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Haitian Refugee Center v. Civiletti
originated in the INS response to the so-called Haitian Problem, when those thousands of Haitian boaters appeared off the Florida coast seeking political asylum. The rising volume of Haitian applicants coincided with pending changes to asylum procedures, which brought immigration hearings to a standstill. By June 1978 the number of unprocessed asylum claims exceeded six thousand, prompting INS officials to launch what became known as “the Haitian Program.”
12
Based on the conviction that the surest way to stanch the flood of refugees was to make their lives in the United States as miserable as possible, the Haitian Program authorized the immediate detention of refugees upon arrival in the United States. It terminated an existing policy that allowed detainees to apply for temporary work permits. And it introduced a set of administrative procedures designed to expedite the refugees' deportation. As if to comply with international and domestic laws that prohibited deporting refugees who might face political persecution upon returning home, the Haitian Program declared the Haitians
economic
refugees.
In the end, the Southern District Court of Florida found for the Haitians in
Civiletti
, confirming the charges of discrimination on the basis of national origin, and violations of due process.
13
District Court judge James Lawrence King was unsparing in his criticism of virtually every element of the Haitian Program. Whereas detaining the Haitians and forbidding them to seek temporary work was simply cruel, their expedited exportation was positively “callous.” “Expulsion might well dissuade future migrants from leaving Haiti,” Judge King conceded, “but it would do so by exposing Haitians to the persecution and death they feared.”
14
Moreover, the Haitian Program described the refugees “as fitting into a broad class susceptible to uniform treatment,” thereby violating the individual right to due process. There was nothing wrong with taking into account conditions in the country of origin with respect to
individual
asylum claims, King pointed out, but such conditions cannot serve as the basis for devising processing
procedures
. “The essence of procedural due process is that everyone receive
the same fair hearing,” the judge remarked, “regardless of the merits of their individual claim. Economic refugees do not have fewer procedural rights than political refugees, just as a criminal defendant's procedural rights are not altered by his guilt or innocence.”
15
Judge King dismissed the government's claim that the Haitians posed a threat to the local Florida community as “nothing short of fantastic.” The Haitians posed no considerable threat, nor did the local Miami community perceive one. “How can a group of poor, black immigrants threaten a community?” King wanted to know. “What for that matter, is a âsocial threat,' if not the words of someone trying to protect his own views of how society should exist? On such views the Haitian program was founded.”
16
However shameful, the government's behavior in the case unsettled King less than what appeared to be its underlying motivation, for more was involved here than discrimination alone. Racism itself was the core of the issue, Judge King concluded, and the court simply could not “close its eyes.” The plaintiffs were “part of the first substantial flight of black refugees from a repressive political regime to this country,” Judge King remarked. “All of the plaintiffs are black. In contrast, for example, only a relatively small percent of the Cuban refugees who have fled to this country are black.” Except in extraordinary circumstances, “all of the Cubans who sought political asylum in individual hearings were granted asylum routinely.” And yet “none of the over 4,000 Haitians processed during the INS âprogram' at issue in this lawsuit were granted asylum. No greater disparity can be imagined.”
17
Judge King could not contain his astonishment at the government's behavior. “Irony after irony plagues this case,” he remarked. The Haitians embarked for the United States expecting to “reach a land of freedom.” They were met by “an Immigration Service which sought to send them back to Haiti without any hearing, and a systematic program designed to deport them irrespective of the merits of their asylum claims.” They had been “assured by good people in this country that Miami was not Haiti, that they did not have to fear persecution by the United States.” And yet “their claims were denied without any meaningful consideration.” U.S. Haitian policy was “shocking and brutal,” Judge King wrote, “populated by the ghosts of individual Haitiansâincluding those who have been returned from the United
Statesâwho have been beaten, tortured and left to die in Haitian prisons.” It had to stop.
18
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King's ruling in
Civiletti
reflects a record of fact finding undertaken by the court about political conditions in Haiti. The conditions described in court documents transcend Duvalier-era rule itself (which came to an end in February 1986), and help explain why tens of thousands of Haitians ended up at the Guantánamo naval base in the early 1990s.
19
In order to justify its characterization of the Haitian asylum seekers as economic refugees, the U.S. government had to demonstrate that Haiti was politically safe. If discrimination on the grounds of national origin was illegal according to U.S. law, forced repatriation of refugees to a country unable to guarantee their life and liberty violated both U.S. law and Article 33 of the United Nations Protocol Relating to the Status of Refugees (to which the United States became a signatory in 1968). To prove both the economic motive of the refugees and the existence of safe political conditions in Haiti, the defendants introduced a State Department study depicting glowing treatment by Haitian government officials of eighty-six recently returned asylum seekers, including thirty members of the
St. Joseph
's crew. Too good to be true and conceptually flawed, the State Department report prompted the District Court to undertake an investigation of its own.
20
Though not unprecedented, such fact finding in a case such as this is unusual. In general, federal judges wade cautiously into questions of foreign policy. “Immigration and naturalization matters implicate the conduct of foreign relations,” Judge King conceded, thus they “pose the subtle risk that a decision on such questions might intrude on the political domain of the President and Congress.” The court could not, for example, review an immigration case disputing discrimination specifically authorized by Congress. But it could indeed ensure that U.S. government agencies upheld congressional statutes and international protocols. Which is precisely what was at issue in
Civiletti
, and why Judge King concluded that the court could not weigh questions of discrimination and safe return without engaging in some research of its own. Conditions in Haiti, the Court discovered, were “stark, brutal, and bloody.”
21
To bend the will of a nation to the ambition of a single individual (or family) requires an immense security apparatus. It also often entails an impoverished and disenfranchised populace, a venal and obsequious elite, and an outside enabler. All three elements were present in midcentury Haiti as it emerged from twenty years of U.S. occupation (1915â1934) followed by twenty more years of indebtedness to and domination by outside economic interests, principally in the United States. When, in 1957, Haitian Army officials seized upon the slight and studious figure of Dr. François Duvalier to lend its rule legitimacy, it elevated a man infinitely more cunning than they, one able to channel widespread racial resentment against Haiti's light-skinned political, economic, and military elite into a populist crusade centered on himself. Recognizing its impending demise, Haiti's business community threw itself at Duvalier's feet.
The U.S. government facilitated Duvalier's rise to power. The simultaneous demise of Fulgencio Batista in Cuba stoked U.S. fears of Communist penetration along America's southern frontier. Duvalier shrewdly manipulated U.S. State Department officials, portraying himself as the defender of Western liberalism, all the while launching one of history's most authoritarian states. The U.S. government happily went along. The nation's “over-riding objective,” a State Department official remarked, was “to deny Haiti to the communists.” The secondary objective was to protect “private citizens and property interests in Haiti.”
22
These goals were complementary. “To some extent,” a CIA report later observed, “the incredibly low standard of living and the backwardness of the Haitian masses work against communist exploitation in that most Haitians are so completely downtrodden as to be politically inert.”
23
If combating communism was its principal aim in Haiti, the United States backed the right man. Nobody and nothing would be spared in the battle against communism, including liberalism itself. “Communist activities are declared to be crimes against the security of the state,” Duvalier announced. “Any profession of Communist faith, verbal or written, public or private, any propagation of Communist or anarchist doctrines through lectures, speeches, conversations, readings, public or private meetings, by way of pamphlets, posters, newspapers, books, and pictures; any oral or written correspondence with
local or foreign associations, or with persons dedicated to the diffusion of Communist or anarchic ideas; and furthermore, the act of receiving, collecting, or giving funds directly or indirectly destined for the propagation of said ideas”âall was strictly forbidden. Perpetrators of such crimes would be sentenced to death, their property “confiscated and sold for the benefit of the state.”
24
Besides recognizing the need for an outside sponsor, Duvalier understood that having turned to him to legitimate
its
rule, the army could not serve as his primary base of support. So he created an army of his own, the Volunteers for National Security (in French VSN for short), or Tonton Macoutes, named after the diabolical folk figure “Uncle Knapsack,” who carted off naughty children on Christmas Day.
25
The Tonton Macoutes answered directly to Duvalier. Through the Macoutes, Duvalier's influence pervaded every element of Haitian society, from business to labor, from press to pulpit, from field to factory, from neighborhoods to schools, until finally infiltrating even the army itself.
26
In denying political asylum to
Civiletti
's petitioners, the U.S. government drew on a narrow interpretation of what constituted political resistance in Haiti based on the State Department report. According to the State Department, only intellectuals and political opposition leaders qualified as dissidents and hence potential victims of Duvalier oppression, a distinction that restricted asylum claims to a narrow class indeed. The court rejected the State Department classification. “The uncontroverted evidence at trial,” Judge King observed, “demonstrates that the âpolitical opposition' is quite broadly defined” in Haiti. The State Department team failed “to consider the possibility that the claim of asylum itself may cause one to be classified among the political opposition.”
Certainly, not every Haitian returnee endured such abuse. Still, the evidence revealed “a pattern one step removed from that.” Asylum seekers were sure to be greeted with suspicion and regarded as opponents of the state. In Haiti this meant they faced a “substantial danger. Many will go to prison ⦠. In prison, many will be beaten, perhaps even tortured, and some will die as a result.” Meanwhile, others would live on in continuous fear “of a midnight visit from the Macoutes.”
27
Judge King conceded that individual accusations of abuse could be interpreted as isolated disputes between one Haitian citizen and the
local prefect. This was “precisely the conclusion reached” by INS officials, who classified many such claims as “clearly lacking in substance.” This made the court's fact finding indispensable. Based on its own evidence, the court concluded that “the Haitians in this class deserved something more than they received from the INS.” Their so-called
economic
“claims were more political” than recognized; the government's “uniform rejection of their claims” betrayed “a profound ignorance, if not an intentional disregard, of the conditions in Haiti.” The court's examination of political conditions in Haiti demonstrated that “some Haitians will be subjected to the brutal treatment and bloody prisons of Francois Duvalier upon their deportation. Until INS can definitely state which Haitians will be so treated and which will not, the brutality and bloodletting is its responsibility.”
28
During the events described in
Civiletti
, the U.S. government first broached the idea of exploiting Guantánamo Bay's ambiguous political and legal status to deny constitutional protections to individuals detained at the naval base. On August 20, 1978, the deputy commissioner of the INS, Mario T. Noto, sent a memo to his boss, Leonel J. Castillo, outlining a potential solution to the Haitian Problem. In the memo, Noto proposed detaining Haitians intercepted at sea at Guantánamo Bay rather than bringing them to Miami. At Guantánamo Bay, formally sovereign territory of Cuba, Haitians would have few if any constitutional protections and no access to lawyers, which INS officials had come to see “as part of the problem.”
29