President Obama's eloquent speech on the rescue efforts in Haiti hit home for this immigration scholar when he noted that, "for a country and a people who are no strangers to hardship and suffering, this tragedy seems especially cruel and incomprehensible." From Sale v. Haitian Centers Council, the 1993 Supreme Court decision that stretched the UN Refugee Convention beyond recognition by holding that the US Coast Guard did not violate the treaty in refouling Haitians on the high seas, to the latest announcement that the US may house Haitians fleeing the earthquake in Guantánamo, it seems one simple principle applies in the field of immigration law: the Haitians always lose.
Though the administration's humanitarian relief efforts are to be lauded, the decision to halt deportations to Haiti is an inadequate step that must be followed with more robust immigration protections for Haitians in the United States and those who flee the devastation of the earthquake. The first move that the executive should make is to grant Temporary Protected Status to Haitians in the United States. This form of immigration relief, though failing to provide a path to citizenship, will offer undocumented Haitians the opportunity to work -- a benefit that halted deportation alone does not provide. As explained in yesterday's Washington Post, Haitians earning money in the US will be able to send home remittances that will help to stabilize the devastated Haitian economy. Remittances from Haitians living in the U.S. currently constitute 20 percent of Haiti's GDP; if the estimated 125,000 undocumented Haitians are allowed to work legally, the impact on Haiti's reconstruction will surely be powerful. Members of Congress and activists including novelist Edwidge Danticat have urged Clinton and Napolitano to offer TPS to Haitians; you can add your voice to theirs here.
Once that step is taken, the administration should think hard about a humane solution for those sure to flee Haiti's devastation. Helping to rebuild the country is one important step, but providing more robust legal protection to those who have fled is equally crucial. Despite a consistently poor human rights record, asylum rates for Haitians are bafflingly low; from 2000-mid-2004, 15% of Haitian asylum seekers in immigration court won their cases, compared to a national average grant rate of 38%. Many of those fleeing the earthquake and its aftermath would not qualify for asylum under U.S. law and the UN Refugee Convention, but other regional instruments, such as the Organization for African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa as well as our own region's Cartagena Declaration on Refugees offer a broader refugee definition that would welcome those seeking protection from natural disasters. As IntLawGrrls guest/alumna Jane McAdam and others have noted, environmental refugees will only become more common as climate change begins to wreak its havoc; now is the time to come up with a fair and compassionate approach to this problem.