Brooklyn Law Review Volume 60 | Issue 3 Article 1 3-1-1994 Closed Borders, Closed Ports: The liP ght of Haitians Seeking Political Asylum in the United States Janice D. Villiers Follow this and additional works at: https://brooklynworks.brooklaw.edu/blr Recommended Citation Janice D. Villiers, Closed Borders, Closed Ports: The Plight of Haitians Seeking Political Asylum in the United States, 60 Brook. L. Rev. 841 (1994). Available at: https://brooklynworks.brooklaw.edu/blr/vol60/iss3/1 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Law Review by an authorized editor of BrooklynWorks. BROOKLYN LAW REVIEW Volume 60 1994 Number 3 ARTICLES CLOSED BORDERS, CLOSED PORTS: THE PLIGHT OF HAITIANS SEEKING POLITICAL ASYLUM IN THE UNITED STATES' Janice D. Villiers* Introduction .................................. 842 I. The Substantive Legal Framework of Refugee and Asylum Law ........................ 856 A. Relief Accorded Refugees Under Domestic Law ............................... 856 B. Relief Accorded Refugees Under Inter- national Law ........................ 871 II. Interdiction as a Deterrent ................. 875 A. The Haitian Migrant Interdiction Program, . 875 1. History of the Haitian Migrant Interdiction Program ............... 876 f Q 1995 Janice D. Villiers. All Rights Reserved. * Assistant Professor, St. John's University School of Law. J.D., Columbia University; M.A., New York University; B.A., Pace University. The author wishes to thank Dave Gregory, Mary Lyndon, Margaret V. Turano and Philip Weinberg for their helpful comments and suggestions. Special thanks to Alison Kelly, Vania Leveille, Patrick MacMurray and Christopher Palmer, who provided valuable research assistance. Finally, I am grateful to the Summer Research Grant Program at St. John's University School of Law for its support. BROOKLYN LAW REVIEW [Vol. 60: 841 2. Effectiveness of the Interdiction Program ........................ 882 B. The Cuban Interdiction Program ......... 884 C. Legal Challenges to the Interdiction Program ............................ 887 1. The Second Circuit's View ........... 887 2. The Supreme Court's View .......... 890 III. Disparate Treatment of Haitian Asylum Seekers 895 A. Courts' Views on Discrimination ......... 895 B. Equal Treatment Under the Law ......... 899 C. Four Strikes Against Haitians-Racial, Class, Language and Cultural Biases ...... 904 IV. Potential Solutions to the Haitian "Crisis"....... 915 A. Equal Treatment Under the Title VII Model 916 B. Systemic Revisions .................... 922 Conclusion ................................... 927 INTRODUCTION The United States espouses fundamental principles of fairness in the treatment of refugees.' These principles reflect a humanitarian ideal which is perceived as being synonymous with the philosophy of the United States of America. This ideal, embodied in the image of the Statue of Liberty, offers liberty and safety to all who are persecuted, without regard to the victim's race, class, language or culture. Recent events have demonstrated, however, that these principles are aban- doned, or at the very least undermined, when Haitians seek refugee status. Although American military forces have occupied Haiti and the Clinton Administration has risked the lives of Ameri- can servicemen and women to assist in the restoration of de- mocracy in Haiti,2 the U.S. policy towards Haitian refugees See Laura J. Dietrich, United States Asylum Policy, in THE NEW ASYLUM SEEKERS: REFUGEE LAW IN THE 1980's 67, 67 (David A. Martin ed., 1988) (stating that "America's openness to refugees-people fleeing from persecution in other parts of the world-is one of this country's cherished traditions, and it has been enshrined in our national law"). 2 The recent occupation of Haiti was a culmination of numerous diplomatic and economic measures to force the departure of the military government led by Lieutenant General Raoul Cedras. Diplomatic initiatives began with the imposition 1994] PLIGHT OF HAITIANS SEEIUNG POLITICAL ASYLUM of a trade embargo by the Bush Administration and the naming of former Argen- tine Foreign Minister Dante Caputo as mediator, in late 1992, to reconcile the differences between Cedras and President Aristide. After much negotiation, but little progress, a worldwide arms and oil embargo was imposed by the United Nations Security Council in June 1993. See generally Doyle MacManus, Countdown to Haiti Compromise, L.A. TIMES, Sept. 25, 1994, at Al; Tom Masland, How Did We Get Here?, NEWSWEEK, Sept. 26, 1994, at 26. Progress seemed imminent when, in October 1993, Cedras traveled to New York and signed the Governor's Island Agreement calling for his departure from power and Aristide's return to Haiti by October 30, 1993. Masland, supra, at 27. The Agreement, reluctantly signed by Aristide due to concerns regarding its en- forcement provisions, also included a general amnesty for individuals accused of human rights abuses. See Steven Greenhouse, Mission to Haiti: The Aristide Camp, N.Y. TIMES, Sept. 20, 1994, at All. Believing that a resolution to the crisis was at hand, the United Nations terminated the sanctions against the military regime. The October deadline came and went, however, and Cedras did not leave. In November 1993, armed Haitian civilians threatened and prevented the docking of 200 troops and engineers aboard the U.S.S. Harlan County. They had come as part of the settlement outlined in the Governor's Island Agreement to assist in the professionalization of the Haitian army and police. See Christopher Marquis, U.S. Pushes for Haiti Peace Force, MIAMI HERALD, May 19, 1994, at IA. This rebuff damaged American credibility and perceptions of the Clinton Administration's resolve and perhaps allowed the Cedras regime to believe that enforcement was unlikely. See Christopher Marquis, U.S. Faces Haiti Fiasco, Fired Envoy Warns, MIAMI HERALD, May 3, 1994, at 10A (quoting Lawrence Pezzullo, former Haitian envoy, as saying "we were made to look like wimps"). As the U.S. efforts to reinstate Aristide faltered, the White House was also criticized for failing to seek worldwide sanctions at the United Nations in January after setting the January 15, 1994, deadline for the Haitian military to step aside. Id. In what could be characterized as the genesis of a new "get tough" policy with Haiti, President Clinton removed Lawrence Pezzullo, special envoy to Haiti, from office on April 22, 1994. His removal was interpreted by one commentator as an attempt by the Administration to "move away from its policy of compromise with Haiti's military rulers, which drew heavy criticism from Haitian democracy activists and members of the Congress.... Pezzullo had spearheaded the admin- istration policy of encouraging a broadening of the Haitian government to include opponents of Aristide's return. Aristide vehemently opposed the power-sharing scheme, suspecting he would be rendered powerless . .. ." Haiti Envoy Ousted as U.S. Prepares to Get Tougher, MIAMI HERALD, May 27, 1994, at 10A. The move was applauded by Aristide and his supporters, who had always distrusted Pezzullo and who had been "angered by [Pezzulo's] insistence that Aristide himself [was] an obstacle to progress." Id. Pezzullo was replaced by former Congressman and Major- ity Whip William Gray, president of the United Negro College Fund. On May 6, 1994, the United Nations voted, under Resolution 917, to impose a total worldwide embargo on Haiti to take effect on May 21st. Clinton Issues Exec- utive Order Implementing U.N. Haiti Embargo, Int'l Trade Rep. (BNA) No. 11, at 752-53 (May 11, 1994). The embargo required all United Nations members to sev- er cargo and "noncommercial airlinks" with the country and to impose travel re- strictions on members of the Haitian military and police as well as their employ- ees. See Christopher Marquis, UN Awaits Response from Haiti Sanctions, MIAMI HERALD, May 22, 1994, at IA. BROOKLYN LAW REVIEW [Vol. 60: 841 Seeming to thumb their noses at the international community, the military junta in Haiti appointed Emile Jonassaint, former Supreme Court Justice of the Haitian Court and a drafter of its Constitution, as President. Jonassaint was placed in power under the authority of an article of the Haitian Constitution which permits Parliament to "select a provisional president when the office is vacated for 'whatever reason.'" Susan Benesch & Christopher Marquis, A New "President"in Haiti: Appointment Illegal, U.S. Says, MIAMI HERALD, May 12, 1994, at 1A, 11A. Pursuing a military solution had few supporters on either the international or domestic fronts. See Christopher Marquis, U.S. Finds Few Nations Back Haiti Intervention, MIAMI HERALD, May 13, 1994, at 1A (stating that France and Canada refused to support or participate in a U.S.-led invasion, while English speaking states of Antigua, Barbuda and St. Lucia supported invasion). Nevertheless, on May 20, 1994, President Clinton explained why invasion might be necessary and articulated six reasons why U.S. intervention in Haiti was warranted: "First, it's in our backyard. Second, we've got a million Haitian Americans [in the United States]. Third, we've got several thousand Americans in Haiti. Fourth, we believe drugs are coming through Haiti to the United States .... Fifth, ... [there is a] continuous possibility of a massive outflow of Haitian migrants to the United States.... Sixth, Haiti and Cuba are the only two non-democracies left in our hemisphere, and unlike Cuba, Haiti at least had an election and voted overwhelm- ingly for democratic government, which has been denied." Christopher Marquis & Robert A. Rankin, Clinton Lists Six Reasons Why U.S. Might Use Force in Haiti, MIAMI HERALD, May 20, 1994, at IA. On July 31, 1994, the United Nations Security Council passed Resolution 940 which authorized a multinational force to use "all means necessary" to restore President Aristide to Haiti and implement the tenets of the Governor's Island Agreement. U.N. Resolution for Invasion of Haiti, N.Y. TIMES, Aug. 1, 1994, at A6. On August 26, 1994, President Clinton gave final approval of the invasion plans, which the military had been drafting for months.