Disparities in U.S. Immigration Policy toward Haiti and Cuba: A Legacy to be Continued?

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Shameful distinction between treatment of Haitians and Cubans
• U.S.-Cuba immigration strategy is emulated nowhere else in the world, while desperately needy Haitians are instantly interdicted back to their island
• State Department administers a broken policy bereft of inspired leadership
• Cuban-American lobby continues to rule the roost of U.S. policies toward Latin America
• Looking ahead: Haiti Earthquake highlights that environmental factors must gain a foothold in immigration policy

Many points of comparison exist between Haiti and Cuba, as Ruth Ellen Wasem contends in a Congressional Research Report: “Both nations have a history of repressive governments with documented human rights violations. Both countries have a history of sending asylum seekers to the United States by boats.” In spite of these similarities, several political and economic factors have spurred divergent U.S. directives in these two island nations.

The United States and Cuba have maintained a tenuous relationship since Fidel Castro assumed power in 1959. The Kennedy administration implemented a two-tier policy consisting of an economic embargo paired with diplomatic isolation, both of which continue to dictate U.S. foreign policy toward Cuba today. Although the U.S. has not sought to diplomatically and economically isolate Haiti in the same manner, relations between the former French colony and the U.S. have been shaped by the protection of national interests and subsequent military intervention. Haiti has been unable to achieve stability, becoming a headache in the backyard of the U.S. and, consequently, ties between the two states have been tumultuous. These contrasting histories and foreign policy approaches surpass domestic boundaries, as reflected in current U.S. immigration legislation. Ironically, the U.S. holds refugees escaping from communist Cuba to more lenient standards than any other foreign nationals. Migrants facing at least equally urgent circumstances, such as Haitians, suffer the ramifications of our broken policies. The January 12, 2010 earthquake provides an example of a pressing and devastating event calling for the Obama administration to address the needs of the increasing numbers of refugees fleeing Haiti.

First Steps toward Favorable Status: The Cuban Adjustment Act

Cuba ranks as the fifth largest immigrant-sending country to the United States. In 2008 alone, 49,500 Cubans became Lawful Permanent Residents (LPRs). The 1966 Cuban Adjustment Act (CAA) is arguably the single most important piece of legislation that initiated a longstanding pattern of preferential treatment of Cuban migrants. The CAA guarantees that Cubans living in the U.S. after January 1, 1959 for a least one year may adjust to permanent residence status.

Following a 1996 amendment to this statute, the “wet foot/dry foot” practice evolved. This practice implies that the U.S. Coast Guard interdict Cubans found at sea and return them to Cuba unless they profess fears of persecution. However, Cubans who effectively reach the shore are inspected for entry by the Department of Homeland Security (DHS) and are by and large permitted to remain in the U.S. for the year following. Moreover, if a confirmed Cuban national attempts to enter the U.S. by land, usually through Mexico, Customs and Border Protections (CBP) personnel can inspect the would-be intruder and frequently deem them exempt from deportation. Illegal Haitian migrants do not benefit from any comparable advantages. If they cannot provide a reason for an asylum hearing upon arrival in the U.S., they are immediately repatriated or detained.

The Cuba-US Migration Agreement

In 1994, the number of Cuban refugees seeking asylum or immigrant visas to the United States became so great that the Clinton administration was persuaded to establish a policy to effectively decrease the amount of money being spent on refugee services and impose a fixed limit. Consequently, the U.S. and Cuba willingly reached a migration accord in which the U.S. agreed to allow at least twenty thousand immigrants each year to enter the United States, excluding in this count the relatives of U.S. citizens, who would also be eligible to enter. However, hardly any Cubans met the eligibility standards determined by the INS, meaning only a few qualified for visas as family-sponsored immigrants or as employment-based immigrants. Additionally, a stronger U.S. interdiction policy forced migrating Cubans found in U.S. waters to be repatriated back to Cuba. Such attempts, which seemed to hinder Cuban migrants trying to enter via the shores of Florida, ironically resulted in the Special Cuban Migration Lottery, or more simply a “visa lottery.” According to a 2009 Congressional Research Report, 541,000 Cubans qualified for the drawing in 1998 alone. The Castro government found this number frighteningly high and subsequently put an end to these lotteries. However, the United States continues to parole Cuban registrants from 1998. The number of Cubans who qualified for potential U.S. entry in a single year exceeds the figure of Haitians living in the U.S. today, estimated at 532,000.

Haitian Immigration Policy: An Unaddressed History

Although Haiti has seen some democratic progress since the election of René Preval in 2005, it remains the poorest country in the Western Hemisphere. The wide-reaching foreign policy arm of the White House has largely contributed to Haiti’s plight. A nineteen-year U.S. occupation of Haiti from 1915 to 1934 only exacerbated the dire economic and political situation in the country. Throughout this period, in which U.S. occupying forces continued to abuse their power, between 15,000 and 30,000 Haitian lives were taken. During its tenure, the U.S. failed to establish democratic traditions, but did find success in strengthening an already powerful institution: the Haitian military. Authoritarian regimes since then have predictably dominated the nation as only two leaders have voluntarily handed over power. An estimated 40,000 people were jailed, tortured or killed during the twenty-nine years (1957-1986) spanning the rule of Francois Duvalier (“Papa Doc) and his son Jean-Claude Duvalier (“Baby Doc”).

U.S. immigration policy towards Haitians originated during the dictatorship of Jean-Claude Duvalier with an aim of reducing the number of Haitian migrants seeking asylum or immigrant visas to the United States in the aftermath of the 1981 Mariel Boatlift. The boatlift was a seven-month time period when an influx of 125,000 Cubans and 25,000 Haitians seeking asylum in the United States arrived by boat to the shores of South Florida. As a result, Ronald Reagan negotiated with then Haitian Dictator Jean-Claude Duvalier to develop the policy of interdiction, a practice whereby the Coast Guard stops and searches boats on the high seas suspected of transporting undocumented immigrants. For instance, from 1981 to 1990, 22,940 Haitians were interdicted, yet only 11 of them were even considered qualified to apply for asylum in the United States. Washington claimed that Haitians seeking asylum in the U.S. during this time period could only be considered economic migrants and were therefore unqualified to remain in the country. However, this specious conclusion was stood on its head following the Presidential coup in 1991, which overthrew the constitutional Aristide government.

The Aftermath of the 1991 Coup

Jean-Bertrand Aristide had served as an embodiment of hope and prosperity for the poor, but the left-leaning policies he wanted to implement were deeply disturbing to both the Haitian army and elite. This frustration resulted in a coup that marked a continuation of Haitian military tyranny: Aristide had been the state’s first democratically elected leader and his ousting led to yet another oppressive military regime. The U.S. and the international community responded to the crisis by imposing an international trade embargo against Haiti, nominally calling for the reinstatement of Aristide. Additionally, nearly 40,000 Haitians boarded boats and departed for Florida’s shores, forcing the U.S. to re-evaluate the migrant status of Haitians.

The coup in 1991 challenged Washington’s assumption that Haitians were fleeing their country solely for economic reasons and were not eligible for asylum. The Immigration and Nationality Act (INA) stipulates that a refugee can only stay in the U.S. if they “demonstrate a well-founded fear that if returned home, they will be persecuted based upon one of the five characteristics: race, religion, nationality, membership in a particular social group, or political opinion.” Although Haiti’s poverty suggests its citizens might only be seeking U.S. immigrant visas for economic purposes, a 1992 Amnesty International report contradicts this claim. It revealed that since the beginning of the coup, a minimum of 1,500 people had been killed and thousands more had been imprisoned and tortured for merely having a picture of Aristide hanging on the wall. Yet this created no changes in refugee policy, signaling that in reality, Washington was no more favorably oriented to Aristide than to the Haitian military.

The Bush administration ignored a basic tenant of a treaty on refugees to which Haiti and the U.S. had been parties since 1968. International refugee law forbids the return of refugees to their country of origin unless adequate assurances have been made that they will not be persecuted. Nevertheless, in November 1991, the Coast Guard sent home 538 Haitian escapees. This repatriation occurred in spite of an arrangement made between the U.S., the United Nations High Commissioner for Refugees (UNCHR) and other countries in the region to provide a safe-haven for these interdicted Haitian migrants. According to a 2005 Congressional Report, Washington returned these Haitians without interviewing them to determine whether they were at risk of persecution. In order for the interdicted Haitians to even be considered eligible for asylum, they would have had to attest to being in danger if repatriated. They were never granted the opportunity to do this, unlike their Cuban counterparts.

The Haiti Earthquake: an Amplification of Inconsistent Policy

The January 12, 2010 earthquake thrust Haitians into devastation: 230,000 died and 1.5 million are still left homeless. The immediate need for relocation remains evident: the temporary camps constructed for those dislocated on the island are rapidly turning into slums and are extremely vulnerable to approaching hurricanes. Although the United States’ capacity to accept immigrants has its limits, the continued disproportionate acceptance of Cubans over Haitians in light of Haiti’s latest crisis is unwarranted.

The United States Citizenship and Immigration Services (USCIS) has focused on two short-term immigration solutions for Haitians in need of respite: the extension of Temporary Protected Status (TPS) for those residing in the U.S. illegally prior to the earthquake and the limited acceptance of Humanitarian Parole applications. According to USCIS, Humanitarian Parole visas are to be “used sparingly to bring someone who is otherwise inadmissible into the United States for a temporary period of time due to a compelling emergency.”

Immigrants from Haiti: Visas and Detentions

By the end of last February, 31,000 people, including 7,200 foreign nationals, had been evacuated from Haiti to the United States. However, as of May, only approximately 1,700 Haitian citizens had received Humanitarian Parole. A series of restrictive practices stand in contrast to the open arms extended to Cubans, who continue to benefit under the CAA and from a high number of family connections. The U.S. government set the 2010 admissions ceiling for refugees from Latin America and the Caribbean at 5,000. So far, 3,351 out of 3,429 resettled have been Cuban refugees. Considering the deplorable conditions Haitians currently face, their comparatively low acceptance is disconcerting. Furthermore, it creates a looming gap between evacuation and immigrant reception that tends to be filled through existing loop holes and illegal smuggling networks. Instead of Humanitarian Parole, the remaining official number of Haitian evacuees have received tourist visas. The drawback of tourist visas is that they prohibit legal employment in the U.S., likely leading to extended illegal residence and labor. These prospects put tourist visa holders at higher risk of detention.

Furthermore, many Haitians have once again resorted to illegal means of immigration, boarding boats to reach U.S. shores. Some U.S. officials seem to negate the link between such unlawful processes and the government’s limited immigration response. In January 2010, immediately following the Haiti earthquake, U.S. Secretary of State Hillary Clinton confirmed, “Our ordinary and regular immigration laws will apply going forward, which means that we are not going to be accepting into the United States Haitians who are attempting to make it to our shores. They will be interdicted. They will be repatriated.” This approach seems simple, but there is one caveat: deportations to Haiti have been at a stand-still ever since the earthquake, and the U.S. government has yet to name a date for their reinstatement. To make matters worse, U.S. immigration law contains no restrictions on the amount of time that suspected illegal immigrants and asylum seekers may be held in detention.

Though U.S. detention policies have always been in place, they were strengthened following the September 11th terrorist attacks. On April 17, 2003, the Attorney General ruled that the Executive Office for Immigration Review (EOIR) judges should take national security into account when deciding on bonds for detained immigrants demanding release. The Bush Administration justified this claim on the basis that terrorists could pose as Haitians seeking asylum. Cuban migrants have not been singled out in the same manner and many critics believe the term “national security” is employed too arbitrarily as justification for this practice. Such ambiguity results in the unnecessary detention of many Haitian migrants without proof of their being a danger to this country. Moreover, prison-like conditions, such as physical restraint, lack of medical attention, and occasional physical and verbal abuse in these centers are not in line with ICE regulations or international human rights standards.

Several Haitian migrants were placed in detention centers following the earthquake. An April 1, 2010 New York Times article discusses a specific case where thirty Haitians had remained in detention for over two months at the Broward County Transitional Center, an immigration jail in Florida. Marines directed these detainees onto military planes amid the chaos that erupted following the earthquake. Advocates who fought for their release contended, “There is no reason to spend taxpayer dollars detaining traumatized earthquake survivors who cannot be deported and who have demonstrated that they are neither a flight risk nor danger to the community.”

TPS: Complications and Concerns

Detention is not a fear limited to would-be emigrating Haitians. The crackdown of U.S. Immigration and Customs Enforcement (ICE) has been felt throughout the country’s immigrant community, preventing many eligible Haitians in the U.S. from applying for TPS. The U.S. government has granted TPS to Haitians in the U.S. until July 22, 2011. Technically, this option is open to all Haitian nationals who were already in the U.S. prior to the earthquake, regardless of their current immigration status. As of June 3, 2010, Alejandro Mayorkas, head of USCIS, received 52,000 Haitian TPS applications, lower than the expected number. Representatives of both University of Miami Law School and the law firm of Hunton and Williams requested that the agency issue a statement assuring Haitians they would not be referred to ICE or asked to appear in court due to their status. USCIS responded that laws of motions to appear in court (MTA) vary by state, making the issuance of such a statement impractical.

Lawyers also continue to face a number of hurdles in trying to help Haitians file TPS applications. For example, fees ranging from a total of $50 to $390 are difficult for many eligible applicants to provide. Birth certificates of applicants’ parents have also been required to verify Haitian nationality. These documents are often nearly impossible to obtain after the earthquake’s vast destruction. The current deadline for filing TPS applications is July 20, 2010. Due to complaints concerning the application process, the U.S. government is considering an extension of this deadline.

Why Preferential Treatment? Politics and Race

Arguably, Haitians receive a much colder welcome in the United States than Cubans. Cubans who are fleeing their island and breaking with a communist regime are in much better shape and generally considered deserving of asylum. If they reach U.S. territory successfully (either by boat or crossing the Mexican border) they receive refugee status and subsequently become LPRs. Critics argue that Washington rationalizes this immigration policy as serving a long-standing national political interest in accordance with the goals of the Cuban-American Lobby. Some suggest that Cubans’ special status serves as a purported blow against the Castro government.

Another explanation for this discriminatory treatment comes from Haiti’s lower average level of education. This initial disadvantage creates apprehension amongst Americans about Haitians’ ability to support themselves and contribute to U.S. society. Although Cuban immigrants still face some discrimination, they come from a nation with a 99.8% literacy rate and are thus perceived as less of a potential burden. Some critics even contend that preferential treatment bestowed upon Cuban refugees is an example of a double standard on the basis of race. TransAfrica, NAACP and the Congressional Black Caucus released an amicus curiae brief designating U.S. interdiction policy as discriminatory and further arguing that Haitians were subject to “separate and unequal” treatment.

The United States cannot continue to justify differences in immigration practices developed toward Haitians and Cubans. While the Cold War clearly ended twenty years ago, the Haiti earthquake has put the country in a state of emergency. Current U.S. policy, however, promotes dangerous travel attempts to enter the U.S. and continues to fuel an unproductive Cold War mentality that is the product of the Cuban-American lobby attempting to garner special treatment for its cause.

Looking Ahead: Environmental Reasons for Concern

Although the USCIS is considering an extension of the July 20th TPS deadline for Haitians, such small modifications emphasize the need for large-scale adjustments. Both TPS and Humanitarian Parole provided for Haitians are temporary emergency measures, while Cubans benefit from a standardized, annual quota set for refugees fearing persecution. Not only does the limited scope of these visas continue the U.S.’s long standing bias against Haitian immigrants; it also serves as an example of insufficient responses to natural disasters on a global scale. Tragic and unfair situations resembling the Haiti earthquake’s aftermath are becoming increasingly common in light of environmental dangers. In 2005, A United Nations group warned of the increasing number of “environmental refugees” that would soon need relocation around the world due to climate change. A 2009 article of the World Resources Institute points to the Carteret Islands as the first case of land deemed uninhabitable due to continuous flooding. Its residents are now relocating to nearby Papua New Guinea. Factual and scientific evidence points to rising sea levels and increased hurricanes. These are both migration drivers that transcend political and economic boundaries that have influenced Washington’s biased treatment of Haitians and Cubans. Further large-scale relocations due to natural disasters must be permanently accounted for in future immigration policy, both in the U.S. and around the world.