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Haitian Intercept Policy Backed by High Court : Immigration: The ruling affirms the right of the President--not federal judges--to make the decisions.

TIMES STAFF WRITER

The Supreme Court on Monday upheld the White House policy of blocking boatloads of fleeing Haitians from reaching U.S. shores, ruling that the President has broad powers to keep out undesired immigrants.

The 8-1 ruling marked the fifth time in two years that the justices have acted to nullify legal challenges to the Coast Guard operation.

Lawyers for the Haitians conceded that Monday’s sweeping ruling appears to end legal challenges to the government’s policy of intercepting the emigres and returning them to their troubled island.

During the George Bush Administration, Haitian advocates had accused the government of erecting a “floating Berlin Wall” around the Caribbean island. While Bill Clinton as a candidate denounced the interceptions as “cruel and unjust,” as President he reversed course and announced that he would maintain the Bush policy while seeking to restore democracy in Haiti.

In its recent rulings on immigration matters, the high court has consistently stressed that such decisions are entrusted to the White House, not to federal judges.

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“It is perfectly clear,” Justice John Paul Stevens wrote in the latest ruling, that the law “grants the President ample power to establish a naval blockade that would simply deny illegal Haitian migrants the ability to disembark on our shores.”

The ruling comes amid a rising clamor against illegal immigration. It also spares Clinton the political headache of trying to cope with tens of thousands of Haitians who have been anxious to escape their impoverished homeland.

Still, in reaching their result, the justices had to give a narrow reading to the U.N. Protocol on Refugees of 1967 and the Refugee Act of 1980, which wrote the treaty into U.S. law.

As the court acknowledged, those agreements were enacted for the “humanitarian purpose” of averting a repeat of the tragedy that befell European Jews during World War II, when the United States and many other nations refused to accept refugees from Nazi Germany.

The 1980 law says that the U.S. attorney general, who has jurisdiction over the Immigration and Naturalization Service, “shall not deport or return any alien” who is threatened by persecution at home.

In the last two years, federal judges in Miami and New York have cited that provision to order changes in U.S. policy toward the Haitians.

While Haitians have been escaping to Florida for more than a decade, the trickle of refugees turned into a wave in September, 1991, after President Jean Bertrand Aristide was overthrown in a military coup. Nearly 40,000 Haitians set sail for the United States in the months after the coup.

At first, the Bush Administration ordered a limited blockade. Coast Guard cutters were told to intercept the Haitians, give each refugee a brief hearing and return those who were fleeing poverty rather than political persecution. The rest were sent to the U.S. Naval Base at Guantanamo Bay, Cuba, where they were interviewed further and given a chance to apply for asylum as political refugees.

In the first months after the coup, roughly one-third of those intercepted were “screened in” and sent to Guantanamo, while two-thirds were returned home.

Lawyers for the Haitian Refugee Center in Miami went before a federal court there and challenged these brief shipboard interviews as inadequate. A federal judge in Miami agreed and ordered changes in the program, but the Supreme Court twice intervened to clear the way for the Coast Guard operation to continue.

The legal dispute escalated in May, 1992, when Bush ordered a total blockade. Guantanamo was overflowing with more than 12,000 refugees, and Bush ordered the Coast Guard to intercept all fleeing Haitians and to return them without asking their reasons for fleeing. Political refugees could apply for asylum at the U.S. Embassy in Port-au-Prince, he said.

This second order prompted another round of litigation, resulting in Monday’s ruling.

U.S. District Judge Sterling Johnson in Brooklyn condemned the White House policy as “unconscionable.” He said that it would return Haitians “to the jaws of political persecution, terror, death and uncertainty” in contradiction of international law and the 1980 law.

The U.S. appeals court in Manhattan took a similar view in July, and ordered that the interceptions stop. A few days later, the Supreme Court voted to suspend that order, but agreed to rule on the merits of the issue.

In his opinion for the court, Stevens said the lower court’s decisions contained two errors.

First, he said, the law gives the President the clear authority to exclude “any alien or any class of aliens . . . as he shall deem necessary.” The 1980 Refugee Act may limit the attorney general’s power but it does not limit the President’s power, he said.

Secondly, the 1980 law applies only to “domestic procedures” used to decide whether aliens are “deportable and excludable,” he said. By this interpretation, fleeing Haitians cannot invoke the protection of the U.S. laws on refugees before they have reached U.S. territory.

Though the U.N. treaty and the 1980 law had the “high purpose” of shielding political refugees, “we are not persuaded that either one places any limit on the President’s authority to repatriate aliens interdicted beyond the territorial seas of the United States,” Stevens said in his opinion in the case (Sale vs. Haitian Centers Council, 92-344).

In dissent, Justice Harry A. Blackmun accused his colleagues of ignoring the intent and the spirit of the law and the U.N. treaty. He and others noted that American officials have condemned the British policy of repatriating Vietnamese boat people who flee to Hong Kong.

According to Blackmun, the Haitians make only the “modest plea” that their individual plights be heard. “They demand only that the United States, land of refugees and guardian of freedom, cease forcibly driving them back to detention, abuse and death,” he wrote.

Immigration lawyers and human rights activists denounced the decision as “deplorable.”

Speaking for the Clinton Administration, Associate Atty. Gen. Webster Hubbell said he is pleased that the court had upheld the President’s authority.

Meantime, the last of 139 HIV-infected Haitians held at Guantanamo landed in Miami on Monday seeking asylum. The 11 men and three women should not be affected by Monday’s Supreme Court ruling. The refugees already had been interviewed and found to have a fear of political persecution.

In other actions, the court:

* Without comment let stand a ruling requiring the Topeka, Kan., school district to do more to desegregate its schools (Unified School District 501 vs. Smith, 92-1568). The school system, whose segregation policies were the focus of the Brown vs. Board of Education ruling in 1954, has not separated pupils by race since then. But neither has it bused students to integrate them.

* Let stand a Florida ruling that limits the airlines’ liability for lost baggage, including items lost at a security checkpoint, to $1,250 (Lippert vs. Delta, 92-1643).

Times special correspondent Mike Clary, in Miami, contributed to this story.


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