It was a month full of activity leading to years of consequences for Haitian migrants and the United States. These consequences included a 1993 Supreme Court decision, the 1996 statutory adoption of a new legal standard, and a special 1998 law permitting certain Haitian migrants to apply for permanent residency in the United States. The month was November 1991.

Background:
A September 23, 1981, agreement between the United States and the Republic of Haiti, permitted the U.S. Coast Guard to stop (interdict) boatloads of Haitians attempting to come to the United States, bring them aboard Coast Guard cutters, and then return them to Haiti. This Agreement provided the legal basis for President Reagan's September 29, 1981, finding (Presidential Proclamation No. 4865, 3 CFR 50-51 (1981-1983 Comp.)) and authorization (Executive Order 12324, 3 CFR Sec 2c(3), p. 181 (1981-1983 Comp.)) for what became known as the Haitian Migrant Interdiction Operation (HMIO). (This name was later changed to the Alien Migrant Interdiction Operation (AMIO), reflecting the fact that some of the interdicted migrants were not Haitians. In March 1991, the name was again changed -- this time to the Asylum Pre-Screening Operation (APSO) -- to better reflect the INS' important but limited role in the Government's larger interdiction program.) The Executive Order expressly forbade the return of any Haitian who was a refugee. The Refugee Act of 1980 defined "refugee" in U.S. law; it became section 101(a)(42)(A) of the Immigration and Nationality Act. This definition was modeled on the international definition of "refugee" contained in the 1951 United Nations Convention relating to the Status of Refugees and its 1967 Protocol].

As a result, INS sent officers to conduct interviews while migrants were still aboard the cutters. The purpose of the interviews was to assess migrants' claims of having a refugee-like fear of returning to Haiti. Based on these interviews, INS officers determined whether a migrant would be "screened in" and transferred to the United States to pursue formal asylum claims or "screened out" as an economic migrant and returned to Haiti. This program was a persistent source of controversy, particularly among those concerned with human rights and refugee matters. Between 1981 and 1991, more than 25,000 migrants had been interdicted, while only six had been "screened in" for transfer to the United States.

On September 30, 1991, a military-led coup overthrew the government of Jean Bertrand Aristide, the first democratically-elected president in Haitian history.

Despite the coup and the events that followed, no Haitians immediately attempted to leave by boat. Then, in late October, the first boatload was spotted carrying a small number of mostly young males from an Aristide-sponsored school in Port-au-Prince, the capital of Haiti. Following usual practice, this boat was interdicted by the U.S. Coast Guard, its passengers taken on board the Coast Guard cutter, and then the boat was sunk (for reasons of safety on the high seas). The passengers were interviewed for "refugee-like characteristics" by INS officers flown to the cutter by helicopter.

Events of November 1991:
By this time it was November. Policymakers in Washington, DC, met frequently concerning events in Haiti and over what to do about departing Haitians. Using an informal and still unwritten legal standard ("credible fear of return") developed only in May 1991, INS officers screened the migrants and cabled their conclusions to Washington. Due to the sensitive nature of this determination, final decisionmaking was transferred from the INS officers aboard the cutters to INS supervisors in Washington. After reviewing the initial records cabled to Washington, the INS officers on the cutters were told to cable their entire interview notes to Washington. On the basis of this still inconclusive record, INS officers were told to reinterview the migrants to obtain additional details and then recable their notes to Washington. Meanwhile, the Coast Guard cutter with the Haitians and INS interviewers still on board circled in the Caribbean.

By early November, more Haitian boats were spotted and interdicted, and as one cutter became crowded, additional cutters were brought into the area. Still, Washington could not decide what exactly to do with those "screened in" or those "screened out." As the number of Haitians on board cutters grew into the hundreds, the health and safety of the Haitians and the American crews became problematic. By mid-November, several hundred Haitians were on board Coast Guard cutters circling in international waters in the Caribbean between Hispanola (the island home of Haiti and the Dominican Republic) and Cuba.

On November 18, the Government announced that the program of forced repatriation of "screened-out" Haitians would resume. The next day, the first of what would become many legal challenges against the Government was filed by the Haitian Refugee Center (HCR, Inc. v. Baker, 949 F. 2d 1109 (1991)). The lawsuit contended that the Government did not have in place screening procedures sufficiently adequate to protect refugees from being returned to Haiti, which they asserted was a violation of the international law of non-refoulement or "no forced return."

The judge in the case suspended all forced repatriations until February 1992. Therefore, the Government had to do something with the Haitians still on the cutters. Consequently, the U.S. Naval Station at Guantanamo Bay, Cuba, was opened to accept these migrants. A tent camp, then several tent camps, were erected as hundreds and then thousands of Haitian migrants were interdicted and brought for further processing.

Just before Thanksgiving 1991, INS, under Commissioner Gene McNary, established a presence at Guantanamo Bay and began sending officers from the then new U.S. Asylum Officer Corps to conduct interviews. The Asylum Corps, mandated by the July 27, 1990 final asylum rule, had begun work only six months before: on April 2, 1991. The informal legal standard of credible fear of persecution on return on account of race, religion, nationality, membership in a particular social group, or political opinion -- was formalized administratively in a memorandum from the INS Deputy Commissioner.* At the same time, the Asylum Program's Resource Information Center started sending to INS Asylum Officers at Guantanamo what became a series of updates on the evolving human rights situation in Haiti.

By the end of November 1991, the first major migrant screening program at Guantanamo Bay was fully functional.

Fast Forward
This program ended in May 23, 1992, when President Bush issued Executive Order 12807 (57 Fed. Reg. 23133 (1992)) (also called the "Kennebunkport Order") authorizing the repatriation of interdicted Haitians to Haiti to pursue their claims through in-country U.S. refugee processing established under section 101(a)(42)(B) of the INA.

Before it ended, the migrant screening program interviewed nearly 34,000 interdicted Haitians. More than 10,000 established a "credible fear" and were transferred to the U.S. mainland to file formal asylum claims.

Over the years, the legal actions against the Government that began with the 1991 lawsuit filed by the Haitian Refugee Center, Inc, had many permutations. One of these was a lawsuit filed on March 18, 1992, by organizations representing interdicted Haitians as well as by some of the Haitians being detained at Guantanamo. They alleged that screening procedures aboard the cutters and at Guantanamo did not protect adequately the rights of interdicted Haitians to apply for refugee status and avoid forced return to Haiti. This suit ultimately went all the way to the U.S. Supreme Court and was finally resolved in the Government's favor in the June 21, 1993, decision in Sale v HCC.

The "credible fear" standard was given a statutory foundation by its inclusion in sec. 302(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and then codified as section 235(b)(1) of the INA and incorporated into INS procedures in 8 CFR 208.30 in the Code of Federal Regulations.

After many years of stopgap administrative measures, the Haitian Refugee Immigration Fairness Act (HRIFA) was signed into law on October 21, 1998. This law permits certain Haitians, including those screened in under the 1991-1992 APSO screening program at Guantanamo Bay, to adjust their status to lawful permanent residents and begin the process toward naturalization.

And, on November 13, 1998, Harold Hongju Koh, one of the people instrumental in bringing the March 1992 lawsuit that resulted in Sale v HCC, was sworn in as Assistant Secretary of State for Democracy, Human Rights and Labor. As Assistant Secretary, Mr. Koh advises Secretary of State Madelaine Albright on U.S. policy on democracy, human rights, labor, the rule of law, and religious freedom.