Post 9-11 regulation intended to target terrorists is invoked against Haitian asylum seekers

INS Announces Expedited Removal for Migrants Arriving By Sea

The Lawyers Committee is concerned that the U.S. government’s detention and interdiction policies toward Haitians are discriminatory, and urges that these policies be abandoned.

“Why are Haitians being targeted for detention, when other asylum seekers in Florida are routinely released while they pursue their asylum claims?” asked Eleanor Acer, Director of the Asylum Program at the Lawyers Committee. “And why are Haitians who are interdicted on boats not given the same opportunity to express their fear of return as Cuban or Chinese asylum seekers are given?”

On October 29, 2024 more than 200 Haitian men, women and children swam ashore near Key Biscayne, Florida and remain detained in INS custody, except for the 19 who were reportedly returned to Haiti.

This situation raises issues relating to U.S. detention and interdiction practices:

• The Lawyers Committee objects to the discriminatory detention of the Haitian men, women and children who reached shore and are now in INS custody. Although they are eligible for release on bond, the INS has refused to set bond for these Haitians. The Lawyers Committee is particularly concerned about the INS’s planned use of a controversial rule – issued in the wake of September 11 – to keep Haitian asylum seekers in detention even if an immigration judge orders their release.
  
• The Lawyers Committee is also concerned that U.S. interdiction practices are discriminatory and do not afford Haitian asylum seekers an adequate opportunity to voice their fears of return.

Discriminatory Detention

After a boat carrying about 170 Haitian asylum seekers arrived in Florida in December 2001, the INS instituted a separate parole policy directing that Haitian asylum seekers not generally be released on parole. Now, in response to the arrival of this most recent boat, the INS is again taking a discriminatory approach to the detention of Haitian asylum seekers.

The INS is reportedly invoking a controversial new regulation – a change that was made by the Department of Justice on October 31, 2001 in the wake of the September 11 attacks. The new regulation gave INS trial attorneys the power to, in essence, overrule an immigration judge’s decision to release an immigration detainee on bond. This overly broad provision can be invoked where there is absolutely no suspicion of criminal or terrorist activity, and was immediately applied to Arab and Muslim non-citizens who were detained in the wake of September 11, leading to prolonged periods of detention. The INS is now threatening to use this overly broad power to detain asylum seekers for what will likely end up being prolonged periods of time. The INS has also reportedly refused to set bond for these asylum seekers.

The INS’s treatment of Haitian asylum seekers – which in effect deprives Haitians of an individual determination and treats them in a discriminatory manner – violates due process and international law.

The Lawyers Committee urges that:

• The INS treat Haitian asylum seekers the same as all other asylum seekers.
  
• The INS ensure that Haitian asylum seekers are given genuinely individualized detention determinations – instead of determinations that are simply a charade.

Discriminatory Interdiction

The U.S. Coast Guard announced yesterday that it would step up its efforts to interdict Haitian and other migrants who attempt to come to the U.S. illegally. At the same time, the U.S. reportedly returned the 19 Haitians who had failed to reach shore to Haiti.

The United States is obliged, under international law, not to return people to a country where their lives or freedom would be threatened on account of their political opinions.

But how can the U.S. be sure that the Haitians it is returning are not in danger of persecution when it does not conduct any screening of the Haitians it returns?

Under U.S. procedures, migrants who are interdicted on boats are not given access to lawyers and are not all screened to make sure that they are not refugees who are in danger of persecution if returned. While Cuban migrants are read a statement in Spanish notifying them that they may come forward and speak with a U.S. representative if they have any concerns and Chinese migrants are provided with a written questionnaire, Haitian and other migrants are not provided with any indication, written or oral, that they can express their fears about being returned. Even if a Haitian asylum seeker should voice a fear of persecution, the U.S. government does not require that translators be present on every interdicted boat so their fears may never be heard.

The Lawyers Committee urges that:

• All individuals who are interdicted on boats by the U.S. government be individually apprised, in a language that they understand, that they can express any fears or concerns about being returned to their home country. Anyone who does indicate a fear should be interviewed by a trained INS asylum officer.