Strict deportation policy blocks asylum for Haitians
July 21, 2002
The Miami Herald
The refugee boat that brought Jesiclaire Clairmont to this country sailed on an act of faith, its name resonant with strange ironies mirrored between hostile shores: Si M'ap Viv Se Jezi -- If I Live, It's Because of Jesus.
It's the same slogan the mother of six displayed in her home in a strife-torn coastal shantytown at Gonaves in northwestern Haiti. It's an affirmation she clung to in chaotic times, on nights when her church meetings were broken up by political thugs, when her home was attacked, when she ran toward the sea to hide behind the rocks.
Since the wooden sailboat ran aground in Biscayne National Park last Dec. 3, the 44-year-old former fish vendor has come to realize that her survival now may indeed require divine intervention. More than seven months after Clairmont, her family and 181 fellow evangelical Christians reached the United States aboard the flimsy 31-foot boat, she is still locked up in a maximum-security prison west of Miami International Airport. Although they passed the Immigration and Naturalization Service's "credible fear" test, most of the others also remain in detention, fighting deportation. A few have already been deported.
Imprisoned, Clairmont shares the sad distinction of the Si M'ap Viv passengers: It was their arrival that triggered a secret U.S. immigration policy to keep Haitian boat people away. The unwritten policy makes it virtually impossible for any of them -- or any other Haitian boat refugee who reaches U.S. soil -- to gain parole, much less political asylum. A senior INS official admitted in court that he had changed the rules to prevent a mass exodus from Haiti.
Clairmont's asylum plea has already been denied, as have the pleas of her 24-year-old son, Renand Prophete, who is held at the Krome detention center, and her 21-year-old daughter, Lina Prophete, who shares her cell at the Turner Guilford Knight Correctional Center and her days of hourly checks, strip searches, chronic nausea and loneliness.
Meanwhile, Clairmont's two teenage sons spend empty days in their cousin's house in Miami's Little Haiti, suspended in a state of waiting. Daniel and Emmanuel Moise, 17 and 14, are free. Immigration authorities released them when their father was granted political asylum five months ago.
Their father, Ernest Moise, a 40-year-old fisherman, sometimes finds them crying, missing their mother. They don't understand how an immigration judge could order her deported back to Haiti.
"She would die there because they've already attacked her," Daniel says.
To him, the definitions of justice are clear. He lived in his mother's house in the populous Raboteau slum, shared her life, her fears and all the vulnerable hours she spent at church. The boys huddled with her for nine days in the leaky, windowless hold of the Si M'ap Viv as it fled a city burning in violence. How, Daniel wonders, could one judge decide that he should stay here while another one decides that his mother should go back?
His family's conflict epitomizes the contradiction of U.S. policy toward Haitians. Citing Haiti's political crisis and rampant lawlessness, the Bush administration refuses to release hundreds of millions of dollars in international aid to the government of Jean-Bertrand Aristide. Yet it punishes those fleeing the chaos, jailing them, isolating them from loved ones, denying most of their asylum requests, singling them out.
The policy, forced into the light by a discrimination lawsuit, applies only to Haitians, who, like other asylum seekers, were routinely granted parole and given a year to prepare their cases.
Three days before the Si M'ap Viv ran aground at Caesar Creek, park rangers picked up five Cuban boat refugees on a nearby key and, by policy, set them on the path to parole.
But the Haitian policy's impact has been devastating to the migrants. Stories of politically motivated beatings, shootings and burnings have been lost in the accelerated processing of the refugees' claims. Incomplete and poorly worded asylum applications are testimony to the refugees' lack of access to meaningful assistance and representation.
Ernest Moise was given three weeks from the day he filed for asylum to find a lawyer and prove his case. His nearly blank application suggests that he was lost and poorly assisted.
Question: "Why are you seeking asylum? Explain in detail the basis for your claim. (Attach additional sheets of paper as needed.)"
Answer: "Because of insecurity. I am afraid for my life."
Luckily for him, lawyers from the Florida Immigrant Advocacy Center, which keeps a Creole-speaking paralegal at Krome, called on fellow immigration attorneys to help with the Si M'ap Viv caseload. Moise's case went to Randy McGrorty, the head lawyer at Catholic Charities Legal Services. They had less than a week to prepare for the asylum hearing.
McGrorty interviewed Moise and put together a case for his entire family, including Clairmont, their two teenage sons and her two older children from a previous relationship. But on the day of the hearing, McGrorty, the 39-year-old Wisconsinite who came here nine years ago to help Haitian detainees at the Guantanamo Bay Naval Base, ran into one of those dilemmas all lawyers fear -- his clients seemed to contradict each other.
"He told the court they were married. She said they weren't. We had no choice but to sever their cases," McGrorty recalls.
But what seemed to be a contradiction might have been a linguistic confusion.
When asked about their relationship, both of them described a common-law marriage. Although they no longer lived together, both said they were raising their children together and arrived here as a family unit. But that's the kind of nuance that gets lost in the haste.
McGrorty took a chance and kept the trial date for Moise. It was a good move for him.
"Ernest's story was simple and straightforward," the lawyer recalls. "He spoke well. He didn't embellish. It was the voice of the fisherman."
Immigration Judge Denise Slavin, one of the outside judges brought in to expedite the Si M'ap Viv cases, granted him asylum that same day, Feb. 22. She also released Daniel and Emmanuel, who had been detained with Ernest Moise in a local motel.
That week, Judge Slavin granted at least two other asylum pleas, a rarity in the assembly line that is immigration court. Two sitting judges, Kenneth Hurewitz and Neale Foster, are assigned to Haitian detainee cases.
Moise became one of the principal plaintiffs in a class-action lawsuit filed March 15 in federal court by immigrant advocates, who had been pressing for the detainees' release for two months. The INS had continued to detain him even after he won asylum, saying it planned to appeal. But INS officials released Moise, weakening the lawsuit.
McGrorty's Haitian-American colleague, Natasha Pierre, had no such luck representing Clairmont and her two adult children on April 1. Even after learning that Clairmont's teenage sons had been granted asylum, and that deporting her would leave the boys without their mother, Judge Hurewitz denied her plea. He ordered that Clairmont and her adult children be sent back to Haiti, concluding that her testimony was "vague, inconsistent and not detailed."
Although her lawyers believed that Clairmont had a strong case, they say it was difficult to draw it out of her.
"She's a woman with very little education. But she had a good claim," says Pierre, who has appealed the judge's decision to the Board of Immigration Appeals in Falls Church, Va.
NOT A SIMPLE STORY
What Clairmont did not have was a simple story. She speaks in winding, often disjointed narrative punctuated with religious references. She describes a dangerous existence where bullets whip by, where beatings are routine, where going to church marks you as a government opponent.
"Are you a member of the opposition?" she was asked.
"I am an evangelical Christian," she replied without a beat.
Her stories don't always make sense. But even when her calculations of time seem off, she describes a peril consistent with reports by international human rights groups. Even the State Department's most recent report noted the violence in Gonaves and stated: "Torture and other forms of abuse are pervasive. Police frequently beat suspects."
Clairmont's home city, sprawled across a parched, desolate plain, framed by mountains scarred by erosion, is the city where Haitian independence was proclaimed in 1804. Today Gonaves is a hotbed of the opposition, which nurtures supporters in tiny, beleaguered evangelical churches. On the chaotic night that Clairmont crammed her family into the sailboat, protests flared in the streets.
As she expected, the violence only worsened. On the day the Si M'ap Viv passengers were brought ashore by the U.S. Coast Guard, a mob claiming loyalty to Aristide's Lavalas Family party stoned a journalist and hacked him to death. Days later, as thugs attacked the National Palace in Port-au-Prince, two members of the opposition MOCHRENA party were burned to death in Gonaves.
Clairmont's story, as those of the other detainees, has drawn the interest of high-profile supporters from Congress, the Florida Legislature and the civil rights arena. Dignitaries have streamed through the correctional center to investigate reports of harsh conditions. Last week, INS Commissioner James Ziglar toured the center with a delegation of political and civic leaders.
But for all the vigorous pleas from elected officials such as U.S. Reps. Carrie Meek, D-Miami, Lincoln Diaz-Balart, R-Miami, and Ileana Ros-Lehtinen, R-Miami; U.S. Sens. Bill Nelson and Bob Graham, both D-Fla.; and a particularly relentless state Sen. Kendrick Meek, D-Miami, the Bush administration has not budged on the issue.
Unless the de facto Haitian policy is rescinded, Clairmont and other Haitian detainees may have little hope of avoiding deportation. U.S. District Judge Joan A. Lenard diminished the detainees' chances when she tossed out the discrimination lawsuit on May 17 without a hearing.
Advocates hope an appeals court will put an end to the detention order that was quietly handed down Dec. 14 by Peter Michael Becraft, an acting deputy commissioner in Washington. In their July 12 appeal, they noted the policy's impact:
"The release rate for Haitians who had passed their credible fear interviews dropped from 96 percent in November 2001 to 6 percent for the period December 14, 2001, to March 18, 2002."
And they said Miami immigration judges not only failed to consider individual merits of release requests, they "quickly issued virtually identical boilerplate denials."
In court documents, Becraft has claimed that the "parole criteria" were simply adjusted to discourage further risky voyages out of Haiti. And the INS points to the drop in arrivals in the subsequent months as proof that this new adjustment is working.
But questions arise: If this policy was really about safety, then why was it a secret? Why did it take a court challenge to bring it to light? And how could a secret policy prevent an exodus from Haiti?
Certainly, such hard-line policies can help gubernatorial races in Florida. In 1994, Democrat Lawton Chiles got a boost from the wholesale detention of Haitian and Cuban refugees at Guantanamo Bay.
Eight years later, some immigrant advocates speculate that the secret policy was hatched in the Oval Office as a campaign contribution to the president's brother. But Gov. Jeb Bush has called for equal treatment of the Haitian detainees. And although he has not hammered the point, he has demonstrated more support for Haitian detainees than his prospective opponent Janet Reno did as U.S. attorney general.
The inaction has left immigrant advocates to console their depressed clients, even though their own hopes of success are dim.
Often exasperated, one of Clairmont's lawyers, McGrorty, reaches for a biblical metaphor to spell out the tragedy of the boat named If I Live, It's Because of Jesus.
He places the flight to Egypt in a modern-day context.
"If you apply this policy of asylum, it's clear that Jesus would have gotten asylum. But his parents would have been returned," he concludes.
But the children of Jesiclaire Clairmont don't want to think of such a scenario. Asked what would happen to them if their mother were deported, they responded in stark unison:
"We cannot live without our mother."