Haitian Centers Council, Inc. v. McNary – International Human Rights and Solidarity – CCR Docket Fall 1992

A heartbreaking legal battle raged throughout the spring of 1992 over the rights of Haitian immigrants, pitting the Bush Administration against the human rights and civil rights communities.

CCR joined the San Francisco Lawyers’ Committee for Urban Rights, the Lowenstein International Human Rights Clinic of Yale Law School, the ACLU, and individual practitioners to stave off attempts by the Bush Administration to deprive Haitians of the traditional U.S. welcome to refugees. Legal actions included suits, attempted injunctions, appeals, and stays of appeals at virtually every court level­ district, circuit, and even the Supreme Court.

Perhaps the lowest moment in the struggle occurred on May 24, 1992, when the Bush Administration, despite all pending appeals, began to return all Haitians to Haiti, forcibly taking them from boats on the high seas without even ascertaining the validity of their political asylum claims.

The plight of Haitian refugees flows directly from the coup which toppled Father Jean-Bertrand Aristide, the first democratically elected president of Haiti, in September 1991. Thousands of Haitians, boarding boats of all descriptions to escape the junta’s terror, braved the hazards of the sea. There   is no information  to determine how many died in the perilous voyage, but U.S. Coast Guard authorities intercepted all survivors and brought them to hastily-erected camps on Guantanamo Bay, the U.S. naval base on Cuban territory.

Prior to the total interdiction policy, officials from the Immigration and Naturalization Service  processed  refugees on Guantanamo to determine whether they had credible claims of political asylum and admitted  some, the “screened-in,” to the U.S., sending the “screened-out” back to Haiti. This policy allowed about 30% of the refugees to gain temporary admittance to the U.S. Advocates for the Haitians  believed the percentage should have been higher and asserted that the refugees on Guantanamo were literally being held in concentration camp conditions. At times up to 10,000 people were held in camps behind barbed wire fences, in military custody, and not allowed access to attorneys or to telephones and the mail.

CCR attorneys charged that Administration behavior toward the Haitians constituted discrimination on the bases of race and national origin because “no other immigrant group is detained before it reaches our shores and held incommunicado.” The accusation of racial bias was echoed by prominent African­ American members of Congress.

CCR and other groups did win two aspects of the lawsuit: first, an injunction against the refusal to allow Haitians access to attorneys if they are to be returned to Haiti, and second, in a precedent-setting 2-1 ruling, the Second Circuit held illegal President Bush’s order requiring that all Haitians be picked up on the high seas and returned to Haiti without any determination as to whether or not they were refugees.

The Bush Administration sought an immediate stay in the Supreme Court, which they won 7-2. Justice Blackmun, in a strong dissent, argued that the majority was sending  people  to their deaths.   The Supreme Court will likely hear argument on this case in late fall 1992 or early 1993.

Michael Ratner, Jules Lobel, and Suzanne Shende, with Harold Hongju Koh of the Lowenstein International Human Rights Clinic of Yale Law School; Joseph Tringali of Simpson Thacher & Bartlett; Robert Rubin of San Francisco Lawyers’ Committee for Urban Affairs; and Lucas Guttentag and Judy Rabinovitz of the ACLU Immigration Rights Project