittee, then I am ashamed of our State Department policy which has historically put Haiti at a very uneven basis. Now I am stunned to hear Ambassador Gelbard assure us, or attempt to, that he believes that no reprisals will occur to people going back to Haiti. Now that strikes me as stunning since we have a country where wanton violence and murder not upon reason or not for cause-for example, trying to get out of the country-but it can happen for no reason. We are here talking about a country where lawlessness operates. We are in a state of total disorder and chaos. So for me to believe that you could send these people back-they may be killed going back, not for trying to escape but for just being in front of someone with a gun. It seems to me that we ought to follow the suggestion of the chairman of the committee and the gentleman from Oregon that we shouldn't use this agreement, signed with Duvalier, as a reason not to change it. Now the major question here, of course, is, what are we doing to bring President Aristide back to Haiti? Until we solve that problem we are never going to change anything there. People like you and me, if we were there, would be trying to get out and probably be willing to continue to risk our lives on a long, dangerous journey in an unsafe boat to get out. That is the position our policy is putting the Haitian people in, and it seems to me that this committee has taken on the very wise chore of trying to change things. There are three ways, we have been told, that are being considered: (1) Staying the deportation of Haitians who are currently under orders to be deported; (2) granting temporary protected status, which we have talked about; (3) processing Haitians in Haiti before they come. We could send our Immigration Service to Haiti to process people in advance. That would have a very salutary effect, it would seem to me, in terms or curbing the number of people that think that they are going to come. I would like to have all of these considerations that have been suggested to us in the paper directed by the Congressional Research Service be considered. Ambassador, would you respond to any parts of the statement and questions that I have posed? Mr. GELBARD. Mr. Chairman, if you feel it is appropriate, perhaps I could answer Chairman Conyers' question about our efforts to restore the democratic government first. We have been working assiduously since the day of the September 30 coup to restore the democratically elected government of

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104 President Aristide, and I strongly believe that our record is outstanding in this. Mr. CONYERS. Well, what happened? Mr. GELBARD. If I could finish, we have been working with the other nations in the OAS with whom we immediately agreed to send a mission to Haiti, a group of foreign ministers under the leadership of the Secretary General. They met in an effort to try to put together an agreement that would result in the restoration of democracy. That did not occur, but subsequently we imposed, on October 4, when the President signed an Executive order, a freeze of all Haitian financial assets and transactions with the Government of Haiti, and October 8 the President signed a subsequent agreement on a trade embargo with Haiti. That trade embargo has had a very important effect, and some of our other OAS member nations, such as Venezuela and Mexico, ceased all oil shipments to Haiti. We have been working very closely with the OAS to support a mission that has been attempting to negotiate an agreement to restore democratic government. That mission, under the leadership of former Colombian Foreign Minister Augusto Ramirez Ocampo, just returned last week after having reached a partial agreement in Haiti and will be meeting with President Aristide and Haitian legislators this week in an attempt to move forward that agreement, hopefully, to achieve a solid one which will result in the return of democratic government. This is a strongly felt policy on our part, Mr. Chairman, and we are continuing to press this with great strength. Mr. CONYERS. I know we are cutting you off, Mr. Ambassador, and I apologize, but I would just like to add this recommendation to that, that you contact the President immediately. I don't see why President Aristide cannot appear before this committee to present the case for the Haitian people themselves, and there is absolutely no reason why we shouldn't have him here. I am not clear as to what progress we are making, but clearly if we will expend the enormous military effort to go to the Middle East-here we have an insurgency in a small country for which. there is absolutely no solution until we move past whatever it is we are doing now that has not been successful. I think there is an urgency about it that commends to this committee that we invite the President of this country before the Congress. From everything that I can tell, there is totally sympathy with making the kinds of changes, if temporary or permanent, in our immigration policy that would relieve this situation. Then we would actually bring the unfortunate circumstances to a conclusion. Mr. MAZZOLI. I thank the gentleman for that suggestion. The gentleman from Florida, Mr. Fascell, had an interesting statement, which is made part of the record, dealing with that very point the gentleman brought up about the whole thing going on on the ground. Mr. CONYERS. Is he considering trying to take action along that course? Mr. MAZZOLI. Yes, that is in his statement. Before I yield to the gentleman from Florida and then to the gentleman from New York, who has been extremely patient, let me

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105 mention one of the problems. I am hoping that you are starting to sense the flavor of what we are doing here, and that is what appears to be an unequal treatment of one nation and one group of people. This is the only nation in the world we have this agreement with for interdiction. If a Cuban is picked up on a raft, we don't send them back or we don't keep them on board a cutter, we immediately take them to Miami or the nearest port. They are immediately interviewed, and they are immediately released. Incidentally, the GAO has some preliminary data, to show once again the unequal treatment. Using Krome as a case in point, as of March 1991, 404 cases were examined by the General Accounting Office; Cuban cases, there were 16. This is Krome, in Florida. The average length of days that the Cubans remained in Krome while their asylum cases were being petitioned and so forth, before they were released-16 Cuban cases; the average stay, 16 days. Haitian cases: 278 Haitian cases in Krome, asylum petitions; average length of stay for those 278 Haitians, 101 days-101 days for the Haitians, 16 days for the Cubans. There may be eminent reason, and I would like to have your explanation. It appears that, there are indications that, there is a kind of uneven-handedness. Mr. GELBARD. Could I just point one thing out, Mr. Chairman? Mr. MAZZOLI. Certainly. Mr. GELBARD. That is that there is a fundamental difference involving people who arrive in the United States by sea rather than overland, and I believe Admiral Leahy mentioned in his opening statement, for example-and I could be wrong, but I think Mr. MAZZOLI. You are not going to arrive from Haiti overland, or Cuba. Mr. GELBARD. No. But the point was that Dominicans are also being returned to the Dominican Republic by boat. Mr. MAZZOLL Don't talk about Dominicans. I'm talking about Haitians; they come from an island, Hispaniola. I am talking about Cubans; they come from an island. Mr. GELBARD. But the point was that it is not just Haitians, sir. Mr. MAZZOLI. Pardon? Mr. GELBARD. It is not just Haitians who are being returned. Dominicans Mr. MAZZOLL Well, again, I guess maybe we are missing the point. What I am saying is, here are the same group of people in the same detention, Krome Avenue, Miami, FL. Both come by sea. One group of 16 comes from Cuba; they remain in Krome 16 days on an average. Another group coming from Haiti, another island, they are 279 human beings, and they stay 101 days. Mr. McNARY. Mr. Chairman, there is an easy answer to that. We can't send the Cubans back. We can't send the Cubans back. Now if we give them temporary protected status, it is not temporary, it has been going on with the Cubans for 30 years, and so a Cuban, because of the Adjustment Act and because we can't send them back, the Cubans are only there temporarily, and then they are given parole, and they wait a year, and they adjust. Mr. MAZZOLI. Even though you can't send the Haitians back if they are having their asylum petitions examined, why would it take them 101 days before they are released?

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106 Mr. McNARY. That is because we have got a backlog on those petitions, and in the executive office of immigration review. But there are also Chinese at Krome and other nationalities who are in the same position and have the same backlog as Haitians. Mr. MAZZOLI. And all I bring up is what appears to be-and this is what I think the committee needs to get into, and I want you all to be aware of it-what appears to be an inconsistency or an uneven-handedness-in the dealing of these two people, or people from these two lands. Mr. McNARY. Mr. Chairman, I would like to take this opportunity to say that we work hard at being consistent and uniform and even-handed, and any reference to a racial discrimination here is offensive to all the people involved at INS who work hard to make sure that we treat every nationality the same. We do. That is a fact. There is nothing racial about this. Mr. MAZZOLI. I didn't say that. Mr. McNARY. No, but those charges have been made by the prior panel, and we want to get it on the record that that is not true. Mr. MAZZOLI. All I was simply saying was, there must be an explanation. I'm saying, but you understand where the committee could very well reach a position where there is not even-handedness. That is all I am saying: We as a nation have a multifold role in this world, but among them is to appear, not just in substance but in the appearances, to make sure that we are not treating people in any different fashion. Mr. FORD. If I also could, Mr. Chairman, in the Immigration Act of 1990, which many of you were eminently involved with, as most of us were, there was a provision in there to include 20 additional immigration judges, lawyers for the INS General Counsel's Office, as well as clerks. For the last year, I have been trying to get these people housed together in the anticipation of them coming. Every single one was cut, we got nothing, and until we get the resources that we need to move these cases you are going to have 100-day delays for whatever nationality. Mr. MAZZOLI. I remember sitting in this very room, the gentleman from Florida and I together urging not people from the Justice Department but some of Mr. McNary's predecessors to please, ask for more money. There is plenty of fault to go around-who cuts it, whether it is cut in conference or cut on the floor. The fact remains that we as a nation have a responsibility, to make sure that every person-and the 1980 Refugee Act is premised on the idea that all people are treated equally, to depoliticize the question of who is a refugee and who isn't. Mr. FORD. And, Mr. Chairman, we would just ask your help and other members of the subcommittee's help with this. Mr. MAZZOLI. I think you will always have that help. I have had that bipartisan support. Mr. RANGEL. Mr. Chairman, if you would just yield for a moment. Mr. MAZZOLI. Certainly. Mr. RANGEL. Mr. McNary very emotionally referred to comments made by the panel that preceded this one, that there was an implication that the policy was racist, and I would like to be identified

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107 with anyone who made that statement, because I hope that I'm making it loud and clear that I think the policy is racist. And I would just like to ask you, Mr. McNary, is there any question in your mind that if the people on these boats came from Ireland, that we would exercise the same policy, notwithstanding the law? And if the situation existed in Ireland with this ragtag, crooked, violent group of gangsters who call themselves soldiers, do you think for 1 minute that the United States of America would return these Irish people to Ireland? Mr. McNARY. Congressman, that is even an offensive question. We return anyone who is supposed to be returned under the laws of the United States of America, and we deport and repatriate every day to every country but Cuba, and if you change the laws or if the State Department establishes a new relationship so the Cubans will take Cubans back, we will repatriate to Cuba. There is absolutely no discrimination. We have tried to be fair, consistent, and uniform under the provisions of that 1980 Refugee Act, and we are going to continue to do. Now there were 50,000 Haitians brought into this country in the last 5 years legally. They adjusted. There have been special adjustment provisions in the 1986 act that were Cuban/Haitian provisions. Mr. RANGEL. Mr. McNary, listen. I'm only talking about these people that are on the high seas. I'm not talking about the law, I'm talking about the specific emergency that exists today. I'm not talking about any changes in the law. Mr. McNARY. I thought you were talking about racism. Mr. RANGEL. I'm talking about racism and these people that are on the boat, and I'm saying that if they were European and they were in that boat we would save them and then adjust the law. Mr. McNARY. And I'm saying that is wrong. Mr. RANGEL. OK. Mr. MAZZOLL The gentleman's time has expired. The gentleman from Florida. Mr. MCCOLLUM. Thank you, Mr. Chairman. I must say that, with all due respect to my good friend from New York, I happened to be listening to this today, and I don't hear racist or discriminatory words coming from the mouths of any of these witnesses. What they have said today to me is that they are following the interdiction policies that this Congress wanted the administration to follow back since 1981 in order to deter people from leaving the island of Haiti, or any other island, and get swamped in a boat and overrun the State of Florida or the United States. That policy was good then, and I think that policy is good today. I have read the testimony, and I have heard what you have said in answer to questions here since I have been in the room in the last 45 minutes or hour. If we listen to what you are saying and use our head instead of listening to our heart, which is what some Members, I'm afraid, are doing, we will find that your policies are correct, the only logical policies. It appears to me there are two different peoples here, two different situations, and everyone is being treated equally who is in equal status, but there is an unequal situation. The Cuban situation is not the same as the Haitian situation, and Mr. Gelbard has explained that very, very clearly. I want to ask a question of Admiral Leahy.

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108 Mr. KOPETSKI. Will the gentleman yield? Mr. MCCOLLUM. I will in a moment, if I could, but I have to go back to the Banking Committee unfortunately at 1 o'clock, with an amendment of mine up, so I've got to leave. Admiral Leahy, in Mr. McNary's testimony, he points out that your interdiction is under the Alien Migrant Interdiction Operation Executive order of September 1981, and I assume that that is the basis of the policy that what the Coast Guard is operating under. We were holding this hearing initially because we were concerned about the contingency plans for the United States. If we were going to be swamped with people again, we thought maybe it might come from Cuba with another boat-lift. Isn't this interdiction order that you are operating under today the essence of the contingency plan of this administration? Isn't this the front line of that contingency plan to deal with what might happen if we had a huge wave from Cuba or Haiti or anywhere else in the Caribbean? Isn't that what you are doing, using that order? Admiral LEAHY. Well, we have a specific contingency plan to cope with a massive boat-lift from wherever, and that plan is classified. We have briefed the members of the Merchant Marine Committee, and we also have briefed the members of the Florida delegation with respect to that contingency plan. We have worked very hard with that with the other agencies of government, and we think we have an effective plan. Mr. MCCOLLUM. If I might interrupt you, I'm not trying to get you to disclose anything that is classified, but am I not correctwithout getting into anything classified-that interdiction for any contingency plan, whether it is secret or open-this is perfectly open-involves interdiction? Admiral LEAHY. Yes, sir. Mr. MCCOLLUM. Thank you. And, Mr. Gelbard, did you not say to us just a few minutes ago that saving the lives of Haitians and not having them loaded up on unsafe boats is the primary concern we have today, plus deterrence against them coming to the United States? Isn't that the reason, the real reason, and not some agreement with Haiti? That happens to be a part of the package of the law that now exists. But you would be wanting to do this whether you had that agreement with Haiti or not, wouldn't you-what you have just done with regard to trying to deter people from coming here and keeping them from getting on leaky boats and sinking? Mr. GELBARD. Yes, Congressman, and that is the reason we do it with the Dominican Republic and other countries too. Mr. MCCOLLUM. Thank you. Thank you, Mr. Chairman. Those are the only questions I have. Mr. MAZZOLI. I thank the gentleman. The gentleman from New York. Mr. RANGEL. Thank you for the courtesy, Mr. Chairman. I would just like to take care of some housekeeping work with the Coast Guard. As you know, last Sunday I was scheduled to go to Guantanamo Bay, to the base, with Senator Connie Mack from Florida. This had

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109 been cleared with the Coast Guard to provide the transportation for us, and at the last minute Saturday night I was informed by the Coast Guard that I and Senator Connie Mack had not received ultimate clearance. Since that time, I have talked with John Sununu at the White House, and he certainly didn't know about it; I have talked with Colin Powell's shop, and they thought I was on the way; the State Department said that they thought it was a good idea. So are you able to share with me where the ultimate clearance stopped? Admiral LEAHY. Mr. Chairman, unfortunately, or fortunately, I own the Coast Guard air station at Washington, so I have responsibility for those aircraft that are there. However, I do not have any authority to clear those flights, and where the ultimate clearance comes from I don't know. Mr. RANGEL. It wasn't a religious thing? Admiral LEAHY. I don't think Mr. RANGEL. Well, we don't know who stopped the flight. Admiral LEAHY. I don't know where the clearance comes from; no, sir. Mr. RANGEL. That is good enough. Ambassador Gelbard, I have had one of the pleasures in being a public servant of having met and worked with you and seen the reputation that you have earned in being honest and sincere and one of the most dedicated public servants I have seen, especially coming out of the State Department, and so I know that what we are discussing today-that is, specifically, the return of the Haitians that are on these boats to Haiti-will not go down historically as the Gelbard policy. However, you have participated in this, and I would just like to know, as a partner in government, how far did this policy go up? and do you have any assurances that the President of the United States is aware or supports this policy? and, if so, how would you have that assurance? Mr. GELBARD. Well, Congressman, I'm certain the President is aware of this. I am not privy to knowledge whether the President participated in the actual decision, but the decision was taken at very high levels. Mr. RANGEL. No, no. I know that, but this isn't national security now. I want to know what is high level, forgetting ultimate authority. What is high level? I have talked with John Sununu. Is he a high level? or is it beyond him? Mr. GELBARD. I think it is fair to say it was taken at the Cabinet level. Mr. RANGEL. Is it something so secret that we can't talk about names here? I don't know. I have talked with Secretary Eagleburger. What Cabinet level? Is Secretary Baker involved in this at all? Mr. GELBARD. WellMr. RANGEL. Why are we so embarrassed about a national policy? And I've got a limited amount of time. Could you tell me why you won't tell me who in our Government supports this?.How high do we get the support and participation? Mr. GELBARD. I think everybody in the high levels of the executive branch supports this decision.

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110 Mr. RANGEL. I would think that too, but I would like to know who. How high has been the participation been in sending these Haitians back to Haiti? Mr. GELBARD. As I mentioned, Congressman, the decision was taken certainly up through the Cabinet level. Mr. RANGEL. Can you give me the name of anybody that serves as a Cabinet official that participated in and agreed to this decision? Just anybody. Mr. GELBARD. There was an interagency discussion of this. There were numerous interagency discussions. Mr. RANGEL. Very good. I assume what you are saying is that you are not prepared to give any names. Mr. MAZZOLI. Would the gentleman yield for a second? At some point I asked the question of the Ambassador about when the last time this working group met to talk about granting TPS, and I think the Ambassador, or Mr. Ford, said you met as recently as yesterday. Is that correct? Mr. FORD. No. On Sunday we were all together. Mr. MAZZOLI. Sunday. Thank you. Was there someone there of Cabinet rank at that meeting? Mr. FORD. No. Mr. MAZZOLI. And the earlier meeting you had was maybe a couple of weeks earlier than that. Is that correct? Mr. FORD. Well, the meetings, Congressman, are not specifically on the TPS issue. As you can imagine, there are several issues that surface not only with Haiti but with all other, you know, conceivable situations relating to a number of interagency discussions. Mr. MAZZOLI. I want to yield back to the gentleman. The gentleman has the time. I appreciate it. Mr. RANGEL. All right. Now, Ambassador, since you are not at liberty to share with us the name of any public officials of Cabinet level that participated and support this decision, could you tell me whether you know or have any reason to believe that the President of the United States called any head of state and asked them to assist us in taking the people off of these boats? Mr. GELBARD. Yes, sir, the President was in contact with heads of state about this issue. Mr. RANGEL. I am thinking now of the leadership he provided during the Persian Gulf crisis, and he came and he told the public whom he called, and I was so proud. Now, could you share with me whom the President has called? Mr. GELBARD. I would rather not get into that, Congressman. Mr. RANGEL. Could you name the country? Mr. GELBARD. Well, one that I can mention is the President of Venezuela, Carlos Andres Perez. Mr. RANGEL. I see. And the President has been in touch with him personally? Mr. GELBARD. Yes, sir. Mr. RANGEL. Because the last I heard, he had sent him a letter. Mr. GELBARD. He had sent him a letter, yes. Mr. RANGEL. Did he call him? Did he telephone? Mr. GELBARD. Not on this issue.

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111 Mr. RANGEL. Have you heard that the President telephoned anybody on this specific issue concerning boat people? Mr. GELBARD. I don't know. Mr. RANGEL. OK. My last inquiry is, respecting your reputation, and taking advantage of your experience in the State Department, and knowing of your particular knowledge of Haiti, could you share with us your opinion of the Haitian army, this being the same army, I assume, that wantonly shot down people that were trying to participate in the previous election, an army that reportedly intimidated even recently the Office of the Organization of American States at the airport, the army that has sought out, shot, and killed the supporters of President Aristide during and after the coup. Could you give us your professional opinion of the caliber of this military force as relates to their trustworthiness, honesty, rational behavior? Mr. GELBARD. There is no question that the Haitian army is very lacking in professional training, and there is no question that in the early days of the coup, starting on September 29 and leading into September 30 when the coup took place, that there were killings and abuses that took place. Since then, there have been sporadic instances of violence, but very few that we have been able to document. Mr. RANGEL. During the killings of these civilians-and I would assume innocent civilians-is there anything on the record as to what the Haitian Red Cross had been able to do to stop these killings, that you know of? Mr. GELBARD. I think a number of organizations, including the Red Cross, have been attempting to play a very positive role in this. Mr. RANGEL. I know, and I respect them for it. But my question was: Do you have anything of record where the Haitian Red Cross has effectively stopped the wanton and criminal killing of innocent people by the malicious, ruthless Haitian army? Mr. GELBARD. I don't have specific instances, but, as I said, since the very first days of the coup there have only been really sporadic instances of violence. Mr. RANGEL. As a New Yorker, and, understanding the Statue of Liberty and immigration and all these things that we get emotionally involved in, is there any question in your mind that if the people in the boat were not black and not poor and from Haiti that we would have had a different foreign policy in terms of returning them to the situation that we described-to wit: Haiti as we know today? Mr. GELBARD. Congressman, I agree completely with Mr. McNary. There has been, in my view, no discrimination, and I really strongly believe that. Mr. RANGEL. I guess the answer would be that if, in fact, these people were white that we would still treat them the same way and ignore their color; the fact that they are black and poor has nothing to do with the fact that we are returning them to the situation that we are? Mr. GELBARD. Yes, sir. Mr. MAZZOLI. I thank the gentleman. He has made a very valuable contribution of his time and his interest.

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112 I think that you can understand why there is some incredulity here despite our affection for you personally and our respect for you professionally-why there is a little bit of incredulity about what has been said here about whether or not this would be the exact policy for all people. The very nature of the interdiction exists for only one country. I mean almost in itself that suggests a kind of singling out of one nation. It would have been almost better to have an interdiction for anyone we find on the seas. We have a problem with Cuba because we have this 1966 act that may or may not have validity today. But at least we would say anyone-whoever is in danger of dying on the high seas is going to be interdicted and is sent back home. Wouldn't that be even-handedness, Mr. Ambassador? Mr. GELBARD. Mr. Chairman, I would defer to the Coast Guard for details, but as I pointed out earlier-as I pointed out earlier, we are doing that; we are doing precisely that. Cuba is a unique situation, but during this same period of time I believe we have returned several hundred Dominicans to the Dominican Republic. Mr. MAZZOLI, I hesitate to ask the color. Mr. GELBARD. I have no idea what their color is. Mr. RANGEL. You can take judicial notice that they are of deep color. Mr. MAZZOLL Well, I take judicial notice of color-right. Mr. McNARY. Mr. Chairman, again, that is offensive. We do interdict other nationalities, and we would enter into any agreement with any other nation on an interdiction program. Mr. MAZZOLI. I know of no other agreement but this one, Mr. McNary. Mr. McNARY. Other countries won't enter into that agreement. Mr. MAZZOLI. Eventually these people may go back by whatever the law provides, but we have an interdiction agreement with one country. I mean we ought to have it with all countries, and then there would be no question about the colorblindness of this policy. Mr. McNARY. May I make one suggestion? If the interdiction program is reviewed and a suggestion is made to eliminate it, I would propose that it not be done immediately, or else-and you know, the Miami Herald talks in terms of "Stop Haitian interdiction," but they also say, "If some perish, and some surely will, they do so as free people making free choices." We are not willing to accept that. Mr. MAZZOLI. I understand. Mr. McNARY. There are a lot of people leaving who would wash up on the shores without the interdiction program right now. Mr. MAZZOLI. Let me make a couple of little notices. We of course have a vote and will have to suspend our action. I would like to ask, and I didn't have a chance to ask, about the embargo. Is that being looked at and questioned, as to whether or not it is valid now? It seems to be worsening the very condition that it seeks to alleviate. Is that under discussion? Mr. GELBARD. Well, the embargo is functioning, Mr. Chairman. We have not been in a process of reexamining it yet. Mr. MAZZOLL Thank you.

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113 Mr. GELBARD. One of the reasons for primarily not reexamining it is because this is a major instrument that we have in trying to restore the democratic government of Haiti. Mr. MAZZOLI. Well, thank you, gentlemen, very much. We realize that you have a job to do and you are doing it to the very best of your ability; and you are doing it with sensitivity, and we appreciate that. We just think there are maybe, in some ways, better ways to do it, and that is where we try to work together. But I want to thank all the panelists for joining us. We will then come back at 1:30 to take up our next panel. [Recess.] Mr. MAZZOLI. The subcommittee will come to order. We thank our panel for joining us, the panel composed of Arthur Helton, director of the Refugee Project, Lawyers Committee for Human Rights; Jocelyn McCalla, executive director, National Coalition for Haitian Refugees; Cheryl Little, supervising attorney, Haitian Refugee Center; Maria R. Dominguez, directing attorney, American Immigration Lawyers Association, Pro Bono Project; Lucas Guttentag, director of the Immigration and Aliens' Rights Project of the American Civil Liberties Union; and Dan Stein, executive director of FAIR. We welcome all of you. It is going to be a little bit of a bother as people come and go. That is the unfortunate reality of taking a break, but we have to vote. Let me urge all of you to stay within the 5 minutes. So, starting with Mr. Helton, if you could favor us with your comments, and I will say that all of the statements will be made a part of the record. STATEMENTS OF ARTHUR C. HELTON, DIRECTOR, REFUGEE PROJECT, LAWYERS COMMITTEE FOR HUMAN RIGHTS Mr. HELTON. Thank you, Chairman Mazzoli. What I will do is summarize and elaborate a bit on my written statement in view of what have been properly called fast-breaking developments in this situation. First of all, thank you, Mr. Chairman and members of the subcommittee, for inviting my testimony. I am the director of the Refugee Project of the Lawyers Committee for Human Rights, and I also teach immigration and refugee law at the New York University School of Law. My office is in daily contact with a group of human rights organizations in Haiti which have reported extrajudicial killings, arbitrary detentions, and torture, and I wish to respond preliminarily to the State Department's assertion that there is no history of any persecution of any boat people returning to Haiti. I want to first of all observe that in a facsimile transmission received by my office this morning from Port-au-Prince a group of Haitian human rights groups made several observations in respect of the Haitian Red Cross, which I know has been advanced as a source of protection of the returned boat people. The Red Cross has a new director. It was favored on November 8 with the killing in its offices of a young man by a soldier which was not reported, and it has on repeated occasions been called

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114 upon by the victims of repression in Haiti for intervention and has failed to come forward. There is a short statement I received this morning from the Haitian human rights groups that I would like to read. They were kind enough to send it in English. It follows: "Some 300 people left on cantors, which are the names given to any small boat used by the boat people, from beaches near PetitGoave. More than 50 of them are young people who have received direct threats from two notorious Macoutes. The risk run by these young people in the case of return is obvious." In another statement, at 11 o'clock on Friday, November 15, a group of military people in uniform and in civilian clothes intercepted a group of people trying to leave aboard a cantor. Some 40 young people from Cite Soleil, which is a slum in Port-au-Prince, are said to have been arrested. The military told them, "We know you are trying to leave on a cantor"-again, the name given to these small boats. The young people were severely beaten in front of witnesses, and up until now it has been impossible to have, in the view of these human rights groups in Haiti in their indigenous work, any confirmation or investigation of the situation. I think these two recent statements from the grassroots organizations in Haiti make three basic points. Haitian boat people are fleeing political repression; they may be persecuted upon return; and there is, frankly, despite the assurances given to you by the State Department, no reliable way to monitor them after return and assure that they will not be persecuted upon return. Beyond that, I would ask you to consider the fact that these reports are consistent with the series of reports we have received from human rights monitors in Haiti as well as the Office of the United Nations High Commissioner for Refugees, who recently had a representative in Haiti. Also, apart from discussing the evolving human rights tragedy in Haiti, I wish to suggest to you that this is not entirely a matter of grace and policy but that, indeed, there are legal constraints under which the executive branch must operate, most particularly the international law obligation not to return refugees to a place where they may face persecution. That is reflected in the accession by the United States to the 1967 protocol relating to the status of refugees, and that is the protection incorporated into the fundamental documents establishing the Haitian interdiction program which is the basis of the lawsuit that has been discussed here today. I am pleased to see that the executive branch witnesses have placed a humanitarian justification on the Haitian interdiction program, but I can tell you it was conceived of as a way to deprive Haitian boat people of access to asylum and refugee protection in the United States. I suppose the ultimate question is whether or not the United States will succeed in that endeavor, and that, I suppose, is now a question for the Federal court. As it stands now, the temporary restraining order that has been issued this week provides a brief respite. I suggest to you that the screening activities on board the cutters are critical at this juncture. The Immigration and Naturalization Service reports that improved measures are being used. I should also report that, in fact,

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115 those enhanced procedures were designed for boats of 50 or less. Those interview numbers have now been overwhelming, and, as it stands at this time, they are just brief high sea encounters. I would urge this committee to consider visiting and otherwise obtaining an agency briefing from the responsible individuals involved in the activity. Indeed, there is an INS recommendation made at the lowest levels, the interviewers, to halt interviewing in view of their assessment that it is not a reliable and fair way to go about the screening process. I believe you will want to request recommendation and be briefed on that point. Mr. MAZZOLI. I'm afraid the time has expired. Could you maybe finish up in 1 minute or so. Mr. HELTON. Let me conclude then. Mr. MAZZOLI. Thank you. Mr. HELTON. I think it is very fair to say that this particular exercise and the way we go about addressing this very difficult problem will say much about refugee protection in the future with respect to these individuals, with respect to the United States, and even generally internationally. The outrageous and brutal fact is that the United States is returning refugees to a place where they will face persecution. That is as wrong as it gets to be in terms of refugee law, and it must be ended. I would urge you and urge the executive branch in your conversations with President Bush later today to take the time provided by in this brief respite given to us by the action in the Federal court in south Florida to find a humane solution, one that is compatible with governmental interests and one that can be seen as providing temporary refuge and ultimately seeking a reliable and appropriate regional solution to this terrible humanitarian problem. Mr. MAZZOLI. Thank you, Mr. Helton. [The prepared statement of Mr. Helton follows:]

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116 PREPARED STATEMENT OF ARTHUR C. HELTON, DIRECTOR, REFUGEE PROJECT, LAWYERS COMMITTEE FOR HUMAN RIGHTS I. Introduction Thank you, Mr. Chairman and members of the Subcommittee, for inviting my testimony at this hearing on Cuban and Haitian immigration. Since 1982, I have directed the Refugee Project of the Lawyers Committee for Human Rights, with offices in New York City and Washington, D.C. In this position, I have worked for over a decade on issues concerning Haitians and Cubans seeking refuge in the United States. I also teach immigration and refugee law at the New York University School of Law. Based on this experience, I wish to offer observation on the current U.S. policy concerning Haitian asylum seekers. Specifically, in focusing on the ways that U.S. policies and practices have affected Haitians, I will discuss the current human rights situation in Haiti, the positions of the Organization of American States, United Nations, and U.S. government, and the immediate impact of the high seas interdiction program established pursuant to a 1981 agreement between the governments of Haiti and the United States. I will also discuss briefly detention and asylum processing. II. The Current Human Rights Situation in Haiti There are continuing reports of extra-judicial executions and other gross violations of human rights stemming from the military's violent coup d'etat on September 29, 1991, which

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117 deposed Jean-Bertrand Aristide as Haiti's first elected president in its 187-year history as an independent State. As early as September 30, men in army and police uniforms, along with men in civilian clothing, fired automatic weapons on unarmed civilians in the streets of Port-au-Prince. Army units in two major provincial cities, Cap-Haitien and Gonaives, have fired at unarmed civilians. More recently, the level of violence in Haiti has increased dramatically during and after the visit of the Organization of American States delegation to Haiti from November 10 to 13, 1991. We have received reliable reports of extrajudicial executions, torture, and arbitrary arrests. For example, approximately 200 students were arrested and taken to a police station on Tuesday, November 12, during a meeting to support the OAS embargo. Later that afternoon, neighbors heard terrifying screams coming from this police station. At 3:00 a.m. on November 14, Isaac Remillon, a United States Embassy security guard in Port-auPrince, was forced from his house by armed men. These men then executed Mr. Remillon and beat his wife. Violence and intimidation have reached such an intense level that many human rights monitors we work with have gone into hiding. The number of those killed by the Haitian armed forces -including the army, the police, and their civilian allies -remains impossible to verify. However, based on reports from 2

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118 people who visited the morgue and hospital in Port-au-Prince, as well as reports from other reliable sources, the figure must be in the hundreds. The primary reason the number is not known is because the Haitian armed forces have prohibited access by journalists, human rights monitors and medical personnel. Since the coup, supporters of President Aristide are at risk of being arbitrarily arrested, "disappeared," or extrajudicially executed or tortured. Such individuals include Manno Charlemagne, a popular singer, Antoine Izmery, Eddy Julien, Camille Cesar and Camille Bazile, all well-known Aristide supporters. Mr. Charlemagne was arrested on October 9, released on October 18, and immediately re-arrested by armed men in civilian clothing. He was released a few days later and is in hidig. Tragically, on October 28, 1991, we received word that Camille Cesar and Camille Bazile were apparently extrajudicially executed in Haiti. Their bullet-ridden bodies were discovered at the Port-au-Prince morgue. Another casualty of the coup was the mayor of Port-auPrince, Mr. Evans Paul. Mr. Paul was arrested and beaten by Haitian soldiers at the Port-au-Prince airport on October 7, 1991, when he was attempting to board a flight to Caracas, Venezuela, to meet with President Aristide. The army had previously assured Mr. Paul that his personal safety would be guaranteed. Nevertheless, the soldiers stripped Mr. Paul naked 3

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119 and beat him with helmets, guns and fists and burned him with a red-hot gun muzzle. Mayor Paul needs immediate medical care for the injuries to his back, head and eye; he also had several broken ribs and a serious burn. The military government has refused to grant Mr. Paul safe passage from Haiti, and he is currently in hiding in Port-au-Prince. The army's dominance of the police has been one of the fundamental causes of Haiti's atrocious human rights record. Arbitrary arrests, torture and mistreatment of detainees and extrajudicial executions characterize "police work" in Haiti. Haitian soldiers and police officers supplement their salaries by forcing people to pay bribes to avoid arrest or a beating or to be released from detention. The police routinely ignore orders of judges and prosecutors, and fail to enforce arrest warrants against their colleagues and allies. The rule of law in Haiti is absent. III. The Position of the Organization of American States The Organization of American States (OAS) held an ad hoc meeting of Ministers of Foreign Affairs on October 2, 1991, and, inter alia, resolved: 1. To reiterate the vigorous condemnation voiced by the Permanent Council of the grave events taking place in Haiti, which deny the right of its people to self-determination, and to demand full restoration of the rule of law and of constitutional order and the immediate reinstatement of President Jean-Bertrand Aristide in the exercise of his 4

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120 legitimate authority. 2. To request that the Secretary General of the organization, together with a group of Ministers of Foreign Affairs of member states, go to Haiti immediately to inform those who hold power illegally that the American states reject the disruption of constitutional order and to advise them of the decisions adopted by this meeting. 5. To recommend, with due respect for the policy of each member state on the recognition of states and governments, action to bring about the diplomatic isolation of those who hold power illegally in Haiti. 6. To recommend to all states that they suspend their economic, financial, and commercial ties with Haiti and any aid and technical cooperation, except that provided for strictly humanitarian purposes. * 9. To urge all states to provide no military, police, or security assistance of any kind and to prevent the delivery of arms, munitions, or equipment to that country in any manner, public or private. On October 4, the Inter-American Commission on Human Rights requested the United States, "to suspend its policy of interdiction of Haitian nationals, who are attempted to seek asylum in the United States and are being sent back to Haiti, because of danger to their lives, until the situation in Haiti has been normalized." The request was made "for humanitarian reasons," and pursuant to the resolution of the ad hoc meeting of OAS foreign ministers. IV. The U.S. Government Position The U.S. government position on the situation in Haiti was 5

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121 articulated by Bernard Aronson, Assistant Secretary of -State for Inter-American Affairs, before the House of Representatives Subcommittee on Western Hemisphere Affairs, on October 31, 1991. He stated: When President Aristide was forced to leave Haiti on September 30, the OAS mobilized in record time to defend his government. So too, did the U.S. On October 2, President Bush suspended all direct assistance to Haiti. On October 3, the Administration blocked the export of all arms and ammunition to the Haitian police and military. On October 4, President Bush signed an Executive Order freezing the assets of the Haitian government and prohibiting any American citizens or companies from financial transfers to the illegal authorities. V. The United Nations Position On October 10, 1991, the Office of the United Nations High Commissioner for Refugees (UNHCR) requested the United States to respect the international principle of law of prohibiting the return of refugees to face persecution. Subsequently, on November 10, UNHCR requested specifically that the United States "allow all of the individuals now on board .[U.S. Coast Guard] vessels to be disembarked in the United States and admitted for determination of their refugee status." On November 11, the High Commissioner for Refugees wrote to Secretary of State James Baker urging tolerance toward the boat people and emphasizing that "the principle against forcible return must be applied universally and consistently." 6

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122 VI. The Haitian Interdiction Program The U.S.-Haitian interdiction program was established in September of 1981 by the Reagan Administration in an effort to stem the movement of undocumented Haitians by boat to the United States. Under this program, U.S. Coast Guard vessels are authorized to stop and board Haitian and unflagged vessels on the high seas, determine if their passengers are undocumented aliens bound for the United States, and if so return them to their country of origin -in this instance, Haiti. According to the Immigration and Naturalization Service, since the inception of the interdiction program until last September, 433 boats have been intercepted and 23,551 Haitians returned to Haiti. According to the bilateral agreement, INS interviewers and interpreters examine the intercepted Haitians on a designated Coast Guard cutter. If a person is found to have a reasonable fear of returning to Haiti, that person is to be taken to the United States to apply for asylum in accordance with the Immigration and Nationality Act. As the agreement states: "It is understood that under these arrangements the U.S. government does not intend to return to Haiti any Haitian migrants whom the U.S. authorities determine to qualify for refugee status." Yet of the over 23,000 Haitians who have been intercepted since the beginning of the program until last September, only 28 7

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123 individuals have been taken to the United States to apply for asylum, and only-eight prior to the implementation of enhanced interviewing procedures in January of 1991. This was during a period when Haiti had several governments with records of serious human rights abuses, including the government of Jean-Claude "Baby Doc" Duvalier. The INS inquiry simply does not work in practice to determine whether there is a claim to refugee status. The continued operation of the Haitian interdiction program will thus inevitably result in the return of refugees who have a wellfounded fear of persecution in Haiti. Haitian refugees are simply not likely to reveal their claims in the brief high seas encounters with officials provided under the interdiction program. Given a proper forum, however, it is quite likely that many of the Haitians who are returned to Haiti, characterized by U.S. authorities as "economic migrants," would state a compelling claim for political asylum. The basic command of international law is not to return a refugee to a place where he or she may be persecuted. In 1968, the U.S. became a party to the 1967 United Nations Protocol relating to the Status of Refugees. 19 U.S.T. 6223. The Protocol incorporates the pertinent provisions of the 1951 United Nations Convention relating to the Status if Refugees, and defines a "refugee" in article lA as any person who: 8

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124 owing to a well-founded fear of being persecuted for reason of race, religion, nationality, member of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country. Article 33(1) of the Convention (and Protocol) sets forth the principle of non-refoulement: No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers or territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Upon accession to the Protocol, the U.S. automatically became bound to respect the principle of non-refoulement. By implication, the procedures to determine whether individuals warrant protection from return must be fair and reliable. The procedures utilized in the interdiction program are simply not capable of identifying the refugee claims of Haitian asylum seekers. Their summary return to Haiti thus violates the non-refoulement provision of international refugee law. VII. Recent Interdiction Experience Since October 29, over 1,500 Haitian boat people have been intercepted by U.S. Coast Guard vessels. They have been encamped on those vessels and in a U.S. military base in Cuba until the 9

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125 U.S. government decides their fate. The interceptions are the first since the ouster of President Jean-Bertrand Aristide. The policy conundrum presented is whether those Haitians determined not to warrant consideration for asylum should be returned to Haiti. Immigration and Naturalization Service interviewers identified 14 of the first 19 as likely having plausible asylum claims in the United States. Others are being interviewed by INS officials under difficult conditions that include overcrowding, sickness and fatigue. Concerned about conditions on the vessel, the Coast Guard is pressing strongly for an immediate resolution of the issue. The State Department has held the Haitian boat people in a diplomatic limbo in an effort to lend a sense of urgency to its ongoing search for a regional arrangement. Some U.S. officials are arguing for return of those screened as not having "refugee characteristics" in order to deter an outflow. Diplomats are concerned that the return of those screened out would be incompatible with the sanctions imposed by the Organization of American States and supported by the United States. The State Department is searching for other Caribbean and South American countries to accept the intercepted Haitians. But the countries in the region are skeptical that there is a 10 51-225 0 -92 -5

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126 real emergency which requires the dispersal of the boat people. VIII. The Detention Policy In 1981, the INS began systematically to detain Haitians entering the U.S. pending a hearing and status determination. This marked a departure from the established policy of detaining only those aliens who were determined likely abscond or to pose a threat to public safety or national security. Haitians were detained regardless of whether they were deemed likely to abscond or to pose a public threat. In 1982, a federal district court ruled that the INS had violated the requirement of the Administrative Procedure Act by instituting the new detention rule without a formal announcement, thereby precluding public discussion of the policy change by concerned parties. In response to this ruling, the INS published an interim rule in the July 1982 Federal Register formalizing the toughened detention policy which remains in effect to this day. The detention policy causes extreme hardship to innocent asylum seekers. Detention is prolonged, frequently for more than a year, detainees have limited access to outside communication, and the remote locations of many facilities make access to attorneys impracticable. Ironically, the INS detention policy actually serves to punish those "oppressed of other nations" whom 11

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127 Congress sought to welcome under the Refugee Act of 1980, which codified a right-to apply for asylum. On April 27, 1991, INS Commissioner Gene McNary issued a memorandum establishing an 18-month pilot release program in four locations -New York, Miami, Los Angeles and San Francisco -and involving 200 arriving aliens in detention. In terms of release criteria, in order to be eligible, an alien must first have sought "parole into the United States on or after May 1, 1990." Second, the true identity of the alien must have been "determined with a reasonable .degree of certainty." Third, the district director must determine "that the allegations in the alien's asylum application, if proven true, would provide a reasonable basis for finding that the alien is eligible for refugee status." Fourth, the parole applicant must not have been subject to the bars of asylum nor otherwise present a threat to public safety. Furthermore, all eligible aliens were required to be represented by an attorney or accredited representative. Eligible aliens also had to have a place to live with a specific address at which they could be reached. They needed either an offer of employment or another suitable means of financial support. Individuals were required to post a bond in the amount of $500 to $2,500. Finally, aliens had to agree to report to the local INS office on a monthly basis. The demonstration period has now ended and the results show 12

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128 that detained refugees can be freed from incarceration while they pursue their claims for asylum without compromising legitimate government interests. Of the individuals released by INS in cooperation with local community and legal assistance groups, 93% reported as required to the INS and 95% appeared as required in the immigration court. Significantly, of those asylum seekers released in New York, 15 travelled onward to other countries, including Canada. Eleven were granted asylum, three were granted Temporary Protected Status, and only one did not appear for removal. An expansion of the release authority is warranted. IX. Asylum Practice Haitian asylum claimants have not been treated generously by U.S. authorities. The following table reflects the experience of Haitians who applied for asylum with the Immigration and Naturalization Service. INS Haitian Asylum Cases decided granted 1991 97 1 1990 370 2 1989 85 3 1988 19 6 1987 69 0 1986 516 2 1985 674 4 1984 375 23 1983 96 1 1982 33 3 1981 49 5 1980 17 2 Total: 2400 52 13

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129 On July 27, 1990, final asylum rules implementing the Refugee Act of 180 were published in the Federal Register. The final rules took effect in a preliminary phase on October 1, 1990. They became fully effective and the new system was unveiled in a second and final phase on April 2, 1991. In essence, the new asylum system is designed to enhance the adjudication of claims in the instance when individuals in ne United States affirmatively present requests for refugee protection to the Immigration and Naturalization Service (INS). Under the new regulatory regime, a corps of 82 "Asylum Officers" have been recruited to positions at a higher classification than was previously the case. Those officers have been located in seven offices around the country, and they are supervised by the INS Headquarters in Washington, D.C. Additionally, the Asylum officers received specialized training in March of 1991, and will in principle be supported by a documentation and resource center that will be established to collect and disseminate information about conditions in the countries of origin of refugees. Preliminary progress has been made in achieving the objectives of the new system. Upwards of 40 percent of the new asylum corps were recruited from outside of INS, including several lawyers. The Asylum Officers' training program includes materials and instruction more professional in character than had been the case in past INS exercises. In July of 1991, a director 14

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130 was hired for the INS Resource Information Center, which has just received staff and is beginning operations. Many commentators are hopeful that the new INS asylum system will ensure that adjudicators are better insulated from foreign policy considerations, since Asylum Officers should be in a position to assess conditions in countries of origin apart from State Department advisory opinions and reports. It is hoped as well that asylum adjudicators will be better insulated from immigration enforcement priorities, since they report to a central authority in Washington and not to local immigration officials. Whether these objectives will be realized, of course, depends upon the provision of adequate resources and effective implementation. X. A Note on Differential Treatment The problem is not that U.S. policy toward Cubans is too generous, but rather that Haitians have been victims of biased adjudications and harsh detention and high seas interdiction programs. If Haitians had been dealt with fairly, then their disparate treatment would contrast less conspicuously. Our immigration law and refugee policies are rife with nationality-specific provisions, including special benefits for Soviet and Indochinese refugee applicants, Tibetan, Hong Kong and 15

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131 Irish immigrants, as well as Salvadorans, Liberians, Lebanese, Kuwaitis and Somalis seeking safe haven. Such differential treatment is ordinarily attributed to variances in access to the political process and evolving notions of the public interest and humanitarian need. Indeed, the Refugee Act of 1980 provides a planning process that permits U.S. authorities a considerable degree of flexibility in choosing from among the 17 million refugees around the world to admit a fair share into the United States. The essential goal is to achieve refugee and immigration mechanisms that meet minimum standards of fairness with the capacity to be generous in specific circumstances. Basic fairness and selective generosity are not mutually exclusive. XI. Recommendations Concerning Haitians 1. Haitians should not be forcibly returned to Haiti during the period of uncertainty and instability following President Aristide's ouster, and particularly until the situation there is made safe through the efforts of the Organization of American States or otherwise. 2. This non-return arrangement must include Haitians who have been intercepted by U.S. Coast Guard vessels under the terms of the 1981 interdiction agreement between the United States and 16

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132 Haiti. These Haitians should be transported forthwith to the United States for temporary refuge. 3. More generally, as the procedures employed are incompatible with both national and international standards, the Haitian interdiction program should be suspended immediately while adequate procedural safeguards are implemented. If the program cannot be made fair in terms of access to refugee protection, then it should be discontinued. 4. Specifically, during this emergency period, interdicted Haitians should be immediately transported to the United States and released from detention, unless they pose a risk of absconding that could not be overcome by fixing reasonable release conditions or unless they pose a danger to national security. 5. Haitians who wish to apply for asylum should have their claims assessed with the understanding that information about conditions in Haiti is currently somewhat fragmentary. They should be given the benefit of the doubt in terms of establishing a well-founded fear of persecution. In that regard, U. S. authorities should apply the Code of Federal Regulations provision that relieves an asylum applicant from having to show that he or she would be singled out for persecution if a pattern or practice of such harm can be established. 17

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133 6. Upon the contingency of a massive outflow of Haitian asylum seekers, particularly to the Dominican Republic, or by boat to the Bahamas or the United States, consideration should be given to a regional plan to share the burden. Such an approach should include the United States accepting into its territory its fair share of Haitians, and providing financial assistance to ensure the care and protection of those outside of its territories. 7. Eligible Haitian nationals currently in the United States, estimated by the Immigration and Naturalization Service to be about 75,000, should be designated for Temporary Protected Status under Section 302 of the Immigration Act of 19'0 so that they are able to subsist and remain in dignity until the political situation in Haiti is resolved. The Attorney General has authority under this provision to grant such status in circumstances where "there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety. 18

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134 Mr. MAZZOLL Mr. McCalla. STATEMENT OF JOCELYN McCALLA, EXECUTIVE DIRECTOR, NATIONAL COALITION FOR HAITIAN REFUGEES Mr. MCCALLA. Thank you, Mr. Chairman, for giving me the opportunity to speak before this committee. Let me say what the members of the National Coalition for Haitian Refugees think about the current U.S. policy vis-a-vis the Haitian refugees who are now stranded on Coast Guard cutters. We are simply outraged-and I am not using that term very lightlyvery outraged by the response of the administration to the plight of the Haitian boat people. That exodus has been caused primarily by the widespread repression unleashed by the Haitian military since the violent overthrow of the democratically elected government of President Aristide. In the last month and a half, as the numbers indicate, there have been more people trying to flee Haiti than in the past 7 months of the Aristide government. Those figures clearly tell us that there is some extraordinary circumstance prevailing in Haiti. In fact, the State Department has already said that there were extraordinary circumstances, and President Bush issued an Executive order freezing the assets of the Haitian Government, imposing trade sanctions on Haiti. Those restrictions are going to begin to have their full effect next month, December 5. That order says that the United States would have no normal trade or diplomatic relations with Haiti until a constitutional democracy is restored there. The State Department, in light of the violence in Haiti, has been urging American citizens living in Haiti to leave as soon as possible because of the potential danger to their lives. That danger was dramatically demonstrated when 17 American medical missionaries stranded in rural areas, where military violence has been as severe as the violence reported in Haiti's capital, took inspiration from the Haitian boat people and fled in a hurry on three vessels on October 9. The danger to Haitians is, of course, more real and severe, as the U.S. Embassy in Haiti itself acknowledged, citing-"credible reports of indiscriminate killings, police harassment, illegal searches, and looting of private homes and of radio stations, arrests without warrants, and detention of persons without charges, and mistreatment of persons in the custody of Haiti's de facto authorities." Nevertheless, the administration claims that it is safer for Haitians to stay in Haiti and face the guns of their tormenters rather than attempt to save their own lives. The statement released on Monday says, "We do not believe that those individuals returned to Haiti will be subject to persecution there." The administration has not given any proof that people are not going to face persecution if returned. The message is clear, and it is very cynical. The lives of black Haitian refugees are totally expendable. Mr. Chairman, I witnessed last year the elections in Haiti, and I was privileged and proud to be there. Coming out of those elections and after reflecting on them, I began to dream of the day when Haitians would no longer be the pariahs of the Caribbean forever seeking a safe haven in lands where they were not welcome.

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135 I think that the solution to the Haitian refugee crisis lies primarily in Haiti, and if Haitians can build a stable democracy, can build the structures, and are allowed to have the structures that they wish to have in Haiti, without interference from military power, that those Haitians will certainly agree with you and with me that the best place for them to be is in Haiti and not on the high seas, and I think that was the message that we got through these elections. That message has now been thrown out the window by the Haitian military, and in the context of the last month and a half of widespread repression in the countryside, in Port-au-Prince. We know; we have been in contact with members of the Aristide government; we have been in contact with members of parliament; we have also been in contact with members of grassroots and human rights organizations in Haiti, which indicate to us that the terror has been widespread and massive. It has not only taken place in the capital city of Port-au-Prince, which is the lifeline of the country, but it has also taken place in the most remote rural areas in Haiti. I would like to cite, for example, the event that took place in Hinche in the central plateau region of Haiti, where leaders of grassroots organizations, especially the Papayes Peasant Movement, which represent nearly 60,000 farmers, have fled for their lives after a series of raids on their offices and the arrest of one of its leaders, Aldajuste Pierre. During those raids, the troops destroyed printing presses, communal kitchens, meeting and housing facilities, broke into private homes, and plundered them of their contents. This is the kind of thing that church facilities, the facilities manned by foreign, nongovernment organizations, this is the kind of thing that they have experienced in Haiti since the coup. I would like to sum up, Mr. Chairman, by saying that in light of the foregoing-I mean we have heard testimony on what Haiti has been like since the coup. In light of the current conditions in Haiti, we are asking the panel the following: Would the United States have closed its doors to Soviet citizens fleeing dictatorship in the event that the coup led by the hard-line Communists had succeeded? Doesn't the United States strongly object to the forced repatriation of Vietnamese boat people to a country that it considers ruled by dictators? Didn t the United States extend temporary protected status to the Kuwaitis when their homeland was in crisis? Didn't President Bush find-"that the grave events in the republic of Haiti that are continuing to disrupt the legitimate exercise of power by the democratically elected government of that country continue to constitute a unusual and extraordinary threat to the national security, foreign policy, and economy of the United States?" The terrible events in Haiti since September 30 constitute, in our opinion, an extraordinary threat to the lives of the refugees forced back to Haiti. Congressman Rangel introduced a resolution-I will sum up very quickly-House Congressional Resolution 220, which contains ex-

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136 tremely modest provisions. We are not asking for the world; we are not asking to let everybody who wants to come to this country, to take up residence in this country, to be allowed in. What that resolution contains is simply suspension of the interdiction agreement and the refoulement process in favor of the search-and-rescue mission, suspension of deportation, and the granting of temporary protected status. These are things that the administration can do right now, sir, and we urge a swift adoption of this resolution. Mr. MAZZOLI. Thank you, Mr. McCalla. [The prepared statement of Mr. McCalla follows:] oDA= or oIrntOas Executive CoM t"te MvttNar Sbti DleSdeHht JohD WidPhD. Jath Ob'hn4Jt.D. ,. Golloin Stro. Plum *.9* Ro*U*** 0-T'" ** na )va pnaek A.k.". ~~t~ The Rnv. Anltaim Adt$m The Ho. ThIrte O,d om WoflChoJ~f kyPTn WnAnt0d Cfl -o .MMt Rabul CWuV.dI Wahld. lkon AH JoMthn 1DeS enkd Fran HaldmCede(Coem PCMlInwflfd&.Cb M.JdewkC.W4ot Cc.aha bdahen 4( daose a Namr Hu A. 7. A A9 PhInhwilHM ud.M. Astu. e Adoed Prflu n. a,., AfS ~ Wel Mn sw flu SWH ey.tn .n.at re .V'm L b CMrN JebA A. g*U h Wa!c.r^""La f Ith Rt. Rev. Pat Moore, fr. Lu@***Oki <<>**** Meaobedo i'et.v MSW d.US At4 W.s Ala stp P. k d D. A=MMbts show~ ~qq. C.dsel. Amy d Lahl A'q Ar wnArt Aa Sts.m R. C. National Coalition For HOlTiON REFUGEES Statement of Jocelyn McCalla Executive Director National Coalition for Haitian Refugees House Judiciary Committee Subcommittee on International Law, Immigration and Refugees November 20, 1991 Haitian Refugees Deserve Justice Introduction I would like to begin by thanking the Chair, Congressman Mazzoli, and his distinguished colleagues, for giving me the opportunity to testify at this hearing which is being held at a critical juncture in the saga of the Haitian refugees. My name is Jocelyn McCalla. I am the executive director of the National Coalition for Haitian Refugees, an organization which includes among its members representatives of the major voluntary agencies, civil rights organizations, human rights groups, refugee advocates and Haitian community associations. A total of 47 organizations came together in 1982 to deal with the Haitian refugee crisis. Then, as now, hundreds of Haitians had become the boat people of the Caribbean, fleeing from an oppressive dictatorship. Then as now, the United States government, convinced that because they were poor and black, they could not be but migrants seeking less wretched economic status, intercepted them on the high seas so they would be swiftly returned to the land from which they came. Then, as now, many who miraculously broke through the Coast Guard net and landed safely on the Florida shores, were placed in detention, awaiting an everelusive grant of asylum. During these years, I visited Haiti many times to investigate human rights and to interview scores of Haitians returned to Haiti as a result of the Interdiction program, 16 .East 42nd Street, 3rd Floor O New York, NY 10017 0 (212) 867-0020 0 FAX (212) 867.1668 Jocelyn )4CQSl tn.t.e Dhiecelr Ane Fuller A,.d~t Wnectf

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137 otherwise officially known as the Alien Migrant Interdiction Operation. On behalf of many Haitian asylum applicants, I have testified in person and provided written affidavits as an expert on human rights conditions in Haiti. I have also testified in the past before this committee. The results of my investigations on human rights in Haiti, often conducted jointly with Americas Watch and the Caribbean Human Rights Network, can be found in several publications. Our latest report, published just last month, describes human rights conditions in the seven months of the government of President Jean-Bertrand Aristide. To dispel any possible misunderstandings about our position as advocates for impoverished Haitian refugees, let me begin by saying what we do, and what we do not stand for: 1. We are not advocating that the United States opens its doors to anyone who wishes to take up residence in this country. 2. We would be elated to see Haitians, remaining and living in their homeland, actively building the democratic and economic structures needed for social progress in an atmosphere of peace and political stability. 3. We stand for a fair refugee and asylum process, fair to anyone regardless of their skin color, religion, political affiliation, and nationality. We are, however, simply outraged by the response of the Administration to the latest wave of Haitian boat people, an exodus caused primarily by the widespread repression unleashed by the Haitian military since their violent overthrow of the democratically-elected government of President Jean-Bertrand Aristide. Reneging on its official commitment to have no "normal trade or diplomatic relations with Haiti until constitutional democracy is restored there,; the US decided on November 18 to repatriate 1,200 Haitians to their homeland. Two hundred and twenty-two (222) were swiftly taken that day to Port-au-Prince. At least 325 were returned yesterday. By acting unilaterally, the US has taken the lead in lending legitimacy to a ruthless regime which has earned the dubious distinction of being unanimously condemned by the international community. The State Department has been urging American citizens living in Haiti to leave as soon as possible because of the potential danger to their lives. That danger was dramatically demonstrated when seventeen American medical missionaries, stranded In rural areas where military violence has been as equally severe as the violence reported in Haiti's capital, Port-au-Prince, took inspiration from the Haitian boat people and fled in a hurry on three vessels on October 9. The danger to Haitians is of course more real and severe, as the US embassy in Haiti itself acknowledged, citing "credible reports of indiscriminate killings, police harassment, illegal searches and 2

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138 looting of private homes and of radio stations, arrests without warrants, and detention of persons without charges and mistreatment of persons in the custody of Haiti's de facto authorities."' Nevertheless the Administration claims that it is safer for Haitians to stay in Haiti and face the guns of their tormentors rather than attempt to save their own lives. "We do not believe that those individuals returned to Haiti will be subject to persecution there," said the November 18th State Department's statement, offering no basis for its conclusion. The message is clear, and it is appalingly cynical: the lives of Black Haitian refugees are expandable. In the last month, more Haitians have attempted to flee Haiti than in the seven months of the Aristide government. These desperate voyages were not undertaken because Haitians believed that the US would welcome them with open arms. They are the result of this widespread violence that has rocked their country since the coup. Background to the Current Haitian refugee crisis Last December, we witnessed a milestone in Haitian history. For the first time in their lives, Haitians went massively to the polls to elect a President, a legislature, municipal and local officials through a process that international observers (the United Nations, the Organization of American States, governmental delegations and independent human rights groups) declared fair, free and honest I was among those who had the privilege of witnessing this historic moment Allow me to tell you what impressed me the most. It was not the enthusiastic mobilization of the youth of Haiti who volunteered to run the polling stations in spite of the fear that the Haitian army might, disregard its promises and attack voters, as it did on that fateful day of November 29, 1987 when at least 34 voters were gunned down in cold blood while they waited to vote. It was not the impressive mobilization of the international community which through its many representatives fanned out throughout the country to monitor the process. It was not the principled campaigning of the eleven candidates for the presidency. What I have taken from Haiti which I shall always carry close to heart is the memory of a dozen poor and elderly voters, some disabled, some ailing, almost all illiterate, who had never before voted, but insisted on doing so this time gainst all odds. They stood patiently in line, leaned on their canes, or sat in their wheelchairs, until their turn came to vote for the Haiti which they hoped would be built on the Statement of the Embassy of the United States of America on Human Rights Violations, October 28, 1991. 3

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139 strength of their ballots. Then I was led to dream of the day when Haitians would no longer be the pariahs of the Caribbean, forever seeking a safe haven in lands where they were not welcome. Those hopes came crashing with a loud bang on September 30th when the Haitian military, defying the popular will, deposed President Aristide. Although the army succeeded in sending President Aristide into exile the same day, they had far more difficulty in quelling the spontaneous protests and demonstrations that broke out throughout the country. That chapter is still being written. As soon as news of the coup that was in progress began to filter to the most remote parts of the country, Haitians in vast numbers went out into the streets and pathways of their villages, setting up barricades and roadblocks, and spontaneously demonstrating in favor of their beloved president. The army's response was the most ruthless of any in the past five years. In Port-au-Prince, scores of Haitians were shot to death in cold blood by troops who then forced radio stations off the air at gunpoint. We estimate that at least 300 Haitians were killed in the early days of the coup. Doctors at the city's public hospital reported at least 200 deaths in the first week. Many of those killed and unaccounted for were taken to common gravesites. Two weeks of heavy nighttime shootings in the nation's capital provoked a massive exodus of its poorest citizens, as many as 100,000 according to reliable reports. Intense shooting in the first week of the coup was reported daily in all of Haiti's urban centers, including Cap-Haitien, GonaYves, Jacmel, J~r~mie, Port-de-Paix, PetitGoave. The residents of these cities and towns continue to report large scale arrests of pro-Aristide protestors. Church facilities and the offices of non-governmental organizations have been the prey of troops who have raided and robbed them of their valuable equipment and cash. Leaders of grassroots organizations such as the Papayes Peasant Movement, which represents nearly 60,000 farmers, have fled for their lives after a series of raids on their offices and the arrest of one of its leaders, Aldajuste Pierre. During those raids, the troops destroyed printing presses, communal kitchens, meeting and housing facilities, broke into private homes and plundered them of their contents. During last week, the office of the mayor of Port-au-Prince were raided twice by soldiers who claimed It was a center of subversion. At least two mayoral aides are now seeking asylum abroad. The Mayor himself, Evans Paul, has been forced to remain in hiding since October 7th, when he was seized by troops at the Port-auPrince airport while waiting to board a flight to negotiate with President Aristide the conditions of his return to Haiti. Mr. Paul who had been the victim of torture once before, in 1989, was severely beaten during the hours of captivity. This took place after the Army chief, General Raoul C4dras, publicly gave his personal guarantee that Paul had absolutely nothing to fear. 4

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140 In light of the foregoing, we ask the panel to consider the following: Would the United States have dosed its doors to Soviet citizens fleeing dictatorship in the event that the coup led by the hard-line communists had succeeded? Doesn't the United States strongly object to the forced repatriation of Vietnamese boat people to a country that it considers ruled by dictators? Didn't the United States extend Temporary Protected Status to the Kuwaitis when their homeland was in crisis? Didn't President Bush find that "the grave events in the Republic of Haiti that are continuing to disrupt the legitimate exercise of power by the democratically elected government of that country continue to constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States?" Don't the terrible events in Haiti since September 30 constitute an extraordinary threat to the lives of refugees forced back to Haiti? House Congressional Resolution 220, a concurrent measure introduced by NY Congressman Charles Rangel, has already been endorsed by 22 other colleagues. Its Senate version, sponsored by Senator Connie Mack, is continuing to attract support. In its extremely modest provisions-suspension of the interdiction and refoulement process in favor of a search and rescue mission, suspension of deportation and the granting of Temporary Protected Status-this bipartisan measure is the only humane response in the current circumstances. We commend Congressman Rangel and Senator Mack for their foresight and the kind of leadership that we can all be proud of. Clearly, in light of the Administration's refusal to implement a humanitarian safe haven policy for the Haitian boat people, pending a successful return to democratic order in Haiti, active congressional leadership is called for. We urge the leadership of the House to move this resolution swiftly forward. 5

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141 Mr. MAZZOLI. Ms. Little. STATEMENT OF CHERYL A.E. LITTLE, SUPERVISING ATTORNEY, ON BEHALF OF HAITIAN REFUGEE CENTER, INC. Ms. LITTLE. Good afternoon. I would like to outline in fairly basic terms the double standard that exists between this Government's treatment of Cuban and Haitian refugees. The Cuban who is encountered by the Coast Guard is immediately brought to the United States, and, generally, after a period of 2 days to 2 weeks confinement at the Krome Detention Center in Miami, is paroled into the community. Unless a Cuban commits a crime, rarely is he or she detained for any length of time. One year after their date of parole into the United States, the Cubans are entitled to become lawful permanent residents under the Cuban Adjustment Act of 1966. During the 1-year waiting period, the Cubans almost always are granted work permits by the Immigration and Naturalization Service. Haitian boat persons intercepted by the Coast Guard, on the other hand, typically will be taken aboard the Coast Guard vessel and their boat sunk as a navigational hazard. The Coast Guard vessel will then immediately start sailing to Port-au-Prince for the purpose of returning the Haitians. Those lucky enough to be identified as potential refugees often end up in Krome, where they will generally remain for the many months it will take to adjudicate their asylum claims. From the interdiction program's inception in the fall of 1981 until January of this year, virtually all of the interdicted Haitians were immediately returned to their homeland. In January 1991, the INS finally agreed to make a greater effort to identify Haitian boat persons fleeing political persecution. Interviews are now supposed to last 20 minutes instead of 5. Even with the best of intentions, however, and even with more time allotted for interviews, almost any interviews conducted on the high seas while the vessel is headed back to Haiti are destined to fail to identify legitimate asylum-seekers. These interviews are conducted out of sight of public scrutiny and out of reach of legal assistance to which asylum-seekers are statutorily entitled, and there are no appeals of the INS's decisions as to who may be a political refugee. Underlining the discriminatory treatment of Haitians is the presumption that all Haitians are economic immigrants. There is no denying that Haiti is the poorest country in the western hemisphere; there is also no denying that almost every Haitian who comes to the United States by definition is going to be exposed to a better standard of life. But that, in and of itself, does not mean that Haitians are not politically persecuted in Haiti and therefore entitled to seek and receive asylum in the United States. Unfortunately, the interdiction program is but one manifestation of a series of measures directed specifically against Haitians by U.S. authorities that have denied Haitians a fair and equal opportunity to secure refugee protection. Haitians are detained in larger numbers and for longer periods of time than any other refugee

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142 group. Our organization has represented Haitians who have been detained at Krome for over 3 years. The average length of detention of our clients at Krome today is 6 to 9 months, and they will remain there much longer if nothing changes. While the INS, as it should, works closely with Cuban American organizations to expedite the Cubans' release from detention and has often initiated this contact, organizations such as ours which affirmatively approach the INS and offer to provide the necessary social and legal services to the Haitians are frequently ignored. Even when INS Commissioner Gene McNary implemented a more liberal parole policy in May 1990, the Haitians failed to benefit. "Nearly 1 month into the program, no Haitians had been approved for parole in Miami even though the Haitians constituted nearly two-thirds of those detained in the district," reads a section of the report written by the Lawyers Committee for Human Rights in New York evaluating the project. The prolonged detention of Haitians ultimately denies many their day in court. The vast majority facing deportation have no legal representation whatsoever. Very few have even a basic knowledge of the right to apply for asylum. Most seem fatalistic and passive. Barriers to communications with legal representatives abound, and, frankly, many of these are consciously imposed by the INS. Haitians in detention also face the prospect of being transferred to facilities in remote areas of the country where it is virtually impossible for them to get legal help. They are transferred in chains and shackles and often housed in parish jails along with those convicted of crimes. Typically, less than 2 percent of Haitians are awarded asylum on an annual basis even during times of enormous political upheaval in Haiti. In 1989, almost 10 times more Cubans were granted asylum than Haitians. Certainly we acknowledge that many Cubans are political refugees, but some of the Cubans who come here have stated they are economic immigrants yet are treated as if they are political refugees. By the same token, several of our clients denied asylum were jailed in Haiti on account of their political opinions, jailed in Krome upon arrival in the United States, and then jailed again or otherwise persecuted upon return to Haiti. If anyone has any doubts about the different treatment the Haitians receive, a close look at the way those who have fled Haiti since the coup are being treated must surely erase those doubts. It is rather ironic and somewhat disingenuous for the State Department now to be suggesting that its motivation in deterring Haitians from leaving their country is the Haitians' safety, that they do not want Haitians risking their lives at sea. Incountry refugee rescue mechanisms exist in numerous countries, including Cuba, but never in Haiti. The Haitians therefore, for years, have been forced to risk their lives on the high seas, seeing no alternative, hoping to make it to shore so they can file for asylum. Further, the argument that we do not want Haitians to risk their lives by taking to the high seas has never been made with reference to the Cubans, who are coming here on rafters today, and, I might add, there are numerous reports of Cuban deaths while on the high seas as well. Indeed, the number of Cuban

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143 rafter cases by this past summer had exceeded the 1990 total. Haitians attempting to flee their country today are making a knowledgeable choice, trading one kind of danger for another. The U.S. immigration laws also provide annual ceilings for refugee admissions. While there are 3,000 such slots for those in Latin America and the Caribbean, in practice it is almost always the Cubans who can be expected to benefit, and, yes, I am going to summarize. Mr. MAZZOLI. Thank you very much. I'm sorry. I know it is very difficult to summarize years of problems in such a short time. Ms. LITTLE. I understand. In 1981, a U.S. district court judge accused the INS of playing a human shell game with Haitians being transferred to different detention facilities in the United States and Puerto Rico. Today we are again observing a human shell game being played, this time with Haitians on board several different Coast Guard cutters and at the U.S. naval base in Guantanamo, and while Haitians are now detained in Guantanamo, Cubans who arrive there are immediately brought to the United States and paroled into the community. In fact, several Cubans in the past month have managed to make it within the parameter of the U.S. naval base there and been flown to our country for processing. Over the years, several Federal courtMr. MAZZOLL I hate to interrupt you. Ms. LITTLE. This is my last statement. Mr. MAZZOLI. OK. Thank you. Ms. LITTLE. Over the years, several Federal court judges in Miami have expressed outrage over the consistent bias demonstrated by our Government against the Haitians, and Bruce Morrison, when Chair of this Immigration Subcommittee, stated-and I'm quoting him now-"Haitians get the short end of the stick every time." Little has changed over the years. We urge you to urge the administration to grant temporary protected status to the Haitians and to suspend deportation and interdiction at this time. Thank you. Mr. MAZZOLI. Thank you, Ms. Little. Thank you very much. [The prepared statement of Ms. Little follows:]

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144 PREPARED STATEMENT OF CHERYL A.E. LITTLE, SUPERVISING ATTORNEY, ON BEHALF OF HAITIAN REFUGEE CENTER, INC. Good morning. My name is Cheryl Little. I ar the supervising attorney at the Haitian Refugee Center, Inc., in Miami, Florida. HRC is a non-profit organization which provides free legal representation to Haitians in South Florida. I'd like to begin by outlining in fairly basic terms the double standard that exists between this government's treatment of Cuban and Haitian refugees, a double standard that is more apparent than ever right now, as the State Department and attempts to have the Coast Guard return almost 2000 interdiated Haitians to Haiti, with plans to bring only about 50 of them to U.S. shores. Both Cubans and Haitians are driven to leave their countries in small boats and rafts. The Coast Guard picks up the majority of these boat people and removes them from their mall vessels. But that's where the similarity ends. A Cuban who is encountered by the Coast Guard is immediately brought to the United States, and generally after a period of 2 days to 2 weeks confinement at the Krome North Service Processing Center in Miami, is paroled into the community. The INS works closely, as it should, with Cuban American organizations to exDedite the Cubans' release from detention, and has often sought out the involvement of these organizations. Unless a Cuban commits a crime, rarely is he or she detained for any length of time. One year after their date of parole into the U.S., the Cubans are entitled to become lawful permanent residents under the Cuban Adjustment Act of 1966. During the one year waiting period, the Cubans almost always are granted work permits by the INS. Between January 1 -November 17, 1991, 2078 Cubans arrived in South Plorida by boat or raft. Now let's look at what happens to a group of Haitian boat people who are intercepted by the U.S. Coast Guard. So far this year, approximately 3000 Haitians have been interdicted by the Coast Guard, more than half of these since the September 30 coup in Haiti. Typically, the Haitians will be taken aboard the Coast Guard vessel and their boat sunk as a navigational hazard. The Coast Guard vessel will then immediately start sailing to Portau-Prince for the purpose of returning the Haitians. From the interdiction program's inception in the fall of 1981 until January, 1991, virtually all of the interdicted Haitians were immediately returned to their homelands only 8 of the more than 23,000 Haitians intercepted by the Coast Guard were identified by INS officials as potential political refugees. Even when Haiti's former head of State, General Prosper Avril, declared a state of siege in January, 1990, and our ow State Department was warning U.S. citizens not to travel to Daiti, every Haitian interdicted by the Coast Guard during this period was returned as an economic refugee. Once back in their country, the Haitians were sometimes jailed in the National Penitentiary in Port-au-Prince.

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145 In January, 1991, the INS finally agreed to make a greater effort to identify Haitian boat persons fleeing political persecution. Interviews are now supposed to last 20 minutes, instead of five. (Actual interviews would necessarily last half that time, since interpreters must be used). Between January 18, 1991, and September 30, 1991 (the date of the recent coup in Haiti), 20 Haitians have been deemed eligible to come to the U.S. to pursue their asylum claims. This illustrates the dramatic consequences of a fairer, but still inadequate, process to identify persons fleeing political persecution. Ironically, the change in policy came at a time when Haiti had its first democratically-elected President. Hence, the numbers of interdicted Haitians allowed to come here were far less during periods of terrible oppression than during the few months of relative political stability. Indeed, almost 3 times more Haitians were deemed political refugees by the INS in a matter of months under a democratic government than during an entire decade marked by continuous human rights abuses and political tyranny. And tragically, now, when the political situation in Haiti is worse than ever, no Haitian has yet been brought to shore 53 out of almost 2000 will be or have been brought to shore this week. Even with the best of intentions, however, and even with more time alloted for interviews, almost any interviews conducted on the high seas while the vessel is headed back to Haiti are destined to fail in identifying legitimate asylum seekers. These interviews are conducted out of sight of public scrutiny and out of reach of legal assistance to which asylum seekers are statutorily entitled. And there are no appeals of the INS'a decisions as to who may be a political refugee. Interviews on the high seas also fail to accomodate the serious cross-cultural communication problems existing between a fleeing Haitian boat person and officials of the U.s. government. The Haitians often have no idea how .to articulate their asylum claims. Typically, Haitians are unfamiliar with U.S. Immigration law. Aboard Coast Guard cutters they are likely to be ill at ease, to have no idea why they are being questioned, and to be unprepared to relate the course of events that caused them to flee; they often have no idea which of the particular experiences they had in Haiti may qualify them for relief. At the Haitian Refugee Center, we have found that it can take a substantial amount of interview time before discovering that a Haitian has a strong asylum claim. Haitians we interview frequently say they held no political opinion while in Haiti, even though they may have been active members of key opposition parties, even though they may have openly criticized the Haitian government on Haiti's most popular radio stations and even though they may have formed organizations that were targeted by the authorities as critical of the government. Those who were jailed in Haiti for these or

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146 similar reasons often fail to mention this in connection with their asylum claim because to them it is simply a way life in Haiti. There is also the reality that intercepted Haitians know they are heading back to Port-au-Prince, may be unaware of the exact process as to how they are going to be returned and may therefore be unwilling to fully explain their reasons for fleeing. As I mentioned, while the interviews are taking place, the Coast Guard vessels are typically on their way back to Haiti already; this is a clear sign that a determination has been made before the interviews take place. No such screening is applied to Cubans who are brought aboard Coast Guard vessels. Even though the 1980 Refuaee Act eliminates policies from the asylum process, Cubans are still presumed to be automatically entitled to pursue their immigration remedies in the U.S. Pew Cubans even need to make political asylum applications. Cubans generally are not subjected to any scrutiny as to the reasons they fled Cuba. As mentioned earlier, the law entitles them to automatic adjustment to permanent resident status one year after they arrive in the U.S. and so there is no need for them to pursue a political asylum remedy. The same Coast Guard that searches for Haitians also searches for Cubans. The difference is that, regardless of the political conditions in those countries and regardless of what the individual Haitians and Cubans have to say, the Coast Guard operates with the intention of returning Haitians to Haiti, and with the intention of bringing all the Cubans they find safely to the United States. In 1991, 2,067 cubans have come to the U.S. by boat on raft. In spite of these large numbers of Cubans, which this past summer had already surpassed the 1990 total, the U.S. makes little if any attempt to stop this immigration. Everyday we are reminded just how differently the Haitians and Cubans are treated. In Sundays Miami Herald, there was a picture of two Cuban rafters who were brought to the U.S. along with their dog, who also was rescued by the Coast Guard. A similar article mentioned a local resident who has been collecting rafts used by Cubans, which are turned over to him by the Coast Guard, with the intent of putting them in a museum to honor the Cubans who risked their lives on the high seas. we are a long way from seeing any such display of the Haitian boats, which are routinely destroyed by the coast Guard. Certainly we acknowledge there are many Cuban political refugees, but some of the Cubans who come here have stated they are economic immigrants yet are treated by the INS as if they are political refugees, largely due to the existing political tensions between our country and Cuba.

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147 Underlying the discriminatory treatment of Haitians is the self-fulfilling prophecy that all Haitians are economic immigrants. There is no denying that Haiti is the poorest country in the Western Hemisphere. There is also no denying that almost every Haitian who comes to the U.S. is going to be exposed to a better standard of life. But that in and of itself does not mean that Haitians are not politically persecuted In Haiti and therefore entitled to seek and receive asylum in the United States. Unfortunately, the interdiction program is but one manifestation of a series of measures, including arbitrary detention and deportation programs, directed specifically against Haitians by U.S. authorities that have denied Haitians a fair and equal opportunity to secure refugee protection. If a Haitian boat bypasses the Coast Guard interdiction patrols and makes it to U.S. shores, those Haitians will be taken to Krome in Miami where they will generally be detained for the many months it will take to adjudicate their asylum claims. As mentioned above, when Cubans are brought to Krome they are generally processed and released within two weeks. Also, in contrast to the INS's efforts to involve Cuban organizations, when organizations such as ours approach the INS and offer to provide the necessary social and legal services to detained Haitian's, we are often simply ignored. Haitians are detained at Krome in larger numbers and for longer periods of time than any other refugee group. The Haitian Refugee Center has represented Haitians who have been detained at Krome for over 3 years. Beginning in 1981 -the same year the interdiction program began -the U.S. began its current detention policy, in response to the influx of Cuban and Haitian refugees. Fortunately for the Cubane, however, Krome was only used as a processing center, to determine whether they had a criminal record or were mentally unstable. The Haitians, on the other hand, were indefinitely detained. This policy of detention was ruled illegal by the U.S. District Court in Miami in a decision which was subsequently upheld by the United States Supreme Court. Krome, by the way, is officially called the Krame North Service Processing Center, not the Krome Detention Center: it is intended for processing, not detention, though that intention has not been fulfilled. The pattern of discrimination directed against the Haitians began in the late 1970's. several federal court judges have expressed outrage over the consistent bias demonstrated by our government against the Haitians. Indeed, in the early 1980s, one such judge found there existed a "Haitian Program," which

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148 violated the Haitians legal rights in wholesale fashion and was designed specifically to get Haitian asylum seekers back to their country as quickly as possible. Even when INS Commissioner Gene McNary implemented a more liberal parole policy in May, 1990, the Haitians failed to benefit. "Nearly one month into the program, no Haitians had been approved for parole in Miami, even though Haitians constituted nearly 2/3 of those detained in the district," reads a section of the report written by the Lawyers Committee for Human Rights in New York, evaluating the program. The prolonged detention of Haitians ultimately denies many their day in court. There are numerous obstacles facing Haitians at Krome. Most are deported without ever having seen an attorney. The vast majority of Haitians facing deportation have no legal representation whatsoever. Very few have even a basic knowledge of their rights to apply for asylum. Most seem fatalistic and passive. Barriers to communication with legal representatives abound, and frankly, many of these are consciously imposed by the INS. The list given by INS to asylum seekers of agencies that provide free legal help is so outdated as to be practically useless. Detainees' access to telephones is often restricted. We frequently learn of a case at Krome only after the appeal is due. Also, there is no law library or anything remotely resembling one at Krome. Given the lack of a law library and the refusal by immigration officials to permit either distribution of a notice-of-rights sheet to the Haitians or short know-your-rights presentations, Haitians have little opportunity meaningfully to pursue legal remedies to which they are entitled. Haitian detainees, too, are often coerced into abandoning their asylum claims. Because the Haitians are frequently denied parole, it makes it more difficult for them to get legal representation and it ultimately adds yet another obstacle to a fair chance at making an asylum claim. All of these factors contribute to the extremely low rate of asylum for Haitians. Haitians in detention also face the prospect of being transferred to facilities in remote areas of the country where it is virtually impossible for them to get legal help. Rountinely, Haitians are transferred from Krome in the middle of the night and removed from family, friends and attorneys. Facilities in Texas and Louisiana are used to house the Haitians who have been shipped there in shackles and chains. These facilities are often parish jails, where the Haitians are held along with convicted felons. Although we have successfully challenged several of these transfers in court, the INS continues to find ways of carrying out this activity, But even when Haitians are released from detfution. they4_. freqently, denied work permits, which is routinely offered to every Cuban released from detention. Work permits for paroled Haitians has been an ongoing problems since the late 1970's. The Haitian Refugee Center has successfully

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149 sued the INS on several occasions to obtain work permits for Haitians, which are required by law to be given to paroled asylum seekers. The detained Haitians also rightly feel that the detained Cubans are treated better than they are. Blatant disparities in the INS treatment of detainees exist, including timely access to medical personnel, placement in isolation, and manner of treatment by certain guards at Krome. For example, since the coup in Haiti, Haitians have been told by Krome guards that they (the Haitians) are only here for food, while Cubans are generally treated with some degree of respect. Despite the large Haitian population at Krome, only about 5% of the personnel there speak Creole. Again, the underlying assumption on the part of cetain Krome guards is that Haitians are simply economic immigrants and Cubans political refugees. In the materials we have submitted to this committee, we have included a letter written by the detainees at Krome, protesting arbitrary parole policies and unfair treatment. These Haitians, since the coup, have been chided by guards callously denigrating their asylum claims. One thing to keep in mind is that typically less than 2% of Haitians are awarded asylum on an annual basis. Given the political tyranny which charactized the Duvalier regimes in Haiti and the military juntas that followed, prior to Aristi4e's election, that is an alarmingly low figure. A careful look at the transcripts of Haitians' asylum hearings makes it clear that Haitians frequently are denied due process and that immigration judges -sometimes former INS trial attorneys -are frequently predisposed to conclude that Haitians are simply economic immigrants. As recently as a few months ago, a federal judge in Miami commented in open court that few aaitians ever were awarded political asylum. Again, we see a cycle of self-fulfitling prophecy. Statements by INS officials that Haitians are merely economic refugees are seemingly bolstered by asylum statistics which suggest this is the case. But just because Haitians are not granted asylum doesn't mean they shouldn't be. Several of our clients denied asylum were jailed in Haiti on account of their political opinions, jailed in Krome upon arrival in the U.S., and then jailed again or otherwise persecuted upon return to Haiti. One of the justifications INS officials have used in detaining Haitians so long is that they will eventually be deported anyway. And certainly one of the justifications used for detention is that it deters immigration here. But, aside

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150 from our view that detention as a deterrent is illegal it is far from clear whether detention deters immigration at all. Further, to the extent that it may be a deterrent, it serves equally to deter bona fide refugees and economic immigrants. The U.S. immigration laws also provide annual ceilings for refugee admissions. While there are 3000 slots for those in Latin America and the Caribbean, in practice it is almost always the Cubans who can be expected to benefit here from these. Further, Cubans are eligible to enter the U.S. either as part of the government-sponsored refugee resettlement program or through the sponsorship of the Cuban American National Foundation. Under the first program, 1070 Cubans were admitted through the first eight months of fiscal year 91; under the latter program, 1734 cubans had been admitted as of the end of May and 6982 since the program's inception in 1988. No comparable programs exist for the Haitians. In 1989, almost 10 times more Cubans were granted political asylum than Haitians, despite the terribly oppressive military government in Haiti at that time and in the years immediately preceding it. Haitians clearly have not been welcomed in our country. Finally, we come to the current situation facing Haitian refugees, which in many ways exemplifies the double standard of treatment. If anyone has any doubts about the different treatment the Haitians receive, a close look at the way these interdicted Haitians are being treated must surely erase these doubts. It is rather ironic and somewhat disingenuous for the State Department to suggest that its motivation in repatriating Haitians is to deter others from leaving their country in order to ensure safety -that is, that they do not want Haitians risking their lives at sea. This argument that we do not want Haitians to risk their lives by fleeing to our country has never been made with reference to the Cubans, who are coming here as rafters in large numbers today. Real protection could come from, among other things, in-country mechanisms for asylum seekers, which exist in numerous countries, including Cuba, but not in Haiti. The Haitians are therefore unable to apply for refugee status before arriving in a receiving country such as the U.S., in order to ensure their initial acceptance into the receiving country. Because there has never been an in-country refugee rescue mechanism in Haiti, Haitians for years consequently have been forced to risk their lives on the high seas, seeing no alternative, hoping to make it to shore so they can file their asylum claims.

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151 Haitians attempting to flee their country today are making a knowledgeable choice, trading one kind of danger for another. Many areliterally "running for their lives.' Our government has recognized that Haiti is an extremely dangerous place to be now and has ordered the immediate evacuation of all non-essential U.S. personnel and all U.S. citizens in Haiti. Ambassador Alvin P. Adams recently advised that "Haiti is on the verge of an emergency that could surpass any crisis in the country's recent history." How, then, can we justify denying Haitian emigres legal protection from being sent back? While our borders cannot, of course, be open to everyone, they are meant to be open to people fleeing precisely the kind of political violence of which Haitians are now the victims. The way to ensure the safety of the Haitians is not to blockade them from leaving but to provide a more secure departure mechanism for those who fear political persecution. Under the Immigration Act of 1990, the Attorney General has the authority to provide a temporary safe haven in the U.S. for individuals of a foreign state providing there exist "extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals from returning safely." INA 5244A, 8 USC 51254A. Over the years numerous refugee groups have been offered temporary refuge of this nature. The Salvadorans, Kuwaitis, Lebanese, Liberians and somalians have been granted this Temporary Protected Status (TPS). And before Congress gave the Attorney General the power to grant TPS, the Attorney General in his discretion could grant extended voluntary departure (EVD) to refugees whose country was in political turmoil. The latter was given to the Poles, Ethioplans, Ugandans, Lebanese, Nicaraguans and Cubans. When TPS is established, it always has a cut-off date built in; it is not a blanket lifting of immigration restrictions. The Administration seems to be saying that it would be dangerous to set a precedent for treating Haitians humanely. While the U.S. has only recently and justifiably criticized the inhumane treatment of the Vietnamese in Hong Kong, unfortunately the Administration's stance toward the treatment of Haitians closely resembles that which it is criticizing. The current treatment of the interdicted Haitians illustrates all too clearly the unfairness and failure of our immigration policies in dealing with the Haitians. Americans still feel shame when they recall the European Jews on board the St. Louis who were turned away from US shores in 1939. But it seems we have learned little from that shame. As we sit here on November 20, it seems that only 53 of the almost 2000 Haitians who fled their politically violent country have been or will be brought to shore; the others are being returned to uncertain circumstances. For the past 2-3 weeks, U.S. Coast Guard cutters

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152 have functioned as little more than floating prisons for fleeing Haitians; others are held in temporary camps in Guantanamo. The Miami Herald reported that there were several babies and children in this group, as well as pregnant women. Many have been ill and in need of medical care. Cubans who arrive at Guantanamo are immediately brought to the U.S. and paroled into the community. in fact, several Cubans in the past month have managed to make it within the parameter of the U.S. naval base at Guantanamo and been flown to our country for processing. While the State Department spoke of a "regional solution" to this matter, State Department actions seemed to indicate attempts to redirect responsibility for the well-being of these Haitians almost completely to third countries. Our resources would have been better spent by bringing Haitians found at sea to U.S. shores, allowing them to apply for political asylum and releasing them to family members and voluntary agencies able and willing to provide the necessary support services. This interpretation now seems confirmed, as the United States shamelessly pushes to return the interdicted Haitians without consideration for the risks posed to them by the current crisis in Haiti. During the Haitian detention program of 1991, a U.S. District court judge accused the INS of playing a 'human shall game" with Haitians being transferred to different detention facilities in the United States and Puerto Rico. Today, we are again observing a human shell game being played, this time with Haitians on board Coast Guard cutters and at the U.S. naval base in Guantanamo. This country has never reached out to help Haitian refugees, never acknowledged them as political refugees -not even today -and has consistently denied them the legal protection that existing laws afford. Rather, we have created mechanisms to turn Haitians away, not the least of which is interdiction. As the Coast Guard cutters pick up Haitians closer and closer to the Haitian border, they are essentially creating a blockade which prevents the Haitians from leaving a place that our government has acknowledged to be life-threatening. The least that we should do now is allow an entry by Haitians fleeing a government we refuse to recognize and upon which we have imposed a strict trade embargo. The goal should be not to stop someone from running but to remedy the reasons that impel them to run. Federal judge Eugene Spellman, shortly before his death some months ago, attacked the INS for "routinely engaging) in underhanded tactics in dealing withHaitians seeking asylum in this country." And Bruce Morrison, when he was chair of this Subcommittee, stated that "Haitians get the short end of the stick every time." Yet little has changed over the years: Haitians continue to be singled out for discriminatory treatment.

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153 Although those of us who work on immigration issues and particularly on behalf of Haitians have been aware of these double standards for many years, the disparties in treatment have only become the focus of public attention recently. Last summer, a boat with 161 Haitians and 2 Cubans was intercepted by the Coast Guard. All but a handful of the Haitians were returned to Haiti. The Cubans were immediately brought to shore. Days later, 5 Haitians who were caged and chained on board a cargo vessel arrived in Miami. Television cameras showed the inhumane and degrading treatment these Haitians were subjected to. A bucket was placed inside the cage for the Haitians who needed to relieve themselves. When the Haitians finally escaped from the cage, they were maced and shackled to metal railings with handcuffs and chains thick enough to tow a truck. People who had never thought about these issues realized how unfair and unjust this was and that something was terribly wrong. Since then, a broad based coalition has emerged that crosses ethnic and religious lines, no small feat for a city with the kind of problems that Miami has. And significantly, a number of Cuban human rights groups have joined the call for the just and equal treatment of the Haitians, including groups in Cuba, the United States, Central America and Europe. Statements from these organizations and others are attached to our statement.

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154 Mr. MAZZOLI. Ms. Dominguez. STATEMENT OF MARIA R. DOMINGUEZ, DIRECTORING ATTORNEY, AMERICAN IMMIGRATION LAWYERS ASSOCIATION PRO BONO PROJECT, SOUTH FLORIDA CHAPTER Ms. DOMINGUEZ. Even though the AILA Pro Bono Project represents aliens of all nationalities in deportation and exclusion proceedings, I have been asked today to address Cuban immigration, and in my statement today is reflected the view of the Cuban community. AILA has neither approved nor endorsed by comments. I would like to stress for the record that the Cuban community in Miami is disturbed by the recent events occurring in Haiti and is extremely sympathetic to the present Haitian plight. It submits to this committee that the grounds and reasons that were used to draw up the Cuban Adjustment Act must also be considered in the same manner when evaluating the Haitian claims. We offer the Cuban experience in this country as evidence to show how the United States can turn around a difficult situation and make it work successfully. The Cubans in Miami do not wish that the events presently taking place in Haiti be used to polarize the Cuban and Haitian communities and that they not be construed to pit one group against the other. In fact, that the same treatment received by the Cubans be afforded to the Haitians in view of present conditions. The following statement hopefully will serve to help you achieve a just and fair conclusion in light of the horrendous conditions that exist today in Haiti. Prior to 1959, Cuban immigration into the United States was almost nonexistent. However, Fidel Castro's government dramatically altered the course of events, and, as a result, a major influx of Cubans started to arrive in south Florida seeking refuge from the Communist government. Diplomatic relations between the United States and Cuba were severed in January 1961, and commercial transportation from Cuba was suspended in 1962. Nevertheless, small boats used by refugees escaping from the island continued to arrive in Florida at approximately 100 per week. President Johnson announced his welcome to asylum-seekers from Cuba on October 1, 1965. This resulted in the institution of an airlift procedure on December 1, 1965. By 1966, the hopes for an early end to the Castro era had been crushed. Thousands of Cubans were trapped in the United States, unable to return, in an immigration limbo as parolees from which there was no practical way out. The United States was faced in 1966 with the scenario of a large growing number of Cuban aliens likely to remain indefinitelyCuban aliens who could not return home even if they wished voluntarily to do so,, aliens who could not be deported back because Cuba would not allow their return. To its credit, the United States, in the face of this extraordinary dilemma, chose instead to provide for them to become lawful residents and eventually U.S. citizens. It is through the Cuban Refugee Adjustment Act of 1966 that the vast majority of Cubans who have fled Cuba after 1959 have become legal U.S. residents and eventually citizens.

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155 Despite the obvious wisdom of Congress' decision in 1966, we are confronted today with a series of criticisms regarding the continuing need, wisdom, and fairness of this special law for the Cubans. We are told that things have changed, that the law is out of step with the times, and today's arrivals from Cuba are primarily economic immigrants and not political refugees, that it unfairly discriminates against asylum-seekers from other countries who lack a comparable benefit, that it is being abused in ways not originally intended. Let us briefly look at these issues. Number one: that the act of 1966 is outdated and no longer wise or relevant of existing contemporary asylum needs and procedures some 25 years after it took effect. First, we point out that Congress did not just enact the Cuban Refugee Act in 1966 and then forgot it. On numerous occasions thereafter, and as late as 1987, proposals were introduced to repeal or restrictively modify the same. Yet the only one time that Congress chose to amend Public Law 89-732 was in the Refugee Act of 1980, by reducing from 2 years to 1 year the U.S. physical presence requirement prior to eligibility for permanent residency, the same as for those granted refugee or asylum status from other countries, thus manifesting its intent that they be considered de facto as refugees. Since November 1966, Congress has concluded each and every time it has been asked to reconsider the value of Public law 89-732 that the circumstances in Cuba that led to its enactment still prevail essentially unchanged to this very day or are, indeed, worse than ever before. Further, it has concluded each and every time that Public Law 89-732 is of considerable benefit to the United States both as a matter of domestic and international policy, that it has been and continues to be the solid cornerstone of the legal edifice of the Cuban American people. Two, it is unfair and unconscionable, in light of the contemporary worldwide refugee situation, to continue extending this extraordinary privilege to Cubans only but not to others who also seek similar protection in the United States. This argument ignores that Cuba is generally rated as the worst violator of the most fundamental civil rights not only in this hemisphere but worldwide. Unlike every other American Nation, Cuba categorically rejects democratic changes from its inefficient Stalinist system. It also ignores that Castro's Cuba, uniquely and in violation of the most fundamental precepts of international law, refuses to allow its citizens residing abroad to resume their domicile in Cuba voluntarily or by deportation once they manifest an intent to reside outside Cuba. Mr. MAZZOLI. Ms. Dominguez, would you be able to summarize maybe in 1 minute? I know you have one more point. I read your statement this morning before the hearing. Ms. DOMINGUEZ. I will just get to third one then. Mr. MAZZOLI. Yes. If you could just kind of take that one point and maybe the major sentence. Ms. DOMINGUEZ. OK. The last one is that the Cubans coming to the United States these days are driven by economic and not political motives as those who entered earlier.

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156 Massive refugee migrations anywhere have always had an economic component. This is especially so in reference to a State-controlled socioeconomic system as exists in Cuba. There, the Government, in effect, controls all avenues of employment, promotion, education, advertisement, production, distribution, et cetera. Those who are perceived as supportive of the regime and its goals are rewarded, while those who show resistance or opposition to the allembracing establishment are marginated sociopolitically and economically and persecuted accordingly. Nearly all Cubans who have sought asylum in the United StatesMr. MAZZOLI. May I summarize by just saying it is very clear that you feel, both professionally and otherwise, that the 1966 act ought not to be changed? Is that essentially the case? Ms. DOMINGUEZ. Yes. Mr. MAZZOLI. And you cite the specifics, and I appreciate that very much. [The prepared statement of Ms. Dominguez follows:]

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157 PREPARED STATEMENT OF MARIA R. DOMINGUEz, DIRECTORING ATTORNEY, AMERICAN IMMIGRATION LAWYERS ASSOCIATION PRO BoNo PROJECT, SOUTH FLORIDA CHAPTER My name is Mari R. the American I mig Project, South lori Even though the AIL nationalities in dep to represent the Cub Prior to 1959, uban nonexistent; ho eve altered the cou e c Cubans started t ar communist gover en States and Cuba we transportation f om small boats used y arrive in Florid at President Johnson an on October 1, 196; procedure on Dec be Those Cuban refu ee permanent reside to United States for an an immigrant vie a "es a~the Committeet Dominguez and I am the directing attorney for ation Lawyers Association (AILA) Pr 'Botto a Chapter. Pro Bono Project represents aliens all rtation/exclusion proceedings, I am here today in community in Miami. I immigration to the United States was almost Fidel Castro's government dramat ally events and as a result, a major inf i of ive in South Florida seeking refuge from the t Diplomatic relations between the Vnited severed in January, 1961 and commercial Cuba was suspended in 1962. Nevertheless, r fugees escaping from the island continued to pproximately one hundred (100) per week. >unced his welcome to asylum seekers from Cuba t xis resulted in the institution of an airlift 1, 1965. s could only adjust their status to lawful y the circuitous process of "leaving the ndefinite period of time in order to secure ta U.S. consular office abroad, and ,then 51-225 0 -92 -6 I b

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158 reentering as a pe anent resident." Congress reasoned that this I I would have resulted in "great personal hardships," as well nasI typically unbe rabl financial burdens to thong "who are already impoverished b for e of circumstances." Congress considered that the United states government would also have been burd ned financially, by the need to staff consular offices in cont'uo countries in order to handle an inevitable high volume of mmi ant visas sought by those applicants residing outside the dis ric Finally, Congress reasoned that exemptive, or "permissive" egi nation in this case would enhance resettlement of the Cuban eu sea and their opportunity to employment a duc ion in all areas of the country. e Preedetsil str ting Congress' consistent 'willingness' to approve legislation o aid persecuted peoples of the world,"3 areI cited in justify ati n of the legislation. These include Public Law 85-559 (on b halt of Hungarian refugees): Public Law BC-GS (on behalf of certain re uCee-escapees within the mandate of the U.N. High Com bissione fo Refugees; and Public Law 89-236 (on of refugees fro co unism from countries outside the Western, Hemisphere). : P.L. La-73 Laws of 89th Cong. -2nd Ses., H.R(o 197 at 3794. n. at 794 3795 a -2I ugeeescpeeswitin te mndat ofthp .N. II 'I

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159 By 1966 the hotes crushed. Thousands unable to return, in there was no prctic The United Stats w growing number of Cuban aliens wIo voluntarily to d no Cuba would not llo To its credit thL Un dilemma chose inst residents (and elent the Cuban Refugde A_ vast majority of Cub legal United States Despite the obvious confronted todayj w continuing need, 'wis Cubans. We are t ld of step with thi t primarily economi i unfairly discrimi at P.L.8932 or an early end to the Castro era h~d been of Cubans were trapped in the United States an immigration limbo as "parolees" from which al way out. s faced in 1966 with the scenario of a large ban aliens likely to remain indefinitely. uld not return home even if they wished aliens who could not be deported back because their return. ted States in the face of this extraordinary ad to provide for them to become lawful ally United States citizens). It is through lstment 96 P. 89-732) tht the ns who have fled Cuba after 1959 have becom0 esidents and eventually citizens.' isdom of Congress' decision in 1966, we are i h a series of criticisms regardinL the II on and fairness of this special law f the hat things have changed, that the law s out i es. That today's arrivals from Cuba are igrants and not political refugees. Tkat it e against asylum seekers from other countries i 80 Stat. 1161. -3-I

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160 who lack a comphrab e benefit. That it is being abused in ways not originally intended Let us briefly look at these issues. A. The Act of 196fin "out-dated." and no loner wise or relevant of existin o tenorarv asylum needs and procedures some 25 Vearnate t First, we point ou Refugee Act in 1961 I thereafter, and as1 repeal or restrict Congress chose to am by reducing froth tw physical present a re residency, the same from other coun rie considered defa to Since November 1?66 has been asked to circumstances ij C essentially unch nE even before. Fu th P.L. 89-732 is o co as a matter of dotes and continues to be the Cuban Americn c tk effect, .i i that Congress did not just enact the cubAD and then forgot it. On numerous occasions late as 1987, proposals were introduced to vely modify the same; yet, the only time nd P.L. 89-732 was in the Refugee Act of 980,1 (2) years to one (1) year the United Statena euirement, prior to eligibility for permanent s for those granted refugee or asylum Isatusl .Thns manifesting Its 181981 thAt thelsm refugees. congress has concluded each and avery time it r consider the value of P.L. 89-732 that the la that led to its enactment still prevail e to this very day, or are indeed worse than e it has concluded each and every time that osiderable benefit to the United States, both t c and international policy. That it has been t me solid cornerstone of the legal edifice of omunity. -4'I i I II, ,II I I' ,I i i i I I I I. it I I I i I i I'

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161 It isnfar a unconscionable in licht o the contemporary world-widee st u io to continue extending this trorivileae foermanent residence status in the UnitedStatel aQ Cubans only, but not to others who also seek similar This argument 14nor violator of the mos hemisphere, but wor Cuba categorically r Stalinist systemF I in violation of Yhe m refuses to allo4 it domicile in Cuba vol an intent to res$de the fact that n mer before and after P. and/or administativ permanent reside t Among these nati ali Eastern European ati and Laotian), H~iti Kuwaitis, Ethiopians Salvadoreans. In sho Cuban nationals in 19 longevity of the Cas unusual. e5ion in the United States. s that Cuba is generally rated as the worst fundamental civil rights, not only in this wide. Unlike every other American nation,, jects democratic changes from its inefficient also ignores that Castro's Cuba uniquely and st fundamental precepts of international law, citizens residing abroad to resume their ntarily or by deportation once they manifest utside Cuba. Further, this argument ignores s other nationalities besides Cubans have, 89-732, been awarded special legislative immigration privileges, including lawful atus on the basis of their national origin. ies are Hungarians, Poles (and several other nalities), Indochinese (Vietnamese, Cambodian n, Ugandan, Lebanese, Chinese, Liberian, and most recently Irish, Argentineans and the special immigration privileges awarded 6 may be the longest in the books, due to the o's communist regime, but hardly unique or B. .j I I i

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162 C. Cubans comina tA the United States these dav are driven by economic and n t political motives as those who entered Sea ier. Massive refugee 6igr tions anywhere have always had an ec nonic component. This is especially so in reference to a state-controlled socio-econom c system as exists in Cuba. There the government in effect controls jlj avenues of employment, promotion, education, advertisem nt, production, distribution, etc. Those who are perceived as su portive of the regime and its goals are rewarded, while those who show resistance or opposition to the allembracing establish nt are marginated socio-politicall and economically and per ecuted accordingly. Nearly all Cubans who have sought asylum in the United States whether in 1960, 19704 1980 I I I and political di riination as a result. Nonetheless, whine there exists in Cuba today great soaroity' and even strict ratiohing of even the most basic staples (bread, 'eggs, meats, sugar, etc.) e must admit that there is no proof yet of I ~I widespread and genera ized malnutrition, or life threatening famine conditions, hardship that would make economic survival the overwhelming moti e t migrate even at the peril of the high seas. The fundamental motive to leave Cuba continues to be political and not economic as is b ing projected publicly these days. It is premised on individual opposition and rejection of the political repression and ideol ical conformity the current system demands from all. -6-

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163 For the above r asor dr'oH Adjustment Act o 1 continues to be a j circumstances of th continued to this dat s, we believe that P.L. 89-732, the .Cuban is not an unfair privilege, but rather stifled and needed response to the unique Cuban diaspora which unfortunately has a for three decades. -7-

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164 Mr. MAZZOLI. Mr. Guttentag. What is that: "Good evening" in German? Mr. GUTTENTAG. "Good day," actually. Mr. MAZZOLI. Good day. Thank you very much. Well, good day, Mr. Good-day. STATEMENT OF LUCAS GUTTENTAG, DIRECTOR, IMMIGRANTS' RIGHTS PROJECT, AMERICAN CIVIL LIBERTIES UNION Mr. GUTTENTAG. Thank you, and, on behalf of the ACLU, I appreciate the opportunity to testify at this hearing. As we sit here this afternoon, thousands of Haitians are risking their lives to escape from the political repression, the turmoil, and the increasingly oppressive and volatile situation that has developed in Haiti since the coup of September 30. And as we sit here, innocent Haitians who have tried to flee are being threatened with forcible return to Haiti. And I am ashamed to say that it is the U.S. Government that is the reason that those Haitians are being threatened with return. Instead of providing a humanitarian response, this country is undertaking an action that is directly contrary to what we have consistently asked other countries to do in similar circumstances in other parts of the world. Some specific examples of that are in my written statement. In addition to violating international norms of conduct, the practice of forcible repatriation is also in stark contrast to what I believe this Congress intended when it enacted the Temporary Protected Status provision as part of the Immigration Act of 1990. The TPS provision authorizes the Attorney General to designate a country and to give temporary protected status to nationals of that country if any one of three conditions exist. Those conditions are armed conflict, or natural disaster, or-and I'm quoting from the statute-"extraordinary and temporary conditions that prevent aliens from returning to the state in safety." Since TPS was enacted, as has been pointed out on numerous occasions this morning, the Attorney General has designated four countries: Kuwait, Lebanon, Liberia, and Somalia. In light of those designations and the situation in Haiti, there is no justification for failing to designate Haiti at this time. Clearly, extraordinary and temporary conditions exist, in the words of the statute, that prevent Haitians from returning to their country in safety. While a TPS designation would not directly address the forcible repatriation practices, the TPS designation is a crucial element in protecting the safety of Haitians who are currently threatened with deportation and those who will be subjected to deportation proceedings in the future. Designating Haiti for TPS would suspend deportation proceedings against Haitians and permit them to obtain employment during the designation period. I think it is important to stress that designation of a country for TPS is for a limited period of time and confers only temporary protection to nationals of that country. Designating Haiti for TPS would not imply that all Haitians are political refugees or eligible for political asylum. Asylum eligibility would continue to be decid-

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165 ed under the established criteria that require a showing of a wellfounded fear of persecution. TPS exists precisely because that limited asylum definition does not provide adequate protection under circumstances like these. In fact, the urgency of designating Haiti for TPS is greater because Haitians are actively fleeing Haiti to the United States. Under international law, we are the country of first asylum. That imposes greater obligations on us and requires us to admit those individuals, at least temporarily, until their safety can be assured. But instead of fulfilling those obligations, the State Department, it appears, is asking other countries to do what we are refusing to do even though this country is larger, wealthier, and closer. In addition, the failure to designate Haiti can only be seen in the context of over a decade of discrimination against Haitian refugees in the United States. Numerous courts have found that the INS has singled out Haitians and has intentionally and systematically deprived them of their due process right to a fair asylum process. Now, it seems, we are witnessing the even more shocking spectacle of forcibly returning Haitians before they can even get to the United States to apply for asylum. The current situation in Haiti is a tragedy for its citizens, and it is a challenge for the United States. We must reverse the history of discriminatory treatment against Haitian asylum-seekers by matching condemnation of the military coup with humanitarian treatment of individual Haitians who are fleeing to the United States. That means stopping the forcible repatriation and granting Haitians TPS status. Failure to do so would preclude the United States from ever again insisting that other countries provide safe haven to fleeing refugees. Thank you, Mr. Chairman. Mr. MAZZOLI. Thank you, Mr. Guttentag. I appreciate it. [The prepared statement of Mr. Guttentag and Ms. Rabinovitz follows:]

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166 PREPARED STATEMENT OF LUCAS GUTIENTAG, DIRECTOR, IMMIGRANTS' RIGHTS PROJECT, AMERICAN CIVIL LIBERTIES UNION, AND JUDY RABINovITZ, STAFF COUNSEL Mr. Chairman and Members of the Subcommittee: On behalf of the American Civil Liberties Union (ACLU), we would like to thank the Subcommittee for the opportunity to testify today. I am the Director of the ACLU Immigrants' Rights Project and teach immigration law at Columbia University School of Law. The ACLU is a nationwide, non-partisan organization of almost 300,000 members devoted to protecting the Constitution and the Bill of Rights. The ACLU Immigrants' Rights Project is a national project dedicated to enforcing the legal rights of immigrants and refugees through litigation and public education. The ACLU has long been engaged in seeking to protect the rights of Haitian refugees in the United States and in supporting the legislative enactment of the Temporary Protected Status provision in the Immigration Act of 1990. We are here today because of the current tumultuous conditions in Haiti -conditions that have once again caused boatloads of Haitians to flee the violence in their country in search of a temporary refuge in the United States. Those conditions have also caused Haitian refugees who are in the United States to have even greater fear of returning to their country. The international community, including the United States, has condemned the military coup that ousted democraticallyelected President Jean Bertrand Aristide and the violence, intimidation and politically-motivated persecution that has followed. Yet, the United States has not ceased the Coast 1

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167 Guard's practice of interdicting Haitians on the high seas who are seeking to flee to Florida or the Immigration and Naturalization Service's ongoing efforts to deport Haitian refugees in the United States who manage to arrive. The Concurrent Resolutions introduced by Congressman Rangel and Senator Mack call upon (1) the Coast Guard to suspend the interdiction program, and (2) the Attorney General to suspend deportation and exclusion proceedings against Haitians and to designate Haiti under the Temporary Protected Status provision of the Immigration and Nationality Act (INA). The ACLU's views on the interdiction program have been presented to the courts and this Subcommittee on prior occasions. Accordingly, I will limit my comments to the need to afford Haitians the protection of Temporary Protected Status under INA 5 244A (codified ds 8 U.S.C. 1254a). History and Puroose of Temporary Protected Status The Immigration Act of 1990, Pub.L. No. 101-649, codified the longstanding authority of the Executive Branch to grant temporary "safe haven" to nationals of a country when humanitarian concerns make enforcing their return inappropriate. Prior to 1990, the need to provide such temporary protection had been met through the Attorney General's discretionary authority to withhold deportation for specific nationality groups in the face of crisis situations in their home countries. This relief, typically granted by affording "Extended Voluntary Departure" 2

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168 status or "EVD" to individuals, had been extended to 16 nationalities since 1960. See C. Robinson & B. Frelick, "Lives in the Balance: The Political and Humanitarian Impulses in U.S. Refugee Policy," 2 Int'l J. Refugee L. 293, 313 (Oxford U. Press 1990). For example, in 1981 following the imposition of martial law in Poland, EVD was granted to Polish nationals. In 1980, following the Soviet Union's invasion of Afghanistan, EVD status was granted to Afghani nationals, and in 1979, during the height of the Sandinista insurgency against the Somoza regime, EVD was granted to Nicaraguans. Other designations include Ugandans in 1978, Ethiopians in 1977, Camobodians in 1975 and Chileans in 1971. Most recently in 1989, following the massacre in Tienanmen Square, a similar status was granted to Chinese nationals under the designation "deferred enforced departure." In each case, the purpose of the designation was to prevent the deportation of persons and to afford those individuals the opportunity to live and work in the Untied States until the situation in their home country stabilized. The humanitarian relief embodied in EVD, or other forms of temporary safe haven, is independent of individualized determinations of refugee or asylum status. Since passage of the Refugee Act of 1980, the INA has contained statutory authority for granting political asylum to persons who qualify as refugees based upon a showing, under the international legal definition, that they have suffered past persecution or have a "well-founded fear of persecution on account of race, religion, nationality, 3

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169 membership in a particular social group, or political opinion ." 8 U.S.C. 1101(a)(42). See also 8 U.S.C. 1158(a). The tradition of affording safe haven recognizes that the refugee definition is narrow and does not afford protection to individuals fleeing circumstances of generalized violence or unrest who may be unable to meet the eligibility standards for asylum. Temporary Protected Status Section 244A of the INA has established a specific statutory basis for the Attorney General to give temporary safe haven, in the form of "Temporary Protected Status," for humanitarian reasons to nationals of certain countries. The statute provides that the Attorney General may designate certain countries (or portions of countries) and that nationals of that country shall then be protected from deportation and be entitled to obtain employment in the United States. The statutory designation process sets forth specific criteria that must be met in order for the designation to be authorized. It provides: The Attorney General, after consultation with appropriate agencies of the Government, may designate any foreign state (or any part of such foreign state) under this subsection only if -(A) the Attorney General finds that there is an ongoing armed conflict within the state, and, due to such conflict, requiring the return of aliens who are nationals of that state to that state (or part of that state) would pose a serious threat to their personal safety; 4

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170 (B) the Attorney General finds that -(i) there has been an earthquake, flood, drought, epidemic or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected, (ii) the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state, and (iii) the foreign state officially has requested designation under this subparagraph; or (C) the Attorney General finds that there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the Attorney General finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States. U.S.C. 1254a(b)(1). The statute further provides that the designation of a country, with appropriate findings, must be published in the Federal Register and that the designation must include an estimate of the number of nationals who are or are likely to become eligible for the protected status. 8 U.S.C. 1254a(b). The designation date may be a future date, 8 U.S.C. 1254a(b)(2)(A) ("such later date" as the Attorney General specifies), and the initial period of designation is to be of "not less than six months and not more than 18 months." 8 U.S.C. 1254a(b)(2). Thereafter, the Attorney General must review the 5

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171 designation at least sixty days before the end of the designation period, determine whether the conditions continue to be met and publish the new determination. 8 U.S.C. 1254a(b)(3)(A). Unless the Attorney General determines that the foreign state no longer meets the conditions for the designation, the period is extended for six months (or for 12 or 18 months at the discretion of the Attorney General). 8 U.S.C. 1254a(b)(3)(C). Alternatively, the Attorney General may terminate the designation prior to expiration upon a determination that the foreign state no longer meets the conditions. Such termination must be published and may not be effective sooner than 60 days after the date of publication. 8 U.S.C. 1254a(b)(3)(B). The statute also provides which aliens of a designated state are eligible and the protections to which they are entitled. First, the alien must be a national of the state designated. 8 U.S.C. 1254a(c)(1)(A). Second, the alien must have been continuously physically present in the United States (except for departures that qualify as "brief, casual and innocent" under the immigration laws, 8 U.S.C. 1254a(c)(3)) since the effective date of the most recent designation. 8 U.S.C. 1254a(c)(1)(A)(i). Third, the alien must have resided continuously in the United States since such date as the Attorney General may designate. 8 U.S.C. 1254a(c)(1)(A)(ii). Fourth, the alien may not be excludable from the United States based on the grounds relating to criminals, drug offenses or security and related grounds, may not have been convicted of any felony or two 6

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172 misdemeanors, and may not fall within any of the grounds of exclusion set forth in 8 U.S.C. 1253(h)(2) relating to persecution of others or criminal or security grounds. 8 U.S.C. 5 1254a(c)(1)(A)(iii) & (c)(2). Finally, the Attorney General may, but is not required to, establish a registration requirement and registration fee. If such a requirement is imposed, the registration period must be at least 180 days and the fee may be no more than $50.00. 8 U.S.C. 55 1254a(c)(1)(A)(iv) & (c)(1)(B). The protections afforded by TPS to qualifying nationals of a designated country are a prohibition against deportation and an authorization to engage in employment during the period that the status is in effect. 8 U.S.C. 55 1254a(a)(1)(A) & (B). Unlike asylum (and most other forms of immigration relief), TPS does not confer a permanent status on the individual. It is only a temporary refuge for the period during which the Attorney General determines that nationals of a particular country should not be compelled to return home. The enactment of the TPS provision constituted recognition by the Congress and the Executive of the importance of the longstanding practice of humanitarian protection as well as of the need to ground such protection on a more explicit statutory basis. The TPS statute codifies and underscores the fundamental principle that protection for persons fleeing situations of civil war, natural disaster, widespread violence or other extraordinary conditions require a humanitarian response that affords temporary protection and safety without regard to the narrower and more 7

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173 restrictive requirements upon which individuals qualify for political asylum. The designation of TPS status does not prejudge the issue of whether the individual is a political refugee or an economic migrant. TPS provides temporary protection for all nationals who satisfy the eligibility criteria. At the termination of the designation period, their status remains what it was before. Individuals granted TPS may continue to pursue asylum claims and, if warranted, be granted asylee status. Those that do not meet this standard are subject to the same grounds for deportation (and defenses thereto) as before. Since enactment of TPS in November 1990, the Attorney General has designated nationals of four countries for Temporary Protected Status, and Congress itself designated El Salvador under section 303 of the Immigration Act of 1990. In March 1991, the Attorney General designated Kuwait on the ground that extraordinary and temporary conditions existed within the requirements of subsections 1254a(b)(1)(C), and Lebanon and Liberia on the grounds that there are ongoing armed conflicts as well as that extraordinary and temporary conditions exist within the requirements of subsections 1254a(b)(1)(A) and (C). See 56 Fed. Reg. 12745-47 (Mar. 27,1991). Most recently in September 1991, the Acting Attorney General designated Somalia under the extraordinary and temporary conditions basis of subsection 1254a(b)(1)(C). EAS 56 Fed. Reg. 46804-05 (Sept. 16, 1991). In each case, the designation was for a 12-month period. 8

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174 Each of these four countries has experienced a breakdown in the authority of the nation state and in its ability to protect its citizenry. While some of the nationals of these countries have a well-founded fear of persecution, many are unable to return solely because of the high level of disorder and chaos. By designating the country and authorizing these nationals to obtain TPS, the Attorney General recognized that it would be inhumane to return them to their countries regardless of whether they feared persecution under the refugee definition. Conditions in Haiti The current situation in Haiti is comparable to those in the countries recently designated by the Attorney General and plainly satisfies the criteria set forth in the designation provision of the statute. Indeed, the circumstances in Haiti, and the attendant flight of Haitians by boat to Florida, constitute compelling grounds under the TPS provision for designating the country and for providing temporary protection for its nationals. On September 30, 1991, a military coup took place in Haiti overthrowing the democratically-elected government of Jean Bertrand Aristide. Since that time the situation has descended into chaos, with military forces loyal to the junta reportedly engaging in the murder of Haitian citizens, armed intimidation of the Haitian legislature and forced expulsion of the delegation from the Organization of American States (OAS). According to 9

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175 credible reports, hundreds of people have been reported killed, the county is in state of siege, dissent is stifled, and there has been a substantial breakdown of law and order. In addition, supporters of President Aristide have been arrested, journalists covering pro-Aristide demonstrations have been harassed and arrested, and television and radio broadcasts within the country have urged the public to turn in persons identified as Aristide supporters or members of his government. There are also reports that high-ranking members of the Tonton Macoutes are returning to Haiti. The coup in Haiti has been condemned by the OAS and has led to a series of economic sanctions by the United States. These include the suspension of all direct aid to Haiti on October 2, the blocking of exports to the Haitian police and military on October 3, the freezing of the Haitian government's assets and prohibition of all financial transfers to the illegal Haitian government on October 4, and most recently, on October 29, an executive order formalizing a comprehensive trade embargo on Haiti. As intended, the economic and trade embargo is having a profound impact on the state of the country. Electricity is reported to be rationed due to the shortage of imported oil, and kerosene and gasoline are said to be in extremely short supply. Even greater chaos and violence at night are feared if electricity becomes unavailable. In issuing the trade embargo order, President Bush cited the "grave events in the Republic of Haiti that are continuing to 10

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176 disrupt the legitimate exercise of power by the democratically elected government of that country" and which "continue to constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States." In conjunction with this order, the State Department instructed all non-essential personnel to evacuate Haiti and urged all U.S. citizens to depart the country as soon as possible. In the face of these findings and the events of the last 60 days, it appears indisputable that the criteria for TPS designation are met. See 8 U.S.C. 55 1254a(b)(1)(C) & (A). Recent reports indicate that prospects for a restoration of the Aristide government may be improving -in large part due to the universal and vocal international condemnation of the coup and the effect of the embargo. However, the situation is extremely volatile and risk to persons within the country remains great. Under these circumstances, deporting Haitians already in the United States or those who will arrive, or forcing the return of those who are now on Coast Guard boats or in Coast Guard custody, cannot be reconciled with the humanitarian principles or legal standards embodied within the TPS statute. The urgency of designating Haiti for TPS is underscored by the flight of Haitians directly to the United States in flimsy boats on dangerous seas. As the country to which the Haitians are fleeing, the United States is the "country of first asylum." This status imposes special obligations on us to accept individuals and to afford them protection, at least until a more 11

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177 orderly international response can be implemented. For many years, the United States has urged other countries to accept refugees from neighboring areas who have fled persecution, political turmoil, war and natural disaster, and we must now do the same. For example, we have asked Thailand to provide refuge to Laotians and Cambodians, Malaysia not to prevent Vietnamese boat people from landing, and Zimbabwe not to refuse entry to Mozambicans. The United States has correctly contended that the international system of refugee protection and burden-sharing cannot function if individuals are not given immediate, temporary protection by the country of first asylum. Now, like some countries in Western Europe, we are the country that is immediately bordering on a refugee-producing area and we are confronted with individuals fleeing directly to the United States. Notably, the numbers remain far smaller than in many areas of the world and the resources of the United States far greater than many countries forced to contend with the consequences of such forced migration. Our response to this situation is a crucial measure of our commitment to the international and domestic principles of temporary humanitarian protection. The United States has long undertaken the limited and orderly admission of refugees from overseas. That is appropriate and commendable. But such admissions cannot and do not substitute for affording temporary protection to persons fleeing to the United States as a country of first asylum. 12

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178 The History of Treatment of Haitians Failure to designate Haiti pursuant to the TPS provisions would perpetuate a sad legacy of discrimination and mistreatment of Haitian refugees in the United States. When thousands of Haitians first fled the brutal Duvalier regime in boats to Florida more than a decade ago, they were greeted by policies and practices of the Immigration and Naturalization Service (INS) that resulted in unprecedented detention and widespread denial of due process. Unlike prior and subsequent boatloads of Cubans, who have been "paroled" into the United States, who are largely free from detention, who are authorized to work and who eventually obtain legal permanent resident status, Haitians have suffered systematic detention and deportation. The litigation challenging the discriminatory treatment of Haitian refugees chronicles the abuses that occurred. For example, the courts found that the INS had adopted a special "Haitian Program" designed specifically to adjudicate, and to deny, as quickly as possible the asylum claims of Haitians. As the Fifth Circuit Court of Appeals concluded in 1982, "In sum, via the Haitian program, the government created conditions which negated the possibility that a Haitian's asylum hearing would be meaningful in either its timing or nature." Haitian Refugee Center v. Smith, 676 F.2d 1023, 1040 (5th Cir. 1982). The court affirmed the decision of the district court, which held in even starker language: 13

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179 [T]here was a program at work within INS to expel Haitians. Their asylum claims were prejudged, their rights to a hearing given second priority to the need for accelerated processing. .The violations (of due process] were discriminatory acts, part of a Program to expel Haitians. .The (INS] did not grant a single request for asylum During that time thousands of Haitians were processed. Those denials were not case-bycase adjudication, but an intentional, classwide, summary denial. The court is therefore presented with a pattern of discrimination which began .in 1964. Over the past 17 years, Haitian claims for asylum and refuge have been systematically denied, while all others have been granted. The recent Haitian Program is but the largest-scale, most dramatic example of that pattern. Haitian Refugee Center v. Civiletti, 503 F.Supp. 442 (S.D.Fla. 1980). The INS also singled out Haitians for detention and then transferred many to detention facilities in remote locations in Kentucky, New York, Texas and West Virginia. This too was enjoined by the courts, which found: Having made a long and perilous journey on the seas to Southern Florida, these refugees, seeking the promised land, have instead been subject to a human shell game in which the arbitrary Immigration and Naturalization Service has sought to scatter them [out of Miami where there is a substantial immigration bar as well as volunteer lawyers] to locations that, with the exception of Brooklyn are all in desolate, remote, hostile, culturally diverse areas, containing a paucity of available legal support and few, in any, Creole interpreters. Louis v. Meissner, 530 F.Supp. 924, 926 (S.D.Fla. 1981). See generally Jean v. Nelson, 472 U.S. 846 (1985); "Treatment of 14

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180 Haitian Refugees by the Immigration and Naturalization Service of the United States Department of Justice: The Need for Reform," Committee on Civil Rights, Association of the Bar of the City of New York (1982). Serious concerns relating to the treatment of Haitian refugees persist. Lengthy detention and problems of providing representation and attorney access to detained Haitians continue. In addition, there have been continued reports of abuse and mistreatment of Haitians detained at the INS Krome Service Processing Center. Last year, for example, the Haitian Refugee Center in Miami collected 100 affidavits from detainees alleging abuse by guards. After widespread reports in the press, seg, etg., Miami Herald, April 11, 1990 at p.1, the FBI undertook an investigation, which has been forwarded to the Department of Justice Civil Rights Division. To date there are no reports of any action being taken. Conclusion The current crisis in Haiti is a tragedy for its citizens and a challenge for the United States. Our response provides the opportunity to reverse the history of discriminatory treatment against Haitian asylum-seekers. We must match the President's forceful message condemning the military coup with an equally forceful message of humanitarian concern for individual Haitians who have fled to the United States. While the United States asks other countries to provide temporary refuge, we must recognize 15

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181 that -consistent with our designation of four other countries -the principles, the purpose and the provisions of the Temporary Protected Status law oblige us to designate Haiti under the statute and to give Haitians a temporary safe haven in the United States. 16

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182 Mr. MAZZOLI. Mr. Stein. STATEMENT OF DANIEL A. STEIN, EXECUTIVE DIRECTOR, FEDERATION FOR AMERICAN IMMIGRATION REFORM Mr. STEIN. Thank you, Mr. Chairman. On behalf of FAIR, I want to thank you and the committee for the opportunity to testify. We had hoped that the hearings that you had planned would be held under somewhat different circumstances, more conducive to tranquil deliberation, but clearly that is not going to be the case today. FAIR is, of course, interested in seeing immigration rates under an overall national ceiling of 300,000, and to the extent the American people care to admit 300,000 Haitians next year, that wouldn't particularly be of concern to us as long as other legal immigration levels were correspondingly reduced. Secondarily, we support the restoration of the lawfully elected President of Haiti, Jean-Bertrand Aristide, as soon as is possible. However, yesterday, with the issuance of a temporary restraining order in Florida, we have seen the final demise of the Refugee Act of the 1980's promise of even-handed and orderly treatment of refugees around the world and entered a new, age of divisiveness and group politics which will surely be divisive for American refugee policy for many, many years to come. Naturally, all persons who have watched the treatment of Cubans for the last 25 years would like to be similarly treated, and obviously the Haitians would like to be treated the same way Cubans are. Far from being invited to come, Haitians are being interdicted at sea and returned to their homeland. Some look at the situation and claim that America has been racially discriminatory in its refugee policy or that we are biased against Haitians and others. That is not so. Almost all of the millions of refugees accepted by the United States during the last 25 years have been members of racial or religious minorities. To the extent there is bias in the administration of refugee law, it should be corrected. However, most of that bias to date appears to be related more to foreign policy considerations than to ethnic or racial. So in that regard the United States has nothing to be ashamed of. U.S. refugee policy is inconsistent and politicized, and with that criticism we heartily agree. A truly humane refugee policy would give priority for temporary refuge in the United States for the actual victims of serious acts of persecution based on race, religion, and political beliefs. Currently, our refugee policy gives priority based largely on political considerations to many people who get permanent protection rather than temporary, and many people who arguable are not true political refugee gain that coveted status. These overriding foreign policy considerations continue to corrupt the theoretical basis of refugee policy, and recent examples include new regulations by the administration to grant asylum to anyone coming from China who does not like China's family planning programs. Such a policy would seem not to reflect humanitarian concerns but nothing more than election year politics.

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183 Another example is the current Lautenberg/Morrison language approved by Congress last year that allows certain Soviet and Indochinese groups to be adjudicated under a different standard than the rest of the world. It is precisely this kind of ill-advised politicization of our refugee policy, which we have been warning about for at least a decade, that has allowed our policymakers to be politically whipsawed by the Haitian interdiction program. Two decades of an open door policy with Cubans, playing politics with ballerinas, talented hockey stars, gymnasts have made the interdiction program look unfair, and I know and we know that the pain that the African-American community feels in this country for the appearance of unfairness in this program is real, and their pain is real, and it needs to be acknowledged; it is politically there. What do we need? Well, as Chairman Fascell noted, our asylum situation is out of control. Anyone who obtains physical presence on U.S. soil now receives a plethora of procedural process rights that make it almost impossible to remove people on a timely basis. We have also seen the utter collapse of multilateral cooperation within the OAS at a time when we desperately need it. The United States cannot continue to bear the entire load. The situation we have right now here is one we will increasingly see in the coming decades as the international labor force in very poor countries skyrockets in size, and dimension, and mobility. .In this case, we need multilateral cooperation and a staging area to provide a large-scale temporary housing facility. This facility needs to be outside U.S. jurisdiction, because notwithstanding .the efforts of U.S. courts to intervene, people who are outside the United States do not have standing to tie up the Federal courts for years. This would give us an opportunity to entertain asylum claims for permanent resettlement based on the U.N. definition and get the multinational governments cooperating to provide a one-shot asylum procedure and summary adjudication during this emergent period. Those denied asylum could be either returned back home or to a third country that cared to receive them. In any case, those nations granting relief could do so temporarily until the democratically elected Government of Haiti is restored. We need some kind of an orderly screening process. Simply letting everyone come into south Florida, however, is not the answer. Thank you very much, Mr. Chairman. Mr. MAZZOLI. Thank you very much, Mr. Stein. [The prepared statement of Mr. Stein follows:]

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184 PREPARED STATEMENT OF DANIEL A. STEIN, EXECUTIVE DIRECTOR, FEDERATION FOR AMERICAN IMMIGRATION REFORM Federation for American Immigration Reform Summary Statement Cuban and Haitian refugee policies are interrelated: they both represent examples of how foreign policy considerations can undermine the appearance of impartial treatment in the admission of true political refugees. Cuban Adiustment Act Discriminatory and Unfairly Preferential The Cuban Adjustment Act of 1966 affords Cubans who arrive in the United States a presumption of refugee status that almost no other nationality enjoys. The act grants Permanent Residence to any Cuban who obtains physical presence in the U.S. under color of law after one year. It is an open invitation from the United States to Cubans who wish to move from Cuba to the United States; it grants a favorable treatment afforded no other nationality. Haitians Not Discriminated A ainst Naturally, all persons wish treatment similar to the Cubans. Obviously, Haitians are treated differently from Cubans. Far from being invited to come, Haitians are being interdicted at sea and returned to their homeland. Some look at this situation and claim that America has a racially discriminatory refugee policy that is biased against Haitians and others. Not so. Almost all of the millions of refugees accepted by the United States during the last 25 years have been members of racial or religious minorities. To the extent there is bias in the administration of refugee law, it should be corrected. However, most bias to date appears to be related to foreign policy considerations, rather than ethnic or racial. U.S. Immigration Policy Politicized Other critics claim that U.S. refugee policy is inconsistent and politicized. With that criticism, FAIR has to agree. A truly humane refugee policy would give priority for temporary refuge in the United States to the actual victims of serious acts of persecution, based on race, religion or political beliefs. Currently, our refugee policy gives priority based largely on political considerations. While all true refugees gain protection, many persons who arguably are not true refugees also gain the coveted status. Whether a particular alien or group will qualify for unwarranted refugee status seems to depend on the political clout of his ethnic community in the United States, or on whether the United States Government perceives some overriding foreign policy angle. For example, we understands that the Administration is on the verge of granting

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185 automatic asylum to every illegal immigrant from China who claims that he or she is trying to escape China's birth control programs. Such a policy would seem reflect not humanitarian concerns but election-year concerns. Another example is the current Lautenberg-Morrison language that causes certain Soviet and Indochinese groups to be adjudicated under a different, more lenient standard than the rest of the world. It is precisely this kind of ill-advised politicization of our refugee policy that has allowed our policymakers to be politically whipsawed by the Haitian interdiction program: it is two decades an open door with Cubans, and of playing politics with ballerinas and hockey stars that has made the interdiction program look unfair. Policy Must Assure Maximum Safety/Benefits for Refugees The United States has been accused in the past of encouraging immigration from countries like Cuba and Vietnam as a means of embarrassing their communist governments. In the case of Vietnam, the United States was specifically accused of leading hundreds of thousands of Vietnamese to their deaths at sea through radio broadcasts which held out an unrealistic vision of safe passage across the ocean, followed by automatic asylum. The Administration is now being pressured by some interest groups and some members of Congress into doing exactly what previous administrations were accused of doing -sending signals to Haiti that will produce a massive flood of desperate illegal immigrants, thousands of whom would perish at sea. WHAT WE NEED. We need multilateral cooperation. The U.S. cannot be expected to again take the entire load. We require 1) a multilateral staging area and 2) temporary housing facility. This temporary staging area outside U.S. jurisdiction would provide temporary shelter and an opportunity to make an asylum claim for permanent resettlement based on the U.N. definition of a "well founded fear of political persecution." The government's cooperating would provide the resources for a one-shot asylum procedure and summary adjudication. Those denied asylum would be returned home or to any third country that cared to receive them. In any case, those nations granting relief would do so temporarily until a democratically-elected government was restored to Haiti. Depoliticization of Immigration Law and Repeal of Cuban Adjustment Act Supported The administration's policy of placing pressure on Haiti's renegade government, of encouraging Haitians to remain in their country and work for positive political change, of interdicting those who attempt to arrive in the United States by sea, and of returning them to their homeland or a safe third country if they cannot make a claim of bona fide 2

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186 political persecution, is far, far more humane and more consistent with American law than any other policy the administration could devise. The problem with the Haitian interdiction policy is not that it is "racist," but that it is not consistent with the biased treatment given to would-be refugees from politically-favored groups. This appearance of preferential treatment is real, and must be roundly condemned by all fair-minded Americans. As long as U.S. refugee policy excesses are based on political, rather than humanitarian considerations, advocates of racial and religious groups who do not qualify for special political treatment will hurl charges of discrimination. In the case of Cubans, the inconsistency and unfairness in the present system cannot be blamed on the current administration. That inconsistency and unfairness is written into the Cuban Adjustment Act by the Congress of the United States. Congress had a chance in 1986 to repeal this Act and did not. Unless Congress is willing to change this unjust law, which does, indeed, discriminate, it will lack the moral authority to criticize the attorney general or anyone else about inconsistencies in American refugee policy. 3

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187 Mr. Chairman and members of the committee, thank you very much for the opportunity to appear on behalf of the Federation for American Immigration Reform (FAIR). My name is Dan Stein and I am the executive director of FAIR. FAIR is a national nonprofit, public interest organization working for rational immigration policies for the United States. My testimony today will discuss U.S. immigration policy as it applies to the current situations in Cuba and Haiti. The Cuban Adjustment Act In 1966, seven years after Castro's successful revolution and five years after the abortive Bay of Pigs invasion, Congress, for political reasons, drafted and enacted unique legislation to address very special circumstances: the Cuban Adjustment Act of 1966. Through the Cuban Adjustment Act (CAA) Congress sought to provide brave Cubans who escaped the "sugar cane curtain" for safe options once they reached the U.S. Many past legislators and the Cuban community in Florida also see the CAA as politics against a former Soviet policy with military capabilities and a revolutionary spirit. The CAA requires Cubans to legally enter or be paroled into the United States in order to qualify for adjustment of status to lawful permanent residence. Under CAA rules, a Cuban national must either obtain a visa to visit or, at the very least, arrive in the United States at a designated port of entry to seek parole. At the time the law was enacted Castro's policy was to prevent Cubans from emigrating. Not only were Cuban citizens watched and the shores guarded, but those seeking visas from the American interest

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188 section of the Swiss embassy were ostracized and persecuted. Faced with these hurdles plus the dangers of a sea crossing, the numbers of Cubans entering the United States were limited and kept at a manageable level. While the CAA provided new opportunities for Cuban immigration, at the same time it violated a basic tenet of U.S. immigration law established by the Immigration and Nationality Act Amendments of 1965. The 1965 Amendments specifically repealed the concept of national origin quotas for immigration. Ostensibly, from this time on, the United States would no longer base qualifications for immigration on nationality or national origin. (See attached July 28, 1991, Palm Beach Post article.) As could have been predicted, the Cuban Adjustment Act's specific provisions became more problematic as circumstances changed both in Cuba and around the world. Castro's About Face By the late 70s, the Cuban revolution lost its luster and its economy was in disarray. Castro suddenly saw economic and political benefits in sending thousands of Cuban malcontents, misfits and criminals to the United States. Understanding provisions of the adjustment act, he forced boat operators to take the undesireables along with their "lawabiding" passengers to designated ports in hopes of assuring their getting resident status after entering the U.S. Decrying this unwarranted abuse of its law, the United States 2

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189 forcefully challenged what is known as the Mariel Boatlift, stopped the flow of emigres and sent many home. But Castro was not through with his manipulation of U.S. law. Upheaval in the world community in the late 1980s and in this decade has isolated Cuba further and withdrawal of Soviet support sent the Cuban economy into a tailspin. In recent months Castro, desperate for hard currency, has seen a vein of gold in the Cuban Adjustment Act. Why not sell U.S. visas at high prices? Hundreds of thousands of Cubans living in the U.S. would be happy to put up millions of American dollars for exit visas for relatives and friends in Cuba, since legal admission to the United States as a visitor virtually assured every Cuban arrival permanent residence. Hard cash would be raised and the most discontented Cuban citizens would exit the country. Castro wanted his people out and American dollars in. By using the Cuban Adjustment Act, he could stall the inevitable demise of his regime and perpetuate the suffering of his people. For these reasons alone, FAIR believes that the Cuban Adjustment Act is no longer viable immigration policy and should be repealed. Furthermore, CAA contradicts the non-discriminatory immigration policy of the Immigration and Nationality Act because of its national origin basis. Excused as a tool of the Cold War, it should now be seen as unfair special-interest legislation. In fact, CAA discriminates in favor of Cubans, to the exclusion of every other nationality in the world. 3 51-225 0 -92 -7

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190 Like tax credits, if one group has benefits others will ask for the same. If the CAA is not repealed, the U.S. could retrogress to the national origin policy of the past. Haiti 1991 is not Cuba 1966 Most of Haiti's trouble and turmoil are homegrown and should be treated as such. Those demanding special treatment for Haiti along the lines of that accorded to Cuba under the Cuban Adjustment Act should not be heeded. Those crying discrimination because such favored treatment is not extended should be dismissed as well. Haiti is not Cuba and the discriminatory (in favor of Cuba only) aspects of CAA should not be extended to Haiti or any other nation. Such an extension would be inappropriate immigration policy for the United States. Haitian Interdiction Program Much criticism has been made of the process of intercepting Haitians at sea and returning them to their homeland. There are suggestions that the Coast Guard end its interdiction of craft from Haiti. FAIR believes that not only is the interdiction policy justified under national, international and Haitian law, but that it is the only practicable course. 4

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191 The Immigration and Nationality Act [Sec. 287(a)(3)] authorizes, and, by implication, obligates officers of the Immigration and Naturalization Service (INS) to board and search vessels within territorial waters of the United States to prevent the illegal entry of any aliens. It is not a phenomenon unique to craft coming from Haiti, either. Recently pleasure vessels have been interdicted off the coast of California carrying illegal Asian immigrants from tanker ships to U.S. shores. Haiti is an open country where U.S. vessels can travel without such activity being interpreted as an act of war. Not only can the United States enter Haitian waters and ports, Haiti has agreed to interdiction on the high seas and the return of those citizens who have attempted to enter the United States illegally. The opposite is true of Cuba. It is not an open country; any U.S. vessel, public or private, entering Cuban territorial waters is considered to be hostile and subject to a military encounter. Cuba does not want its citizens returned, instead it is now trying to get them to leave. There are humanitarian reasons for the interdiction program as well. The nearest U.S. mainland landfall is over 550 miles from Haiti. Many launch their trips in rickety, leaky craft, unsafe to cross even the calmest pond, much less hundreds of miles of treacherous ocean. Few who try the journey possess even basic navigational skills. Many have little concept of the distance or time it takes to traverse the ocean waters between Haiti and Florida. All too often boats are encountered without provisions, awash at the gunwales, 5

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192 about to sink. Without the interdiction program, it can be safely said, many thousands of lives would otherwise have been lost. The Real Question is "How Much Immigration?" The United States already accepts twice as many legal immigrants and refugees as the rest of the world combined. Now, more than 800,000 immigrants will legally enter the country each year, including special cases such as the lottery provided under the Immigration Act of 1990. Another 144,000 world-wide refugees are also allowed annually. These numbers do not include the estimated 4 million illegal immigrants already within U.S. borders. Real questions can be raised about whether a nation of 250 million citizens can continue to absorb larger and larger absolute numbers of immigrants -more than the numbers entering around 1900, when the frontier was open and the United States was a pre-industrialized society. Eighty years ago the environment was still mostly intact. Although signs of stress caused by the nation's growing population had become apparent, the irreparable damage and societal breakdown directly attributable to too many people in too small spaces were yet to come. Latin America harbors 370 million individuals whose numbers are projected to swell to 700 million by the middle of the next century. World population, now at 5.4 billion is projected to grow to at least 10 billion within the same time frame. In 1991, at least one billion humans are starving or living in abject poverty. A state department official has 6

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193 estimated that if the U.S. visa system were liberalized, very probably 100 million would apply. The United States cannot accept even one percent of that number in addition to the millions of legal and illegal aliens who come in annually and expect to preserve the stability of its political and economic system. No country could. And What About Jobs? Presently, eight million Americans are out of work, 6.4 million have part-time jobs and another million have given up looking entirely. The outlook is not bright. Economic growth remains stagnant, and job creation is at a standstill. Given these conditions, it is the height of folly to encourage more immigration to the United States. In FAIR's view even the appearance of free entry into the United States would court disaster for both the U.S. and Haiti. The Florida job market is flooded, its service system overloaded, the state budget in deficit and the taxpayers in revolt. At this same time, almost five million (or 77 percent) of Haiti's seven million residents are absolutely illiterate. Most will end up in center-city slums, in a strange world, with few support services and ill-equipped to compete in an increasingly high tech society. 7

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194 Senator Mack's Resolution Recently, Florida Senator Connie Mack introduced a resolution in the U.S. Senate calling for the cessation of the United States' Haitian interdiction program. If this were achieved, Senator Mack would make a hazardous ocean crossing the only barrier between the island's inhabitants and the state of Florida. Passage of this resolution would send a message that will lead thousands to perish at sea and other thousands to be cruelly disappointed after arrival. Is Immigration the Only Solution? The United States is a nation of immigrants. It believes in immigration. It has renewed itself through successive waves of immigration. Yet, since the 1920s, Americans have agreed that the doors should not be wide-open, that there should be limits. Limits have been agreed to, but, whenever things go wrong elsewhere in the world, particularly if the United States has been part of the problem, immigration has been opened-up to "solve the problem" and "salve the collective conscience." In reality, what happens is that a select few are helped while the rest are left behind to suffer. Such was the case with Cuba, the same was true for Vietnam, for Laos and Cambodia. The same will happen to Haiti, a few will be saved, but the island will be left to smolder and send forth more and more emigres. 8

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195 What About an At-Home Approach? The governments of both Cuba and Haiti are international renegades. The community of nations should be seeking reasonable and permanent solutions for countries like these. As Morton Abramowitz pointed out in a policy-changing article (Washington Post, October 13, 1991, attached) the world community worked together to solve the Kurdish problem on site rather than create another international refugee problem. Solve the problems where they occur. Most people would like to stay in their homelands. A solution for Mexico, an immigrant sending nation, is economic growth. A free trade act that would promote such growth and also control immigration and environmental concerns would be a step in the right direction. Haiti's problems can be best addressed by focusing on economic restoration for the island. Rather than settling and assimilating a few refugees in this country at extremely high cost to the U.S. taxpayers, these dollars can be redirected to affect the lives of hundreds of thousands on in their homeland. Only those in danger of actual persecution by the military junta should be accorded consideration for asylum under U.S immigration law. Continuing massive immigration to the United States is not a long-term solution for Cuba, either. Here too, attention must be turned to economic growth and Cuba should 9

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196 rejoin the the world trading community. Now that the Cold War is over FAIR would recommend repeal of the Cuban Adjustment Act to end preferred treatment for Cuban nationals and to bring immigration numbers in line with those accorded other nations. Conclusion In conclusion FAIR: 1. Calls for the repeal of the Cuban Adjustment Act of 1966, and other forms of special treatment for immigrants with ties to politically influential groups in the United States; 2. Supports admitting refugees and asylees based on genuine claims of persecution, not political considerations; 3. Supports, when possible, resolution of refugee problems in the source countries as the most humane and cost-effective solution. In times of extreme emergency, such as war, revolution or famine, FAIR supports temporary refugee assistance in the source country or in neighboring countries until conditions permit safe repatriation; and 4. Supports the principle, established by 1965 amendments to U.S. immigration law, that the admission of refugees and other immigrants should not be based on race, religion or national origin. 10

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BEACHPOST July 28, 1991 Blanket acceptance of Cubans is an .idea 3 decades out of date By OANIEL STEIN In 1966, at the height of the told War, the United ;States instituted' the Cuban Adjustment Act which: In effect, guaranteed any Cuban citizen who made it to these shores; the right to-remain permanently;' Like so many Cold War-era poli-i ties, a blanket assurance of refuge for all :Cubanis' inde-little sense. even when-. EastVest tensions {-ere at theirnost acute In 1991 tuch a policy is simply irrational. Blindly admitting any and all Cubans who reach the United' States is unfair to people of other nationalities. who would. like.-to come here,> unwarranted from-.a Luman rights standpoint, and count terproductive to our long-term political objectives.''For' the:tmost part, the Cubans arriving today are fleeing poverty, just as people from many other nations would liketo do. And, while Cuban President Fidel Castro's human rights record Is admittedly abysmal, there are all too many other governments that are as bad, or worse? Iflour bbjective is to improve these condi: tions, the answer is to remove the source of the probiemi?'Fidel Castro -rather than relocate the Cuban population. Cuba falls on hard timesWith the elimination.of subsidies from the Soviet Union, Castro's Cuba has fallen on even harder economic times .than -have existed throughout his 32-year dictatorship, The Cubans who are arriving in growing numbers as tourists or on leaky -boats, are motivated by the same aspirations as the Mexicans, Haitian, Salvadorans and countless other illegal immigrants. Theyare looking to-escape the grinding'poverty of. their homeland. This a perfectly understandable human desire. But it is inherently unfair to welcome economic migrants from one country, while deporting similar migrants from almost every other country. -Fidel Castro For decades, e have had this .childish -need.to prove that our political and economic system was superior to communism-.Fe have -naively believed -that the sight of his citizens risking life and limb to -escape his-regime was an embirrassment to:Castro. -Me.-nwhile, Castro has been quietly rid-ing his island of political oppocnts and emptying his prisons of criminals.In a world with 16 miion officially recognized crefuge-es -and countless millions more at the merc-v of ruthless.dictatorships warring clans and hostile neighbors, it is hard to make a case that Cubans aremore?;persecuted -than other nationalities.-The abuse of human rights-by Castro. cannot be mini. mized. But. neither.can human rights abuses in dozens of countries in Africa, Asia and elsewhere: Single-minded obsession -Yet we continue to grant blanket immigration benefits to Cubans (who, as individuals, may or ma: not be persecuted) while millions of -others languish in refugee camps all around the world waiting for an opportunity.at resettlement. The only difference is that this country has had a single-minded obsession with Castro for-more than three .decades, while -persecuted people 'elsewhere had 'the misfortune of being born in'countries with despotic rulers we dislike less. :-Almostfrom the day Fidel Castrt swept-out of the Sierra Madre mountains to take control of Cuba, it has been. the implicit (and often explicit). goal of the U.S government to. see -him' overthrown. Countless covert adventures later, Castro is still in power. As we-look at other-countries that have overthrown communist or .authoritarian -governments in recent years, we find that in each case, the revolution was sparked from within. With a domestic opposition in place, the forces of democracy were able to pick off, one by one, the rotting regimes of Eastern Europe and Latin America. But instead of an organized opposition in Havana. poised to overthrow the despot, Castro's opposition is com.fortably ensconced 90 miles away in Miami. From there they are free :o howl about what Fidel has done to their island, and little else. Relic of the Cold War With a new mass exodus from Cuba a real possibility; as Castro seeks an outlet for the frustrations now building in Cuba,-it is time for the United States to re-evaluate a ;xicy that is, today. little more than a relic of the Cold War. The tme has come to repeal Cuban Adjustment Act of 1966 and end the special privileges afforded to one nationality over all others. --The great ideological contest is over, and -e won. Even Fidel Castro undersoands that by now -it's time we did, too. -Daniel Stein is the executive director of the Federation for .American Immigration Reform in Washington, D.C. 197 PALM

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Tilt: \f1usil11c Iri1'00 I Morton Abramowitz The Next Refugee Deluge This has already been a banner deThe United States and its coalition partcade for refugees. We have seen millions ners agreed, owl forced Sac to allow of new ones from the Middle East and the Kurds hock in areas not oode effecAfrica alone. We can expect plenty more tine'Iraqi government control-a unique from the fractured Soviet empire, the situatiwi. The saga may not be over. and Balkans, Cuba as well as from less develat least a lioa commitint has aeen hoped areas. Thousands of others will be male to the Kurds. displaced within their own countries. The 1988 experience oanot reBillions of dollars will be needed for pealed tis year bacaune of practical relief and resettlemient. New internahut iot particularly principled reans. tional rules are urgently needed for getThe enodis was too sudden, ton large ting refugees home by confronting more and ton vivid o TV far the world to directly the governments producing refaccept. Most important. the coalition ugees. The recent experiences of Iraq's was willing, legally or t, In force a Kurds have improved the prospects. return of the Kords down the throat of In August 1988, some 70,000 Kurds a iearen aid despised enemy. fled from Iraqicheniical attacks to Turfintorically, oie refugees fleeirigkey. After some ritualistic denunciations, ear and political percutin have eveiWestern governments, including the tiiily retvrr hrie leg. frii Salvo. United States, quickly resumed business dir ind Angola), but not many iii with Saddam 'Hussein, but pressured srlrlniuickly. Moot have fui inreliTurkey to take the Kurds off its mounrite asylim in ither regions of their rain border aiid provide asyn to tohen country cr in reighboring conis. or in the interior of Turkey. Despite dothey became l er erruuirests mestic political difficulties, the lurks ahroai. Siie refrgeen, like the Caraccepted the Kurds; today half of them hurditn, emain in their ro-n's-land remain in canrros within Turkey, largely ung tie llai-Crriifio bondr fler forgotten by the rest of the world. 11 years, ir short, practical military and When the Kurds fled again into Turpolitical considerations rave prevailed, key (and Iraii) three years later, the sovereignty rverrore huranitariaisr story started the same but ended rifani gnverimen ceating efugee robferently. Pressures were again brought leis lave succrsslly transferred ther on Turkey to take Kurds-this time half In tie rent ot tre wr, in stie cases a million-into the interior of Turkey. even li agreement. Some in the interational community, in Sul thin historical paleen pevil? the interests of the principle of first fr (iies lie recent Itaqi-Kurd esiriasylum. wrprepared to see nottii cruic offer a rthie prch? Wire Iraqi government but the Turkish govshiiid iori pressires he ayplied to ermnent possiblybrought down. The take care of large niiirs nf mistreatTurks this time refused and insisted that en. dentitite people-o the grvertthe Kurds he turned ioniortherIrlaq sent pKuridrcing te rreen ner si C8 iAlo nnuat ltt 1 i)3,1991 bystander governments nearby or around the word? 130 we consign Inrgoe numbers of people to wretched conditions outside or even inside their contries for indeterminate periods, or do we somcholy force their return to their homes, protect them, and compel a change in the policies creating the exodus? International norms conflict, and reconciling them poses sharp dilemnis for all countries and for the internationat community. The elements that produce refugee crises are varied. Ethnic hostility may soon replace war as the major stimulus. We may not see another Iraqi-type situation, which more easily permits a massive degree of 'humnitarian intcrventiof in the offending country. TIi principle of first asylum has been a monument if ti1e postwar world. It needs to be preserved. Resetlment of ire-fu s has vastly enrirlwel the United Stltes. Itll tile past shoul no longer stop us, where appropriate, frm innking the internal behavior of countries a center ii ])riraps lte Ciii l er of inicrnational management of refugees crises. We are, likely, in the end, to rdo refugees more good by insistirig oin and securing their relun than by leaving them indefinitely in camps. Going in this direction aies many practical problems. So does caring for and reocitling refug-es. Forcing Castro to take back refugees fi lre nxt Cuban wvc mary not b the Seruri il Councilcs cup of tet or something the United Slates would be prepared to do on its own. Nor do we want to compel refugees to return to Caslrrul. rut it is not beyond the international commrunoly 1i -x.-rl ,ists n r contri-s hal create refugees. Each situation will be different, but world pressures if mobilized and concerted can make a differeice. thie charges in the world mkr that effort easier. We can start ill his direction by doing the following: .negin talks in the United Nations on drawing lp and agreeing to realistic principles to deal with the competing issues of sovereignty, bad governments and refugee outflows. .Develop practical means in the U.N. system to help with internally displaced refugees of repressive or incompetent governments, including a mandate for one or more U.N. Iminaritrian lgccics to have an agreed role in such cil t 1111 Irsac Iies, .Ifilrlil permilr-t emergency authority for welbpreped U.N. currs to travel anywhere ill ay country imriini-y al the ultsel of ;I refugee crisis, i inuke clear the responsibility for the crisis and to set out practical requir-nrts for dealing with the immltheil~th :old safety of r-fugers. The responses to refugee crises in the postwar world have been necessary and impressive, lRt conrditions are riper for iellr. ui ll itely I lrore i1r1m1110 sol tions. If we get ready before another deluge, lie next decade might reduce the number of refugees rather than making it necessary io cnre for more victims. The writer is /residnf /the anrurgic lindowrnrn/uri International Peac and atfornier U.S. ambassador to Thailand and Turker.

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199 Mr. MAZZOLI. I thank all of you for adhering to the very rigid and difficult time limits. But let me mention first, Mr. Stein, I think you are right; I really believe that there is a need for an examination of just where we are and where we are going, because ever since-at least since the last 2 or 3 years and all the remarkable changes which have occurred around the world, we really have a very different-again, these are terms-world order. Of course, we need not but pick up the paper and figure out that Germany itself is experiencing tension and strain because of the Volga River Germans coming back home because of Eastern bloc people who want to come to Germany, Eastern Germans going to the western part of the country. So in this effort we, the United States, would be just part of the world's nations trying to figure out what to do. How would you handle the situation? Chairman Rangel and others talked about the tiering, that we have a first-tier problem of the emergency, the people on cutters, in situations I don't think any one of us would think would be appropriate for human beings. Then you have the more distant process of maybe changing the law. How would you handle the first tier? What would you really do now? If you were the President of the United States, how would you handle those people now on the cutters and people that might be pushing their little boats down to the water and about to enter the Windward Passage? Mr. STEIN. Well, one thing I would do is, I would call Mr. Rangel who, now having crossed the aisle, would clearly be more amenable to the administration's suggestions. But second, I would recognize that it is the appearance of impartiality with the Cuban Adjustment Act which has created the political difficulty of admitting people who are fleeing an emergent situation to the United States truly temporarily, there being virtually no evidence in the last 20 years of anyone who has been admitted temporarily, at least as a group, being subsequently asked to go home. It is out of concern for the communities who would be trying to accommodate the newcomers that you simply can't allow an uncontrolled situation to happen. First, I would say that I think the last decade of the administration's policies have failed to recognize that the situation occurring now was eminently predictable, and the situation which may be happening in the final convulsions of the Castro administration will also likely produce this same kind of effect, and that we have to have the kind of multilateral cooperation to have large-scale facilities, some in south Florida, some in the Dominican Republic, some in Honduras and other countries where the political stability is greater. Mr. MAZZOLI. But with respect, I agree with that. Mr. STEIN. To house people temporarily, but to admit to the U.S. people who are bona fide political refugees. Mr. MAZZOLI. In other words, you would still make the distinction with the people on board the cutters. Even now, if yoi were the President, you would still insist on a distinction between economic migrants and political migrants. You would still try to make

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200 those distinctions and differences even with those on board the cutters? Mr. STEIN. If we had a swifter way of adjudicating claims on U.S. soil, it would be different, but the interdiction program is a byproduct of the unrealistic procedural process. Mr. MAZZOLI. You said something that was interesting and deals with what Ms. Dominguez said about the Cuban Adjustment Act. You said that that creates an appearance of inequality or unevenness. You may have been in the room when I suggested that maybe we would not want to send any Cuban national back home who somehow wound up in Florida or in the waters around Florida, but I'm not sure we need at this point to then automatically adjust them, whether they come here illegally, whether they come in on visitor visas and overstay or whatever. Now, any Cuban who is here adjusts, and 1 year later that is it. Ms. DOMINGUEZ. May I correct that? Mr. MAZZOLI. Yes. I would just ask a question. Would there not be a way to treat Cubans fairly by saying, "Sure, we're not going to send you back, but we're going to put you in a position like we put other people, which is to say that you have either TPS, or you have a period of review, or you are paroled in, and when things in Cuba get better, we'll send you back." Wouldn't that be still a fair way to treat Cubans and yet not set up this very distinct program for them as against Haitians? Ms. DOMINGUEZ. First of all, let me correct a statement that you made. Not every Cuban that comes in gets adjusted. First of all, they have to come in by inspection. If those Cubans come through the border Mr. MAZZOLI. So if they come in illegally, they don't qualify for being adjusted. Ms. DOMINGUEZ. Well, both categories come in illegally. Mr. MAZZOLI. But any Cuban who winds up down at Hollywood, FL, is going to be admitted. I mean they are going to have a certain procedure, and then they can ask for asylum and get it, right? Ms. DOMINGUEZ. If they get intercepted by an INS officer or the Coast Guard, yes, they will be adjusted, but not if they come through the airport and they are able to get through the airport undetected with a fraudulent passport. If they come in EWI-enter without inspection-they will not be able to adjust. So this law that we are talking about only pertains to those Cubans that are rafters. Mr. MAZZOLI. I think it is fair to say that the huge bulk of Cubans who have come in here qualified for Cuban adjustment. Isn't that a fair statement? Ms. DOMINGUEZ. I think it would be 50-50 percent. Mr. MAZZOLI. Only? Ms. DOMINGUEZ. Yes. Mr. MAZZOLI. Well, I appreciate that. Ms. DOMINGUEZ. And Cubans do not get automatically asylum status either. Mr. MAZZOLI. Pardon? Ms. DOMINGUEZ. They do not get automatic asylum status either. The people that come through the border, in fact, a lot of them get denied for asylum.

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201 Mr. MAZZOLI. Well, I am going to check this out, because my impression has been that it has been a fairly routine and fairly automatic sort of situation. Ms. DOMINGUEZ. I think that is a misconception. Mr. MAZZOLI. It may well be. Would not fair treatment be, whether you come in without inspection or with inspection, come in as a Cuban, come in as a Haitian, that we treat everybody the same?. Ms. DOMINGUEZ. Well, Mr. Chairman, let me go back a little bit. The U.S. Government, in denouncing before the United Nations Cuba as the greater violator of human rights, is, I think, hypocritical then to stand and say that the Cubans should not be adjusted because they have to follow a certain procedure rather than dealing with them through the Adjustment Act which was, in fact, taking into consideration all thoseMr. MAZZOLI. The impression that I have and the general information I had been led to believe was that virtually every Cuban who gets here is eventually going to be adjusted, and not every Haitian who comes in here is eventually going to be adjusted. So there you can understand where there appears to be this awkwardness in the law, this unevenness, this lack of balance. Ms. LITTLE. Mr. Chairman, could I just add one statement? Mr. MAZZOLI. Yes. Ms. LITTLE. In making our statement, we weren't suggesting that Cubans are getting better treatment than they deserve, only that Haitians receive worse treatment than they deserve. Mr. MAZZOLI. I'm not trying to give anybody better or worse, I'm trying to give even treatment. I mean what is good for the goose is good for the gander. I mean if we are going to interdict Haitians, why not interdict Irish? Why not interdict Italians? Why interdict only Haitians? So I am saying what this panel is confronting is a situation in which it appears that the deck is stacked. It may not be, and those may be only misperceptions, as Ms. Dominguez says. It would appear that the deck is stacked, and I think that in a nation like ours we have to be always vigilant to excise those things which would appear, even if not reality, but would appear to skew the deck in somebody's favor or against somebody. I will come back to another line of questions, but I want to yield now 5 minutes to my friend from New York. Mr. RANGEL. Thank you for the courtesy, Mr. Chairman. Mr. Stein, I know you came prepared to deal with the overall immigration policy, and I know that is what your organization represents. But since you went out of your way to recognize that you were aware that I have targeted the crisis that exists with these Haitians on the high seas, and you also were kind enough to recognize that those of us who are African-Americans have a real emotional and political concern about these people, having said that, I recognize that, with the exception of the Native American, everyone has some vicarious concern about some country where some of the people in their background have come from, and it is really an exciting experience-the opening of Ellis Island and the visit to the Statue of Liberty. Have you gone through a similar experience? and, if so, what country?

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202 Mr. STEIN. Well, for me the experience would be the Ukraine, which throughout most of my political formative stages was invisible as a sovereign entity, and since my grandparents left the Ukraine without retaining any nationalistic allegiance, and being a native of Washington, DC, and born and raised here, I guess my strong feelings of concern have always been very U.S. based. Mr. RANGEL. You mean you have no specific feelings of emotion for Ukrainians? Mr. STEIN. Not particularly. I have considered myself concerned about the world in general and people Mr. RANGEL. I understand. But Ukrainians specifically-you don't attend any particular meetings that they have or read anything with any interest that happens in the country, and if 2,000 of them were on the high seas you would refer them to the existing immigration law. Mr. STEIN. No. Certainly one can understandMr. RANGEL. No. I'm just asking, if 2,000 Ukrainians were bobbing up on the high seas, and assuming the situation existed that a lot of them had been shot at and Mr. STEIN. I'm more-personallyMr. RANGEL. I just want to know whether you throw at them the immigration law while they are on the boat. Would you ask them to define their status while they were on that boat? and that boat being, as you and I as Americans, a U.S. Coast Guard vessel-how would you handle it? Mr. STEIN. Well, it depends on the context. Mr. RANGEL. Assuming your grandparents were here, listening to you. Mr. STEIN. As we noted yesterday in our debate on CBS "Night Watch," I think it was, we discussed the fact that people had been leaving Haiti since the Duvalier regime had been in power and Mr. RANGEL. You keep doing this to me, Mr. Stein. I couldn't get you on television, but I can get you now. What I'm saying is, we are only talking about people who were on the boat, and, quite frankly, I don't care where they come from; I don't care whether they come from Haiti, West Africa, Cuba, Ireland, Israel, or the Ukraine. I'm not talking about what we have done wrong in the last 20 or 200 years. I'm not even saying the Indians were right in allowing Columbus to land. What I am asking is, we have got 2,000 human beings here, and they are on the high seas, and forgetting all of the wrong that has been committed in the past, I'm not trying to change the law for the Cubans, I'm not trying to improve anything, I want to know, Mr. Stein, what would you do if they were Ukrainians? Mr. STEIN. I would support the development of a nonbiased administrative procedure to determine whether people were fleeing because of a well-founded Mr. RANGEL. If there is a life hereafter, Mr. Stein, you are in deep trouble, you know. I don't believe that you believe that. I have too much compassion for you as young man going through your formative years to believe that to these people this is what you would do. But then again, you are being paid by an organization that has a different status.

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203 I was really trying to separate yourself from the organization and not separate you from what the organization believes in, and not even taking you away from your testimony. I just would want to know, could those Ukrainians depend on you to be fair? Mr. STEIN. Me personally, absolutely. Mr. RANGEL. OK. Well, that is all the Haitians ask. Mr. STEIN. I think this country at this stage of ourMr. RANGEL. Fairness is enough. That would be the standard, and that would allow them not to return to Haiti. Mr. STEIN. I think everything about my testimony suggests that the appearance and fact of fairness must be the overriding consideration in any refugee policy. Mr. RANGEL. You are almost there. We appreciate it. Mr. McCalla, the administration has indicated that the only reason they are doing this is for humane reasons; they just don't want a lot of Haitians getting into ships and drowning, and that is their own moral argument. They don't mind doing the right thing and taking them in, but once we take in 1,000, 2,000, then everybody would get some wood and some nails and sail off. How do you respond, Mr. McCalla? Mr. MCCALLA. I would say that, first of all, there is not one shred of evidence that for every Haitian intercepted on the high seas one drowns. The administration keeps on saying this kind of thing, but to my knowledge they have not even come up with any figures on this issue. That is the first response. The second response is, suddenly we are finding ourselves with a country that was so far understood to be the most impoverished country in the world, and now suddenly we have these resources available to all these Haitians so that they could build boats, they could get the equipment, material, water, food, and so and so forth, so that they would be going on the high seas. Mr. RANGEL. So you don't think there would be this massive exodus? Mr. MCCALLA. I don't think there is going to be a massive exodus. Mr. RANGEL. The State Department is relying heavily on the prestige and credibility of the Haitian Red Cross. Have they had any history in Haiti of stopping the army from shooting down innocent Haitians? Mr. McCALLA. No, sir, and, in fact, I would add that the Haitian Red Cross, as has been pointed out, already is being run by a man appointed by the illegal military junta. I would also add that this man, to my knowledge, was the resident doctor of the most infamous prison in Haiti during the 1960's. Fort Dimanche was used to incarcerate and detain political opponents of the Duvalier regime, and thousands of these people died. There is absolutely no evidence that this man, who now runs the Haitian Red Cross, is going to offer protection to those Haitians that have been returned to his hands. Mr. RANGEL. I hope you will allow us to write that down. When the chairman and I have a chance to talk with the President, whoever the ultimate is in this country, we certainly are going to" bring that up. Mr. MCCALLA. We appreciate that.

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204 Mr. MAZZOLI. I might say that during one of the breaks here to vote I contacted the White House to reinstate our offer, to talk with the President by phone or in person to talk about this situation. I think we ought to really pursue, this fair policy for all people. We are faced with an emergency situation today, and I just don't think it is right. Incidentally, I think the record ought to show that a Coast Guard cutter is not fitted out like the Queen Elizabeth. I mean if I understand correctly, a Coast Guard cutter is a very utilitarian ships. It has got steel decks, and it has got little space and narrow passageways, very few creature comforts, not that many heads or bathrooms-whatever they call them-and so it isn't as if you and I, Dan, were on the Queen Elizabeth. The Queen Elizabeth-we could stay there, we could cruise the Caribbean, and have a wonderful time. But this isn't that way, and that is why I say there is a problem. I believe the gentleman and I heard testimony that they actually slept on the fantail. I mean if I am not incorrect, there was testimony that people on board the cutters really slept on the fantail. Now the fantail, I think, is the deck, and possibly they have like tents and lean-tos and so forth, but the truth is, they are sleeping on a deck, not in a bed, not in a bunk, not in a cot, and I just don't think that that is the way it ought to be. Now I'm not satisfied, and I was going to ask a question of these gentlemen who are so devoted to the idea of TPS. There could be a magnet effect, and I would like to ask Mr. Helton and Mr. McCalla a little bit about what would happen were there to be a situation in which every Haitian who gets out of Haiti is immediately cleared to come to Miami, no questions asked, no preclearance, no prescreening, no nothing. The word gets out quick. Haitians are very smart people; the world is very small; communications are very fast. The word gets out to the most remote area. Tell me, is that really an attraction? Would that be a magnet? Would people leave their country? Mr. HELTON. I would offer in response your framing of the issue in two phases, the first phase to deal with the emergency, if you will, the 2,819 Haitian boat people who are currently in the custody of the United States. Those individuals should be immediately brought on to the United States, because status determinations under the circumstances in which they are currently being attempted are not fair and reliable, whatever the good faith of the immigration officials may be in trying to draw that line at this point in time. Mr. MAZZOLI. If I could interrupt you, do you think it is just impossible on a boat, or impossible under today's conditions with crowded boats, or impossible because it just can't be done, or whatever? Mr. HELTON. I am concerned generally about the question. I think it is impossible under the current conditions with the overcrowding evident fatigue and the magnitude of the responsibilities in those high sea encounters with 12 interviewers and 2,819 individual boat people. Mr. MAZZOLI. So your first step would be to take all those people to the United States. Mr. HELTON. Take the people to the United States.

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205 Mr. MAZZOLL To the United States, or Guantanamo, or Puerto Rico, or where? Mr. HELTON. Exactly. And that first step will strengthen our efforts through our diplomats to convince other countries in the region to provide sufficient capacity if, indeed, there is an outflow. Mr. MAZZOLI. It gets back to the gentleman's observation. What you are saying is, if they were here, the President may pick up the telephone possibly and make those calls that possibly he hasn't made or maybe obviously a busy man, or maybe he is now doing by letter. You think that that would focus the issue and raising the boiling point. Mr. HELTON. It surely would, and it would prompt a regional response along the lines of the responses historically that have been made in respect to Vietnamese boat people, Cuban asylum-seekers and others. Mr. MAZZOLI. Let me have Mr. McCalla and then Ms. Little talk to those very points about the magnet effect, what happens if you were to drop all barriers, reduce all fiery hoops, and so forth. Tell me where we would be, and would that pull a lot of Haitians out of Haiti? Mr. MCCALLA. First of all, directly, sir, I do not think that is going to be pulling out a lot of Haitians from Haiti. I would return to the notion that Haiti does not have the resources. Currently, Haiti only has some 7 percent of forest cover. These brush-trees, are not fit to build boats. So, otherwise, unless we take a page from the 1980 boat-lifts of the Marielitos where, in fact, entrepreneurs went to these places and picked up Cubans from Cuba, Haitians themselves do not have the means and the capacity to go out on the high seas. Mr. MAZZOLI. Do you think the Dominicans would or there would be entrepreneurs in the Dominican Republic who would cross over the line or come around the corner some place with boats? Mr. MCCALLA. There might be. I don't discount that. Mr. MAZZOLL But basically, you don't think that. Mr. MCCALLA. Exactly. Mr. MAZZOLI. Short of outside forces, or import of lumber, the Haitians you don't think would make a big exodus. Mr. MCCALLA. Exactly. And more importantly, I would say, sir, that the Haitians do not wish anything better than to remain in their country. I was very impressed the day after the election at about 10 a.m. Mr. MAZZOLI. People want to remain in Haiti. Mr. MCCALLA. Right. At 10 a.m., that day, people were joyous, celebrating in the street, because they had elected their leader, their person in Haiti, and that person said to them, "We are going to build a country with dignity. We are not going to put our heads down any more. We are going to stand tall. We are going to try to deal with foreign entities as men to men and not going to be like the Duvalier government." Mr. MAZZOLI. So essentially, Mr. McCalla, you think we could take care of the tier one, the emergency situation, without really greatly worsening tier two. Mr. McCALLA. Exactly.

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206 Mr. MAZZOLI. We have got a problem, but not exacerbating it or just dramatically worsening that problem. Mr. McCALLA. Yes. As I said in my testimonyMr. MAZZOLI. Ms. Little, how do you see that? Mr. MCCALLA. I wanted to add Mr. MAZZOLI. Oh, excuse me. Mr. MCCALLA. As I said in my testimony earlier, I think that the long-term solution of the Haitian refugee crisis lies in Haiti, and, in fact, what we have to look at is the U.S. leadership in trying to bring about, in cooperation with the Caribbean countries, with the Organization of American States, the return to a democracy in Haiti that is going to be stable, that is going to allow the democratic institutions needed for Haiti to move forward to be established. Mr. MAZZOLI. Thank you. Ms. Little, briefly, just on that point of the magnet effect and so forth. Ms. LITTLE. Yes. Certainly what we have been hearing from Haitians that we talk to who remain in Haiti suggests, as Johnny McCalla just said, that they want very much to stay there to ensure Aristides' return and, if he is returned, to make sure that he is able to continue for the remaining of his years, and even Haitians that we talked to in Florida have indicated an interest in going back to try to ensure that. Even if we were talking of 5,000 to 10,000 Haitians coming here in the next 6 months, given the fact that we have just never, ever recognized Haitians as political refugees or opened our doors to them, I don't think that those figures are high. We have had tens of thousands of Cubans come in; we had 30,000 Nicaraguans in 1 month; we have probably had more Mexicans crossing the border every hour than the 19 Haitians we had coming here when we were declaring it a crisis. We have several voluntary agencies in the Miami community that our agency has spoken to. They are perfectly willing to provide whatever support serviceMr. MAZZOLI. So if we were to somehow deal with that first problem, it wouldn't, in your judgment, dramatically worsen dealing with just the long-run troubles and try to get to the problems in Haiti and so forth. I would like to ask the lawyers-Mr. Helton, Ms. Dominguez, Mr. Guttentag, and Mr. Stein-this question. Do you think TPS, under the current statute, is really a solution here from a technical side? Can it be technically structured to deal with a situation which is a rolling situation? This thing is a moving situation, it is a moving target. Can the TPS current statute really cover what we are trying to cover here? Mr. HELTON. It would take a mixture of a grant of TPS plus resort to the executive branch's inherent prosecutorial discretion which it sought to reserve in the signing statement of the 1990 Immigration Act to have an open-ended arrangement for temporary refuge. That is what would be required, and that is what we would advocate.

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207 Mr. MAZZOLI. So, in other words, you say that there is something in here; the combination of statute, plus Executive order, could yield an open-ended type of TPS. Mr. HELTON. Exactly. Mr. MAZZOLI. Mr. McCalla. Mr. MCCALLA. I would concur. Mr. MAZZOLI. Oh, I'm sorry. Ms. Dominguez. Ms. DOMINGUEZ. I think TPS would really work in this situation provided that it is subject to review at the end of the term, because conditions in Haiti might not have changed by the time the period expired. Mr. MAZZOLI. Of course, if you had no period at all, you would have to have periodic review. Is that woven into your belief of still periodic reviews though no end? Ms. DOMINGUEZ. I think so, yes. Mr. MAZZOLI. Which contemplates taking people who come out for the future. Mr. Guttentag. Mr. GUTTENTAG. I would just add to the provisions that Mr. Helton pointed out that, under the existing TPS statute, there are two options: First, that period of time can be redesignated, and that happened in the past under the prior EVD regime where periodically a new date is set in the regulation so that new groups of persons would be covered. Mr. MAZZOLI. So you would still not have an exit date, you would have different entry dates. In other words, you would not put a limit; people could continue to leave even though they may come at different times here. Mr. GUTTENTAG. The statute requires a designation date and for a fixed period of time, 6 months to 18 months. But a subsequent designation date can be announced in the Federal Register. And, second, the statute does permit a designation today for a future date. The statute explicitly states that the Attorney General could place a designation in the Federal Register stating that anybody who arrives as of some future date is covered by TPS. Mr. MAZZOLI. So conceivably there could be something that says anybody who arrives by January 1 or by February 1, 1992, could still fit in with this. Mr. GUTTENTAG. That is authorized under the TPS statute. Mr. MAZZOLI. You also agree that there is a way that it can be structured so it is open ended. I'm not asking about the wisdom of either, because an open-ended you can imagine would be challenged for the very nature of its open-endedness and the fact that there would be a continuing siren song maybe drawing people away. Anyway, Mr. SteinMr. STEIN. We have always said that TPS conceptually cannot work because, as the Refugee Act of 1980 confirmed, asylum cases must be made on an individual basis on the individual merits. Otherwise, the class-based status always engenders cries for similar treatment by other groups, and of course the T in "temporary" is never true, it is always permanent. Remember, too, that the Mariel boat-lift cost taxpayers $1 billion in the first 2 years, Federal and State costs. If there is a massive

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208 boat-lift from either Cuba or Haiti, we have got to prepare for those kinds of costs as well. Mr. MAZZOLI. My time has expired. I see we have been rejoined by my friend from Oregon and yield him 5 minutes. Mr. KOPETSKI. Thank you, Mr. Chairman. A couple of questions, and I think one goes to Mr. McCalla. My question has to do-and I'm assuming that you are the right person to ask, or maybe others could perhaps have a partial answer as well, with the quality of information in Haiti concerning the treatment of returning nationals and the objectivity of that information and the credibility and competence such that, at this point, the official policy and position of the administration is that these people are in no danger or at least in no more danger than the rest of the general population. Could you comment on that position as well as the competency of the information on which they are basing this policy decision? Mr. MCCALLA. Congressman, I think you were absent when I mentioned that the head of the Haitian Red Cross, who has, in fact, only recently been appointed by the illegal Government of Haiti, was, in fact, the resident doctor of the most infamous prison in Haiti which was known as Fort Dimanche, and as resident doctor I have no evidence that he acted to protect the political prisoners that the Duvalier government had put in there. Second, I would say with respect to the protection that the Haitian Red Cross would provide, it is very dubious at this point in time. My understanding of how the return process takes place is that the Coast Guard comes down from the pier with the Haitian boat people and a manifest that contains the names, the addresses, and the age of those people that have been returned. Those names are handed over to the Haitian Red Cross. I don't know what the exact nature of the last returns has been, but, to my knowledge, there has always been a Haitian immigration official standing by who can have access to that list. We have, in the course of the investigations that we have conducted in Haiti, been able, despite the fact that we cannot get such lists and such names from the U.S. Government-been able to get it from the Haitian Government, and usually, as in the past, there have been a number of soldiers who have been standing by to supervise the process. In the course of my work as director of the Coalition for Haitian Refugees, I monitor human rights in Haiti, and in that context I have also interviewed a number of returnees. In fact, I remember that back in 1989 under Congressman Morrison's leadership there was a hearing that was held on this issue specifically, and I introduced into the record portions of interviews that I conducted with some of those returnees, and those interviews indicated to me-and one I remember, very clearly at this point was an interview with somebody who had been extremely active politically in Haiti who was found not to have any reason to fear persecution if returned. Let me tell you about this man in particular. This man had been active since 1985. He was very actively involved in the overthrow of the Duvalier regime. He had been sought out for security by the Haitian military since then. He was, in fact, arrested in early January 1988 and finally released in Sep-

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209 tember 1988. A few days after he was released, fearing for his safety, he fled on a boat. He tried to explain that to the INS interviewer, but they told him, "Well, we cannot allow you in," and this man has since been in hiding in Haiti. Mr. HELTON. Congressman Kopetski, I just wanted to draw attention to the oral portion of my testimony in which we cited a fax transmission received this morning containing disturbing reports from a human rights group in Haiti about a threatened arrest and actual arrest of people on the ground that they were planning to take small boats from Haiti last Friday. I think it is fair to say that there are some indications that there are serious problems that Haitian boat people would face if they returned at this point, and we have no confidence that the bland assurance given by the State Department has a good justification at this juncture. Mr. MAZZOLI. The gentleman's time has expired, and I thank him for that. To wind up our excellent day of testimony, I yield 5 minutes to my friend from New York. Mr. RANGEL. Thank you again, Mr. Chairman. Ms. Little, is it your organization that brought the successful lawsuit in Miami? Ms. LITTLE. That is correct. Mr. RANGEL. Let me first congratulate you for the initiative as well as the success. Could you briefly say what was the basis of the court's decision? Ms. LITTLE. Yes. Our concern is that bona fide refugees were about to be forcefully returned to Haiti where they would be faced with a life-threatening situation. We were concerned that, especially under the circumstances, there is no way that INS could conduct fair interviews of the Haitians and that persons who genuinely feared for their lives would be returned to Haiti. Let me just add that when INS began its longer interviews in January 1991 when Aristide was President, we identified 20 Haitians in a rather short period of time as being potential refugees and eligible to come here. Mr. RANGEL. Let me interrupt. We have a short period of time. I hope your office will be able to share with me the substantive basis for this, because I understand that my government is going to appeal it, and I would really want to have your facts to see what we could do politically in support of the court's original decision. Could any lawyer tell me whether they have an understanding of what the status is of an individual, a foreigner or any other individuals, on a U.S. vessel? I am talking specifically about what the legal status would be or what the obligations would be to anyone who is on an American ship, a Coast Guard ship, on the high seas. Has that been reviewed? Mr. HELTON. Representative Rangel, I think it would be fair to say that that person would be owed a duty not to be returned to a place where he or she would face persecution. That duty would be reflected in a treaty to which the United States is a party and which protection has also been incorporated specifically in the documents establishing the Haitian interdiction program. I do not think there is any real question that that duty is owed.

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210 The real question there is whether or not the United States has discharged that duty and I think the lawsuit that has been brought by the Haitian Refugee Center goes to the heart of the question in the sense that the information indicates that those screening determinations under the current circumstances are not fair or reliable. Mr. RANGEL. OK. Well, if this little suit doesn't go into this, I hope you get together. I am very anxious to see if we have a fiduciary relationship or whether it is the Good Samaritan syndrome that we have rescued them and now do we have a higher responsibility to them Mr. GUTTENTAG. If I may respond to that as well, Congressman by referring specifically to a letter from the U.S. Committee of Refugees sent to President Bush regarding this matter. That letter cites customary international law that has been formalized by the U.N. High Commissioner for Refugees and is specifically set out in a formal conclusion of the U.N. High Commission Executive Committee that reflects the codification of international law in this regard. It provides-and I'm quoting from the UNHCR formal conclusion-"Persons rescued at sea should normally be disembarked at the next port of call. This practice should also be applied in the case of asylum-seekers rescued at sea." The conclusion goes on to say that even "in cases of large-scale influx, asylum-seekers rescued at sea should always be admitted, at least on a temporary basis." So it appears clear that there are obligations in addition to those resulting from the interdiction program in domestic law. Under international law, when persons are rescued under these circumstances, they are to be brought ashore at the next port of call, which presumably is where the Coast Guard is based. In addition, if the individuals are asylum-seekers they have additional protections. Mr. STEIN. May I say that we feel that the matter, however, is res judicata here in the D.C. circuit as to whether or not people in international waters on U.S. Coast Guard vessels have standing to challenge or whether the Haitian Refugee Center had standing in this case to challenge how these people were handled. What may be wise policy or arguably in conformity with international obligations is one thing, but we reject strongly the idea that a Federal district judge ought to be enjoining this kind of activity based on every principle we know of the law of standing in these kinds of cases. Mr. RANGEL. I didn't understand what you were saying, but if you are on an American vessel you don't believe that the captain of that vessel has a responsibility to the passengers on that vessel? Mr. STEIN. Oh, absolutely. Mr. RANGEL. OK. You are talking about the lawsuit. Mr. STEIN. But the question of what the appropriate forum isMr. RANGEL. Yes. I assume all of this will be covered in the papers there. It is going to be very interesting. As we proceed in the courts and proceed legislatively, we also are proceeding politically and hopefully morally. So thank you all very much for the contribution. Mr. MAZZOLI. Let me thank my friend from New York and my friend from Oregon and all the members of the committee who

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211 came today. We had a very lively session, very interesting, and with a lot of good information both to deal with the emergency situation that we are confronting as well as with the long-term situation in which we can't ever take all the people who might want to come here. At the same time, we have in many cases benefited greatly by the people who have come, and I think that is the richness of this country. We don't want to overstate the case, but that is something we want to always keep in mind. So thank you all very much for your attention. The subcommittee stands adjourned. [Whereupon, at 3 p.m., the subcommittee adjourned, to reconvene subject to the call of the Chair.]

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APPENDIXES APPENDIX 1.-STATEMENT OF TALBOT D'ALEMBERTE, PRESIDENT, AMERICAN BAR ASSOCIATION Statement of Talbot D'Alemberte President of the American Bar Association Statement concerning the forced return of Haitian citizens to Haiti November 20, 1991 We are deeply disturbed that the Administration is forcibly returning to Haiti, citizens who have fled the political and economic turmoil in their country. In just three weeks after the illegal military overthrow of President Jean-Bertrand Aristide, over 300 lives have been lost and an uncertain number of Haitians have been imprisoned, gone into hiding, or fled the country. The lives of thousands of Haitians are at risk. In view of this deepening crisis, we urge the Administration to designate Haiti as a country for Temporary Protected Status (TPS). This designation would grant safe haven to Haitians whose physical safety is endangered. Haitians who are in the United States would be able to remain and work until they can safely return home, provided they register and meet the eligibility requirements. We have particularly grave concerns for those who have risked their lives but not yet reached our shores. The INS "pre-screening" interviews taking place on the Coast Guard cutters lack normal procedural protections to ensure that eligible refugees are not erroneously rejected. We note that the United States treats no other group of potential refugees in this manner. Under a best-case scenario, conditions in Haiti are not likely to permit the safe return of Haitians in the foreseeable future. In the meantime, Haitian refugees whose lives have been so cruelly impacted, should be treated with dignity and compassion. 4385W (213) 51-225 0 -92 -8

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214 APPENDIX 2.-STATEMENT OF RALSTON H. DEFENBAUGH, JR., EXECUTIVE DIRECTOR. LUTHERAN IMMIGRATION AND REFUGEE SERVICE Mr. Chairman, I want to thank you for the opportunity to present written testimony at this important committee hearing. I want to particularly thank you for the tenacity you have shown in scheduling this hearing, in light of the crisis that Haitian refugees are facing. I am the Executive Director of Lutheran Immigration and Refugee Service (LIRS), a cooperative agency of the Lutheran churches in the United States, working with refugee resettlement, unaccompanied refugee minors in need of foster care services, and asylum seekers and immigrants coming to this country. LIRS has 26 regional affiliated resettlement programs, in addition to 17 foster care programs. LIRS also helps fund 48 projects nationwide, including three in Florida specific, that provide legal assistance, advocacy and social services to asylum seekers and immigrants. Our projects in Florida work primarily with asylum seekers and refugees from Haiti. LIRS has works in partnership with the Lutheran World Federation, particularly in a program that assists refugees from Haiti in the Caribbean region and the United States. A significant partner in this specific effort to assist Haitians is the National Coalition for Haitian Refugees, of which LIRS is an active Board member.

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215 I want to take the opportunity of this hearing to express our strong opposition to the current policies of the United States government towards Haitians fleeing the violence that the Haitian armed forces have inflicted upon their own people since the September 30 military coup. THE FORCED REPATRIATION OF HAITIAN BOAT PEOPLE MUST END The United States government, after a temporary suspension of the interdiction program since the September 30 coup, has now begun again to forcibly repatriate Haitian refugees. This abrupt change in policy could not have come at a worst time. Haitian boat people, whose flight from Haiti over the seven months of the government of President Jean-Bertrand Aristide had diminished to the lowest levels since 1981, are now leaving in larger numbers, fleeing the violence and instability created by the Haitian armed forces. According to reports, almost 2,000 Haitian refugees have been interdicted by the U.S. Coast Guard since the military coup. A temporary victory has been won in Federal Court on November 19, 1991, where a "Temporary Restraining Order" has been issued against further forced return by the U.S. Coast Guard. It seems that the courts once again have had to step in a correct, albeit temporarily, the wrongful policies of the Administration. The Administration has created a wall of silence around this latest mistreatment of Haitian refugees. From the scant reports coming out of Haiti, we are convinced that the majority of those fleeing Haiti are from areas where the military has been actively repressing pro-Aristide supporters. To start now a forced massive return is not only unfair, but unwarranted as well. Let me make a few points in this regard: 1. The forced return of Haitian refugees is discriminatory. The Administration has routinely accepted and rescued Cuban boat people in the Caribbean over the last year. This number now exceeds 2,000, and not even one of these has faced the prospect of forced return to Cuba. The Administration disingenously argues that because Congress passed in 1966 a Cuban Adjustment Act, it follows the law in admitting Cubans to the U.S. for processing their immigration claims. The truth is that the U.S. admits Cubans under various temporary statuses, such as "Cuban-Haitian entrant status" and humanitarian parole, as well as under other mechanisms of discretion allowed by law to the Attorney General. There is no excuse, from the point of view of the law, not to bring Haitian boat people now fleeing Haiti to the United States for temporary safe haven. 2

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216 The United States does not recognize the government of Haiti forcibly installed after the military coup of September 30. Just like in the case of Cuba, we should not be involved in forcibly repatriating refugees to a government that we do not recognize and that has come to power through violent and illegal means. 2. The forced return of Haitian refugees is contrary to accepted standards of international law. A major tenet of international law is the concept of "non-refoulement." This means that asylum seekers should not be returned to a country were their lives and well being would be in danger. It is ironic that the State Department only last week sought to achieve a "regional solution" to this current refugee crisis. It seems that because the "regional solution" achieved thus far could not accommodate the growing number of refugees, the whole idea is now abandoned and forced repatriation is therefore the expedient thing to do. The premise of a regional solution itself is rather troubling. The United States, while pressuring other countries in the region to accept large numbers of asylum seekers, is only willing to bring 50 or less under strict interpretation of our asylum laws. This is hardly a commonly accepted definition of "burden sharing" within the parameters of a regional solution. The right of an asylum seeker to present a claim, under fair and open procedures, is paramount. It is a scandal that the U.S. government is now treating Haitian boat people much like the Malaysian government has treated Vietnamese boat people, by denying them access to land, and depriving them of a fair process through which their claims can be heard. The United States needs to change course, and provide for a fair and open process so that refugee claimants can adequately make their case. The cursory and short interviews conducted by the U.S. Immigration and Naturalization Service aboard the Coast Guard cutters, as they steam towards Port-au-Prince just will not do. In this regard, it is evident that the interviews aboard the cutters have been highly deficient. Less than 10 Haitians out of more than 20,000 interdicted from 1981 to January 1991 were moved to the U.S. to pursue their asylum claims. In the intervening period until the military coup of September 30, 20 Haitians picked up by the Coast Guard have been brought to the U.S. to pursue their claims. This doubling in 1991 of potential refugees as identified by the INS is a result of somewhat improved procedures in the interviews. The irony is that this happened at the same time that Haiti was governed by its first democratically elected government. How many people at risk have been wrongfully excluded because it is impossible to conduct fair interviews at the high seas? 3

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217 HAITI MUST BE DESIGNATED FOR TEMPORARY PROTECTED STATUS This limited and modest relief for Haitians already in the United States is now available, at the discretion of the Attorney General, after passage of the Immigration Act of 1990. Aside from the congressionally mandated Temporary Protected Status (TPS) for Salvadorans, the Attorney General has designated four other nationalities for TPS in 1991: Kuwaitis, Lebanese, Liberians and Somalians. In past years, similar suspensions of deportations have been granted to more than 20 nationalities, whose countries have been embroiled in civil war, strife and generalized violence. Contrary to the claims of the Administration, granting TPS will not have a magnet effect impacting future boat departures. TPS, by the statute, has a cut-off date that is designed to prevent such magnet effect from happening. In fact, in the case of Salvadorans, there is absolutely no evidence that could lead one to conclude that the congressionally mandated TPS in any way affected the rate of arrivals of Salvadorans into the U.S. Granting TPS for Haitians already in the United States is in fact part of a regional solution, which would provide temporary relief for all Haitians in the U.S. and the region. The United States can in fact provide leadership on this issue, as part of a strategy of burden sharing with the rest of the international community. CONCLUDING REMARKS Mr. Chairman, I want to once again thank the committee for holding this important hearing. You have shown sensitivity the crisis of Haitian refugees while others have remained silent. Let me briefly address other matters of a long term nature: As refugees are considered for placement in regional holding centers managed by the United Nations High Commissioner for Refugees (UNHCR), the United States and the international community needs to address the long term needs of refugees who need resettlement. Also important is the fate of those who may have family ties in the United States, Canada and France. Such persons should be sent to be cared for by families, and not left to languish in camps. The United States, in the context of a regional solution, needs to also look towards the needs of refugees in the long term. Out of the few refugee resettlement admission numbers allocated to the Latin American and Caribbean region in the last 10 years, none have been used for Haitians. In fact, the uneven application of our resettlement policies for the region points again to the disparate treatment that Cuban refugees get when compared with Haitians. Almost all of the projected 3,000 refugee admission from the region in fiscal year 1992, for example, will be allocated to Cubans. Haitian refugees are equally deserving of protection and resettlement in the United States. 4

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218 APPENDIX 3.-STATEMENT OF DALE S. DE HAAN, DIRECTOR, IMMIGRATION AND REFUGEE PROGRAM, CHURCH WORLD SERVICE I thank the subcommittee for the opportunity to comment on the Haitian refugee crisis. This statement reflects the views of national denominations and local congregations who are involved with the Church World Service Immigration and Refugee Program. We feel particularly qualified to address the issue before you today as we are a partner agency with the Community Relations Service in resettling Haitian and Cuban refugees. Church World Service also helps to support programs whose aim is to provide social and legal services to Haitians and Cubans in the United States. In addition, we have long worked with partner agencies in Haiti to assist that nation in its struggle to meet the basic human needs of its citizens. We are profoundly disturbed by the Administration's decision to return Haitian refugees by force. This decision flouts the United States' commitment to fairness and decency in its dealings with refugees. We are relieved that a temporary restraining or1

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219 der has halted for now the forced repatriation of-refugees. We hope this delay will facilitate a positive change in public policy on this issue. We call upon Congress to do everything in its power to stop this wrongful practice for good. I. THE INTERDICTION AND FORCED RETURN OF HAITIAN REFUGEES MUST END. As a nation, our historical ideal has been to grant refuge to those fleeing persecution, oppression, injustice and civil strife. Under international law as well, the U. S. has an obligation to assist in the protection of those at risk. Clearly, Haitians are in need of safe haven. Since the military takeover on September 30, Haitians have suffered abuse and persecution at the hands of the military. Reports suggest that at least 300 innocent civilians have been killed and hundreds more have been injured. The U. S. last week appeared convinced of the danger to Haitians who returned and attempted to find temporary protection in the region for the refugees. There has been no change in Haiti to suggest that Haitians can now be returned in safety and dignity to their homeland. The U. S. does not recognize the government installed by the military. It supports the international boycott in place against Haiti. How can the U. S. count on a government it considers un2

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220 lawful to protect the returnees? The answer to this question is that it cannot. It is wrong to send Haitians back to an uncertain fate. II. IF THE ADMINISTRATION PURSUES A REGIONAL SOLUTION FOR THE PROVISION OF TEMPORARY SAFE HAVEN. IT SHOULD DO SO WITH THE FULL PARTICIPATION OF MULTILATERAL ORGANIZATIONS SUCH AS THE UNHCR AND IN TRUE COOPERATION WITH NEIGHBORING STATES. Church World Service has in the past supported multilateral efforts to provide safe haven for refugees but only to the extent that they are true cooperative arrangements. For two weeks, the U. S. pursued a "regional solution" to the Haitian refugee crisis. However, when it became apparent that the rest of the region could not support all the Haitians who might escape, the U. S. unilaterally abandoned the attempt to protect Haitians. The Administration did not clarify its own responsibilities with regard to a regional solution. Will the U. S. formally suspend the deportation of Haitians in the U. S.? Will we grant Haitians in the U. S. Temporary Protected Status? Will we insist that refugees in safe haven have a full and fair asylum hearing? Will we reunite families separated by tragedy, allowing Haitians to join relatives here under temporary protection? The U. S. should clarify its own commitment and make a meaningful contribution towards the protection of Haitians. 3

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221 III. THE U. S. SHOULD ENSURE THE FAIR AND EXPEDITIOUS CONSIDERATION OF ALL ASYLUM REQUESTS BY HAITIANS. Much has been made of Hong Kong's handling of its refugee crisis. However, the limited due process available to Vietnamese in Hong Kong looks generous when compared to our "prescreening" of Haitians on the high seas. Given the conditions in Haiti today, we cannot continue business as usual in our consideration of Haitian asylum claims. At the very least, the U. S. should allow Haitians to make their claims in accordance with the new asylum procedures put in place this year. IV. THE ADMINISTRATION SHOULD CONSIDER GRANTING TEMPORARY PROTECTED STATUS TO HAITIANS IN THE U. S. The Immigration Act of 1990 authorizes the Attorney General to grant TPS to nationals from countries experiencing war, natural disaster or other extraordinary conditions that endanger physical safety. We recognize that a grant of TPS is not always the appropriate or necessary response to refugee crises. We strongly believe, however, that it is time to consider extending this protection to Haitians. The security situation in Haiti deteriorates daily. The ongoing economic crisis has been punctuated by violent reprisals by the military against supporters of the ousted Aristide government. The U. S. acknowledged the danger to civilians when it encouraged 4

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222 its own citizens to leave and drastically cut Embassy staff. We should treat Haitians who are here with compassion and offer them true protection. V. ALL POSSIBLE EFFORTS SHOULD BE MADE TO RETURN DEMOCRACY AND CONSTITUTIONAL ORDER TO HAITI. The United States should vigorously assist with a multilateral solution to the crisis of democracy in Haiti. The people of Haiti cannot rebuild their country unless constitutional order is restored. We urge the Administration to take a lead role in returning democratic rule so that Haitians can, with the support of the international community, bring peace, stability and justice to their nation. Mr. Chairman and members of the Subcommittee, as Christians we are enjoined to welcome the stranger and provide refuge to all who need it. As a nation, we are called to lead others to offer safe haven to those at risk. We are shamed if we ignore this obligation. We ask you to do all you can to ensure the fair and equitable treatment of the Haitians at our door. 5

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223 APPENDIX 4.-LETTER FROM ROBERT D. EVANS, DIRECTOR, WASHINGTON OFFICE OF THE AMERICAN BAR ASSOCIATION GOVERNMENTAL AFFAIRS AMERICAN BAR ASSOCIATION Governmental Affairs Office OFFICE et.ll 1800 M Stret N.W. DIRECTOR Washington, DC 20036 Roben D Era (202) 331-2200 AIkflst 106 SENIOR LECISLATIVE COUNSEL Yvan 1. Drscoll AMRCAMARASOITINGoenmnalAfar Ofc 1800 M tetNW Irene R. EmNelem ARneS'4I November 18, 1991 Mark I. Schee n ABflna SCNEINESON.M LEGISLATIVE COUNSEL Ao .c*Na Hon. William J. Barr AiNSet CARDMAN4.D h.na.i Acting Attorney General ABN.rCASIN.L Department of Justice EUC'"6ZISeM Washington, D.C. 20530 Gary a SWRs ABneT SELLERSL STAFF DIRECTOR FOR INFORMATIONSERICES Dear Mr. Attorney General: Sharon Greene maSNINNE,,; As we witness the momentous growth of democratic ideals and ReoLMCMIOfn institutions abroad, recent events in Haiti provide a tragic STATENATO. reminder of how fragile democracy may be. In a matter of COORDINATE naArick. e^"^ weeks, at least three hundred lives have been lost and an INTUcLECThALPROlRIY uncertain number of Haitians have been imprisoned, gone into Lw co suiiAN hiding, or fled the country. Now that the international IMMICL.ATIONPROEC community has imposed sanctions, the health and welfare of the CONSULTANT entire nation is imperiled by deteriorating economic Cam L.#aok conditions. Meanwhile, Haitians who have fled to the United States for safety fear they may be forced to return to Haiti before peace and constitutional order are restored. In view of this deepening crisis, the American Bar Association urges you in your capacity as acting Attorney General to designate Haiti as a country for Temporary Protected Status. We believe such recognition will help ensure that Haitians who have reached the United States are provided physical safety and given the same treatment that our nation currently extends to Kuwaitis, Lebanese, Liberians, Salvadorans and Somalians. The Immigration Act of 1990 authorizes the Attorney General to grant safe haven status to nationals from countries experiencing war, natural disaster or other extraordinary conditions that endanger physical safety. As you know, the TPS law does not create an admissions program and does not modify the refugee, asylum or withholding of deportation provisions. The statute only permits nationals from designated states who are already in the United States, but who may not fit the textbook definition of "refugee" or "asylee", to remain and work until they can safely return home, provided they register and meet the other eligibility requirements. This framework is intended to provide sufficient flexibility and the necessary authority to respond

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224 swiftly to changing world developments. We believe that conditions in Haiti are so "extraordinary" to warrant immediate designation. Even under a best-case scenario, conditions in that country are not likely to permit the safe repatriation of Haitians for the foreseeable future. In the meantime, Haitians in this country should be treated with dignity and compassion. While TPS is the appropriate remedy for individuals already in the United States, we also have concerns for those who have risked their lives but not yet reached our shores. We understand from news accounts that at least 38 Haitians on coast guard cutters at sea have been preliminarily identified as potential refugees yet have not been allowed to apply for asylum. In our judgment, those individuals should immediately be permitted to apply for asylum pursuant to international agreements and established INS procedures. Furthermore, we understand that the INS "pre-screening" interviews taking place on the Coast Guard cutters lack normal procedural protections to ensure that eligible refugees are not erroneously rejected. If such individuals are taken to camps in third countries, as has been proposed, they will be precluded from proving that they do qualify for asylum. We note that the U.S. treats no other group of potential refugees in the manner proposed for the Haitians, and that about 2000 Cuban rafters have been paroled into the United States so far this year. In conclusion, we are aware that the Administration is deeply troubled by the situation in Haiti and is developing a response to those who flee. We urge you to grant TPS to Haitians who are fortunate to be in the United States and to give all Haitians in U.S. custody a meaningful opportunity to demonstrate their eligibility for asylum. Sincerely, Robert D. Evans cc: James A. Baker III, Secretary of State J. William Rime, Commandant, U.S. Coast Guard

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225 APPENDIX 5.-STATEMENT OF REV. RICHARD S.J. RSYCAVAGE, EXECUTIVE DIRECTOR, MIGRATION AND REFUGEE SERVICES, U.S. CATHOLIC CONFERENCE Good morning. I am Rev. Richard Ryscavage, S.J., Executive Director of the office of Migration and Refugee Services (MRS) of the United States Catholic (USCC). USCC is the public policy arm of the Catholic Bishops in the United States. Within USCC, the office of Migration and Refugee Services is responsible for carrying out the Bishops' policy on migration, immigration, refugees and political asylum. It is in this capacity that MRS/USCC offers written testimony decrying the Administration's recent repatriation of approximately 500 Haitian asylumseekers under an interdiction agreement with a government no longer in power. In addition, USCC/MRS is also concerned about the plight of those Haitians sent to camps in other parts of the region. In the spirit with which the United States has traditionally welcomed refugees, we call upon the Administration to o implement Temporary Protected Status (TPS) for Haitian nationals in the U.S., including a mechanism allowing those being held aboard U.S. boats to participate in the program; o end deportations to Haiti; o convert the interdiction program into a rescue-at-sea operation; and o seek a regional solution to provide safe haven to all Haitians fleeing Haiti. The Church's Interest in Human Mieration The Catholic Church in the United States has long been active in providing assistance to immigrants. MRS traces its roots back to the Church-related immigrant service agencies of the late 19th Century. The office that is now MRS was first formally constituted as a service of the Bishops in the 1920s, and as a result, is the oldest national service agency of the Catholic Church in the U.S. This experience has provided the Church with an opportunity to act on principles first articulated in the Gospels of Christ and later explicated in Catholic social teaching. 2

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226 For a century, the Catholic social teaching has supported the protection of and respect for the individual's personal choice in the migration process. Beginning with Rerum Novarum in 1891, the Church has supported a number of basic principles including the dignity of labor and the right to private property. A corollary to these two precepts is the right to migrate to secure a means of livelihood. The Church has also been especially sensitive to those who flee from life-threatening situations, particularly if those situations stem from political oppression and persecution. This position was most succinctly stated by Pope Paul VI when he said Individuals and groups must be secure from arrest, torture and imprisonment for political or ideological reasons, and all in society, including migrant workers, must be guaranteed juridical protection of their personal, social, cultural and political rights. We condemn the abridgement of rights because of race. We advocate that nations and contesting groups seek reconciliation by halting persecution of others and by granting amnesty, marked by mercy and equity, to political prisoners and exiles.' Position on Haiti Pope John Paul II explicitly stated his concern and interest in Haiti during his 1983 visit there. He observed there is really a profound need of justice, of a better distribution of goods, of more equitable organization of society, with more participation, a more disinterested concept of service to all on the part of those who have responsibilities. .[T]here should be the possibility to eat one's full, to satisfy one's hunger, to be well kept, to have housing, schooling, victory over illiteracy, honest and dignified work, social security, respect for family responsibilities and for the basic rights of man: in a few words, everything which ensures that men and women, children and the aged can live truly human lives.2 'Pope Paul VI, Message of Pope Paul VI in Union with the Synod, 1974. 2Pope John Paul II, "Something Must Change Here," Homily presented at Duvalier Airport in Port-au-Prince, Haiti, March 9, 1983. 3

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227 It is with the aim of ensuring that Haitian nationals may live "a truly human life" that the Catholic Church in the U.S. has maintained a commitment to Haitian boat people. USCC/MRS has long actively advocated on behalf of Haitian boat people and Haitians in the U.S. In 1982, testifying before the Senate Subcommittee on Immigration and Refugee Policy, then-Bishop (now Cardinal) Anthony J. Bevilacqua discussed the "unjustifiable incarceration"' of Haitian asylum-seekers. Bishop Bevilacqua testified in 1984 before this subcommittee on the Cuban/Haitian Adjustment Act of 1984. In his testimony, he discussed "Haitian refugees [who] risked their lives to flee from misery and repression to this country." He cited a USCC letter to the subcommittee that pointed out the plight of our Haitian brothers and sisters who have fled poverty and persecution, only to find imprisonment and deprivation upon arrival in this country.These good people are of special concern to the Church which has sought for so long to relieve their misery and to open the door to a life filled with hope rather than despair.' More recently, on September 12, 1989 in testimony before this subcommittee, former MRS Executive Director Msgr. Nicholas A. DiMarzio pointed out that At the same time that we are running this interdiction program, we are leading the international outcry against the Hong Kong government's intention to return Vietnamese boat arrivals to Vietnam. The U.S. government's historic and continued inequitable treatment of Haitians is indefensible. 'Statement of Bishop Anthony Bevilacqua before hearings of the Senate Subcommittee on Immigration and Refugee Policy. April 1, 1982. 'Statement of the Most Reverend Anthony J. Bevilacqua before the Subcommittee on Immigration, Refugees and International Law, The Committee on the Judiciary, U.S. House of Representatives, May 9, 1984. 'Testimony of Reverend Monsignor Nicholas DiMarzio, Executive Director, Migration and Refugee Services on behalf of United States Catholic Conference in re: Refugee Admissions numbers for FY1990, House of Representatives Subcommittee on Immigration, Refugees and International Law, September 12, 1989. 4

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228 The events that have transpired in Haiti since that time have reinforced USCC/MRS opposition to the interdiction program and to the continued inequitable treatment that Haitian asylum-seekers receive. The Current Situation While there have been a number of changes in the Haitian government in the past five years, beginning with the overthrow of the Duvalier family in February 1986, there has been little change in the political repression facing most Haitians. Even without the Duvalier family in control, Haiti has been ruled by what has come to be known as "Duvalierism without Duvalier"; a continuation of the political oppression and violence that has been a hallmark of Haitian dictatorships. The election of a democratic government last December raised the hopes of the Haitian people only to find them dashed when that government was ousted on September 30, 1991 in a military coup. It is still unclear how many Haitians lost their lives as a result of the coup. What is apparent is that the political situation in Haiti is precarious and that many Haitians have good reason to fear that the Haitian military will use its traditional means of maintaining power-violence and the repression of human rights. Throughout the changes in Haitian governments over the past decade, U.S. policy toward Haitian asylum-seekers has remained constant. Most prominent has been the interdiction program. Through the interdiction program--a program ironically similar to the arrangement between the Hong Kong government and the government of Vietnam allowing forced repatriation of Vietnamese boat people--U.S. Coast Guard cutters intercept Haitian nationals on the high seas and return them to Haiti following brief interviews aboard by asylum officers. In no other 5

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229 instance does the U.S. government actively pursue and intercept individuals who have yet to arrive at a U.S. port of entry. The Department of State estimates that approximately fifty percent of all boats that depart from Haiti are successfully interdicted. Of the remainder, a substantial portion perish at sea in unseaworthy vessels. Cuban raft arrivals, the only other population arriving in the U.S. by boat, are not treated this way. They are detained very briefly in the INS Krome detention center in Miami and then given humanitarian parole,6 which would permit them to obtain work authorization. In contrast, Haitians who have traditionally been detained at Krome and are usually held for a far longer period. Those who do manage to obtain release are released on bond or under humanitarian parole. For the vast majority of the population, release on bond hinges on raising a considerable amount of money and no authorization to work legally in the U.S. once they are released. Haitians who receive humanitarian parole fall into two categories. Those with family members already in the U.S. are not automatically issued work authorization. They must apply for their Employment Authorization Document separately and pay the requisite fee. Those with no family members in the U.S. receive work authorization upon release on the assumption that they have no one to help support them.7 Ten years after the interdiction program began as a temporary measure, the U.S. government maintains that the vast majority of Haitian boat people are simply economic migrants: individuals who, were it not for Haiti's desperate economy, would have no other impetus to leave. Between September 1981 and September 1989, more than 20,000 Haitians 68 CFR 212.5 (1991) 'The first few boatloads of Haitians interdicted and interviewed soon after the coup saw a dramatic increase in percentage of those brought to the U.S. for asylum processing or parole. 6

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230 were returned to Haiti under the interdiction program. Only six were deemed during the cursory interviews they received at sea to have asylum claims meriting transfer to the United States. The overthrow of Haiti's democratically elected government led the Bush Administration to determine that the grave events that have occurred in the Republic of Haiti.disrupt the legitimate exercise of power by the democratically elected government of that country [and] constitute an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States. The Administration also ordered nonessential U.S. government personnel posted in Haiti to return to the United States, fearing that their safety was in jeopardy. The serious implications of the overthrow of the democratically elected government were reflected in the dilemma that faced the Administration regarding the approximately 4,530 Haitian boat people interdicted by the Coast Guard as of November 25, 1991. It is clear that at first within the Administration there was considerable hesitation to follow custom and simply return these persons to Haiti. Department of State negotiators and United Nations High Commission for Refugees representatives worked around the clock to obtain camp space for the Haitians in what was to become a regional solution. Yet, throughout the efforts, the U.S. government remained opposed to offering a substantial U.S.based solution for Haitian asylum-seekers, even though the law explicitly provides for a temporary status that can be invoked by the Attorney General with a sure eligibility cutoff date.' 'President George Bush, Executive Order, "Prohibiting Certain Transactions With Respect to Haiti, Executive Order 12775, Federal Register, (7 October 1991), vol. 56, no. 194, p. 50641. 9 244A, Immigration and Nationality Act of 1952, to be codified at 8 USC 1254(a) (Temporary Protected Status). 7

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231 Apparently, the Administration's overriding concern was not that the Haitians might have a well-founded fear of persecution, but that more Haitians might leave Haiti if they perceived that there was any hope for U.S. status. According to an anonymous Department of State official quoted in the New York Times, "'Our objective was to try to take care of people leaving Haiti without sending a signal for others on the island that it is o.k. for them to try to come to the United States."' This sentiment is clearly contradictory to the spirit and intent of the Refugee Act of 1980 which determines that an individual is eligible for U.S. asylum status if he or she can show "a well-founded fear of persecution," not a clear intent to leave other family members in Haiti. The Act also forbids the refoulement, or repatriation, of individuals to situations in which their lives or freedom would be endangered. Thus, while individuals in peril may not be able to prove overwhelmingly a "well-founded fear of persecution," the U.S. still has an obligation not to return persons to a country if upon return, their lives would be in danger. The Administration's apparent motivating interest in limiting the number of Haitians who flee from Haiti and risk travelling to the United States by boat is all the more inexplicable when examined in the current political context. According to the Presidential proclamation cited above, the new Haitian government poses enough of an "unusual and extraordinary threat to the national security. .of the United States" that it warrants an economic embargo. Yet, this same government is apparently not enough of a threat to its own citizens that they deserve true asylum hearings. The situation becomes all the more Byzantineh when one realizes that the U.S. interdiction program was agreed to by the overthrown Aristide government and not the new 8

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232 government of Haiti. The lack of a current agreement with the new government is no doubt in some measure due to the fact that it is not recognized by the Administration. Recommendations While the return of the Haitians to Haiti without adequate hearings of their asylum cases solves the U.S. government's short-term problem, its effect has been to sacrifice principle for expedience. This is particularly egregious in light of the fact that there are several alternatives much more appropriate to resolve the plight faced by Haitian asylum-seekers. These alternatives are outlined below. 9

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233 Temporary Protected Status (TPS) Section 302 of the Immigration Act of 1990 allows the Attorney General to designate a nationality as eligible for "Temporary Protected Status," or safe haven, if "there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state safely."10 The Attorney General has already granted TPS to certain Kuwaiti, Liberian, Lebanese and Somali nationals. Salvadoran TPS was statutorily mandated in the Immigration Act of 1990. Clearly, Haiti is also a country whose conditions make it unsafe for Haitian nationals to return. There are a number of advantages to offering TPS to Haitians, although it is probable that those being held by the Coast Guard will have to be paroled into the U.S. so that they may take advantage of the program. TPS would allow the United States government to o resolve the status of Haitians currently in the U.S. facing deportation; o resolve the dilemma posed by the Haitians being held aboard Coast Guard cutters; and o justify the merits of its discussions with the government of Hong Kong regarding the forced return of Vietnamese boat people. At the same time, Haitians currently residing in the U.S. without legal status would be able to come out of the shadows. TPS would provide for work authorization so that beneficiaries of the program could legally work to support themselves and their families and escape the exploitation that comes with undocumented status. An obvious corollary to the designation of Haiti under TPS is to stay all deportation and p exclusion proceedings against Haitians in the United States. 'oSee supra note 9. 10

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234 Transformation of the Interdiction Program into a Rescue-at-Sea Operation The interdiction program is, in many ways, already a rescue-at-sea operation. Because Haitians are risking the dangerous voyage to the United States in unseaworthy vessels to escape the turbulent political situation in their home country, the resources now being used for the interdiction program should be applied converting the program into a true rescue-at-sea operation. Unlike the practice of returning Haitians to Haiti under the interdiction program, Haitians risking the arduous trip should be brought to the U.S. for processing under U.S. law. If the situation in Haiti improves sufficiently, the U.S. government should pursue alternative means of deterring Haitian boat departures. The interdiction program, which was implemented to provide such deterrence, has been wholly unsuccessful in meeting its stated aim. A more useful approach would be to create a program to process Haitian claims directly through the U.S. mission in Haiti. As experience with the Orderly Departure Program (ODP) in Vietnam has indicated, the presence and functioning of a viable alternative to departure by boat can have a real impact on discouraging boat departures. If the ODP program could be safely negotiated and implemented in a country as far away Vietnam, it should be possible to implement a similar program in neighboring Haiti barring constraining political realities. It is counter-intuitive to argue that the U.S. can afford to manage a program in Vietnam but cannot do so in Haiti. A Regional Solution Prior to the repatriation on November 19, 1991 of the approximately 500 Haitians picked up by the U.S. Coast Guard and the subsequent issuance of the TRO, the Administration had reached an agreement with the governments of Venezuela, and Honduras and was negotiating 11

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235 with Trinidad and Tobago and Belize to offer safe haven for Haitians interdicted at sea. This effort was supported by the United Nations High Commissioner for Refugees and the Organization of American States. A regional solution is appropriate if the governments involved ensure the following protections to Haitians: o that the period of protection extend as long as conditions in Haiti remain unsafe for return; o that freedom of movement be allowed, even if asylum-seekers are housed in camps; and o that asylum-seekers be able to support themselves and their families. We would urge the Administration to pursue actively a regional solution if it is an active partner in meeting the needs of the Haitian refugees. Active U.S. participation would require implementation of TPS; bringing those Haitians currently held at sea and at Guantanamo Bay ashore to the United States for asylum, TPS, or parole; and facilitating family reunification for those Haitians with family in the United States. Conclusion The Southern District Court of Florida issued a temporary restraining order on November 19, 1991 preventing the U.S. Coast Guard from repatriating any more Haitians. This TRO was upheld in the 11th Circuit. We urge the Administration to use this time to implement the above recommendations. Only expedient and humane action on the part of the U.S. government will ensure the safety of the Haitian people until democracy is restored in their homeland. 12

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236 APPENDIX 6.--STATEMENT OF THE AMERICAN JEWISH COMMITTEE EEWS FRU.M. 'J'I: : eNwYork, New York10) 1r1751100 The American Jewish mo. irrn C o mitte"Committee uarectarr 1pubeh nls,ee The Atncricn. Jewish Cooniritlno p1040.als i igke I ia l eIredons oT J'ws IbE world ovel combats biyoty and cali-Srnilisln and pronImos bu[in,,n richls for il' Wor kS r li1 sciri hy o Israel and dee enied undi standirn IclCw en Americ.ns and lio.elis: ad.ocao publc joli prositirn, rcoled in Arrell an delhocaIc values nid lie lers c ,ctIes cf the Jewish heariae: and enhances thn Cciallve vitcihly of Ihe Jewish peopnlr kouisnrt in 198, it s tho pmony. lu11.1 .nieasI da lv g ncy in the U.S. Stoub 0 Caono ProudA ll, Iod N Mit,. Chi uet o 0ovensn. Min A, Vrrn. Cis, Noa's l ,I cr csi CouqirIl kncetM aner Chal, Soard d I stres, nobeIS Jinsoits. Car bucutive C m IIrr I's SIer An. ecutI, V r. P.,,donit Wush,0ranO 5111c. 202IMos asI,,setts Ae. NW Woshnilw DC 2Ml0 H iroi P Bo rll. Si r6.0 e 113o. I.,. 0ult Amercl 1o i gigus orl Me F 55 5l New ntw NY iltv 771% FOR IMMEDIATE RELEASE AMERICAN JEWISH COMMITrEE DEPLORES HAITIAN DEPORTATIONS NEW YORK, Nov. 19.-The following statement was issued today by E. Robert Goodkind, Chairman of the American Jewish Committee's National Affairs Commission and Gary Rubin, AJO's Director of National Affairs: "The American Jewish Committee deplores the decision by the United States government to repatriate forcibly Haitians who have fled violent conditions in their country. Over 1200 Haitians aboard U.S. Coast Guard vessels now face involuntary return despite highly credible reports of widespread abuses In their homeland. Our country has proudly granted asylum to Cubans, and safe haven to Salvadorans, Lebanese, Liberians and others; we can, In view of both our traditions of welcome and international law, do no less for Haitians. We call on the AdmInistration to cease immediately its repatriation policy, end the practice of interdiction of Haitians on the high seas, grant temporary protected status for Haitians during the time of the emergency in that country and join with Congress in supporting resolutions offered by Rep. Charles Rangel (D-NY) and Sen. Connie Mack (R-FL) that would further many of these objectives. We need to adopt a humanitarian policy to protect Haitian asylum seekers even as we continue to press for the restoration of Haiti's legitimately elected government." The American Jewish Committee protects the rights and freedoms of Jews the world over; combats bigotry and anti-Semitism and promotes human rights for all; works for the security of Israel and deepened understanding between Americans and Israelis; defends democratic values and seeks their realization in American publile policy; and enhances the creative vitality of the Jewish people. Founded in 1906, it Is the pioneer human-relatIons agency In the U.S.

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237 APPENDIX 7.-STATEMENT OF HON. ED TOWNS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK MR. CHAIRMAN, I WANT TO THANK YOU FOR HOLDING THIS IMPORTANT HEARING TODAY ON THE CURRENT U.S. IMMIGRATION POLICY TOWARD HAITIAN REFUGEES. AS YOU ARE WELL AWARE, MR. CHAIRMAN, FOR THE LAST TEN YEARS, THIS SUBCOMMITTEE HAS HAD UNDER REVIEW U.S. IMMIGRATION POLICY TOWARD HAITIANS. DURING TIME PERIOD, THE CONGRESSIONAL BLACK CAUCUS HOPED THAT VARIOUS POLICY AND LEGAL CHANGES WOULD PROVIDE EQUITABLE TREATMENT FOR HAITIANS WHO FLED TO OUR SHORES SEEKING REFUGE. TRAGICALLY, REGARDLESS OF THE ADMINISTRATION IN THE WHITE HOUSE OR THE LAWS ON THE BOOKS HAITIANS HAVE CONTINUALLY FACED DISCRIMINATORY TREATMENT. 1980 REFUGEE ACT ESTABLISHED A UNIFORM STANDARD FOR REFUGEES AND POLITICAL ASYLEES: "A WELL-FOUNDED FEAR OF PERSECUTION." WE REMOVED THE REQUIREMENT THAT YOU HAD TO BE FROM A COMMUNIST COUNTRY IN ORDER TO BE ADMITTED AS A REFUGEE INTO THE UNITED STATES. YET, DESPITE THIS CHANGE IN OUR REFUGEE LAW, HAITIANS STILL FOUND THEMSELVES DENIED DUE PROCESS AND JAILED IN FEDERAL PRISONS AROUND THE COUNTRY WHILE CUBAN REFUGEES WERE WELCOMED INTO MIAMI. EVEN WITH THE GOVERNMENT'S DESIGNATION OF "CUBAN-HAITIAN ENTRANT" STATUS, HAITIANS STILL FOUND THEMSELVES WITHOUT THE SAME BENEFITS AS CUBANS WITH THIS SAME STATUS. IT WAS CERTAINLY OUR HOPE AND EXPECTATION THAT THE ELECTION OF PRESIDENT JEAN-BERTRAND ARISTIDE WOULD BRING DEMOCRACY AND SOCIAL JUSTICE TO HAITI AND THUS END THE

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238 NECESSITY OF HAITIANS TO FLEE THEIR HOMELAND. DURING THE FIRST MONTHS OF PRESIDENT ARISTIDE'S TERM OF OFFICE, WE IN FACT SAW FEWER HAITIAN BOAT PEOPLE. THE RECENT MILITARY COUP HAS AGAIN INCREASED THE FLOW OF HAITIAN REFUGEES. IN OTHER INSTANCES, WHERE THERE HAS BEEN CIVIL STRIFE, WE HAVE PERMITTED THE NATIONALS OF THOSE COUNTRIES TO ENTER THE UNITED STATES AND BE PROCESSED FOR POLITICAL ASYLUM OR TO BE GIVEN THE TEMPORARY STATUS OF "EXTENDED VOLUNTARY DEPARTURE". WE HAVE DONE THIS FOR POLES, NICARAGUANS, LEBANESE, AND MOST RECENTLY PALESTINIANS FROM KUWAIT. WE EVEN PERMITTED ETHIOPIANS TO REMAIN HERE UNDER "EXTENDED VOLUNTARY DEPARTURE" FOR A SHORT TIME BEFORE AN EFFORT WAS MADE TO REVOKE THEIR STATUS IN 1981. THE CASE OF ETHIOPIANS ILLUSTRATES THE PROBLEM CURRENTLY FACED BY HAITIANS. DESPITE THE CONTINUING POLITICAL CONFLICT IN ETHIOPIA, THE PREVIOUS ADMINISTRATION SOUGHT TO REVOKE "EXTENDED VOLUNTARY

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239 DEPARTURE" STATUS FOR ETHIOPIANS. NO ONE EVER GAVE AN EXPLANATION FOR THIS CHANGE IN POLICY. IT WAS ONLY THROUGH THE BIPARTISAN EFFORTS OF CONGRESSIONAL BLACK CAUCUS MEMBERS AND OUR FORMER COLLEAGUE, CURRENT H.U.D. SECRETARY, JACK KEMP, THAT ETHIOPIANS WERE ABLE TO RETAIN THE PROTECTION OF "EXTENDED VOLUNTARY DEPARTURE". WAS IT A MERE COINCIDENCE THAT ETHIOPIANS, BLACK REFUGEES, WERE TARGETED FOR THIS CHANGE IN POLICY? IS IT A COINCIDENCE TODAY, THAT HAITIANS, ANOTHER GROUP OF BLACK REFUGEES, ARE BEING DENIED EVEN TEMPORARY PROTECTION UNTIL THE POLITICAL SITUATION IN HAITI IS RESOLVED? EVEN THE SO-CALLED REGIONAL SOLUTION TO DISPERSE SOME 500 HAITIANS TO OTHER COUNTRIES, IN THE CARIBBEAN AND LATIN AMERICA, IS UNPRECEDENTED AND HAS BEEN ESTABLISHED EXCLUSIVELY FOR HAITIANS. UNFORTUNATELY, MR. CHAIRMAN AND MEMBERS OF THIS SUBCOMMITTEE, WE DO NOT HAVE A COINCIDENCE. OUR REFUGEE AND ASYLUM POLICY CONTINUES TO BE DRIVEN NOT BY

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240 EQUITY BUT BY THE SKIN COLOR OF THE REFUGEES INVOLVED. IT IS ONLY WITH BLACK REFUGEES THAT WE SEEM COMMITTED TO A "POLICY OF RETURN" DESPITE THE POLITICAL CONDITIONS IN THEIR HOME COUNTRIES. THIS POLICY TOWARD HAITIANS IS PARTICULARLY DISTURBING IN LIGHT OF THE IMMINENT NEGOTIATIONS WHICH ARE EXPECTED BETWEEN PRESIDENT ARISTIDE AND THE HAITIAN PARLIAMENT FOR HIS RETURN TO HAITI. 1 WOULD ASK THE ADMINISTRATION: WHAT IS THE BIG RUSH? GIVEN THE DETERIORATING POLITICAL CONDITIONS IN HAITI, I AM AT A LOSS AS TO WHY OUR GOVERNMENT BELIEVED THAT THE HAITIAN RED CROSS WAS ABLE TO OFFER PROTECTION TO THE HAITIANS WHO WERE RETURNED. HOPEFULLY, YESTERDAY'S COURT ORDER TO HALT THE REPATRIATION PROCESS WILL ALLOW TIME FOR THE ADMINISTRATION TO DEVELOP A MORE HUMANE RESPONSE TO THE CURRENT POLITICAL CRISIS IN HAITI. FINALLY, MR. CHAIRMAN, THE ONE BRIGHT SPOT IN THIS WHOLE AFFAIR HAS BEEN THE BIPARTISAN OPPOSITION TO THE ADMINISTRATION'S POLICY. I WOULD HOPE THAT THIS SUBCOMMITTEE WOULD ALSO EXPRESS ITS OPPOSITION TO THE REPATRIATION POLICY IN THE STRONGEST POSSIBLE TERMS. THANK YOU FOR YOUR CONCERN AND ATTENTION TO THIS IMPORTANT ISSUE.

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241 APPENDIX 8.-STATEMENT OF WASHINGTON OFFICE ON HAITI WASHINGTON OFFICE ON flT4JrflJ ______________ I71~AAIIONIarybridAvertuejNorthEDst 2026n00 washngt~on, D.C. 20003 PAX aM.119 2oee FOR IMMEDIATE RELEASE November 20, 1991 Contact: Andrd Vainqueur John Kozyn (202) 543-7095 U.S. POLICY AGAIST HAITIANS PROTESTED The unilateral action by the U.S. State Department to forcibly return over 1200 Haitians fleeing the brutal Nerette/Honorat/C6dras regime has brought into sharp relief the humiliating and racist Interdiction Agreement signed by Ronald Reagan and Jean-Claude Duvaller in 1981. While refugees from Eastern Europe, Southeast Asia and Cuba are welcomed as political refugees, Haitians fleeing from a murderous regime against whom the U.S. supports an embargo, are sent back to Haiti whore military reprisals await them. For over six weeks, a well orchestrated pattern of repression has forced tens of thousands into the countryside and thousands more to risk an arduous journey to U.S. chores. After the ooup d'dtat which deposed the democratically elected Preoident Jean-Dertrand Ariatide, the U.S. policy of interdicting Haitian refugees and returning them to Haiti seemed to be held in abeyance. While efforts were made to locate third countries in order to provide a temporary safe haven for some Haitians, the State Department asserted Monday that individuals returned to Haiti, "will (not be subject to persecution there. There is no history of such persons being persecuted," Such an assertion flies in the face of the facts. From Papa Doo to Baby Doc to Namphy and Avril, many Haitian returnees have been subjected to arrest, harassment, beatings and death. Moreover, given the Haitian military's propensity to target pro-Aristide individuals and groups since September 29th, it is feared that the forced repatriation of these latest political refugees can only result in more human rights violations and for some, certain death, The Washington Office on Haiti calls on the responsible U.S. agencies to: o Halt the forced repatriation of Haitian citizens immediately 0 Abrogate the Interdiction Agreement of 1981 0 Increase rescue efforts of those fleeing the ongoing repression 0 Work closely with regional organizations to provide a temporary safe haven until constitutional democracy is restored in Haiti. o Ensure the effective implementation of the embargo against the illegitimate government. lff 0 51-225 0 -92 (248)