Intercept of Haiti Refugees Barred : Immigration: Appeals court rules that boat people cannot be repatriated before they are given a hearing. The Bush Administration plans to fight the decision.

By JOHN J. GOLDMAN and MIKE CLARY

July 30, 1992 12 AM PT

SPECIAL TO THE TIMES

NEW YORK — A federal appeals court ruled Wednesday that the Bush Administration acted illegally when it ordered U.S. ships in May to intercept Haitian refugees fleeing from their homeland and return them without a hearing.

The government said it would appeal.

In a 2-1 decision, the 2nd Circuit Court of Appeals declared that immigration laws clearly state “that the United States may not return aliens to their persecutors, no matter where in the world those actions are taken.”

The court ordered an injunction preventing the Coast Guard from turning back any Haitian refugee “whose life or freedom would be threatened.”

In the Haitian capital, Port-au-Prince, human rights advocate Jean-Claude Bajeux told Reuters that the ruling “unfortunately comes too late for the 30,000 who have already been sent back.”

The Bush Administration indicated that it would appeal the decision quickly. A statement issued by the Justice Department stressed that government lawyers would “vigorously pursue all avenues of appeal, including the Supreme Court.”

“The Administration remains convinced that in-country refugee processing is the most equitable and humanitarian way to deal with this situation,” the Justice Department said. “We are extremely concerned that as the result of today’s actions Haitians may be lured into embarking on dangerous journeys on the high seas in the false hopes of reaching the United States.”

An Administration official further underscored the White House’s decision to fight the court ruling.

“The feeling is that the policy has worked,” the official said. “You’ve seen how fewer people are risking the boat ride. I think people feel that lives have been saved by this policy.”

After Haitian President Jean-Bertrand Aristide was ousted in a military coup last September, the tide of Haitians fleeing their homeland grew to a flood. Thousands claimed to fear reprisals, but the Bush Administration contended that the vast majority were seeking entry into the United States to find economic opportunity rather than to flee repression.

As the refugee armada gained momentum, a special refugee center was established at the U.S. naval base at Guantanamo, Cuba, but when the center soon filled to capacity, the influx sparked increasing fears in South Florida.

It was then, on May 24, that President Bush issued his executive order. The Administration said the action was designed to ease a “dangerous and unmanageable situation” and to protect the lives of Haitians imperiled by a 600-mile journey at sea.

In their majority opinion, Judges Jon O. Newman and George C. Pratt said U.S. immigration laws and U.N. refugee protocols forbid “our country from laying hands on an alien anywhere in the world and forcibly returning him to a country in which he faces persecution.”

” . . . That command cannot be circumvented by seizing the alien as he approaches our border, whether by land or by sea, and returning him to his persecutors.”

The dissenting opinion was written by Judge John Walker, who is President Bush’s cousin. Walker argued that immigration laws and the United Nations Convention Relating to the Status of Refugees bind the U.S. government only with regard to “aliens who have physically reached our territory.”

“They grant no rights to plaintiffs in this case who have been or will be interdicted on the high seas,” Walker said.

“Whatever the merits of the policy of interdiction and return, as part of the United States response to the foreign policy crisis precipitated by the fall of the Haitian government in September, 1991, and the ensuing mass migration of Haitians in boats, I sit not as a policy-maker, but as a judge. I believe that the law does not support plaintiffs’ claim.”

The suit was brought by a coalition of refugee groups and individual refugees who hailed Wednesday’s verdict.

Lucas Guttentag, director of the American Civil Liberties Union Immigrants’ Rights Project, called the decision “a major victory for the Haitian people and a vindication on international human rights.

“President Bush was stopped dead in his tracks from pursuing an illegal policy that violated U.S. immigration law and binding international treaties. The court said the U.S. cannot be a henchman to political persecution.”

When refugee groups first appealed the White House’s decision, U.S. District Judge Sterling Johnson Jr. refused to issue an injunction to prevent the Coast Guard from stopping refugee ships heading to Miami. Johnson, although expressing deep sympathy with the refugees’ plight, ruled that U.S. laws do not extend to Haitians in international waters.

The appeals court decided Wednesday that Johnson was wrong in his interpretation and that illegal immigrants facing deportation have the right to counsel “no matter where located.”

The judges ordered Johnson to grant the injunction sought by the refugee groups.

“It means that refugees fleeing Haiti will have to get a fair hearing,” said Ira Kurzban, a Miami lawyer. “But it also says that no government official, including the President, is above the law, and that when Congress passes a statute, the President cannot just ignore it.”

The statute to which Kurzban referred is section 243H of the U.S. Immigration Act, which forbids returning refugees to a country where their lives or freedom is threatened.

Arthur C. Helton, director of the refugee project for the Lawyers Committee for Human Rights in New York, said the appeals court decision “could unravel the equilibrium the government had achieved by violating human rights of the refugees.”

A sign of that unraveling, Helton suggested, would be a marked increase in the number of Haitian boat people leaving the impoverished Caribbean country. “It is too soon to know if that will happen, but obviously the government is fearful,” Helton said.

Since Bush issued the executive order, the number of Haitians leaving their country in small wooden sailboats has declined. But Kurzban, for one, is not sure that the withholding of immigration interviews led to the decline. “I think what stopped the boat people was some agreement between the National Security Council and the military in Haiti to clamp down on people who are leaving by going after boat builders and the people who sell transportation,” Kurzban said.

“With or without this decision, people will continue to come,” said Rolande Dorancy, executive director of Miami’s Haitian Refugee Center. “People will always flee for their lives.”

Since the executive order was implemented, more than 15,000 Haitians have signed up for political asylum interviews with U.S. government officials in Port-au-Prince.

The tent city set up to hold Haitian refugees at Guantanamo has been all but shut down. The only Haitians still at the base are about 230 people who have tested HIV-positive.

“We’re just thrilled,” said Michael Rattner, one of the lawyers in New York who filed the suit. “This order confirms the most fundamental right of the refugee.” Rattner called the ruling “extraordinarily important” and said it was “a major slap in the face to Bush.”

The order means that Haitian refugees have to be given immigration interviews immediately if picked up at sea.

Goldman, a Times staff writer, reported from New York; Clary, a special correspondent, from Miami. Times staff writer Stephanie Grace in Washington also contributed to this story.