Movement Lawyering and Immigrant Racial Justice

Episode 5

Movement Lawyering and Immigrant Racial Justice

In episode five, host Ellie Happel returns to explore past and current approaches in organizing, activism, and movement lawyering to vindicate the promise of equal protection for immigrants of color. Featured guests—organizer Ninaj Raoul, Executive Director of Haitian Women for Haitian Refugees, and attorney Sejal Zota, Co-Founder and Legal Director of Just Futures Law—discuss how social movements are essential to legal progress, sharing lessons from the 1990s movement for Haitian immigrant rights and more recent organizing to challenge increasingly oppressive immigration laws.

Transcript

Sejal Zota: It's about power, right? It's about shifting power relations that gets at the root causes of oppression. And so there's this growing sector of lawyers and legal organizations who are using their skills to build the power of social movements. And so, you know, instead of viewing themselves as saviors, these lawyers see themselves as really the scaffolding under the feet of these collectives of organizing people.

And so, the lawyers creatively use legal tools to help these organizers build the power and to make the space for, to validate, to bolster, to defend and protect social movements, and the activists and the communities within them. We really think this allows lawyers to have a much larger impact.

[Music]

Ellie Happel: I'm Ellie Happel and you're listening to episode five of The Other Side of the Water: Immigration and the Promise of Racial Justice. Episode four of the series explored anti-Blackness experienced by Black immigrants in the era of Donald Trump. Today, we look at how attorneys and organizers work together to challenge racially discriminatory policies. We explore examples that demonstrate how social movements for civil rights, for immigrant rights, and exemplified today by the Movement for Black Lives, are the engines of progress and social change.

Our guests are Ninaj Raoul, the co-founder and Executive Director of Haitian Women for Haitian Refugees, and Sejal Zota, the Legal Director and co-founder of Just Futures Law.

To begin, we return to the 1990s when the U.S. government was interdicting Haitian people at sea and placing them in detention camps on Guantanamo. We look at how attorneys and organizers, including Ninaj, worked together to challenge this policy.

Ninaj Raoul: Hi, I'm Ninaj Raoul. I am a co-founder and Executive Director of Haitian Women for Haitian Refugees. But I identify as being a community organizer.

Ellie Happel: Ninaj, the child of Haitian immigrants, moved to New York city from her native Chicago to pursue a career in fashion editorial. Ninaj's work in fashion was short-lived.

Ninaj Raoul: It was right after they opened up Guantanamo in late 1991, after the coup in Haiti that overthrew Jean-Bertrand Aristide, the first democratically elected president. And so, I responded and I ended up applying to be a linguist specialist for the Department of Justice. And shortly after I was flown down to Guantanamo to work for INS then Immigration and Naturalization Services, that no longer exists, where they were doing credible fear interviews for thousands of Haitians that had come to Guantanamo. And that's how I ended up working with Haitian refugees.

MacNeil/Lehrer Newshour Clip: Next tonight, we have an update on the plight of thousands of Haitians trying to flee their country and gain entry to the United States. The key issue is whether they are political refugees or, as the Bush administration argues, trying to escape Haiti's poverty and not eligible for entry into the U.S.

They left Haiti in rickety boats, and many were picked up by the U.S. Coast Guard and given temporary refuge at the U.S. base in Guantanamo, Cuba. Correspondent Charles Krause visited Guantanamo and here is his report: There is no joy or Thanksgiving among the Haitians in Guantanamo, only uncertainty and frustration. It could be months before their future is decided by courts in the United States. Meanwhile, the vast tent city erected to house the Haitians grows larger every day. U.S. military authorities here have orders to prepare for up to 10,000 refugees, twice the number already in Guantanamo.

Ninaj Raoul: So, the Haitian refugees were detained in Guantanamo, starting October of 1991, right after the September 30th coup. About 5,000 Haitians were killed immediately by the military in Haiti and as a result, people that supported the Aristide administration were persecuted and they had to flee. They had no other way of fleeing from most cases, they took boats and left the country and then they ended up being interdicted by the U.S. Coast Guard.

Ellie Happel: In 1990, Jean-Bertrand Aristide, a priest and liberation theologist, became Haiti's first democratically elected president. He served for less than one year before he was overthrown in a military coup. The years that followed were bloody. Supporters of Aristide were beaten, tortured, and murdered. This led to an increase in out migration. Tens of thousands of Haitian refugees embarked in questionably sea worthy boats to travel the 700 plus miles to South Florida.

President Bush authorized the Coast Guard to intercept boats of Haitian men, women, and children to prevent them from reaching U.S. soil. The Coast Guard turned some boats back to Haiti. Others, they took to camps set up at Guantanamo. At its peak, the camp held more than 12,000 Haitian people.

International refugee law says that people fleeing political persecution may not be returned to the country where they face that persecution. Refugees fleeing out of fear have a right to what is called a credible fear interview. If deemed as having a credible fear, the individual may begin the process of applying for asylum. Between October 1991 and June of 1992, asylum officers conducted credible fear interviews of nearly 37,000 Haitians on Guantanamo Bay.

Ninaj Raoul: The credible fear interviews were very arbitrary. They could last anywhere from 15 minutes to 45 minutes. They were similar to the, in some cases, the longer ones were similar to the asylum interviews here in the United States. The people who came by boat were dehydrated and sick from the young journey. Those that made it, when they were first interdicted by the Coast Guard, many of them bought their belongings with them. And when they were picking them up from the boats, they would throw down the road ladders. They would tell them to leave their belongings on the boats. They'll get it later. And after they climbed up into the coast guard cutter, they would set the boat on fire with all their belongings. So, a lot of people lost their papers and documents in the boat. And it was said that that was done because they didn't want the germs or the microbes of the Haitians to be coming in. So, they didn't allow them to bring a lot of their belongings.

Once they got to Guantanamo, the conditions were horrible. They were put in tents, rows of tents that had rows of cots that were side by side. It was on an open cement field with no trees. So, there was no shade to block the sun.

I heard somewhere between four to 500 different stories from people just from interpreting, and naturally internalized a lot of the trauma that people had gone through.

And it was back to back. It was seven days a week initially, and I'm working 12 to 14 hours a day of hearing these horrible stories of people that had lost family members. Um, been persecuted, beaten, many rape cases with the women and girls.

Ellie Happel: Before Ninaj worked at Guantanamo her dad, a retired physician, had also served as an interpreter for the detained asylum seekers

Ninaj Raoul: And he eventually left, and he had said that it was the most blatant display of racism that he had ever experienced in his life. And I totally agree with him. The racism was very blatant.

Ellie Happel: The U.S. government forcibly returned almost 75% of the Haitian people they interviewed. Haitian asylum seekers faced one of the lowest rates of approval of any nation in the world. Ninaj's experience on Guantanamo led her to co-found Haitian Women for Haitian Refugees.

Ninaj Raoul: Haitian Women for Haitian Refugees was initially founded to respond to the needs of the asylum seekers that were fleeing persecution in Haiti and ended up in Guantanamo. It was founded by a woman named Marie-Lily Cerat and myself, as we were both women living in Brooklyn who met in Guantanamo as we were both interpreting for the credible fear interviews. And, when we met refugees that were going to be coming back to the Brooklyn area, which were many, some had never even been in Port-au-Prince in their lives. They came from very rural areas of Haiti, very remote areas. So I couldn't even imagine them coming to New York after being in these conditions in the camp for so long.

So that's the reason that we shared our phone number. And said, you know, let us know if you need anything, if you have any issues when you get there. And, over the years, initially, we started meeting with the folks that came from Guantanamo, but shortly we started learning that there were many other folks that came in other ways and that were also fleeing persecution.

And over the years, we worked with different rounds of Haitian refugees that came in for different reasons. We were founded in 1992 to respond to the needs of the, um, immigrants that were fleeing persecution.

Ellie Happel: While Ninaj was interpreting on Guantanamo, the U.S. government set up a special detention camp for refugees who tested HIV positive. It was called Camp Bulkeley. It was the world's first detention camp for HIV positive people. More than 300 men, women and children were detained in Camp Bulkeley, some for as long as a year and a half. Ninaj’s first in-depth experience as an organizer working together with lawyers led to the closure of Camp Bulkeley less than two years later. Attorney Michael Ratner and his team of Yale law students filed a lawsuit, which in the end shut Camp Bulkeley down. The case was called Haitian Centers Council v. Sail. Ninaj:

Ninaj Raoul: I believe four times I went back within two months because of the HIV camp working together with the law students at Yale university, and there were several law firms, too, that were involved. There was quite a movement, you know, there were rallies and actions in New York asking for the release of these 200 refugees. There was Act Up, some of the folks from the movements from before that fought for HIV rights or for rights for HIV positive people, they joined in solidarity and had protests.

Ellie Happel: The people detained in Camp Bulkeley went on hunger strike. Law students and undergraduate students joined them in solidarity. There was an estimated tens of thousands of students in the United States who participated in rallies and protests and called for the camp's closure. In June of 1993, the Yale lawsuit prevailed by the end of the month. All of the men, women and children who'd been detained at Camp Bulkeley were relocated to New York or Miami. This was the first of many lawsuits and campaigns bolstered by Haitian Women for Haitian Refugees.

Another example of successful organizing and people power years later is the Haitian Refugee Fairness Act, which Congress passed in 1998. The act provided a path for Haitian nationals living in the United States to become permanent residents. It was passed one year after NACARA, a similar bill that provided a path to residency for Central American nationals, but which noticeably excluded people from Haiti.

Ninaj Raoul: And that was basically an equity issue because NACARA had just passed for many of the Central American immigrants that were here that were out of status. And there was a long fight of about 10 to 12 years for that to pass. And when many of the Haitians from Miami that were undocumented saw that all these Central Americans and, even there was a few Eastern Europeans that were covered by it somehow. Get, um, their permanent residency, they felt left out and really took the streets. They came out in thousands in front of the governor's office who was then Jeb Bush.

They came out thousands in front of some of the legislator's offices. And, and this was at a time where Jesse Helms was there. And he had already said that he didn't want to see a bill for Haitians on the table.

And he had a lot of followers, a lot of racist followers as himself. But nonetheless, the fact that thousands of Haitians took the streets, came and stood in front of these legislative district offices in Miami. This moved them to have to write legislation because no one wants thousands of people in front of their office.

They were crowds from seven to 8,000 people that were protesting in front of their office. It moved them to write some legislation on behalf of Haitians which eventually passed as Haitian Refugee Immigration Fairness act in 1998. So in a matter of one year, actually which is really short. And we really pushed it as an equity issue.

You know, and, but despite that, we've had some successes. And as I mentioned, the reason that there was any legislation is because of thousands of undocumented people took the streets in Miami. And this is why it's important for directly impacted people to be at the forefront of these movements. And had it not been for those people who took the streets because they felt that they were left out of NACARA and they wanted them to adjust their status to permanent residency, standing in front of the legislator's office--there wouldn't have been any legislation for the advocates to push through. And that stands true today, too. And once that legislation was written up, they also went and stood in front of Jeb Bush, Governor Jeb Bush's office, who was the governor of Florida at the time.

And just once they had one huge protest with 8,000 people there. And he wrote a letter of support because he didn't want 8,000 people standing in front of his office.

So had it not been for the people to take the streets, it wouldn't have started. I can give many examples in between. The Haitian refugees on Guantanamo wouldn't have been released when they were in the HIV camp because of the exclusion ban and litigation also helps. Litigation has to be coupled with grassroots organizing, I think, to be truly effective.

Ellie Happel: Attorney Sejal Zota agrees. Sejal is the Legal Director and co-founder of Just Futures Law. Like Ninaj, she’s the daughter of immigrants. Her connection to immigrant rights work is personal.

Sejal Zota: I guess I should step back a little bit and spell out a little more what social movement lawyering is. It’s this idea that lawyers, judges, courts, they're not going to save us, right. Courts are not on the front lines of social, cultural and legal change. And I think acknowledging that the law will always be an important terrain of struggle, I think it's important we fight on this terrain with crystal clear precision about the limitations and the biases baked into the law. I believe and I think that history has shown us that social change occurs when everyday people--workers, tenants, mothers, students -- directly impacted people, they build and lead movements for racial and economic justice.

Movements like the Movement for Black Lives, Standing Rock, #MeToo, not one more. Right? So it's about power. And it's about shifting power relations that get at the root causes of oppression. And there's this growing sector of lawyers, um, and, and legal organizations who are using their skills to build the power of social movements. And so, instead of viewing themselves as saviors, these lawyers see themselves as really the scaffolding under, under the feet of, these collectives, of organizing people. And so the lawyers creatively use legal tools, to help these organizers build the power, right.

And to make the space for, to validate, to bolster, to defend and protect social movements, and the activists and the communities with them. We really think this allows lawyers to have a much larger impact.

Ellie Happel: In the past three years, both Ninaj and Sejal have been involved in the struggle to keep Temporary Protected Status, TPS, from expiring for the more than 50,000 Haitian nationals who applied for and received the status after the devastating earthquake of 2010.

Sejal Zota: Temporary Protected Status, often referred to as TPS, is a form of humanitarian immigration relief that allows individual from designated countries to live and work lawfully in the United States when they can't safely returned to their country of origin because of armed conflict, because of natural disaster or some other extraordinary circumstances.

And since President Trump took office, the administration has terminated TPS designations for six countries, including Haiti in an unlawful attempt to deport, close to 300,000 immigrants of color. And in Haiti's case, the termination of TPS affects the lives of over 50,000 Haitian nationals, many of whom have lived in the United States for more than a decade along with their 27,000 U.S. citizen children.

Ellie Happel: Internal documents revealed that the Trump administration decision to terminate TPS went against the evidence. The evidence showed that Haiti was still recovering from the 2010 earthquake, which had killed more than 200,000 people and left more than 1 million homeless. Haiti remained incapable of safely repatriating its nationals. Racism tainted, if not guided, the administration's decision to terminate TPS.

Sejal Zota: I have a lot to say about the racial animus that was inherent in the termination of TPS for Haiti. And I’ll start by saying that President Trump has made clear that he wishes to reduce the number of immigrants of color to the United States. And I think that the rescission of Haiti's TPS is part of that agenda., what he's referred to as his “America First” platform. And, former acting DHS secretary Duke, who was the one who officially terminated Haiti's TPS. In her notes, she wrote that her decision to end TPS, that it was consistent with this “America First” policy.

And, you know, just to be clear that slogan, the “America First” slogan, has been used to propagate anti-immigrant sentiment and racial animus since the early 1900s. It was used prominently by the KKK and it was associated with white supremacy. I think more specifically, and is widely known, Trump himself has made a number of racist statements specifically towards Haitians.

In June of 2017, you know, when he learned that 15,000 Haitian people had received visas to the United States, Trump stated that “Haitians all have AIDS.” And this was a few months before Haiti's TPS was terminated, and this was said to the very advisors who would go on to recommend the termination of Haiti's TPS. A few months later, uh, in a meeting with several U.S. senators, Trump disparaged a draft immigration plan that would have protected people from Haiti, from El Salvador and some African countries. He asked, “Why are we, why are we having all these people from shithole countries come here?” And he went on to say, “Why do we need more Haitians?” And then he ordered the bill's drafters to take them out. In the same meeting, he expressed a preference for more immigrants from places like Norway.

Ellie Happel: Sejal and Ninaj are each involved in lawsuits to declare the termination illegal and to extend TPS for Haitian nationals. Haitian Women for Haitian Refugees is also part of the national TPS Alliance.

Sejal Zota: The case that we're involved in, Saget v. Trump, began on March 15th, 2018 when the weekly newspaper, Haiti Liberté, the Family Action Network movement, and 10 Haitian TPS beneficiaries filed a lawsuit in New York to enjoin the termination of Haiti's TPS.

In 2019, in early 2019, we had a four day trial. We heard testimony from experts, former governmental officials and plaintiffs. And the court issued a nationwide preliminary injunction against the termination of Haitian TPS, meaning that a termination couldn't go into effect. And the Trump administration appealed the preliminary injunction to the Second Circuit Court of Appeals, which recently heard arguments.

And so we're now waiting on a decision from the court, but it could be months before the Second Circuit rules. You know, and the litigation here compliments the efforts of the TPS advocacy working group, which is a coalition of hundreds of organizations that are fighting for TPS and legislative change. And they also employ a very robust communication strategy around TPS as well.

Ninaj Raoul: The National TPS Alliance is an organization founded and led by TPS holders. And, they have over 60 committees throughout the country that meet regularly in Washington, D.C. and meet with legislators. But again, when we've had several conferences there with 300 TPS holders from El Salvador, Honduras, Haiti, Nepal, um, Nicaragua--all the other 13 countries that--Sudan, Somalia--all the 13 countries that hold TPS, we would have representatives there and we would meet TPS holders themselves and train and meet with the legislators and have them hear the stories of how their lives are affected and, and the concerns of further family separation.

You know, because if TPS is terminated and they're forced to return to their countries, there are hard decisions that families would have to make to separate their families. So without the involvement of directly impacted people being forefront in these movements, I don't think they would have happened.

And so I think it's really important for the litigations to work hand in hand with the grassroots movements to have a lasting change. I feel strongly about the work that's been done and the advancement of the movement for TPS. And, um, I think TPS holders have gained momentum and strength. It's a powerful movement, but the beauty of it is that it is led by TPS holders.

Ellie Happel: In mid September of 2020 after the interviews with Nina and Sejal had been recorded, the Ninth Circuit Court of Appeals ruled that Trump can move forward to terminate TPS for hundreds of thousands of TPS holders from El Salvador, Nicaragua, Haiti, and Sudan. This decision is now being appealed.

However, the government cannot end TPS for Haiti due to the Saget lawsuit, which Sejal is involved in. The government can only terminate TPS for Haiti if they win their challenge to the preliminary injunction. As Sejal mentioned, the case is currently in the Second Circuit Court of Appeals. The fight to save TPS continues.

And in addition to supporting TPS, Ninaj has other ideas for how listeners can support current movement for Haitian immigrant rights.

Ninaj Raoul: Currently, there are families being held at Berks County Detention Center in Berks County, Pennsylvania. There is a coalition called Shut Down Berks Coalition in Pennsylvania. They're made up of all sorts of activists, some coming from the environmental activists sector and some are immigrant activists. Haitian Women for Haitian Refugees joined the Shut Down Berks Coalition. Families for Freedom that are based in New York also that, uh, that was basically founded to defend folks in detention. There's a lot more digital organizing going on now because of the pandemic that we're in. So people can't be there physically in the direct actions, they can support the organizations that can be there. And they can also do their work through their digital organizing efforts through their social media, spread the word so that we can shut this place down and release these families. I mean, families shouldn't be in jail. All of our campaigns for the most part involve keeping families together because that's the most detrimental effect of these poor immigration policies is they've been separating families.

So whether we're talking about TPS, we're talking about keeping families together, whether we're talking about stopping deportations to Haiti, we're talking about keeping families together. So I think in this day, when many things have been virtually and even prior to the pandemic, there's been a lot of move to online movements. It's really important to recognize the importance of physical in-person movements too. And keep a balance of it. It's easy for anybody to sit at home and start a petition and just put it out there on your social media and spread it. And it can be really effective too, if it gets around to the right networks.

But it's also important, you know, as I mentioned earlier, a lot of these movements really start by people physically being somewhere and making their demands. When George Floyd was murdered and even before, the movement that we've seen during this pandemic where people have taken the streets, all kinds of people have taken the streets for the Movement for Black lives,

[Black Lives Matter protest clip]

Ellie Happel: Sejal offers advice for law students.

Sejal Zota: If you're interested in doing social justice advocacy, one be prepared to fail. Right. Failure is an inevitable part of social justice advocacy. You know, we've brought cases that are hard, that we're prepared to lose, but where the movement gains. And so I would encourage law students not to be afraid to take those cases, to play a role in those cases because sometimes the ones with the most risk provide the most gains.

Ellie Happel: Ninaj leaves us on a note of optimism. In recent years, she sees more lawyers showing up in the streets to join organizers and community members and protests.

Ninaj Raoul: That's a great thing: I would show up at a protest, for immigration in 2017 in front of 26 Federal Plaza, and I would see some of the lawyers that work with us in the Clinic that I'd never seen in protest before. So they were really stepping over the line and becoming activists too. That's really made a difference in the work. I know lawyers that were working at organizations, just doing legal casework and what would take their vacation time and go into a detention center down south and advocate for Haitian refugees to be released. So that's something that I've never seen before.

I think in the end, the message is whether you're an organizer, a lawyer, a law student, you know, all of these things have to work together and that's, what's making lasting change happen. That's what's bringing on effective change. Litigations--they don't work alone. It has to work together with the grassroots organizing movement, the grassroots organizers, and of course that should always be led by the directly impacted people. They should be center and front in these movements.

Ellie Happel: A huge thank you to guests Ninaj Raoul and Sejal Zota for joining us in this fifth episode of The Other Side of the Water. In episode six, Sarah Hamilton Jiang talks with Tendayi Achiume, UN Special Rapporteur on contemporary forms of racism. Tendayi Achiume is also a professor at UCLA School of Law. She discusses her forthcoming work, Racial Borders, in which she argues that we should see the national borders of the world today as racial technology with white supremacy as the ordering principle. We hope you tune in for this final episode of the series.

This Episode was produced by Keecee DeVenny of the NAACP Legal Defense Fund. It’s edited by Zach McNees. The music featured on this episode is by the Haitian band Lakou Mizk. The song that opens the episode is called Sanba yo Pran Pale, and is a collaboration between Lakou Mizik and the DJ producer, Joseph Ray.

For more information about The Other Side of the Water podcast series and our conference, Immigration, Equal protection, and the Promise of Racial Justice: the legacy of Jean v. Nelson, please see our website, jeanvnelson35.org. Thank you for tuning in.