Expedited Removal Article_NM

IMMIGRATION POLICY AND THE EXPEDITED REMOVAL..., 16 St. Thomas L. Rev....

16 St. Thomas L. Rev. 163

Saint Thomas Law ReviewFall 2003

Notes & Comments

IMMIGRATION POLICY AND THE EXPEDITED REMOVAL RULE: “EQUALITY FOR SOME, JUSTICE FOR NONE”

Nicholas Merlina1

Copyright (c) 2003 St. Thomas Law Review; Nicholas Merlin

INTRODUCTION

In 1949[,] a delegation of Native Americans went to Washington to tell lawmakers about the plight of America’s original occupants. After meeting with [then] Vice President Alben Barkley, the delegation got up to leave. But one old Sioux chief stayed a moment longer to deliver a parting word to the vice president. “Young fellow,” he said, “let me give you a little advice. Be careful with your immigration laws. We were careless with ours.”1

In the aftermath of September 11th, the world questioned how nineteen terrorists could have lived for so long in the United States without being detected. The media, once a champion for immigration woes, denounced immigration policy as a toothless farce,2 swaying to the pressure of activist groups. Naturally, America heightened its state of alert and tightened its fists, closing its borders until it could implement a system for weeding out “undesirable” aliens and monitoring potential threats to homeland security. Due to those restrictive measures, however, many asylum-seeking groups, which found it difficult to gain access to the United States before the terrorist attacks are now facing even greater challenges to enter the country. *164 This article is an analysis of United States immigration policy for one of those marginalized groups, the Haitians, by examining current and proposed legislation affecting asylum-seekers from the poorest country in the Western Hemisphere. 3

Part I of this article will provide an overview of United States refugee and asylum law in the years since the Cuban Revolution, examining the intent of the Cuban Adjustment Act (“CAA”) of 1966-- an act for which there have been relatively narrow exceptions and qualifications, and the effects of its successors on modern adjustment legislation. Part II will discuss Haitian adjustment and its brethren, illustrating shifts in immigration policy during the past ten years as the United States responded to international crises and changing political conditions. Part III will highlight some of the debates regarding treatment between different asylum seeking groups, and will describe the evolution of various restrictive immigration regulations for “other groups”4 through such legislation as the Haitian Refugee Immigration Fairness Act of 1998, the Central American and Haitian Adjustment Act of 1999, and the proposed Haitian Immigrant Equitable Adjustment Act of 2002. Part IV will provide a synthesis of those acts, including an analysis of the legal and political response of American courts and administrative agencies to such policies as the Immigration and Naturalization Service’s Haitian Program of 1978 and the Expedited Removal Rule of 2002. Part V will evaluate and compare the restrictions in place for both the Cubans and the Haitians. Finally, Parts VI and VII will provide a retrospectus5 of where immigration law has been and a prospectus for where it is going, including recommendations and considerations for new immigration policy.

I. THE LEGAL FRAMEWORK OF U.S. REFUGEE AND ASYLUM LAW

In 1959, Fidel Castro’s revolution swept through the island nation of Cuba, establishing one of the world’s longest-running dictatorships and heralding the beginning of what has become the most enduring legal and political movement to assimilate Cuban refugees into the United States.6*165 Between 1959 and 1965, as Castro allowed Cubans to flee, and as increasing

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numbers of exiles arrived in the United States, the new arrivals needed to obtain a more permanent legal status than the designation that the government had been according them up until that time.7 In order to enhance the resettlement of refugees, Congress passed the Cuban Adjustment Act of 1966, providing for employment and education, opportunities not generally accorded other refugee groups. The Cuban Adjustment Act states in part:

The status of any alien who is a native or a citizen of Cuba and who has been inspected and admitted or paroled into the U.S. subsequent to January 1, 1959, and has been physically present in the United States for at least a year, may be adjusted by the Attorney General, in his [or her] discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence, if the alien is eligible to receive an immigrant visa and admissible to the U.S. for permanent residence.8

During its thirty-seven year history, the Cuban Adjustment Act has been challenged on numerous grounds, most of them relating to unequal treatment of arrivals from nations other than Cuba. Opponents have stressed that the Act is too indefinite and a relic of the Cold War.9 In 1980 and in 1996, two important developments arose which modified the scope of the Act. The 1980 Refugee Act, for example, reduced the physical presence requirement from two years to one year in the United States prior to eligibility for permanent residency.10 The subsequent Illegal Immigration Reform and Immigrant Responsibility Act (“IIRAIRA”), however, refined the Immigration and Naturalization Service (“INS”) definition of parole and inspection such that Cubans who arrived at a place other than a designated port of entry would not be paroled into the United States for residency and eventual citizenship status.11

Under the limitations imposed by the IIRAIRA, many Cubans felt as *166 though there was a de facto repeal of their special status.12 During the latter part of 1996, however, the IIRAIRA was modified so that even if a Cuban national arrived at a place other than a designated port of entry, he may still qualify for adjustment if the INS decides to parole the alien into the United States. President Clinton issued an executive order, which qualified the Cuban Adjustment Act with what was colloquially known as the “Wet Foot, Dry Foot” Rule.13 Those Cubans whose feet touched American soil or who entered a designated port of entry would be paroled into the United States for adjustment status, while those who did not would be detained and returned to their port of origin.14 Haitians and members of many similarly situated refugee groups who were not subject to the limited benefits of the Wet Foot policy saw the provision as yet another attempt to assert the political dominance of the exile community in Miami.15

In the past few years, American popular culture has captured the dissatisfaction and desperation of asylum seekers in both media16 and music,17 illustrating the differences in treatment between new arrivals and expressing the Haitian community’s desire to attain equal status with their Cuban counterparts.18 Carl Hiaasen, a columnist for The Miami Herald, summed the argument best in his article entitled, “What If Asylum Seekers Were Norwegian?” Hiaasen states, “U.S. immigration policy has . . . a new rule: the black foot-white foot formula, which has become superimposed on the wet foot, dry foot ploy: ‘If they’re black send ‘em back. Cubans white/they’re alright.’”19 As such, the legal realities of implementing immigration policy have posed a scenario wrought with inconsistency and illogic. 20 “It is far easier to devise regulations in the abstract than in fleshand-blood *167 reality.”21 This is not a case of equal protection between two similarly situated groups of Americans. 22

Rather, it is a question of which alien exile and refugee group has stronger political clout.23

II. HAITIAN ADJUSTMENT LEGISLATION AND ITS BRETHREN

Congress has created acts that are similar to the Cuban Adjustment Act as international crises have arisen. In 1997, for example, when Nicaragua was embroiled in international turmoil, President Clinton signed and approved the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), which was designed to provide for the integration and assimilation of Nicaraguans and Cubans as lawful permanent residents. 24 Similarly, in 1998, when the Haitian government was on the verge of collapse, the president endorsed the Haitian Refugee Immigration Fairness Act, (“HRIFA”). 25 On the other hand, although NACARA and HRIFA provided protective relief for some foreign nationals, each piece of legislation was limited not only to a specific timeframe, but was also aimed at clusters of several different countries and unrelated ethnic refugee groups in an attempt to deal with international emergencies. In contrast, the life of the Cuban Adjustment Act was extended through the Adjustment Act of 1996 and through additional 1998 legislation. 26 Under the revised language of the act, the CAA will continue to provide for adjustment of Cubans until democracy is established on the island, which is indefinite and uncertain. The U.S. government does not know when or how Castro will die, nor does it profess to have any definite knowledge of who will replace him, other than possibly his brother, Raul Castro, or for how long:



Castro has made it clear that he intends to retain control and avoid significant economic reforms, insist[ing] that in the long run it will be capitalism, not Cuba that collapses. The ingredients exist for a peaceful transition to a multi-party democracy and a market economy, *168 but Fidel is not about to cook with those ingredients. He has his own recipe.27

Congress, in effect, has become a quasi-omniscient body charged with the daunting task of predicting how, when, or if democracy will emerge on an island ninety miles off our shore. Given that Congress is not all knowing, treatment between asylum seekers appears equitable on the surface, but the realities speak to a different truth.

III. THE HISTORY OF MODERN ADJUSTMENT LEGISLATION: DEBATE AND DISCUSSION

Under the Cuban Adjustment Act of 1966, the Attorney General may, in his discretion, adjust the status of a Cuban citizen admitted or paroled to that of an alien lawfully admitted for permanent residence, if the alien is eligible to receive an immigrant visa and admissible to the United States for permanent residence. The policy has three basic aims: first, to provide humanitarian and practical relief for those Cubans that might otherwise be forced to gain admittance to the United States through a costly circuitous route;28 second, to provide a mechanism through which Cuban refugees would find it easier to gain lawful employment;29 and third, to act as a mechanism for refugees to escape political persecution in Cuba, a repressive Communist country.30 In light of the restrictive measures implemented by President Clinton in the mid-1990s, limiting the location of the Act’s applicability to specified ports of entry 31 and setting a built-in, *169 but arguably indeterminate, shelf life,32 the question remains not so much whether Cuban asylum seekers should continue to receive the benefits they are entitled to under current adjustment legislation, but whether the United States can justify denying similarly situated groups the same status and/or benefits. In other words, why is one group of asylum seekers more deserving of citizenship than another? The following sections will explain various policy developments in immigration law and their evolution through the present.

A. The Nicaraguan Adjustment and Central American Relief Act

On November 19, 1997, President Clinton signed into law the Nicaraguan Adjustment and Central American Relief Act. 33

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. 34 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.35

A significant portion of NACARA is Section 203 (“NACARA § 203”), which applies to certain Guatemalans, Salvadorans and nationals of former Soviet bloc 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. Thornbough.36 In that case, a district court reviewed a class action settlement by Guatemalan and Salvadoran nationals against the INS, the Department of Justice, and the Department of State, bringing “systemic challenges” to asylum processing claims under the Refugee Act of 1980.37 Plaintiffs asserted that they had been categorically discriminated against and should have been afforded an opportunity for de novo asylum adjudications.38 The district court affirmed the request, holding that the Guatemalans and Salvadorans would be granted an unappealable adjudication, which provided a dispute resolution *170 mechanism.39

NACARA § 203 took effect after October 2000 and consists of a narrow group of asylum seekers including “qualified family members” and individuals who “have been battered or subjected to extreme cruelty by a lawful permanent resident, United States citizen, or by ‘certain’ NACARA 203 beneficiaries.”40 Section 203 of NACARA allows qualified individuals to apply for suspension of deportation or for cancellation of removal under standards similar to those in effect before the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. In addition, an individual is granted relief at the same time that he or she is given permanent residence status. Despite its benefits for some groups, NACARA § 203 is regrettably limited to an isolated segment of asylum seekers, neglecting Haitians, Dominicans, and those that fail to share the communist legacy of their NACARA counterparts. More than a quarter of a century ago, Congress discarded favoritism by national origin when it ratified the United Nations Protocol Relating to the Status of Refugees, a protocol which “denied a state the right to expel a refugee if his life or freedom would



be threatened on account of his political opinion, race, religion, nationality, or membership in a particular social group.” 41

Under the Refugee Act of 1980, the United States extended equal treatment between asylum seekers, not only to individuals fearing persecution from communist [or post-communist] systems but from any regime.42 As Congress recognized at the time, United States policy “was originally designed to deal with people fleeing communist regimes in Eastern Europe or repressive governments in the Middle East” and thus did not take into account arrivals from other countries.43 Given that recognition, it is disappointing that enactments such as the Refugee Act of 1980 have had the effect of being a symbolic nothing, a response to a moral problem44 with conflicting support from subsequent legislation. Although it is a far cry to characterize NACARA as a discriminatory legislation, NACARA and its successors are important for *171 what they do not say: namely, that the United States government’s policy towards “other” immigrant groups is strangely silent, “[amplifying] a pattern which, for the past [several] years[,] has . . . [ignored Haitians and treated them] unlike any other refugees . . . in spite of the fact that [it has] welcomed and supported more than a half million refugees from elsewhere in [as many] years.”45

B. The Central American and Haitian Adjustment Act of 1999

In 1999, the Clinton administration endorsed the Central American and Haitian Adjustment Act of 1999, H.R. 2722, which was designed to amend the Nicaraguan Adjustment and Central American Relief Act of 1997 to permit an estimated 550,000 unauthorized Guatemalans, Salvadorans, Hondurans and Haitians continuously in the United States since December 1, 1995 to become legal immigrants.46 Under the original terms of NACARA, only Cubans and Nicaraguans were offered an easy path to legal immigrant status. 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. Prior to the enactment, many Haitians and Central Americans unlawfully remained in the United States, and federal courts faced numerous challenges to what critics called an arbitrary foreign policy.47 Under the new legislation, however, the United States was faced with an act that offered different levels of benefits depending on ingrained perceptions of host governments, policies that had not changed in forty years. Thus, while citizenship status continued to accrue for groups such as the Cubans, for Haitians and Guatemalans (the supposed beneficiaries of the act), obstacles remained, and adjustment was made that much more difficult.

C. Haitian Refugee Immigration Fairness Act of 1998

On September 28, 1997, a joint committee of Congress considering an appropriations bill (S. 2312) voted to retain a Senate provision that granted adjustment of status for certain Haitians who have lived in the United States since 1995. On October 7, the House of Representatives stripped *172 this provision from the bill before passing it. This action was taken as part of a last-minute effort to pass the bill and avoid a government shutdown, by eliminating any controversial provisions. Shortly thereafter, Florida Congresswoman Carrie Meek introduced H.R. 3033, entitled the Haitian Refugee Immigration Fairness Act, which was designed to permitthe attorney general to adjust the status of approximately 40,000 Haitian nationals to that of lawful permanent resident. Persons covered by the provision included Haitians who were held at the U.S. naval base in Guantánamo Bay, Cuba and found to have a credible fear of persecution, those with long-standing asylum applications, and a specific group of Haitian children.48

Further, it allowed Haitians who were in the country at the end of 1995 and who were paroled into the country, to file for asylum, or who were orphaned to receive green cards. The Haitian Refugee Immigration Fairness Act was signed into law on October 21, 1998.49 To implement this act, the INS established procedures for “certain” nationals of Haiti who were residing in the United States to become lawful permanent residents of this country.50 Under the act, a limited number of Haitians were allowed to apply for lawful permanent residence status without first having to apply for an immigrant visa at a United States consular office abroad. The act also waived many of the usual requirements for immigration, such as extended processing, filing, paperwork, and deadlines. 51 After March 31, 2000, only dependents were able to apply for lawful permanent residence under the HRIFA, unless the alien is eligible to file a motion to reopen their removal proceedings as a result of the Legal Immigration Family Equity Act (“LIFE”) (amendments to section 902 of HRIFA; amended on December 21, 2000).52



The enactment of the LIFE Amendments removed some, but obviously not all, barriers to adjustment under HRIFA. In order to take advantage of the amendments, for example, Haitian nationals had to seek relief “on or before June 19, 2001,” less than half a year from the date of the amendments and affording only a narrow window within which to reopen case files or reexamine proceedings for adjustment status. As such, *173 although the qualified rules of the LIFE Amendments silenced some critics of the United States’ tepid policy towards Haiti, dissatisfaction of the country’s stop-gap provisions and bootstrap legislation continued to grow, culminating with a challenge to protectionist legislation through the Haitian Immigrant Equitable Adjustment Act, the next topic in this section.

D. The Haitian Immigrant Equitable Adjustment Act of 2002

I have long sought to insure fairness for Haitians . . . and I will continue to do everything I can to end the unfair, unequal and discriminatory treatment they suffer at the hands of this administration.53

On November 11, 2002, Congresswoman Carrie P. Meek (D. Fla.), referred a bill to the House Committee on the Judiciary, which never became law. Its title was simple: “The Haitian Immigrant Equitable Adjustment Act, A Law Designed to Provide the Same Immigration Adjustment Rights for Haitians as is Provided for Cubans.” 54 Meek’s proposal, of course, was nothing more than a symbolic act, a forgotten statement made before the close of the legislative session; it had no co-sponsors or amendments, no debate and no support from the Senate. Its message, however, had far reaching implications, voicing the plight of the nearly quarter of a million Haitian refugees who sought to remain in the United States. 55 For Haitian asylum-seekers, this was neither the first time such a law was proposed on their behalf, nor was it the first to be rejected.56

Meeks’ proposal, known as H.R. 5751, was designed to amend the Cuban Adjustment Act of 1966 to include Haitians. 57 “Mr. Speaker,” she stated, “[m]y bill . . . will provide the exact same legal rights to Haitian immigrants that Cuban immigrants have enjoyed for almost 40 years. Under my bill, the legal rights of Cuban immigrants would continue unchanged. But Haitian immigrants would finally have the same rights as *174 Cubans under the law.”58 Thus, while the current scheme allows Cubans who have been inspected and admitted or paroled into the United States to be adjusted as an alien lawfully admitted for permanent residence, Haitians would have the same privilege. Because the cut-off date for the CAA is indefinite and ambiguous, Meek’s proposal would apply identical considerations to Haitian arrivals.59

H.R. 5751 was a direct response to November 2002’s expedited removal rule, a challenge to what many in Florida and around the country perceived as unequal treatment between two groups of hard-pressed refugees. Since the passage of the Cuban Adjustment Act in 1966, the Attorney General has used his discretion to allow more that 600,000 Cubans to become lawful permanent residents of the United States, and during the same period has rejected over 400,000 similarly situated Haitian asylum seekers, even given limited exceptions under specialized adjustment legislation and relief acts.60

From 1981 until 1989, over 94% of refugees were admitted from Communist countries, with the total reaching 99.9% when Iran and Iraq were taken into account.61 More than a decade later, the number of Haitians who have been interdicted at sea by the Coast Guard and returned to their country or who have made it to the United States and have been subjected to removal proceedings continues at a disproportionate rate. On the other hand, based upon Meeks’ scheme, Haitians would no longer be treated any differently than other groups. “The Bush administration’s policy of indefinitely imprisoning Haitians who demonstrate a credible fear of persecution is, by any standard, unfair and discriminatory. Both groups face persecution, and [no one group should be denied the benefit of] adjustment based on the color of their skin.” 62 Under that rationale, the key to effective lawmaking would be to ensure that the law applies equally to all people. As such, “considerations based on race, geography and ideology [would] play no part in U.S. asylum and refugee policies . . . . [and a much needed] end to discriminatory [legislation would finally be] due.”63

*175 IV. COMPARING CONDITIONS: THE LONG BOAT RIDE HOME AND THE RETURN TO HAITI

God’s Country was in reach, and then it was all snatched away from me. I would have preferred being shot on the spot than return to the mud of Haiti.64

Like their Cuban counterparts, Haitians are attempting to escape bleak conditions at home. 65 Unlike Cubans, however,



Haitians, are subject to several important distinctions: first, they are not Cuban, and as United States policy has clearly stated, “Cuba is different,”66 an argument stemming from the time when America’s Communist neighbor snubbed its nose at one of the world’s largest democracies.67 Such a relationship has not historically existed between the United States and Haiti. “In Haiti, [economic and political] conditions have worsened if that is possible, and even though the Cold War has ended, it has meant little interest [on the part of the United States] in developing countries and fledgling democracies.” 68 This point is related to the second issue, which is that Haiti, a country of eight million people, is a place of extreme poverty, a place where three fourths of the people live in squalor, earning less than two dollars a day.69 Given that poverty, the legal requirement in favor of Haitian exclusion has been used to term Haitians as “consumer” refugees, 70 even though Cubans and other undocumented aliens seek entrance into the United States for those very reasons. 71 “Emigration from Haiti tends to fluctuate according to conditions . . . which range from grim to horrendous. Like many Cuban refugees, most departing Haitians are motivated by . . . hardship [that may or may not] be linked to the prevailing politics.” 72 Third, even recognizing that there are socio-economic and political considerations, additional *176 factors are involved in the disparate treatment of Haitian refugees.73 According to a comprehensive article by researcher Janice Villiers, “the treatment accorded Cubans differs from that of Haitians for many reasons, not the least of which is that, although many Cubans are of African descent, they are ‘Hispanic’ rather than African.”74 Further, “the application of interdiction policies to Cuban asylum seekers should not be viewed as evidence of race neutrality. Rather it demonstrates that in a unique and specific situation, the geographical and political facets of refugee law assumed prominence.”75 Fourth, the language barrier poses a serious threat to Haitians who seek entrance because communication skills are so poor.76 For Haitians, “an overwhelming number are illiterate and unskilled, making assimilation difficult and productivity questionable,” 77 and hence undesirable for employers. For Cubans, on the other hand, the road has been less bumpy. One of the purposes of the Cuban Adjustment Act is to provide a mechanism for finding gainful employment.78 This is easier to do when, according to the 2000 Census, two thirds of the nation’s 1.2 million Cubans live in Florida, a group that at the very least shares a common language with the refugees.79

V. DISPARATE TREATMENT OF HAITIAN ASYLUM SEEKERS

a. Unequal Treatment Under the Law - The Department of Justice and the Immigration and Naturalization Service

On October 29, 2002, 235 Haitian asylum seekers fought a losing battle to reach American soil.80 Nearly all of the people who waded ashore were subject to a provision in the Code of Federal Regulations81 instituted by the Justice Department and enforced by the Immigration and Naturalization Service,82 calling for the expedited removal of “certain” aliens. 83 The regulation, which was enacted on November 13, 2002, is *177 designed “to place . . . aliens who arrive in the United States by sea, boat, or other means, who are not admitted or paroled, and who have not been physically present in the United States continuously for the two-year period prior to the determination of inadmissibility under this Notice” 84 in expedited removal hearings. Not too subtly, however, the regulation clarifies the meaning of “certain” aliens, stating that the provision was enacted “in direct response to the recent arrival of hundreds of Haitian refugees off of the coast of South Florida.”85

According to the Justice Department, of the over 4,00086 Haitians who asked for political asylum in 2001, only 357 were paroled into the United States.87 Less than two years later, under the November 2002 removal rule, the number of Haitian parolees is subject to even further limitations and restrictions. Haitian arrivals must now demonstrate a “credible fear” 88 that they will be harmed and a “well-founded fear of persecution”89 upon return to their country in order to qualify in a hearing before a judge.90 Such a hearing, however, does not guarantee that the alien will be granted asylum or will ever get a chance to consult a lawyer.91 Paradoxically, under the removal rule, expedited proceedings are not initiated against Cuban citizens who arrive by sea because it is the longstanding policy of the United States to treat Cubans differently from other aliens. 92 In contrast, the provision states that maintaining detention for the Haitians will protect the rights of the individuals affected and safeguard the well-being of the United States from the dangers of terrorism,93 (Haiti, of course, being a threat to national security).

B. Judicial Views on Immigration and Discrimination

The judicial history of the disparate treatment of Haitian asylum *178 seekers has long been unsatisfactory,94 and the courts have regrettably upheld only a few challenges to discriminatory immigration laws, usually where the violation was grave or blatantly obvious.95 As early as 1978, federal courts have acknowledged that Haitians have been set aside and, in some



instances, discriminated against by facially subjective regulations and arbitrary decisions. 96 In Haitian Refugee Center v. Civilletti,97 for example, Haitian plaintiffs challenged a government agenda known as the Haitian Program, wherein immigration officials attempted disposed of a backlog of Haitian asylum applications during the spring and summer of 1978.98

The District Court for the Southern District of Florida acknowledged that there was a program at work within the INS to expel Haitians,99 part of a seventeen-year pattern of systematically denying Haitian asylum claims. 100 Under the 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 a case-by-case adjudication, but an intentional class-wide, summary denial.” 101 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,”102 which in this case had been denied to the plaintiffs. Although the decision in Civiletti recognized that the government had perpetuated perhaps “the most dramatic example of [a] pattern [of discrimination against an immigrant group],”103 the government continued its disparate treatment of Haitians, and the federal courts were once again called upon to afford appropriate relief.104 In Louis v. Meissner, for example, less than a year after Civiletti, the Haitian Refugee Center brought *179 a class action suit to enjoin the deportation of ninety Haitian asylum seekers, the result of mass exclusion hearings and “closed-door deprivation procedures.” 105 The District Court for the Southern District of Florida granted the injunction, holding that “having sought the promised land, the [Haitian asylum seekers were] subject to a ‘human shell game in which . . . the [INS] sought to scatter them to locations that . . . are mostly desolate, remote . . . culturally diverse areas, containing a [lack] of available legal support and few, if any, Creole interpreters.”106 However, less than a year later, in Jean v. Nelson, a six-week trial commenced to determine whether the INS could detain Haitians without first publishing the policy in the Federal Register for comment by the public and whether the INS could target its policy specifically at Haitians.107 The district court held that the INS violated the Administrative Procedure Act (“APA”),108 under which “immigration officials are responsible for conducting hearings on a case-by-case basis in accordance with the rules promulgated under the Immigration and Nationality Act.”109 In its rationale, the court stated that although the Chief Administrative Hearing Officer was vested with discretionary power to make “interpretive rules,” the INS enacted general provisions that were overly broad and failed to act within the letter of the law. “It is clear no one knew exactly what the policy was, and no one in authority attempted to supervise the exercise of discretion under the new policy. Not surprisingly, the discretion was exercised with harsh results.”110 On appeal, the Eleventh Circuit held that excludable aliens enjoyed the protection of the First and Fifth Amendments111 and that based on the lower court’s findings, the evidence of the asylum seeker’s mistreatment demonstrated a “stark, historic pattern of discrimination.” 112 “This was the first decision in U.S. history to find explicitly that the federal government had engaged in unlawful discrimination on the basis of race or national-origin in a non-employment context.”113 The United States Supreme Court affirmed the Eleventh Circuit’s decision, but held that it should not have reached a constitutional question because administrative policy required non-discriminatory consideration by the INS of asylum *180 applications.114

While Civiletti, Meissner, and their progeny demonstrate discriminatory decisions on the part of the INS against a specific class of asylum seekers, later cases have been more symbolic in nature--judicial “touch ups” used to clarify or limit legislation that broadly applies to illegal aliens and asylum seekers. In Gato-Herrera v. I.N.S., 115 for instance, although an illegal alien had been admitted into the United States and had been subjected to immigration parole, he was not automatically allowed to enter the United States because he was required to apply for adjustment under the Immigration and Nationality Act of 1996. The court held that immigration parole does not constitute entry into United States, but instead, “an alien is considered for the purposes of Immigration and Naturalization Act to be waiting at the border for admission.”116

Similarly, in Gonzalez v. McNary, the non-Cuban spouse and child of a Cuban refugee sought permanent residency status under the Cuban Adjustment Act.117 The court held that both bona fide marriage and residence with a Cuban alien were necessary for a non-Cuban spouse and child to be eligible for permanent residency under the same conditions as a Cuban refugee.118 The court held that under those requirements, the INS properly denied the alien’s petition for permanent residency because although a non-Cuban spouse and minor child had been related to a Cuban refugee, the non-petitioning spouse died before the INS decision was rendered, and therefore the family did not qualify for residency adjustment.119

VI. DECISIONS OF ADMINISTRATIVE AGENCIES: POLITICS AND PERCEIVED DANGERS TO THE HOMELAND



Unremarkably, the holdings in Gato-Herrera and McNary demonstrate what the reader already knows--exceptions do happen; undocumented immigrants are not always adjusted into the United States, and Cubans (or those related to them) are sometimes turned away at the border if they fail to meet certain specified criteria.120 For Haitians, though, there has been no “echo of . . . outrage [for] the [U.S.] Supreme Court [to *181 vindicate]”121 and no new challenges to what the Southern District of Florida characterized in Civiletti as “impermissible discrimination based on national origin.” 122 Given that silence, both on the part of the judiciary and by those threatened with deportation, two questions present themselves: first, whether the text of the November 2002 rule123 is a political pacifier like the INS’s discriminatory Haitian Program, a routine piece of legislation aimed at disposing of Haitian undesirables--asylum seekers--through accelerated removal proceedings; second, whether the 2002 removal rule in 8 C.F.R. Part 235, has in fact had that effect, acting as the modern equivalent of the 1978 program.

A. Expedited Removal

According to an article written by Alfonso Chardy, a staff writer for The Miami Herald, the 2002 expedited removal rule is based on a ten page brief filed on behalf of the INS in Immigration Court in Miami. 124 Lawyers for the INS argued two points: first, speedy hearings are necessary because terrorists could use Haiti as a staging point to reach American soil, gaining undetected access to the country’s seaports and other sensitive areas. Under that rationale, Haitian detention is imperative and “presents significant implications for national security;”125 thus, asylum seekers should be disposed of as quickly and quietly as possible. Second, expedited removal is vital in preventing migration to the United States on unprecedented levels. However, as the brief itself acknowledges, many of the government’s arguments are based on speculation and rumor. For example, counsel for INS relied upon an unsubstantiated report from the State Department that a smuggler may have been able to evade the Coast Guard. The INS admitted that “while . . . [it had] no reason to believe that . . . [the argument relating to mass migration was] true, it led to a wave of boats from . . . [Haiti]: 853 Haitians were intercepted during November and December 2001, in addition to the [single] boat . . . that [might have] *182 avoided detection until it reached the coast of Florida.”126

B. Analysis

Unlike the Haitian Program of 1978, the removal rule written into 8 C.F.R., Part 235 was enacted to protect homeland security and to prevent mass migration to the United States. 127 This is surprising given that up until the time of that provision, Haitians turned away from America’s shores disproportionately to any other arriving group, so to place even further restrictions seems strangely out of place.128 In support of its policies, U.S. immigration authorities have suggested that undocumented migrants may have a tenuous connection to national security, but as experts have noted, the INS’s opinion is based on “bald assertions. [Nearly anything] . . . can [be] tie[d] . . . to the issue of national security, [and] it[is] clear that Haitians have not [and do not] pose[] . . . any threat,” especially coming from a country that has been as marginalized as Haiti.129 “Haiti is [simply] not an Islamic country and would not have a favorable environment for such terrorists. Terrorists would be better off hiding in Cuba and jumping on a boat to get to the U.S.”130

Concededly, the current expedited removal program is grounded in a different context than the world of 1978; quite simply, twenty-five years ago, terrorists did not crash airliners into centers of commerce. No one denies that America is currently facing a grave crisis in its history, a time when hidden dangers lurk around every corner and the threat of disaster in the air and on the ground is on everyone’s mind. Similarly, no one denies that in a post-September 11th world, administrative agencies now have the lamentable goal of protecting the American homeland from those dangers.131 On the other hand, as Justice Brennan’s dissent cautioned in Brown v. Glines, “[t]he concept of . . . necessity [during a time of emergency] is seductively broad, and has a dangerous plasticity. Because they invariably have the visage of overriding importance, there is always a temptation to invoke security ‘necessities’ to justify an encroachment *183 upon . . . liberties . . . [and should therefore] be approached with [] healthy skepticism . . . .”132 Thus, while the primary goal of the new rule is to protect America’s shores from the dangers of terrorism, its secondary objective is to “detain and deter potential mass migration,” and to subject Haitians to “expedited removal proceedings,” a goal that seems nearly identical to its predecessor, the Haitian Program.133 Likewise, although the new rule does not specifically state that it is “designed to eliminate a backlog of Haitian applications,”134 the application of broad and unsubstantiated group-specific criteria for Haitians may signal a return to the “accelerated processing”135 of yesteryear, another act with an unspecified cut-off date and an indefinite period of detention for new arrivals.



C. The Future of Haitian Adjustment Legislation

The more things change, the more they remain the same. Ten years ago, Cheryl Little, an advocate for Haitian asylum seekers, wrote a provocative article entitled, “United States Haitian Policy: A History of Discrimination.” In it, she described what was then--current law and foreshadowed what has become the sad state of modern asylum procedures:

[N]ew laws have not afforded . . . Haitians any meaningful relief; rather [,] they have betrayed the very people they were meant to protect. In spite of the . . . [U.S. government’s] attempt to establish objective criteria for determining refugee admissions and depoliticiz[ing] refugee policy . . . . [there is] an appearance of formal legal standards in the refugee admissions process, while diverting attention from the vast number of refugees who are admitted on a [non-formal and non-legal] basis in furtherance of United States political objectives.136

In light of the terror attacks on September 11th, Little’s words ring more true than she could have known; restrictive policies toward Haitian asylum seekers have become even more limited, and there is little to suggest that this trend will change. September 11th, however, does not change the fact that broad power can be unwieldy and may “risk . . . clumsy decisions guided by fear and the instinct of self-preservation.”137*184 Further, to enact prohibitory legislation in the absence of proper safeguards threatens to undermine the basic rights of genuine asylum seekers, reinvigorating the debate regarding the legality of indefinite detention, and “dispersing into areas of prejudice and abuse.”138

VII. CONCLUSION AND RECOMMENDATIONS

An overview of immigration law in the United States reveals a consistent pattern of political neglect and social and ethnic bias that is incompatible with the principles of democratic government both in the courts and in Congress. While broad discretion under the INA and APA, allow federal courts to defer to administrators who are familiar with the regulatory mores and intricacies of immigration law, it also has the effect of going outside the “panoply of [basic] due process rights [that are accorded to asylum seekers]” and denying those who may otherwise be qualified for adjustment into the United States. 139

Similarly, arbitrary regulations such as the one propounded in 8 C.F.R., Part 235, permit policy decisions supported by unsubstantiated reports and rumors and have the effect of retarding a system already ripe with loopholes and exceptions for those who know where to look and who to lobby. Such exceptions are outrageous given the fact that many lawmakers admit that policies such as the CAA are simply relics of the Cold War. Moreover, closed-door deprivation procedures and mass exclusion hark back to the embarrassing days of Civiletti and the Haitian Program, an era that the United States continues to struggle to overcome. Through the Refugee Act of 1980, Congress attempted to address the persecution of asylum seekers by establishing a comprehensive plan based on the individual merits of each case, independent of whether such persecution stemmed from a communist regime. Under that rationale, Congress recognized that the “United States [has a role] in alleviating the plight of victims of persecution . . . [but such legislation] is only a first step towards achieving a system of refugee admission that is free from ideological bias.”140 Likewise, under the NACARA/IIRAIRA/HRIFA trilogy, protective relief was provided for some asylum seekers, although the laws were only temporary stop gaps, limited to time and geography and did little to level the playing field between Cubans and other similarly situated groups. *185 While Congress’ enactment of the CAA was commendable, its application may be out of place, especially given the demise of Communism over a decade ago. Quite simply, even if we assume that Cubans are “different,” are those differences enough to justify denying similarly situated groups the same status? Recognizing that newly created agencies such as the Bureau of Citizenship and Immigration Services are charged with the task of enacting and enforcing immigration priorities, Congress should provide funding to create a rotating council of independent fact finders charged with evaluating briefs submitted to BIA judges. Given the lack of information and reliance on speculation used in support of the current removal procedures, independent fact finders would strictly scrutinize legal briefs and memoranda that are submitted in asylum proceedings and determine whether the “mights” and “maybes” used as a basis for regulations like 8 C.F.R., Part 235 are substantiated and verifiable. Under that rationale, homeland security should



not be used as a bludgeon to deny those who might otherwise be entitled to the health and protection of the United States, and administrative agencies that process asylum applications should be subjected to strict scrutiny if their decisions are based on racial criteria. For the boatload of Haitians who waded ashore in October 2002, a theoretical discourse on the merits of U.S. policy is years too late, an abstract concept of a land far, far away. What ever happened to the days when America welcomed its poor, huddled masses? Alas, this is another day in the life of the underdog. Or as they say in Miami, “Igualdad para algunos, justicia para ningunos.”141 And so it goes . . .

Footnotes

a1 Juris doctorate candidate, St. Thomas University. I dedicate this article to my family for their continuing support in my education and to my law school classmates, the “Spring Ls.” We’ve come a long way.

1 George McKenna & Stanley Feingold, Taking Sides: Clashing Views of Controversial Issues, (11th ed., McGraw-Hill 1999) (discussing immigration policy in the United States from its historical roots to the present as well as some of the debates over strengthening America’s borders and restricting immigration. One commentator contended that America’s open door policy burdens taxpayers with crime and urban decay while giving immigrants the benefits of a free education and other benefits).

2 James Goldsborough, Time to Take Immigration Seriously, SAN DIEGO UNION-TRIBUNE, October 15, 2001, at B7. In a scathing article written shortly after September 11th, Goldsborough wrote that immigration law is a farce, allowing those who overextend their visas to remain in the United States and stay for an indefinite time. Id. Goldsborough argued that in the age of terrorism, a dangerous precedent is set when undocumented asylum seekers are allowed to entered the country, not including the documented aliens who immigration services struggle to find. Id. “People come and go as they like, staying months, years, and lifetimes longer than the law allows.” Id.

3 World Bank Group, Haiti: The Challenges of Poverty Reduction, Vol. 1, No. 17242-HA (Aug. 1998), available at http:// lnweb18.worldbank.org/External/lac/lac.nsf/3af04372e7f23ef6852567d6006b38a3/8479e9126e3537f0852567ea000fa239/ $FILE/Haiti1.doc.

4 Berta Esperanza Hernandez-Truyol, On Becoming the Other: Cubans, Castro, and Elian--A Latcritical Analysis, 78 Denv. U. L. Rev. 687, 688 (2001).

5 The Simpsons: Summer of 4 Ft. 2 (Fox television broadcast, May 19, 1996). Lisa Simpson coined the term “retrospectus” as she discussed her new school yearbook and reminisced about an idealized version of the past. Id.

6 Maria R. Dominguez, Esq., Discussion Papers on Cuba, St. Thomas University Human Rights Institute, (working draft Jan. 2003) [hereinafter Dominguez]. Diplomatic relations between the United States and Cuba were severed in 1961, and commercial transportation from Cuba was suspended in 1962. Since then, small boats and rafts used by refugees escaping from the Island, continue to arrive in South Florida. Cuban rafters are known as “balseros.”

7 Id. United States law stated that a refugee could only upgrade their status to that of a permanent resident by going to a consular office or diplomatic mission abroad to obtain an immigrant visa and then reentering the country as permanent residents.

8 Cuban Adjustment Act, 8 U.S.C. § 1255 (1966).

9 See Dominguez, supra note 6.


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10 Id.

11 Id. The author, however, acknowledges in her article that port of entry is a broad term and can refer to places such as an airport terminal, the border station between the United States and Canada, and even the station in Hidalgo, Texas. Id.

12 Susan Eckstein & Lorena Barberia, Executive Summary, Cuban-American Visits: Public Policy, Private Policies, The Mellon Foundation, 2001, available at http://web.mit.edu/cis/www/migration/pubs/mellon/5_cuba.html [hereinafter Eckstein] (discussing the role of the “changing Cuba” and the impressions of both Americans and their counterparts across the sea, examining the United States’ foreign policy towards its “special neighbor in the Caribbean”).

13 Id.

14 Roland Estevez, Modern Application of the Cuban Adjustment Act of 1966 and Helms Burton, Adding Insult to Injury, 30 Hofstra L. Rev. 1273, 1292 (2002) [hereinafter Estevez].

15 Id. at 1293.

16 CSI: Miami: Wet Foot, Dry Foot (CBS television broadcast, Oct. 7, 2002).

17 Against All Authority, The Wet Foot Policy (Hopeless Records 2000), available at http://www.skabands.com/aaaonline/lyrics_exchange.htm (stating in relevant part: “They braved the open sea to give freedom a taste, Our land of opportunity, their face full of mace. If I touched my foot to soil, I’m free; 8 days now, the beach is in sight, Now you stand between freedom and me; Just leave me to my own device; I know the Wet Foot Policy...”).

18 See Estevez, supra note 14, at 1293.

19 Carl Hiaasen, What If Asylum Seekers Were Norwegian?, Miami Herald, November 3, 2002, at 7L [hereinafter Hiaasen].

20 Saul Landau, Haitian and Cuban Refugees: Wet Foot/Dry Foot; Black Foot/White Foot, Z Net Daily Commentaries, at http:// www.zmag.org/sustainers/content/2000-10/30landau.htm (last visited Nov. 19, 2003).

21 See Hiaasen, supra note 19.

22 Geoffrey R. Stone et al., Constitutional Law (4th ed. 2001).


24 Description of Nicaraguan Adjustment and Central American Relief Act at the Bureau of Citizenship and Immigration Services Website, at http:// www.ins.usdoj.gov/graphics/services/residency/nacara.htm.

25 See the Bureau of Citizenship and Immigration Services Website, at http://www.ins.usdoj.gov/graphics/publicaffairs/questsans/hrifaqa.htm (last visited Nov. 19, 2003).

26 See Cuban Fact Sheet from the Bureau of Citizenship and Immigration Services Website, at http://usinfo.state.gov/regional/ar/us-


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cuba/fact16.htm (last visited Nov. 19, 2003). The additional legislation mentioned above refers to amended language to the Cuban Adjustment Act in 1998.

27 Juan O. Tamayo, Decade Later, Castro Defies Fading of Communism, Miami Herald, November 7, 1999, at 1A.

28 See Estevez, supra note 14, at 1277 (discussing the policy goals for the Cuban Adjustment Act as it was interpreted from legislative history in 1966).

29 Id. at 1278 (ss Castro’s regime established itself in Cuba, many of the first generation Cuban asylum seekers who moved to the United States required a mechanism for gaining employment and assimilating into the American system).

30 Id. at 1279 (stating that the Cuban Adjustment Act was more than a simple piece of legislation for adjustment. According to the author, “adjustment” has such a broad meaning because of the public policy implications that arise. “The CAA was only one part of the equation.” Legislation like the Cuban Adjustment Act and its successors were designed to take into account not only new arrivals but what to do with them once they arrive in the United States).

31 See http://www.ailc.com/services/residency/CAA-1.htm. On September 30, 1996, Congress enacted the IIRAIRA. IIRAIRA made several comprehensive changes to the immigration laws. Id. In particular, IIRAIRA stated that arrival in the United States at a place other than an open port-of-entry is a ground of inadmissibility. Id. However, after serious consideration of IIRAIRA, the Service established that a Cuban national or citizen who arrives at a place other than an open port-of-entry may still be eligible for adjustment of status, if the Service has paroled the alien into the United States. Id.

32 See http://www.ilegalesusa.com/Visa_Catagory/Immigrant_Visa_ Petitions/Others/Cuban_Adjustment_Act/cuban_adjustment_act.html (last visited Nov. 19, 2003).

33 The Bureau of Citizenship and Immigration Services Website, overview of NACARA, at http://www.uscis.gov/graphics/services/residency/nacara203_ main.htm [hereinafter NACARA].

34 Id.

35 Id.

36 American Baptist Churches v. Thornbough, 760 F. Supp. 796, 830 (N.D. Cal. 1991) . The District Court referred to this case as the “The ABC Settlement Case.”

37 Id. at 799.

38 Id.

39 Id.

40 See NACARA, supra note 33.

41 Cheryl Little, United States Haitian Policy: A History of Discrimination, 10 N.Y.L. Sch. J. Hum. Rts. 269, 271 (1993) (Congress modeled the language of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)(A) after the United Nations Protocol. Under




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the language of the Act, a refugee can apply for asylum on the basis of “race, religion, nationality, membership in a particular social group, or political opinion”) [hereinafter Little].

42 Id.

43 Janice D. Villiers, Closed Borders, Closed Ports: The Plight Of Haitians Seeking Political Asylum In The United States, 60 Brook L. Rev. 841, 900 n.233 (1994) [hereinafter Villiers].

44 See id.

45 Id. at 907.

46 See http://www.migrationint.com.au/news/russia/sep_1999-03mn.asp (last visited Nov. 19, 2003).

47 Id.

48 See http://www.refugees.org/world/articles/haiti_rr98_9.htm.

49 The Bureau of Citizenship and Immigration Services Website, overview of HRIFA, at http://www.uscis.gov/graphics/services/residency/hrifa.htm (last visited Nov. 19, 2003) [hereinafter HRIFA].

50 See id.; See also 8 C.F.R. § 245.15 (2002) (discussing the limitations and qualifications of which Haitians would be allowed to enter the United States and the procedures therein).

51 See HRIFA, supra note 49. Applicants wishing to apply for lawful permanent residence under HRIFA initially had a cutoff date until March 31, 2000, to file for adjustment status.

52 Id.

53 Haitian Immigrant Equitable Adjustment Act of 2002: Hearing on H.R. 5751 Before the House Comm. on the Judiciary, 107th Cong. (2002) (statement of Congresswoman Carrie P. Meeks), available at 148 Cong. Rec. E. 2038 [hereinafter Meeks].

54 Id.

55 See id. Since the Cuban Adjustment Act became law, the Attorney General has paroled over 600,000 Cubans into the United States for eventual assimilation as citizens. During the same time, over 400,000 Haitians entered the United States, and over half were returned to Haiti.

56 See Cheryl Little, Beyond/Between Colors: InterGroup Coalitions and Immigration Politics: The Haitian Experience in Florida, 53 U. Miami L. Rev. 717, 717-18 (1999). The first boatload of Haitians claiming persecution in Haiti arrived in the United States in September 1963. Id. “All twenty-three refugees were denied political asylum and deported, signaling the wave of rejections to come.” Id.

57 See Meeks, supra note 53.




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58 Id.

59 Id.

60 Id.

61 See Little, supra note 41, at 324.

62 Id.

63 See Villiers, supra note 43.

64 Online NewsHour with Jim Lehrer: Handling Haitian Refugees (PBS television broadcast, Oct. 30, 2002) (transcript on file with the Public Broadcasting Service), at http://www.pbs.org/newshour/bb/international/july-dec02/haiti_10-30.html.


66 Aliens Subject to Expedited Removal, 67 Fed. Reg. 68924 (Nov. 2002) (codified at C.F.R. pt. 235).

67 See Dominguez, supra note 6.

68 Media Statement from The Most Reverend Sean Patrick O’Malley O.F.M. Cap. Bishop, Archdiocese of Palm Beach, October 31, 2002, Palm Beach Gardens.

69 See World Bank Group, Haiti: The Challenges of Poverty Reduction, Vol. 1, No. 17242-HA (Aug. 1998), available at http:// lnweb18.worldbank.org/External/lac/lac.nsf/3af04372e7f23ef6852567d6006b38a3/8479e9126e3537f0852567ea000fa239/ $FILE/Haiti1.doc (last visited Nov. 19, 2003).


71 Id. at 1284.

72 Hiaasen, supra note 19.

73 See Villiers, supra note 43, at 894.

74 Id. at 902.

75 Id.


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76 Id. at 911-912.

77 Id at 909.


79 John McCarthy, Cubans Still Largest Hispanic Group, Florida Today, May 10, 2001, at http:// www.floridatoday.com/news/census2000/stories/2001/may/census051001a.htm.

80 Editorial/Opt-Ed, WPLG, Channel 10 News, Miami-Fort Lauderdale, November 20, 2002, at http://www.wehaitians.com/ [hereinafter Putney Article].

81 8 C.F.R. § 235 (2003) [hereinafter Expedited Removal Rule].

82 The former Immigration and Naturalization Service will hereafter be referred to as INS.

83 See Expedited Removal Rule, supra note 81.

84 Id.

85 Id.

86 See Putney Article, supra note 80. The actual 2001 figure given by the Justice Department was 4,322 Haitian arrivals.

87 Id.

88 Id.

89 Id.


91 See Putney Article, supra note 80; See also Randal C. Archibold, Aliens Pack I.N.S. Office, Trying to Beat a Deadline, University of Oregon News, January 15, 1998. (discussing the steady stream of immigrants hoping to enter the country and stating that even if some immigrants are rejected, there will always be more to take their place).

92 See Putney Article, supra note 80;


94 See Villiers, supra note 43.



95 Id.

96 Id.

97 Haitian Refugee Ctr. v. Civilletti, 503 F. Supp. 442, 454 (S.D. Fla. 1980) (describing one of the most blatant and embarrassing cases of exclusionary bias by immigration officials in the United States within the last twenty-five years).


99 Id.

100 Id.

101 Civiletti, 503 F. Supp. at 519.

102 Civiletti, 503 F. Supp. at 444-55 (citing Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), quoted in Bridges v. Wixon, 326 U.S. 135, 147 (1945)).

103 Id. at 519.


105 Id.

106 Id.

107 Id. at 894.

108 Administrative Procedure Act, 5 U.S.C. § 551 (2003).

109 Jean v. Nelson, 711 F.2d 1455, 1467 (11th Cir. 1983).

110 Id. at 1474.


112 Id.












113 Id.

114 Id. at 899.

115 Gato-Herrera v. I.N.S., 130 F. Supp. 2d 1213, 1215 (D. Nev. 2001).

116 Id. at 1214.

117 Gonzalez v. McNary, 765 F. Supp. 721 (S.D. Fla. 1991).

118 Id.

119 Id. at 723.

120 See Villiers supra note 43, at 899.

121 Id.

122 Haitian Refugee Ctr. v. Civilletti, 503 F. Supp. 442, 457 (S.D. Fla. 1980).


124 Alfonso Chardy, Security Cited in Halting Haitians, Miami Herald, November 18, 2002, at 1A [hereinafter Chardy].

125 Brief of Counsel for the Immigration and Naturalization Service, Matter of Rochenel Charles, (2002) (A-073-213-249. See also In re D-J, 23 I & N 572, 573 (BIA 2003) (citing to the INS brief and discussing the case of one of the undocumented Haitians who entered on October 29, 2002. The immigration court held, among other things, that “considering national security grounds... denying an unadmitted alien’s request for release on bond does not violate any due process right to an individualized determination in bond proceedings under... the [Immigration and Nationality] Act”).

126 Id. (emphasis added).

127 Executive Summary of 67 FR 68924, ILW.com - Immigration news: Notice Designating Aliens Subject to Expedited Removal, available at http:// www.ilw.com/lawyers/immigdaily/federal_reg/2002,1114-235b1a.shtm (last visited Nov. 19, 2003).

128 Elian Stirs Immigration Debate, CBS News Jan. 15, 2000, at http:// www.cbsnews.com/stories/2000/01/04/nationa/main145762.shtml (last visited Nov. 19, 2003).

129 See Chardy, supra note 124.

130 Id.


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131 Immigration News - INS Transitions into Department of Homeland Security, available at http://www.usvisanews.com/memo2053.html (last visited Nov. 19, 2003).

132 Brown v. Glines, 444 U.S. 348, 369 (1980)


134 Id.

135 Haitian Refugee Ctr. v. Civilletti, 503 F. Supp. 442, 455 (S.D. Fla. 1980).

136 See Little, supra note 41, at 272.

137 Inna Nazarova, Alienating “Human” From “Right:” U.S. and U.K. Non-Compliance With Asylum Obligations Under International Human Rights Law, 25 Fordham Int’l L.J. 1335, 1415 (2002).

138 Id. at 1416.

139 Jean v. Nelson, 711 F.2d 1455, 1467 (11th Cir. 1983).

140 Kathryn M. Bockley, A Historical Overview of Refugee Legislation: The Deception of Foreign Policy in the Land of Promise, 21 N.C.J. Int’l l. & Com. Reg. 253, 292 (1995).

141 “Equality for some, justice for none,” translated at http:// www.babelfish.altavista.com.

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