The United States recently sought support from the U.N. Security Council for an armed intervention in Haiti to end what U.S. ambassador Linda Thomas-Greenfield has described as a situation of total chaos in the country. And yet U.S. officials seem unwilling to concede that deporting Haitian citizens to that same chaos—rampant gang violence that has been escalating for years, disastrous food and fuel shortages, a resurgent cholera epidemic—might be, to put it mildly, a moral failure. This disconnect between the Biden administration’s recognition of the dire conditions in Haiti and its failure to acknowledge the difficulties those conditions pose for deported Haitians became more pronounced this summer with reports that Haitian officials were essentially holding deportees for ransom in the national penitentiary. More than an accent note on a broader hypocrisy, this last detail has opened up the Biden administration to serious legal challenges that put the removal of certain categories of Haitians on unstable legal ground.
In the United States, the Immigration and Nationality Act (INA) provides various forms of humanitarian protection from removal, some discretionary, some not. Asylum is perhaps the most familiar example. Haitians have long fared poorly when it comes to asylum in the United States, ranking lowest in terms of grant rates over the past four years, a period marked by increasing politicized violence in Haiti and the assassination of the Haitian president. For those Haitians with a criminal record in the United States, the possibility of securing relief from removal is even more challenging, especially for those convicted of offenses that render them ineligible for asylum.
For noncitizens unable to seek asylum due to their convictions, it is the Convention Against Torture (CAT) that provides one of the primary forms of relief. Signed by the United States in 1988 and incorporated into U.S. law through the Foreign Affairs Reform and Restructuring Act of 1998, the CAT allows immigration tribunals and courts to grant respondents in removal proceedings either withholding or deferral of removal, the latter for individuals convicted of what the INA refers to as a “particularly serious crime.” To successfully pursue a CAT claim, a respondent must demonstrate it is more likely than not that they will be subject to severe physical or mental pain and suffering by or with the acquiescence of a state official. CAT relief does not bestow one with a permanent status, but if you are, let’s say, a Haitian citizen who faces torture on your return to Haiti and your past convictions bar you from receiving asylum, CAT withholding or deferral of removal offers a reprieve of last resort, one that, in practice, typically lasts indefinitely.
Over the past two and a half decades or so, a body of U.S. legal doctrine interpreting the relevance of the CAT to Haitian withholding and deferral of removal cases emerged as the result of the Haitian government’s policy of detaining certain so-called “criminal deportees” on arrival, including those with minor convictions. Deportees have been held in the national penitentiary, in provincial prisons, and in police station holding cells. Attorneys for Haitians facing detention have argued that the ghastly conditions amounted to torture and therefore triggered the CAT’s mandatory removal protections.
Given that Haitians have not found much success before U.S. immigration courts generally and that formerly incarcerated immigrants are often considered the least sympathetic and the least deserving of protection by the public at large, it may be unsurprising the results of these CAT claims have been mixed. Among the impediments that have made this an uphill battle are the specific technical legal criteria of the CAT itself, the most challenging being the Senate’s resolution—upon its ratification of the Convention—incorporating the “understanding” that an act had to be “specifically intended” to inflict “severe physical or mental pain or suffering” in order to constitute torture. This meant, for example, that if the purpose of detaining deportees with criminal convictions was to reduce crime in Haiti and not to cause the detainee suffering—the suffering being an unfortunate byproduct of inadequate resources devoted to prisoner care—then the requirements of protection under the CAT would not be met. While courts have acknowledged the abysmal conditions deportees would face if detained, they have also found them to be unintended and thus legally irrelevant. Many a claim failed as a result of this specific intent requirement.
In some instances, though, Haitians with criminal convictions were able to distinguish themselves from what we might call the “generic” deportee by pointing out particular characteristics that would lead to them being singled out, not just for detention but for physical attacks at the hands of prison guards or police. Such distinguishing factors might include a history of mental illness or other medical conditions that were more likely than not to progress in a way that resembled mental illness, thereby provoking guards to respond with beatings and other forms of physical abuse severe enough to meet the requirements of the CAT. Over time, immigration judges and the Board of Immigration Appeals granted relief in these types of cases, creating a body of shadow law through unpublished opinions in the process.
The length of detention for Haitian deportees waxed and waned over the decades. Eventually, the duration of this ostensibly preventive confinement became relatively short. And then this summer, reports started emerging of Haitians with criminal convictions being thrown into Haiti’s national penitentiary for months at a time after being processed by authorities.
While groups working with deportees have documented instances in which Haitian officials offered to release them in exchange for money in the past, reporting suggests the current practice looks more like a full-fledged ransom operation, a turn of events not entirely unexpected given the blurred lines between the government and criminal gangs these days, the latter frequently operating as kidnapping enterprises in and around the capital. The turn toward these ransom tactics mean that Haitian officials extorting money from deportees have, in short, weaponized prison conditions, forcing removed Haitians, many of whom have spent the majority of their life in the United States, to experience the lack of food, the lack of potable water, the intense heat and humidity, the lack of light, the growing spread of cholera, the vulnerability to beatings, and the cramped conditions—prisoners often have to sleep on top of one another—in order to get their families to pay up and end the suffering.
These “official” kidnappings have thrown the legality of removals of Haitians with criminal convictions into question. Given that it is extortion that appears to be driving the detention, that the appearance of cholera in the penitentiary has raised the stakes of confinement, and that there is a nexus between the demand for ransom payments and the agony of those detained, attorneys are undoubtedly making arguments that these shakedown plots depend on the specifically intended infliction of pain through detention. It’s a plausible pathway to overcome the barriers imposed by the CAT’s specific intent requirement, and those pursuing it are likely to find a receptive audience among at least some adjudicators.
Certainly, the Biden administration could let this all play out quietly in the administrative tribunals and the courts in an attempt to deny Republicans another immigration-themed talking point. And sure, some Haitians with sophisticated lawyers able to secure expert affidavits as to conditions in Haiti may fare well with their CAT claims. But the vast majority of Haitians being removed for past criminal convictions will not have access to counsel, and mounting a complicated CAT argument will be a longshot.
Given how few individuals will be able to access protection under the CAT, the correct moral and legal response to this hostage taking is as obvious as the hypocrisy at the heart of current U.S. immigration policy toward Haitians: the Biden administration should put a hold on removals for all Haitians facing extortion, suffering, and even death if returned to Haiti. This is a modest proposal, and one not meant to substitute for other, more sweeping, but no less compelling, demands currently being made with regard to U.S. immigration policy toward Haitians. Still, it behooves us all to point out that the administration should heed its own advice with regard to the severity of the situation in Haiti and that it should take seriously the legal consequences the deteriorating situation in the country entails, even if those whose lives are at stake are too often deemed to be undeserving insofar as the protections of U.S. immigration law are concerned.
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