Legal, 1980-2007, undated

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Scope and content:

The Legal series contains files related to NCHR's work on broad legal cases effecting US immigration policy and human rights accountability in Haiti, as well as legal support NCHR provided to individuals, largely related to immigration and asylum in the US.

Biographical / historical:

Special Note On Immigration and Legalization in the NCHR records

Immigration and legalization are a common thread throughout NCHR's existence and in its historical records.

In June 1982 Judge Eugene Spellman ruled against the Reagan Administration's broad Haitian detention order, freeing the 3,500 Haitian held in detention centers throughout the country. Spellman addressed the Administration's concern that, once released, Haitian asylum-seekers would just disappear into the ether by giving NCHR the responsibility to a) report to the court on a regular basis whether the Immigration courts complied with the ruling (hearings could not proceed if the Haitian asylum-seekers did not have legal representation) and b) secure legal assistance nationwide for the Haitian asylum-seekers. NCHR was uniquely situated to do so, because its membership consisted of voluntary agencies (USCC, LIRS, CWS, etc.) that agreed to resettle the released asylum-seekers. Accordingly, NCHR worked with these groups as well as law firms and legal groups (ACLU, National Lawyers Guild, etc.) to coordinate legal representation efforts, train pro bono lawyers in the art of Haitian asylum issues and representation, and communicate with immigration courts around the country on hearings. Spellman's 1982 ruling was crucial to NCHR's evolution and led to NCHR eliminating "emergency" from its name.

The aforementioned programs and activities lasted until 1986. In that that year, Congress passed and President Reagan signed the Immigration Reform and Control Act (IRCA). The legislation had four provisions, one of which was called Cuban-Haitian Adjustment (CHA), which was in fact more Haitian than Cuban. This was a far-reaching provision that was adopted primarily thanks to NCHR. CHA granted Haitian asylum-seekers in the USA since before January 1, 1982 permanent residence (green cards) and made the status retroactive to January 1, 1982. In other words, any Haitian who qualified for this provision could obtain a green card in 1987, and immediately fulfill the 5-year residency requirement that made him or her eligible for US citizenship through naturalization. An estimated 40,000 Haitian refugees benefited from the legislation. At this point NCHR switched to training lawyers and advocates on the law's provisions and successful representation.

While these laws and reforms were being enacted in the US, Haitians kept fleeing the despotic regimes that succeeded the Duvaliers. Thus NCHR's investigating and reporting on human rights conditions, educating the US Congress and the Administration in order to influence policymaking and lawmaking continued apace. In 1988, NCHR extended human rights monitoring to the Dominican Republic and the Bahamas, and initiated a monthly bulletin, Haiti Insight. The human rights reporting was key to providing substantive support to Haitian asylum claims. Over time, the bulletin became required reading for US asylum adjudicators. In 1992, the Haitian military took power through a coup d'état and exiled President Aristide. Shortly afterwards, thousands of Haitians took to the high seas and were intercepted by the US Coast Guard and warehoused in the US naval military base at Guantanamo, Cuba (GTMO). Once again, NCHR was at the forefront of advocating for Haitian asylum-seekers. The official records of the litigation undertaken on behalf of the Haitian refugees will not direct the public's attention to NCHR's key role in this effort, but it was substantial. For strategic and practical reasons, the groups involved in the litigation chose a member organization -- the Haitian Centers Council – as the lead organization because it was headquartered in Brooklyn where NCHR and the Yale Law School filed suit on behalf of the Haitians held in GTMO. By 1994, NCHR had secured the release of about 11,000 Haitian refugees and the right for them to seek asylum on U.S. soil. About 3 years later, NCHR secured legislation granting them and thousands of others (an estimated 50,000) legal permanent residence (green cards). NCHR challenged the U.S. Interdiction-at-sea policy all the way to the Supreme Court, which unfortunately decided that the President had quasi-absolute powers outside of U.S. borders.

It is important to note that for purposes of immigration enforcement, the U.S. border steadily receded from 12 miles to 3 miles (under Reagan), from 3 miles to sure footing on land (under Clinton), whereas a slot machine or a detainee in GTMO is not in US territory unless in the 12-mile limit. Note also that Customs and Border Patrol has a 100-mile wide authority to patrol on each side of the border, i.e. for purposes of immigration enforcement. All of New York City (its 8 million + residents) is within the border.

In short, NCHR's legalization and immigration efforts, activities, and programs may have shifted focus and administrative and programmatic location over the years, but they always were part of NCHR's DNA. [source: Jocelyn "Juny" McCalla]

Arrangement:

The Series is arranged into four subseries. The Haitian Government Cases subseries documents NCHR's and its partners' legal efforts around accountability, reparations, and truth-seeking in Haiti. The Individual Cases subseries contains material related to NCHR's legal advocacy on behalf of individuals, largely around immigration/asylum issues in the US, and human rights and civil rights violations in Haiti. The Haitian Centers Council vs. McNary subseries contains documents related to this seminal 1992 case that sought to gain access for legal advocacy and representation purposes to Haitian immigrants being held at the US Naval Base in Guantanamo Bay and on board US Coast Guard vessals, and to bar the US Coast Guard from repatriating "screened" refugees. Finally, the Other Legal Materials subseries documents various legal projects largely relating to immigration and asylum.

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