Faced with a federal court order for the conditional release of most of the 1,900 Haitian refugees now in U.S. detention camps, the Justice Department issued new regulations yesterday to allow the jailing of virtually all future illegal aliens.
The new rules, which take effect immediately, allow parole exemptions for pregnant women, children and refugees with serious medical problems. Others would be paroled only at the discretion of the Immigration and Naturalization Service, which could require parolees to post bonds and prove they have close community ties, such as relatives with established addresses.
U.S. District Court Judge Eugene B. Spellman ruled June 29 in Miami that the INS violated its procedures by failing to give public notice in May when the policy of jailing the Haitians was begun.
The ruling affects refugees in seven detention camps in the United States and Puerto Rico. The Haitians are part of a flood of "boat people" fleeing the economic chaos and repressive policies of the Jean Claude (Baby Doc) Duvalier regime who have arrived on U.S. shores seeking asylum. Some have been in detention for more than a year.
Arthur P. Brill, a spokesman for the Justice Department, said yesterday that the department believes the case was lost on a "technical" point. "The law says we have a right to detain illegal aliens," he said. The rules were issued "to assure we can detain illegal aliens who come in the future."
The department has complained bitterly about the ruling, which is being appealed. The announcement of the new rules, published in yesterday's Federal Register, made it clear that the INS "strongly disagrees with the analysis and conclusions of the court."
Ira Kurzban, chief attorney for the Haitians, called the new rules on the detention policy "a throwback to a policy the U.S. government abandoned in 1954."
Kurzban also criticized the INS decision to implement the rule immediately on an emergency basis rather than after the usual 30-day waiting period. "That's nonsense," he said. "The government has never shown an emergency. There's no evidence that hordes of people are going to be coming to the U.S. if they wait 30 days."
But the INS has predicted an onslaught of Haitians and other illegal immigrants without a detention policy. "To wait 30 days for public comment before implementing the rules would mean we've got an unenforceable law," Brill said.
A number of groups representing the Haitians have claimed that the INS discriminated racially, ordering detention for dark-skinned refugees from Haiti and El Salvador, while allowing whites from other countries, including Poland, to go free.
Spellman did not find enough evidence to support those claims. But Kurzban said yesterday that if the new INS regulations are used in a racially discriminatory manner he is prepared to file further litigation.
Following Spellman's decision, Justice immediately asked for a stay of the ruling pending an appeal of the case. He refused, and the department is now attempting to obtain a stay from the 11th Circuit Court of Appeals in Atlanta, where the case is scheduled to be argued Tuesday.
Under Spellman's plan each Haitian to be freed must have a voluntary resettlement agency and an individual sponsor must agree in writing to the terms of the order, including weekly reports to third parties appointed and approved by the court. The U.S. Catholic Conference's Migration and Refugee Service offered months ago to find jobs and housing for the Haitians.
The INS has fingerprinted, photographed and compiled biographical information on the refugees, and is beginning to work on plans with the volunteer resettlement agencies. Kurzban said that unless a stay is granted the first of the Haitians could be freed within two weeks.