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A System Designed to Fail Haitians

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By Eleanor Acer, Director, Refugee Protection Program

Earlier this week, the Associated Press reported that a boat carrying 62 Haitians was intercepted by the Royal Bahamas Defense Forces. The Prime Minister for the Bahamas said that its passengers will be returned directly back to Haiti, and a U.S. Coast Guard spokesman stated that U.S. ships would be available to repatriate the Haitians if needed.

We have all seen enough on television to have some idea of the challenges awaiting Haitians who are returned to their country. Conditions in Haiti remain unbearable for many. Nearly a month after the quake, there is still a shortage of basic necessities, including food, water, and shelter. The potential death toll is staggering and there is a shortage of medical staff to deal with the injured. There is no way to know what other difficulties or particular risks might face some Haitians who are returned. While it may be no surprise that some Haitians have opted to flee by boat, what may come as a surprise to some is the U.S. policy for dealing with those who do.

In recent statements to the media, the U.S. has made clear that it is assessing various "options" if Haitians try to flee their country by sea. According to these reports, as well as the military or unnamed government officials who are quoted in them, the U.S. military is preparing its migrant facilities at Guantanamo Bay to potentially house several hundred Haitians. Given Guantanamo's more recent history, many Americans may not realize that the U.S. military base there has long been used - in different ways at different times - to hold refugees who cannot be returned to persecution or harm in Cuba and Haiti.

The U.S. has a long history of interdicting asylum seekers and migrants at sea - a history that has triggered international criticism from the Inter-American Commission on Human Rights and others. In the last three years alone, according to the U.S. Coast Guard, the United States has repatriated nearly 5,000 Haitians and 6,000 Cubans.

U.S. maritime interdiction policies have been developed as reactions to situations regarded as crises - crises involving persecution, human rights abuses, political violence, economic deprivations, or some combination of the above. The U.S currently does not have real interdiction standards - effective, fair, transparent and non-discriminatory standards - to guide its actions and ensure compliance with its commitments under refugee and human rights conventions.

U.S. interdiction policies are flawed. And although these standards are flawed for all who attempt to come to the U.S. by sea, including from Cuba and China, U.S. interdiction policies are particularly flawed for Haitians. For instance, Haitians are not informed, either in writing or verbally, that they can express any fear or concern about repatriation. By contrast, Cubans are at least told that they can raise any concerns with a U.S. officer.

And even if a Haitian asylum seeker does attempt to come forward and voice a concern about return, the U.S. does not require that Creole-speaking officers or translators be present. This leaves U.S. officers without an effective way to understand if an individual fears return and should be given a screening interview to identify potential protection concerns.
This non-process is known as the "shout test" - because the only way for a Haitian migrant to potentially get access to a screening interview to shout or wave their hands or somehow make their fear of return known by physical action. To the extent that it is a system, it's a system that is designed to fail.

I recognize that the challenges facing the U.S. government are difficult ones. There are genuine concerns about the safety of Haitians and others who try to reach the U.S. or other countries by boat. There are also ever-present political fears associated with the inevitable news coverage that a boat of Haitians or Cubans arriving in Florida would receive.

But it is long past time for the United States to revisit these flawed policies and to develop real standards instead of continuing to develop ad hoc policies in reaction to various crises. These standards should comport with this country's human rights commitments and its values. For example, the U.S. should:
  • Abandon the "Shout Test"
  • Interview each individual who is interdicted. Short interviews will help ensure the US identifies anyone who may require a protection interview, and are also essential to identify urgent medical concerns, information about any smuggling operations, whether individuals may be U.S. citizens or legal residents and whether children are unaccompanied or at risk of trafficking.
  • Ensure the presence of by trained and fluent translators if U.S. officers are not fluent in the language spoken by those who are interdicted.
  • Provide each individual - regardless of nationality - with some simple information that informs them that they can express any concerns or fears of return to a U.S. officer in a confidential manner. They should be asked a few basic questions so that the U.S. can be assured that it is not returning individuals to persecution, torture or other harm in violation of its human rights obligations.
  • Conduct protection interviews and protection screening interviews in an appropriate manner and in appropriate locations - rather than by telephone, on ships, in non-confidential settings or in inaccessible locations.
  • Not prevent individuals who are determined to be eligible for protection from uniting with their families in the U.S. or elsewhere.

The United States should act now to fix its flawed interdiction policies. There is too much at stake to let chance and ad-hoc policies dictate our approach to fulfilling our human rights commitments.