What About Haitians in Detention (Part Two)?

According to U.S. Government figures, up to 200,000 Haitians present in the United States as of January 12th will apply for Temporary Protected Status (TPS). I do not know whether this number includes those who are in detention or not, but I think it remains to be seen exactly what will happen to those who are detained by Immigration and Customs Enforcement (ICE). Today I was asked by someone to explain the concerns I had about detained Haitians. Here are three general issues on this subject which I hope to see addressed favorably by the Government very soon.

First, there needs to be a directive by ICE headquarters to release all detained Haitians who are prima facie eligible for TPS and have not yet been ordered removed from the U.S. by an immigration court. Additionally, immigration courts should administratively close all removal proceedings pending against Haitians who qualify for TPS during the time that they remain in valid status. This is not a novel idea. It was implemented in 1990 when nationals of El Salvador were first granted TPS status. Obvioulsy, if an individual qualifies for TPS she or he has not been convicted of a felony or two misdeamenors, and presumably, poses no danger to the community. On the other hand, it costs the U.S. taxpayer approximately $90 per day to hold an immigrant in detention, and there is no reason to do so if the immigrant is clearly eligible for relief. Once free, these men and women can seek assistance to complete a TPS application from a lawyer or knowledgeable advocacy group who speak their native language. In detention, the language barrier makes it almost impossible to successfully prepare an application. Very recently, I met with two detained Haitian men who are clearly TPS eligible, and through a mix of English and French we were able to muddle through the lengthy form. However, it was far from an ideal situation, and one of the men would have clearly benefitted from communicating in his native Creole. This ensures that there are no misunderstandings and errors made in the process. As well, once free from custody, these men could more easily obtain the money required for the TPS filing fees. And of course, we as taxpayers would save the detention cost, as well as the Government's expense to litigate a deportation case, which is also clearly borne by the taxpayer.

Second, the Department of Homeland Security (DHS) must urge all of its attorneys to agree to reopen the removal cases of Haitians who are prima facie eligible for TPS, but were ordered deported before TPS was implemented. The U.S. announced last week that it would not enforce orders of removal to Haiti. The country simply cannot integrate deportees at this point in time when it is struggling beyond measure to aid its desperate population. At the same time, there is no reason to keep individuals who qualify for TPS in detention under an order if removal for all of the aforementioned reasons. The normal process when there is an order of removal issued and an immigrant becomes eligible for some form of relief, is to make a motion to reopen the removal proceedings to apply for the relief. Given the 90 day statutory time limitation to file a motion to reopen, some Haitians may find that they are time-barred from reopening their case unless, as the law dictates, the Government agrees to the motion to reopen. For this reason, it is critical that DHS attorneys be directed to join in motions to reopen so that the case may then follow the process set forth above.

Third, and perhaps most difficult to address, is how we should deal with those Haitians who do not qualify for TPS on account of criminal convictions, but cannot be removed from the United States even if ordered deported. As stated in my first post on this subject, there are certain procedures currently in place for such situations. I would only add that release from detention should be strongly encouraged as a matter of policy when the individual poses no danger to the community and no flight risk.

Finally, from a humanitarian point of view, a person whose family and/or friends have just perished in one the world's greatest tragedies should not be held in detention. It is not healthy for the psyche, and not conducive to healing. The men with whom I recently met had both lost family in the earthquake. One lost his two year old daughter and her mother. The other lost his father and several siblings, and had stopped eating. The pain and exhaustion of the trauma was visible on their faces. They need their community now more than ever and should be freed so they can mourn among people who care for them and understand their sorrow.