The Politics of Immigration (2nd Edition). David Wilson
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judge who granted asylum most often, your chances of winning asylum were at least four times greater than if your case was heard by the judge in the same court who rejected the most cases.63
The imposition as part of the 1996 IIRIRA of a one-year filing deadline for asylum claims has deprived a number of genuine refugees of a fair hearing on their asylum cases, and has delayed thousands of cases by shifting them into the backlogged immigration court system. An independent academic analysis found that between 1998 and 2009, more than 21,000 refugees would likely have won asylum through an administrative process, without the need for further litigation in the immigration courts, if not for the filing deadline.64
A September 2008 review by the United States Government Accountability Office (GAO) cited nine factors affecting the asylum decisions of immigration judges, including nationality of the applicants, whether the applicants were represented or detained, whether they applied within the one-year time limit, and whether they applied affirmatively or defensively. Other factors included the length of time the asylum decision took, and the gender and length of experience of the immigration judge. After statistically controlling for these factors, the GAO found major disparities among different immigration courts: affirmative applicants in San Francisco were twelve times more likely to be granted asylum than those in Atlanta.65 These findings confirmed what TRAC had reported in 2007. “The unusual persistence of these disparities—no matter how the asylum cases are examined—indicates that the identity of the judge who handles a particular matter often is more important than the underlying facts,” noted TRAC.66
In a separate study, researchers concluded that strong diaspora communities and the presence of refugee support organizations in a particular area increased the local asylum grant rate. Local economic and employment factors also had an impact; for the average immigration judge, high unemployment in the surrounding community decreased the likelihood of granting asylum.67
Since there is no systematic follow-up with asylum seekers who lose their cases and are deported from the United States, there is no way to determine how many legitimate refugees may be rejected. The consequences can be dire. Researchers who have tracked asylum seekers returned by the United Kingdom, Australia, and other nations have exposed cases of imprisonment, torture, murder, and forced disappearance. Returnees may be persecuted for the same reasons they sought refuge. They may face persecution as deportees, or because they are seen as influenced by foreign cultures or governments. They may be subjected to harsh treatment based on their connections to politically active exile groups, or simply because they brought unwanted attention to their country’s human rights record by seeking asylum.68
HAITIANS FACE “FLOATING BERLIN WALL”
The nonprofit Human Rights Watch estimates that some 20,000 to 30,000 civilians were murdered by Haitian authorities during one of the most brutal regimes in the history of the hemisphere: the twenty-nine-year dictatorship of Haitian “presidents for life” François Duvalier (“Papa Doc,” 1957–1971) and his son Jean-Claude Duvalier (“Baby Doc,” 1971–1986).69
Thousands of Haitians began fleeing to the United States by boat in the 1970s. U.S. immigration authorities declared almost all of them “economic migrants” and sent them back to Haiti. Nearly 5,000 Haitians charged the U.S. government with discrimination in a lawsuit, Haitian Refugee Center v. Civiletti. The U.S. District Court for the Southern District of Florida ruled for the Haitians in July 1980. The court’s detailed and scathing decision said the plaintiffs had “proven their claim” that the U.S. immigration agency engaged in “impermissible discrimination on the basis of national origin” when it used a special expedited processing program to reject their asylum claims summarily without review.
A similar program had been created for Cubans, except that it was used to swiftly approve, not reject, their cases. The court suggested “a possible underlying reason why these plaintiffs have been subjected to intentional ‘national origin’ discrimination. The plaintiffs are part of the first substantial flight of black refugees from a repressive regime to this country. All of the plaintiffs are black. In contrast, for example, only a relatively small percent of the Cuban refugees who have fled to this country are black.” The court noted that nearly all the Cubans were granted asylum, while none of the Haitians were accepted. “No greater disparity can be imagined,” the court declared.70
This decision came in the midst of the 1980 Mariel boatlift of migrants from Cuba, which coincided with a dramatic increase in the number of Haitian “boat people.” About 25,000 Haitians arrived by boat to South Florida that year. The administration of U.S. president Jimmy Carter responded by including the Haitians with Cubans in a special category, “Cuban-Haitian entrants,” and releasing them in the United States with parole status. Most of the Haitians who arrived in that period eventually became permanent residents through the 1986 amnesty.71
The administration of Ronald Reagan, inaugurated in January 1981, came up with a new policy. In September 1981 it made an agreement with the Duvalier regime allowing the U.S. Coast Guard to stop Haitians in international waters and summarily return them to Haiti. In exchange, the Haitian authorities gave “assurances” that they wouldn’t prosecute the returnees unless they were charged as smugglers. Migrants captured under this “interdiction program” were not generally offered a chance at asylum. From 1981 through 1990, during the final years of the Duvalier dictatorship and the turbulent interim regime that followed, the U.S. government stopped 22,940 Haitians at sea; only eleven of them were allowed to apply for asylum.72
In 1990 many Haitians put their hopes in the presidential campaign of the popular priest Jean-Bertrand Aristide, who won by a landslide but was deposed by a right-wing coup in late September 1991.73 The number of Haitians fleeing fell dramatically during the 1990 campaign, and rose again just as dramatically in the repression that followed the coup, with 37,618 Haitians intercepted at sea in 1992 alone. Between November 1991 and April 1992, a U.S. military joint task force helped the Coast Guard seize Haitian migrants and take them to the U.S. naval base at Guantánamo Bay, Cuba. (After 2001, that same base became known worldwide as a prison where the U.S. government holds Muslim men alleged to be “enemy combatants” as part of its “war on terror.”)
Fewer than a third of the more than 34,000 Haitians who passed through the Guantánamo camp during that period were eventually found to have a credible fear of persecution and were paroled into the United States. The rest were sent back to Haiti. In May 1992, once the base was at capacity with more than 12,000 Haitians, President George H. W. Bush ordered the Coast Guard to intercept all Haitians and immediately return them to Haiti without trying to determine whether they were at risk of persecution.74
Although Bill Clinton denounced the interdictions as “cruel and unjust” during his campaign, and pledged to close the Guantánamo camp, he maintained the policy after becoming president in January 1993. At that point the Coast Guard had a fleet of at least twenty-two ships and patrol boats encircling Haiti’s coastline, along with a dozen aircraft. Aristide spokesperson Reverend Antoine Adrien called the blockade a “floating Berlin Wall, around those seeking freedom.”75
A combination of litigation, public pressure, and a hunger strike by the detainees finally led to the closure of the Guantánamo camp in June 1993. At that point the camp held about a hundred and fifty Haitians deemed to be HIV-positive or suffering from AIDS; all were flown to the United States.76 President Aristide terminated the interdiction agreement after returning to power in 1994, but the United States has continued to stop Haitians at sea, at a rate of more than a thousand a year since 1998.77
How are refugees treated?
Like asylum seekers, refugees who arrive in the United States through the resettlement program have survived persecution, torture, war, and other trauma prior to arriving in the United States. Unlike asylum seekers, they are not detained upon arrival. Resettled refugees arrive with legal status and permission to work, can apply for certain family members to join them, and are eligible for permanent residency