Haiti: Abandoned Yet Again By Her Western Neighbors

From time to time Birdsong presents, with their permission, works written by his Barry Law students which are of outstanding quality and timeliness.  The following article was written by Susan Morris, an excellent student, who graduated from Barry and was the valedictorian of her December 2007, graduating class.  Birdsong taught Ms. Morris immigration law and was her faculty advisor for this article in which she chronicles the United States’ history of disparate treatment toward Haiti and Haitians. Among other things, she argues that since our  country is “committed to upholding the principles of racial equality…it is well past the time that the United States matches her actions to her words when dealing with our Haitian neighbors.”  Ms. Morris now practices immigration law in Orlando, Florida. Birdsong is proud to have been one of her teachers. Enjoy the article.



S. Morris

© 2007

 I.                  INTRODUCTION

In the year 1798, the French, under Napoleon Bonaparte, were militarily expanding their territory.  The United States, under then President John Adams, was very concerned about the prospect of a French invasion.[1]  The Caribbean and West Indies had become strategically important to the newly formed United States.  Our country had four squadrons or twenty-one ships in total, almost the whole American Naval force, assigned to this area.[2]  San Domingo or Saint Dominique (modern day Haiti) had been the crown jewel of France as a very wealthy colony of sugar plantations until the island became the first where the slaves successfully revolted.[3] 

This emancipation was, in 1798, being led by the brilliant black French General Toussaint L’Ouverture.  A man of exceptional foresight and character, Toussaint was an ex-slave who had loyally provided for the safety of his master’s family before joining the revolt in late 1791.[4]  In order to obtain food for his starving troops, Toussaint desperately wanted the American embargo against the former French colony lifted.  He wrote President Adams to suggest that the United States recognize the fledging black republic and that in effect the two countries become allies.[5] 

President Adams was interested enough to receive and dine with Toussaint’s representative, Joseph Bunel, which marked the first time that a man of African descent was the dinner guest of an American President.[6]  In spite of opposition by many Republicans who were very concerned that ideas of rebellion would affect the United States system of slavery in the southern states, Congress did in fact pass a bill, supported by Adams and other Federalists, known as “Toussaint’s clause” which lifted the embargo against the island.[7]  However, after the British under Admiral Nelson destroyed the French fleet at the battle of the Nile, fears of war with France were alleviated and there was no longer a use for Haiti.[8]  The eventual defeat of Napoleon along with the concern of U.S. slave states of the “fatal influence that the independence of the Haitians would have on their own slaves” led U.S. policy to turn against the young black republic and on February 28, 1806, then President Thomas Jefferson signed into law a bill prohibiting all trade with Haiti.[9]    The United States along with all of the other Western and European countries proceeded to abandon and isolate the new black republic dooming it to economic and political failure.

This paper postulates that this cycle of disparate treatment of Haitians has continued throughout recent history and into the present day.  A continuous cycle of extending of an “olive branch” when it benefits us and then alternately “slamming the door” on our neighbor, Haiti, when it does not.  Part I of the paper will examine the alternative and fairer treatment of the citizens of another of our close island neighbors, Cuba.  Part II of this paper examines the history of both countries with an emphasis on their political evolution and aspects of United States involvement in their respective histories.  The various reasons for immigration from both Haiti and Cuba to the United States are also discussed in this section. 

Part III is a review of the Cuban Adjustment Act (CAA) including the history of the Act and reasons for its enactment.  The Cuban Adjustment Act while not perfect at least provides a model for more fair treatment of qualifying individuals desiring to immigrate to the United States from places such as Cuba and Haiti.  There is also a description and history of what is commonly known as the “Wet Foot/Dry Foot” policy and how implementation of this policy affects both Cubans and Haitians desiring to immigrate to the United States. 

Part IV of the paper describes the evolution of different immigration and adjustment of status legislation pertaining to Haitian citizens as well as other similarly situated groups.  The results of enactment or non-enactment of such legislation are discussed therein.  Such includes the Nicaraguan Adjustment and Central American Relief Act (NACARA) enacted in 1997, the Haitian Refugee Immigration Fairness Act (HRIFA) enacted in 1998, the Central American and Haitian Adjustment Act of 1999 (never enacted by both the House and Senate), and the Haitian Immigration Equitable Adjustment Act of 2000 (not enacted).  An overview of United States asylum law is included in this section in an effort to emphasize the need for additional legislation.

Part V of the paper examines the unequal treatment of Haitians and the continuation of this disparate treatment including racial discrimination.  A chronology of relevant court decisions herein will examine judicial views on immigration and discrimination and the legal response of United States courts to policies such as the Immigration and Naturalization Service’s Haitian Program of 1978 and the more recent expedited removal rule of 2002.  Also included in this Part is a discussion on the selection of rational basis scrutiny as the standard to be applied to laws relating to immigration policy as well as the deference of the courts to the plenary power of Congress to regulate in the areas of immigration and national security. 

The conclusion of the paper will provide considerations and recommendations concerning future immigration policies pertaining to Haitians.  Although all avenues of reform should be pursued, it is the author’s recommendation that changes are more effective and timely made by working through the legislative and/or executive branches via political channels as opposed to working solely through the judicial system via court challenges.             


A. Haiti

      In 1804, after a long struggle, Haiti became the first black republic to declare its independence.  The former French colony had been one of the wealthiest in the Caribbean due to the harvesting and degradation of forests and the sugar industry plantations which prospered due to the heavy importation of African slaves.  At the beginning of the slave revolts in 1791, there were around a half million slaves in Haiti.[10]  The Haitian trade ban of 1806 “firmly established American hostility toward the black republic”, and the United States did not extend diplomatic recognition to Haiti until 1862 under then President Abraham Lincoln.[11]  In part due to the economic and political isolation of the black republic, Haiti never recovered.  Haiti is currently the poorest country in the Western hemisphere and has been plagued by political violence for most of its history.[12] 

From 1843 to 1915, Haiti experienced 22 changes of government accompanied by intense political and economic disarray which led to a 19 year United States military occupation of Haiti which ended in 1934.[13]  In 1957, “Papa Doc” Duvalier became President of Haiti beginning a ruthless dictatorship in which an estimated 30,000 Haitians were killed for political reasons over a 14 year period.[14]  In 1971, just before his death, Duvalier designated his son, “Baby Doc” Duvalier, as President of Haiti; the younger Duvalier continued as President until 1986 when he fled Haiti for France.[15]  For the next few years the country was ruled by a series of brutal and repressive provisional governments before the first democratic elections were finally held with international help on December 16, 1990.  Jean-Bertrand Aristide, a politically active Catholic priest, won 67.5% of the popular vote and took office on February 7, 1991.[16] 

Haiti’s attempts at democracy, however, were short lived as Aristide was ousted by a violent military coup in September of 1991 and forced to flee Haiti.[17]  During the ensuing military de facto regime, several thousand Haitians were allegedly killed and a large scale exodus of Haitians by boat followed.  During 1991 and 1992, the U.S. Coast Guard rescued (or interdicted) a total of 41,342 Haitians at sea which was more than the total number from the previous ten years combined.[18]  Finally, in October 1994 under the threat of military action by a U.S. led multinational force, the military leaders left Haiti and Aristide was returned to resume his role as the democratically elected President of Haiti.  In 1996, Haiti’s first ever transition of power between two democratically elected presidents took place as Rene Preval, a former Prime Minister under Aristide, was sworn into office for a 5 year term on February 7.[19] 

Unfortunately, due to a realignment of political parties and disputes regarding the April 1997 elections for senate and other political offices, political gridlock ensued and the government was not able to organize elections again until 2000.  These elections which were dominated by former President Aristide’s new party, “Lavalas Family” (FL), were disputed by opposition parties as well as some in the international community including the United States who proceeded to cut off economic assistance to Haiti. [20]  On February 7, 2001, Jean Bertrand Aristide was once again elected President of Haiti a disputed election.  Over the next several years despite international intervention by the United Nations, the Organization of American States (OAS), the Caribbean Community (CARICOM), and the United States, the political situation in Haiti became more unstable and more violent until on February 28, 2004, President Aristide was ousted by a rebel led group led by a former police chief, Guy Phillipe.[21] 

Following the coup, Haitian Supreme Court Justice, Boniface Alexandre, became president and Gerard LaTortue was appointed prime minister of the Interim Government of Haiti (IGOH) which was mandated to organize new elections.  After much turmoil, elections were finally held in February of 2006 and the winner was Rene Preval, former President (1996-2001), with 51.15% of the vote. [22]  Since the elections, Haiti has struggled to maintain stability and combat violence related to potential opposition to the government from well armed and militant political groups as well as gang related violence.[23]  The continuing human rights problems and instability in the country has necessitated the continuing presence of the UN Stabilization Mission in Haiti (MINUSTAH).[24]              


B.   Cuba 

               Cuba is located only 90 miles south of Key West, Florida and is the largest island in the West Indies.  Cuba was settled in the early 16th century by the Spanish who eliminated the original Arawak Indian inhabitants.[25]  The Spanish established plantations of sugar and tobacco which remain today two of Cuba’s important agricultural crops.  However, the Spanish also restricted the slave trade until the Seven Years War when the British took the port of Havana in 1762 and expanded the slave trade.  After this Cuba’s sugar industry became one if not the most important in the world.  In 1807 Britain abolished slavery but Cuba was one of the last countries in the Western Hemisphere to finally abolish slavery in 1886 following the Ten Years War.[26] 

The first major actions by the United States involving the wealthy Spanish owned sugar producing island of Cuba came during the Cuban war for independence from Spanish rule.  In 1898 the United States engaged in and won the Spanish American War and subsequently granted Cuba it’s independence in 1902 but only after four years of United States occupation.  In return for granting Cuban independence, the United States required the Cuban government to put the Platt Amendment into the Cuban constitution drafted in 1902.  The Platt Amendment allowed the United States to retain the right to intervene in Cuban affairs ostensibly to protect United States interest in Cuba.[27] The United States did take advantage of this and continuously intervened in Cuban affairs for the next several decades both on a governmental and economic level as many U.S. companies had substantial holdings in Cuba.  United States involvement in Cuba greatly diminished during and after the Great Depression in the United States which of course affected the Cuban economy as well.  The depressed conditions allowed a revolutionary revolt against the government of Cuba, and not surprisingly, the Platt Amendment was abolished by the new government.[28]  The “Revolt of the Sergeants” in September of 1933 led by Fulgencio Batista overthrew the liberal government of Gerardo Machado.[29]  Carlos Manuel de Cespedes became provisional President but was soon replaced by Grau San Martin.[30]  Then in January of 1934, Batista forced San Martin to resign and appointed Carlos Mendieta as President of Cuba; Batista went on in effect to rule and control Cuba  from the background for over two decades.[31] 

The next major conflicts between the United States and Cuba came in the late fifties when the Batista government came to an end.  In 1958 the United States under President Eisenhower, imposed an arms embargo on the Batista regime.  On January 1, 1959 Batista left Cuba, and Fidel Castro (who had masterminded a past failed coup against Batista on July 26, 1953) and his revolutionaries including his close friend, “Che” Guevara returned and took over the Cuban government.[32]  Unfortunately for the United States, Fidel Castro proceeded to consolidate power, seize and nationalize properties without compensation including all American holdings, and to ally Cuba with the Soviet Union.  In response to these actions the United States broke off diplomatic relations with Cuba and imposed an embargo against Cuba which is still in effect today.[33]  In addition, the United States via the Central Intelligence Agency (C.I.A.) began secretly training Cuban exiles for an invasion of Cuba commonly known as the “Bay of Pigs” invasion which occurred in 1961 under the Kennedy administration.  Unfortunately this operation was a tragic and total failure due in part to the fact that the Cuban government had advance notice of it and also because of a lack of military support from the United States due to the “secret” nature of the operation.[34]

The following year in 1962, there was another major conflict or incident between the United States and Cuba during the Cuban Missile Crisis of October, 1962.  The Cuban Missile Crisis occurred when Cuba allowed the Soviet Union to base missiles on it’s territory and the United States responded by blocking Soviet ships from bringing more missiles.  The standoff ended when the Soviets agreed to negotiations with the United States which ended up with the United States agreeing not to invade Cuba.  Fidel Castro has remained in power in Cuba until today; at the time of this writing he was very ill at the age of 80 and had provisionally transferred power to his brother, Raul, as of July 31, 2006.[35] 



By the end of the 1980’s there were over a million Cuban refugees that had sought freedom in the United States.[36]  A majority of these had arrived in the early to mid 1960’s at a time when they were welcomed into the United States; it was in this environment that the Cuban Adjustment Act was signed into law on November 2, 1966.[37]  One justification for this action was that according to United States asylum law, which is patterned after international law, refugees are allowed relief from persecution based on race, religion, national origin, social group, or political opinion.  This is the same definition of refugee adopted by the United Nation’s 1951 Convention Relating to the Status of Refugees which the United States became a party to in 1968.[38]   However, the usual United States Asylum process is a very cumbersome one which can take years for an applicant to navigate through the court system. 

 The Cuban Adjustment Act gave an expedited process whereby Cuban refugees could circumvent the Asylum process.  So the Cuban Adjustment Act was passed for several reasons including giving the Cuban refugees in the United States a pathway to citizenship, expediting the administrative process, facilitating the entry of the Cuban refugees into the United States workforce, assimilating them into U.S. society, and providing for national security.[39]      

One important policy that has influenced immigration law is what is commonly known as the Wet Foot/ dry Foot Policy, the background of which is discussed in this section.  In 1965, Fidel Castro announced in a speech on September 28 of that year that any Cuban national having relatives in the United States were free to be picked up by sea vessel from Cuba’s shores without penalty or consequence.[40]  This caused the influx of Cubans to the United States to grow out of control and resulted in negotiations between Cuba and the U.S. allowing “Freedom Flights” which brought around 340,000 Cuban immigrants to the United States via air flights.[41]  The Cuban Adjustment Act passed in 1966 allowed the United States to handle this influx of Cuban immigrants which steadily continued until 1973 when Castro terminated all flights from Cuba to the United States due to his concern with a mass professional exodus from Cuba.[42]  In 1980, however, Castro once again allowed 125,000 Cuban nationals (many released prisoners) to leave for the United States; this event was known as the Mariel boatlift.[43]  The Carter administration allowed the “Mariel” refugees to come into the United States.  However, when in 1994, Castro attempted to again allow any Cuban national to leave Cuba, the Clinton administration responded by enacting a new policy commonly known as the Wet-Foot/Dry-Foot Policy.[44]  This policy which is still in effect today allows for the interception and repatriation of Cubans immigrants at sea.  However, those who actually reach United States soil are allowed to stay and apply for immigrant status.[45]  It should be noted that although more restrictive than the former policy, the new policy is still very advantageous to Cubans as they are permitted under the CAA to stay if they reach U.S. soil whereas Haitians in contrast are not and are instead detained and in the vast majority of cases returned to Haiti.


A. Nicaraguan Adjustment and Central American Relief Act (NACARA) Enacted 1997

     On November 19, 1997, President Clinton signed into law the Nicaraguan Adjustment and Central American Relief Act (NACARA).[46]  NACARA was designed to provide various forms of immigration benefits and relief from deportation to certain Nicaraguans, Cubans, Salvadorans, Guatemalans, nationals of former Soviet bloc countries and their dependents.[47]  The Victims of Trafficking and Violence Protection Act of 2000, signed into law on October 28, 2000, added two more categories of individuals eligible to apply for relief from removal under NACARA.[48] 

Section 202 of NACARA established procedures for certain nationals of Nicaragua and Cuba who have been residing in the United States to become lawful permanent residents of the United States; it also waived many of the usual requirements for this benefit.  With limited exceptions under the Legal Immigration Family Act of 2000, the opportunity to apply for relief under NACARA was only available until March 31, 2000.[49]   

Section 203 of NACARA (“NACARA 203”) applied to certain Guatemalans, Salvadorans and nationals of former Soviet bloc communist countries who entered the United States by specified dates and applied for asylum or registered for benefits under a settlement agreement reached in American Baptist Churches v. Thornburgh (“The ABC Settlement Case”).[50]  In that case, the plaintiffs, consisting of many Salvadoran and Guatemalan citizens in the United States, filed an action against the Immigration and Nationalization Service (INS), the Department of Justice, and the Department of State bringing “systemic challenges” to the processing of asylum claims under the Refugee Act of 1980.[51]  The plaintiffs asserted that they had been categorically discriminated against and should have been afforded an opportunity for de novo asylum applications.  The District Court affirmed the settlement reached by the parties which provided for a full and complete resolution of the issues raised, in part by making certain class members eligible for de novo asylum adjudication.[52]  After October 2000, NACARA 203 also applied to class member’s qualified family members and to certain individuals who have been battered or subjected to extreme cruelty by a lawful permanent resident, United States citizen, or by certain NACARA 203 beneficiaries.[53]  NACARA 203 also allowed qualified individuals to apply for suspension of removal or cancellation of removal under standards similar to those in effect before the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.[54] 

NACARA provided many benefits for several different groups but it is still unfairly limited because of the groups that are conspicuously absent from the Act including Haitians, Dominicans, and others that do not share the communist legacy of some of their NACARA counterparts.[55]  The District Court in the ABC Settlement Case stated that “under the new asylum regulations as well as the old: foreign policy and border enforcement considerations are not relevant to the determination of whether an applicant for asylum has a well-founded fear of persecution; the fact that an individual is from a country whose government the United States supports or with which it has favorable relations is not relevant to the determination of whether an applicant has a well-founded fear of persecution;…”[56]  The outcome in the ABC Settlement Case was based in part on the fact that asylum approval rates for countries who were U.S. political “allies” at the time (despite human rights records which were perceived to be at least equally bad as other communist and/or politically “unfriendly” countries) were dramatically lower than “unfriendly” countries.[57]  For example, for the time period between June 1983 to September 1988, El Salvador, Guatemala, and Haiti had approval rates of 2.7%, 2.1%, and 2.0%, respectively compared with approval rates during the same time period ranging from 30.0% to 61.7% for applicants from Iran, Syria, and eight communist countries.[58]  This disparate treatment of Haitians who were completely left out of NACARA and other groups who were only marginally helped by the Act led to legislative attempts to remedy this unfair situation.    

B. Haitian Refugee Immigration Fairness Act of 1998

     The Haitian Refugee Immigration Fairness Act (HRIFA) was signed into law on October 21, 1998.[59]  This act was largely in response to a number of Haitian children either unaccompanied or orphaned who were in the United States or being detained at the U.S. naval base in Guantanamo Bay, Cuba.[60]  To implement HRIFA, the USCIS established procedures for certain Haitian nationals who had been residing in the U.S. since 1995 to become lawful permanent residents of this country.[61]  The regulations allowed certain Haitians to apply for lawful permanent resident status without having to first apply for an immigrant visa at a U.S. consulate office abroad and waived many of the usual requirements for immigration.[62]  Principal applicants initially had until March 31, 2000 to apply after which date only dependents were able to apply for LPR status under HRIFA.[63] 

To be eligible for benefits under HRIFA, the applicant had to be a national of Haiti who was present in the United States on December 31, 1995; be physically present in the U.S. for a continuous period beginning not later than December 31, 1995 and ending not earlier than the date the application for adjustment is filed; properly file an application before April 1, 2000; be admissible to the U.S. under all provisions of the Immigration and Nationality Act; and fall within one of five classes of persons described in section 902(b)(1) of HRIFA.  These classes were Haitian nationals who filed for asylum before December 31, 1995; Haitians paroled into the U.S. prior to December 31, 1995; and Haitian national children who arrived in the U.S. either without parents, abandoned, or orphaned.[64]  The enactment of the LIFE Act Amendments on December 21, 2000, removed certain barriers to adjustment under HRIFA but all motions to reopen had to be filed on or before June 19, 2001.[65]    

HRIFA, along with the LIFE Act amendments which removed some of the barriers to adjustment under HRIFA, did allow for around 40,000 Haitians to apply for relief under the Act.  Although this legislation silenced some critics of the United States’ tepid policy towards Haiti, dissatisfaction with the stop-gap provisions and “bootstrap” legislation continued to grow, leading to the attempted introduction of new and more comprehensive legislation.[66]               

C. The Central American and Haitian Adjustment Act of 1999

      In 1999, The Clinton administration endorsed the Central American and Haitian Adjustment Act which was designed to amend NACARA to allow certain Guatemalans, Salvadorans, Hondurans, and Haitians continuously in the United States since December 1, 1995 to become legal immigrants.[67]  The new bill was designed to provide supplemental relief to Central Americans and Haitians, many of whom arrived in the 1980s and were denied asylum or did not apply because the INS was rejecting most applications from persons whose governments the United States supported during coups, insurrections, and civil wars.[68]  Unfortunately this bill was only introduced and never actually enacted into law.[69]

D. The Haitian Immigrant Equitable Adjustment Act of 2002

On November 11, 2002, Congresswoman Carrie P. Meek (D. Fla.) referred a bill to the House Committee on the Judiciary titled “The Haitian Immigrant Equitable Adjustment Act, A Law Designed to Provide the Same Immigration Adjustment rights for Haitians as Provided for Cubans.”[70]  This proposal, which never became law, was a response to the November 2002 expedited removal rule, a continuance of what many perceive as unequal treatment between Cuban and Haitian refugees.  As Congresswoman Meeks explained, “Since the Cuban Adjustment Act became law, the Attorney General has used his discretion to allow over 600,000 Cubans to become lawful permanent residents of the United States making it possible for them to eventually become U.S. citizens.  During that period, over 400,000 Haitians have to come to the United States, but over half were returned to Haiti”.[71]      

E.   The HRIFA Improvement Act of 2005

The HRIFA Improvement Act of 2005 (H.R. 3658) was introduced by Congressman Kendrick B. Meek on September 6, 2005 and referred to the Subcommittee on Immigration, Border Security, and Claims on September 19, 2005.[72]  This amendment, as an amendment to H.R. 4437, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, would have closed loopholes in existing immigration law that inadvertently barred some Haitians from attaining permanent residency status in the United States under the original HRIFA.[73]  The legislation would have closed one gap in the current law which excludes many children whose parents applied for HRIFA benefits for them while they were minors, but who have since “aged out” (turned 21) because of long delays in the processing of claims.  The Act also would have provided a waiver to Haitians who were found inadmissible due to document fraud because they arrived in the U.S. by air using false passports after the Haitian government refused to issue new ones.  Lastly, the bill would have stopped the U.S. government from deporting any Haitian with a pending HRIFA application, and require the government to reopen and reconsider previous applications for adjustment of status under HRIFA affected by provisions in the proposed legislation.[74]   This bill however never came before the House for a vote as it failed in the Rules committee by a vote of 8 to 5.[75]    


    A.  Under U. S. Immigration/Asylum Law

          The only real path that Haitians have is to apply for asylum under United States immigration law which is a very cumbersome and subjective process.  Under U.S. Asylum law, an individual who is persecuted based on one of the protected categories of Race, Religion, Nationality, Membership in a Particular Social Group, or Political Opinion may apply as a Refugee if overseas or as an Asylum applicant if already in the United States.[76]  Thus Haitians must prove to the DOJ and/or USCIS that they qualify for asylum because they have been persecuted for their political beliefs.  Based on the political history and continuing political instability in Haiti, many Haitians theoretically fit into the Political persecution category.  However, proving this on an individual basis is quite a bit more complicated and difficult. 

               It is important to note that an individual applying for Asylum has only one year from the date of their entry into the United States to actually file for Asylum or the more narrow remedy of “non-refoulement” or “withholding of removal” under the Immigration and Nationality Act, INA sec. 208.  Asylum allows the person to remain in the United States usually on a permanent basis while “withholding of removal” only prevents forcible return to the country of persecution.[77]  When filing an Asylum application, the applicant must include supporting documentation that gives evidence of their persecution such as political party identification cards, affidavits from family and friends familiar with their situation, police reports of incidents of persecution, medical reports of injuries sustained and related to their alleged persecution, news reports corroborating their story, birth and death certificates, etc. 

            An Asylum claim is a very difficult claim to prove (in particularly when one has fled their country by boat with little knowledge or time with which to gather documentation) and in fact the success rate of Asylum applicants is low.[78]  In fiscal year 2003, only 13.1 percent of asylum applications filed with the USCIS were successful; unsuccessful cases included those that were denied, withdrawn, abandoned, otherwise closed or referred to an Immigration Judge.[79]   An actual Asylum Individual hearing is very subjective with the Immigration Judge allowed to assess the applicant’s credibility or lack thereof.  The success rate of asylum applicant cases referred to an Immigration Judge varies quite widely.  For example, in San Francisco one Judge denied asylum in 87 percent of the 430 cases he heard over a five year period between fiscal year 2000 to fiscal year 2005 while another Judge denied asylum in only 24 percent of the 662 cases that she heard over the same time period. [80]  According to a study, funded in part by the Ford Foundation, of 297,240 cases heard from fiscal year 1994 to the beginning of fiscal year 2005, the average Immigration Judge denied 65 percent of asylum cases before them. [81]       

It is undisputed that Haitians have experienced even more disparate treatment under the current asylum system even compared to asylum seekers from other countries not to mention compared to Cubans who may adjust under the far easier CAA.  Federal courts have long acknowledged that Haitians have been set aside and, in some instances, discriminated against by facially subjective regulations and arbitrary decisions.[82]  In Haitian Refugee Center v. Civiletti,[83] Haitian plaintiffs challenged a government agenda known as the Haitian Program, where immigration officials attempted to dispose of a backlog of Haitian asylum applications during the summer and spring of 1978.  The District Court for the Southern District of Florida acknowledged that there was a program at work within the INS to expel Haitians, part of a seventeen-year pattern of systematically denying Haitian asylum claims.[84]  Under the Haitian Program, “[Haitian] asylum claims were prejudged, their rights to a hearing given second priority to the need for accelerated processing…The District Director did not grant a single request for asylum between September 1978 and May 1979…[The] denials were not on a case-by-case adjudication, but an intentional class-wide, summary denial”[85]  Moreover, the court held that deportation, “while not a criminal penalty, can realistically deprive an individual of all that makes life worth living…and while it need not conform to all of the punctilious requirements of a criminal trial, it must conform to our society’s standards of fundamental fairness.”[86]           

            Although the 1980 decision in Civiletti recognized that the government had perpetuated perhaps “the most dramatic example of [a] pattern [of discrimination against an immigrant group]”, the government continued its disparate treatment of Haitians and again court challenges were necessary.[87]   For example, in May of 1981, the INS began to systematically detain Haitians entering the United States which was a fundamental change from the established policy of detaining only those persons deemed likely to abscond or pose a threat to national security.[88]  In Louis v. Meissner,[89] less than a year after Civiletti, the Haitian Refugee Center brought a class action suit to enjoin the detention and deportation of ninety Haitian asylum seekers which had resulted from mass exclusion hearings occurring behind “locked doors”.[90]  The District Court for the Southern District of Florida granted the injunction holding that “having made a long and perilous journey on the seas to Southern Florida, these refugees, seeking the promised land, have instead been subjected to a human shell game in which the arbitrary [I.N.S.] has sought to scatter them to locations that…are mostly desolate, remote, hostile, culturally diverse areas, containing a paucity of available legal support and few, if any, Creole interpreters.”[91]  In a related case, Jean v. Nelson,[92] the Eleventh Circuit court held that although the executive branch possesses the authority under the I.N.A. to discriminate on the basis of national origin, contrary policies had been adopted and low-level immigration official were bound by these policies.[93]  On appeal, the U.S. Supreme Court partly affirmed the Eleventh Circuit court’s decision but held that no constitutional question should have been reached because current statutes and regulations, as well as executive branch policy statements, required the I.N.S. to employ nondiscriminatory consideration in determining alien parole issues.[94]     

            The disparate treatment in terms of both unfair and discriminatory adjudication of asylum applications as well as detention of Haitian asylum seekers has continued into the present day.  From the 1960s to the present, hundreds of thousands of Cuban refugees have been allowed into the United States and permitted to adjust automatically to permanent resident status after one year under the Cuban Adjustment Act.[95]  In contrast, Haitian refugees have been required to pass a “credible fear” screening before being granted asylum into the United States.[96]  Unable to meet this stringent requirement, two-thirds of them have been forced to return to Haiti.[97]  Despite the bloody outcome of the aborted election in Haiti in 1987, not a single Haitian was granted asylum that year by the INS.[98]  Between June 1983 and March 1991, only 1.8 percent of Haitian applicants were granted asylum by the INS which was the lowest approval rate among nationalities submitting the highest number of applications.[99]  Those fleeing Communist regimes fared much better as the approval ratings during that same period for China and the former Soviet Union were 69% and 74.5%, respectively while the approval rate for all applicants was 23.5%.[100]  Even when the approval rates for Haitians increased after reform of the asylum system in the early 1990s and the 1991 coup d’etat that ousted President Aristide, they remained far below the approval rates for other nationalities.[101]  According to the Justice Department, of the over 4,000 Haitians who asked for political asylum in 2001, only 357 were paroled into the U.S.[102]  The most recent report to Congress confirmed that Haiti continues to have one of the lowest approval rates with only 18% of the 4,942 received cases granted asylum in 2004.[103]                 

B. Under Executive Policy: Interdiction

          In 1981 the United States entered into an agreement with the Republic of Haiti authorizing the U.S. Coast Guard to intercept vessels engaged in the illegal transportation of undocumented aliens.[104] This agreement was implemented by Executive Order No.12324 and also established that the United States government would not return any passengers who qualified for refugee status.[105]  This policy of “high seas interdiction” was first challenged in Haitian Refugee Centers v. Gracey[106](“Gracey I”) which asserted that the policy violated the Haitian’s rights under the Refugee Act of 1980 and the Immigration and Nationality Act.[107]  The District court in “Gracey I” concluded that: Because the interdiction program herein occurs outside the jurisdiction of the United States, neither the statutes nor the treaty upon which plaintiffs rely can provide any relief.[108]  On appeal, the district court’s decision to grant the defendant’s motion to dismiss was affirmed.  Judge Edwards, dissenting in part and concurring in part, concluded that: “This case presents a painfully common situation in which desperate people, convinced that they can no loner remain in their homeland, take desperate measures to escape.  Although the humanitarian crisis is compelling, there is no solution to be found in a judicial remedy”.[109] 

A similar result was reached a few years later in Haitian Refugee Centers v. Baker[110] in which the Haitian plaintiffs sued to stop the government from repatriating Haitians that were in their custody.[111]  In Baker, the district court granted preliminary injunctions in favor of the plaintiffs but on appeal, the Eleventh Circuit dissolved the injunction issued by the district court and remanded with instructions to dismiss the case.[112]  Judge Hatchett in his dissent stated that “Under existing law, any refugee may reach the shores of the United States and thereby acquire the right to enforce United States immigration laws in U.S. courts, except Haitian refugees. Only Haitian refugees are intercepted in international waters and repatriated to their country of origin.”[113]  The Haitian Refugee Center appealed to the Supreme Court but the Court denied the writ for certiorari on February 29, 1992. [114]  However, the following year, the Supreme Court did grant certiorari in a similar case, Sale v. Haitian Centers Council.[115]

              The plaintiffs in Sale included organizations that represented interdicted Haitians as well as Haitians who were then being detained at Guantanamo Bay.[116]  The background in this case involved the fluctuations in Haitian immigration and the corresponding U. S. political responses.  The number of Haitians fleeing the country dropped off dramatically after the democratic election of Jean Bertrand Aristide in December of 1990 and then soared immediately after his ouster in September of 1991.[117]  On May 23, 1992, then President Bush issued executive order No.12807 which revoked executive order No.12324.[118]  Pursuant to executive order No.12807, the President directed the Coast Guard to intercept vessels illegally transporting passengers from Haiti to the United States and to return those passengers to Haiti without first determining whether they may qualify as refugees.[119]  The issue in Sale was whether this forced repatriation of Haitians, authorized to be undertaken only beyond the territorial sea of the United States, violated § 243(h) of the Immigration and Nationality Act of 1952 (INA).[120]  The Supreme Court found that there was no judicial remedy for the Haitians because neither § 243(h)[121] [now § 241(b)(3)] of the INA nor Article 33[122] of the United Nations Protocol Relating to the Status of Refugees applies to actions taken by the U.S. Coast Guard on the high seas.[123]  Shortly after the Supreme Court decision in Sale, the Executive Committee of the United Nations High Commissioner for Refugees (UNHCR) issued a statement disagreeing with the decision.[124]  In May 1994, then President Clinton ended the automatic repatriation policy challenged in Sale.[125]  Then after September 19, 1994 when an international force led by the United States reinstated President Aristide, boat traffic from Haiti virtually stopped.[126]  These fluctuations in emigration between 1990, 1991, and 1994 without corresponding changes in the poverty levels vindicated the long held view of refugee advocates that large numbers of Haitians had been leaving out of a genuine fear of political persecution rather than for purely economic reasons.[127] 

            Haitians have also been disparately affected by the policies such as the expedited removal rule.[128]  On October 29, 2002, nearly all of 235 Haitian asylum seekers who reached U.S. soil in South Florida were subject to the expedited removal rule which allowed for the expedited removal of “certain” aliens.[129]  The expedited removal rule originally implemented in 1996 was primarily a border procedure for arriving noncitizens.  However in 2002, with Haitian boat people in mind, the Attorney General extended the expedited removal rule to a new group of noncitizens- those who had arrived by sea without being admitted or paroled.[130]  Individuals processed under this policy are detained automatically throughout the removal proceedings.[131]  This extension of the expedited removal rule was based in part on a ten page brief filed on behalf of INS; astonishingly, the brief itself acknowledged that many of the government’s arguments were based on “speculation and rumor”.[132]  Of course under the Wet Foot/dry Foot policy (discussed supra at p.13), Cubans are rightfully exempted from the expedited removal rule while Haitians on the other hand are discriminated against by being subject to and disparately affected by the rule.          

            C.      Under Judicial Deference and Rational Basis Scrutiny

            Haitians more than any other group of refugees have been negatively affected by U.S. policy and subjected to interdiction, expedited removal, and detention as well as outright discrimination.  Furthermore, they have no Wet foot/dry foot policy or adjustment legislation of their own as Cubans do to help alleviate some of the unfair and facially discriminatory policies perpetuated by the executive and legislative branches.  Also they have as of yet been afforded no effective relief through the judicial court system.  One reason for this is that, although often very sympathetic to the plight of the plaintiffs in these cases, all of the more recent court decisions have continued to follow the deference to the executive and legislative branches shown by the Supreme Court in Sale and have established that at this time rational basis scrutiny remains the standard in cases involving these types of immigration and/or national security issues. 

            In Mathews v. Diaz,[133] the U.S. Supreme Court decided that Congress had the power to distinguish among aliens by holding that “In short, it is unquestionably reasonable for Congress to make an alien’s eligibility depend on both the character and the duration of his residence. Since neither requirement is wholly irrational, this case essentially involves nothing more than a claim that it would have been more reasonable for Congress to select somewhat different requirements of the same kind.”[134]  Based on the Court’s holding in Mathews, subsequent cases followed the establishment of using rational basis scrutiny when determining the constitutionality of laws concerning aliens.[135]  In Rodriquez v. U.S.[136], the Eleventh Circuit Court of Appeals affirmed summary judgment in favor of the defendant United States because the court held that a newly enacted welfare reform provision limiting benefits to aliens was rationally based on a legitimate government interest in reducing the cost of welfare benefits.[137]  In Moore v. Ashcroft,[138] the Eleventh Circuit Court of Appeals rejected the petitioner’s equal protection argument because a rational basis existed for Congress’ decision to declare only those aggravated felons who have been admitted as lawful permanent residents ineligible for waiver relief under INA § 212(h).[139]  

In Jeanty v. Bulger,[140]Haitian nationals filed a class action petition for a writ of habeas corpus seeking release from Miami detention facilities.  In a decision filed on May 17, 2002, the United States District Court for the Southern District of Florida made clear that courts generally should defer to the Executive prerogative by stating that “There is little question that the Executive has the power to draw distinctions among aliens based on nationality…..Aliens may be excluded on grounds that might be suspect in the context of domestic legislation because there are apparently no limitations on the power of the federal government to determine what classes of aliens will be permitted to enter the United States or what procedures will be used to determine their admissibility.”[141]       



Reasons for the continued disparate treatment of Haitians are several.  United States foreign policy has influenced the interpretation of the definition of “political opinion” in such a way that Haitian “boat people” have found it difficult to avoid interdiction and return to Haiti by the United States Coast Guard. [142]  Thus, in spite of the well documented political oppression in Haiti during the Duvalier regime and military governments that followed, refugees from Haiti, the world’s first black republic, have been singled out for special discriminatory treatment and the fundamental principles of refugee protection abandoned again and again.[143]  Furthermore there have been numerous allegations of United State’s involvement in intentionally and/or inadvertently supporting various dictatorial regimes in Haiti over the past years which resulted in the politically related deaths of many Haitians and in the corresponding refugee crisis/increases.[144]  

Other reasons for this disparate treatment have been postulated such as poverty considerations leading Haitians to be wrongly classified as only economic refugees, language barriers which make Haitians less desirable to potential American employers, and racial discrimination.[145]  In fact several commentators have suggested that racially motivated discrimination has been behind Haitian refugee policy.[146]  It is virtually impossible to deny the existence of racial discrimination which has influenced the treatment of Haitian immigrants and permeated the immigration process that they must struggle against.[147]  It is a fact that we as a country have struggled with the issue of racism from our inception starting with the treatment of the young black republic of Haiti and the maintenance of our own slave system which only ended with a Civil War in the 1860’s and then continuing on a hundred years later into the sometimes bloody and violent civil rights movement of the 1960’s.  It is unfortunate that even today the United States’ struggle with the issue of racism is far from over as problems continue to exist even into the present day; the current immigration debates and issues regarding both Black immigrants as well as Mexican immigrants show that racism is unfortunately still alive and pervasive in our culture.  Yet another example of the existence of racial bias against dark skinned immigrants, and especially against those who are poor and/or uneducated, is the revealing statistic that although Africa has the largest number of refugees, only two percent of the more than one million refugees admitted to the United States since 1980 have come from Africa.[148] 

Of course, the United States should provide the political and financial help to the country of Haiti that will encourage and enable this fragile democracy to succeed with the goal that her people not feel the life threatening pressures to leave for political and other reasons.  However, in the meantime it is strongly argued that for many reasons the United States has both a legal and moral responsibility to the Haitian people and to Haitian asylum seekers specifically.  So the question remains as to what are the most effective ways to change the disparate treatment that Haitians have suffered.  It appears that the judicial process has not offered much relief.  In the most recent case involving noncitizen rights, the United States Court of Appeals for the District of Columbia decided on February 20, 2007 that Guatanamo Bay detainees cannot use the U.S. court system to challenge their indefinite imprisonment.[149]  This case, although pertaining to terrorism suspects, still theoretically could threaten to strip away court access to noncitizens such as refugees and even to millions of lawful permanent residents currently in the U.S.  It remains to be seen whether the U.S. Supreme Court will grant certiorari on this case and whether the outcome might be more favorable to noncitizens than previous cases which have shown unlimited deference to the Executive branch. 

      Therefore, although relief through the courts should certainly be pursued, it seems that at the present time the more efficient and expeditious route would be to try and educate and influence the Legislative and Executive branches to change their policies toward Haitian refugees.  There are essentially two parts to rectifying the current situation as it pertains to the treatment of Haitians.  First of all, there must be comprehensive change in the existing asylum process so as to eliminate the racial bias that has been present under the current system.  This would be best achieved by Congress mandating that internal polices and procedures are written and implemented so as to be nondiscriminatory.  One suggestion has been to use as a model the principles of equal treatment embodied in Title VII of the Civil Rights Act of 1964.[150]  Secondly, we must deal fairly with the numbers of undocumented Haitians who have already fled their country in the past based on political persecution and have settled in the United States albeit in an undocumented status due in part to unfair asylum procedures.  This problem would best be dealt with by passing legislation similar to the CAA, the HRIFA of 1998, or something along the lines of the subsequent proposed legislation discussed in section IV of this paper.  Certainly any comprehensive immigration reforms should address the Haitian situation as proposed by U.S. Rep. Sheila Jackson Lee in her reform proposals.[151]

      From our country’s beginning when we welcomed all immigrants with open arms, the United States has always in theory upheld the internationally accepted principle that we will not return a person to a country where his or her life or freedom would be threatened.  Our country is also committed to upholding the principles of racial equality and the idea that all people are created equal regardless of race, creed, or color.  It is well past time that the United States matches her actions to her words when dealing with our Haitian neighbors. 


[1] See, David McCullough, John Adams (2001), at p. 496.

[2] Id. at 518.

[3] See, Donald R. Hickey, Journal of the Early Republic, Vol. 2, No. 4. (Winter, 1982), p. 362.

[4] Id. at 363.

[5] McCullough at 519.

[6] Id.

[7] Id. 

[8] Id. at pp. 515-16.

[9] Hickey at 376.

[10] Central Intelligence Agency, World Factbook: Haiti, http//www.cia.gov/cia/publications/factbook/print/cu/html (last updated March 8, 2007) at p. 1.

[11] See, Hickey, supra at note 3 at pp. 378-79.

[12] Central Intelligence Agency, supra, note 10 at p.1.

[13] Bureau of Western Hemisphere Affairs, Background Note: Haiti, https://www.state.gov/r/pa/ei/bgn/1982.htm (January 2007).

[14] Public Broadcasting System, Haiti in Turmoil, https://www.pbs.org/newshour/bb/latin_america/haiti/history.html (Compiled by Elizabeth Harper for the Online News Hour and posted March 11, 2004).

[15] Id.

[16] Id.

[17] See, Bureau of Western Hemisphere Affairs, supra, at note 13 at p. 2.

[18] Id.

[19] Id.

[20] Id. at 3.

[21] Id.

[22] Id.

[23] U.S. Department of State Country Report on Human Rights Practices, Haiti, 2006 (released March 6, 2007).

[24] Id.

[25]Gott, Richard, Cuba: A New History, Yale University Press (2000), p.12.

[26] Id at 41-2.

[27] Bureau of Western Hemisphere Affairs, Background Note: Cuba,https://www.state.gov/r/pa/ei/bgn/2886.htm (October 2006).

[28]Gott, supra at 136-8.

[29] Jerry A. Sierra, Batista, available at https://www.history of Cuba.com/history/batiste.htm.

[30] Cespedes, The Columbia Encyclopedia, Sixth Edition (2006 Columbia University Press)

[31] See, Sierra, supra.

[32] Alberto J. Perez, Note and Comment: Wet Foot, Dry Foot, No Foot: The Recurring Controversy Between Cubans, Haitians, and The United States Immigration Policy, 28 Nova L. Rev. 437, at 438. 

[33] Central Intelligence Agency, The World Factbook: Cuba,http//www.cia.gov/cia/publications/factbook/print/cu/html (last updated on February 8, 2007).

[34]Gott, supra, at 190-5.

[35] The World Factbook: Haiti, U.S. Central Intelligence Agency, www.cia.gov/cia/publications/factbook/print/ha.html.

[36]Gott, supra at 214.

[37] Pub. L. No. 89-732, 80 Stat. 1161 (Nov. 2, 1966).

[38]Stephen H. Legomsky,  Immigration and Refugee Law and Policy, (3d ed. 2005) pp. 925-6.

[39] Perez, supra, at 444.

[40] Perez, supra, at 443.

[41] Id.

[42] Id. at 445.

[43]Judy Silverstein, PA3, MSO Tampa, Memories of Mariel: 20 Years Later, https://www/uscg.mil/reservist/mag2000/apr2000/mariel.htm (U.S. Coast Guard Magazine April 2000).

[44] U.S. Gen. Accounting Office, Pub. No. 95-211, Cuba: U.S. Response to the 1994 Cuban Migration Crisis (September 1995), available at https://www/gao.gov/archive/1995/ns95211.pdf (1995).


[45] Nicolas Merlin, Note and Comment: Immigration Policy and the Expedited Removal Rule: “Equality for Some, Justice for None, 16 St. Thomas L. Rev. 163 (Fall 2003) at 166.


[46] The Bureau of Citizenship and Immigration Services, Overview of NACARA, at https://www.uscis.gov/graphics/services/residency/nacara203_main.htm. (hereinafter NACARA)

[47] Id.

[48] Id.

[49] Id.

[50] American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (hereinafter “ABC”) The court in ABC provisionally approved the Stipulated Settlement Agreement on December 19, 1990.  Then on January 31, 1991, in the fairness hearing, the court dismissed the instant action (raising one objection) with prejudice, made an independent determination that the Settlement Agreement was a fair, adequate and reasonable settlement of the action brought and held that the Stipulated Settlement agreement was approved.  This holding was seen as a huge victory for the plaintiffs as the Settlement required
the U.S. government to grant asylum rehearings or new hearings under more lenient standards implying that there had been past government bias against the plaintiffs.  

[51] Id. at 799.

[52] Id.

[53]NACARA, supra at note 33.

[54] Id.

[55] See Merlin supra at note 43 at 170.

[56] See ABC, supra at note 37 at 799.

[57] See Legomsky, supra at note 38 at 1085.

[58] Id at 1084-85.

[59] The Bureau of Citizenship and Immigration Services, Overview of HRIFA, at https://www.uscis.gov/graphics/services/residency/hrifa.htm. (hereinafter HRIFA)

[60] See Merlin, supra at note 45 at 172.

[61] See HRIFA, supra at note 59 at 2.

[62] Id. at 1.

[63] Id.

[64] Id. at 2.

[65] Id.

[66] See Merlin, supra at note 45 at 173.

[67] See Merlin, supra at note 45 at 168.

[68] Id.

[69]GovTrack.us, H.R. 2722(106): Central American and Haitian Adjustment Act of 1999, https://www.govtrack.us/congress/bill.xpd?bill=h106-2722

[70] Haitian Immigrant Equitable Adjustment Act of 2002: Hearing on H.R. 5751 before the House Comm. on the Judiciary, 107thCong. (2002), 148 Cong. Rec. E. 2038 (Nov. 14, 2002) (statement of Congresswoman Carrie P. Meeks) 

[71] Id.

[72] 109th U.S. Congress (2005-2006) H.R. 3658: HRIFA Improvement Act of 2005, available at http:/www.govtrack.us/congress/bill.xpd?bill=h109-3658&page-command=print  

[73] Press Release from Congressman Kendrick Meek, Republican Leadership Blocks Meek Amendment to Aid Haitian Immigrants (December 16, 2005) available at https://kendrickmeek.house.gov/press/2005.12.16.shtml


[74] Id.

[75] Id.

[76]David Weisbrodt & Laura Danielson, Immigration Law and Procedure in a Nutshell, (5th ed. 2005) p.337.  

[77]Legomsky, supra at note 38 at 938.

[78]Walter A. Ewing, Ph.D. and Benjamin Johnson, Asylum Essentials: The U.S. Asylum Program Needs More Resources, Not Restrictions, Immigration Policy Brief, February 2005 (available at https://www.ailf.org/ipc/asylumessentialsprint.asp)

[79] Office of Immigration Statistics, Department of Homeland Security, 2003 Yearbook of Immigration Statistics, September 2004.

[80]Vanessa Hua, Judges deny asylum at widely varying rates, San Francisco Chronicle, Monday, July 31, 2006 (available at https://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/07/31/MNGIVK8BO81.DTL&ty…)

[81] Id.

[82] See Merlin supra at note 45 at 178.

[83] Haitian Refugee Ctr. v. Civiletti, 503 F. Supp. 442 (S.D. Fla. 1980).

[84] See Merlin supra at note 45 at 178.

[85] See, Civiletti, supra at note 83 at 519.

[86] Id. at 455.

[87] Id. at 519.

[88] Cheryl Little, BEYOND BETWEEN COLORS: InterGroup Coalitions and Immigration Politics: The Haitian Experience in Florida, 53 U. Miami L. Rev. 717, (July 1999) at p. 718.

[89] Louis v. Meissner, 530 F. Supp. 924 (S.D. Fla. 1981).

[90]Janice D. Villiers, CLOSED BORDERS, CLOSED PORTS: The Plight of Haitians Seeking political Asylum in the United States, 60 Brooklyn L. Rev. 841 (Fall 1994) at p. 896.

[91] Id. at 897 (citing Louis v. Meissner, 530 F. Supp. 924, 926 (S.D. Fla. 1981).

[92] Jean v. Nelson, 472 U.S. 846 (1985).

[93] Id. at 898 (citing Jean v. Nelson, 727 F.2d 957, 978-79 (11thCir. 1984)(en banc)).

[94] Id. at 899 (citing Jean v. Nelson, 472 U.S. 846, 857 (1985)).

[95] Representative Sheila Jackson Lee, Policy Essay: Why Immigration Reform Requires a Comprehensive Approach that Includes Both Legalization Programs and Provisions to Secure the Borders, 43 Harv. J. on Legis. 267 (Summer, 2006) at p. 282.

[96] Id.

[97] Id.

[98] See Little supra at note 88 at 717.

[99]  Id.

[100] Id.

[101] Id. at 718.

[102] See Merlin supra at note 45 at 177.

[103]Ruth Ellen Wasem, Congressional Research Service (CRS) Report for Congress: U.S. Immigration Policy on Asylum Seekers, Updated January 25, 2007.

[104] See, Sale v. Haitian Centers Council, Inc. et. al., 509 U.S. 155 (1993) at p.160.

[105] Id.

[106] Haitian Refugee Center, Inc. v. Gracey, 600 F. Supp. 1396 (D.C. 1985)(hereinafter “Gracey I”)

[107] Id.

[108] Id. at 1406-7.

[109] See, Haitian Refugee Center, Inc. v. Gracey, 257 U.S. App. D.C. 367; 809 F.2d 794 (D.C. Cir. 1987)(“Gracey II”)

[110] Haitian Refugee Centers v. Baker, 949 F.2d 1109 (11th Cir. 1991)

[111] Id.

[112] Id. at 1111.

[113] Id. at 1110.

[114] Haitian Refugee Centers v. Baker, 502 U.S. 1122 (1992).

[115] Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993).  It is interesting to note that the plaintiffs in Sale received pro bono representation from the Yale Law School’s Lowenstein Human Rights Clinic. See, Stacey Caplow, Book Review: “Deport All The Students”: Lessons Learned in an X-treme Clinic, 13 Clinical L. Rev. 633 (Fall 2006).

[116] Id. at 166.

[117] See, Legomsky supra at note 38 at 1115.

[118]Federal Register: Executive Orders Disposition Tables, available at https://www.archives.gov/federal-register/executive-orders

[119] See, Sale, supra  at note 115 at 158.

[120] Id.

[121] As enacted in 1952, § 243(h) authorized the Attorney General to withhold deportation of aliens “within the United States”.

[122] The text of Article 33 of the United Nations Convention begins: “Article 33.-Prohibition of expulsion or return (‘refoulement’)

[123] Id.

[124] See, Legomsky supra at note 38 at 1134.

[125] Id. at 1131.

[126] Id.

[127] Id.at 1115.

[128] 8 C.F.R. § 235(b)(1) (2003) [hereinafter “expedited removal rule”].

[129] See Merlin supra at note 45 at 176.

[130] See Legomsky supra at note 38 at 834 (citing to 67 Fed. Reg. 68924 (Nov. 13, 2002)).

[131] Id.

[132] See Merlin supra at note 45 at 181.

[133]Mathews v. Diaz, 426 U.S. 67 (1976).

[134] Id. at  82-3.

[135] See Perez supra at note 32 at 459.

[136] Rodriquez v. U.S., 169 F.3d 1342 (11th Cir. 1999).

[137] Id.

[138] Moore v. Ashcroft, 251 F.3d 919 (11th Cir. 2001).

[139] Id.

[140]Jeanty v. Bulgar, 204 F. Supp. 1366 (S.D. Fla. 2002) 

[141] Id. at 1380 (quoting Cuban Am. Bar Ass’n, 43 F.3d 1412, 1427-28 (11th Cir. 1995)).

[142]Chris Nwachukwu Okeke and James A.R. Nafziger, Section IV: Constitutional and Administrative Law: United States Migration law: Essentials for Comparison, 54 Am. J. Comp. L. 531 (Fall, 2006) at p.533. 

[143] See Little supra at note 88 at 717.  

[144] Paul Farmer, The Uses of Haiti (Common Courage Press 1994) at pp. 108; 218-219.

[145] See Merlin supra at note 45 at 175.

[146] See Legomsky supra at note 38 at 1130 (citing to Joyce Hughes & Linda Crane, Haitians: Seeking Refuge in the United States, 7 Georgetown Immigration L.J. 747 (1993); Peter Margulies, Difference and Distrust in Asylum Law: Haitian and Holocaust Refugee Narratives, 6 St. Thomas L. Rev. 135 (1993)).

[147]As a Caucasian, Protestant female working as a law student extern, the author witnessed firsthand the discrimination and disparate treatment suffered by Haitians attempting to navigate the immigration system.

[148] See, Villiers, supra at note 90 at 906.

[149] Boumediene v. Bush, No. 05-5062 (D.C. Cir. 2007).  On April 2, 2007, the United States Supreme Court denied certiorari in this case: 549 U.S. ___ (2007).  However, the plaintiffs may appeal again depending on what actions the District Court takes.

[150] See Villiers supra at note 90 at 916-17.

[151] See Lee supra at note 95 at 282.

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