Center for Human Rights and Constitutional Law
Mail: PO Box 770
Bell Gardens, CA 90201
Asylum and Protection for Haitian Immigrants
January 2023
The Center for Human Rights and Constitutional Law is a non-profit, public interest legal foundation dedicated to furthering and protecting the civil, constitutional, and human
rights of immigrants, refugees, children, prisoners, and the poor. Since its incorporation in 1980, under the leadership of a board of directors comprising civil rights attorneys, community advocates and religious leaders, the Center has provided a wide range of legal services to vulnerable low-income victims of human and civil rights violations and technical support and training to hundreds of legal aid attorneys and paralegals in the areas of immigration law, constitutional law, and complex and class action litigation.
The Center has achieved major victories in numerous major cases in the courts of the
United States and before international bodies that have directly benefited hundreds of thousands of disadvantaged persons.
This practice advisory is intended to provide resources to anyone who is or who is
representing a Haitian person seeking asylum, withholding of removal, Temporary Protected
Status, or relief under the Convention Against Torture.
Manuals prepared by the Center are constantly being examined for improvements and
updated to reflect current practices. Please feel free to email pschey@centerforhumanrights.org if you would like to suggest updates or edits to portions of this practice advisory.
The Center’s practice advisories and other training materials may be accessed through
Peter Schey
President and Executive Director
Center for Human Rights and
Constitutional Law
TABLE OF CONTENTS
I. ASYLUM 4
A. Country conditions in Haiti support granting of Asylum.
1. The applicant has suffered past persecution or will likely be persecuted if deported.
2. The past or feared harm rises to the level of persecution.
3. The persecution is on account of the person’s race, religion, nationality, political opinion, or membership in a particular social group.
4. The persecution is perpetrated by the government or by an organization or individual that the government is unwilling to control.
5. The persecution is perpetrated by an organization that the government is unable to control.
6. Positive factors weigh in favor of discretionary grant of asylum.
B. Grounds for denial of asylum.
1. Internal relocation.
2. Particularly serious crime.
3. Firm resettlement bar.
4. Additional bars to granting of asylum.
II. TEMPORARY PROTECTED STATUS. 24
III. WITHHOLDING OF REMOV AL. 25
IV . CONVENTION AGAINST TORTURE.
A. Types of CAT relief.
1. Acquiescence of the government.
2. Government official acting under color of law.
3. Internal relocation.
V . CONCLUSION
I. ASYLUM
A. Country conditions in Haiti support granting of Asylum.
An asylum seeker must show that they have a “well-founded fear” of persecution based
on race, nationality, political opinion, religion, or membership in a particular social group. The
INA authorizes the Attorney General to grant asylum to a refugee. 8 U.S.C. § 1158 (b)(1)(A).
The burden of proving eligibility for asylum rests with the applicant. See id. § 1158(b)(1)(B); 8
C.F.R. § 208.13(a). In order to bring a successful asylum claim, an applicant "must produce
evidence establishing three elements: (1) that the applicant has suffered past persecution or has a well-founded fear of future persecution; (2) that the persecution is on account of h[is] race, religion, nationality, membership in a particular social group, or political opinion; and (3) that the persecution is perpetrated by an organization that h[is] home country's government is unable or unwilling to control.” Flores v. Garland, 3 F.4th 615, 626 (4th Cir. 2021) (citing Arita-Deras v. Wilkinson, 990 F.3d 350, 357 (4th Cir. 2021); Zavaleta-Policiano v. Sessions, 873 F.3d 241, 246 (4th Cir. 2017)); 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i).).
Affirmative asylum can be requested by anyone inside the United States on a valid visa,
such as a student or tourist visa, who fears persecution. Affirmative applications are processed and granted or denied by USCIS. If the applicant crosses the border without a visa or documentation, they will likely be subject to removal and will need to present a defensive asylum case to the immigration judge; they can also raise claims for withholding of removal and CAT relief.
Under Trump, Title 42, a public health regulation, was exploited to prevent asylum
seekers from entering the U.S. to request asylum. Under Title 42, a person requesting asylum at the border may be deported without the opportunity to access the asylum process. This use of Title 42 was discontinued under Biden but resumed after litigation. Haitian asylum seekers were disproportionately impacted by Title 42, which the Biden administration used to reject over20,000 Haitian asylum seekers and deport them to Haiti.1 Litigation around Title 42 continues, but at least one court has found that implementation of these expulsions violated the Administrative Procedure Act, and it is possible that these expulsions will not continue and the right to request asylum will be reaffirmed. Huisha-Huisha v. Mayorkas, Civil Action No. 21-100 (EGS), 2022 U.S. Dist. LEXIS 207282, at *14-16 (D.D.C. Nov. 15, 2022).
If they are not expelled without a hearing under Title 42, asylum seekers at the border
will likely be subjected to expedited removal. They will initially be provided a credible fear
interview with an asylum officer. If they are found to have credible fear of persecution in their
home country, they will either be referred to immigration court and immediately put into formal removal proceedings to continue through the defensive asylum process in court or their case will be referred to USCIS for an asylum merits interview. After that interview, they may be granted asylum or referred to an immigration judge for an expedited court process.2 Formal removal proceedings are lengthier and involve hearings before an immigration judge; the expedited process is quicker and may be handled administratively or may result in the person being placed in formal removal proceedings.
1. The applicant has suffered past persecution or will likely be persecuted if deported.
Though personal, individual experience of past persecution will establish eligibility for
asylum, an applicant can also rely on country conditions combined with their individual identity to articulate well-founded fear of future persecution. The UN High Commissioner for Human Rights observed that “armed violence has reached unimaginable and intolerable levels in Haiti.”3 Human Rights Watch found that “Returns to Haiti are life-threatening now, and will continue to be so, until security conditions in Haiti improve...Haiti is experiencing a dire security situation, including loss of government control over strategic areas to the hands of dangerous armed gangs, widely believed to be financed by politicians and to have police officers on their payroll. Violence has worsened an already severe humanitarian crisis.”4
Although the crisis has worsened since the 2021 assassination of President Jovenel Moïse, civil unrest in Haiti extends to before his death. Moïse had already frozen free elections, which have not been restarted under his successor Prime Minister Ariel Henry’s government. The power vacuum caused by a weakening government, growing opposition to the government, Moïse’s assassination, and undemocratic transfer of power has allowed gangs to take control of much of Haiti, exacerbating poverty and increasing violence and sexual assaults. Gangs have “set up checkpoints along roads to commit robberies…classrooms remain mostly empty, as it isn’t safe for children to go to school. Gang violence coupled with inflation have forced businesses to close, leaving people without jobs.”5 Resident Janco Damas told ABC News, “The streets are dangerous, people don’t leave their house.”6
On October 5, 2022, Haitian Prime Minister Ariel Henry asked “the entire international
community, all countries that are friends of Haiti, to stand with us and help us fight this
humanitarian crisis,” citing the need for “potable water and medicine to reach sick people when cholera starts to return, for factories that produce potable water to start working again. We need doctors and nurses … to reach the hospitals.”7 But many warn that outside military intervention could undermine autonomous Haitian leadership and result in imperialist support for allies of powerful countries who are not serving the Haitian people.8
The crisis was triggered by a blockade of a key fuel terminal led by a coalition of gangs
called G9 that began in September. 9 The blockade has “led to shortages of gasoline and diesel and halted most transport, in turn creating shortages of basic goods, including clean water.”10 The blockade came after Henry’s September announcement that the country was cutting fuel subsidies, coincides with existing civil unrest and a recent cholera outbreak, and follows devastation caused by an August 13 - 21, 2021 7.2 magnitude earthquake and Tropical Storm Grace.
As fuel blockades threatened to shut down hospitals, UN human rights experts
condemned the U.S.’s continued deportation of people to Haiti.11 A 2022 report by Amnesty
International found that country conditions are continuing to deteriorate as the Biden
administration continues and increases deportations:
The conditions in Haiti have continued to deteriorate since the Haitians expelled under the Biden administration originally left their country. The country is facing an increasingly grave humanitarian and human rights crisis including generalized gang violence, political turmoil following assassination of Haiti’ s President Jovenel Moïse, widespread food insecurity, devastation following a recent earthquake, a health system “on the brink of collapse,” and risk for Covid-19 in a country with vaccination rates under 1.6%, as of May 2022.
Haiti’ s humanitarian challenges and political unrest are still marked by the huge debt the country had to pay for decades to France in exchange of the recognition of the country’ sovereignty, equivalent to 560 million US dollars in today’ s money. According to a recent investigation conducted by the New York Times, if this money had remained in Haiti, it would have added at least 21 billion US dollars to Haiti’ s economy over the last two centuries.
The rampant insecurity and increasing gang violence have affected 1.5 million people, left an additional 19,000 internally displaced, 1.1 million in need of assistance, and have also created the worst kidnapping wave in Haiti’ s history.12
According to a report submitted by the UN Secretary General to the UN Security Council in June 2022, “despite underreporting of kidnappings and intentional homicides, the Haitian National Police nonetheless recorded 540 kidnappings from 1 January to 31 May 2022, an increase of 36.4 per cent, compared with 396 in the last five months of 2021, while the number of intentional homicides increased by 17 per cent, from 668 in the last five months of 2021 to 782 in the first five months of 2022.”13 United Nations Children’s Fund (UNICEF) documented an “Alarming spike in abductions of women and children in Haiti.” The article quotes UNICEF Regional Director for Latin America and the Caribbean Jean Gough, who stated, "Nowhere is safe for children in Haiti anymore. Whether on their way to school, at home or even at church, girls and boys are at risk of being kidnapped anywhere, at any time of the day or night. This is every parent’s worst nightmare."14
The UN Report of the Secretary General found that violence had displaced thousands and caused many to be unable to meet their basic needs:
The [gang] violence has adversely affected business activity and residents’ ability to meet their basic needs, leading to ever-worsening human rights abuses, including the recruitment of minors by armed gangs. The displacement of approximately 17,000 civilians fleeing these gang affected areas resulted in the emergence of new camps for displaced persons near zones that relief services can access only with difficulty.15
The Department of State’s Country Report states that:
Significant human rights issues included credible reports of: unlawful and arbitrary killings by gangs allegedly supported by government officials and private-sector actors; torture or cruel and degrading treatment by government agents; harsh and life-threatening prison conditions; arbitrary arrest; serious problems with the independence of the judiciary; violence or threats of violence against journalists; serious government corruption; lack of investigation of and accountability for sexual and gender-based violence; crimes involving violence or threats of violence targeting persons with physical, mental, and developmental disabilities; and forced child labor…The government rarely took steps to prosecute government and law enforcement officials accused of committing abuses and corruption, and civil society groups alleged widespread impunity regarding these acts.16
If an applicant is pursuing an appeal, they may present evidence of changed conditions to the appeal court of BIA. An asylum seeker was denied consideration of changed country
conditions between an asylum denial in 2020 and a hearing on an appeal in 2022. The applicant submitted evidence of the assassination of Moïse and ensuing unrest. The BIA declined to consider this evidence; the Third Circuit ruled, “The Board, without discussing any of [the applicant’s] newly adduced evidence, concluded that these developments were merely ‘an incremental increase in political unrest and violence in Haiti.’ It is unclear to us what, exactly, the Board would consider an adequate change in country conditions if the assassination of the country's leader is simply an ‘incremental increase’ in unrest. This cannot be. We conclude that the Board erred because it failed to explicitly consider the evidence of changed country conditions that [the applicant] submitted, including the assassination of Haiti's president and the resulting crackdown on political opponents and general political chaos.” Saint Ford v. AG United States, Nos. 21-1729, 21-3325, 2022 U.S. App. LEXIS 28265, at *12-13 (3d Cir. May 16, 2022).
2. The past or feared harm rises to the level of persecution.
To establish past persecution, an applicant must show “past harm of a severity ‘that
rise[s] to the level of persecution.’” Fon v. Garland, 34 F.4th 810, 813 (9th Cir. 2022). The Ninth Circuit has “defined persecution as the infliction of suffering or harm upon those who differ (in race, religion[,] or political opinion) in a way regarded as offensive." Korablina v. I.N.S., 158 F.3d 1038, 1043 (9th Cir. 1998). However, "persecution is an extreme concept that does not include every sort of treatment our society regards as offensive." Ghaly v. I.N.S., 58 F.3d 1425, 1431 (9th Cir. 1995). The court considers the totality of the circumstances, including factors such as “physical violence and resulting serious injuries, frequency of harm, specific threats combined with confrontation, length and quality of detention, harm to family and close friends, economic deprivation, and general societal turmoil.” Sharma v. Garland, 9 F.4th 1052, 1063 (9th Cir. 2021). “Persecution involves the infliction or threat of death, torture, or injury to one's person or freedom, on account of one of the enumerated grounds in the refugee definition." Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005).
The First Circuit states that to “show past persecution, the discriminatory experiences
must have reached a fairly high threshold of seriousness, as well as [occurred with] some
regularity and frequency…the severity and frequency of the harassment identified by the
applicant are intertwined factors that bear on the nature and extent of an applicant's
injuries…persecution requires 'more than mere discomfiture, unpleasantness, harassment, or unfair treatment' and 'implies some connection to government action or inaction.'"
Martínez-Pérez v. Sessions, 897 F.3d 33, 39-40 (1st Cir. 2018) (internal citations omitted). The Eleventh Circuit found that treatment of a Haitian asylum seeker who spoke out about his brother’s murder in the media and was “hit in the face, and threatened by officers of the National Palace, who accused Printemps of causing trouble for them [did] not rise to the level of persecution” because they were only “a few isolated incident of verbal harassment or
intimidation.” Printemps v. United States AG, 199 F. App'x 871, 874 (11th Cir. 2006).
The Third Circuit found that threats, without substantiation or actual injury, were "harms
[that] do not rise to the level of persecution. Although Avril was threatened, none of those threats materialized while Avril was living in Haiti." Avril v. AG United States, 795 F. App'x 150, 152 (3d Cir. 2020).
“Without past persecution, the applicant can still show a well-founded fear of future
persecution by showing that she genuinely fears future persecution and that her fears are
objectively reasonable." Martínez-Pérez., 897 F.3d at 39. The Printemps Court concluded that the applicant had also failed to show a well-founded fear of future persecution in Haiti because he had failed to show that he could not safely relocate, that the government would not protect him, or "specific, detailed facts showing a good reason to fear that [he] will be singled out for persecution on account of his political opinion.” Printemps, 199 F. App'x at 874.
3. The persecution is on account of the person’s race, religion, nationality, political opinion, or membership in a particular social group.
To qualify for asylum or withholding of removal, “a petitioner must demonstrate that, if
removed to her home country, [the feared persecution would be] on account of any one of five enumerated grounds: race, religion, nationality, membership in a particular social group, or political opinion.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020) (citing Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1163-64 (9th Cir. 2013)). One of these categories
must be “one central reason” for the persecution. § 1158 (b)(1)(B)(i). Economic reasons for
leaving one’s home country are not alone a sufficient basis for an asylum application, even if the economic conditions in the home country are life-threatening. Dort v. U.S. AG, No. 21-10952, 2022 U.S. App. LEXIS 13263, at *21 (11th Cir. May 17, 2022).
A particular social group is "(1) composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3) socially distinct within the society in
question." Diaz-Reynoso v. Barr, 968 F.3d 1070, 1077 (9th Cir. 2020) (internal citations omitted). An immutable characteristic is one that is either: (1) "beyond the power of an individual to change," or (2) "so fundamental to [individual] identity or conscience that it ought not be required to be changed.” Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), overruled in part on other grounds as stated in Matter of Mogharrabi, 19 I. & N. Dec. 439, 441 (BIA 1987). The proposed social group must have "social visibility” and be set apart, distinct, and identifiable. The group must also have "particularity," discrete with defined boundaries. Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020).
"To be cognizable, a particular social group must 'exist independently' of the harm
asserted." Matter of M-E-V-G-, 26 I. & N. Dec. at 236 n.11. The Ninth Circuit concluded that the proposed particular social groups, "citizens…who are targeted by gang members for extortion, robbery, and physical harm" and "young men who are recruited to join the gang," were not cognizable because they did not share any common characteristic or social distinction aside from their persecution by the gangs. Cruz-Perdomo v. Garland, No. 16-70844, 2022 U.S. App. LEXIS 14553, at *2-3 (9th Cir. May 26, 2022); Diaz-Reynoso v. Barr, 968 F.3d 1070, 1080 (9th Cir.2020) ("[A] particular social group must exist independently of the harm asserted, and . . . the BIA must consider whether a petitioner's social group is cognizable if it is defined without reference to the fact of persecution." (internal citation omitted)).
To win asylum, the applicant must articulate a particular social group of which they are a
member that is targeted for violence or persecution, a separate element from demonstrating
dangerous conditions in the country. The Ninth Circuit upheld a denial of asylum and withholding of removal to a Haitian asylum seeker in January, 2022, because although he
provided evidence of dangerous country conditions, he did not establish that the danger or
persecution would arise by reason of his membership in a particular social group or another
enumerated group. Fortilus v. Garland, No. 19-70111, 2022 U.S. App. LEXIS 1412, at *5 (9th
Cir. Jan. 19, 2022).
Some reports show that women and children are disproportionately targeted for
kidnapping and violence.17 Sources report an increasing number of cases of violence against children and women.18 On April 11, 2021, a criminal group of at least 15 individuals attacked an orphanage in the Croix-des-Bouquets neighborhood just outside Port-au-Prince, beat the managers and raped two children and one woman.19 “According to UNICEF, 73 women and children were victims of gangs between the last quarter of 2020 and mid-April 2021. [Jean Gough, UNICEF's Regional Director for Latin America and the Caribbean, warned,] ‘Children and women in Haiti are no longer merely the victims of criminal gangs — they are increasingly becoming their targets. Whether kidnappings, rapes or even killings, more and more incidents of gang violence have involved children and women in the past few weeks and months. This recent upsurge is fueling insecurity in the impoverished country.’"20
Gender and age alone may not be considered particular social groups by some courts.
Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991) (explaining that the traits that characterize a
social group must be "recognizable and discrete," and that "broadly-based characteristics such as youth and gender" will not by themselves suffice to define a particular social group for the purposes of an asylum claim); but see Lesly Yajayra Perdomo v. Holder, 611 F.3d 662, 666 (9th Cir. 2010) (“Whether females in a particular country, without any other defining characteristics, could constitute a protected social group remains an unresolved question for the BIA.”). More specific groups, such as minors in orphanages or women who are single mothers, may qualify. Matter of A-R-C-G-, 26 I&N Dec. 388, 390 (BIA 2014) (finding that married women in Guatemala who were unable to leave their husbands constituted a particular social group) (precedent overturned, then reinstated by Matter of A-B-, 28 I. & N. Dec. 307, 307, 2021 BIA LEXIS 14, *1 (B.I.A. June 16, 2021).). Women of a certain background, religion, or subgroup, and possibly women from a particular city or area, may constitute a particular social group. Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005) (“females, or young girls of a particular clan, met our definition of a particular social group.”).
Although many justifiably fear returning to Haiti because their ties to the U.S. or criminal
convictions, if a criminal conviction exists, may put them in danger, deportees and people with criminal or drug convictions also do not constitute particular social groups. Dor v. AG United States, No. 21-3030, 2022 U.S. App. LEXIS 12418, at *6-7 (3d Cir. May 9, 2022) (“to the extent Dor claimed he would be harmed as a deportee, a person with relatives in the United States, or a person who does not know the country, such persons do not constitute a ‘particular social group.’ Dor has not shown any legal error in this regard.”); Toussaint v. Att'y Gen., 455 F.3d 409, 418 (3d Cir. 2006) ("criminal deportees are not recognized as a social group."). It is unlikely that an applicant could successfully argue that Westernization or clear ties to the U.S. alone create particular social groups. Perez-Zenteno v. United States AG, 913 F.3d 1301, 1308 (11th Cir. 2019) (“‘Mexican citizens targeted by criminal groups because they have been in the United States and they have families in the United States’ -- is not legally cognizable as a particular social group.”). However, the applicant could argue that their ties to the U.S. are part of a political opinion if they can show that such ties caused them to oppose or to be perceived to oppose a particular government, government official, or group closely tied to the government.
Vocation alone does not qualify a person for membership in a particular social group,
because it is mutable. Vicente v. INS, No. 98-71132, 2000 U.S. App. LEXIS 29893, at *4 (9th
Cir. Nov. 15, 2000) (“Health care professionals in the Philippines may share some common
interests and characteristics, but they are [not sufficiently] cohesive and…we cannot conclude that accountants or engineers constitute a social group simply because they share a common vocation.”) However, former membership in a profession cannot be changed and may constitute a qualifying particular social group. Sepulveda v. Gonzales, 464 F.3d 770, 772 (7th Cir. 2006) (“The social group to which Sepulveda belongs consists of former, not present, employees of the Attorney General's Office. From that group he cannot resign.”)
Past employment in specific professional groups may constitute particular social groups,
and some reports have found that certain professions are disproportionately targeted in Haiti.
“Sources report that the wave of kidnappings has involved victims from different social groups including doctors, students, merchants and police officers as well as the poor and members of the middle class.”21 Hospitals have closed and doctors have been striking as a result of the high number of kidnappings of healthcare professionals. “'We are living a catastrophic situation where no one is protected,' said Dr. Louis Gerald Gilles, who closed his private practice on Tuesday in the neighborhood of Delmas to protest the recent kidnappings of two doctors. 'No professional is protected. Today it could be a doctor, tomorrow they could enter the office of a lawyer or an architect.'”22
Being persecuted for political opinion is also a ground for asylum. “In 2020, ACLED
records at least 17 attacks targeting judges, lawyers, political activists, and current and former civil servants. Targeted killings are facilitated by a weak judicial system and a culture of impunity.” In some cases, judges and officials are targeted for speaking out about the
assassination of Moïse or the corruption of Henry’s government.23 Challenging the government may constitute a protected political opinion.
Courts have found that individuals resisting recruitment to a gang or being otherwise
vulnerable to gang violence is not a particular social group because it does not have any common characteristic independent of that shared vulnerability. "Haitians who refuse to join the gangs, or be a gang member in Haiti" is not cognizable. See Alanniz v. Barr, 924 F.3d 1061, 1068-69 (9th Cir. 2019); Oscar v. Garland, 859 F. App'x 45, 46 (9th Cir. 2021). However, gangs in Haiti receive government support for intimidating political opponents of government officials.24 An applicant does not need to prove that "he . . . actually held a political opinion or acted in furtherance of it, but must provide 'some evidence' . . . that the persecutor was motivated by a belief that the petitioner held the political opinion." Charles v. Garland, 853 F. App'x 148, 149 (9th Cir. 2021) (quoting Khudaverdyan v. Holder, 778 F.3d 1101, 1106 (9th Cir. 2015).). If a gang is closely tied to a government or political party, opposition to or conflict with that gang may constitute a political opinion for purposes of asylum. Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir. 1988).
To establish persecution based on political opinion, the applicant must produce clear
evidence that any persecution was based on a specific political view, affiliation, or perceived
view and should ideally identify the group or groups responsible for the persecution. Many
courts have not adequately acknowledged the current conditions in Haiti, so specific, extensive proof of political violence is important. In one case, an applicant could not identify the individuals who threatened and shot at him but believed these attacks were because he was a member of the Pitit Desalin party. The court found “That is not enough…Haiti's political
violence…was not so widespread to ‘establish that similarly situated persons to the respondent are persecuted by [Tèt Kale].’” Celicourt v. Barr, 980 F.3d 218, 221 (1st Cir. 2020). This case illustrates the need for clear allegations and strong evidence, both of general political unrest and of persecution related to the individual. The applicant in Celicourt argued that there was no other explanation for the attack; to strengthen their petition, an applicant should provide affirmative evidence, including any other statements, context, evidence or personal knowledge of persecution of similarly situated individuals, and reports and news articles corroborating the prevalence of similar persecution in the country.
Since 2020, the assassination of Moïse and ensuing rise of gang power and violence have worsened country conditions and courts might view an application more favorably if evidence of those changes were submitted. If the applicant can show that they have a well-founded fear of persecution because of their membership in a clearly defined particular social group or another protected characteristic, they may be eligible for asylum.
4. The persecution is perpetrated by the government or by an organization or individual that the government is unwilling to control.
An applicant must not only show that they were or would be persecuted, but also that the persecution is at the hands of government officials or that the government is unable or unwilling to control the persecution.
Establishing that gangs act on behalf of or are closely tied with the government, or that
their actions are politically motivated, may establish government involvement or acquiescence. “Political elites in power in Haiti have long relied on gangs to terrorize the population and suppress opposition votes through intimidation and the use of force against residents of marginalized neighborhoods in the capital — hotbeds of Haiti’s political opposition…In exchange, gangs receive government support in the form of funds, weapons, and the assurance that their crimes will go unpunished.”25
Amnesty International, referring to an April 2021 report by the Observatoire Haïtien des
Crimes contre l’humanité (OHCCH) and Harvard Law School’s International Human Rights
Clinic, noted the “complicity of the Haitian government in three massacres carried out by gangs between 2018 and 2020. The attacks targeted impoverished neighborhoods and according to the report could amount to crimes against humanity.”26
Reports indicate that criminal gangs enjoy impunity and, in some cases, act as
representatives of the authorities, repressing political opponents and demonstrators in exchange for amnesty, funding, and weapons. Since Moïse’s presidency, “state actors have supported the orchestration and execution of [] attacks” including La Saline, the worst massacre in decades.27 These attacks reveal “a pattern of state-sanctioned violence, human rights abuses, and refusal to hold perpetrators accountable that likely amounts to crimes against humanity.”28 The same gangs who carried out these political massacres under Moïse, including G9 gang leader Jimmy Cherizier, remain in power as G9 takes over much of Haiti. The IRB Canada reports that “according to sources, the G9 is involved in political decision-making, including appointments and dismissals…many officers…have sworn allegiance to [gang leader] Jimmy Cherizier aka Barbecue. They are paid exorbitant sums for services rendered.”29
Nicole Philips, legal director at Haitian Bridge, told the Guardian, “As the government
has grown weaker [after the assassination of Moïse] its reliance on the gangs to maintain order has increased. What appears to be state resistance is often a show intended to mask that many of the gangs are collaborating with the government. Any skirmishes are symbolic. The reason the gangs are being allowed to proliferate is because elections are coming up.”30
The U.S. Department of State found that “The government rarely took steps to prosecute government and law enforcement officials accused of committing abuses and corruption, and civil society groups alleged widespread impunity regarding these acts.”31 A report to the UN by the Institute for Justice and Democracy in Haiti noted that “Impunity for human rights abuses has deepened and is contributing to Haiti’s current state of catastrophic insecurity."32
5. The persecution is perpetrated by an organization that the government is unable to
control.
Even if an applicant couldn’t prove that the government was complicit or unwilling to
control gang violence, they might still be able to establish that the government was unable to do so.
“Sources report that there are 500,000 illegal weapons in circulation according to Haiti's
National Commission for Disarmament, Dismantlement and Reintegration (Commission nationale de désarmement, démantèlement et réinsertion, CNDDR). 1,380 voluntary homicides were reported in 2020, 75 percent of which occurred in the Ouest department, representing a 20 percent increase compared to 2019.”33
The judiciary is largely dismantled and “[t]he Palace of Justice had been largely
inoperative since 2018 due to security risks…The gangs appear to have stolen or destroyed case files and evidence that, the president of the Association of Haitian Magistrates said, would be impossible to recover [including] evidence and files concerning multiple massacres committed since 2018 by gangs, as well as corruption, financial crimes, and homicides.”34
Many are killed, kidnapped, or raped and homes are burned to the ground as gangs
expand their control of the capital and other cities. “I have four kids, but my first is missing and I can’t find him,” one woman told CNN. “We’ve been totally abandoned by the state and have to pay to even use a toilet,” another woman said.35
As gangs take over much of Haiti, the government seems at minimum unable to fight
their expanding power. “Haiti is experiencing...loss of government control over strategic areas to the hands of dangerous armed gangs, widely believed to be financed by politicians and to have police officers on their payroll...Haiti is also enduring a deep political and constitutional crisis.”36 Haiti no longer holds elections, and its weakened government is seen by many as illegitimate: "After disbanding the Provisional Electoral Council on 27 September 2021, the Prime Minister made initial attempts to engage various sectors in forming a new body which did not gain much traction. Citing the continued deterioration in the security situation, several sectors declined to nominate candidates for the nine positions of electoral councillors.”37 Gangs have filled this power vacuum and the government has made virtually no progress taking back parts of the country occupied by gangs.
6. Positive factors weigh in favor of discretionary grant of asylum.
A decision to grant asylum is discretionary when the petitioner shows a likelihood of
persecution but there are negative factors. The “danger of persecution will outweigh all but the most egregious adverse factors.'" Wu Zheng Huang, 436 F.3d at 98 (quoting In re Kasinga, 21 I. & N. Dec. 357, 367 (BIA 1996)). Past persecution weighs in favor of granting asylum, as do “general humanitarian reasons, independent of the circumstances that led to the applicant's refugee status, such as his or her age, health, or family ties.” In re H-, 21 I. & N. Dec. at 347-48. “Adverse factors include criminal convictions, ‘significant violations of national immigration laws,’ and the ‘manner of entry into this country.’” Xin Lin v. Barr, 819 F. App'x 38, 39-40 (2d Cir. 2020) (quoting Wu Zheng Huang, 436 F.3d at 98.). This includes any immigration violations or fraud in attempting to stay in the U.S., failure to appear at scheduled hearings, working without authorization, and criminal history. Judges weigh “negative factors” against “positive factors.”
Positive factors include: “1) Family, business, community, and employment ties to the
United States, and length of residence and property ownership in this country; 2) Evidence of
hardship to the alien and his family if deported to any country, or if denied asylum such that the alien cannot be reunited with family members (as derivative asylees) in this country; 3) Evidence of good character, value, or service to the community, including proof of genuine rehabilitation if a criminal record is present; 4) General humanitarian reasons, such as age or health; [and] 5) Evidence of severe past persecution and/or well-founded fear of future persecution, including consideration of other relief granted or denied the applicant (e.g., withholding of removal or CAT protection).” Sathanthrasa v. AG United States, 968 F.3d 285, 294 (3d Cir. 2020); see also Shahandeh-Pey v. INS, 831 F.2d 1384, 1387 (7th Cir. 1987) (listing positive factors).
The applicant may show, for example, community involvement such as volunteering,
family ties such as U.S. citizen children, hardship to a U.S. citizen or permanent resident such as a spouse or dependent who relies on the petitioner’s income, and lack of recent criminal history.Testimony and letters of support from family, religious leaders, community organizations, and friends can support an application for asylum, as can documents showing other positive factors, such as pictures or written acknowledgement of volunteer activities. Although other types of relief, such as CAT, are not discretionary, they generally do not provide a pathway to citizenship as asylum does. Additionally, showing positive factors provides context to the judge and may influence their analysis even where the decision is not statutorily discretionary.
B. Grounds for denial of asylum.
1. Internal relocation.
The government “may deny asylum and withholding of removal if it finds by a
preponderance of the evidence that ‘[t]he applicant could avoid future persecution by relocating to another part of the applicant's country of nationality.’ 8 C.F.R. § 1208.13(b)(1)(i)(B).” Martinez v. Garland, No. 15-72614, 2022 U.S. App. LEXIS 7899, at *3 (9th Cir. Mar. 23, 2022). Once the applicant has established eligibility for asylum, the burden shifts to the government to show that they could safely and reasonably relocate to another part of the country. Singh v. Garland, No. 21-70289, 2022 U.S. App. LEXIS 6955, at *3 (9th Cir. Mar. 17, 2022). If the applicant establishes that they have a well-founded fear of persecution, the government is also “required to presume…that internal relocation would not be reasonable…The government therefore had the burden of proving "by a preponderance of the evidence that, under all the circumstances, it would be reasonable for the applicant to relocate." Pierre v. Mukasey, 292 F. App'x 696, 697 (9th Cir. 2008); 8 C.F.R. § 1208.13(b)(1); 8 C.F.R § 1208.13(b)(3)(ii); Boer-Sedano v. Gonzales, 418 F.3d 1082, 1090 (9th Cir. 2005). The same presumption applies in the withholding context.
In Pierre, the Ninth Circuit found that the BIA had applied the wrong standard in finding
that internal relocation would be reasonable and remanded the case, directing the BIA that it
could not require the applicant to prove that relocation was unreasonable; it was the burden of the BIA to prove that relocation would be reasonable considering all the circumstances, and the presumption of well-founded fear (based on past persecution) required a presumption that relocation was unreasonable. Id.
Gangs have taken over Port-au-Prince and Cite Soleil. One person, who was afraid to
share his name, told the Guardian, “I know this is Haiti and I have heard of the security issues elsewhere in places like Cité Soleil. But my neighbourhood was peaceful. I never thought I would one day be forced out of my home by the gangs.”38 Those who escape the capital are forced to live “far from their homes or shelter in makeshift camps set up by NGOs such as Mercy Corps.”39 There are limited resources, water, and access to medical care, and rural areas that are not under the direct control of the gangs are still deeply impacted by the diaspora of tens of thousands from the occupied cities.
Once they establish a well-founded fear of persecution, an applicant could rebut the
government’s allegation that relocation would be reasonable by showing the widespread impact of gang violence, the lack of housing and basic resources in unoccupied areas, the potential for persecution by the government even outside gang-controlled areas, or other circumstances that would make relocation unreasonable.
2. Particularly serious crime.
Both asylum and withholding of removal will be barred if the applicant has committed a
particularly serious crime. An aggravated felony is per se a particularly serious crime. In the
asylum context, any crime for which the applicant has been convicted that is not an aggravated felony will be considered on a case by case basis by the judge to determine whether it is a particularly serious crime. In a withholding of removal proceeding, the judge will consider any crimes that are not aggravated felonies that resulted in an aggregate sentence of five or more years. Miguel-Miguel v. Gonzales, 500 F.3d 941, 946 (9th Cir. 2007). A conviction for a “particularly serious crime” may bar a person from eligibility for asylum or withholding, although they can still apply for CAT relief.
If the crime is not a per se bar to the sought relief, the judge will rely on the Frentescu
factors to consider whether it is particularly serious. The judge must “independently examine the underlying allegations of each offense," “whether either offense as a standalone could bring it within the particularly-serious-crime category,” “weigh[ing any] lenient sentence imposed,” and considering “critical facts relative to the underlying circumstances of [the] offense conduct” including whether there was intent to harm. Dor v. Garland, 46 F.4th 38, 46 (1st Cir. 2022). The judge must provide a meaningful, rational explanation for their conclusion.
3. Firm resettlement bar.
Many Haitian asylum seekers arrive to the U.S. via land routes through South and Central America. If the applicant has lived for any length of time in another country, they may be subject to the firm resettlement bar.
“An applicant who ‘firmly resettled in another country prior to arriving in the United
States’ is statutorily ineligible for asylum.” Dort v. U.S. AG, No. 21-10952, 2022 U.S. App.
LEXIS 13263, at *15-17 (11th Cir. May 17, 2022); INA § 208(b)(2)(A)(vi), 8 U.S.C. §
1158(b)(2)(A)(vi). The firm resettlement bar applies when "prior to arrival in the United States, [the applicant] entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement." 8 C.F.R. § 1208.15.
There are two exceptions to the firm resettlement bar. “First, an applicant is not
considered firmly resettled if he entered the third country as ‘a necessary consequence of his . . . flight from persecution’ and if he ‘remained in that country only as long as was necessary to arrange onward travel, and . . . did not establish significant ties’ there.” Dort, 2022 Lexis 13263 at 15-17. A person who was turned away at the U.S. border and instructed to await a scheduled asylum hearing in Mexico under the Migrant Protection Protocols program (MPP or Remain in Mexico) or because of metering could overcome the resettlement bar. Similarly, travel through other countries as part of a continuing journey towards the U.S. would likely not bar that person from seeking asylum in the U.S. If the person spent significant time in a single country, especially if they established any roots such as getting a job or settling or growing their family,they will need to show that they are ineligible for permanent residence in the country or are not in fact settled in that country.
“Second, an applicant is not considered firmly resettled if the conditions of his residence
in the third country were ‘so substantially and consciously restricted by the authority of the
country of refuge that he . . . was not in fact resettled.’” Dort, 2022 Lexis 13263 at 15-17. To
establish this second exception, an asylum seeker may show various conditions, such as that they are substantially disadvantaged in comparison to native residents of the country or that work or housing is not accessible to the asylum seeker. An applicant need not “prove fear of persecution to qualify for the exception. While persecution would be sufficient to show that [they were] not firmly resettled in [the third country], it is not necessary. The exception applies so long as ‘the conditions of [the asylum seeker’s] residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled.’” Louis v. Garland, No. 20-72469, 2022 U.S. App. LEXIS 723, at *4 (9th Cir. Jan. 11, 2022).
In the Eleventh Circuit case Dort, the petitioner “obtained residency status and work
authorization in Brazil, and…began a relationship with a woman in Brazil and had a son there.” Dort v. U.S. AG, No. 21-10952, 2022 U.S. App. LEXIS 13263, at *6 (11th Cir. May 17, 2022). Although the petitioner stated that economic changes in Brazil led to increased discrimination against Haitians and that this was the reason he had travelled to the U.S., the Eleventh Circuit affirmed the BIA decision to deny his appeal on two grounds. First, they found inconsistencies in his testimony about political persecution made him uncredible and the fact that he had relatives in Haiti supported a conclusion that he did not have well-founded fear of returning. Second, they found that his residency status and family in Brazil constituted resettlement, barring him from asylum.
In the Ninth Circuit, another Haitian asylum seeker was denied asylum by an immigration judge and, on appeal, by the Board of Immigration Appeals, because he had lived for a significant period of time in Brazil and could not show that he had a well-founded fear that he would be persecuted there. The Ninth Circuit found that the BIA had applied the wrong standard and that Louis could still be eligible for asylum even without fear of persecution in Brazil if he could show that his life in Brazil was substantially and consciously restricted by Brazil’s authorities. Louis v. Garland, No. 20-72469, 2022 U.S. App. LEXIS 723, at *4 (9th Cir. Jan. 11,2022). To establish that they are not in fact resettled under this exception, an applicant should provide evidence that they have experienced racism or discrimination and any evidence showing the impact of that discrimination on their life, including access to work and housing and impact on their personal safety.
4. Additional bars to granting of asylum.
The applicant “ordered, incited, assisted, or otherwise participated in the persecution of any
person” on a protected ground. This could be raised in multiple circumstances, including if the applicant served in their country of persecution’s military or government or participated in
resistance to their government that could be considered violent or gang activity.
The applicant acted as a terrorist or supported a terrorist group. This could be raised in multiple circumstances, including if the applicant was forced to pay a protection fee to a gang
that took control of their town or city or was part of an organization that used violence.
The applicant did not apply for asylum within one year of arriving in the U.S. (this would
usually not apply to applicants who request asylum at the border). This bar may also be
overcome by arguing that circumstances in the applicant’s identity or the country conditions have changed or if an extraordinary circumstance caused the delay in filing.
The applicant committed a serious crime in their country of persecution, whether or not
they were convicted, unless the action was a crime because of its political nature (for example, dissenting from the views or questioning the leadership of a dictator).
II. TEMPORARY PROTECTED STATUS.
“Department of Homeland Security (DHS) regulations, implementing the provisions of
section 244 of the Act, 8 U.S.C. § 1254a, provide that an applicant who is a national of a foreign state designated by the Secretary of Homeland Security is eligible for TPS if he or she establishes, among other criteria, that he or she has been continuously physically present in theUnited States since the effective date of the most recent designation of that foreign state and has continuously resided in the United States since a date designated by the Secretary.”2022 Immig. Rptr. LEXIS 1210, *1-2; 8 C.F.R. § 244.2.
On December 5, 2022, Secretary Mayorkas extended TPS for Haiti to February 4, 2023
and redesignated Haiti for TPS for November 6, 2022. This means that Haitians (and persons without nationality who last habitually resided in Haiti) through the recent designation must demonstrate continuous residence in the United States since November 6, 2022, and continuous physical presence in the United States since August 3, 2021. Haitians who were granted temporary protected status under the August 3, 2021 designation will have their protection extended through August 3, 2024.
In redesignating Haiti, Mayorkas cited “the extraordinary and temporary conditions…including a prolonged political crisis; grave insecurity and gang crime that worsened a dire economic situation; a lack of access to food, water, fuel and health care during a resurgence of cholera; and the recent catastrophic earthquakes.”
To establish proof of continuous presence, the petitioner must collect clear evidence, such as records of employment, proof of housing, and financial records. Unsupported testimonial evidence alone may be insufficient. 2022 Immig. Rptr. LEXIS 1147, *3 (Haitian TPS “Applicant’s sister-in-law’s affidavit does not include the detail and specificity needed to
establish residence during these dates through unsupported testimonial evidence alone.”).
Initial applications for TPS for Haiti are currently being processed in approximately 12.5
months. Applicants may submit an i-765 application for employment authorization simultaneously with their i-821 application for TPS; the employment authorization application
based on TPS has the same processing time of 12.5 months.
III. WITHHOLDING OF REMOV AL.
A person may be barred from asylum under a bar enumerated above, such as the one-year bar, but still be eligible for withholding of removal. Withholding of removal requires the
petitioner to meet a similar but more stringent standard than the asylum standard. “Petitioner can show he is entitled to withholding of removal by proving that, if returned to his country, his lifeor freedom would [more likely than not] be threatened on account of his ‘race, religion,
nationality, membership in a particular social group, or political opinion.’” Dort, 2022 Lexis
13263 at 15-17; INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). To be granted withholding of
removal, the petitioner must demonstrate that he would "more likely than not" be persecuted if returned to his country. D-Muhumed v. U.S. Att'y Gen., 388 F.3d 814, 819 (11th Cir. 2004). The applicant must show a "clear probability" of persecution.” Avril v. AG United States, 795 F. App'x 150, 152 (3d Cir. 2020).
“An alien who shows that it is ‘more likely than not’ that she would be persecuted on
account of a protected ground by the government or an actor the government is unable or
unwilling to control meets the requirements of withholding of removal and may not be removed to her native country.” 8 C.F.R. § 208.16(b)(2); Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001).” Quiambao Vitug v. Holder, 723 F.3d 1056, 1064 (9th Cir. 2013).
IV . CONVENTION AGAINST TORTURE.
Someone who cannot get asylum or withholding of removal may still apply for CAT
relief. Relief under CAT is not discretionary, so individuals who are not eligible for asylum must still be granted CAT if they can show that they are more likely than not to be tortured if deported. 8 CFR 1208.16(c)(2). CAT does not require an applicant to show that they are tortured on the basis of membership in a particular social group.
A. Types of CAT relief.
A person “shall be determined to have a reasonable fear of . . . torture if the alien
establishes a reasonable possibility that he or she would be . . . tortured in the country of
removal." See 8 C.F.R. § 208.31(c). The applicant bears the burden of proof for establishing
entitlement to CAT relief. See Reyes-Sanchez v. United States AG, 369 F.3d 1239, 1242 (11th Cir. 2004); Lingeswaran v. United States AG, 969 F.3d 1278, 1293 (11th Cir. 2020).
There are two types of CAT protection, withholding and deferral. If an applicant is
ineligible for withholding of removal due to a bar such as having committed a particularly
serious crime or aggravated felony, persecuted others, committed serious non-political crimes outside the U.S., or been deemed a danger to the U.S., they are not eligible for withholding of removal under CAT. However, “an alien who is deemed ineligible for withholding of removal may nevertheless qualify for deferral of removal under the CAT.” Cruz-Gonzalez v. Garland, No. 21-70288, 2022 U.S. App. LEXIS 17375, at *3 (9th Cir. June 23, 2022).
Both withholding and deferral under CAT provide an opportunity to stay in the U.S. and
apply for work authorization. Deferral of removal under 8 CFR § 1208.17(a) offers relief similar to that of withholding, but procedures for terminated deferral and reopening removal procedures are easier for the government.”40
CAT does not provide a path to citizenship or permanent residence and only prevents
deportation to the specific country or countries that are the subject of the application for relief. Because of this, if the person is eligible for residence in another country where a likelihood of torture has not been established, they may still be removed to that country.
41 A person who is granted CAT and is not deported to another country can apply for work authorization.42
1. Acquiescence of the government.
To qualify for CAT protections, the petitioner must show that the torture would be
“inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official
acting in an official capacity or other person acting in an official capacity.'" Farah v. United
States AG, 12 F.4th 1312, 1327 (11th Cir. 2021) (quoting 8 C.F.R. § 1208.18(a)(1)); accord
Lingeswaran, 969 F.3d at 1293.
To show that the government actor acquiesced “requires that the public official, prior to
the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity." Lingeswaran, 969 F.3d at 1293 (quoting 8 C.F.R. § 208.1[8](a)(7)); Priva v. United States AG, 34 F.4th 946, 957 (11th Cir.
2022).
Although one applicant for CAT relief asserted “that Haitian police were corrupt and that
reports to a higher officer or official could make things worse,” the court upheld the asylum
officer’s determination that he “failed to provide specific evidence in support of his belief” and
had provided no evidence that officials with awareness of threats to his safety would consent or acquiesce to violence against him. Priva v. United States AG, 34 F.4th 946, 958 (11th Cir. 2022).
Where an applicant testified that he went to the police after a gang attacked him and the
same gang was able to find him after he had moved to another city shortly after, the court
determined that this evidence was insufficient to show government acquiescence, partly because he provided insufficient evidence that police had refused to investigate the attack. Charles v. Garland, 853 F. App'x 148, 150 (9th Cir. 2021) (the applicant “did not provide a police report…conjecture that the police did not investigate his first attack because the gang was able to find him again does not compel a finding that the Haitian government acquiesced to his alleged torture.”)
Specific evidence that the perpetrators of torture are supported by the government or that the government is unable to control them will support this element. Some of the same evidence used to support a claim that persecution is perpetrated by an organization that the applicant’s home country’s government is unable or unwilling to control in an asylum petition may be used for the this element of a CAT claim if the persecution meets the definition of torture.
2. Government official acting under color of law.
If arguing that a government actor will perpetrate the torture, the petitioner must prove
more than that the individual likely to commit the act of torture is a government official, the
petitioner must prove that they would be acting under color of law. An official is acting under
color of law if acting within the scope of their official capacity and not in their individual
capacity. United States v. Belfast, 611 F.3d 783, 804, 808 (11th Cir. 2010) (explaining that, under CAT, "there is no distinction between the meaning of the phrases 'under the color of law' and in 'an official capacity'").
Where an individual offered evidence that several people in Haiti, including some police
officers, threatened and planned to murder him, a court found that he hadn’t sufficiently
established that those officers would be acting under color of state law as opposed to in their
individual capacities, barring him from CAT relief. Priva v. United States AG, 34 F.4th 946, 957 (11th Cir. 2022).
3. Internal relocation.
Under Ninth Circuit precedent, section 1208.16(c)(2) (CAT regulation) requires the
applicant to prove that relocation would not reduce the likelihood of torture significantly enough that it would fall below the CAT standard (more likely than not). CAT “does not place a burden on an applicant to demonstrate that relocation within the proposed country of removal is impossible because the IJ must consider all relevant evidence; no one factor is determinative.” Maldonado v. Lynch, 786 F.3d 1155, 1164 (9th Cir. 2015). The burden is neither on the government nor the applicant to prove whether relocation is possible; rather, the government should consider it based on all evidence presented under the likelihood of torture standard.
In the Second Circuit, the applicant must “demonstrate that it would be ‘impossible’ for
her to relocate within Haiti to avoid torture.” Pierre v. Lynch, 639 F. App'x 707, 710 (2d Cir.
2016). In Pierre v. Lynch, the Second Circuit found that the BIA improperly relied on evidence
that the petitioner had living relatives in Haiti because those relatives were in hiding, which did not constitute internal relocation. Id. Where internal relocation would not significantly reduce the likelihood of torture, it will not prevent the judge from granting CAT relief.
V . CONCLUSION
A petition for asylum, withholding of removal, or CAT must rely heavily on
individualized, specific evidence that allows an immigration judge to make a case-by-case
determination. As much as possible, the applicant should show clear, concrete evidence of
persecution or torture based on their individual identity as well as objective sources like reportsand news articles that support their fear. Past persecution or torture weighs strongly in favor of the applicant and is in some cases enough to establish eligibility.
The immigration system, including the agencies and courts that decide the fates of
asylum seekers, are prejudiced and lack adequate knowledge of country conditions in Haiti.
Advocates and asylum seekers from Haiti should educate the judge or agency reviewing their case about crises in Haiti, make clear how these crises have and will affect them personally based on their individual identity and circumstances, and seek to paint a vivid and detailed picture of the impact of these dangers on the individual while remaining aware of the rights and vulnerabilities of a Haitian person navigating an unjust immigration system.
1 NPR, After Del Rio, some Haitian migrants found safety in the U.S. But many have not. (September 7), https://www.npr.org/2022/09/07/1120775143/after-del-rio-some-haitian-migrants-found-safety-in-the-u-s-but-many-have-not.
2 American Immigration Council, Asylum in the United States (August 2022),
3 Eileen Sullivan, US Accelerated Expulsions of Haitian Migrants in May, The New York Times (June 9, 2022),
4 Human Rights Watch, Haitians Being Returned to a Country in Chaos (Mar. 24, 2022),
https://www.hrw.org/news/2022/03/24/haitians-being-returned-country-chaos.
5 Anselm Gibbs, 'Every day you're hopeless': Haitians eye foreign help warily as gangs, cholera outbreak take toll, ABC News (October 19, 2022), https://abcnews.go.com/International/everyday-hopeless-haitians-eye-foreign-warily-gangs-cholera/story?id=91656041.
6 Id.
7 Reuters, Haiti's PM Henry calls for foreign help amid gang blockade (October 5, 2022),
8 Vélina Élysée Charlier et al., Six Ways the US and the International Community Can Help Haiti Without Armed Intervention, Just Security (Oct. 19, 2022), https://www.justsecurity.org/83640/six-ways-the-us-and-the-international-community-can-help-haiti-without-armed-intervention/.
9 Reuters, What's driving Haiti's humanitarian crisis? (October 19, 2022), https://www.reuters.com/world/americas/whats-driving-haitis-humanitarian-crisis-2022-10-18/.
10 Id.
11 United Nations, UN rights experts condemn US expulsion of Haitian migrants and refugees (Oct. 25, 2021), https://news.un.org/en/story/2021/10/1103962.
12 Amnesty International, They Did Not Treat Us Like People, p.31 (2022),
https://www.amnesty.org/en/documents/amr36/5973/2022/en/ (internal citations omitted).
13 United Nations Integrated Office in Haiti UN Doc. S/2022/481, Report of the Secretary General, p. 3 (June 13, 2022), https://documents-ddsny.un.org/doc/UNDOC/GEN/N22/371/55/PDF/N2237155.pdf?OpenElement.
14 UNICEF, Alarming spike in abductions of women and children in Haiti, (Oct. 21, 2021),
15 United Nations Integrated Office in Haiti UN Doc. S/2022/481, Report of the Secretary General, p. 3 (June 13, 2022), https://documents-ddsny.un.org/doc/UNDOC/GEN/N22/371/55/PDF/N2237155.pdf?OpenElement.
16 Department of State, Country Report 2021: Haiti (2021),
17 IRB Canada Report on Security Conditions in Haiti, Haiti: Security situation and criminal groups, including the Group of 9 and kidnappings; state protection (July 2021), https://www.ecoi.net/en/document/2057120.html (citing Jameson Francisque, Haïti : le gouvernement des gangs, AyiboPost and Connectas (February 2021), https://www.connectas.org/especiales/haiti-el-gobierno-de-las-pandillas/fr/.; Freedom House, "Haiti." Freedom in the World 2021 (3 March 2021), https://freedomhouse.org/country/haiti/freedom-world/2021.).
18 HaïtiLibre, Armed Men Rape Two Children and an Adult in an Orphanage (15 April 2021),
https://www.haitilibre.com/en/news-33484-haiti-flash-armed-men-rape-two-children-and-an-adult-in-an-orphanage.html; Jacqueline Charles, Haiti Orphanage Attacked by Armed Bandits, Children Sexually Assaulted, Manager Says, Miami Herald (April 13, 2021),
archive.
19 Id.
20 IRB Canada Report on Security Conditions in Haiti, Haiti: Security situation and criminal groups, including the Group of 9 and kidnappings; state protection (2019–July 2021) [HTI200655.FE] (July 2021), https://www.ecoi.net/en/document/2057120.html.
21 Jameson Francisque, Haïti : le gouvernement des gangs, AyiboPost and Connectas (February 2021), https://www.connectas.org/especiales/haiti-el-gobierno-de-las-pandillas/fr/.
22 Evens Sanon, Haiti’ s health professionals go on strike over kidnappings, AP News (Mar. 15, 2022), https://apnews.com/article/caribbean-port-au-prince-haiti-strikes-e5a9643e89659886081ed03aa364f574.
23 Haitian Times, Ex-judge in assassination inquiry alleges PM Henry co-planned it, feels threatened (Feb. 9, 2022), https://haitiantimes.com/2022/02/09/ex-judge-in-assassination-inquiry-alleges-pm-henry-co-planned-it-feels-threatened/.
24 ACLED, Haiti: High risk of increased gang violence amid rising authoritarianism, (Feb. 2, 2021), https://acleddata.com/2021/02/02/ten-conflicts-to-worry-about-in-2021/#1612195820235-14ee80d6-2b08.
25 ACLED, Haiti: High risk of increased gang violence amid rising authoritarianism, (Feb. 2, 2021), https://acleddata.com/2021/02/02/ten-conflicts-to-worry-about-in-2021/#1612195820235-14ee80d6-2b08.
26 Amnesty International, They Did Not Treat Us Like People, p.31 (2022),
https://www.amnesty.org/en/documents/amr36/5973/2022/en/ (internal citations omitted).
27 Intl Nat Human Rights Clinic Harvard Law and OHCCH, Killing With Impunity (2021),
28 Id.
29 IRB Canada Response to Information Request, Haiti: Security situation and criminal groups, including the Group of 9 and kidnappings; state protection (2019–July 2021),
30 Luke Taylor,‘They have no fear and no mercy’: gang rule engulfs Haitian capital, the Guardian (September 18, 2022), https://www.theguardian.com/world/2022/sep/18/haiti-violence-gang-rule-port-au-prince.
31 Department of State, Country Report 2021: Haiti (2021), https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/haiti/.
32 Institute for Justice and Democracy in Haiti, Submission to the United Nations Human Rights Council: Justice Sector Challenges in Haiti (Jan.- Feb. 2022), http://www.ijdh.org/wp-content/uploads/2021/12/Updated-Justice-Sector-Challenges-in-HaitiUPR-SubmissionEN-1.pdf.
33 IRB Canada Report on Security Conditions in Haiti, Haiti: Security situation and criminal groups, including the Group of 9 and kidnappings; state protection (2019–July 2021) [HTI200655.FE] (July 2021), https://www.ecoi.net/en/document/2057120.html.
34 Human Rights Watch, Haiti: Wave of Violence Deepens Crisis (July 22, 2022), https://www.hrw.org/news/2022/07/22/haiti-wave-violence-deepens-crisis.
35 Natalie Gallon et al., Gangs gain the upper hand in war with Haitian police, CNN (August 9, 2022), https://www.cnn.com/2022/08/09/americas/haiti-gang-violence-npw-intl-latam/index.html.
36 Human Rights Watch, Haitians Being Returned to a Country in Chaos: Humanitarian, Security Crisis Makes Deportations Unsafe (March 24, 2022), https://www.hrw.org/node/381504/printable/print.
37 United Nations Security Council (UNSC), United Nations Integrated Office in Haiti: Report of the Secretary-General, S/2022/117 (Feb.15, 2022), https://binuh.unmissions.org/sites/default/files/binuhreportoftheunsg-15february2022.pdf.
38 Luke Taylor,‘They have no fear and no mercy’: gang rule engulfs Haitian capital, the Guardian (September 18, 2022), https://www.theguardian.com/world/2022/sep/18/haitiviolence-gang-rule-port-au-prince.
39 Id.
40 Immigrant Legal Resource Center, CAT Advisory, p. 2 (April 21, 2020), https://www.ilrc.org/sites/default/files/resources/catadvisory-04.2020.pdf.
41 8 CFR § 1208.16(f).
42 8 CFR § 274a.12(a)(10).
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