YLS Sale Symposium: The Politics of Interdiction and Haitian Advocacy

by Jocelyn McCalla

[Jocelyn McCalla was the Executive Director of the National Coalition for Haitian Rights from 1998 to 2006.]

For the purposes of this discussion I will restrict my remarks to the impact of Sale on Haitian immigration and advocacy; I will not be so bold as to extend them to the impact overall on all immigrants, refugees and asylum-seekers that the United States is dealing with. Secondly, I believe it is important to explore advocacy before Sale as well after Sale. One can’t comprehend what happened after 1993 without an examination of the 20 years of advocacy on behalf of Haitians that  preceded the Supreme Court decision, as well as the changing relationship between Haiti and the United States.

Haitian asylum-seekers began fleeing to the United States by sailboats in 1972. From  the very beginning, advocacy on behalf of Haitians in the United States has never been uniquely about rights to due process or access to the asylum system. It always had a dual edge: promoting rights on the domestic front were associated with the promotion of democratic rights in Haiti. Advocates had urged the United States to disassociate itself from the brutal Duvalier dictatorship. They held that it was that regime which caused Haitians to flee: end your support of the regime, side with democracy and refugee flow would dry up… They looked  to the Courts for relief and to the Court of public opinion for support.

The United States tried all sorts of forceful measures to stem Haitian refugee flow but couldn’t. Finally President Ronald Reagan issued the interdiction order authorizing interception at sea and forcible return. Additionally should the asylum-seekers find themselves close to US shores they needed to be within 3 nautical miles of the shore to access legal help. Interdiction worked: of the 23,000 Haitian refugees intercepted at sea, only six were deemed to have prima facie valid asylum claims. All others were returned.

Things came to a head in 1991 following the violent ouster of democratically-elected President Jean-Bertrand Aristide when a federal court judge in Miami triggered a scramble at the highest level of  the US government when it enjoined the US from returning refugees intercepted at sea. The high seas drama – interdiction, Guantanamo, injunction against interdiction — that followed Aristide’s ouster generated sizeable support for Haitian refugees and the Aristide administration.

Campaigning in 1992, Bill Clinton promised to overturn the interdiction policy. Clinton changed his mind shortly before being sworn in. He offered a quid pro quo: more energetic support for Aristide’s return and democracy in Haiti in exchange for keeping the status quo on interdiction, asylum screening and quarantining HIV positive Haitian asylum seekers at GTMO.

This said, I believe that we can all agree that, during the Clinton Administration, the laws and regulations governing grants of  asylum became more restrictive and onerous. The coalition of groups and individuals who had rallied against interdiction crumbled, particularly after the Clinton Administration moved decisively to restore President Jean-Bertrand Aristide to power…

Most immigrants’ rights advocates today probably have little clue on Sale v. HCC for it is largely irrelevant to today’s debate,  as this debate seems largely concentrated on the future of the large population of unregistered immigrants IN the United States… not whether the United States should welcome a significant portion of all those seeking freedom from oppression and economic opportunities. For all practical purposes, the National Security argument has won: immigrants and refugees are seen as threats, not assets. Thus the United States is willing to deploy significant resources to stop asylum-seekers, refugees and unauthorized immigrants at the border, even come up with novel yet ridiculous rules such as wet foot/dry foot, and expel them by force.

Haiti has taken baby steps towards democracy. Restored to office in 1994, Aristide was ousted a second time in 2004. Since then Haiti is in trusteeship with a sizeable UN  presence and internationally sponsored and manipulated elections. President Obama has granted Temporary Protected Status to Haitians in the United States post-earthquake 2010.

If Congress is not willing to entertain the notion of legalization even at the proposed high costs to the would-be beneficiaries, furthest from the policy goals is the notion of the United States submitting to international laws governing non-refoulement of refugees. And thus a clear signal to the rest of the world that they might as well emulate the United States.

http://opiniojuris.org/2014/03/11/yls-sale-symposium-politics-interdiction-haitian-advocacy/

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