NCHR Leader Pleads for Asylum Reform Before the US Commission on Civil Rights

Statement of Jocelyn McCalla Before the US Civil Rights Commission
Washington, DC, December 8, 2000

(Statement also available at IGC.org) 

Distinguished Members of the Commission:

I am honored to stand before you today to contribute to the debate on whether harm is done when immigration laws meet civil rights at the border. My name is Jocelyn McCalla and I am the Executive Director of the National Coalition for Haitian Rights (NCHR), which was once christened the National Coalition for Haitian Refugees in 1982. 

NCHR rose from a deep belief among civil rights, religious, labor and community leaders in this country that the rights of Haitian asylum-seekers were being denied wholesale because the Reagan administration had imposed mandatory detention and launched the Haitian Migrant Interdiction Operation directing the Coast Guard to intercept Haitian refugees in international waters, and return them immediately to Haiti once officers on board the cutter determined that they did not have a well founded fear of persecution. NCHR continues to pursue its mission of promoting the rights of Haitian refugees under US and international law while also seeking to ensure that the civil rights of Haitian immigrants and Haitian-Americans are upheld under the law.

Much has happened since NCHR was founded. But not for the better. Interdiction at sea is no longer directed solely against Haitian asylum-seekers. It is being applied to others as well. And it has given rise to a policy known in Florida as the "wet foot/dry foot policy," according to which one is subject to interdiction and repatriation as long as one is wading in waters whether that is five feet of water or 500 feet. On January 1, 2000 a boatload of about 400 Haitians, a dozen Dominicans and two Chinese nationals, was intercepted by the US Coast guard less than two miles off Key Biscayne, Florida: close enough to see the fireworks and clearly within US territorial waters. Invoking the wet foot/dry foot policy, the Immigration and Naturalization Service (INS) decided to return all the passengers to Haiti, with the exception of a few individuals in urgent need of medical care. 

Hundreds more Haitians have taken to the high seas to seek asylum on American shores as the turmoil that characterizes Haiti’s shaky efforts to forge a democratic society continues. Data from the US Coast Guard indicate that as of the end of June 2000, they have interdicted over 1,000 Haitians refugees. This number represents more than twice the number of Cubans interdicted in the same period and more than three times the number of Dominicans. Further USCG data informs that an additional 800 Haitians have been interdicted by other US and foreign agencies during this time period. 

Reform of the immigration laws in 1996 have introduced the concept of expedited removal which subjects an asylum-seeker at a port of entry to a rapid-fire determination of his or her claims to persecution or fear of persecution by an inspections officer unschooled in the field of asylum and human rights. The individual who is able to pass that hurdle must then convince an asylum officer that he or she has a credible claim to persecution. And if that fails, the claim can be put before an immigration judge. All within a short time frame. But quite often the asylum-seeker may not benefit from the counsel of a trained advocate or a lawyer in proceedings that are a life and death issue for those who are genuinely fleeing persecution.

Several thousand Haitians took to the high seas between 1991 and 1994 to escape a climate of terror imposed by a military dictatorship determined to thwart the will of the Haitian people and the international community. The US response to this mass exodus was interdiction and repatriation. However, from November 1991 to February 1992, a federal court’s injunction against repatriation led the US to hold interdicted Haitians on the naval base at Guantanamo Bay, Cuba and institute a screening process for credible fear of persecution, a standard that fell short of granting them outright a well-founded fear of persecution. 

Asylum officers charged with screening Haitian refugees found that more than 11,000 thousand demonstrated a credible fear of persecution. They were cleared for travel to the US mainland to pursue their asylum claims. Should the higher standard have been applied, the Haitians found to hold it would be automatically granted asylum or refugee status. As you are probably aware, after a year of being in such a status, the asylee or the refugee can apply for adjustment to legal permanent residence status. Barring any major obstacles, such request is usually granted. Instead, the Haitian refugees were placed in limbo, subject to deportation should they fail to pass the well-founded fear threshold.

In February 1992, following a Supreme Court order that lifted the injunction against repatriation, President George Bush issued an executive order instructing the US Coast Guard to institute repatriation to Haiti automatically: no hearing, no credible fear determination, no relief from persecution.

In 1997, Congress considered and passed laws that granted Nicaraguan and Cuban refugees permanent legal residence. However, NACARA, the Nicaraguan and Central American Relief Act, left in the cold thousands of Haitians and Central Americas who were similarly situated, except for the fact that they could not claim Nicaraguan or Cuban citizenship.

In 1998, partial remedy was granted to Haitian refugees when Congress adopted the Haitian Refugee Immigration Fairness Act (HRIFA) extending permanent legal residence to the Guantanamo Haitians and their immediate relatives. Haitians who had fled repression in Haiti during the same period but who had entered the US and extended their stay past the legal limits and failed to apply for asylum before December 31, 1995 were not eligible for HRIFA relief. Let us note that NACARA had made no such distinction with respect to the Nicaraguans and Cubans. There, as long as you were a national of these countries, it did not matter whether you had come in illegally across the border or were no longer in legal status because you overstayed or had applied for asylum.

Delays in developing and issuing implementing regulations significantly curtailed the time that Haitians had to apply for immigration relief under HRIFA which became law on October 21, 1998. Interim rules were issued on May 12, 1999. They took effect a month later on June 11, 1999 with applications to be submitted by March 31, 2000. Haitians had a total of nine months in which to file applications that, depending on where they were within the system had to be submitted either to a INS processing center or to an immigration court together with requisite documents that were hard to obtain from Haiti. Final regulations were issued on March 23, 2000, about one week before the filing deadline. Of the 50,000 Haitians estimated eligible to apply, less than half had applied by the deadline. I am not aware of any other group facing such an issue.

To redress the situation, along with others we have advocated the adoption of the Latino Immigration Fairness Act (LIFA) whose aim is to simply do what NACARA failed to do three years earlier: treat all similarly situated Central Americans and Haitians the same without discrimination. The legislation is currently pending before Congress as we speak, and is the subject of negotiations between the Clinton Administration and Republican congressional leaders. The measure enjoys widespread support within the immigrants rights community, congress and from the Clinton Administration. We sincerely hope that it will be adopted and thus bring us closer to the ideals of equal protection under the laws of the United States that we all strive for.

Yet, unless something changes dramatically in the US, Haitians intercepted off-shore will be denied asylum without so much a review of their claims and repatriated swiftly to their homeland. Medical emergencies trigger exceptions to this rule: then the Coast Guard evacuates those in need of medical attention to a land facility where they can get adequate medical care. All of the Haitians who were lifted from the waters off Key Biscayne on January 1, 2000 and evacuated to Jackson Memorial Hospital in Miami were found by INS asylum officers to have a credible fear of persecution and released to the custody of their relatives. I had the pleasure of testifying recently as an independent expert on human rights conditions in Haiti on behalf of one of them, Yvena Rhinvil, whom I believe will be granted asylum.

Yvena is no major political figure. She is simply a young Haitian woman who once campaigned for human rights and democracy in Haiti. For speaking out for a better Haiti, she suffered intimidation, threats and developed a fear of persecution. With her two young children in tow, she took off along with hundreds of others, seeking refuge in the United States. Her dreams became a nightmare when she was airlifted to Miami while her children were taken back to Haiti along with the others. Fortunately for the children and Yvena, Attorney General Janet Reno agreed with Haitian advocates that the children should have remained with their mother and taken off the boat as well. Also fortunately for them NCHR had people on the ground in Haiti who were quickly able to locate the children, provide them with a safe and secure place from which they could not be harmed until they could be escorted out of Haiti by a delegation led by Congresswoman Carrie Meek.

We cannot help but wonder how many of the 400 on the boat could have enjoyed freedom from the fear of persecution today were it not for the barriers erected to exclude them from access to the asylum system right within US territorial waters where cargoes of good and merchandise may have far more protection than human beings.