This week in Haiti
HRIFA Needs a Fix
by Steve Forester
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 bill when they learned, in October 1997, of the exclusion of Haitian refugees from 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 to thousands of others. Moreover, although 37,000 Haitians had applied by the March 31, 2000 filing deadline, INS processing of their applications has been so slow that thousands of their dependent children may not be eligible to get 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 "fix-it" bill.
First, it is scandalous that "airplane people" are excluded under HRIFA. From 1981 to mid-1994, Haitians, unlike Nicaraguans, fled to the U. S. by air with altered documents because the U.S. Coast Guard was interdicting virtually all "boat people" on the high seas and repatriating them back to the same military dictatorships the U.S. was simultaneously boycotting for heinous political repression. Fleeing by boat could have been suicidal for bona fide activists. For example, a Haitian soldier who refused orders to shoot unarmed demonstrators and a union activist shot by the military had little choice but 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 on 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 - thereby 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 the 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 important coverage, highlighting their plight.
Secondly, INS is requiring HRIFA applicants, like NACARA applicants, to prove 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 documentation, 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 of 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 to 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 most 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 INS file documents not only the initial parole or asylum filing, but also every subsequent official interaction with the applicant, constituting a paper trail beginning many, many years ago of work authorization renewal applications and 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 INS 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 many delays that the child has often "aged out" - i.e. become 21 (and therefore no 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 be missing from an application but obtainable - a signature or affidavit, for example -- and in the past the interviewee was given time to obtain and submit it. But now Miami HRIFA adjudicators are reportedly no longer allowing such time except in extraordinary circumstances, instead requiring the applicant to provide the needed item on that same day, regardless of practicability, or be 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 to 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 be 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
"fix-it" bill, which should be demanded by Haitian-American community organizations
and their supporters.
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The author was Supervising Attorney at the Haitian Refugee Center
in Miami, FL from 1992 to 1995
and is a long-time activist for immigrant rights.
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