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Diplomacy in Action

7. Department of State Congressional response on U.S. Policy toward Haitian refugees


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RESPONSES TO CONMITTEE QUESTIONS REGARDING HAITIAN REFUGEES

[Q:]1) Under U.S. law, aliens must show a well-founded fear that, if returned hone, they will be persecuted based on one of five characteristics. Two of these categories are: political opinion or membership in a particular social group. Could you elaborate on what group of Haitians would not find themselves in fear of persecution on the basis of these two categories? How does the Department evaluate "persecution" on these grounds? Please elaborate on what, in the Department's assessment, would constitute "credible fear"? What evidence is required to substantiate or meet the "credible fear" requirement?

[A:]The Immigration and Naturalization Service (INS) is responsible for making determinations on which asylum seekers meet the U. S. definition of refugee. Such determinations are made on an individual, case—by—case basis; it would thus be inappropriate to say which groups of Haitians would or would not qualify for asylum in the United States.
A fundamental question in any protection assessment is whether the harm that an applicant has suffered amounts to persecution, a term that has developed meaning through the common law process, but that is not currently defined in international treaties, domestic statutes, or regulations. In December 2000, the Service and the Department of Justice published a proposed regulation that offered a regulatory framework for defining "persecution." The supplement to that proposed rule describes in great detail how the Service and Justice Department envisioned that the term "persecution" should be evaluated. See 65 Fed. Reg. 76588 (Dec. 7, 2000). While that proposed rule has not become effective by publication of an interim final rule, the section relating to the definition of persecution is largely a summary of current case law, rather than a modification of or departure from current law.
The term "credible fear" means that "there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208." See 8 USC 1225(b) (1) (B) (v); 8 CFR 208.30. Furthermore, the Immigration Officer Academy's Asylum Officer Basic Training Course (June 21, 2002) offers the following general considerations on how an asylum officer should apply the credible fear standard:


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1. The standard of proof required to establish a credible fear of persecution is lower than the standard of proof required to establish past persecution or well-founded fear of future persecution.
2. The officer should draw all reasonable inferences in favor of the applicant. The officer is to accord the "benefit of the doubt" to the applicant.
3. When there is reasonable doubt regarding an issue, that issue should be decided in favor of the applicant. When there is reasonable doubt regarding the decision, the applicant should be determined to have a credible fear of persecution.
4. Disputed, close, or novel questions of law should be resolved in the manner most favorable to the applicant.
5. Where there is disagreement among the United States Circuit Courts of Appeal as to the proper interpretation of a legal issue, or where the claim otherwise raises an unresolved issue of law, the interpretation most favorable to the applicant is used when determining whether the applicant meets the credible fear standard.
6. Questions as to how the standard is applied should be resolved by considering that it is a low-threshold test designed to screen all persons who could qualify for asylum into the hearing process.

[Q:]2) The Foreign Relations Authorization Bill Conference Report which the President signed into law September 30, makes permanent the prohibition on the involuntary return of refugees and goes on to refer to a process genuinely calculated to identify and protect refugees. Do you believe that the interviews conducted by asylum officers on board Coast Guard cutters meet the criteria of a "process genuinely calculated to identify and protect refugees?" Do you believe that asylum officers on board these Coast Guard cutters have the necessary background and expertise regarding the situation in Haiti to be able to make an informed decision on the status of Haitian refugees?

[A:]Yes. We believe that any interviews conducted by asylum officers on board Coast Guard cutters are "genuinely calculated to identify and protect refugees." We note that on-board screenings generally use the "credible fear" standard, which is
significantly more generous than the refugee standard. If an asylum seeker meets the credible fear standard, they are
generally transferred to a location on land where a more in— depth refugee determination is done. Asylum officers receive

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extensive training on international and U.S. refugee law and standards. They are also trained in effective interviewing techniques and how to use country conditions information in making their decisions. Up-to-date information about country conditions in Haiti is made available to any asylum officer responsible for the screening of Haitian asylum seekers. The Department of State also regularly offers additional information that may be relevant to any such claim. In interdiction cases, the asylum officer recommends a decision, which must be reviewed in headquarters.

[Q:]Is it possible that Haitians who meet the criteria of refugees are being returned to Haiti because they are unaware of the legal requirements concerning refugees and do not voice their fear of persecution when interdicted? Do you agree or disagree with the proposal to be raised by one of the briefers on the second panel that, at a minimum, in—country processing in Haiti should be reinstated? What challenges or obstacles exist to the renewal of such an effort?

[A:] We are not aware of any interdicted Haitians who meet the refugee definition but were returned to Haiti by the United States. At this time, we do not believe that in-country processing for Haitians would be appropriate, as current country conditions do not warrant such action. In—country processing is an extraordinary undertaking that requires, among other things, a special determination by the President. We do not believe that the current circumstances for Haitians require renewal of such an effort.

[Q:] What steps does the U.S. take to monitor the status of those Haitians returned to Haiti? What efforts, if any, are undertaken to ensure that they are not subject to reprisal or persecution upon their return?

[A:] The U.S. Embassy in Port-au-Prince does not currently monitor the status of individual Haitians returned to Haiti; the Embassy, however, continues to monitor political and social conditions throughout the country. The Embassy's work in this regard is enhanced by its strong contacts with Haitian human rights organizations, which would alert the Embassy if interdicted migrants were being subjected to reprisals or persecution upon return.

[Q:] 3) Section 243 (b) (3) of the Foreign Relations

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Authorization Bill Conference Report which the President signed
into law September 30 requires reporting on "the extent to which the United States currently provides opportunities for resettlement in the United States of individuals who are close family members of citizens or lawful residents of the United States..." Is such an opportunity afforded to Haitian refugees? In light of this provision, will the Department be working with INS to address requests such as those articulated by one of the briefers on the second panel, that Haitian refugees be released locally to their families if they have family members here in the United States?

[A:] Access to the U.S. refugee program is determined by categories called Priorities established by the Department of State. Like all others, Haitians are eligible for this program under the Priority One category, which requires that either UNHCR or an Embassy refer the person to the program. The criteria for access to the U.S. refugee program are distinct from the criteria used by INS to determine whether to release from detention an asylum—seeker in the United States. The former involves determining whether an individual is in need of immediate resettlement to the United States, while the latter requires determining, under section 212(d)(5) of the Immigration and Nationality Act, whether to release an alien.

[Q:] 4) The United Nations High Commissioner for Refugees, Ruud Lubbers, said in a statement earlier this year that U.S. domestic policy regarding the treatment of Haitian refugees "amounts to arbitrary detention" and that it goes against "the norms and principles of international law." Given the Department's role in reporting U.S. adherence to international agreements and standards, how would you rate the current detention policy?

[A:] The Department of State believes that INS detention practices comply with all applicable international agreements and standards regarding refugees and asylum seekers.

[Q:]In light of reports of rapes, for example, by INS guards of Haitian women at the Krome Detention Center, and the key role the U.S. played in pressing for an investigation on sexual exploitation of refugees in West Africa, what efforts has the Department undertaken with INS to address this grave matter and ensure the safety and well—being of the detainees? Given the U.S. role in working toward a code of conduct to be implemented

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by UN personnel and NCOs involved in refugee work, is the Department working with the INS toward such a code of conduct for the treatment of refugees in the U.S.?
[A:] The Department of State is in regular communication with INS regarding the standards and procedures for the treatment of asylum seekers and refugees in the United States. The INS has adopted guidelines governing the detention of asylum seekers and believes that these guidelines appropriately address issues relating to their treatment in detention. These detention standards mandate that each facility have a grievance procedure whereby detainees are able to file formal complaints and appear before a committee to present their case. In addition, when a detainee makes an allegation of serious official misconduct, such as rape, the INS Office of Internal Audit must be notified as well as the Office of the Inspector General of the Department of Justice. These offices are responsible for conducting investigations of alleged misconduct.

[Q:] Please describe the role of U.S. personnel stationed at our Caribbean posts in providing for the safety of Haitian refugees in these third countries? Please describe both bilateral efforts with the host governments, as well as the relationship with UNCHR personnel in these countries.

[A:] Providing for the safety of Haitian refugees in third countries is normally the responsibility of the authorities in those countries. U.S. personnel stationed at our Caribbean posts engage with the host governments on a broad range of issues, including refugees, human rights, and migrant populations when there are issues of concern.

We are not aware of any significant numbers of Haitian refugees or applicants for political asylum in other Caribbean nations. There are, however, significant numbers of Haitian migrants in the Dominican Republic and the Bahamas. These countries determine who among these populations are refugees according to their domestic legislation and international agreements and standards. UNHCR covers refugee protection issues in the Caribbean from its office in Washington: UNHCR recently sent a Washington representative to the Dominican Republic for six weeks to look into the condition and circumstances of Haitians there. It also has a group of "honorary liaisons" (private persons who report to UNHCR relevant developments on refugees) throughout the region. The Department, through the Bureau of Population, Refugees and Migration, is in regular contact with

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the UNHCR office in Washington regarding the treatment of Haitians and other non-citizens, who may be asylum seekers or refugees in a Caribbean host country.
[Q:] 5) what is the current NRA budget for the Western Hemisphere? How does that compare to other regions? How much of the MRA budget for the Western Hemisphere is used for Haitian refugees?

[A:]Of the $756.7 million MRA budget for FY02, $13.6 million was obligated for programs in the Western Hemisphere. While none of the FY2002 budget was obligated to programs in Haiti, UNHCR's work in the Western Hemisphere assists, among others, Haitian asylum seekers and refugees. Thus, the Bureau of Population, Refugees and Migration's(PRM) annual contribution to activities in this hemisphere contributes to UNHCR's work with Haitians. The MRA budget also includes money for the care, maintenance, and resettlement of those persons interdicted at sea and determined to require protection, including Haitians. We recently made available funds for interpreters for protected Haitian migrants on Guantanamo Naval Base.


RESPONSES TO CONGRESSWOMAN ROS—LEHTINEN'S
7 NOVEMBER QUESTIONS
REGARDING HAITIAN REFUGEES

1) The number of Haitians screened on Coast Guard cutters and returned to Haiti throughout the last 5 years?

The Department of State does not have this specific information. The Coast Guard has repatriated 5,247 Haitian migrants since FY 1998. For the number of Haitians screened by the Immigration and Naturalization Service aboard Coast Guard cutters, we refer you to Ms. Renee J. Harris, Acting Director of International Affairs, INS,(202) 305—2900.

2) A report on the status and treatment of returned individuals.

The U.S. Embassy in Port—au—Prince does not monitor the status of Haitians returned to Haiti. It does, however, monitor human rights issues in Haiti generally, including whether there are human rights abuses against returnees. We have not confirmed the occurrence of any reprisals against or persecution of returnees.

3) Information regarding the need for an inter—agency evaluation by the State Department and INS of U.S. adherence to international agreements and norms within the context of treatment and detention conditions of Haitian asylum—seekers and refugees.

The Department of State is committed to ensuring U.S. adherence to international agreements and norms and regularly reviews, along with INS and other relevant U.S. agencies, U.S. practice involving asylum seekers and refugees toward this end. The central international agreement governing these issues is the 1967 Protocol relating to the Status of Refugees, to which the United States is a party. We believe U.S. treatment of Haitians adheres to our obligations under this treaty.

4) State Department comments on recommendations put forth by private panel witnesses on the following:

a. The need for Haitian refugees to have greater access to legal counsel.

Haitian asylum seekers in the United States have the same access to legal counsel afforded to asylum seekers of any other

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country; the U.S. does not appoint legal counsel, the asylum seeker must pay the cost. Haitian asylum seekers placed in expedited removal proceedings have access to a person of their choosing for purposes of any credible fear interview or review of any credible fear determination; individuals, including Haitians, in removal proceedings have access to lawyers or legal representatives so long as it is at no cost to the U.S. Government.

b. The need for Haitian refugees to receive greater screening
aboard Coast Guard cutters, rather than the implementation of automatic returns of those persons not explicitly expressing a fear of persecution.

The Department of State is committed to ensuring that bona fide refugees or torture victims who may be among interdicted Haitian groups receive protection. We believe that current procedures for interdicted Haitians are sufficient to identify any refugees or torture victims who may be among them.

c. The need for Haitian refugees to have the current interdiction policy replaced with that of a "rescue at sea" approach.

We are not certain what is meant by a "rescue at sea" approach. Current U.S. migrant interdiction policy is aimed at preventing illegal and dangerous migration by boat to the United States. At the same time, consistent with international standards, the Coast Guard rescues any vessel holding migrants that appears to be in distress. Under the International Convention on Maritime Search and Rescue, 1979, to which the United States is a party, "rescue" is defined as "an operation to retrieve persons in distress, provide for their initial medical or other needs and deliver them to a place of safety." The United States Coast Guard considers that its cutters are, in most circumstances, a place of safety, thus fully capable of conducting rescue operations for migrants in distress at sea. Migrants who have medical conditions that require treatment beyond that available at sea are brought to shore. Migrants who are healthy or have health problems that can be treated at sea are returned directly by boat to Haiti unless they can establish a credible fear of persecution or torture.

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d. The need for Haitian refugees to have a refugee resettlement program established for Haiti.

We do not believe that the extraordinary remedy of an in-country refugee processing program for Haitians is appropriate at this time. Given the level of economic desperation in Haiti, an in— country program is likely to attract many more ineligible than eligible applicants. We believe that existing protection options for Haitians who may be at risk of persecution or torture are sufficient.

e. The need for Haitian refugees to be met by better prepared, educated and trained asylum officers on the conditions and situation inside countries of origin, toward the careful, comprehensive review required by law.

Asylum officers receive extensive training in international and U.S. refugee law and standards. They are also trained in effective interviewing techniques and in how to use country conditions information in making their decisions. Up—to—date information about country conditions in Haiti is made available to any asylum officer responsible for the screening of Haitian asylum seekers. The Department of State also regularly offers additional information that may be relevant to any such claim. The Department of State believes that INS asylum officers are fully prepared and competent to carry out fair adjudications of Haitian asylum claims.



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