Amicus Curiae Brief — Sale v. Haitian Centers Council, Inc.

No. 92-344 DEC 21 1992

Gilhec Ur she CLERK

Fes ree |

|

|

J

IN THE

Supreme Court of the United States

OctTosper Term, 1992

GENE McNARY, COMMISSIONER, IMMIGRATION

AND NATURALIZATION SERVICE, ET AL.,

Petitioners,

Vv.

HAITIAN CENTERS COUNCIL, INC., ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF AMICI CURIAE AMERICAN JEWISH

COMMITTEE AND ANTI-DEFAMATION LEAGUE

IN SUPPORT OF RESPONDENTS

RutH LANSNER *Davip MARTIN

STEVEN M. FREEMAN University of Virginia

Anti-Defamation League School of Law

823 United Nations Plaza Charlottesville, Virginia 22901

New York, New York 10017 (804) 924-3144

(212) 490-2525

SAMUEL RABINOVE

American Jewish Committee

165 East 56th Street

New York, New York 10022

(212) 751-4000

Attorneys for Amici Curiae

* Counsel of Record

TABLE OF CONTENTS

Page

pe, ee iii

ee ee l

SUMMARY OF ARGUMENT ........0cccccccess 3

FAS ne ae 4

I. RECOGNIZING THAT THIS COUNTRY AND

OTHERS RESPONDED WITH SHAMEFUL

INADEQUACY TO REFUGEES FROM

FASCISM, THE UNITED STATES SINCE

WORLD WAR II HAS STRIVEN TO REACT

GENEROUSLY, EVEN IN THE CASE OF

MASS MEGGRATIONS. ......ccccccccccees 4

A. Refugees in Europe, Rejection in

eee Te ee ee 5

B After World War II: Learning Some of

PE 6 64-06% s0'sb 'u0b.ee0 e268 10

wd Refugees from European Communism ... 10

D. Cuban Refugees: The United States Joins

the Ranks of First Asylum Countries ... 13

B. Cubans and Haitians: Radically Unequal

ES eee 17

il

Page iii

Southeast Asians: An Ongoing Legacy ad

of the Vietnam War.... 19 TABLE OF AUTHORITIES

G. Central American Refugees: Eventual Page(s)

Safe Haven for Some... .___ 22

‘cree —

II. EVEN IN PERIODS WHE

N THE UN

STATES HAS BEEN VOLVED pe American Baptist Churches vy.

RESPONDING TO MASS MIGRATIONS. IT - Thornburgh, 760 F. Supp. 796

HAS PAID CAREFUL ATTENTION TO EE Ee 23

CUA NO THENING THE LEGAL

NTEES FOR RE ;

,) : PUGEES. .......... 24 *Statutes, Treaties, Regulations

hi gna OF U.S. RESPONSE TO MASS ;, ,

wae o Penpapetp gn SINCE WORLD Convention relating to the

Guana bp THAT THE LEGAL Status of Refugees, done

NTEES ENFORCED BY THE COURT July 28, 1951, 189 U.N.T.S.

md oo ARE ENTIRELY CONSISTENT CEMMMECEE Re Scscccscccscccccese 12, 24, 26

movVenenere LISM ABOUT suUCH Cuban Adjustment Act of

9 CCC 866s eeu uae Oe 26 1966. Pub. L. No. 89-732,

CONCLUSION .........., 28 aoa SECS. ab amnented,

(an Ee

Displaced Persons Act of

1948, Pub. L. No. 774,

es ccc ccc ccc ccccccccces 10

Exec. Order 12,779, 56 Fed.

MS MED oc cc ccc cers cccccccees 17

Exec. Order No. 12,807,

57 Fed. Reg. 23,133 (1992)

55 Fed. Reg. 30,674 (1990)

(principally codified in 8

C.F.R. part 208 (1992)) .............

Immigration Act of 1924,

Pub. L. No. 139, 43 Stat.

153 (1924)

Immigration Act of 1990

§ 303, 8 U.S.C. § 1254a

note (Supp. Ill 1991)

Immigration and Nationality

Act § 212(d)(5), 8 U.S.C.

§ 1182(d)(5) (1988)

Immigration and Nationality

Act § 243(h), 8 U.S.C.

fF EP UEEED SG adeeccucéccees

Immigration and Nationality Act

§ 244A, 8 U.S.C. § 1254a

(Supp. Ill 1991)

Immigration and Nationality

Act §§ 411-414, 8 U.S.C.

§§ 1521-24 (1988)

Immigration and Nationality

Act Amendments of 1965, Pub.

L. No. 89-236, § 3, 79 Stat.

911, 913 (amending former

section 203(a)(7) of the INA)

sasnaeeees en ae

*-*

ee@eeead€ 6 @

See 424 4

*“_* © *# *

rea eee 2s 6 62 28 2 &

. *_*-*

*“*-e.

reece ecae@ 66 8 @

*_* *

Page(s)

3, 26, 27

Immigration Reform and

Control Act of 1986, Pub.

Migration and Refugee

Assistance Act of 1962.

Pub. L. No. 87-510, 76

Stat. 121 (codified, as

amended, at 22 U.S.C.

§§ 2601-2606 (1988)) ----- sss rr

Organization of American

States resolution,

OEA/Ser.F/V.1, MRE/RES.

1/91 corr. 1 (3 Oct. 1991). .--- ese:

Organization of American

States resolution,

OEA/Ser.F/V.1, MRE/RES.

2/91 (8 Oct. 1991) .--- eer

Presidential Determination

No. 93-1, 57 Fed. Reg.

47.253 (Oct. 2, 1992) ..---- ss

Protocol relating to the

Status of Refugees, done

Jan. 31, 1967, 606 U.N.T.S.

267, 19 U.S.T. 6223,

T.1.A.S. No. 6577 ..-----ss007t''

‘eT wreeeeah & Se Ae.

nmeeosoeoeoa oe

sean eoae oe oene 8”

Page(s)

17

vi

Pub. L. No. 770, 54 Stat.

866 (1940)

Refugee Act of 1980, Pub.

L. No. 96-212, 94 Stat.

102 (codified in various

sections of 8, 22 U.S.C.)

Refugee-Escapee Act of

1957, Pub. L. No. 85-316,

71 Stat. 639

Refugee Relief Act

of 1953, Pub. L. No.

203, 67 Stat. 400

Truman presidential directive,

reprinted in 13 Dept.

of State Bull. 981 (1945)

Other Authorities

Thomas Alexander Aleinikoff

and David A. Martin,

Immigration: Process and

Policy (2d ed. 1991)

vii

Page(s)

Congressional Research

Service, 96th Cong., 2d

Sess., Review of U.S.

Resettlement Programs and

Policies (Comm. Print,

Sen. Comm. on the

Judiciary, 1980)... 2.6.6 ee eee ee eens 11

Pamela Constable, Dateline

Haiti: Caribbean Stalemate,

89 Foreign Policy 175 (1992-93) .... 6... - seen eens 17

Ronald Copeland, The Cuban

Boatlift of 1980:

Strategies in Federal

Crisis Management, 467

The Annals 138 (1983) .... 0.2... eee eee eee eens 16

John Higham, Strangers

in the Land: Patterns of

American Nativism 1860-1925 . 2... 6 0 6 5

1 Louise Holbom, Refugees:

A Problem of Our Time: The

Work of the United Nations

High Commissioner of

Refugees (1975)... 0. eee tenes 24

H.R. Rep. No. 96-781, 96th

Cong., 2d Sess., at 20

(Conference Report on the

Refugee Act of 1980)... 2... 66. eee eee eee 26

Vili

Page(s)

Maldwyn Allen Jones,

American Immigration (1960) .... 0.0.0... 5

Natalie Hevener Kaufman &

David Whiteman, Opposition

to Human Rights Treaties in

the United States Senate:

The Legacy of the Bricker

Amendment, 10 Human Rights

Q. 309 (1988)

Lawyers Comm. for Human

Rights, Refugee

Refoulement: The Forced

Return of Haitians Under

the U.S. Haitian—

Interdiction

Agreement (1990).

Gil Loescher and John

A. Scanlan, Calculated

Kindness: Refugees and

America’s Half-Open Door,

1945-Present (1986)

March 31 Asylum Deadline

Approaches for ABC

Guatemalans, 69 Interpreter

Releases 348 (1992)

ix

Page(s)

Michael R. Marrus, The

Unwanted: European Refugees

in the Twentieth Century _

§1-B81, 122-158 (1985) .... 6. eee ee ees

David A. Martin, The

Refugee Act of 1980:

Its Past and Future,

in Transnational Legal

Problems of Refugees,

1982 Michigan Yearbook

of International Legal ee

eh , Pe eee eee REE

Message from the President

of the United States

transmitting the Protocol

Relating to the Status of

Refugees, Done at New York

on January 31, 1967,

Exec. K, 90th Cong., 2d Sess.,

we MA CIDER)... ccc ccc cenceneeeeseeeesess

Protocol Relating to

Refugees, Exec. Rept. No. 14,

90th Cong., 2d Sess. (1968)

(Committee report and

tiearing transcript,

considering the Protocol) .. 6... 665s sere e

Refugee Reports,

October 30, 1992 .. 6.0... eee eee eee

Page(s)

Sen. Alan K. Simpson, We

Can't Allow All Salvadorans

to Stay, Wash. Post,

ee Ns ce cee sce eset escesuadsess 22

Barbara McDonald Stewart,

United States Government

Policy on Refugees from

ne wb 6 www ALS 6 66.8 0 Oe 7,9

Gordon Thomas and Max

Morgan Witts, Voyage

of the Damned (1974)

United Nations High

Commissioner for Refugees

Comprehensive Plan of

Action, reprinted in

1 Int'l J. Refugee

Law 574 (1989)

The United States as a

Country of Mass First

Asylum: Hearing Before the

Subcomm. on Immigration

and Refugee Policy of the

Sen. Comm. on the

Judiciary, 97th Cong.,

Ist Sess. 3 (1981)

(testimony of Thomas O.

Enders, Assistant Sec’y

of State)

xl

U.S. Department of State,

Office of the U.S.

Coordinator for Refugee

Affairs, Proposed Refugee

Admissions for Fiscal Year

1993 (Washington,

D.C.. June 1992) ..----->

U.S. Will Defer Departure

of Salvadorans, but Will Not

Extend TPS, 69 Interpreter

Releases 600 (1992) ..----

| Weekly Comp. of Pres. Doc.

364-67 (Oct. 3, 1965) ...---

| Weekly Comp. of Pres.

Doc. 470-74 (Nov. 15, 1965)

David S. Wyman, The

Abandonment of the Jews:

America and the Holocaust

1941-1945 (1984) ..--->>

David S. Wyman, Paper

Walls: America and the

Refugee Crisis

Page(s)

**

“eee

ee eS ee ee Oe

es fa

. 22

. 14

1938-1941 (1968)... eee eres

xii

Norman L. Zucker and Naomi

Flink Zucker, From Immigration

to Refugee Redefinition:

A History of Refugee and

Asylum Policy in the United

States, in Refugees and

the Asylum Dilemma in the

West 54 (Gil Loescher ed. 1992)

Norman L. Zucker and

Naomi Flink Zucker, The

Guarded Gate: The Reality

of American Refugee Policy

oa

Norman L. Zucker and

Naomi Flink Zucker, The

1980 Refugee Act: A 1990

Perspective, in Refugee

Policy: Canada and the

United States 224 (Howard

Adelman ed. 1991) ......_._..

Page(s)

sakes 6 60 wh aiglone sea. 5

No. 92-344

In THE

Supreme Court of the United States

OCTOBER TERM, 1992

GENE McNARY, COMMISSIONER, IMMIGRATION

AND NATURALIZATION SERVICE, ET AL..,

Petitioners,

Vv.

HAITIAN CENTERS COUNCIL, INC., ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF AMICI CURIAE AMERICAN JEWISH

COMMITTEE AND ANTI-DEFAMATION LEAGUE

INTEREST OF AMICI

The American Jewish Committee (“AJC”) is a national

organization which was founded in 1906 for the purpose of

protecting the civil and religious nghts of Jews. Since all

American Jews are either immigrants or descendants of

immigrants, if not refugees or descendants of refugees, AJC has

always supported generous interpretations of immigration and

refugee laws and policies. AJC, therefore, through the years has

joined with other amici curiae in numerous cases involving such

issues before the courts. The case at bar, on behalf of interdicted

Haitians who are innocent victims of tragic circumstances, affords

us an Opportunity to do so once again.

The Anti-Defamation League (“ADL”) was organized in

1913 to advance good will and mutual understanding among

Americans of all creeds and races, and to combat racial and

religious prejudice in the United States. ADL is vitally interested

in protecting the civil rights of all persons and in assuring that

every individual receives equal treatment under the law regardless

of his or her race, religion, or ethnic origins.

As an organization rooted in the Jewish community, ADL

is particularly sensitive both to political oppression and to the

plight of refugees desperately seeking safe haven. ADL’s

involvement in this case is consistent with the mandate of its

charter “to seek justice and fair treatment for all.””*

° Amici gratefully acknowledge the generous and insightful assistance

of Norman L. Zucker and Naomi Flink Zucker, of the University of

Rhode Island, in the preparation of this brief.

SUMMARY OF ARGUMENT

Amici submit this brief to assist the Court in placing 4

recent outflow from Haiti in historical gneve se a _

i no means the first time that the ni

che to mass migration of people in meena ag mre

i j with e

demonstrates that this nation can cope .

logistical difficulties while still complying with ot “_

intemational standards of nonrefoulement, as em i

"§ 243(h) of the Immigration and Nationality Act (INA).’ Never

the challenges

has this country, no matter how grave the

poner by mass migration, adopted a systematic policy of direct

ca to the country of origin without even pon 4 ope

identi se who are in genuine danger. For ourt |

pig yor Order complies with | -

odest but su

international law would gravely damage a modest t

soba effort, of which the United States has historically been :

leader, to leam from the world’s shamefully inadequate ogee

to Nazi victims—an effort enshrined in domestic

international legal commitments.

1. 8 U.S.C. § 1253(h) (1988).

2. Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (1992).

ARGUMENT

RECOGNIZING THAT THIS COUNTRY AND OTHERS

RESPONDED WITH SHAMEFUL INADEQUACY TO

REFUGEES FROM FASCISM, THE UNITED STATES

SINCE WORLD WAR II HAS STRIVEN TO REACT

GENEROUSLY, EVEN IN THE CASE OF MASS

MIGRATIONS.

Until the 1940s, the United States did not generally

distinguish between refugees and immigrants. After World War

Il, legislation and practice increasingly incorporated that

distinction, and the United States since then has granted haven to

large numbers of refugees. Their arrivals were sometimes

disorderly, their cultures perhaps unfamiliar, but every group did,

in time, become integrated into the country, did weave itself into

the American tapestry. It is a part of national history in which

most Americans take a justifiable pride. But the incorporation of

refugee protection into our overall system for admission of aliens

has been long in coming, and it has followed an uneven course.

Much of the progress reflected lessons leamed from the

disheartening experience of U.S. policy in the 1930s and 1940s.’

3. For more extensive discussions of the evolution of United States

refugee policy, see, e.g., Norman L. Zucker and Naomi Flink Zucker,

The Guarded Gate: The Reality of American Refugee Policy (1987);

Gil Loescher and John A. Scanlan, Calculated Kindness: Refugees

and America’s Half-Open Door, 1945-Present (1986); Norman L.

Zucker and Naomi Flink Zucker, From Immigration to Refugee

Redefinition: A History of Refugee and Asylum Policy in the United

(continued...)

A. Refugees in “urope, Rejection in America

There have always been, in the United States, strains of

prejudice, nativism, and xenophobia. In the first half of this

century, those strains were allowed to dominate our immigration

policy, resulting in the refusal of the United States to open its

doors to refugees from revolution and genocide.

Only in 1875 did Congress pass the first systematic federal

restrictions on immigration. Early legislation relied on qualitative

screening to keep out the undesirable, such as prostitutes or

criminals, but agitation mounted for more rigid restrictions.

including numerical ceilings. Restrictionist objectives were finally

attained in the 1920s, with the enactment of national origins

quotas. The Immigration Act of 1924, more draconian than any

previous legislation, set the annual quota for each nation at two

percent of the U.S. population descended from that nationality,

as determined by the 1890 census. That 34-year-old census was

chosen as the base year because at that time few southem and

eastem Europeans had come to America. Xenophobia had

prevailed.”

3.(...continued)

States, in Refugees and the Asylum Dilemma in the West 54 (Gil

Loescher ed. 1992); Norman L. Zucker and Naomi Flink Zucker, The

1980 Refugee Act: A 1990 Perspective, in Refugee Policy: Canada

and the United States 224 (Howard Adelman ed. 1991); David A.

Martin, The Refugee Act of 1980: Its Past and Future, in

Transnational Legal Problems of Refugees, 1982 Michigan Yearbook

of International Legal Studies 91.

4. Pub. L. No. 139, 43 Stat. 153 (1924).

5. See John Higham, Strangers in the Land: Patterns of American

Nativism 1860-1925, at 300-330; Maldwyn Allen Jones, American

Immigration 247-77 (1960).

Ironically, as the United States was thus closing its gates

more tightly, the plight of refugees in Europe was becoming

critical. Refugees were being spawned by the Soviet Revolution

and its subsequent counterrevolutions, and Turkish persecution

drove out Armenians in search of haven. But it was Adolf

Hitler's capture of total power in Germany that impelled the

largest flood of refugees—a flood that inspired, in many other

countries, not compassion but fear.”

The United States responded to the refugee crisis of the

1930s, as did most other countries, by creating barriers to

entrance. America would not be invaded by European refugees.

Humanitarian considerations could not prevail over the engrained

premises of the national-origin quota system. The face of

restriction in that era sat solidly on a body of time-honored

economic argument and unyielding prejudices.

When there had been an abundance of jobs and a need for

labor, immigrants had been welcome. With that era's scarcity of

jobs, however, immigrants—and refugees were simply thought of

as immigrants—were no longer welcome. America, confronting

massive unemployment and social and economic breakdown, was

reluctant to share with the stranger.

Economic arguments were reinforced by one-hundred-

percent Americanism. Nativism, which had recently thumphed in

the quota legislation, remained a vigorous force throughout the

Depression and the war years, and was buttressed by anti-

Semitism. Many of the refugees were Jews, and anti-Semitism

6. See Michael R. Marrus, The Unwanted: European Refugees in the

Twentieth Century 51-81, 122-158 (1985).

became a significant factor in opposing refugees, and in the

defeat of legislation to admit refugees.’

For example, the 1939 Wagner-Rogers bill proposed the

admission of twenty thousand German refugee children, under

age fourteen, on a nonquota basis over a two-year period. To

avoid provoking anti-Semitism, the bill was deliberately termed

a German, rather than a Jewish, refugee children’s bill, while the

public committee created to support the bill was carefully called

the Non-Sectarian Committee for German Refugee Children. It

enjoyed a major outpouring of humanitarian support. But the

humanitarian outpouring met a wall of nativist resistance. Despite

the nonsectarian cast of its title and the restrained modesty of its

objectives, most people perceived the bill as intended for the

rescue of Jewish children. The refugee-children bill died in

committee.* One year later, Congress managed to pass a measure

to allow the entrance of British children.’

Official Washington had followed, or perhaps shaped, public

opinion. The Department of State had opposed the children’s bill.

The Labor Department had waffled, neither supporting nor

opposing it. Franklin D. Roosevelt, in the White House, had

7. See David S. Wyman, The Abandonment of the Jews: America and

the Holocaust 1941-1945, at 6-9 (1984).

8. See Barbara McDonald Stewart, United States Government Policy on

Refugees from Nazism: 1933-40, at 518-47 (1982).

9. See The Guarded Gate, supra note 3, at 19-21. The measure that

passed provides in general terms for the screening and transport of

“refugee children,” Pub. L. No. 770, 54 Stat. 866 (1940), but the

legislative history made clear that the authority would be used for

children from Britain endangered by German bombardment. See

David S. Wyman, Paper Walls: America and the Refugee Crisis

1938-1941, at 116-28 (1968).

remained eloquently silent. No less than the Congress, the

executive formulated refugee policy. The Congress did so by

perpetuating legislative barriers. The executive constructed, in

historian David S. Wyman’s felicitous term, “paper walls.”'°

After the war began, the State Depa *ment impeded the intake of

refugees by imposing stricter administrative requirements. The

department instructed its overseas processing staff to withhold

visas from anyone about whom they had “any doubt whatsoever.”

A circular telegram amplified the new policy:

|A]lthough a drastic reduction in the number of quota

and nonquota immigration visas issued will result

therefrom and quotas against which there is a heavy

Gemand will be underissued, it is essential to take every

precaution at this time to safeguard the best interests of

the United States."

The paper walls, under Assistant Secretary Breckenridge

Long, grew insurmountable. In a memorandum, he spelled out his

modus operandi:

We can delay and effectively stop for a temporary

period of indefinite length the number of immigrants

into the United States. We could do this by simply

advising our consuls to put every obstacle in the way

and to require additional evidence and to resort to

vanious administrative advices which would postpone

and postpone and postpone the granting of the visas.'”

10. dd.

ll. dd. at 174.

12. Jd. at 173.

Long's insistence on calling the harassed people fleeing for their

lives immigrants rather than refugees cloaked a harsh policy in

a facade of reasonableness.

To a large extent, administrative reluctance to admit refugees

reflected an unwillingness to recognize that for the refugees

future dangers were quite real. In a well-known and tragic

incident in 1939, the SS St. Louis sailed from Hamburg with

hundreds of passengers seeking escape from Germany. Denied

permission to discharge its human cargo at its original destination

in Cuba, the ship proceeded to the Florida coast. An American

Coast Guard cutter patrolled the waters there to prevent anyone

on the refugee ship from trying to reach shore.'’ The desperate

passengers sent a wire to President Roosevelt, but he did not

respond. The State Department, fearing that a precedent would be

set, ruled that no one without a proper visa could land; none of

the passengers had visas valid for the United States. The Sz.

Louis ultimately retumed to Europe, where some of its passengers

eventually became part of Hitler's “final solution.”'* Even in

this stunning failure of American compassion, however, the

United States government did not forcibly return the rejected

asylum seekers directly to the government they had so recently

escaped.

The: will of the United States to admit refugees had been

tested, and we had failed the test. Fear, prejudice, indifference,

inertia, economic distress had, in the end, formed a wall, a wall

that even the highest government officials had no desire to

breach.

13. Stewart, supra note 8, at 442.

14. For the story of the SS St. Louis, see Gordon Thomas and Max

Morgan Witts, Voyage of the Damned (1974).

10

B. After World War II: Learning Some of the Lessons

Revulsion at the full scope of Nazi persecution, fully

revealed upon the defeat of the Axis powers, started this country

on a long, uneven effort to build a better legal structure that

might guarantee responsiveness to future refugee needs. President

Harry S. Truman initiated this evolution. With the surrender of

Hitler's military, Truman was faced with an old phenomenon

under a new name -- displaced persons (DPs). Responding to

their misery, he issued a presidential directive that eased their

immigration under existing quotas.‘ But the directive could

cover only a small number of DPs, and Truman asked Congress,

for humanitarian and foreign policy reasons, to enact DP

legislation. The Displaced Persons Act of 1948 was the first

significant refugee legislation in American history.'* Amended

in 1950 and extended in 1951, it made possible the admission of

more than four hundred thousand refugees.'’ Though the

numbers of needy people displaced in Europe in the wake of

global war might have appeared overwhelming, America did not

shrink from a major resettlement effort.

C. Refugees from European Communism

The pressures—guilt and humanitarianism—that eased the

admission of the DPs were soon supplemented by other concems,

as Communist expansionism gave refugees Strategic importance.

Refugee-escapees who “voted with their feet” against

Communism were seen to offer proof of the inadequacies of the

15. Reprinted in 13 Dept. of State Bull. 981 (1945). See Loescher and

Scanlan, supra note 3, at 5-6.

16. Pub. L. No. 774, 62 Stat. 1009.

17. From Immigration to Refugee Redefinition, supra note 3, at 57-58.

Communist system and the strength of democracy. Both the

Truman and Eisenhower administrations encouraged refugees to

come to the United States. Congress also was committed to

encouraging escape from Communism, even to the extent of

abandoning established numerical limits and quotas and allocating

funds for escapee assistance.'*

The Refugee Relief Act (RRA) of 1953, Pub. L. No. 203, 67

Stat. 400, relaxed United States immigration law. Congress

ignored the long-established national quotas and instead

authorized the issuance of over 200,000 nonquota visas for

persons escaping from Iron Curtain countries -- something it had

been unwilling to do for 20,000 children just 14 years earlier. In

1956 the President authorized the first mass parole of refugees

into the United States. That year, just before the expiration of the

RRA, Soviet troops crushed an anti-Communist revolt in

Hungary, sending thousands of Hungarians into neighboring

Austria. Some were given visas under the RRA; others, however,

at President Eisenhower's direction, were admitted under the

theretofore obscure parole power of the Attomey General.’”

President Eisenhower authorized their admission to the United

18. See Congressional Research Service, 96th Cong., 2d Sess., Review of

U.S. Resettlement Programs and Policies 7-11 (Comm. Print, Sen.

Comm. on the Judiciary, 1980).

19. The parole power, long an administrative practice, was given statutory

sanction in § 212(d)(5) of the Immigration and Nationality Act (INA),

now codified at 8 U.S.C. § 1182(d)(5) (1988). On the evolution of the

parole power, its use for refugee programs, and the controversy over

that use, see Thomas Alexander Aleinikoff and David A. Martin,

Immigration: Process and Policy 347-52, 709-10 (2d ed. 1991).

States, and the American public mustered a warm welcome for

over thirty thousand Hungarian “freedom fighters.””°

The Refugee-Escapee Act of 1957, Pub. L. No. 85-316. 7!

Stat. 639, which admitted still more Hungarians, significantly

defined refugee-escapees as victims of racial, religious, or

political persecution who were fleeing Communist or Communist-

dominated countries, or a country in the Middle East. This

ideologically and geographically limited definition, perpetuated

in the 1965 amendments to the INA,”' would stand until the

Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102. replaced

it with a more neutral definition based on the UN Convention

-and Protocol relating to the Status of Refugees.”

But even under the Refugee Act, the number of refugees

admitted to the United States from the Soviet bloc remained

large. In the 1970s, when Soviet emigration policy softened, in

apparent keeping with the progress of U.S.-Soviet détente, the

United States stepped up its resettlement program for those

finally able to leave, most of whom were Soviet Jews. The

number of Soviet refugees admitted yearly has varied largely

according to Kremlin decisions. From a high exceeding 50,000

in 1979, the total declined to 640 in 1984, but attained 50.000

20. Id. at 709.

21. Immigration and Nationality Act Amendments of 1965, Pub. L. No.

89-236, § 3, 79 Stat. 911, 913 (amending former section 203(a)(7) of

the INA).

Convention relating to the Status of Refugees, done July 28, 1951,

189 U.N.T.S. 137, as modified by the Protocol relating to the Status

of Refugees, done Jan. 31, 1967, 606 U.N.T.S. 267. 19 U.S.T. 6223,

T.LA.S. No. 6577.

tv

to

13

again in 1990. Between 1975 and the end of 1991, over a quarter

of a million Soviet citizens resettled in the United States. And

now, even with the end of the Soviet Union, the United States

does not shrink from assisting a remarkably large-scale ongoing

migration. In fiscal year 1992, the number to be admitted was set

at 61,000, and actual admissions apparently came close to that

figure. For FY 1993, the United States has announced a

willingness to admit 50,000 nationals of the former Soviet

Union.”

D. Cuban Refugees: The United States Joins the Ranks of

First Asylum Countries

When Fidel Castro came to power in Cuba in 1959, the

United States again found ways to welcome refugees. It became,

in the process, a country of first asylum. Over the years, America

would receive at least 900,000 Cubans, but even when the Mariel

boatlift of 1980 greatly strained America’s receptiveness, this

country never adopted a policy of interdiction, much less of

unscreened retums. Indeed, to this day the United States policy

remains decidedly open to potentially uncontrolled numbers of

arrivals from Cuba, who are now readily granted asylum and

legal protection.

From the early days of the Castro revolution until the break

in diplomatic relations in January 1961, Cubans moved directly

to the North American mainland, initially as the beneficiaries of

23. U.S. Department of State, Office of the U.S. Coordinator for Refugee

Affairs, Proposed Refsgee Admissions for Fiscal Year 1993

(Washington, D.C., June 1992), at 18; Presidential Determination No.

93-1, S57 Fed. Reg. 47,253 (Oct. 2, 1992) (setting refugee admission

numbers for FY 1993).

an extraordinarily liberal nonimmigrant visa policy at the U.S.

consulate in Havana. Once here they benefited from a variety of

administrative measures that gave them an indefinite stay—in

effect, automatic political asylum. These policies persisted even

though arrivals, sometimes reaching 1500 per week, greatly

Strained the facilities for reception and assistance in south

Florida.“ As in other refugee situations this nation has faced.

the reception and resettlement Process posed difficult challenges,

but federal and state govemments found ways to cope. Eventually

Congress passed the Migration and Refugee Assistance Act of

1962,” still in effect, to establish a more solid foundation for

continued assistance.

Castro's suspension of air travel in response to the 1962

Cuban missile Crisis brought a relative lull in Cuban migration to

the United States, after perhaps a quarter million Cubans had

left.” But in late 1965, responding to new signals from Havana,

President Johnson announced a major new initiative. At the

signing of the historic 1965 amendments to the Immigration and

Nationality Act, in a ceremony held at the Statue of Liberty, he

proclaimed the Start of a massive new refugee parole program,

the Cuban freedom flights,” a program that brought 270,000

Cubans directly to the United States before its termination in

1973. Another 70,000 came in from Spain under a separate

parole program.

24. See Loescher and Scanlan. supra note 3, at 61-75.

25. Pub. L. No. 87-510, 76 Stat. 121 (codified, as amended, at 22 U.S.C

§§ 2601-2606 (1988)). |

26. Loescher and Scanlan, supra note 3, at 70-71.

27. See 1 Weekly Comp of Pres. Doc. 364-67 (Oct. 3, 1965): id. at 470-

74 (Nov. 15, 1965).

15

Under President Carter, relations with the Castro govemment

warmed somewhat, and consideration of new refugee programs

became possible. Neither side sought to restore the freedom

flights, but a special parole program brought some 10,000 former

political prisoners and family members to this country.

In 1980, the United States encountered the most chaotic and

difficult episode in its history of receiving Cuban refugees: the

Mariel boatlift. The crisis began when over 10,000 Cubans

rushed in to the Peruvian embassy in Havana seeking diplomatic

asylum. Their plight gained widespread attention and sympathy

throughout the hemisphere. Seeking to undo this political setback,

Fidel Castro launched a diversion. He announced that the port of

Mariel on Cuba’s north shore would be open for Cuban exiles to

come and pick up relatives who wanted to leave the island.

Because the cut-off of the freedom flights had left numerous

families separated, this invitation attracted thousands of boats

south from Florida. When they arrived, some relatives were

allowed to board, but the Cuban government added an especially

cynical exploitation of the family members who had sent the

boats southward. It took the occasion to force aboard the vessels

in Mariel thousands of other persons not sought by the captains,

including many who had been convicted of common crimes,

escorted to the port directly from jails and prisons, and others

from mental health facilities.”

Before the Carter Administration implemented policies to

stop the southbound boat flow, enough vessels had reached

Mariel to bring 125,000 Cubans eventually to Flonda, over the

course of a few months in mid-1980. Their arrival coincided with

28. See The Guarded Gate, supra note 3, at 58-71.

16

the peak of a more modest boat flow from Haiti that had been

picking up momentum over the previous few years. Scrambling

to respond, the U.S. government established a special Cuban-

Haitian task force and employed military bases at several

locations throughout the United States (many of which had been

used for the emergency Vietnamese resettlement five years

earlier) as initial centers to house and care for the arrivals and to

perform the necessary processing. Those arriving were granted a

special parole status (known as Cuban-Haitian entrant), and

eventually Congress passed legislation permitting their adjustment

to lawful permanent resident status.”’

The Mariel experience was especially traumatic for this

country. The arrival was massive and sudden, it came in the

midst of a hotly contested presidential election Campaign, and the

percentage of Marielitos with criminal backgrounds made camp

management and eventual placement especially difficult. It is

quite likely that this bitter experience contributed to the Bush

Administration's resolve to issue the Kennebunkport Order in

May 1992 retuming all Haitian boat Passengers directly to Haiti.

But a different lesson should be drawn. The 1991-92 Haitian

movement Shares few similarities with Mariel. The flow from

Haiti Is Spontaneous, coming in Haitian boats; there has been no

manipulation of U.S.-based family members urging them to send

American vessels for rescue. As a result, there is no Opportunity

29. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, §

202, 100 Stat. 3359. A brief summary of the Cuban-Haitian entrant

program and related legal developments appears in Aleinikoff &

Martin, supra note 19, at 412-13, 436-37. See also Ronald Copeland

The Cuban Boatlift of 1980: Strategies in Federal Crisis Management,

467 The Annals 138 (1983).

7

for an adversary government to send convicted criminals to this

country. And the unprecedented outpouring of support in this

hemisphere for restoration of the democratically elected Aristide

government”’ opens prospects for medium-term resolution of the

crisis through political and diplomatic means that were not

remotely possible with regard to Cuba in 1980. Although any

large-scale movement entails considerable logistical problems,

which amicus does not minimize, Mariel certainly proved that the

United States goverment is capable of responding even in highly

unfavorable circumstances.

E. Cubans and Haitians: Radically Unequal Treatment

Whatever may have been the appropriate lessons of Mariel,

it is undeniable that the U.S. goverment since then has applied

any negative teachings to Haitians, while maintaining to this day

a policy of near-automatic asylum for those Cubans who manage

to leave the island. While Haitians were hindered, deterred and

often subjected to discriminatory treatment, Cubans have been

almost uniformly welcomed. With the introduction of the Haitian

Migrant Interdiction Program in 1981, the disparity in treatment

30. The Meeting of Ministers of Foreign Affairs of the Organization of

American® States, convening shortly after the Haitian coup, adopted

unprecedentedly interventionist resolutions calling for restoration of

the democratically elected government and imposing a hemispheric

embargo. See OEA/Ser.F/V.1, MRE/RES. 1/91 corr. | (3 Oct. 1991)

and OEA/Ser.F/V.1, MRE/RE& 2/91 (8 Oct. 1991). The Executive

Order implementing the embargo for the United States was Exec.

Order 12,779, 56 Fed. Reg. 55,975 (Oct. 28, 1991). See generally

Pamela Constable, Dateline Haiti: Caribbean Stalemate, 89 Foreign

Policy 175 (1992-93).

18

widened to a chasm.’ The Reagan Administration often

justified the difference based on the “foreign policy aspects” of

the migrations. The Cubans, it was said, had been forced out by

4 totalitarian and unfriendly govemment. The Haitians. on the

other hand, came by choice from a country whose “friendly

government [that of Jean-Claude Duvalier] is interested in

enforcing its laws and wishes to cooperate with the United States

in bringing illegal migration under control . . . °°? This policy,

at best, skirted the edges of U.S. law, ignoring the Refugee Act's

promise of asylum to all who met a nonideological standard

meant for evenhanded application. But the early versions of the

interdiction program at least allowed for some screening, aboard

the Coast Guard cutters, of possible refugee claims (however

inadequate such screening may have been). With the

Kennebunkport Order, any attempt to honor the requirements of

U.S. and international law through pre-retum screening was

abruptly halted.

The treatment of Cubans stands in stunning contrast.

Although the Cuban government now polices against illicit

departures, Cubans continue to escape the country on boats, rafts

and other makeshift vessels. In recent years, many of those craft

have first been spotted by a group of volunteer pilots who

regularly patrol the skies over the Florida straits: when a boat is

sighted, the Coast Guard is notified. It is Cruelly ironic that most

31. See Lawyers Comm. for Human Rights, Refugee Refoulement. The

Forced Return of Haitians Under the US.-Haitian Interdiction

Agreement (1990).

32. The United States as a Country of Mass First Asylum: Hearing Before

the Subcomm. on Immigration and Refugee Policy of the Sen Comm

on the Judiciary, 97th Cong., Ist Sess. 3 (1981) (testimony of Thomas

O. Enders, Assistant Sec’y of State).

19

of the 2,205 Cuban refugees who arrived in the United States and

received legal status this past year (the highest total since 1980)

had been rescued at sea by U.S. Coast Guard vessels, the same

Coast Guard that patrols the waters around Haiti to seek out and

retum any escaping Haitians.”

F. Southeast Asians: An Ongoing Legacy of the

Vietnam War

It may have been a quiet guilt about the loss of the war in

Vietnam that prompted the largest and most sustained U.S.

program in response to a mass migration: the effort to resettle

Southeast Asian refugees. In the spring of 1975 the Saigon

government disintegrated as Vietcong and North Vietnamese

troops advanced, and a chaotic exodus ensued. There was no

thought in U.S. government circles of containing the exodus or

forcing retum, though the disorderly migration posed enormous

problems. Instead, President Ford promptly created a special

interagency task force for the evacuation and resettlement of

Indochinese refugees. In a bnef period in 1975, some 135,000

were evacuated and screened on Guam and Wake Island, and

processed through reception centers (mostly underused military

bases) in the United States. By the end of that year, the

temporary refugee relocation camps had been closed, the outflow

33. See Refugee Reports, October 30, 1992, at 15. The government has

often justified its blanket policy of accepting arriving Cubans by

pointing to the Cuban Adjustment Act of 1966, Pub. L. No. 89-732,

80 Stat. 1161, as amended, 8 U.S.C. § 1255 note (1988). But that Act -

does not mandate \egal status for arriving Cubans; it merely

authorizes the adjustment of status to lawful permanent resident one

year after admission or parole, in the discretion of the Attorney

General.

20)

was down to a trickle, and it appeared that the Southe i

. ast As

refugee problem would fade from the national mice”

But the agony of Southeast Asia was not over. By late 1977,

the press was beginning to speak of a new phenomenon. the so-

called boat people” from Vietnam. These exiles endured great

“isks and privation on the high seas in an effort to escape. but

were increasingly rebuffed by Passing ships and resisted by

potential haven states in the region. Rising numbers of

Tung An, Huey Fong, and Hai Hong, each bearing hundreds or

ary ye surprise offer at a 1979 conference of up to

.000 resettlement Spaces per month.” It was not easy for the

government to provide the overseas processing, transportation,

34. See Loescher & Scanlan. Supra note 3, at 102-19,

3S. dd. at 120-46.

46. See id. at 137-46,

21

and support upon arrival needed to deliver on this promise. But

the effort went forward, eventually calling into existence a new

office, the U.S. Coordinator for Refugee Affairs, and new

domestic resettlement and support arrangements embodied in title

Ill of the Refugee Act of 1980.”

Although the Indochinese exodus is now winding down,

difficult issues continued into the 1990s. A particular focus was

Hong Kong, which began in the late 1980s to receive, on its

limited land mass, a major new flow of Vietnamese boats,

Carrying tens of thousands of asylum seekers. Ultimately, an

intemational conference convened by the UN High Commissioner

for Refugees (UNHCR). with active involvement by the United

States, developed whai is known as the Comprehensive Plan of

Action.” It provides for screening of all arrivals throughout the

region according to established legal standards. Those found to

Satisfy the “well-founded fear of persecution” test of the UN

Convention are eligible for onward resettlement. Blocking

resettlement for those who fall short is meant to discourage future

unauthorized arrivals. Meantime an in-country option is available

in Vietnam; those who believe that they are at risk can apply

within the country for the Orderly Departure Program. Nothing

in the Comprehensive Plan remotely contemplates seabome

interdiction followed by direct retum. In fact, the US.

govermment has even insisted that the British government (Hong

Kong is a British dependency) should not return to Vietnam those

screened out, though our diplomats have not suggested that this

group should have been found to meet the international refugee

37. INA §§ 411-414, 8 ULS.C. §§ 1521-24 (1988).

38. The Comprehensive Pian of Action is reprinted in | Int’! J. Refugee

Law 574 (1989).

definition. The U.S. government has not insisted upon the full

protections of asylum nor access to onward resettlement for this

_— tt has adamantly resisted any plan for involuntary

G. C i :E

meng American Refugees: Eventual Safe Haven

This country’s treatment of refu

gees from Central America

= the Past decade has been highly controversial. But even in

S sensitive policy realm, the political branches have

haven protection, known as temporary protected status (TPS)

under INA § 244A, 8 U.S.C. § 1254a (Supp. Ill 1991). 1

Salvadorans who were in this country as of Sept, 19 1990

immigration Act of 1990 § 303. 8 U.S.C. § 1254a note (Supp. III

1991). This enactment provided Salvadorans with work

Pate and protection against deportation for 18 months.

ongress voted this benefit even though estimates of the numbers

of Salvadorans illegally in this country ran as high as 500,000.*"

= See Aleimkoff & Martin. Supra note 19, at 728-%).

a = Sen. Alan K. Simpson, We Can't Allow All Salvadorans tw

= ash. Post, July 10, 1984, at Al3. In the end, approximately

-00,000 Salvadorans were granted TPS. U.S Will Defer Departure of

— but Will Not Extend TPS. 69 Interpreter Releases 6)

2). |

23

Upon the expiration of the statutory TPS period, President Bush

decided to grant similar benefits for an additional year under the

functionally similar rubric of “deferred enforced departure,” in

order to avoid disrupting the ongoing efforts to establish a stable

peace in El Salvador.*’

Guatemala also has been suffering from a prolonged civil

war, accompanied by widespread human rights abuses. Although

neither Congress nor the executive branch has seen fit to extend

TPS to Guatemalans, the Department of Justice did voluntarily

include extensive procedural rights for Guatemalans in a

comprehensive settlement of a class-action lawsuit challenging

previous asylum processing.’ This settlement covered both

Salvadorans and Guatemalans, and it gave virtually all such

persons in the United States before a stated cut-off date the right

to have their asylum claims heard or reheard de novo by a newly

created corps of asylum officers established by regulations issued

in July 1990. The kind of screening implicitly required by the

court of appeals in this case before anyone may be retumed to

Haiti is surely no more burdensome in character than the program

extended with the Justice Department's consent to approximately

42,600 Guatemalans.“

41. See id.

42. American Baptist Churches v. Thornburgh, 760 F. Supp. 796

(N.D. Cal. 1991).

43. 55 Fed. Reg. 30,674 (1990) (principally codified in 8 C.F.R. part 208

(1992)).

44. See March 31 Asylum Deadline Approaches for ABC Guatemalans,

69 Interpreter Releases 348 (1992). The Salvadoran beneficiaries of

the settlement consisted primarily of those eligible for TPS.

EVEN IN PERIODS WHEN THE UNITED STATES HAS

BEEN INVOLVED IN RESPONDING TO MASS

MIGRATIONS, IT HAS PAID CAREFUL ATTENTION

TO STRENGTHENING THE LEGAL GUARANTEES

FOR REFUGEES.

The account presented here reveals numerous instances

where the United States has implemented a lesson of generosity

or simple humanitarian responsiveness leamed from the failures

of refugee policy in the 1930s and 1940s. Significantly,

throughout the postwar period this country has also moved to

strengthen legal guarantees—even at the times when massive

movements might have been thought most likely to induce

reluctance about undertaking commitments of that sort.

The United States played a significant role in the negotiation

and shaping of the 1951 Convention relating to the Status of

Refugees. Drafted while Europe was still suffering the lingering

effects of World War II, and while the United States was

resettling 400,000 people under the Displaced Persons Act, this

instrument nonetheless was explicitly designed to provide firm

legal guarantees for Europe's displaced.’ The daunting scope

of the problem did not bring the process of legal protection to a

halt. Disappointingly, after its early activism, the United States

did not become a party to the Convention, but this failure mighi

be attributed largely to independent domestic controversies in the

1950s over the Bricker Amendment, which threatened

45. See generally | Louise Holborn, Refugees: A Problem of Our Time:

The Work of the United Nations High Commissioner of Refugees 15%

73 (1975). |

25

considerable retrenchment of U.S. treaty powers.“ Nonetheless,

the United States continued to voice support for the treaty’s

standards, and it retained an active role in the UNHCR executive

committee.

In 1968, the United States finally ended its standoffish

posture toward the international refugee treaties, by acceding to

the UN Protocol. Although this occurred during a high point of

the freedom flights bringing Cubans directly to the United

States—clearly manifesting our potential as a first asylum

country—President Johnson emphasized in his letter of

transmittal sending the treaty to the Senate: “Foremost among the

humanitarian rights which the Protocol provides is the prohibition

against expulsion or return of refugees to any courtry in which

they would face persecution."“’ The Senate readiiy approved the

treaty.“*

Twelve years later, in the Refugee Act of 1980,” the

United States completely recast its domestic legal structure

governing both overseas admissions and political asylum. This

too was no fair-weather document built on assumptions that

46. See generally Natalie Hevener Kaufman & David Whiteman,

Opposition to Human Rights Treaties in the United States Senate: The

Legacy of the Bricker Amendment, 10 Human Rights Q. 309, 310-12

(1988).

47. Message from the President of the United States transmitting the

Protocol Relating to the Status of Refugees, Done at New York on

January 31, 1967, Exec. K, 90th Cong., 2d Sess., at iii (1968).

48. See Protocol Relating to Refugees, Exec. Rept. No. 14, 9th Cong..

2d Sess. (1968) (Committee report and hearing transcript considering

the Protocol). e

49. Pub. L. No. 96-212, 94 Stat. 402 (codified in various sections of 8,

22 U.S.C.).

26

refugee situations would be easily managed. Instead, most of the

drafting and legislative work occurred during 1979, precisely the

period when the outflow from Indochina was at its chaotic peak.

Despite this situation, Congress explicitly decided to change INA

§ 243(h) from a discretionary to a mandatory provision, in order

to bring it into line with the nonrefoulement guarantee of Article

33 of the UN Convention.”

THE HISTORY OF U.S. RESPONSE TO MASS

REFUGEE MIGRATIONS SINCE WORLD WAR II

REVEALS THAT THE LEGAL GUARANTEES

ENFORCED BY THE COURT OF APPEALS ARE

ENTIRELY CONSISTENT WITH REALISM ABOUT

SUCH MOVEMENTS.

The foregoing history places the May order interdicting

Haitian asylum seekers in a revealing light. This is by no means

the first time that the United States has been Challenged to deal

with potentially chaotic human migrations from countries marked

by turmoil and human rights abuses. The government has

consistently found ways to cope humanely with the arrival of tens

of thousands of refugees and asylum seekers. Most of the

900,000 Cubans resettled since Castro's revolution have come

directly from that island; though the process was sometimes

messy and difficult, the challenge did not overwheim US.

responsiveness. When Saigon fell in 1975, American ingenuity

found ways to move large numbers to Guam and Wake Island,

SO. See H.R. Rep. No. 96-781, 96th Cong., 2d Sess., at 20 (Conference

Report on the Refugee Act of 1980); Martin. Supra note 3, at 101,

109-10.

27

eventually resettling over 135,000 who had fled in the space of

just a few weeks. In the midst of these crises, the United States

has steadily continued an ongoing process of strengthening legal

protections for refugees; its role has been realistic but

constructive. Only with the Kennebunkport Order has it departed

so dramatically from the hard-won heritage of the last 45 years.

Amici do not minimize the dilemmas created by the sudden

and unplanned appearance of large numbers of asylum seekers.

But affirmance of the judgment of the court of appeals would

leave the United States with numerous options for dealing with

such situations. It would foreclose but one path—the return of

asylum seekers, without any attention to the nature of their claims

to refuge, directly to the authorities of the country where they

risk persecution. This path, as the court of appeals concluded, and

as the respondents and other amici have demonstrated, was

deliberately closed by the decision of ‘“ongress, embodied in INA

§ 243(h), 8 U.S.C. § 1253(h) (1988), acting to honor the

painstakingly won advance of refugee protections since World

War II.

28

CONCLUSION

For the foregoing reasons, amici American Jewish

Committee and Anti-Defamation League urge that the judgment

of the court of appeals be affirmed.

Respectfully submitted,

*DAVID A. MARTIN

University of Virginia

School of Law

Charlottesville, VA 2290]

(804) 924-3144

SAMUEL RABINOVE

American Jewish Committee

165 East 56th Street

New York, New York 10022

(212) 751-4000

RUTH LANSNER

STEVEN M. FREEMAN

Anti-Defamation League

823 United Nations Plaza

New York, New York 10017

(212) 490-2525

Attorneys for Amici Curiae

—— —— *Ccansel of Record

a