[quote]Posted on Tue, Feb. 08, 2005
BY WENDI ADELSON
A few weeks ago, under the shadow of its blockbuster decision striking down mandatory federal-sentencing guidelines, the Supreme Court issued another decision with great implications for Haitian detainees in America. Unfortunately for some, that decision arrived too late.
Consider the case of David Joseph. While still a teenager, Joseph arrived in Key Biscayne in October 2002 as one of 214 Haitians attempting to migrate to America by boat. After his asylum claim failed, Joseph was detained at Krome detention center for more than two years. As his detention wore on, Joseph became severely depressed and withdrawn. Numerous individuals fought doggedly for him to receive humanitarian parole in light of his condition. But his detention continued unabated. On Nov. 29, 2
004, after Joseph had exhausted all avenues of legal redress, the immigration authorities deported him back to Haiti, where Joseph's family had disappeared sometime after his arrival in Miami.
Can such injustice be avoided in the future? The Supreme Court's recent decision in Clark vs. Martínez lends hope. In the case involving Mariel Cubans, the court ruled that illegal immigrants who have been convicted and served their time may not be indefinitely detained. Relying in part upon a prior case prohibiting the indefinite detention of resident aliens, the court said that the government cannot indefinitely detain inadmissible criminal aliens. After Clark, six months is the outer limit absent further justification. The effect of this ruling should ripple widely: Indeed, more than half of the 2,269 illegal immigrants currently in prison have been held longer than six months. Following the ruling, these illegal immigrants must be released after six months have elapsed.
For Joseph, however, the rulin
g amounts to too little, too late. Still, the question lingers: If illegal immigrants who have committed criminal acts may now receive parole as an alternative to detention, will parole be granted to Haitians, as well?
For years, and especially after 9/11, the government has concocted numerous suspect justifications for the interdiction, detention and deportation of Haitian migrants and asylum seekers, few of whom, if any, have committed any crime.
To be sure, this is not the sole fault of the administration. Through recent legislation, Congress has authorized the Secretary of Homeland Security to detain an alien for successive six-month periods when they might threaten national security or the safety of U.S. citizens. If this threat to national security is broadly defined and applied to Haitians, then Congress itself vitiates the ameliorative effect of Clark vs. Martinez on Haitian indefinite detention.
But the Clark decision signifies that it is time to revisit the argument against inde
finite detention of Haitians. In Joseph's case, the government asserted that, in the interest of national security, he could not be paroled into the United States. Two arguments were offered:
• That denial of parole serves a deterrent and without it, Haitians would flock to U.S. shores, thereby overburdening the Coast Guard and diverting its attention away from threats to our national security. Certainly, as a result of floods, upheaval and withering economic conditions, migration pressure persists. However, no evidence exists that detention serves as a deterrent to these otherwise powerful forces for human migration.
• That third-country nationals (Pakistanis, Palestinians, etc.) are using Haiti as a launching ground to enter and cause destruction in the United States. This contention, too, is without reason. A recent Freedom of Information Act request revealed that the government found no credible support for the idea that Haiti is a breeding ground for U.S.-bound terrorists.
aiti is not a country terribly rich in racial diversity, most officials would be able to distinguish between a Haitian and someone of Middle Eastern or South Asian descent. Furthermore, Clark now permits parole of illegal immigrants rather than their prolonged or indefinite detention.
After Clark, the government's justifications for the detention of Haitian nationals no longer hold water. We have already wronged David Joseph. Let's prevent injustice to others like him.
Wendi Adelson, a second-year law student, is a clinical intern at the Center for Ethics and Public Service at University of Miami Law School.[/quote]
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