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9048: This Week in Haiti 19:25 9/5/01 (fwd)

"This Week in Haiti" is the English section of HAITI PROGRES
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                           HAITI PROGRES
                "Le journal qui offre une alternative"

                    * THIS WEEK IN HAITI *

                      September 5 - 11, 2001
                            Vol. 19, No. 25


For thousands of Haitian-Americans, the promise of the Haitian Refugee
Immigration Fairness Act (HRIFA) is threatened. HRIFA, which became law on
Oct. 21, 1998, sought to provide Haitians a semblance of equal treatment by
permitting those who had been paroled into the U. S. by INS before 1996, or
who had filed an asylum application with INS before 1996, to apply for legal
permanent residence.

The Haitian-American community and its allies began fighting for a HRIFA
when they learned, in October 1997, of the exclusion of Haitian refugees
the Nicaraguan Adjustment and Central American Relief Act (NACARA), which
became law a month later. NACARA permitted an estimated 100,000 to 150,000
Nicaraguans and 5,000 Cubans to apply for green cards and gave lesser relief
to many other Central Americans.

But eligibility under HRIFA was more restrictive than under NACARA, and some
of its language was inappropriately lifted from NACARA despite the very
different circumstances surrounding the arrival of Haitian and Central
American asylum seekers. As a result, thousands of Haitian refugees who were
paroled into the United States under the dictatorships of 1981-1994 are not
covered by HRIFA, and prejudicial INS requirements are denying its benefits
thousands of others. Moreover, although 37,000 Haitians had applied by the
March 31, 2000 filing deadline, INS processing of their applications has
so slow that thousands of their dependent children may not be eligible to
green cards, as HRIFA intended, by the time INS finally gets around to
approving their parents' applications.

As a result, there are four problems which should be remedied in a HRIFA
it" bill.

First, it is scandalous that "airplane people" are excluded under HRIFA.
1981 to mid-1994, Haitians, unlike Nicaraguans, fled to the U. S. by air
altered documents because the U.S. Coast Guard was interdicting virtually
"boat people" on the high seas and repatriating them back to the same
dictatorships the U.S. was simultaneously boycotting for heinous political
repression. Fleeing by boat could have been suicidal for bona fide
For example, a Haitian soldier who refused orders to shoot unarmed
demonstrators and a union activist shot by the military had little choice
to flee Haiti by air to avoid repatriation to their persecutors.

During this 1981-1994 period of Coast Guard interdiction, a business thrived
providing altered documents. But INS documents confirm - and this is
crucial -
that the vast majority of the airplane refugees who came during this period
arrival at Miami International Airport promptly gave their real names - not
the one on the phony document - to INS officers at primary or secondary
inspection, proving they sought refuge, not to commit fraud. Their exclusion
from HRIFA's benefits is therefore morally indefensible.

Perhaps 7,500 Haitians fled by plane during those years of Coast Guard
interdiction. They have had perhaps 2,500 U. S.-born children - young
Americans who can't be deported, don't speak Creole, and have never been to
Haiti. If their parents are deported, what will happen to them?

These children are the future of their communities. But the deportation of
their parents will destroy their young lives. They should not have to make
what Rick Bragg of the New York Times called the "wrenching choice" between
staying in the U. S. and going to Haiti with their deported parents -
forfeiting their right to an education and life in the land of their birth.

The exclusion of the "airplane people", who have lived in the United States
for so many years, was an unintended result of using inapplicable NACARA
language in the HRIFA bill. The potential family disruption if they are
deported received much attention last year. For example, on Mar. 29, 2000
New York Times ran a front-page article entitled "Haitian Refugees in U. S.
Face a Wrenching Choice." The Miami Herald had several editorials and op-eds
on the matter with titles like "Haitian Parents of U. S. Kids Deserve to
Remain Here Together" (5/4/00) and "Protect 5,000 American Children, Don't
Deport Parents" (5/5/00). Most of the major television networks had
coverage, highlighting their plight.

Secondly, INS is requiring HRIFA applicants, like NACARA applicants, to
their nationality by providing birth certificates. But this makes no sense
under HRIFA because of the difference between the two laws.

NACARA required mere physical presence in the U. S. before the cut-off date,
even if the applicant was underground. Without any pre-existing
it makes sense to require proof such as a birth certificate to prevent, for
example, a non-Nicaraguan from falsely claiming to be Nicaraguan.

But HRIFA requires more than mere physical presence. For 99% of HRIFA
applicants, they must have been paroled into the U. S. by INS before 1996 or
have filed an asylum application with INS before 1996. Thus the eligibility
every such person is based on the existence of an official INS file created
before 1996 -- usually many years earlier -- an INS file which of course
documents the parole or asylum filing as well as subsequent matters. That
file, which is full of internal INS documents describing the applicant as
"Haitian", was created many years before anyone had any conceivable motive
falsely claim to be Haitian.

That years-old INS description of the person as Haitian, without contrary
evidence, should be presumed accurate. In such cases, requiring a birth
certificate is overkill.

And it is extremely prejudicial. INS officials confirm that the agency is
denying ("referring") many HRIFA applications because of "bad" birth
certificates. An INS-created problem, this is unconscionable. The type of
birth certificate which the INS requires is usually very difficult, if not
impossible, to obtain. INS's requirement that it be provided ignores Haitian
reality and encourages the illicit document business which this requirement
may have spawned and in which the applicant has no part. The applicant is
likely unaware that the document is bad.

Accordingly, in the roughly 99% of HRIFA cases in which eligibility is based
on the existence of an INS file created prior to 1996, Haitian nationality
should be presumed, if there is no clear proof to the contrary.

Thirdly, such a pre-1996 INS file goes a long way toward establishing the
"continuous physical presence" in the U.S. which HRIFA also requires. The
file documents not only the initial parole or asylum filing, but also every
subsequent official interaction with the applicant, constituting a paper
beginning many, many years ago of work authorization renewal applications
grants, immigration court hearing notices, court filings, decisions, etc. So
continuous presence should be presumed in those 99% of HRIFA cases in which
eligibility is based on a pre-1996 parole or asylum filing.

Lastly, recent INS information indicates that in the past year and a half
has processed only about 10% of the more than 37,000 HRIFA applications it
received. This is nothing less than a scandal given the "aging out"
consequences to thousands of deserving Haitian-American children.

HRIFA permits the adjustment to legal permanent resident status of the minor
children (under 21) of approved HRIFA applicants. But there have been so
delays that the child has often "aged out" - i.e. become 21 (and therefore n
longer eligible) - by the time the parent's HRIFA application is adjudicated
and approved.

To add insult to injury, the INS District in Miami has apparently adopted a
prejudicial and inappropriate policy. Frequently, one of various items may
missing from an application but obtainable - a signature or affidavit, for
example -- and in the past the interviewee was given time to obtain and
it. But now Miami HRIFA adjudicators are reportedly no longer allowing such
time except in extraordinary circumstances, instead requiring the applicant
provide the needed item on that same day, regardless of practicability, or
referred to immigration court. It appears that adjudicators have been
instructed not to give more time to obtain missing items. If such a new
practice exists, it is wrong and should be immediately reversed. A solution
the backlog would include additional resources and training, not violating
people's rights.

In sum, the problems identified above should be remedied by a HRIFA "fix-it"
bill introduced in the U.S. Congress or otherwise. Such a bill, for Haitian
refugees who have already applied under HRIFA, would:

* Exempt the "altered document" ground of inadmissibility to include those
"airplane refugees" who who fled during the 1981-1994 period of U. S. Coast
Guard interdiction;
* In those cases in which an official pre-1996 INS file already exists
describing the person as "Haitian", remove the unfair requirement that the
applicant produce a difficult-to-obtain birth certificate;
* In those cases, presume the required continuous physical presence on the
basis of the pre-existing 1996 INS file and the years-long paper-trail it
contains; and
* Fix the "aging out" problem for dependent children of approved HRIFA
applicants by mandating their eligibility for residency if the dependent was
under 21 at the time of HRIFA's October 21, 1998 enactment.

If these problems are not fixed, thousands of deserving Haitian refugees who
fled to the United States under the dictatorships, and their children, may
denied HRIFA's benefits, thwarting Congress's will in enacting the law and
discriminating wrongly and tragically against these families, including
thousands of U.S.-born children. These flaws must be remedied in a HRIFA
it" bill, which should be demanded by Haitian-American community
and their supporters.

The author was Supervising Attorney at the Haitian Refugee Center in Miami,
from 1992 to 1995 and is a long-time activist for immigrant rights.

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Please credit Haiti Progres.