February 7, 2008

III. Violation of the Right to Equality before the Law: Article 5

Convention Standards and Concerns

Article 5 of ICERD requires states parties to "guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law." Therefore, government policies that apply unequal legal standards to non-citizens based on their national origin violate ICERD, unless such policies relate to "nationality, citizenship or naturalization."[27] In this section, Human Rights Watch outlines how Haitian asylum seekers and refugees are treated differently from Cuban asylum seekers and refugees. As a result, Haitian refugees are at a higher risk of violation of their right to nonrefoulement[28] based on their national origin. This differential treatment of two groups of non-citizens constitutes prohibited discrimination under Articles 5 and 1.3 of ICERD.

ICERD defines "racial discrimination" to include:

[A]ny distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.[29]

The Committee has called upon States to "ensure that immigration policies do not have the effect of discriminating against persons on the basis of race, colour, descent, or national or ethnic origin"[30] and has stated that laws on deportation and removal should "not discriminate in purpose or effect among non-citizens on the basis of race, colour, or ethnic or national origin."[31]

The differential treatment by the United States of Haitian and Cuban asylum seekers and refugees should also be of particular concern to the Committee given its conclusion that "xenophobia against non-nationals, particularly migrants, refugees, and asylum-seekers, constitutes one of the main sources of contemporary racism and that human rights violations against members of such groups occur widely in the context of discriminatory, xenophobic and racist practices."[32]

Illustration: Discriminatory Treatment of Haitian Refugees

US immigration policies, including deportation policies, have the effect of discriminating against persons who are of Haitian national origin. This is made clear by an examination of the differences in how the United States treats persons of Haitian national origin and its treatment of those of Cuban national origin.

The United States discriminates against persons of Haitian national origin in two distinct ways. First, Haitian and Cuban migrants are treated differently on the high seas and in US territorial waters. Second, upon arrival in the US, people seeking asylum or refugee resettlement[33] in the US from Haiti have vastly different legal alternatives and are treated differently under the law than asylum seekers and resettled refugees from Cuba.

This differential treatment has the effect of discriminating against Haitians, which is worthy of condemnation on its face. But when one considers that the result of this discrimination may be a violation of a refugee's right not to be returned to a place where he or she fears persecution-a right the United States is bound to respect because it is a party to the 1967 Refugee Protocol-it is particularly reprehensible.[34]

Inequality before the law on the high seas and in US territorial waters

When the US apprehends Haitian boat migrants on the high seas and in US territorial waters, it subjects them to a screening procedure that explicitly differs from the one that is in effect for nationals of Cuba. Cuban migrants interdicted by the US Coast Guard are subject to special rules that automatically give them the opportunity to express any fears of persecution. They are read a statement that invites them to raise concerns regarding why they should not be returned to Cuba, tells them that they can be processed as refugees through the US resettlement program in Havana, and assures them of an agreement with the Cuban authorities that they will not be prosecuted for their illegal departure. By contrast, all other migrants interdicted on the high seas-most commonly Haitians-are only given a credible fear interview if they spontaneously show or state a fear of return. This is known as the "shout test."[35]

On February 25, 2004, President Bush made a policy announcement specific to Haitians: "I have made it abundantly clear to the Coast Guard that we will turn back any refugee that attempts to reach our shore."[36] In the ensuing days, the Coast Guard interdicted 905 Haitians. Only three of the 905 passed the "shout test," but not a single person was deemed to have a credible fear of persecution, a lower threshold screening test than the "well-founded fear" established by the refugee definition in international and US law. All were returned to Haiti.

 

Only a tiny number of Haitians interdicted on the high seas have ever had asylum claims heard. Upon interdiction US officials provide no information to Haitians taken aboard US Coast Guard cutters about their right to seek protection. Between 1981 and 1990 the Immigration and Naturalization Service allowed only 11 Haitians out of 22,940 interdicted to pursue asylum claims.[37] During that same time period, all Cubans interdicted on the high seas were brought to the United States. Most were able to adjust their status to that of permanent residents under the Cuban Adjustment Act of 1966 (CAA).[38]

 

Today the very few Haitians who pass the "shout test" and then a shipboard "credible fear" interview are taken to the US naval base at Guantánamo Bay, Cuba for a full refugee interview, albeit without the benefit of legal assistance. In 2005 only nine of the 1,850 interdicted Haitians received a credible fear interview and only one person was recognized as a refugee.[39] But even Haitians whom the United States recognizes as refugees at Guantánamo are still not admitted to the US. They are compelled to wait pending the agreement of a third country to admit them, which can take years. Canada has taken some Haitians, and in April 2007 the US and Australia announced a deal to "swap" Haitian refugees for mostly Sri Lankan and Burmese refugees.[40]

Inequality before the law after arrival and in refugee resettlement

After their arrival in the United States, Haitians do not enjoy equality before the law with asylum seekers and refugees from Cuba. The Immigration and Nationality Act (INA), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), includes an expedited removal procedure by which low-level immigration officials are authorized to summarily remove certain arriving aliens from the United States without further hearing or review. 

Expedited removal does not apply to "an alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry."[41] This provision provides preferential treatment for Cubans who arrive by aircraft, since they are the only nationality that fits the definition.

But Cubans who arrive by boat on US shores also have a distinct advantage over their Haitian counterparts. Under the wet foot/dry foot policy, based on the 1966 Cuban Adjustment Act, Cubans who manage to get their feet on US soil are paroled in and after one year of US residence are eligible for adjustment to permanent resident status.

Haitians receive none of these benefits. For example, David Joseph, a Haitian teenager, was one of the 216 persons on a wooden boat that landed at Biscayne Bay, Florida, on October 29, 2002. An immigration judge initially ruled that David should be released to his uncle, a legal resident living in Brooklyn, N.Y., who was willing to post a $2,500 bond. The judge found that David's asylum claim was credible, he posed no threat if released, and that he was unlikely to abscond. The US Board of Immigration Appeals affirmed the judge's ruling to release David and found that the judge correctly applied the rules regarding release on bond to avoid unnecessary, prolonged detention.[42]

Attorney General John Ashcroft soon stepped in and decreed that all Haitian boat arrivals should be jailed. He invoked ''national security'' as his rationale, arguing that a surge of other boat people from Haiti must not ''injure national security by diverting valuable Coast Guard and [Department of Defense] resources from counter-terrorism and homeland security responsibilities.''[43]

There is implicit racism and national origin bias in this reasoning, as the Coast Guard is not regarded as wasting its "valuable resources" by rescuing Cubans on the high seas, yet rescuing Haitians is characterized as a diversion of such resources from more important responsibilities.

At the time David Joseph landed on the shores of Florida, expedited removal was limited to ports of entry, so he was not subject to mandatory detention and was eligible for release from detention with provision of a financial guarantor (or, "on bond"). Since Attorney General Ashcroft's ruling, however, expedited removal has been expanded to include all unauthorized boat arrivals, except Cubans. Federal regulations on this issue state, "the expedited removal authority implemented in this Notice will not be employed against Cuban citizens because removals to Cuba cannot presently be assured and for other US policy reasons."[44] Had David been a Cuban, he most likely would be a US permanent resident today on the path to US citizenship.

Haitians also do not enjoy equality before the law in refugee resettlement programs as compared with their Cuban counterparts. Cubans have multiple legal alternatives, including an in-country refugee processing program, by which some are interviewed at the US interests section in Havana, processed, flown to the United States, and admitted with full refugee benefits. From fiscal year 2005 through the first 11 months of fiscal year 2007, the US admitted 12,149 Cubans as refugees through resettlement.  During that same period of time, the United States has admitted only eight Haitians, all in 2005, into the refugee resettlement program.

In addition to refugee resettlement processing, Cubans are eligible both for the diversity visa program, and for the Special Cuban Migration Program-the "Cuban lottery"-that is open to all Cuban residents between the ages of 18 and 55 regardless of whether they qualify for immigrant visa or refugee programs. Lottery winners are paroled into the United States, and then, under the Cuban Adjustment Act, are able to adjust to permanent resident status a year after arrival.[45]  

Haitians, on the other hand, are not eligible for diversity visas and have no special lottery,[46] and, as mentioned, no in-country processing procedure exists for them in Haiti under the US refugee resettlement program.

Recommendations to the Committee

  • Instruct the United States to reconcile its policies towards Haitian and Cuban asylum seekers and refugees in resettlement programs so that no discriminatory treatment of Haitians occurs, particularly with regard to the essential right to nonrefoulement.

[27] ICERD, Article 1.3.

[28] The international law norm of nonrefoulement protects refugees from being returned to a place where their lives or freedom are under threat. Convention Relating to the Status of Refugees, 189 U.N.T.S. 150, entered into force April 22, 1954, adopted by the United States on December 16, 1966, protocol signed on November 1, 1968, Article 33. The United States became party to the Protocol Relating to the Status of Refugees on November 1, 1968, thereby binding it to uphold the treaty's terms.

[29] ICERD, Article 1.1 (emphasis added).

[30] Committee on the Elimination of Racial Discrimination, General Recommendation 30: Discrimination Against Non-Citizens, CERD/C/64/Misc.11/rev.3, para. 9.

[31] Committee on the Elimination of Racial Discrimination, General Recommendation 30, para. 25.

[32] Committee on the Elimination of Racial Discrimination, General Recommendation 30, preambular para. 2.

[33] The term "asylum seeker" is generally used to describe persons entering the United States (or under the power of the United States after interdiction on the high seas) who seek to lodge a claim for refugee status and who must satisfy US immigration authorities that they are in fact refugees as defined under US law. The term "refugee resettlement" generally refers to programs run by the United States to identify refugees residing outside of the United States, usually in a third country and often in a refugee camp setting, who are selected to settle inside the United States as recognized refugees.

[34] While at any time an individual may possess a well-founded fear of persecution given his or her particular circumstances, it must be noted that at various points in recent history, Haiti has been plagued by widespread human rights violations that made the risk of refoulement particularly acute. See, for example, "Haiti: Hundreds Killed Amid Rampant Impunity," Human Rights Watch news release, April 14, 2005, http://hrw.org/english/docs/2005/04/14/haiti10491_txt.htm; "Haiti: Security Vacuum in the North, Numerous Journalists and Government Officials in Hiding," Human Rights Watch news release, March 22, 2004, http://hrw.org/english/docs/2004/03/22/haiti8149_txt.htm; "Haiti: US Return of Asylum Seekers Is Illegal," Human Rights Watch news release, March 2, 2004, http://hrw.org/english/docs/2004/03/01/haiti7772_txt.htm; "Haiti: Political Violence Condemned," Human Rights Watch news release, December 18, 2001, http://hrw.org/english/docs/2001/12/18/haiti3433_txt.htm.

[35] Migration Policy Institute, "The New 'Boat People': Ensuring Safety and Determining Status," January 2006, http://www.migrationpolicy.org/pubs/Boat_People_Report.pdf (accessed February 1, 2008), p. 12. Chinese migrants interdicted at sea are also specially treated, similarly to Cubans. Chinese migrants are given a written questionnaire asking them why they have left China and given the opportunity to express a fear of return if they have one. All other nationalities interdicted at sea would be subject to the "shout test." However, as a practical matter, Haiti is the only other country whose nationals seeking asylum arrive by sea in significant numbers.

[36] Jerry Seper, "Coast Guard Repatriates Haitians: Turns Over 531 Refugees Taken from 13 Boats in Windward Passage," Washington Times, February 28, 2004.

[37] Ruth Ellen Wasem, Congressional Research Service, CRS Report for Congress, "US Immigration Policy on Haitian Migrants," January 21, 2005, http://www.ndu.edu/library/docs/crs/crs_rs21349_21jan05.pdf (accessed February 1, 2008), p. 3.

[38] Cuban Adjustment Act (CAA), Public Law 89-732 (1966).

[39] "Our Opinion: US Policy Unjust to Haitians Fleeing Violence," Miami Herald, January 9, 2006.

[40] "US/Australia: Refugee Deal Trades in Human Lives," Human Rights Watch news release, April 18, 2007, http://hrw.org/english/docs/2007/04/18/usint15736.htm.

[41] Immigration and Nationality Act (INA) § 235(b)(1)(F), 8 USC §1225.

[42] Board of Immigration Appeals, In re: David Joseph, In Bond Proceedings, March 13, 2003.

[43]In re D-J- 23 I&N Dec. 572 (A.G. 2003).

[44] Federal Register, Doc 04-18469, August 11, 2004, Vol. 69, No. 154, pages 48877-48881.

[45] United States Interests Section, Havana, Cuba, "Immigrant Visas: General Information," undated, http://havana.usinterestsection.gov/immigrant_info.html (accessed February 1, 2008).

[46] Embassy of the United States, Port-au-Prince, Haiti, "Visa Services," undated, http://portauprince.usembassy.gov/visa_services.html (accessed February 1, 2008).