WASHINGTON — A federal appeals court Thursday granted a 48-hour suspension of its own order prohibiting the Coast Guard from returning Haitian boat people to their homeland, giving the Bush Administration time to appeal to the Supreme Court.
The Justice Department immediately filed a 32-page appeal, arguing that the original 2nd Circuit Court of Appeals ruling "threatens to precipitate a new wave of immigrations from Haiti, causing great danger to Haitians who flee the country in unseaworthy boats, and disrupting the orderly conduct of United States foreign policy."
Supreme Court Justice Clarence Thomas, who handles cases from the New York-based appeals court during the high court's summer recess, gave lawyers representing the Haitian refugees until midday today to respond to the government's petition. His office said he planned to seek the views of the other eight Supreme Court justices by a telephone conference call before deciding whether the court will hear the case.
The 2-1 decision by the appeals court Wednesday concluded that the Administration acted illegally May 24 when it ordered the Coast Guard to intercept Haitians on the high seas and return them to Port-au-Prince, the Haitian capital. The court said the Haitians, who claim to be fleeing political oppression, are entitled to a hearing to determine if they are eligible for political asylum.
Although the appeals court order was in effect for almost 24 hours, it had no real impact. According to a Coast Guard spokesman in Miami, no new refugees were picked up at sea Wednesday night.
Since Bush's decision to return the refugees, the flow of Haitians has all but stopped. Only one boatload was encountered this month, contrasted with more than 13,000 Haitians picked up in May. All 150 refugees aboard the last boat were returned to Port-au-Prince on July 23.
For the first seven months after the coup, Haitians were taken to an emergency camp at Guantanamo Bay, a U.S. naval base in Cuba, where they were interviewed by U.S. immigration authorities to determine if they qualified as refugees. Under U.S. and international law, refugees are people who have a well-founded fear of political persecution at home. People fleeing poverty--so-called economic refugees--do not qualify.
When the Guantanamo camp filled to overflowing, Bush ordered the Coast Guard to send the Haitians home. At that time, he said potential refugees could apply to the U.S. Embassy in Port-au-Prince.
The appeals court issued an injunction Wednesday prohibiting the forced return of any Haitian "whose life or freedom would be threatened." But on Thursday the court suspended the order until midday Saturday. If the high court accepts the case, presumably the stay will be extended until the matter is resolved.
In its appeal, the Justice Department said Bush acted to prevent the loss of life by discouraging Haitians from putting to sea, often in leaky boats.
"In the seven weeks from April 1 to May 23, close to 17,000 Haitians were rescued by the Coast Guard," the department said. "In May, as many as 1,500 a day were being rescued at sea. In the days immediately prior to May 23, our resources were overwhelmed."
In New York, Lucas Guttentag, director of the American Civil Liberties Union Immigrants' Rights Project, said that before the Administration's decision to immediately return the Haitians, Immigration Service interviewers had determined that between 30% and 35% of the refugees had credible claims for asylum. He said the figures proved that a substantial number of Haitians faced persecution if sent back.
"The government raised nothing new" in its petition to the Supreme Court, Guttentag said. "They are the same arguments rejected by the 2nd Circuit. We are optimistic the Supreme Court will not (approve the Administration's policy) given the fact the injury to the refugees overwhelmingly outweighs any burden on the government, particularly when the law is so clear."
The government maintains that most of the Haitians are trying to escape the island's grinding poverty rather than fleeing from political persecution. Government lawyers say refugee screening at the embassy in Port-au-Prince is enough to protect the rights of people who qualify for refugee status.
Lawyers for the Haitians scoffed at the government's argument that the policy was intended to save lives. They said the Administration's position was "disingenuous . . . particularly when our clients would themselves choose to risk flight in unseaworthy boats rather than remaining in suicidal conditions in Haiti."
A federal judge in Brooklyn upheld the Bush policy in June, saying U.S. law did not apply in international waters. The circuit court ruled, however, that it does.
Kempster reported from Washington and Goldman from New York.
The Haitian refugee flood began after a coup last Sept. 30 ousted President Jean-Bertrand Aristide, the island nation's first democratically elected chief of state. About 37,000 Haitians have been picked up at sea to date. Almost 11,000 have been brought to the United States to pursue their claim for political asylum, but most of the rest have been returned to Haiti.