U.S. Immigration Policy on Haitian Migrants
Ruth Ellen Wasem
Specialist in Immigration Policy
January 15, 2010
Congressional Research Service
7-5700
www.crs.gov
RS21349
CRS Report for Congress
P
repared for Members and Committees of Congress

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U.S. Immigration Policy on Haitian Migrants

Summary
The environmental, social, and political conditions in Haiti have long prompted congressional
interest in U.S. policy on Haitian migrants, particularly those attempting to reach the United
States by boat. While some observers assert that such arrivals by Haitians are a breach in border
security, others maintain that these Haitians are asylum seekers following a decades old practice
of Haitians coming by boat without legal immigration documents. Migrant interdiction and
mandatory detention are key components of U.S. policy toward Haitian migrants, but human
rights advocates express concern that Haitians are not afforded the same treatment as other
asylum seekers.
The devastation caused by the January 12, 2010, earthquake in Haiti has led Department of
Homeland Security (DHS) Secretary Janet Napolitano to grant Temporary Protected Status (TPS)
to Haitians in the United States at the time of the earthquake. The scale of current humanitarian
crisis—estimated thousands of Haitians dead and reported total collapse of the infrastructure in
the capital city of Port au Prince—resulted in this TPS announcement on January 15, 2010.
More broadly, there are concerns that the crisis conditions in Haiti may result in mass migration
from the island. Agencies within DHS that are the leads in handling a potential mass migration
include the U.S. Coast Guard (interdiction); Customs and Border Protection (apprehensions and
inspections); Immigration and Customs Enforcement (detention and removal); and the U.S.
Citizenship and Immigration Services (credible fear determinations). The balancing of DHS’s
border security and immigration control responsibilities in the midst of a humanitarian disaster
poses a challenge.


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U.S. Immigration Policy on Haitian Migrants

Contents
Current Context .......................................................................................................................... 1
Immigration Trends..................................................................................................................... 1
Migration by Sea................................................................................................................... 1
Haitians Currently Residing in the United States ................................................................... 2
Policy Evolution ......................................................................................................................... 3
Post-Mariel Policy ................................................................................................................ 3
Interdiction Agreement.......................................................................................................... 3
Crisis After the Coup............................................................................................................. 4
Pre-Screening and Repatriation ............................................................................................. 4
Safe Haven and Refugee Processing...................................................................................... 4
Haitian Refugee Immigration Fairness Act (HRIFA).............................................................. 5
Mandatory Detention of Aliens in Expedited Removal .......................................................... 5
Procedural Practices and Controversies ....................................................................................... 6
National Security .................................................................................................................. 6
Parole from Detention ........................................................................................................... 6
Access to Legal Counsel ....................................................................................................... 7
Issues in 111th Congress .............................................................................................................. 7
Temporary Protected Status................................................................................................... 7
Possible Mass Migration ....................................................................................................... 8
Status Adjustment ................................................................................................................. 8

Figures
Figure 1.U.S. Coast Guard Interdiction of Haitians, 1982-2009 ................................................... 2

Contacts
Author Contact Information ........................................................................................................ 9

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U.S. Immigration Policy on Haitian Migrants

Current Context
The devastation caused by the January 12, 2010, earthquake in Haiti is focusing world attention
on the humanitarian crisis and prompting U.S. leaders to reconsider current policies on Haitian
migration.1 Some Members of Congress have long criticized the interdiction and mandatory
detention of Haitians who attempted to enter the United States without proper immigration
documents as too harsh given country conditions. Proponents of immigration control policies
have held sway for many years in large part because they argue that more lenient treatment of
Haitians would serve as a magnet for illegal migration from the poorest nation in this hemisphere.
Whether the balance should tip more toward humanitarian policies as a consequence of the
earthquake is an issue before the 111th Congress.
Immigration Trends
Migration by Sea
The phenomenon of Haitians coming to the United States by boat without proper travel
documents dates back at least to the 1970s. An estimated 25,000 Haitians were among the mass
migration of over 150,000 asylum seekers who arrived in South Florida in 1980 during the Mariel
boatlift.2 The U.S. Coast Guard, as described below, has been interdicting vessels carrying
Haitians since 1981. Figure 1 presents the U.S. Coast Guard data on Haitian migrants that the
Coast Guard has encountered on boats and rafts in the years following the Mariel boatlift. Most
notably, there was a drop of migrants after the Haitian elections in 1990 followed by a dramatic
upturn after the 1991 coup (discussed below). As country conditions in Haiti3 and U.S. policy
responses to the surges in Haitian boat people are considered, the spikes and valleys in Figure 1
become more understandable. Since FY1998, the Coast Guard had interdicted over 1,000
Haitians each year, with 1,198 in FY2006 and 1,610 in FY2007. Haitian interdictions were
second only to Cuban interdictions (2,868) in FY2007. In FY2009, interdictions of 1,782 Haitians
led all other countries. As of January 12, 2010, the Coast Guard had interdicted 17 Haitians in
FY2010.4


1 For further discussion on current conditions in Haiti, see CRS Report R40507, Haiti: Current Conditions and
Congressional Concerns, by Maureen Taft-Morales.
2 During a seven-month period in 1980, approximately 125,000 Cubans and 25,000 Haitians arrived by boats to South
Florida. This mass migration became known as the Mariel boatlift because most of the Cubans departed from Mariel
Harbor in Cuba.
3 For historical analysis of conditions in Haiti, see CRS Report RL32294, Haiti: Developments and U.S. Policy Since
1991 and Current Congressional Concerns, by Maureen Taft-Morales and Clare Ribando Seelke.
4 For interdiction data, see http://www.uscg.mil/hq/cg5/cg531/AMIO/FlowStats/currentstats.asp
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U.S. Immigration Policy on Haitian Migrants

Figure 1.U.S. Coast Guard Interdiction of Haitians, 1982-2009
Thousands
40
37,618
30
25,302
20
10
1,782
0
1982
1984
1986
1988
1990
1992
1994
1996
1998
2000
2002
2004
2006
2008 2009
Fiscal Year

Source: CRS presentation of U.S. Coast Guard data.
Not all Haitian migrants are interdicted by the Coast Guard, as witnessed in the widely televised
landing of over 200 Haitians in Biscayne Bay, Florida, in October 2002. Another noteworthy
incident occurred in December 2001 when a boat bringing 167 Haitians ran aground in South
Florida. In March 2007, the U.S. Border Patrol apprehended 100 Haitians who came ashore near
Miami. During 2007, there were also reports of deaths at sea when boats with Haitians capsized
or—in one report—caught fire.5
Haitians Currently Residing in the United States
In the 2000 Decennial census of the U.S. population, there were 532,000 Haitians residing in the
United States. According to Congressional Research Service estimates based on the 2006-2008
American Community Survey (a 1% sample of the U.S. population conducted by the Bureau of
the Census), there were approximately 757,000 Haitians in the United States (margin of error is
15,366). These data do not indicate the immigration status of the Haitians.
During the period 2001-2008, there were 166,281 Haitian who became legal permanent residents
(LPRs) in the United States, according to the Office of Immigration Statistics (OIS) in the

5 Manuel Roig-Franzia, “20 Haitian Migrants Die at Sea; 58 Missing,” The Washington Post, May 5, 2007, A12.
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U.S. Immigration Policy on Haitian Migrants

Department of Homeland Security (DHS).6 Many of these Haitians adjusted to LPR status as a
result of the Haitian Refugee Immigration Fairness Act of 1998, which is discussed more fully
below.
There are currently no reliable estimates of Haitians residing in the United States without
authorization (i.e., unauthorized aliens). The OIS estimates on unauthorized alien residents in
2008 do not include Haiti among the top 10 sending countries. 7
Policy Evolution
Post-Mariel Policy
The Carter Administration labeled Haitians as well as Cubans who had come to the United States
during the 1980 Mariel Boatlift as “Cuban-Haitian Entrants” and used the discretionary authority
of the Attorney General to admit them. It appeared that the vast majority of Haitians who arrived
in South Florida did not qualify for asylum according to the newly-enacted individualized
definition of persecution in §207-208 of the Immigration and Nationality Act (INA, as amended
by the Refugee Act of 1980).8 Subsequently, an adjustment of status provision was included in the
Immigration Reform and Control Act (IRCA) of 1986 that enabled Cuban-Haitian Entrants to
become legal permanent residents (LPRs).9
Interdiction Agreement
In 1981, the Reagan Administration reacted to the mass migration of asylum seekers who arrived
in boats from Haiti by establishing a program to interdict (i.e., stop and search certain vessels
suspected of transporting undocumented Haitians). This agreement, made with then-dictator Jean-
Claude Duvalier, authorized the U.S. Coast Guard to board and inspect private Haitian vessels on
the high seas and to interrogate the passengers. At that time, the United States generally viewed
Haitian boat people as economic migrants deserting one of the poorest countries in the world.
Under the original agreement, an inspector from the former Immigration and Naturalization
Service (INS) and Coast Guard official, working together, would check the immigration status of
the passengers and return those passengers deemed to be undocumented Haitians. An alien in
question must have volunteered information to the Coast Guard or INS inspector that she or he
would be persecuted if returned to Haiti in order for the interdicted Haitian to be considered for
asylum. Ultimately, INS would determine the immigration status of the alien in question. From
1981 through 1990, 22,940 Haitians were interdicted at sea. Of this number, INS considered 11
Haitians qualified to apply for asylum in the United States.

6 Department of Homeland Security Office of Immigration Statistics, 2008 Yearbook of Immigration Statistics, August
2009.
7 Department of Homeland Security, Office of Immigration Statistics, Estimates of the Unauthorized Immigrant
Population Residing in the United States: January 2008, by Michael Hoefer, Nancy Rytina, and Bryan C. Baker, 2009.
8 Aliens must demonstrate a well-founded fear that if returned home, they will be persecuted based upon one of five
characteristics: race, religion, nationality, membership in a particular social group, or political opinion.
9 §202 of the Immigration Reform and Control Act of 1986 (P.L. 99-603).
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U.S. Immigration Policy on Haitian Migrants

Crisis After the Coup
The 1991 military coup d’etat deposing Haiti’s first democratically elected President, Jean
Bertrand Aristide, however, challenged the assumption that all Haitian boat people were
economic migrants. The State Department reportedly hesitated on whether the Haitians should be
forced to return given the strong condemnation of the coup by the United States and the
Organization of American States. By November 11, 1991, approximately 450 Haitians were being
held on Coast Guard cutters while the administration of then-President George H. W. Bush
considered the options. The former Bush Administration lobbied for a regional solution to the
outflow of Haitian boat people, and the United Nations High Commissioner for Refugees
(UNHCR) arranged for several countries in the region—Belize, Honduras, Trinidad and Tobago,
and Venezuela—to temporarily provide a safe haven for Haitians interdicted by the Coast Guard.
Some of the other countries in the region were each willing to provide safe haven for only several
hundred Haitians. Meanwhile, the Coast Guard cutters were becoming severely overcrowded, and
on November 18, 1991, the United States forcibly returned 538 Haitians to Haiti.
Pre-Screening and Repatriation
The options for safe havens in third countries in the region proved inadequate for the sheer
numbers of Haitians fleeing their country, and the George H. W. Bush Administration began
treating the Haitians fleeing by boat as asylum seekers. The Coast Guard took them to the U.S.
naval base in Guantanamo, Cuba, where they were pre-screened for asylum in the United States.
During this period, there were approximately 10,490 Haitians who were paroled into the United
States after a pre-screening interview at Guantanamo determined that they had a credible fear of
persecution if returned to Haiti. On May 24, 1992, citing the surge of Haitians that month, then-
President Bush ordered the Coast Guard to intercept all Haitians in boats and immediately return
them without interviews to determine whether they were at risk of persecution. The
Administration offered those repatriated the option of in-country refugee processing.10
Safe Haven and Refugee Processing
The repatriation policy continued for two years, until then-President Bill Clinton announced that
interdicted Haitians would be taken to a location in the region where they would be processed as
potential refugees. The refugee processing policy lasted only a few weeks—June 15 to July 5,
1994. Much like the George H. W. Bush Administration, the Clinton Administration cited the
exodus of Haitian boat people as a reason for suspending refugee processing. Instead, the new
policy became one of regional “safe havens” where interdicted Haitians who expressed a fear of
persecution could stay, but they would not be allowed to come to the United States. In 1993, in-
country refugee processing was further expanded to Les Cayes and Cape Haiten. In December
1997, President Clinton instructed the Attorney General to grant deferred enforced departure
(DED) to Haitians for one year. Currently interdicted Haitians who expressed a fear of
persecution are taken for a credible fear hearing at the Guantanamo Bay detention center. If

10 CRS Report 93-233, Asylum Seekers: Haitians in Comparative Context, by Ruth Ellen Wasem. (Archived report
available upon request.)
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U.S. Immigration Policy on Haitian Migrants

deemed a refugee, they are resettled in the third country. In 2005, only 9 of the 1,850 interdicted
Haitians received a credible fear hearing and, of those—one man was granted refugee status.11
Haitian Refugee Immigration Fairness Act (HRIFA)
When Congress enacted the Nicaraguan Adjustment and Central American Relief Act
(NACARA) in November 1997 that enabled Nicaraguans and Cubans to become legal permanent
residents and permitted certain unsuccessful Central American and East European asylum
applicants to seek another form of immigration relief, it opted not to include Haitian asylum
seekers. The following year, Congress enacted the Haitian Refugee Immigration Fairness Act
(HRIFA) of 1998 (S. 1504/H.R. 3049) that enabled Haitians who filed asylum claims or who
were paroled into the United States before December 31, 1995, to adjust to legal permanent
residence. HRIFA was added to the FY1999 Omnibus Consolidated and Emergency
Supplemental Appropriations Act (P.L. 105-277) at the close of the 105th Congress.12 P.L. 110-161
deleted the requirement that the Comptroller General of the United States submit to Congress a
status report on HRIFA applications every six months.
Mandatory Detention of Aliens in Expedited Removal
Since enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)
of 1996 (P.L. 104-208), aliens arriving in the United States without proper immigration
documents are immediately placed in expedited removal. If an alien expresses a fear of being
forced to return home, the immigration inspector refers the alien to a asylum officer who
determines whether the person has a “credible fear.” IIRIRA requires that those aliens must be
kept in detention while their “credible fear” cases are pending.13 As a result, those Haitians who
do make it to U.S. shores and do express a fear of repatriation are placed in detention. After the
credible fear determination, the case is referred to an Executive Office for Immigration Review
(EOIR) immigration judge for an asylum and removal hearing, (during which there is no statutory
requirement that aliens be detained).
EOIR granted asylum to 570 Haitians and denied asylum to 2,522 Haitians in FY2006.14 EOIR
granted asylum to 587 Haitians in FY2007 and 510 Haitians in FY2008, an approval rate of 4.6%
and 4.8% respectively.15

11 Miami Herald, “U.S. Policy Unjust to Haitians Fleeing Violence,” January 9, 2006; data confirmed in telephone
conversation with DHS officials, January 12, 2006.
12 CRS Report 98-270, Immigration: Haitian Relief Issues and Legislation, by Ruth Ellen Wasem. (Archived report
available upon request.)
13 CRS Report RL33109, Immigration Policy on Expedited Removal of Aliens, by Alison Siskin and Ruth Ellen
Wasem.
14 U.S. Department of Justice, Executive Office for Immigration Review, FY2006 Statistical Yearbook.
15 U.S. Department of Justice, Executive Office for Immigration Review, FY2008 Statistical Yearbook.
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Procedural Practices and Controversies
National Security
The former INS published a notice clarifying that certain aliens arriving by sea who are not
admitted or paroled are to be placed in expedited removal proceedings and detained (subject to
humanitarian parole) in November 2002.16 This notice concluded that illegal mass migration by
sea threatened national security because it diverts the Coast Guard and other resources from their
homeland security duties. Then-Attorney General John Ashcroft expanded on this rationale in his
April 17, 2003 ruling that instructs EOIR immigration judges to consider “national security
interests implicated by the encouragement of further unlawful mass migrations ... ” in making
bond determinations regarding release from detention of unauthorized migrants who arrive in “the
United States by sea seeking to evade inspection.”17 The case involved a Haitian who had come
ashore in Biscayne Bay, Florida, on October 29, 2002, and had been released on bond by an
immigration judge. EOIR’s Board of Immigration Appeals (BIA) had upheld his release, but the
Attorney General vacated the BIA decision.18
Parole from Detention
In 2002, DOJ acknowledged that it instructed field operations “to adjust parole criteria with
respect to all inadmissible Haitians arriving in South Florida after December 3, 2001, and that
none of them should be paroled without the approval of headquarters.”19 The Administration of
President George W. Bush maintained that paroling Haitians (as is typically done for aliens who
meet the credible fear threshold) would encourage other Haitians to embark on the “risky sea
travel” and “potentially trigger a mass asylum from Haiti to the United States.” The Bush
Administration further argued that all migrants who arrive by sea posed a risk to national security
and warned that terrorists may pose as Haitian asylum seekers. Critics of the Bush
Administration’s Haitian parole policy focused on the 167 Haitians detained after their boat ran
aground in South Florida on December 3, 2001, a majority of whom reportedly passed the initial
credible fear hearing. Critics maintained that the Haitians were being singled out for more
restrictive treatment.20 They challenged the view that Haitians posed a risk to national security
and asserted that the term was being construed too broadly, being applied arbitrarily to Haitians,
and wasting limited resources.21 OIS has reported that Haitians made up 2% of the 378,582
foreign nationals detained by DHS Immigration and Customs Enforcement in 2008.

16 Federal Register, vol. 67, no. 219, pp. 68923-68926 (November 13, 2002).
17 23 I&N December 572 (A.G. 2003).
18 CRS Report RL32369, Immigration-Related Detention: Current Legislative Issues, by Alison Siskin.
19 Letter from Daniel J. Bryant, Assistant Attorney General, to Sens. Edward Kennedy and Sam Brownback, dated
September 25, 2002.
20 U.S. Senate, Committee on the Judiciary, Subcommittee on Immigration, Hearing on the Detention and Treatment of
Haitian Asylum Seekers, October 1, 2002. (Hereafter cited as Senate Subcommittee on Immigration, Hearing on
Haitian Asylum Seekers.)
21 George Lardner Jr., “More Illegal Immigrants Can Be Held Ashcroft’s Ruling Cites National Security Issues,” The
Washington Post, April 25, 2003, p. A6.
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Access to Legal Counsel
Concern also arose that the detention of Haitians interferes with access to legal counsel to aid
with their asylum cases. According to congressional testimony, attorneys in South Florida for the
detained Haitians maintained that they face various obstacles, including restricted hours to meet
with clients and a serious lack of adequate visitation space. Pro bono lawyers working with
Haitians argued that they experienced long delays waiting to see clients.22 Others pointed out that
the expedited removal provisions in INA were enacted to do just that—expedite removals. Aliens
without proper immigration documents who try to enter the United States, they argued, should not
be afforded the same procedural and legal rights as aliens who enter legally.
Issues in 111th Congress
Temporary Protected Status
The issue of Haitian TPS has arisen several times in the past few years, most notably after the
U.S. Ambassador declared Haiti a disaster in September 2004 due to the magnitude of the effects
of Tropical Storm Jeanne. More recently, a series of tropical cyclones in 2008 resulted in
hundreds of deaths and led some to label the city of Gonaives uninhabitable.23 The Administration
of President George W. Bush did not to grant TPS or other forms of blanket relief to Haitians, nor
was legislation that would have provided TPS to Haitians, such as H.R. 522 in the 110th Congress,
enacted. Opponents to Haitian TPS traditionally argue that it would result in an immigration
amnesty for unauthorized Haitians and foster illegal migration from the island.
The scale of current humanitarian crisis—estimated thousands of Haitians dead and reported total
collapse of the infrastructure in the capital city of Port au Prince—led DHS to announce on
January 13, 2010, that it is temporarily halting the deportation of Haitians. “TPS is in the range of
considerations we consider in a disaster,” stated DHS Deputy Press Secretary Matthew Chandler,
“but our focus remains on saving lives.”24 In the 111th Congress, Representative Alcee Hastings
has introduced H.R. 144, which would make nationals from Haiti eligible for TPS status. H.R.
264, introduced by Representative Shelia Jackson-Lee, includes a sense of Congress that “the
Secretary of Homeland Security should be more liberal with respect to Haiti in deciding whether
to designate that country for temporary protected status....”
On January 15, 2010, DHS Secretary Napolitano granted TPS for 18 months to Haitian nationals
who were in the United States as of January 12, 2010. She stated: “Providing a temporary refuge
for Haitian nationals who are currently in the United States and whose personal safety would be
endangered by returning to Haiti is part of this Administration’s continuing efforts to support
Haiti’s recovery.”25

22 Senate Subcommittee on Immigration, Hearing on Haitian Asylum Seekers
23 Trenton Daniel and Jacqueline Charles, “Mud and Misery Rule Storm-Ravaged City,” Miami Herald, November 2,
2008, p. A1.
24 Toluse Olorunnipa and Alfonso Chardy, “U.S. Halts Deportation of Undocumented Haitians Due to Earthquake,”
Miami Herald, January 13, 2010.
25 U.S. Department of Homeland Security, "Statement from Secretary Janet Napolitano," press release, January 15,
2010.
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Possible Mass Migration
There are growing concerns that the crisis conditions in Haiti may result in mass migration from
the country. Not only has there been massive displacement of people caused by the earthquake,
but observers of the situation warn of potential and widespread lawlessness as well as outbreaks
of disease. These health, safety, and security factors—individually or in combination—could
trigger an exodus of Haitians seeking refuge in nearby countries, including the United States. At
least five federal agencies now handle Haitian migrants: DHS’s Coast Guard (interdiction);
Customs and Border Protection (apprehensions and inspections); Immigration and Customs
Enforcement (detention); U.S. Citizenship and Immigration Services (credible fear
determination); and DOJ’s EOIR (asylum and removal hearings). DHS would take the lead in
handling a potential mass migration and has long had a set of operational plans in place to
respond to such a situation. In her TPS announcement, Secretary Napolitano warned of the
consequences of Haitians fleeing to the United States.
At this moment of tragedy in Haiti it is tempting for people suffering in the aftermath of the
earthquake to seek refuge elsewhere. But attempting to leave Haiti now will only bring more
hardship to the Haitian people and nation.... It is important to note that TPS will apply only
to those individuals who were in the United States as of January 12, 2010. Those who
attempt to travel to the United States after January 12, 2010 will not be eligible for TPS and
will be repatriated. 26
The balancing of DHS’s border security and immigration control responsibilities in the midst of a
humanitarian disaster poses a unique challenge.
Status Adjustment
Several versions of the legislation on comprehensive immigration reform that stalled in the
Senate in June 2007 (e.g., S. 1348 and S. 1639) included provisions that would have enabled
many of the Haitians in the United States without authorization to adjust to LPR status under
certain circumstances and with some penalties. In the 110th Congress, H.R. 1645 also included
provisions that would have allowed HRIFA adjustments to encompass a child of an applicant
based on the child’s age and status on October 21, 1998. H.R. 750 would have, among other
things, authorized the adjustment of status for certain nationals or citizens of Haiti who are
present in the United States. H.R. 454 would have amended HRIFA to provide that determinations
with respect to children be made according to their age and status as of October 21, 1998; would
have permitted an application based upon child status to be filed by a parent or guardian if the
child is present in the United States on such filing date; and would have included document fraud
among the grounds of inadmissibility, which would not have precluded an otherwise qualifying
Haitian alien from permanent resident status adjustment. Many of these elements are included in
a comprehensive immigration reform piece of legislation in the 111th Congress (H.R. 4321).
During the 110th Congress, §105 of the FY2008 Consolidated Appropriations Act (P.L. 110-161)
continued the prohibition of the use of funds to provide visas to certain aliens who were involved
in political violence in Haiti.

26 U.S. Department of Homeland Security, "Statement from Secretary Janet Napolitano," press release, January 15,
2010.
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Author Contact Information

Ruth Ellen Wasem

Specialist in Immigration Policy
rwasem@crs.loc.gov, 7-7342


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