TPS: Trump Is Also Erecting an Administrative Wall

The lawsuit brought by Haïti Liberté, FANM, and nine TPS holders seeks to pull it down

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The destruction wrought by Hurricane Matthew on Haiti’s southern peninsula in October 2016 is one of the reasons why Haitians’ TPS should not be revoked, plaintiffs argued.

(Part 1)

104 lamps illuminate the beautifully renovated federal courtroom of Judge William Kuntz in the U.S. Eastern District courthouse on Brooklyn’s Cadman Plaza. Computer screens and comfortable armchairs for lawyers from both parties face each other, with hardwood benches for the viewing public.

As this room’s supreme master, the judge sets the schedule for proceedings to begin but regularly arrives 45 minutes late. Those in the gallery have ample time to watch the lawyers confer with each other, search their files, write in their notebooks, consult their computers, fiddle with their phones, or watch the clock on the wall. One can also meditate on the huge expense and energy deployed to denounce and thwart the Trump Administration’s efforts to limit immigration, not only by a 2,000-mile wall between the United States and Mexico, but by a legal and administrative wall as well.

One also has time to muse about the racism of Trump and his acolytes (often far-right white supremacists), crudely expressed by the U.S. president. Obviously, we are referring to the epithet “shithole” awarded by Trump, in his typically vulgar language, to Haiti, El Salvador, and some African nations. He added in June 2017 that “all Haitians have AIDS.” And most importantly, he said at the infamous meeting with U.S. Congressional leaders on Jan. 11, 2018: “Why do we need more Haitians? Take them out.”

            This was clearly in line with his instructions to and pressure on Department of Homeland Security (DHS) officials (“Homeland Security” has an unmistakably fascist ring) to end the Temporary Protection Status (TPS) that protects nationals from countries with big political or natural problems. On the other hand, he said he would be happy to accept immigrants from countries like Norway…

For this trial which lasted four days, from Jan. 7 to 10, we were facing two Trump administration lawyers, Joseph Marutollo and James Cho of the U.S. Attorneys Office in the Eastern District of New York, with their support squad of a dozen DHS lawyers and officials. The government probably did not want to incur costs by bringing in a flock of Washington lawyers. This reveals the Trump administration’s flippancy toward these lawsuits. This was noted by the judge, who from the outset lambasted them for not bringing any witnesses (while the plaintiffs brought eight) and merely objecting to the presentations of the plaintiffs’ witnesses, which he rejected. We heard regularly “Objection!” from the defense, instantly followed by Kuntz’s “Overruled!”

Ellie Happel of NYU’s Global Justice Clinic was the first expert witness to testify in last week’s trial in Federal Court.

The defense’s opening was that the conditions that gave rise to Haitians’ TPS – the January 2010 earthquake, the October 2010 cholera epidemic, Hurricane Matthew in October 2016 – no longer exist and that Haiti’s situation has improved to the point where TPS holders can safely return to the country. According to the government’s lawyers, then Acting DHS Secretary Elaine Duke had reviewed “all the circumstances” of Haiti before deciding in November 2017 to end the country’s TPS. She was a “voracious consumer of information” and “the decision by Acting Secretary Duke was not taken lightly.”

Apparently she did not “voraciously” read the most crucial information, reports from Haiti by two experts presented by the plaintiffs, Ellie Happel and Brian Concannon. Neither did she read, it seems, the report of her own specialized service, namely the Refugee, Asylum and International Operations (RAIO) research unit – one of the seven branches of the United States Citizenship and Immigration Services (USCIS) – published in October 2017 based on data collected by officials of the U.S. Embassy in Port-au-Prince.

Ellie Happel is director of the Haiti Project and a lawyer at the Global Justice Clinic of New York University, as well as the author of the report “Extraordinary Conditions: A Statutory Analysis of Haiti’s Qualifications for TPS.” She worked in Haiti from 2011 to 2017, investigating living conditions. She told the court that she had become interested in Haiti because it is the only country in the world where slaves successfully revolted, abolishing slavery in 1793 and then winning independence in 1804.

A SHORTAGE OF 500,000 HOUSES

Happel began by describing the housing crisis that followed the terrible (7.0) 2010 earthquake that, in addition to killing tens of thousands of people, totally or partially destroyed more than 300,000 homes – including the National Palace, Parliament, the Courthouse, the Cathedral, the National Penitentiary and several hospitals, the headquarters of the UN mission (causing the death of its chief and his assistant) – and created 2.3 million internally displaced people (IDP) out of a population of 11 million.

Brian Concannon, co-director of the International Lawyers Office (BAI) in Port-au-Prince and director of its Boston-based sister, the Institute for Justice & Democracy in Haiti (IJDH), testified that there still is a shortage of 500,000 homes.

The Trump administration claims that 98% of the IDP camps have been closed and that there are only 37,967 IDPs left out of more than two million, but many have been forced to leave the camps or have taken up residence in unsafe dwellings. An example is Canaan, north of the capital, where in one day 50,000 people arrived from the IDP camps but are still living in tents. As Concannon says, Canaan’s inhabitants, now approaching 300,000, are not included in the official lists of IDPs although they meet the definition of internally displaced persons, their conditions being most precarious and the Haitian state not having done anything for them, nine years after the earthquake, to the point where the inhabitants had to themselves erect electric poles and lay cables to bring in electricity. In fact, the defense used the figures from Happel’s report that spoke of 37,967 people still living in “official” IDP camps, but without replicating her following remarks that “the data are incomplete and probably do not reflect the extent of the problem.”

In response to the defense’s argument that housing conditions have always been problematic in the country, Concannon, who has been visiting Haiti regularly since 1995 and had lived there until 2004, says that before the earthquake, he had never seen people living in tents like now. He added that the best way to know a country’s living conditions is to talk to the people who live there.

RAIO’s own report belies the claims of Trump’s officials

But the U.S. government’s October 2017 RAIO report on Haiti – which preceded Haiti’s TPS revocation – puts the defense statements in context and confirms the findings of Happel and Concannon: “According to Amnesty International, many individuals who have left the IDP camps/sites have reportedly ‘moved back to unsafe houses or started building or reconstructing their houses, in most cases with no assistance or guidance, and often in informal settlements located in hazardous areas’. Amnesty International has also claimed that over 60,000 IDPs have been forcibly evicted from camps since 2010 by private landowners, often with the assistance or implicit support of Haitian authorities”.

RAIO adds the aggravating consequences of Hurricane Matthew in October 2016, which blew at the incredible speed of 220 km per hour and affected 2.1 million people – including crop destruction – by displacing 175,000, killing 546, affecting more than 236,000 homes “of which 44% were destroyed and 42% severely damaged.” And it concludes: “While the camps for displaced people after the earthquake are closing, the housing shortage in Haiti remains far from resolved,” the report said.

Happel completed the overview for Judge Kuntz in reporting that public buildings have not yet been rebuilt as 90% of the ministries (28 out of 29) and 60% of the health centers (50, plus part of the University Hospital, plus the Ministry of Health) had been destroyed, not to mention the lack of waste treatment and drinking water, both essential to preventing cholera’s spread.

NEARLY ONE MILLION PEOPLE AFFECTED BY CHOLERA

This is another point presented as positive by the Trump administration: the level of cholera is at its lowest level, as well as the number of deaths. But this is compared to one of the largest epidemics in the world where close to 10,000 people have died and more than 810,000 have been affected since 2010 when the Nepal contingent of UN troops stationed near the Artibonite River infected it with a cholera bacterium from South Asia – according to a French medical epidemiologist and Doctors Without Borders – at the same time that a cholera epidemic broke out in Kathmandu. Haiti had known no case of cholera during the previous century.

Brian Concannon’s IJDH filed a lawsuit against the UN. Although a New York court dismissed the case, Ban Ki-moon, then Secretary-General, finally in December 2016 declared himself “deeply sorry” for the epidemic.

In August 2016, UN Special Rapporteur Philip Alston had sharply condemned the UN’s legal approach to cholera in Haiti, which he described as “morally unconscionable, legally indefensible, and politically self-defeating.” Alston also lamented that the UN’s approach “upholds a double standard according to which the UN insists that member states respect human rights, while rejecting any such responsibility for itself.” [Jonathan Katz, “UN Admits Role in Cholera Epidemic in Haiti”. The New York Times, Aug. 17, 2016.]

Again, RAIO’s own report belies the claims of Trump’s officials: “While the number of suspected cases of cholera has declined since 2016, Haiti nevertheless remains “extremely vulnerable” to the disease. According to the United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), cholera continues to impact Haiti due to a lack of funding for the country’s National Plan for the Elimination of Cholera (PNEC), weak water and sanitation infrastructure, the lack of access to quality medical care, and high population density and mobility to urban areas.”

Indeed, Hurricane Matthew caused a new wave of cholera cases – with a peak from 2,236 cases to 5,100 – and it will start again each time there will be a sudden inflow of water without an infrastructure to control it, the pipes overflowing into the rivers. To date, only 28% of the population has access to adequate sanitation, the rest defecating in rudimentary latrines or in nature.

Lawyers Brian Concannon (left) and Mario Joseph, of IJDH and BAI respectively. Concannon was another expert witness at the trial.

Speaking of the UN, the Trump administration used the withdrawal of the UN mission, MINUSTAH, in October 2017, as another indication that the situation had improved enough in Haiti to absorb returning TPS holders. The mission was in Haiti since 2004, at the time of the coup d’état against Pres. Jean-Bertrand Aristide, to control the situation, and the successive renewals of its mandate had only that as a purpose. Even the U.S. ambassador, Janet Sanderson, acknowledged it in a 2008 cable: “A premature departure of MINUSTAH would leave the [Haitian] government… vulnerable to… resurgent populist and anti-market economy political forces — reversing gains of the last two years. MINUSTAH is an indispensable tool in realizing core USG [U.S. government] policy interests in Haiti.” No wonder MINUSTAH was seen as an occupying force, not to mention its responsibility in the cholera epidemic and widespread sexual abuse against children, recognized by the United Nations itself.

“The departure of MINUSTAH is a non-factor,” said Happel. Haiti is less safe than before the earthquake. The 14,000 members of the National Police are unable to maintain order and security for a population of nine million. The departure of the UN mission is not a sign of progress.” In any case, it was replaced by the United Nations Mission for the Support of Justice in Haiti, MINUJUSTH.

Marutollo cherry-picked a few words from Happel’s report to say that stability had returned to politics: “As of 2017, Haiti finally has an elected president and a full parliament, for the first time since 2012″. On the trial’s first day, Happel replied that the situation on the ground is bad, that the president rules by decree, and that political instability continues.

Concannon responded to the defense’s argument that the situation in Haiti is as bad as before the earthquake and that it is not anymore a question of “extraordinary and temporary” circumstances but rather a chronic state.

“The earthquake has exacerbated chronic problems,”Concannon said. “There is a deep corruption crisis (with the case of PetroCaribe), and the government rules the country from tents. The president was elected with 50% of the 20% who voted, meaning he is supported by only 10% of the electorate. Democracy could win, but we are not there yet.”

THE POLICE CARRY OUT THREE MASSACRES WITH FULL IMPUNITY

Concannon spoke in detail about public safety, recalling that the earthquake destroyed the jails and that 4,000 prisoners, including a number of criminals, found themselves in the street. Furthermore, the police itself orchestrated three massacres.

Concannon testified: “Before, the crisis was chronic, now it is acute.”

In Lilavois in October 2017, following the assassination of a policeman by criminals, agents of the Brigade of Operation and Departmental Intervention (BOID) took revenge on the civilian population, including children, killing or beating them, burning houses and businesses, cars and motorcycles, in a massacre comparable to “a terrorist act,” both in its method and in its results, according to the Haitian Observatory of Human Rights (OHDH).

Just a month later, on Nov. 13, 2017 at dawn, a squad of the national police, assisted by the new UN mission, MINUJUSTH, went on a rampage for six hours in Port-au-Prince’s Grand Ravine neighborhood, leaving nine dead, a devastated school, and the empty cartridges of five tear gas bombs, and a hundred heavy artillery shells. As an excuse, the UN spokeswoman, Sophie Boutaud de la Combe, claimed that “the reported civilian death[s] were not part of the planned operation but of a unilateral action conducted by some [Haitian police] officers after the conclusion of the operation.”

Note that MINUJUSTH’s official role is to “assist the Government of Haiti to further develop the Haitian National Police (HNP); to strengthen Haiti‘s rule of law institutions, including the justice and prisons; and to promote and protect human rights – all with a view to improving the everyday lives of the Haitian people.”

But “what had started as an anti-gang operation in a poor and largely forgotten neighborhood — in a poor and largely forgotten country — ended in the summary execution of innocent civilians on a school campus.”

A third massacre occurred one year to the day after Grand Ravine, in the evening of Nov. 13, 2018 when gang members and individuals wearing BOID uniforms stormed the district of La Saline, leaving 71 dead, including women and children, raping 11 women, and looting 150 houses. According to the U.S. Embassy, it was a turf war between two rival gangs. The residents say that the National Police supports the PHTK Duvalierists in power and that it wanted to punish and neutralize the inhabitants of this neighborhood known for its anti-government and pro-Lavalas protests, four days before a national protest against the diversion of $2 billion from the PetroCaribe Fund.

“The massacre of La Saline is the result of the state’s inability to guarantee security throughout the national territory,” said the Fondasyon Je Klere, whose manager, Marie-Yolene Gilles, also reported that “the lawless areas are multiplying. The authorities did not say anything. They did not even condemn this massacre.”

Concannon testified at the TPS trial that in the past there were also massacres by out of control police, as in Martissant in 1999, “but then the government responded and filed a lawsuit against the police. Now there is total silence. There is no more accountability.” He clarified: “Before, the crisis was chronic, now it is acute.”

(To be continued – next TPS 2)

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