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Haitians gain young allies in legal battle

An American law school clinic built with money seized from Cuba is suing the U.S. government on behalf of Haitian immigrants.

BY NOAH BIERMAN AND TRENTON DANIEL

nbierman@MiamiHerald.com

Here's a story that makes sense only in South Florida: An American law school clinic built with money seized from Cuba is suing the U.S. government on behalf of Haitian immigrants.

It's confusing, but the results could change the lives of hundreds of undocumented Haitians.

It begins in Haiti in 1991, when Jean-Bertrand Aristide, the elected leader, was ousted in a coup -- chaos and violence left thousands of Haitians scrambling for sanctuary.

Francoise Sicar, who lived in the northern town of Port-de-Paix, boarded a boat. Her father had been beaten to death years earlier, and her mother had died from heart disease. She was caught in the Bahamas, she said, and sent back to Haiti.

Several years later, Sicar made a second attempt. After about two weeks at sea in a packed boat, she and her two infant children reached shore along Palm Beach County. She remembers the date: Jan. 26, 1994.

"When you take a boat, you take a chance," said Sicar, now 38. "If I died, I didn't care. But God helped me -- he gave me life and saved my two kids."

Sicar was taken into custody at Krome Detention Center and released. In 1998, Congress passed a law called the Haitian Refugee Fairness Act that gave tens of thousands of Haitian refugees legal residence in the United States -- provided they met certain conditions.

Among those who benefited were Haitians given parole status -- a kind of immigration purgatory -- before 1996. But Sicar, and perhaps hundreds of others, were given "Orders of Release-on-Recognizance (ROR)." Lawyers who work for immigrants say ROR was a type of parole, but immigration judges disagree and ruled in 2003 and on appeal in 2004 against granting Sicar amnesty.

The Cuban end of the story picks up on Feb. 24, 1996. A Cuban-American pilot named Carlos Alberto Costa, 29, boarded a Cessna aircraft with Brothers to the Rescue, a group that conducted regular searches to aid rafters attempting to leave Cuba. He and three others on the mission were shot down by Cuban MiG fighter jets, and their bodies were never recovered.

A year later, Costa's family won part of a $188 million judgment against the Cuban government and later settled for $93 million. The Cuban government, considering the suit illegitimate, refused to pay, but the U.S. government used frozen Cuban assets to pay the families.

Costa's family donated $500,000 in 2004 to help the new law school at Florida International University build an immigration clinic, where law students help recent arrivals navigate the system. The school was founded on a mission to educate lawyers from diverse backgrounds -- about half of the students come from immigrant families.

"We have some students send their families here," said Javier Arteaga, 23, a second-year law student who meets with clients at Krome regularly as part of his clinical hours.

"I'm an immigrant myself," said Joan "Tony'' Montesano, 27, a third-year law student from Cuba. "I identify with the goal."

In October, the Costa Clinic students filed their most ambitious case yet, a class-action suit on behalf of Sicar and hundreds of others believed to be in her situation. Such complicated cases take hundreds of hours of research. Few private lawyers or nonprofit organizations can afford to take such cases.

"They basicly made a life here," said third-year student Jordan Dollar, 24, about the clinic's Haitian clients. "They've been here for well over a decade now. They came here at a time when their government was having a bloody overthrow."

Dollar became acquainted with the plight of Haitians before he entered law school and began taking trips to Haiti with a Christian ministry that builds tilapia fish farms. Sicar lives in Hollywood, has three children and works as a line cook in a Boca Raton restaurant. Two of her children are also named in the suit. A third came later.

Immigration and Customs Enforcement and the U.S. attorney's office, which represents the government, both declined to comment on the suit, citing policies against discussing pending litigation.

"Had they filed the [asylum] application on time [by January 1996], they still should have been eligible for relief. So I'm not sure how that's the government's fault," said Rosemary Jenks, director of government relations with Numbers USA, a Washington legal organization that favors tighter controls on immigration.

The case came to FIU through clinic advisor Troy Elder, who previously worked for Catholic Charities Legal Services.

"They kept moving the bar on us to deny these people," said Randy McGrorty, executive director of Catholic Charities Legal Services. "We're only talking about hundreds of people, not thousands, but it's manifestly unfair because these people did go to court and they did file for asylum."

McGrorty said the nine attorneys in his office work like a MASH unit, serving 1,000 clients a month. The FIU students have drafted the complaint, identified potential plaintiffs and researched the history of the Haitian Relief Act, teaching themselves new areas of the law along the way.

"We could not do a federal lawsuit. We can take people through the administrative process, all the way through administrative appeals, but we cannot go to federal court," McGrorty said.

Elder said the case will probably take several years. A judge has yet to rule on whether to certify the suit as a class action. "I think we're going to have a big battle just staying in court," Elder said. "There was really no other way to help these people."