The following is being circulated at the request of a group of advocates who have prepared the attached model comment on the interim rule for the Haitian Refugee Immigration Fairness Act. Those of you wishing to send in a comment should note the following:
From: Steven Forester, Equal Treatment Coalition, Iris Gomez, Massachusetts Law Reform Institute and Rangita de Silva, Massachusetts Immigrant and Refugee Advocacy Coalition.
The comment period to the interim rule implementing Section 902 of the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA) will end on Monday July 12, 1999. The HRIFA regulations establish procedures for certain nationals of Haiti who have been residing in the United States to become lawful permanent residents of this country. Through a collective effort of advocates working in Massachusetts and Florida lengthy model comments have been drafted. The attached shorter comment identifies several key areas of concern and urges a generous interpretation of the statute so as not to frustrate the overall will of Congress in passing remedial legislation to redress INS' historic policy of discriminating against Haitian asylum seekers.
We urge all of you to send in a comment. It is critical to have as many advocates weighing in as possible. Our hope is that each organization submit a comment, or adapt the short comment that we have included by putting it on your agency letterhead. You could in the alternative endorse the attached comment that will be submitted by the Massachusetts Immigrant and Refugee Advocacy Coalition (MIRA). If you wish to do so please fax the form below to Rangita de Silva at MIRA at 617-350-5499 by 12 noon on Friday, July 9. If you wish to obtain a copy of more detailed comment please call Steven Forester at 305-754-8834 or Iris Gomez at 617-357-0700 ext.331. Please act immediately, comments are due on Monday, July 12.
RESPONSE FORM:
SIGN-ON TO COMMENT ON THE INTERIM RULE FOR THE HAITIAN REFUGEE IMMIGRATION FAIRNESS ACT
________________________________________________________________
NAME:___________________________________________________________
SIGN NAME ______________________________________________________
TITLE:___________________________________________________________
NAME OF ORGANIZATION:__________________________________________________
ADDRESS:_______________________________________________________
DATE:
Richard A. Sloan
Director, Policy Directives and Instructions Branch
Immigration and Naturalization Service
425 I Street, N.W., Room 5307
Washington, DC 20536
Re: Interim Rule Implementing Section 902 of the Haitian Refugee Immigration Act of 1998 (HRIFA) (INS No. 1963-98).
This comment is submitted in response to the interim rule, referenced above, implementing Section 902 of the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA). We are (community-based organizations, human service agencies and legal service providers) who are concerned that Haitian refugees are treated fairly and equitably.
The Haitian Refugee Immigration Fairness Act was enacted to end two decades of discrimination against Haitian refugees who fled a country devastated by decades of military rule. We commend the Department of Justice for some excellent provisions in the interim rule but are deeply concerned by other provisions of the regulations which adopt an overly narrow approach. HRIFA is remedial in nature, and generous by explicit design. Some of the rules evidentiary provisions are so harsh that large numbers of qualified applicants will unnecessarily be denied relief. This will defeat Congress' remedial purpose.
To fulfill HRIFA's promise, we strongly recommend the following:
1)NATIONALITY SHOULD BE CONCLUSIVELY FOUND FROM INS FILES.
The rules' requirement that applicants submit proof of nationality is unnecessary, expensive and onerous for many Haitians to meet. INS instead should conclusively find Haitian nationality if a pre-1996 INS file exists, e.g. for pre 1996 parolees and asylum applicants (the vast majority of eligible applicants.) DOJ has always treated such persons as Haitian for parole, hearing and other purposes. It is arbitrary and unfair to now make them prove they are Haitian. The conclusive finding should also apply to child dependents -- since Haitian civil law confers Haitian nationality if one's mother or father is Haitian -- and to child principals for whom INS has a pre existing file.
For the few child principals lacking such a file, the secondary evidence provision should be liberal and generous. It should permit letters or declarations and any U.S. or Haitian identity document or letter indicating nationality. The requirement that birth certificates be from the National Archives is burdensome to both applicant and INS. They are often difficult and time consuming to obtain. The March 31, 2000 application deadline may pass, resulting in rejected applications. Unauthorized practitioners of law-a rampant problem in Haitian communities --often charge exorbitant fees to get them, and unscrupulous persons in Haiti sometimes provide fraudulent ones. The rule's insistence on National Archives birth certificates unnecessarily exacerbates these problems.
2) A CONCLUSIVE FINDING OF CONTINUOUS PHYSICAL PRESENCE IS WARRANTED BY HAITIAN SPECIFIC CIRCUMSTANCES.
The rule should permit a showing of presence on "or before" December 31, 1995 to preclude an unintended and unfair result. Continuity of physical presence should be conclusively found given unique demographic, geographic, and political facts which kept applicants from being absent from the U.S. for more than the permitted aggregate of 180 days.
Haitians fled the hemisphere's poorest country, political terror, and an internationally-imposed economic embargo. Thirty years of dictatorship, extreme repression, 800 miles of ocean, and the fear of self deportation precluded unauthorized travel there. Air travel would be documented by an I-94. Applicant travel over U.S. land borders has been non-existent or de minimis due to obvious demographic and geographic factors.
Nearly all HRIFA class members remain poor, have limited formal schooling, and didn't acquire, or know to keep requested documents, which in most cases no longer exist or were lost or discarded in frequent moves after arrival. They usually contributed to bills in others' names and often were unemployed.
HRIFA's focus on pre- 1996 INS parolees and asylum applicants supports the propriety of a conclusive finding. Their INS files will contain official DOJ forms, EAD cards, and/or interview and hearing notices which are prima facie evidence of continuity of presence. Nor did many, if any, children depart for more than the permitted 180 days given their minority and the aforementioned demographic, geographic, and political facts.
Therefore continuous physical presence should be conclusively found for otherwise-eligible applicants, or the rule should permit the applicant's simple declaration to suffice of such presence without disqualifying departures. In the amnesty context, INS regulations generously permitted applicants to establish continuous residence by submitting letters and attestations and "any other relevant document". See 8 CFR 245a.2(d) (3). Here, the applicant's declaration without more should suffice. This would streamline the process, make it accessible, and save applicants and INS unnecessary expense.
3) REFUGEE FRAUD WAIVERS SHOULD BE AVAILABLE TO HRIFA CLASS MEMBERS.
Many who fled persecution in Haiti between 1981 and 1995 came by airplane with no choice but to use invalid documents. Most lack the requisite family relationships to qualify for the "fraud" waiver, although many have U.S. citizen children. Because of the conditions in Haiti during the time they fled and while they remained here, however, they must be considered refugees and therefore eligible under the public interest/humanitarian waiver provision that applies to asylees and refugees.
HRIFA class members fled a brutal military coup and political repression of an unprecedented nature. These bona fide refugees fleeing the political carnage in Haiti had very little choice but flee by air given the fact that the United States Coast Guard interdicted and forcibly returned virtually all boat persons during this period.
4) PROVISIONS FOR UNACCOMPANIED AND ABANDONED CHILDREN SHOULD BE GUIDED BY THE BEST INTEREST OF THE CHILD PRINCIPAL.
The rule unnecessarily requires children to show proof of their manner of arrival. This is onerous and not required by HRIFA.
HRIFA requires unaccompanied children to have "remained without parents" in the U.S. This can and should be broadly interpreted consistently with the provision's humanitarian purpose by permitting the child to demonstrate that s/he continued to lack a parental relationship in the U.S. This should be permitted by the child's simple declaration that the child neither resided in the United States with either parent nor otherwise had a relationship in the United States with either parent.
The rule should permit the child's declaration of orphanage to suffice in light of the unavailability of official documents given decades of chaotic conditions and lack of rule of law in Haiti.
The rule on abandoned children limits relief to children who have obtained formal determinations of abandonment. This unreasonably limits the scope of the statute, unwisely promotes recourse to formal state proceedings and excludes older children who could not obtain such proof because of age jurisdiction rules. The rule should allow for other kinds of proof of abandonment and should include any probative evidence which might be submitted to a state, local or other governmental authority to establish abandonment, if such proceedings were available. Generous rules on the children are needed to implement HRIFA's purpose to adjust their status, which would ensure a more secure a more stable future. This is in the best interests of the children.
5) HAITIANS RELEASED FROM INS CUSTODY BEFORE DECEMBER 31, 1995 SHOULD QUALIFY AS PAROLEES UNDER HRIFA.
The regulations should explicitly state that all Haitians released from INS custody before December 31, 1995, including those released on bond or on their own recognizance, qualify as "parolees" under HRIFA. This view is consistent with the expansive INS definition of parole and HRIFA's clear intent to grant residence to Haitians who sought refuge in the United States before 1996.
Then-INS General Counsel Paul Virtue's August 21, 1998 memo states that "any release of an applicant for admission from custody, without resolution of his or her admissibility, is a parole." HRIFA covers mainly pre-1996 Haitians who were known to INS and were seeking relief. Haitians released on bond or on their own recognizance were in fact applicants for admission and fit squarely within this group.
6) DEPENDENTS WHO WERE CHILDREN WHEN HRIFA WAS ENACTED SHOULD QUALIFY TO ADJUST STATUS.
Dependent children of HRIFA principles are at risk of aging out because of procedural shortcomings and delays in the rule's issuance and implementation. A more generous rule should remedy this by permitting a dependent to qualify if s/he was a child on the date of HRIFA'S enactment and/or by tolling the child's age as of that date until such date as the child's adjustment application is adjudicated. A more generous application of the requirements for adjustment of dependents is consistent with the plain language of the statute and is justified by the fact that HRIFA is remedial legislation meant to undo past injustices in the application of our asylum laws.
INA 241(a) (5) SHOULD APPLY ONLY TO REMOVAL ORDERS AND NOT TO EXCLUSION OR DEPORTATION ORDERS.
INS's view is incorrect that INA Section 241 (a) (5), enacted April 1, 1997, applies to exclusion an deportation orders. On its face, it applies only to removal orders. INS should so interpret it or apply it only to post-March 31, 1997 entries. INS' s view violates Congress's clear intent, constitutional due process rights, and Supreme Court principles disfavoring a law's retroactive application. It would wrongfully bar otherwise-eligible Haitians whom Congress fully intended HRIFA to cover.
Thank you for considering these comments.
Sincerely,
<INSERT YOUR NAME HERE>