Un peu en vrac, la question de la politique de l’excision de l’Australie (excision_territoriale) :…


  • When the Coast Guard Intercepts Unaccompanied Kids

    A Haitian boy arrived on Florida’s maritime border. His next five days detained at sea illuminate the crisis facing children traveling to the U.S. alone and the crews forced to send them back.

    Tcherry’s mother could see that her 10-year-old son was not being taken care of. When he appeared on their video calls, his clothes were dirty. She asked who in the house was washing his shirts, the white Nike T-shirt and the yellow one with a handprint that he wore in rotation. He said nobody was, but he had tried his best to wash them by hand in the tub. His hair, which was buzzed short when he lived with his grandmother in Haiti, had now grown long and matted. He had already been thin, but by January, after three months in the smuggler’s house, he was beginning to look gaunt. Tcherry told his mother that there was not enough food. He said he felt “empty inside.”

    More strangers, most of them Haitian like Tcherry, continued to arrive at the house in the Bahamas on their way to the United States. One day police officers came with guns, and Tcherry hid in a corner; they left when a man gave them money. The next time he and his mother talked, Tcherry lowered his bright, wide-set eyes and spoke to her in a quieter voice. “It was like he was hiding,” his mother, Stephania LaFortune, says. “He was scared.” Tcherry told her he didn’t want to spend another night on the thin mattress in the front room with scuffed pink walls. She assured him it would be over soon. A boat would take him to Florida, and then he would join her in Canada, where she was applying for asylum. LaFortune texted Tcherry photos of the city where she lived. The leaves had turned brown and fallen from the trees. Still, she was there, and that’s where Tcherry wanted to be. He waited another week, then two, then three.

    Tcherry didn’t laugh or play for months on end, until one day in February, when two sisters, both Haitian citizens, were delivered to the house. One was a 4-year-old named Beana. She wore a pink shirt and cried a lot. The other, Claire, was 8. She had a round face and a burn on her hand; she said that at the last house they’d stayed in, a girl threw hot oil on her. Claire did everything for her sister, helping her eat, bathe and use the bathroom. Like Tcherry, the girls were traveling to join their mother, who was working at a Michigan auto plant on a temporary legal status that did not allow her to bring her children from abroad. Their clothes were as dirty as his. Sometimes Tcherry and Claire watched videos on his phone. They talked about their mothers. “I am thinking about you,” Tcherry said in a message to his mother in early February. “It has been a long time.”

    Finally, nearly four months after Tcherry arrived at the house, one of the men in charge of the smuggling operation woke him and the two girls early in the morning. “He told us to get ready,” Tcherry recalls. With nothing but the clothes they wore, no breakfast or ID, they were loaded into a van and were dropped off at a trash-lined canal just outside Freeport, Bahamas. In the muck and garbage, more than 50 people stood waiting as a boat motored toward them. “Not a good boat,” Tcherry told me, “a raggedy boat.” But nobody complained. The 40-foot vessel tilted from the weight as people climbed aboard and pushed into the two dank cabins, sitting shoulder to shoulder or standing because there was no more space. Tcherry felt the boat speeding up, taking them out to sea.

    For almost 12 hours they traveled west, packed together in cabins that now smelled of vomit and urine. In the lower cabin, a baby was crying incessantly. A heavily pregnant woman offered up the last of her package of cookies to the child’s mother to help soothe the infant. Tcherry was thirsty and exhausted. Not far from him, he heard a woman say that the children’s parents must be wicked for sending them alone into the sea.

    The passengers had been promised they would reach U.S. shores hours earlier. People were starting to panic, sure that they were lost, when passengers sitting near the windows saw lights, at first flickering and then bright — the lights of cars and buildings. “That is Florida,” a young man said as the boat sped toward shore. Tcherry pulled on his sneakers. “If I make it,” he thought, “I will spend Christmas with my family.”

    But as quickly as the lights of Florida came into view, police lights burst upon them. A siren wailed. People screamed, a helicopter circled overhead and an officer on a sheriff’s boat pointed a long gun toward them. Uniformed men climbed on board, yelled orders and handed out life jackets. The group of 54 people was transferred to a small Coast Guard cutter. As the sun rose over Florida just beyond them, a man with a tattoo on his arm of a hand making the sign of the benediction began recording a video on his phone. “As you can see, we are in Miami,” he said. “As you can see, we are on a boat with a bunch of small children.” He intended to send the video to relatives waiting for him on land, and he urged them to contact lawyers. But his phone was confiscated, and the video was never sent.

    The Coast Guard frames its operations in the sea as lifesaving work: Crews rescue people from boats at risk of capsizing and pull them from the water. But the agency, which is an arm of the Department of Homeland Security, also operates as a maritime border patrol, its ships as floating holding facilities. Since the summer of 2021, the Coast Guard has detained more than 27,000 people, a number larger than in any similar period in nearly three decades. On a single day in January, the agency’s fleet of ships off the Florida coast collectively held more than 1,000 people. The public has no way of knowing what happens on board. Unlike at the U.S.-Mexico border, which is closely monitored by advocates, the courts and the press, immigration enforcement at sea takes place out of public view.

    The Coast Guard routinely denies journalists’ requests to witness immigration patrols, but in early March, I learned that several days earlier, a boat carrying dozens of Haitians had been stopped so close to land that they were first chased down by the Palm Beach County sheriff’s marine unit. Among them were three unaccompanied children: two young sisters and a 10-year-old boy. In the months afterward, I obtained a trove of internal Coast Guard documents, including emails and a database of the agency’s immigration interdictions, and I tracked down Tcherry, Claire and Beana and 18 people traveling with them. Many of them told me about the five days they spent detained on Coast Guard ships — an experience, one man said, “that will remain a scar in each person’s mind.”

    People intercepted at sea, even in U.S. waters, have fewer rights than those who come by land. “Asylum does not apply at sea,” a Coast Guard spokesperson told me. Even people who are fleeing violence, rape and death, who on land would be likely to pass an initial asylum screening, are routinely sent back to the countries they’ve fled. To try to get through, people held on Coast Guard ships have occasionally taken to harming themselves — swallowing sharp objects, stabbing themselves with smuggled knives — in the hope that they’ll be rushed to emergency rooms on land where they can try to claim asylum.

    The restrictions, combined with the nearly 30-year spike in maritime migration, created a crisis for the Coast Guard too, leading to what one senior Coast Guard official described in an internal email in February as “war-fighting levels of stress and fatigue.” Coast Guard crew members described to me their distress at having to reject desperate person after desperate person, but the worst part of the job, several said, was turning away the children who were traveling alone. From July 2021 to September 2023, the number of children without parents or guardians held by the Coast Guard spiked, a nearly tenfold increase over the prior two years. Most of them were Haitian. “The hardest ones for me are the unaccompanied minors,” one crew member told me. “They’re put on this boat to try to come to America, and they have no one.”

    The treatment of children is perhaps the starkest difference between immigration policy on land and at sea. At land borders, unaccompanied minors from countries other than Mexico and Canada cannot simply be turned back. They are assigned government caseworkers and are often placed in shelters, then with family members, on track to gain legal status. That system has its own serious failings, but the principle is that children must be protected. Not so at sea. U.S. courts have not determined what protections should extend to minors held on U.S. ships, even those detained well within U.S. waters. The Coast Guard says that its crew members screen children to identify “human-trafficking indicators and protection concerns including fear of return.” A spokesperson told me that “migrants who indicate a fear of return receive further screening” by Homeland Security officials.

    But of the almost 500 unaccompanied children held on the agency’s cutters in the Caribbean and the Straits of Florida between July 2021 and early September 2023, five were allowed into the U.S. because federal agencies believed they would face persecution at home, even amid escalating violence in Haiti, including the documented murder and rape of children. One other child was medically evacuated to a hospital in Florida, and six were brought to land for reasons that the internal Coast Guard records do not explain. The rest were delivered back to the countries they left, and it’s often unclear where they go once they return. Some have nowhere to stay and no one to take care of them. On occasion, they are so young that they don’t know the names of their parents or the country where they were born. One official from an agency involved in processing people delivered by the U.S. Coast Guard to Haiti told me “it is an open secret” that the process can be dangerously inconsistent. “Children leave the port,” the official said, “and what happens to them after they leave, no one knows.”

    Stephania LaFortune had not wanted to send her 10-year-old son on a boat by himself. She knew firsthand how perilous the journey could be. In May 2021, before the boat she had boarded made it to a Florida beach, some of the passengers jumped into the water to wade through the heavy waves. “They almost drowned,” she told me when I met her in Toronto. LaFortune waited on the beached vessel until U.S. Border Patrol officials came to detain her. In detention, she claimed asylum and was soon released. For months, she searched for other ways to bring Tcherry to her, but LaFortune ultimately determined she had no alternative.

    The first time LaFortune left Tcherry, he was 3 years old. Her husband, a police cadet, had been shot in his uniform and left to die in a ditch outside Port-au-Prince, and LaFortune, fearing for her life, departed for the Bahamas. Tcherry stayed behind with his grandmother. Four years later, as violence began to flare again, Tcherry’s mother finally made good on her promise to send for him. She arranged for him to fly to the Bahamas, where she had remarried and had a baby girl. But Tcherry was in the Bahamas not even a year when LaFortune told him that she would be leaving again — not because she wanted to, she assured her sobbing son, but because she had seen how Haitians were harassed and deported, and she simply didn’t believe there was real opportunity there. Tcherry’s stepfather and his younger half sister, who were Bahamian citizens, joined LaFortune months later. She arranged for Tcherry to live with relatives, promising to send for him as soon as she could.

    LaFortune’s asylum case in Florida dragged on, so she and her husband and daughter traveled over land to Canada, where they hoped they could get legal status more quickly. While they waited for a decision in their asylum case, the relative Tcherry was staying with said he could no longer take care of a growing boy by himself. After begging others to take her son, LaFortune found a woman she knew back in Haiti who said she was planning to make the trip to Florida herself with her own children. For $3,000, the woman said, she could take Tcherry with them. LaFortune sent the money. The woman took Tcherry to the smuggler’s house and did not return for him.

    That house, and the one where Tcherry was moved next, were filled with Haitians fleeing the crisis that began in July 2021, when President Jovenel Moïse was assassinated by a team of mostly Colombian mercenaries hired through a Miami-area security company. The U.S. Justice Department has accused nearly a dozen people, some based in the United States, of setting the assassination in motion. As the Haitian state crumbled, proliferating gangs, many with ties to the country’s political elite, burst from the neighborhoods they’d long controlled and began terrorizing Port-au-Prince and swaths of the rest of the country. Kidnapping, extortion, the rape of women and children, and the torching of homes and neighborhoods became routine weapons of fear. Thousands have been murdered, and in June the United Nations estimated that nearly 200,000 have been internally displaced. Haitians able to gather the resources have left however they can. Many have traveled over land to the Dominican Republic or by air to South and Central America. And thousands have boarded boats bound for the beaches of Florida.

    The people on the vessel with Tcherry had reasons, each as urgent as the next, for being there. There was a 31-year-old street vendor whose Port-au-Prince neighborhood had been taken over by gangs; she said that when she tried to flee north by bus, men with guns forced her and other women off the bus and raped them. A man from a district in the north said he’d been beaten more than once by thugs sent by a political boss he’d opposed; both times they threatened to kill him. A man who worked as a Vodou priest in Port-au-Prince said he left because he needed money for his sick daughter, and gangs were confiscating his wages. The pregnant woman who helped comfort the crying baby said she had been kidnapped and raped; she was released only after her family sold land and collected donations to pay for her ransom. Two women were traveling with their daughters, but Tcherry, Claire and Beana were the only young children traveling alone.

    Tcherry sat on the deck of a Coast Guard cutter called the Manowar along with the rest of the group, exhausted, scared and confused. Nobody had explained to him what would happen next. Crew members in blue uniforms finally gave them food, small plates of rice and beans, and began to search their belongings and run their photos and fingerprints through federal immigration and criminal databases. Tcherry and the sisters followed the orders of a crew member with blond hair, cut like the soldiers in movies Tcherry had seen, to sit in the shaded spot under the stairs to the bridge.

    On the stern of the cutter, a man in his early 30s named Peterson sat watching the children. He had crossed paths with them weeks earlier in one of the houses; seeing they were hungry, he had brought them extra slices of bread and even cut Tcherry’s hair. Claire reminded him of his own young daughter in Haiti. Peterson had not wanted to leave his child, but gangs had recently taken control of roadways not far from his home in the coastal city of Saint-Marc. He had not earned a decent wage for many months, not since he lost his job as a driver at a missionary organization. He had decided to leave for the United States so he could send money back to Haiti for his daughter, who remained behind with her mother.

    Now it occurred to Peterson that his connection to Tcherry and the girls could work to his advantage. Surely the Coast Guard wouldn’t return children to Haiti, he thought. Surely they wouldn’t separate a family. “I thought that there might be an opportunity for me to get to the U.S.,” he told me. He approached Tcherry, Claire and Beana and told them they should tell the crew he was their uncle.

    Peterson’s small kindness in the smuggler’s house had given Tcherry reason to trust him. When it came time for the blond-haired crew member, Petty Officer Timothy James, to interview the children, Peterson stood close behind. With the help of another Haitian man who spoke some English, Peterson told James that he was their uncle. James asked the children if it was true. Tcherry and Claire, both timid, their eyes lowered, said it was. Beana was too young to understand. James handed her a brown teddy bear, which the crew of the Manowar keeps on board because of the growing number of children they detain, and sent the children back to the stern.

    But no more than a couple of hours later, Peterson changed his mind. He’d noticed that the pregnant woman had been evaluated by Florida EMTs, and he moved over to offer her a deal: If she would tell the crew he was her husband and let him join her if they brought her to land, his brother in Florida, who already paid $6,000 for his place on this boat, would make sure she was compensated. “I helped her understand that that is something she could profit from,” he says. The woman agreed, and Peterson, who now needed to tell the truth about the children, divulged to a crew member that he was not their uncle. “I was just trying to help if I could,” he said.

    James crouched down beside the children again and told them not to lie. “Why did you leave your home to go to the United States,” he read off a questionnaire. “To go to my parents,” Tcherry replied. To Tcherry, the questions seemed like a good sign. He was unsure whether he could trust these crew members after the officer on the sheriff boat pointed a long gun at them the night before. “I thought they were going to shoot me,” Tcherry says. But James calmly directed the children to sit in the one shaded place on the boat, and gave them cookies and slices of apple. “He was nice,” Tcherry says — the nicest anyone had been since Peterson brought them bread in the house.

    James kept reading the form. “What will happen when you get there?” he asked. Tcherry looked up. He latched onto the words “when you get there” and took them as a promise. He asked James when they would be on land. James said the same thing he told everyone on the boat: that the decision was not up to him, that he was just doing his job. Tcherry was convinced James would send him and Claire and Beana to their mothers. He thought of the story his mother had told him about his father’s murder, his body in a ditch by the road, and of his last memory of Haiti, when he passed through a gang checkpoint on the way to the airport. “I saw bandits approaching toward us, and he had a gun pulled,” Tcherry told me. “My heart started beating fast, and I thought he was going to shoot.” He was overwhelmed with relief that he would never have to go back there.

    A boat came to bring someone to land. But it was not there to pick up Tcherry or the other children. A Coast Guard medical officer had reviewed the pregnant woman’s vitals and made a decision that because she “may go into labor at any moment,” she would be brought to a hospital in Palm Beach County accompanied by U.S. Customs and Border Protection. Before she was taken away, Peterson said the woman told him she would not claim to be married to him after all. She didn’t want a stranger on her baby’s birth certificate. She offered to say she was his cousin. “I knew that being the cousin would not be enough,” Peterson recalls, “and I have to say that I lost hope.”

    The pregnant woman disappeared on a small boat toward land. Those left on the stern began to talk among themselves, asking why the baby, who had barely stopped crying, and the other children had been left aboard the cutter. They said they could not keep going like this, eating only small portions of scarcely cooked and saltless rice and beans, unable to bathe and forced to urinate and defecate in a toilet seat attached to a metal box with a tube off the side of the open deck. They decided they would rise in unison and protest, and they passed the word from one to the next. At around 9 p.m., dozens of people began to yell toward the bridge demanding interpreters, lawyers or just to know what would become of them. From the bow where he stood, James heard faint yelling, and then the voice of the officer in charge over the loudspeaker. “They’re starting an uprising on the fantail,” he said. “I need you back there.”

    Timothy James came from a conservative family in a conservative little town in the mountains of North Carolina. He and his wife held handguns aloft in their wedding photos, and his first job after dropping out of college was as a sheriff’s deputy at the jail. James joined the Coast Guard in 2015. “My main goal,” he told me, “was to chase down drug runners and catch migrants” — two groups that were more or less the same, as far as he understood.

    He’d been on the job no more than a few weeks before his expectations were upended. “I had no idea what I was talking about,” he told me. There was much less “running and gunning, catching bad guys” than he’d anticipated. Instead, the people he detained would tell him their stories, sometimes with the help of Google Translate on his phone, about violence and deprivation like he had never contemplated. People described what it was like to live on $12 a month. There were children and grandmothers who could have been his own, and young men not so unlike him. They were not trying to infiltrate the country as he’d thought. They were running because “they didn’t have another option,” he says.

    James and his colleagues learned the lengths people would go to try to get to land. Since last fall, people detained on cutters have pulled jagged metal cotter pins, bolts and screws from the rigging and swallowed them, apparently trying to cause such severe injury that they’d be taken to a hospital. Last August, near the Florida Keys, three Cuban men were reported to the Coast Guard by a passing towboat operator; most likely fearing they would be brought back to Cuba, they stabbed and slashed their legs with blades and were found in puddles of blood. In January, a man plunged a five-inch buck-style knife that he’d carried onto a cutter into the side of his torso and slashed it down his rib cage. The crew taped the knife to the wound to stop him from bleeding out as he fell unconscious. Most of these people were delivered to Customs and Border Protection and rushed to hospitals on land, where they probably intended to claim asylum. By the time James began working as operations officer on the Manowar last summer, he and other crew members started every leg at sea by scouring the decks for anything that people might use to harm themselves. (According to a DHS spokesperson, “medical evacuations do not mean that migrants have a greater chance of remaining in the United States.”)

    People detained on cutters have in rare cases threatened to harm Coast Guard members or others they’re traveling with. In January, a group the Coast Guard detained pushed crew members and locked arms to stop their removal to another cutter, according to an internal record. That same month, a group of Haitians held children over the side of a boat, “threatening to throw them overboard and set them on fire” if the Coast Guard came closer. Weeks later, a group of Cubans brandished poles with nails hammered into them and tried to attack an approaching Coast Guard boat. Conflicts between crew and those they detain have escalated to the point that Coast Guard members have shot people with pepper balls and subdued others with stun maneuvers.

    James tensed as he heard the order over the loudspeaker. He thought of the crowd-control techniques he’d learned to immobilize someone, and stepped down the side walkway toward the stern. In front of him were dozens of angry men and a few women, yelling in Haitian Creole. James hesitated and then walked forcefully up to the group, his hands pulled into his sides as if he were ready to throw a punch. Instead, he took a knee. He gestured to the men around him to come join him. He spoke into a cellphone in English, and on the screen he showed them the Google Translate app: “You’ve got to tell everybody to calm down,” it read in Creole. “I can’t help you if I don’t know what’s going on.”

    Before they could respond, five other crew members came down the stairs, plastic zip ties and batons hanging from their belts. Tcherry was sitting under the stairs, beside Claire and Beana, who had not let go of the teddy bear. “Shut up, shut up,” one of the crew told the protesters as he stepped in front of Tcherry. “One of them said he was going to pepper-spray their eyes and handcuff them,” Tcherry says. James told his colleagues to wait. The yelling in English and Creole grew louder. A man to Tcherry’s left began to scream and roll on the ground, and then he rolled partway under the handrail. A crew member grabbed the man by the back of the pants and hauled him up. James secured his wrist to a post on the deck. “Nobody’s dying on my boat today,” James said.

    Above Tcherry, another crew member stepped onto the landing at the top of the stairs. He held a shotgun and cocked it. James claims that the gun was not loaded, but the threat of violence had its intended effect. The protesters stepped back and went quiet.

    James kept speaking into the phone. “What do you want?” he asked the men.

    “If we go back, we’re dead,” one man replied. They said they could not endure being on the boat much longer.

    “If it were up to me, we’d be taking you to land,” James said. “But it is not up to us.” There was a process to seek protection, he told them. “But what you’re doing now is not that process.”

    Coast Guard crews do not decide who will be offered protection and who will be sent back. Their responsibility is only to document what the agency calls “manifestation of fear” (MOF) claims. The Coast Guard instructs them to make note of such claims only when people proactively assert them or when they observe people exhibiting signs of fear, such as shaking or crying. They are not supposed to ask. That may help explain why the agency has logged only 1,900 claims from more than 27,000 people detained in this region between July 2021 and September 2023. Fewer than 300 of those came from Haitians, even though they make up about a third of people held on cutters. Officials in the Coast Guard and in U.S. Citizenship and Immigration Services told me that Haitians face a systemic disadvantage in making a successful claim for protection: Almost no one working on Coast Guard boats can speak or understand Creole. (The Coast Guard told me it has access to contracted Creole interpreters aboard cutters.)

    Regardless of the person’s nationality, the process is nearly always a dead end. Each person who makes a claim for protection is supposed to be referred to a U.S. Citizenship and Immigration Services officer, who conducts a “credible fear” screening by phone or in person on a cutter. Between July 2021 and early September 2023, USCIS approved about 60 of the approximately 1,900 claims — around 3%. By contrast, about 60% of asylum applicants on land passed a credible-fear screening over roughly the same period. Unlike on land, people who are denied on ships have no access to courts or lawyers to appeal the decision. And the few who are approved are not sent to the United States at all. Should they choose to proceed with their claims, they are delivered to an immigration holding facility at the U.S. naval base at Guantánamo Bay, where they are evaluated again. They’re told they should be prepared to wait for two years or more, until another country agrees to take them as refugees. Only 36 of the people with approved claims agreed to be sent to Guantánamo. The State Department says there are currently no unaccompanied minors held at the Migrant Operations Center at Guantánamo, but a recent federal contract document says that the facility is prepared to accept them.

    The Manowar crew had been tasked by the local Coast Guard office with logging any requests for protection. But the night after the protest had been too chaotic and exhausting for them to do so. In the morning, a larger cutter with more supplies arrived. The people detained on the Manowar would be transferred to that boat. Before they departed, James told them that anyone who intended to seek protection should seek help from the crew on the next boat. “Tell them, ‘I’m in fear for my life,’ just like you told me,” he said. “You tell whoever is processing you that specific thing.”

    But subsequent crews logged no such claims, according to records I obtained. One man told me that, in response to his plea for protection, an officer on the next boat wrote a note on a piece of paper, but nobody ever followed up. Another said that an officer told him their claims would be heard later. But there were no more interviews. “We had no opportunity,” a woman in the group says. When I asked the Coast Guard about this, a spokesperson told me the agency meticulously documents all claims. “Since we do not have a record of any of those migrants communicating that they feared for their lives if returned to Haiti, I cannot say that they made MOF claims while aboard,” he said.

    Tcherry fell asleep on the larger cutter and woke at around dawn to commotion. He saw an EMT pressing on the chest of a middle-aged woman who lay several yards away from him. She had been moaning in pain the night before. The crew member keeping watch had found her dead, her nose and mouth covered in blood. Another Haitian woman began to sing a hymn as the EMT performing CPR cried. A small boat took the woman’s body away and then returned for another man who had been complaining of pain and could not urinate. “I thought they would take us to land after the woman had died,” Tcherry says. “I thought they would let us go.” But that afternoon, he was transferred to yet another cutter that pulled away from Florida and into the high seas. Tcherry finally understood he was being sent back.

    The Coast Guard was first deployed as a maritime border-patrol agency to stop an earlier surge of migration from Haiti. In 1981, President Ronald Reagan made a deal with Jean-Claude Duvalier, the Haitian dictator, that allowed the Coast Guard to stop and board Haitian boats and deliver those detained directly back to Haiti. They would be processed on Coast Guard cutters, far from lawyers who could review their cases. The order, advocates argued at the time, undermined U.N. refugee protections and a U.S. refugee-and-asylum law that Congress passed just the year before. “This effort to push borders into the world’s oceans was new, and it marked a perverse paradigm shift,” Jeffrey Kahn, a legal scholar at the University of California, Davis, wrote recently.

    A decade after the Reagan agreement, as Haitians again departed en masse following a military coup, the George H.W. Bush administration further buttressed the sea wall. Bush signed an order that said federal agencies had no obligation to consider asylum claims from Haitians caught in international waters, no matter the evidence of danger or persecution. Lawyers and activists protested, calling the maritime regime a wholesale abdication of human rights doctrine. But the Bush order still stands. By the mid-1990s, its reach expanded to nearly anyone of any nationality caught in the sea, whether out in international waters or a couple of hundred feet from the beach.

    Pushing migrants and refugees away from the land borders to avoid obligations under law has now become common practice. In the United States, consecutive policies under Presidents Barack Obama, Donald Trump and Joe Biden have attempted to cast whole swaths of the land south of the border as a legal no-man’s land like the ocean. They have outsourced deterrence, detention and deportation to Mexico and Central America. Trump and Biden have sought to bar people from seeking asylum if they don’t first try to apply for protection in countries they pass through on their way to the United States. Europe, for its part, has pushed people coming by boat through the Mediterranean back to North African shores, where countries have imposed brutal regimes of deterrence.

    None of those measures have prevented the latest wave of migration from the Caribbean. In January, amid a generational spike in Haitians and Cubans held on their cutters, the Coast Guard acknowledged that crew members were reaching a breaking point. “We are in extremis,” a senior official wrote to colleagues in a widely circulated internal email in January. “I know you and your teams are pushed beyond limits.” The head of the Coast Guard for the eastern half of the United States, Vice Adm. Kevin Lunday, wrote in February to colleagues that two outside experts had told him their crews were under extreme stress similar to the levels experienced in “sustained combat operations.”

    Coast Guard members told me they had become accustomed to retrieving corpses from capsized boats, worn down by water or gnawed on by sharks. It was not uncommon to walk down a stairway or into a bunk room and come upon a crew member sobbing. Crew members waited months for mental health appointments, and the agency was talking openly about suicide prevention. “I don’t see how the current level of operations is sustainable,” Capt. Chris Cederholm, the commander of U.S. Coast Guard Sector Miami, wrote to colleagues, “without the breaking of several of our people.” Some were struggling with what one former crew member called a “moral dilemma,” because they had begun to understand that the job required them to inflict suffering on others. “We hear their stories, people who say they’d rather we shoot them right here than send them back to what they’re running from,” one Coast Guard member says. “And then we send them all back.”

    Tim James told me he tried to take his mind off the job by lifting weights and frequenting a cigar bar where service members and cops go to talk about “the suck,” but he soon realized he needed more than weights or whiskey to reckon with the mounting stress, even despair. “I go home, and I feel guilty,” he told me, “because I don’t have to worry about somebody kicking in my front door, you know, I don’t have to worry about the military roaming the streets.” He sought mental health support from a new “resiliency support team” the agency created. But James had not been able to shake the memories of the children he detained, particularly one 7-year-old Haitian girl with small braids. She’d been wearing shorts and a tank top, her feet were bare and she smiled at James whenever their eyes caught. “My mom is dead,” she told James with the help of an older child who spoke a little English. “I want to go to my auntie in Miami.”

    In the girl’s belongings the crew found a piece of paper with a phone number she said was her aunt’s. After James interviewed her, they sent her unaccompanied-minor questionnaire to the district office in Florida, and they waited for instructions on what to do with her. Out on the deck, James couldn’t help hoping she’d be taken to shore, to her aunt. But late in the morning the next day, the crew received a list from an office in Washington, D.C., of the people to be sent back. The girl was on the list. James cried on the return trip to port. One of his own daughters was about the girl’s age. “I can’t imagine sending my 7-year-old little kid across an ocean that is unforgiving,” James told me, nearly in tears. “I can’t imagine what my life would be like to have to do that.”

    That was just weeks before he encountered Tcherry, Claire and Beana. So when Peterson admitted the children were alone, the news came as a blow. “It’s a pretty hard hit when you think the kids have somebody and then it turns out that they really don’t,” James told me. He could see that Tcherry thought he would be making it to shore. “To see the hope on his face and then have to kind of turn around and destroy that is tough,” James told me. He never learns what becomes of the people he transfers off his cutter: that the pregnant woman gave birth in a hospital to a healthy boy and has an asylum case pending; that the body of Guerline Tulus, the woman who died on the cutter of what the medical examiner concluded was an embolism, remains in a Miami morgue, and that authorities have not identified any next of kin. He does not know what happened to the three children after they were sent back, but many months later, he says, he still wonders about them.

    Tcherry followed Claire and Beana up a rickety ramp in the port of Cap-Haïtien, Haiti, past a seized blue and yellow cargo ship into the Haitian Coast Guard station. The ground was littered with plastic U.S. Coast Guard bracelets that previous groups of people had pulled off and thrown to the ground. Officials from the Haitian child-protection authority and the U.N.’s International Organization for Migration watched as Tcherry and the rest of the group disembarked. “They looked scared and they said they were hungry,” a veteran official at IBESR, the Haitian child-protection agency, who was working at the port that day told me. “As a Haitian, I feel humiliated,” he says, “but we can’t really do anything about it. We’ve resigned ourselves.” To him, the people the Americans offloaded in Haiti always looked half dead. “It seems to me that when those children fall in their hands, they should know how to treat them. But that’s not the case.”

    Tcherry’s throat hurt and his legs were weak. He had never felt such tiredness. He ate as much as he could from the warm plate of food the UN provided. Slumped over on a bench, he waited for his turn to use the shower in a white and blue wash shed on the edge of a fenced lot behind the Haitian Coast Guard station. The officials brought several people to a hospital and got to work figuring out what to do with the unaccompanied children.

    The U.S. Coast Guard and State Department say that the children they send back are transferred into the hands of local authorities responsible for the care of children. “When we have custodial protection of those children, we want to make sure that the necessary steps are taken,” Lt. Cmdr. John Beal, a Coast Guard spokesperson, told me, “to ensure that when we repatriate those migrants, they don’t end up in some nefarious actor’s custody or something.” But no U.S. agency would explain the actual precautions the U.S. government takes to keep children from ending up in the wrong hands, beyond initial screenings aboard cutters. Last year, the Coast Guard stopped tracking the “reception agency” in each country, because according to the Department of Homeland Security, the U.S. government has set up rules establishing which agencies take these children and no longer needs to track them on a case-by-case basis.

    Haitian child-protection officials in Cap-Haïtien say their agency always finds relatives to take children, though sometimes after weeks or months. But the official with one of the other agencies involved in the processing of returned and deported Haitians at the Cap-Haïtien port said this claim is simply not true. The official said that children have departed the port with adults and with older children without any agency confirming they have an actual relationship or connection. “This is a serious concern in terms of trafficking,” the official told me. IBESR said those claims were unfounded. “According to the procedure, every child who leaves the port is accompanied by someone,” the IBESR official said, adding that when possible, the agency follows up with families to make sure children arrive safely. But the agency acknowledged there are limits to the support it can provide because of a lack of resources.
    Before they left the cutter, Peterson told Tcherry and the sisters that he would take care of them until they could contact their parents, who would figure out where they needed to go. Tcherry agreed. Peterson later told me he’d thought carefully about whether he wanted to get involved in the kids’ affairs once they were off the boat. He’d talked to other adults onboard, and they all agreed that someone needed to step up, that the Haitian government was surely not to be trusted. “If I didn’t do it,” Peterson says, “they would remain with the Haitian state, with all the risks that they could’ve faced, including kidnapping.”

    Peterson told the child-protection agency that he was the children’s guardian. The officials said they would need to contact the parents to confirm, so Peterson did the only thing he could think to do: He called the man who had been his conduit to the boat out of the Bahamas. The man sent him photos of the children’s IDs and put Peterson in touch with Claire and Beana’s mother, Inose Jean, in Michigan. She screamed and cried with relief upon learning her daughters were alive. Peterson explained that he’d taken care of the girls at sea and he asked her what to do with them. She said she would call back. Two hours later, she instructed Peterson to take the girls to her friend’s house in Cap-Haïtien.

    But Peterson still had no number for Tcherry’s mother. So he told the officials that Tcherry was Claire and Beana’s cousin, and that he’d gotten the image of Tcherry’s ID from Inose Jean. At dusk, Peterson walked with the three children through the metal gate of the Haitian Coast Guard station, at once incensed and relieved that he’d been allowed to take them. “The Haitian authorities didn’t talk to the children’s mothers,” Peterson says. “There was not enough evidence to actually prove I was who I was, or to prove a relationship.” They took a taxi to Jean’s friend’s house, and Claire, who recognized the woman from years earlier, rushed into her arms.

    The woman agreed to let Tcherry spend a night there. Peterson went to a cheap hotel with spotty electricity and a dirty pool. The man in the Bahamas finally sent Peterson Tcherry’s mother’s number. “I am the person who stood up to care for Tcherry on the boat,” Peterson told LaFortune. She collapsed onto the bed in her room, the only piece of furniture in the Toronto apartment she shared with her husband and her daughter. She had spent the last six days in a terrified daze, calling the people in the Bahamas she’d paid, begging for any news and fighting images in her mind of her son sinking into the sea. The next morning, after Tcherry woke, Peterson called LaFortune again. Tcherry looked weak and his voice was frail and hoarse. “When will I be with you, Mommy?” he asked.

    LaFortune did not for a moment consider trying to put Tcherry on another boat. She told him she would wait until she got asylum in Canada and send for him legally. But Haiti was even more dangerous for Tcherry than when he’d left. One man who was detained with Tcherry, whom I interviewed in Haiti two weeks after he returned there, said he feared he would be killed if he left Cap-Haïtien for his home in Port-au-Prince. After he ran through the roughly $50 the U.N. agency gave each of the returnees, which he used for a hotel, he did go back and was attacked on the street as he traveled to a hospital, he said, to get medicine for his daughter. He sent me photographs of gashes on his body. A second man sent me photos of a deep head wound that he suffered during an attack by the very armed men he had said he was running from. Another woman from the boat who told me she fled because she was raped says she is now “in hiding” in Port-au-Prince, living with relatives and her daughter, whom she does not allow to leave the house.

    Others on the boat have been luckier. In late 2022, the Department of Homeland Security started an unusually broad new legal-immigration program that now allows Haitians and Cubans, along with Venezuelans and Nicaraguans, to apply for two-year entry permits on humanitarian grounds from their countries, rather than traveling by land or sea first. The Department of Homeland Security says that since the program began, it has processed 30,000 people a month. More than 107,000 Haitians and 57,000 Cubans have been approved for entry, including a man who was detained with Tcherry. On Oct. 18, he stepped off a plane in Fort Lauderdale with a legal entry permit. He made it just under the wire, given the timing of his interdiction in February. In late April, DHS added a caveat to the new program: Anyone stopped at sea from then on would be ineligible to apply to the parole program. The Coast Guard says the new program and the accompanying restriction have caused the numbers of Cubans and Haitians departing on boats to fall back down to their pre-2021 level. “People have a safe and lawful alternative,” Beal, the Coast Guard’s spokesperson in Florida, told me, “so they don’t feel their only option is to take to the sea.”

    Tcherry rode a bus with Peterson over the mountains to Saint-Marc. In the stucco house on a quiet street where Peterson lived with his fiancée and her parents, Tcherry struggled to stop thinking about his experience at sea. “When I sleep, when I sit down, I want to cry,” Tcherry told me days after his arrival there. “They had us for five days. We couldn’t eat well, couldn’t sleep well. Couldn’t brush our teeth.” He thought of his body soaked from the sea spray, of the woman who died. Although Peterson assured him it was not true, Tcherry kept wondering if the officers had just thrown her body into the sea. “He is having nightmares about the boats,” Peterson told me a week after their arrival, “reliving the same moment again and again, and he starts crying.”

    LaFortune told Tcherry that she was arranging for him to travel to his grandmother in another part of the country. But it soon became clear to her that the roads were too dangerous, spotted with gang and vigilante checkpoints guarded often by men carrying AK-47s. Peterson told LaFortune that Tcherry could stay with him as long as she needed him to. But as the weeks turned to months, Tcherry felt that Peterson began to change. He said Peterson needed money, and he was asking Tcherry’s mother to send more and more. Peterson was frequently out of the house, working odd jobs, and often could not answer LaFortune’s calls. She grew worried. When she did talk to Tcherry, he was as quiet as he was in the smuggler’s house in the Bahamas.

    Two months passed. LaFortune’s asylum case was denied, and she and her husband appealed. Four more months passed. LaFortune’s husband heard news that gangs were closing in on Saint-Marc. LaFortune decided that they must move Tcherry, that it was time to risk the journey on the roads. In September, she sent an old family friend to collect him. They rode on a bus through a checkpoint where the driver paid a fee to a masked man. “I saw a man holding his gun,” Tcherry says. The man made a sign that they could pass.

    Tcherry arrived at a busy bus station in Port-au-Prince and looked for his grandmother. He saw her in a crowd and remembered her face, her high forehead and wide smile. “That is my grandma,” he said, again and again. His mutters turned to song. “That is my grandmother, tololo, tololo, that is my grandmother.” He sank into her arms. He held her hand as they boarded another bus and passed through another checkpoint, back to where he began.



    Reprise du #modèle_australien et son concept de l’#excision_territoriale :

    “People intercepted at sea, even in U.S. waters, have fewer rights than those who come by land. “Asylum does not apply at sea,” a Coast Guard spokesperson told me. Even people who are fleeing violence, rape and death, who on land would be likely to pass an initial asylum screening, are routinely sent back to the countries they’ve fled.”

    Excision territoriale :


    #droits #mer #terre #USA #Etats-Unis #asile #migrations #réfugiés #MNA #mineurs_non_accompagnés #enfants #enfance #Haïti #réfugiés_haïtiens

    via @freakonometrics

  • Immigration Enforcement and the Afterlife of the Slave Ship

    Coast Guard techniques for blocking Haitian asylum seekers have their roots in the slave trade. Understanding these connections can help us disentangle immigration policy from white nationalism.

    Around midnight in May 2004, somewhere in the Windward Passage, one of the Haitian asylum seekers trapped on the flight deck of the U.S. Coast Guard’s USCGC Gallatin had had enough.

    He arose and pointed to the moon, whispering in hushed tones. The rest of the Haitians, asleep or pretending to be asleep, initially took little notice. That changed when he began to scream. The cadence of his words became erratic, furious—insurgent. After ripping his shirt into tatters, he gestured wildly at the U.S. Coast Guard (USCG) watchstanders on duty.

    I was one of them.

    His eyes fixed upon mine. And he slowly advanced toward my position.

    I stood fast, enraptured by his lone defiance, his desperate rage. Who could blame him? Confinement on this sunbaked, congested, malodorous flight deck would drive anyone crazy—there were nearly 300 people packed together in a living space approximately 65 feet long and 35 feet wide. We had snatched him and his compatriots from their overloaded sailing vessel back in April. They had endured week after week without news about the status of their asylum claims, about what lay in store for them.

    Then I got scared. I considered the distinct possibility that, to this guy, I was no longer me, but a nameless uniform, an avatar of U.S. sovereignty: a body to annihilate, a barrier to freedom. I had rehearsed in my mind how such a contingency might play out. We were armed only with nonlethal weapons—batons and pepper spray. The Haitians outnumbered us 40 to 1. Was I ready? I had never been in a real fight before. Now a few of the Haitian men were standing alert. Were they simply curious? Was this their plan all along? What if the women and children joined them?

    Lucky for me, one of the meanest devils on the watch intervened on my behalf. He charged toward us, stepping upon any Haitians who failed to clear a path. After a brief hand-to-hand struggle, he subdued the would-be rebel, hauled him down to the fantail, and slammed his head against the deck. Blood ran from his face. Some of the Haitians congregated on the edge of the flight deck to spectate. We fastened the guy’s wrists with zip ties and ordered the witnesses to disperse. The tension in his body gradually dissipated.

    After fifteen minutes, the devil leaned down to him. “Are you done? Done making trouble?” His silence signified compliance.

    Soon after, the Haitians were transferred to the custody of the Haitian Coast Guard. When we arrived in the harbor of Port-au-Prince, thick plumes of black smoke rose from the landscape. We were witnessing the aftermath of the CIA-orchestrated February coup against President Jean-Bertrand Aristide and the subsequent invasion of the country by U.S. Marines under the auspices of international “peacekeeping.” Haiti was at war.

    None of that mattered. Every request for asylum lodged from our boat had been rejected. Every person returned to Haiti. No exceptions.

    The Gallatin left the harbor. I said goodbye to Port-au-Prince. My first patrol was over.

    Out at sea, I smoked for hours on the fantail, lingering upon my memories of the past months. I tried to imagine how the Haitians would remember their doomed voyage, their detention aboard the Gallatin, their encounters with us—with me. A disquieting intuition repeated in my head: the USCG cutter, the Haitians’ sailing vessel, and European slave ships represented a triad of homologous instances in which people of African descent have suffered involuntary concentration in small spaces upon the Atlantic. I dreaded that I was in closer proximity to the enslavers of the past, and to the cops and jailors of the present, than I ever would be to those Haitians.

    So, that night, with the butt of my last cigarette, I committed to cast my memories of the Haitians overboard. In the depths of some unmarked swath of the Windward Passage, I prayed, no one, including me, would ever find them again.

    In basic training, every recruit is disciplined to imagine how the USCG is like every other branch of the military, save one principle: we exist to save lives, and it is harder to save lives than to take them. I was never a very good sailor, but I took this principle seriously. At least in the USCG, I thought, I could evade the worst cruelties of the new War on Terror.

    Perhaps I should have done more research on the USCG’s undeclared long war against Haitian asylum seekers, in order to appreciate precisely what the oath to “defend the Constitution of the United States against all enemies, foreign and domestic” would demand of me. This war had long preceded my term of enlistment. It arguably began in 1804, when the United States refused to acknowledge the newly liberated Haiti as a sovereign nation and did everything it could to insulate its slaving society from the shock waves of Haiti’s radical interpretation of universal freedom. But in our present day, it began in earnest with President Ronald Reagan’s Executive Order 12324 of 1981, also called the Haitian Migrant Interdiction Operation (HMIO), which exclusively tasked the USCG to “interdict” Haitian asylum seekers attempting to enter the United States by sea routes on unauthorized sailing vessels. Such people were already beginning to be derogatorily referred to as “boat people,” a term then borrowed (less derogatorily) into Haitian Kreyòl as botpippel.

    The enforcement of the HMIO and its subsequent incarnations lies almost entirely within the jurisdiction of federal police power acting under the authority of the executive branch’s immigration and border enforcement powers. It does not take place between nations at enmity with one another, but between vastly unequal yet allied powers. Its strategic end is to create a kind of naval blockade, a fluid maritime border around Haiti, which remains under ever-present threat of invasion by a coalition of U.S. and foreign military forces.

    Adding to its asymmetry, the “enemies” to be vanquished on the battlefield are also unconventional: they are not agents of a state, but rather noncombatant individuals who are, in one sense or another, simply acting to save their own lives. During their incarceration aboard USCG cutters, they automatically bear the legal status of “economic migrant,” a person whom authorities deem to be fleeing poverty alone and therefore by definition ineligible for asylum. The meaning of this category is defined solely by reference to its dialectical negation, the “political refugee,” a person whom authorities may (or may not) deem to have a legible asylum claim because they are fleeing state persecution on the basis of race, creed, political affiliation, or sexual orientation. These abstractions are historical artifacts of a half-baked, all-encompassing theory of preemptive deterrence: unless USCG patrols are used to place Haiti under a naval blockade, and unless botpippel are invariably denied asylum, the United States will become flooded with criminals and people who have no means of supporting themselves. By 2003 John Ashcroft and the Bush administration upped the ante, decrying botpippel to be vectors of terrorism. On January 11, 2018, President Donald Trump, during efforts to justify ending nearly all immigration and asylum, described Haiti (which he grouped with African nations) as a “shithole country” where, as he asserted several months prior, “all have AIDS.”

    Haiti is now facing another such crisis. Its president, Jovenel Moïse, having already suspended nearly all elected government save himself, refused to step down at the end of his term on February 7, 2021, despite widespread protests that have shuttered the country. Moïse’s administration is currently being propped up by criminal syndicates, but they are slipping his grasp, and kidnapping for money is now so prevalent that people are terrified to leave their homes. So far, the Biden administration’s response has not been encouraging: though it has instructed ICE to temporarily halt deportations to Haiti, naval blockades remain in force, and the U.S. State Department has expressed the opinion that Moïse should remain in office for at least another year, enforcing the sense that Haiti is once again a U.S. client state.

    With regard to the Coast Guard’s longstanding orders to block Haitians seeking asylum, the modality of killing is not straightforward, but it is intentional. It consists of snatching the Haitian enemy from their vessel, forcing them to subsist in a state of bare life, and finally abandoning them in their home country at gunpoint. Of course, many may survive the ordeal and may even attempt another journey. But especially during acute phases of armed conflict and catastrophe, it is just as likely that—whether at the behest of starvation, disease, or violence—a return to Haiti is a death sentence.

    This banal form of murder is analogous to what Ruth Wilson Gilmore offers as her definition of racism in Golden Gulag (2007): “the state sanctioned or extralegal production and exploitation of group-differentiated vulnerability to premature death.” Based on the extant documentary record, I estimate that the USCG has interdicted at least 120,000 botpippel since the HMIO of 1981 took effect. Those who fell prey to an untimely demise following deportation died because the United States, though repeatedly responsible for undermining Haitian democracy and economic stability, nonetheless refuses to acknowledge that these actions have made Haiti, for many, mortally unsafe. The true death toll will never be known. Countless botpippel have simply disappeared at sea, plunged into a gigantic watery necropolis.

    Since 2004 U.S. officials have brought their forms of border policing strategies and tactics against Haitians to bear on land-based immigration and refugee policies against non-white asylum seekers. One of the most significant technical innovations of enforcement against Haitians was the realization that by detaining them exclusively within a maritime environment, the United States could summarily classify all of them as economic migrants—whose claims for asylum de facto have no standing—and prevent them from lodging claims as political refugees, which are the only claims with any hope of success. They were thus proactively disabled from advancing a request for asylum in a U.S. federal court, with all claims instead evaluated by an INS-designated official aboard the USCG vessel. The New York Times recently reported that, since late 2009, similar techniques have been adopted by Customs and Border Control agents patrolling sea routes along the California coast, which has resulted in a notable escalation of CBP naval patrols and aerial surveillance of the region. And in fact, the USCG has cooperatively supported these efforts by sharing its infrastructure—ports, cutters, and aircraft—and its personnel with CBP. All of this has been with the aim of making sure that asylum seekers never make it to the United States, whether by land or by sea.

    The Trump administration made the most significant use of this set of innovations to date, insisting that asylum claims must be made from camps on the Mexican side of the U.S. border—and therefore automatically invalid by virtue of being limited to the status of economic migrant. Thus, hundreds of thousands of non-white asylum seekers fleeing material precariousness, yes, but also the threat of violence in the Global South are, and will continue to be, caught in carceral webs composed of ICE/CBP goon squads, ruthless INS officials, and perilous tent cities, not to mention the prison guards employed at one of the numerous semi-secret migrant detention centers operating upon U.S. soil for those few who make it across.

    From the perspective of Haitian immigrants and botpippel, this is nothing new. Thousands of their compatriots have already served time at infamous extrajudicial sites such as the Krome detention center in Miami (1980–present), Guantanamo Bay (1991–93), and, most often, the flight decks of USCG cutters. They know that the USCG has long scoured the Windward Passage for Haitians in particular, just as ICE/CBP goon squads now patrol U.S. deserts, highways, and city streets for the undocumented. And they know that Trump’s fantasy of building a “Great Wall” on the U.S.–Mexico border is not so farfetched, because the USCG continues to enforce a maritime one around Haiti.

    The Biden administration has inherited this war and its prisoners, with thousands remaining stuck in legal limbo while hoping—in most cases, without hope—that their asylum claims will advance. Opening alternative paths to citizenship and declaring an indefinite moratorium on deportations would serve as foundations for more sweeping reforms in the future. But the core challenge in this political moment is to envision nothing less than the total decriminalization and demilitarization of immigration law enforcement.

    Botpippel are not the first undocumented people of African descent to have been policed by U.S. naval forces. The legal architecture through which the USCG legitimates the indefinite detention and expulsion of Haitian asylum seekers reaches back to U.S. efforts to suppress the African slave trade, outlawed by Congress in 1807, though domestic slaveholding would continue, and indeed its trade would be not only safeguarded but bolstered by this act.

    This marked a decisive turning point in the history of maritime policing vis-à-vis immigration. Per the Slave Trade Acts of 1794 and 1800, the United States already claimed jurisdiction over U.S. citizens and U.S. vessels engaged in the slave trade within U.S. territorial borders (contemporaneously understood as extending three nautical miles into the ocean). By 1808, however, the United States sought to extend its jurisdiction over the sea itself. Slaver vessels operating around “any river, port, bay, or harbor . . . within the jurisdictional limits of the United States” as well as “on the high seas” were deemed illegal and subject to seizure without compensation. The actual physical distance from U.S. soil that these terms referred to was left purposefully vague. To board a given vessel, a Revenue Cutter captain only had to suspect, rather than conclusively determine, that that vessel eventually intended to offload “international” (i.e., non-native) enslaved people into the United States. The 1819 iteration of the law further stipulated that U.S. jurisdiction included “Africa, or elsewhere.” Hence, in theory, after 1819, the scope of U.S. maritime police operations was simply every maritime space on the globe.

    Revenue Cutter Service captains turned the lack of any description in the 1808 law or its successive iterations about what should be done with temporarily masterless slaves into an advantage. They did what they would have done to any fugitive Black person at the time: indefinitely detain them until higher authorities determined their status, and thereby foreclose the possibility of local Black people conspiring to shuttle them to freedom. During confinement, captured Africans were compelled to perform labor as if they were slaves. For instance, those captured from the Spanish-flagged Antelope (1820) spent seven years toiling at a military fort in Savannah, Georgia, as well as on the local U.S. marshal’s plantation. As wards of the state, they were human only insofar as U.S. officials had a duty to force them to remain alive. Of those “rescued” from the Antelope, 120 ultimately died in captivity and 2 went missing. Following litigation, 39 survivors were sold to U.S. slaveowners to compensate Spanish and Portuguese claimants who had stakes in the Antelope and her enslaved cargo. Per the designs of the American Colonization Society, the remaining 120 Africans were freed upon condition that they be immediately deported to New Georgia, Liberia.

    This anti-Black martial abolitionism was therefore a project framed around the unification of two countervailing tendencies. While white planters consistently pushed to extend racial slavery into the southern and western frontiers, white northern financiers and abolitionists were in favor of creating the most propitious conditions for the expansion of free white settlements throughout America’s urban and rural milieus. Black people were deemed unfit for freedom not only because of their supposed inborn asocial traits, but because their presence imperiled the possibility for white freedom. To actualize Thomas Jefferson’s “Empire of Liberty,” the United States required immigration policies that foreshortened Black peoples’ capacities for social reproduction and thereby re-whitened America.

    This political aim was later extended in legislation passed on February 19, 1862, which authorized President Abraham Lincoln—who intended to solve the contradictions that led to the Civil War by sending every Black person in America back to Africa—to use U.S. naval forces to capture, detain, and deport undocumented people of East Asian/Chinese descent (“coolies”) while at sea. Henceforth, “the free and voluntary emigration of any Chinese subject” to the U.S. was proscribed unless a ship captain possessed documents certified by a consular agent residing at the foreign port of departure. At the time, the principal means for Chinese emigrants to obtain authorization would have been at behest of some corporation seeking expendable, non-white laborers contractually bound to work to death in mines and on railroads on the western frontiers—Native American lands stolen through imperialist warfare. White settlers presupposed that these Asians’ residency was provisional and temporary—and then Congress codified that principle into law in 1870, decreeing that every person of East Asian/Chinese descent, anywhere in the world, was ineligible for U.S. citizenship.

    Twelve years later, An Act to Regulate Immigration (1882) played upon the notion that non-white immigration caused public disorder. Through the use of color-blind legal language, Section 2 of this law specified that the United States must only accept immigrants who were conclusively not “convict[s], lunatic[s], idiot[s], or any person unable to take care of himself or herself without becoming a public charge.” The burden of proof lay on non-white immigrants to prove how their racial backgrounds were not already prima facie evidence for these conditions. Section 4 also stipulated that “all foreign convicts except those convicted of political offenses, upon arrival, shall be sent back to the nations to which they belong and from whence they came.” By which means a non-white person could demonstrate the “political” character of a given conviction were cleverly left undefined.

    It was not a giant leap of imagination for the United States to apply these precedents to the maritime policing of Haitian asylum seekers in the 1980s. Nor should we be surprised that the logic of anti-Black martial abolitionism shapes present-day U.S. immigration policy.

    Political philosopher Peter Hallward estimates that paramilitary death squads executed at least a thousand supporters of Lavalas, President Aristide’s party, in the weeks following Aristide’s exile from Haiti on February 29, 2004. The first kanntè (Haitian sailing vessel) the Gallatin sighted one morning in early April had likely departed shortly thereafter.

    The first people from our ship that the Haitians met were members of the boarding team, armed with pistols, M-16s, shotguns, and zip ties. Their goal was to compel the hundred or so aboard the kanntè to surrender their vessel and allow us to deposit them on the flight deck of our ship. Negotiations can take hours. It is not uncommon for some to jump overboard, rather than allow boarding to occur uninhibited. If immediate acquiescence is not obtained, we will maneuver ourselves such that any further movement would cause the small boat to “ram” the Gallatin—an attack on a U.S. military vessel.

    On the Gallatin, we waited for uptake, outfitted with facemasks and rubber gloves. One at a time, we aided the Haitian adults to make the final step from the small boat to the deck of the cutter. We frisked them for weapons and then marched them to the fantail to undergo initial processing. Most of them appeared exhausted and confused—but compliant. Some may have already been in fear for their lives. One night aboard the USCGC Dallas, which hovered in Port-au-Prince Bay as a deportation coordination outpost and as a temporary detention site for Haitians awaiting immediate transfer to Haitian Coast Guard authorities, my friend and his shipmates asked their Kreyòl interpreter how he managed to obtain compliance from the botpippel. “I tell them you will hurt or kill them if they do not obey,” he joked, “so, of course, they listen.”

    Boarding all the Haitians took from midday until midnight. One of the last ones I helped aboard, a man dressed in a suit two sizes too large, looked into my eyes and smiled. He gently wept, clasped my hand tightly, and embraced me. I quickly pushed him off and pointed to the processing station at the fantail, leading him by the wrist to join the others. He stopped crying.

    Three things happened at the processing station. First, Haitians deposited the last of their belongings with the interpreter, ostensibly for safekeeping. Who knows if anyone got their things back. Second, a Kreyòl translator and one of the officers gave them a cursory interview about their asylum claims, all the while surrounded by armed sentries, as well as other Haitians who might pass that intelligence onto narcotics smugglers, paramilitary gangs, or state officials back in Haiti. Lastly, they received a rapid, half-assed medical examination—conducted in English. So long as they nodded, or remained silent, they passed each test and were shuffled up to the flight deck.

    We retired for the night after the boarding team set fire to the kanntè as a hazard to navigation. The Haitians probably didn’t know that this was the reason we unceremoniously torched their last hope for escape before their very eyes.

    About a week later, we found another kanntè packed with around seventy Haitians and repeated the process. Another USCG cutter transferred a hundred more over to the Gallatin. Our flight deck was reaching full capacity.

    We arrived at one kanntè too late. It had capsized. Pieces of the shattered mast and little bits of clothing and rubbish were floating around the hull. No survivors. How long had it been? Sharks were spotted circling at a short depth below the vessel.

    The Gallatin’s commanders emphasized that our mission was, at its core, humanitarian in nature. We were duty-bound to provide freshwater, food, and critical medical care. During their time aboard, Haitians would be treated as detainees and were not to be treated, or referred to, as prisoners. The use of force was circumscribed within clear rules of engagement. The Haitians were not in any way to be harmed or killed unless they directly threatened the ship or its sailors. Unnecessary violence against them could precipitate an internal review, solicit undue international criticism, and imperil the deportationist efficiency of INS officials. We were told that our batons and pepper spray were precautionary, primarily symbolic.

    It sounded like all I had to do was stand there and not screw anything up.

    Over the course of several watches, I concluded that, in fact, our job was also to relocate several crucial features of the abysmal living conditions that obtained on the kanntè onto the Gallatin’s flight deck. Though the flight deck was 80 feet by 43 feet, we blocked the edges to facilitate the crew’s movement and to create a buffer between us and the Haitians. Taking this into account, their living space was closer to 65 feet by 35 feet. For a prison population of 300 Haitians, each individual would have had only 7 feet 7 inches square to lie down and stand up. On the diagram of the eighteenth-century British slaver Brooks, the enslaved were each allocated approximately 6 feet 10 inches square, scarcely less than on the Gallatin. (Historian Marcus Rediker thinks that the Brooks diagram probably overstates the amount of space the enslaved were given.)

    Although some cutters will drape tarps over the flight deck to shield the Haitians from the unmediated effects of the sun, the Gallatin provided no such shelter. We permitted them to shower, once, in saltwater, without soap. The stench on the flight deck took on a sweet, fetid tinge.

    The only place they could go to achieve a modicum of solitude and to escape the stench was the makeshift metal toilet on the fantail. (On slave ships, solitude was found by secreting away to a hidden compartment or small boat to die alone; the “necessary tubs” that held human excrement were contained in the slave holds below deck.) They were permitted to use the toilet one at a time in the case of adults, and two at a time in the case of children and the elderly. For what was supposed to be no longer than five minutes, they had an opportunity to stretch, relax, and breathe fresh sea air. Nevertheless, these moments of respite took place under observation by the watchstander stationed at the toilet, not to mention the numerous Haitian onlookers at the rear of the flight deck.

    Despite our commanders’ reticence on the matter, the ever-present fear of revolt hovered underneath the surface of our standing orders. We were to ensure order and discipline through counterinsurgency protocols and techniques of incarceration that one might find in any U.S. prison. The military imperative aboard the Gallatin was to produce a sense of radical uncertainty and temporal disorientation in the Haitians, such that they maintain hope for an asylum claim that had already been rejected.

    In this context, there were four overlapping components to the security watch.

    The first component of the ship’s securitization was constant surveillance. We were not supposed to take our eyes off the Haitians for one moment. During the watch, we would regularly survey the flight deck for any signs of general unrest, conspiracy, or organized protest. Any minor infraction could later contribute to the eruption of a larger riot, and thus needed to be quickly identified and neutralized. We also had to observe their behavior for indications that one of them intended to jump overboard or harm another Haitian. All that said, we found a used condom one day. Surveillance is never total.

    The second was the limitation we placed on communication. We shrouded all USCG practices in a fog of secrecy. Conversing with the Haitians through anything other than hand signals and basic verbal commands was forbidden; physical contact was kept at bare minimum. Nonofficial speech among the watch was proscribed. Watchstanders were stripped of their identity, save their uniform, from which our nametags were removed. It was critical that botpippel forever be unable to identify us.

    Secrecy preemptively disabled the Haitians from collectively piecing together fragments of information about where our vessel had been, where it was now, and where it was going. Officially, the concern was that they might exploit the situation to gather intelligence about our patrol routes and pass this information to human or narcotics smugglers. We militated against their mapping out how the ship operated, its layout and complement, where living spaces and the armory were located, and so on. These were standard tactics aboard slaver vessels. As freed slave and abolitionist Olaudah Equiano observed, “When the ship we were in had got in all her cargo . . . we were all put under deck, so that we could not see how they managed the vessel.”

    On the Gallatin, the command also strove to maintain strict control over the narrative. They blocked sailors’ access to the open Internet and censored letters from home that contained news of global or domestic politics (and even just bad personal news). Knowledge of whether a particular asylum claim had failed or succeeded was hidden from all. A watchstander harboring political solidarity with—as opposed to mere empathy and pity for—the Haitians might compromise operational capacities, good judgment, and core loyalty to the USCG.

    Our third securitization strategy was to produce false knowledge of the future. The Haitians were led to believe that they were merely waiting aboard the ship because their asylum claims were still being vigorously debated by diplomatic entities in Washington. Their continued compliance was predicated on this differential of knowledge. They could not realize that they were moving in circles, being returned slowly to Haiti. If they lost all hope, we presumed they would eventually resist their intolerable conditions through violent means.

    Hence, our fourth securitization measure: USCG personnel were permitted to inflict several limited forms of physical and symbolic violence against the Haitians, not only in response to perceived noncompliance, but also as a means of averting the need to inflict even greater violence in the future.

    If it were not classified as a matter of national security, we might have a better grasp of how many times such instances occur aboard USCG vessels. I open this essay with a story of how we subdued and punished one person for resisting the rules. But it is known that punishment is sometimes inflicted on entire groups. A telling example took place on January 30, 1989, when the USCG captured the Dieu Devant with 147 Haitians aboard. One of them, Fitzroy Joseph, later reported in congressional hearings that, after they expressed a fear of being killed if returned to Haiti, USCG personnel “began wrestling with the Haitians and hitting their hands with their flashlights.” This was followed by threats to release pepper spray. Marie Julie Pierre, Joseph’s wife, corroborated his testimony, adding:

    [We were] asked at once if we feared returning to Haiti and everyone said yes we did. We said ‘down with Avril, up with Bush.’ We were threatened with tear gas but they didn’t use it. Many people were crying because they were so afraid. [Ti Jak] was hit by the officers because he didn’t want to go back. They handcuffed him. The Coast Guard grabbed others by the neck and forced them to go to the biggest boat. My older brother was also hit and treated like a chicken as they pulled him by the neck.

    Counterintuitively, our nonlethal weapons functioned as more efficient instruments of counterinsurgency than lethal weapons. Brandishing firearms might exacerbate an already tense situation in which the Haitians outnumbered the entire ship’s complement. It could also provide an opportunity for the Haitians to seize and turn our own guns against us (or one another). In contrast, losing a baton and a can of pepper spray represented a relatively minor threat to the ship’s overall security. In the event of an actual riot, the command could always mobilize armed reinforcements. From the perspective of the command, then, the first responders on watch were, to some extent, expendable. Nevertheless, sentries bearing firearms were on deck when we approached Haiti and prepared for final deportation. That is, the precise moment the Haitians realized their fate.

    Like the enslaved Africans captured by the Revenue Cutter Service, botpippel were human to us only insofar as we had to compel them, through the threat or actuality of violence, to remain alive. The Haitians ate our tasteless food and drank our freshwater—otherwise they would starve, or we might beat them for going on a hunger strike. They tended to remain silent and immobile day and night—otherwise they would invite acts of exemplary punishment upon themselves. The practices of confinement on the Gallatin represent a variant of what historian Stephanie Smallwood describes as a kind of “scientific empiricism” that developed aboard slave ships, which “prob[ed] the limits to which it is possible to discipline the body without extinguishing the life within.” Just as contemporary slavers used force to conserve human commodities for sale, so does the USCG use force to produce nominally healthy economic migrants to exchange with Haitian authorities.

    The rational utilization of limited forms of exemplary violence was an integral aspect of this carceral science. Rediker shows how slaver captains understood violence along a continuum that ranged from acceptably severe to unacceptably cruel. Whereas severity was the grounds of proper discipline as such, an act was cruel only if it led “to catastrophic results [and] sparked reactions such as mutiny by sailors or insurrection by slaves.” In turn, minor acts of kindness, such as dispensing better food or allowing slightly more free time to move above deck, were conditioned by these security imperatives. Furthermore, they exerted no appreciable change to the eventuality that the person would be sold to a slaveowner, for kindness was a self-aggrandizing ritual performance of authority that intended to lay bare the crucial imbalance of power relations at hand. This was, Rediker maintains, “as close as the owners ever came to admitting that terror was essential to running a slave ship.”

    The USCG’s undeclared long war against Haitian asylum seekers is but one front of a much longer war against people of African descent in the Americas. The entangled histories of the African slave trade and anti-Black martial abolitionism reveal how this war intimately shaped the foundations and racist intentions that underlay modern U.S. immigration and refugee policy writ large. And the Gallatin, her sailors, and the Haitians who were trapped on the flight deck, are, in some small way, now a part of this history, too.

    The Biden administration has the power to decisively end this war—indeed, every war against non-white asylum seekers. Until then, botpippel will continue to suffer the slave ships that survive into the present.


    #esclavage #héritage #migrations #contrôles_migratoires #Haïti #gardes-côtes #nationalisme_blanc #USA #Etats-Unis #migrations #frontières #asile #réfugiés #USCG #Haitian_Migrant_Interdiction_Operation (#HMIO) #botpippel #boat_people

    #modèle_australien #pacific_solution

    ping @karine4 @isskein @reka

    • Ce décret de #Reagan mentionné dans l’article rappelle farouchement la loi d’#excision_territoriale australienne :

      But in our present day, it began in earnest with President Ronald Reagan’s Executive Order 12324 of 1981, also called the Haitian Migrant Interdiction Operation (HMIO), which exclusively tasked the USCG to “interdict” Haitian asylum seekers attempting to enter the United States by sea routes on unauthorized sailing vessels. Such people were already beginning to be derogatorily referred to as “boat people,” a term then borrowed (less derogatorily) into Haitian Kreyòl as botpippel.

      Excision territoriale australienne :



      Citation tirée du livre de McAdam et Chong : « Refugees : why seeking asylum is legal and Australia’s policies are not » (p.3)

      “Successive governments (aided by much of the media) have exploited public anxieties about border security to create a rhetorical - and, ultimately, legislative - divide between the rights of so-called ’genuine’ refugees, resettled in Australia from camps and settlements abroad, and those arriving spontaneously in Australia by boat.”

  • #métaliste autour de la Création de zones frontalières (au lieu de lignes de frontière) en vue de refoulements

    Je viens de lire dans un compte-rendu de réunion qui a eu lieu à Milan en juin 2019, ce commentaire, sur la situation à la #frontière italo-slovène :

    Gianfranco Schiavone :

    «Quello che sicuramente dovrebbe diventare una questione delicata é l’annunciato avvio delle pattuglie italo slovene in frontiera con l’obiettivo dichiarato alla stampa di bloccare gli arrivi. Con riammissione senza formalita’ delle persone irregolari intercettate nella fascia dei 5 km dalla frontiera . Queste sono le dichiarazioni pubbliche di questi giorni»

    Une #zone_frontalière de #5_km dans laquelle ont lieu des #refoulements directs.

    #Italie #Slovénie #frontière_sud-alpine #migrations #réfugiés #asile #frontière_mobile #bande_frontalière #frontières_mobiles #zone_frontalière #zones_frontalières #zone-frontière

    Ceci me rappelle d’autres cas, en Europe et ailleurs, dans lesquels des procédures semblables (la frontière n’est plus une #ligne, mais une #zone) ont été mises en place, j’essaie de les mettre sur ce fil de discussion.
    Si quelqu’un a d’autres cas à signaler, les contributions sont bienvenues...

    ping @reka @simplicissimus @karine4 @isskein

    • A la frontière entre franco-italienne :

      Dans un amendement, l’élu a proposé « une zone limitée aux communes limitrophes ou une bande de 10 kms par rapport à la frontière. » Le gouvernement en a accepté le principe, mais « le délimitera de manière précise par décret pour coller à la réalité du terrain. »

      #France #Italie #frontière_sud-alpine

    • L’article 10 de la loi renforçant la sécurité intérieure et la lutte contre le terrorisme modifie l’article 78-2 du Code de procédure pénale relatif aux contrôles d’identités. Il permet ainsi des contrôles aux frontières pour une durée de douze heures consécutives (contre six auparavant). Il les élargit « aux abords » de 373 gares et dans un rayon de dix kilomètres des ports et aéroports au nombre des points de passage frontaliers. Bien au-delà des simples frontières de l’Hexagone, c’est une partie importante du territoire français qui est ainsi couvert, dont des villes entières comme Paris, Lyon, Toulouse, Marseille, etc.

      source, p.25 : https://www.lacimade.org/wp-content/uploads/2018/06/La_Cimade_Schengen_Frontieres.pdf

    • Frontière entre #Italie et #Slovénie :

      This month saw the introduction of joint Slovenian and Italian police patrols on their mutual border, raising concerns about the retrenchment of national boundaries contra the Schengen Agreement. The collaboration between authorities, due to be implemented until the end of September, mobilises four joint operations per week, with respective police forces able to enter 10km into the territory of their neighboring state in order to apprehend migrants. Mixed operations by member states signifies a growing trend towards the securitization of the EU’s internal borders, and in this case a tightening of controls on the departure point from the West Balkan route.

      The patrols aim at stemming the transit of migrants from the western Slovenian regions of #Goriška and #Obalno-kraška, into the eastern region of Friuli Venezia Giulia, Italy. Given the extensive pushback apparatus being employed by Slovenian and Croatian officials, arrival in Italy has often been the first place where persons-in-transit can apply for international protection without the threat of summary removal. However, these developments in cross border patrols highlight a growing effort on the part of the Italian government to prevent people seeking sanctuary on its territory.




      While the exact number of persons arriving via the Slovenian-Italian border is unknown, there has been a sharp rise since April (http://www.regioni.it/dalleregioni/2020/11/09/friuli-venezia-giulia-immigrazione-fedriga-ripensare-politiche-di-controllo-) of people entering Italy from the Balkan route. Not only in Trieste, but also around the province of #Udine, arrivals have increased compared to last year. In Udine, around 100 people (https://www.ansa.it/friuliveneziagiulia/notizie/2020/11/30/migranti-oltre-cento-persone-rintracciate-nelludinese_9fdae48d-8174-4ea1-b221-8) were identified in one day. This has been met with a huge rise in chain pushbacks, initiated by Italian authorities via readmissions to Slovenia. From January to October 2020, 1321 people (https://www.rainews.it/tgr/fvg/articoli/2020/11/fvg-massimiliano-fedriga-migranti-arrivi-emergenza-98da1880-455e-4c59-9dc9-6) have been returned via the informal readmissions agreement , representing a fivefold increase when compared with the statistics from 2019.

      But instead of dealing with this deficit in adherence to international asylum law, in recent months Italian authorities have only sought to adapt border controls to apprehend more people. Border checks are now focusing on trucks, cars and smaller border crossings (https://www.youtube.com/watch?v=fu4es3xXVc8&feature=youtu.be

      ), rather than focusing solely on the military patrols of the forested area. This fits into a strategy of heightened control, pioneered by the Governor of the Friuli Venezia Giulia Region Massimiliano Fedriga who hopes to deploy more detection equipment at the border. The aim is to choke off any onward transit beyond the first 10km of Italian territory, and therefore apply the fast tracked process of readmission to the maximum number of new arrivals.



    • Kuster Backs Bill To Reduce 100-Mile Zone for Border Patrol Checkpoints

      Congresswoman Ann McLane Kuster is cosponsoring legislation to reduce border zones from 100 to 25 miles from the border (https://www.congress.gov/bill/116th-congress/house-bill/3852?q=%7B%22search%22%3A%5B%22border+zone%22%5D%7D&s=1&r=1), within which U.S. Customs and Border Patrol can set up immigration checkpoints.

      Congressman Peter Welch of Vermont is the prime sponsor of the legislation.

      Kuster was stopped at one such immigration checkpoint in June of this year. The checkpoint, on I-93 in Woodstock, around 90 miles from the border, resulted in 29 tickets for alleged immigration violations.

      The violations were for legal visitors who did not have appropriate paperwork on them, according to the U.S. Customs and Border Protection.

      According to a map from CityLabs, the entire state of New Hampshire falls within a border zone (which includes coastal borders).

      “I think it has a chilling effect,” says Kuster. “It’s not the free and open America that we know.”

      Vermont Senator Patrick Leahy introduced a similar bill to the Senate.

      #USA #Etats-Unis

    • Inside the Massive U.S. ’Border Zone’

      All of Michigan, D.C., and a large chunk of Pennsylvania are part of the area where Border Patrol has expanded search and seizure rights. Here’s what it means to live or travel there.


      #cartographie #visualisation

      déjà signalé sur seenthis par @reka en 2018 :

    • En #Hongrie, les pushbacks, largement pratiqués depuis des années, ont été légalisés en mars 2017 par de nouvelles dispositions permettant aux forces de l’ordre de refouler automatiquement toute personne interpellée sur le territoire hongrois et considérée en situation irrégulière. Ces personnes sont ramenées jusqu’à la clôture et renvoyées de l’autre côté. Si elles manifestent leur volonté de demander l’asile, on leur signifie qu’elles doivent repartir en Serbie et passer par les zones de transit. Pourtant, se trouvant géographiquement et juridiquement en Hongrie (le mur étant situé à 1,5 mètre à l’intérieur du tracé officiel de la frontière), les autorités ont l’obligation de prendre en compte ces demandes d’asile en vertu des conventions européennes et des textes internationaux dont la Hongrie est signataire.

      Tiré du rapport de La Cimade (2018), pp.37-38 :

    • Le zone di transito e di frontiera – commento dell’ASGI al decreto del Ministero dell’Interno del 5 agosto 2019

      Il 7 settembre 2009 sulla Gazzetta Ufficiale n. 210 (https://www.gazzettaufficiale.it/eli/id/2019/09/07/19A05525/sg) è stato pubblicato il decreto del Ministero dell’Interno del 5 agosto 2019 che individua le zone di transito e di frontiera dove potrà trovare applicazione la procedura accelerata per l’esame nel merito delle domande di protezione internazionale e istituisce due nuove sezioni delle Commissioni territoriali , come previsto dall’art. 28 bis co. 1 quater del D.lgs. n. 25/2008, introdotto dal d.l. n. 113/2018.

      Le zone di frontiera o di transito sono individuate in quelle esistenti nelle seguenti province:

      –Trieste e Gorizia;

      –Crotone, Cosenza, Matera, Taranto, Lecce e Brindisi;

      –Caltanissetta, Ragusa, Siracusa, Catania, Messina;

      –Trapani, Agrigento;

      –Città metropolitana di Cagliari e Sud Sardegna.

      Il decreto ministeriale istituisce altresì due nuove sezioni , Matera e Ragusa, le quali operano rispettivamente nella commissione territoriale per il riconoscimento dello status di rifugiato di Bari, per la zona di frontiera di Matera, e nella commissione territoriale di Siracusa, per la zona di frontiera di Ragusa.

      Nel commento qui pubblicato ASGI sottolinea come le nuove disposizioni paiono contrastare con le norme dell’Unione Europea perché si riferiscono in modo assolutamente generico alle “zone di transito o di frontiera individuate in quelle esistenti nelle province” e non ad aree delimitate, quali ad esempio i porti o le aree aeroportuali o altri luoghi coincidenti con frontiere fisiche con Paesi terzi non appartenenti all’Unione europea.

      ASGI evidenzia come “l’applicazione delle procedure accelerate alle domande presentate nelle zone individuate nel decreto ministeriale comporta una restrizione dell’effettivo esercizio dei diritti di cui ogni straniero è titolare allorché manifesta la volontà di presentare la domanda di asilo e una conseguente contrazione del diritto di difesa, in ragione del dimezzamento dei termini di impugnazione e dell’assenza di un effetto sospensivo automatico derivante dalla proposizione del ricorso previsti, in modo differente per le varie ipotesi specifiche, dall’art. 35 bis D. Lgs. 25/08”.

      A tal fine ASGI ricorda che:

      – ai cittadini di Paesi terzi o apolidi tenuti in centri di trattenimento o presenti ai valichi di frontiera, comprese le zone di transito alla frontiere esterne, che desiderino presentare una domanda di protezione internazionale, gli Stati membri devono garantire l’informazione, anche sull’accesso procedura per il riconoscimento della protezione internazionale, adeguati servizi di interpretariato,
      nonché l’effettivo accesso a tali aree alle organizzazioni e alle persone che prestano consulenza e assistenza ai richiedenti asilo (art. 8 Direttiva 2013/32/UE);

      – gli Stati membri devono provvedere affinché l’avvocato o altro consulente legale che assiste o rappresenta un richiedente possa accedere alle aree chiuse, quali i centri di trattenimento e le zone di transito (art. 23 par. 2) e analoga possibilità deve essere garantita all’UNHCR (art. 29, par. 1);

      – ai sensi dell’art. 46 par. 1 il richiedente ha diritto a un ricorso effettivo dinanzi a un giudice anche nel caso in cui la decisione sulla domanda di protezione internazionale venga presa in frontiera o nelle zone di transito.

      E’ evidente, conclude ASGI nel commento al Decreto, che vi sia il rischio che lo straniero espulso o respinto e che abbia presentato domanda di protezione internazionale dopo l’espulsione o il respingimento in una zona di frontiera tra quelle indicate nel nuovo decreto ministeriale si veda esaminata la sua domanda in modo sommario mentre è trattenuto in condizioni e luoghi imprecisati e inaccessibili di fatto a difensori e organizzazioni di tutela dei diritti.

      Occorre invece ribadire che la presentazione della domanda di protezione internazionale in frontiera riguarderà spesso persone rese ulteriormente vulnerabili dalle condizioni traumatiche del viaggio ed alle quali andrà perciò in ogni caso garantito un esame adeguato della domanda di protezione internazionale e l’applicazione delle garanzie e dei diritti previsti a tutela dei richiedenti protezione internazionale dalle disposizioni nazionali e dell’Unione Europea.


    • La loi renforçant la lutte contre le terrorisme étend à nouveau les contrôles d’identités frontaliers

      Avant l’entrée en vigueur de la loi du 30 octobre 2017, les #contrôles_frontaliers étaient autorisés dans les espaces publics des #gares, #ports et #aéroports ouverts au trafic international (désignés par un arrêté ministériel) et dans une zone située entre la frontière terrestre et une ligne tracée de 20 kilomètres en deçà. Le législateur avait étendu les zones frontalières, notamment dans les territoires ultra-marins (où la convention de Schengen n’est pourtant pas applicable).

      #France #20_km #20_kilomètres #espace_public #gares_internationales

    • The Grand Chamber Judgment in Ilias and Ahmed v Hungary: Immigration Detention and how the Ground beneath our Feet Continues to Erode

      The ECtHR has been for a long time criticized for its approach to immigration detention that diverts from the generally applicable principles to deprivation of liberty in other contexts. As Cathryn Costello has observed in her article Immigration Detention: The Ground beneath our Feet, a major weakness in the Court’s approach has been the failure to scrutinize the necessity of immigration detention under Article 5(1)(f) of the ECHR. The Grand Chamber judgment in Ilias and Ahmed v Hungary delivered on 21 November 2019 has further eroded the protection extended to asylum-seekers under the Convention to the point that restrictions imposed upon asylum-seekers might not even be qualified as deprivation of liberty worthy of the protection of Article 5. The Grand Chamber overruled on this point the unanimously adopted Chamber judgment that found that the holding of asylum-seekers in the ‘transit zone’ between Hungary and Serbia actually amounts to deprivation of liberty.

      In this blog, I will briefly describe the facts of the case, the findings of the Grand Chamber under Article 3 ECHR that was also invoked by the applicants and then I will focus on the reasoning as to the applicability of Article 5.

      The case concerned two Bangladeshi nationals who transited through Greece, the Republic of Northern Macedonia (as it is now known) and Serbia before reaching Hungary, where they immediately applied for asylum. They found themselves in the transit zone on the land border between Hungary and Serbia, where they were held for 23 days pending the examination of their asylum applications. The applications were rejected on the same day on the ground that the applicants had transited through Serbia that, according to Hungary, was a safe third country. The rejections were confirmed on appeal, an order for their expulsion was issued, the applicants were escorted out of the transit zone and they crossed back into Serbia.

      Procedural Breach of Article 3 ECHR

      The Grand Chamber established that Hungary ‘failed to discharge its procedural obligation under Article 3 of the Convention to assess the risks of treatment contrary to that provision before removing the applicants from Hungary’ to Serbia (para 163). No finding was made on the issue as to whether Hungary was substantively in breach of the right not to be subjected to refoulement given the conditions in Serbia and the deficiencies in the Serbian asylum procedures that might lead to chain refoulement. This omission follows a trend in the Court’s reasoning that can be described as a procedural turn: focus on the quality of the national decision making processes rather than on the substantive accuracy of the decisions taken at national level.[1] This omission, however, had important consequences for the application of Article 5 to the applicants’ case, the most controversial aspect in the Grand Chamber’s reasoning.

      The Chamber’s reasoning under Article 5 ECHR

      On this aspect, the Grand Chamber departed from the Chamber’s conclusion that the applicants were deprived of their liberty. The fundamental question here is whether ‘the stay’ (Hungary used the term ‘accommodation’) of asylum-seekers in the ‘transit zone’ with an exit door open to Serbia, but closed to Hungary, amounts to deprivation of liberty (i.e. detention) in the sense of Article 5 ECHR. Asylum seekers in the transit zone were denied access to the Hungarian territory,[2] but they could leave to Serbia. This creates a complex intertwinement between deprivation of liberty (Article 5(1)(f)) normally understood as not allowing somebody to leave a place, on the one hand, and not allowing somebody to enter a place. Entering a State can be very relevant from the perspective of the obligation upon this State not to refoule, which necessitates a procedure for determining whether there is a risk of refoulement.

      In its judgment from 14 March 2017 the Chamber unanimously answered in positive: by holding them in the transit zone, Hungary deprived the applicants from their liberty, which was in violation of Article 5(1)(f) since this measures had no legal basis in the national law. The Chamber clarified that‘[t]he mere fact that it was possible for them to leave voluntarily returning to Serbia which never consented to their readmission cannot rule out an infringement of the right to liberty.’ (para 55). In this way the Chamber reaffirmed the reasoning in Amuur v France where the Court observed ‘[…] this possibility [to leave voluntary the country] becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is inclined or prepared to take them in.’ (para 48) It follows that although the transit zone at the French airport was, as France argued, “open to the outside”, the applicants were still considered as having been detained since this ‘outside’ did not offer a level of protection comparable to the one in France.

      The Chamber followed this reasoning from Amuur v France in Ilias and Ahmed v Hungary, which led to the recognition that ‘[…] the applicants could not have left the transit zone in the direction of Serbia without unwanted and grave consequences, that is, without forfeiting their asylum claims and running the risk of refoulement’ (para 55). The Chamber also added that ‘To hold otherwise would void the protection afforded by Article 5 of the Convention by compelling the applicants to choose between liberty and the pursuit of a procedure ultimately aimed to shelter them from the risk of exposure to treatment in breach of Article 3 of the Convention.’ (para 56)

      The ‘practical and realistic’ approach of the Grand Chamber under Article 5 ECHR

      The Grand Chamber in its reasoning broke precisely this linkage between the applicability of Article 5 (the qualification of a treatment as deprivation of liberty) and Article 3 (protection from refoulement). The Grand Chamber performed the following important moves to achieve this. First, it stated that ‘its approach should be practical and realistic, having regard to the present-day conditions and challenges’, which implied that States were not only entitled to control their borders, but also ‘to take measures against foreigners circumventing restrictions on immigration.’ (para 213). With Ilias and Ahmed v Hungary the Court has thus added another nuance to its well-established point of departure in cases dealing with migrants. This point of departure has been that States are entitled, subject to their treaty obligations, to control their borders. The new addition introduced with Ilias and Ahmed v Hungary and also repeated in Z.A. and Others v Russia, a Grand Chamber judgment issued on the same day, concerns States’ right to prevent ‘foreigners circumventing restrictions on immigration’. This addition, however, does not seem appropriate given that the applicants themselves in Ilias and Ahmed v Hungary never circumvented any immigration control restrictions. They applied immediately for asylum.

      This ‘practical and realistic approach’ also implied an endorsement of the representation of the situation as one of ‘crisis’:[3] ‘the Court observes that the Hungarian authorities were in conditions of a mass influx of asylum-seekers and migrants at the border, which necessitated rapidly putting in place measures to deal with what was clearly a crisis situation.’ (para 228) In the same paragraph, the Grand Chamber went on to almost praise Hungary for having processed the applicants’ claims so fast event though it was ‘a crisis’: ‘Despite the ensuring very significant difficulties, the applicants’ asylum claims and their judicial appeals were examined within three weeks and two days.’ It appears as if the Grand Chamber at this stage had already forgotten its findings made earlier in the judgment under Article 3 that the national procedure for examining the applicants’ claims was deficient. This ultimately gave the basis for the Grand Chamber to find a violation of Article 3.

      The distinction based on how asylum-seekers arrive and the type of border they find themselves at

      The second move performed by the Grand Chamber implied the introduction of a distinction between ‘staying at airport transit zones’ (para 214) and at reception centers located on islands (para 216), on the one hand, and a transit zone located on the land border between two Council of Europe Member States (para 219). This meant, as the Court reasoned, that the applicants did not have to take a plane to leave the zone, they could simply walk out of the zone. In other words, it was practically possible for them to do it on their own and they did not need anybody’s help. As the Court continued to reason in para 236, ‘Indeed, unlike the case of Amuur, where the French courts described the applicants’ confinement as an “arbitrary deprivation of liberty”, in the present case the Hungarian authorities were apparently convinced that the applicants could realistically leave in the direction of Serbia [emphasis added].’ This quotation also begs the comment as to why what the national authorities were or were not convinced about actually mattered. In addition, the reference in Ilias and Ahmed v Hungary as to how the national authorities had qualified the situation is also bizarre given that ‘deprivation of liberty’ is an autonomous concept under the Convention. On this point, the two dissenting judges, Judge Bianku and Judge Vućinić criticized the majority by highlighting that ‘the Court has reiterated on many occasions that it does not consider itself bound by the domestic courts’ legal conclusions as to the existence of a deprivation of liberty.’

      Narrowing down the importance of Amuur v France

      The third move performed by the Court is playing down the importance of and narrowing the relevance of Amuur v France. In Ilias and Ahmed v Hungary the Grand Chamber reiterated (para 239) the most significant pronouncement from Amuur: the possibility to leave the zone ‘becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is included to take them in.’ It then noted that this reasoning ‘must be read in close relation to the factual and legal context in that case.’ This meant that in contrast to the situation in Ilias and Ahmed v Hungary, in Amuur the applicants could not leave ‘without authorization to board an airplane and without diplomatic assurance concerning their only possible destination, Syria, a country “not bound by the Geneva Convention Relating to the Status of Refugees.’ (para 240) On this point Ilias and Ahmed v Hungary can be also distinguished from Z.A. and Others v Russia, where the Grand Chamber observed that ‘[…] unlike in land border transit zones, in this particular case leaving the Sheremetyevo airport transit zone would have required planning, contacting aviation companies, purchasing tickets and possibly applying for a visa depending on the destination.’ (para 154) For the applicants in Ilias and Ahmed ‘it was practically possible […] to walk to the border and cross into Serbia, a country bound by the Geneva Convention.’ (para 241). The Grand Chamber acknowledged that the applicants feared of the deficiencies in the Serbian asylum procedure and the related risk of removal to the Republic of North Macedonia or Greece. (para 242) However, what seems to be crucial is that their fears were not related to ‘direct threat to their life or health’ (para 242). It follows that the possibility to leave for a place will not preclude the qualification of the situation as one of detention, only if this place poses a direct threat to life or health.

      As noted by the two dissenting judges, it did not seem to matter for the majority that the applicants could not enter Serbia lawfully. In this way, the majority’s reasoning under Article 5 appears to endorse a situation where people are just pushed out of the border without some formal procedures with elementary guarantees.

      Read as a whole the Grand Chamber judgment in Ilias and Ahmed v Hungary is inconsistent: it contains two findings that are difficult to square together. The Court concluded that since the applicants would not be exposed to a direct risk in Serbia, they were not detained in Hungary. At the same time, Hungary violated Article 3 of the Convention since it did not conduct a proper assessment of the risks that the applicants could face if they were to return to Serbia.

      Overall weakening of the protection of Article 5 ECHR

      One final comment is due. In Ilias and Ahmed v Hungary, the Grand Chamber summarized the following factors for determining whether ‘confinement of foreigners in airport transit zones and reception centers’ can be defined as deprivation of liberty: ‘i) the applicants’ individual situation and their choices, ii) the applicable legal regime of the respective country and its purpose, iii) the relevant duration, especially in the light of the purpose and the procedural protection enjoyed by applicants pending the events, and iv) the nature and degree of the actual restrictions imposed on or experienced by the applicants.’ (para 217) (see also Z.A. and Others v Russia, para 145) Among these criteria particular attention needs to be directed to the applicable legal regime and the availability of procedural protection. In principle, Article 5, if found applicable, offers certain guarantees (e.g. statutory basis for the deprivation of liberty, access to proceedings for challenging the lawfulness of the detention). The Court seems to have inserted such considerations at the definitional stage of its analysis. For example, in Z.A. and Others v Russia, the Grand Chamber when it examined whether the confinement of the applicants in the airport transit zone amounted to deprivation of liberty, noted that they were left ‘in a legal limbo without any possibility of challenging the measure restricting their liberty’ (para 146). This played a role for the Grand Chamber to conclude that the applicants in Z.A. and Others v Russia were indeed deprived of liberty and Article 5 was thus found applicable. In contrast, the Grand Chamber in Ilias and Ahmed v Hungary observed that certain procedural guarantees applied to the applicants’ case (para 226), which also played a role for the final conclusion that Article 5 was not applicable. In sum, instead of scrutinizing the national legal regime and the access to procedural guarantees as part of the substantive analysis under Article 5, where a single deficiency leads to a finding of a violation (i.e. it is sufficient to find a violation of Article 5 if there is no strictly defined statutory basis for the applicants’ detention), the Court has muddled these criteria together with other factors and made them pertinent for the definitional analysis. This ultimately weakens the roles of these criteria and creates uncertainty.

      [1] See V Stoyanova, ‘How Exception must “Very Exceptional” Be? Non-refoulement, Socio-Economic Deprivation and Paposhvili v Belgium’ (2017) International Journal of Refugee Law 29(4) 580.

      [2] See B Nagy, ‘From Reluctance to Total Denial: Asylum Policy in Hungary 2015-2018’ in V Stoyanova and E Karageorgiou (eds) The New Asylum and Transit Countries in Europe during and in the Aftermath of the 2015/2016 Crisis (Brill 2019) 17.

      [3] Boldizsar Nagy has argued that this representation made by the Hungarian government is a lie. See B Nagy, Restricting access to asylum and contempt of courts: illiberals at work in Hungary, https://eumigrationlawblog.eu/restricting-access-to-asylum-and-contempt-of-courts-illiberals-at

      #justice #CEDH #Hongrie #CourEDH

    • Entre la #Pologne et la #Biélorussie :

      Si cette famille a pu être aidée, c’est aussi parce qu’elle a réussi à dépasser la zone de l’état d’urgence : une bande de 3 km tracée par la Pologne tout du long de sa frontière avec la Biélorussie, formellement interdite d’accès aux organisations comme aux journalistes.
      Le long de la frontière, les migrants se retrouvent donc seuls entre les gardes-frontières polonais et biélorusses. Côté polonais, ils sont ramenés manu militari en Biélorussie… En Biélorussie, ils sont également refoulés : depuis octobre, le pays refuse de laisser entrer les migrants déjà passés côté européen. « La seule chance de sortir de la Pologne, c’est d’entrer en Biélorussie. La seule chance de sortir de la Biélorussie, c’est d’entrer en Pologne. C’est comme un ping-pong », confie Nelson (pseudonyme), un migrant originaire de la République démocratique du Congo qui a contacté notre rédaction.

      et plus précisément ici :


      Et l’article de Médiapart :
      Entre la Pologne et le Belarus, les migrants abandonnés dans une #zone_de_non-droit

    • « À titre de mesures compensatoires à l’entrée en vigueur de la convention de Schengen – qui, du reste, n’était pas encore applicable –, la loi du 10 août 1993 instaure les contrôles dits frontaliers : la police, la gendarmerie et la douane peuvent vérifier l’identité de toute personne, pour s’assurer qu’elle respecte les obligations liées à la détention d’un titre de circulation ou de séjour, dans la zone frontalière et dans les zones publiques des ports, aéroports et gares ouvertes au trafic international. La zone frontalière est une bande de terre, large de 20 km, longeant la frontière terrestre ; les ports, gares ou autres aérogares visés figurent sur une longue liste fixée par un arrêté ministériel. »

      (Ferré 2018 : 16)


      « Il suffit de passer quelques heures à la gare de Menton pour le constater. Pour les personnes présumées étrangères, la liberté d’aller et de venir dans les espaces placés sous surveillance est restreinte. Elle a encore été réduite avec la loi du 30 octobre 2017 renforçant la sécurité intérieure et la lutte contre le terrorisme qui modifie, une fois de plus, le texte de loi sur les contrôles d’identité en étendant les zones frontalières autour de certains ports et aéroports qui constituent des points de passage frontaliers au sens du code frontières Schengen, soit « tout point de passage autorisé par les autorités compétentes pour le franchissement des frontières extérieures ». Dans ces nouvelles zones, la police pourra procéder à des opérations de contrôle sans avoir besoin de motiver son intervention. La loi de 2017 a également prévu que les contrôles frontaliers puissent s’effectuer « aux abords des gares » et non plus seulement dans les zones publiques de ces lieux. La formulation souffre, c’est peu de le dire, d’un manque de précision qui donne plus de latitude encore aux forces de l’ordre. »

      (Ferré 2018 : 19)

      source : Nathalie Ferré, « La France s’enferme à double tour », Plein Droit, 2018, n°116.

      #20_km #20_kilomètres

    • #Pyrénées, frontière #Espagne-#France, témoignage d’une personne ayant acheté un terrain en zone frontalière :

      « En ce moment, on croise plein de voitures de forces de l’ordre, ce qui est étonnant en plein hiver car il n’y a personne. Il y a aussi des barrages de police réguliers car ils savent que des gens se font prendre sur la route », raconte Camille Rosa, cofondatrice d’une cantine solidaire à Perpignan. « On a acheté avec des copains un petit terrain vers Cerbère. Un jour, des gendarmes sont venus fouiller notre camion alors que mes enfants faisaient la sieste à l’intérieur. J’ai tenté de m’interposer, mais ils m’ont dit que sur la #zone_frontalière, ils avaient une #commission_rogatoire_permanente », poursuit-elle.


    • #France :

      Le contrôle d’identité « Schengen » permet de vérifier le respect des obligations liées aux titres et documents d’identité et de voyage. Il peut avoir lieu dans une zone située à moins de #20_kilomètres de la frontière terrestre séparant la France d’un pays limitrophe (Allemagne, Belgique, Espagne, Italie, Luxembourg et Suisse). Si le contrôle a lieu sur l’autoroute ou dans un train, la zone s’étend jusqu’au 1er péage ou l’arrêt après les 20 kilomètres. Le contrôle peut être effectué dans un port, un aéroport ou une gare et ses abords accessible au public et ouverte au trafic international. Le contrôle ne peut pas être pratiqué plus de 12 heures consécutives dans un même lieu et ne peut pas être systématique.

      Depuis la loi n° 2017-1510 du 30 octobre 2017 renforçant la sécurité intérieure, des contrôles d’identité peuvent également être effectués dans un rayon de #10_kilomètres autour de certains #ports et #aéroports sur le territoire.

      C’est ce dernier contrôle qui concerne majoritairement les personnes se présentant à la frontière francoitalienne, mais certaines situations suivies par les militants locaux laissent penser que d’autres types de contrôles ont pu servir pour justifier les arrestations de personnes au-delà de la bande des 20 kilomètres ou des zones transfrontalières.

      Rapport de l’Anafé, Persona non grata, 2019 : http://www.anafe.org/spip.php?article520


      Rapport CNCDH 2018, p.7 :

      « la préfète des Hautes-Alpes a expliqué que la zone permettant de procéder à des refus d’entrée avait été définie par son prédécesseur mais qu’elle ne correspondait pas nécessairement à la bande des 20 kms14. Selon la PAF, les refus d’entrée peuvent être prononcés dès lors que l’étranger est contrôlé sur le territoire des communes de Montgenèvre et Nevache, et donc jusqu’à l’entrée de Briançon. »
      Il convient de rappeler que des contrôles aléatoires, hors du cadre dérogatoire prévu en cas de rétablissement des frontières, peuvent être opérés, conformément à l’article 78-2 du code de procédure pénale, dans une zone comprise entre la frontière terrestre de la France avec les Etats de l’espace et une ligne tracée à 20 kilomètres en deçà, ainsi que dans les zones accessibles au public des ports, aéroports et gares ferroviaires ou routières ouverts au trafic international et désignés par arrêté et aux abords de ces gares. Ces contrôles sont toutefois strictement encadrés, notamment par la jurisprudence de la Cour de justice de l’Union européenne. Les personnes interpellées sur ce fondement peuvent faire l’objet d’une procédure de réadmission. En revanche, lorsque les contrôles aux frontières intérieures sont rétablis, les autorités françaises peuvent refuser l’entrée aux étrangers ne remplissant pas les conditions d’entrée sur le territoire aux frontières terrestres et leur notifier une décision de non-admission. Ces étrangers sont considérés comme n’étant pas entrés sur le territoire


      #10_km #20_km

    • Sur le #Bibby_Stockholm barge at #Portland Port :

      “Since the vessel is positioned below the mean low water mark, it did not require planning permission”


      voir aussi :

      “The circumstances at Portland Port are very different because where the barge is to be positioned is below the mean low water mark. This means that the barge is outside of our planning control and there is no requirement for planning permission from the council.”


      #UK #Angleterre

    • The ‘Border’ under EU Law

      The first argument made by the Catania Tribunal regards the correct initiation of a border procedure. According to the judge, the procedure was not applied „at the border“, as understood by EU law (Art. 43 Directive 2013/32). Indeed, the applicants arrived and made their asylum application in Lampedusa (province of Agrigento) but the detention was ordered several days later in Pozzallo (Ragusa province) when the applicants were no longer „at the border.“ Because the border procedure (involving detention) was utilized at a later stage and in a different place, it was not appropriately initiated.

      In support of the Catania Tribunal’s conclusion, we should recall that Article 43 the Procedures Directive requires a spatial and temporal link between the border crossing and the activation of the border procedure (https://eur-lex.europa.eu/legal-content/en/TXT/?uri=celex%3A32013L0032). Although the Directive does not define the terms „border“ or „transit zone“, it clearly distinguishes these areas from other „locations in the proximity of the border or transit zone“ (Article 43(3)), where applicants can be exceptionally accommodated but never detained. The distinction between the border and other places in its vicinity suggests that the procedure provided for in Art. 43 can only be applied in narrow and well-defined areas or in pre-identified transit zones (such as the Hungarian transit zones examined by the Court in FMS and Commission v Hungary).

      Other EU law instruments support this narrow interpretation of the “border” concept. Regulation 1931/2006 defines a „border area“ as a delimited space within 30 km from the Member State’s border. In the Affum case, the Court also called for a narrow interpretation of the spatial concept of „border.“ There, the Court clarified that the Return Directive allows Member States to apply a simplified return procedure at their external borders in order to „ensure that third-country nationals do not enter [their] territory“ (a purpose which resonates with that of Art. 8(3)(c) Reception Directive). However, such a procedure can only be applied if there is a „direct temporal and spatial link with the crossing of the border“, i.e. „at the time of the irregular crossing of the border or near that border after it has been crossed“ (par. 72).

      By contrast, under the Italian accelerated procedure, the border has blurred contours. The new procedure, relying on the “#fiction_of_non-entry” (https://www.europarl.europa.eu/RegData/etudes/STUD/2020/654201/EPRS_STU(2020)654201_EN.pdf), can be carried out not only „at“ the border and in transit zones or in areas territorially „close“ to the border, but in entire provinces in southern and northern Italy. This far exceeds the narrow definition of border or border area derived from EU law.



      Ce terme est empruntée d’une vieille loi des Etats-Unis, The Immigration Act 1891 :

      “The Immigration Act 1891 was the first to expressly mention detention, as it made provision for officers to ’inspect all such aliens’ or ’to orcier a temporary removal of such aliens for examination at a de ignated time and place, and then and there detain them until a thorough inspection is made’. The Act alsa created the very important provision that came to be known as the ’entry fiction’. According to this, a removal to shore for examination ’shall not be considered a landing during the pendency of such examination’. This was a criticallegal (and constitutional) innovation because it meant that th ose incarcerated must be treated as if they were not there. This was both an attempt to treat the place of detention as if it were sim ply an extension ofbeing held on board ship, but also something more serious. The concept of being physically detained within the territorial land-mass of the United States but not being considered legally present was radical. It suggested a kind of limbo - with the detention centre constituting perhaps an extra-legal space- putting immigrants beyond the reach of constitutional norms, pending a final executive decision to land or deport them.”

      source : Daniel Wilsher, Immigration detention : law, history, politics, 2012, p. 13

    • Autour du nouveau #pacte (#Pacte_européen_sur_la_migration_et_l’asile)

      3) Introduzione del concetto di “finzione del non ingresso”

      Il patto introduce il concetto di “finzione giuridica di non ingresso”, secondo il quale le zone di frontiera sono considerate come non parte del territorio degli Stati membri. Questo interessa in particolare l’Italia, la Grecia e la Spagna per gli sbarchi della rotta mediterranea, mentre sono più articolati “i confini” per la rotta balcanica. Durante le 12 settimane di attesa per l’esito della richiesta di asilo, le persone sono considerate legalmente “non presenti nel territorio dell’UE”, nonostante esse fisicamente lo siano (in centri di detenzione ai confini), non avranno un patrocinio legale gratuito per la pratica amministrativa e tempi brevissimi per il ricorso in caso di un primo diniego (e in quel caso rischiano anche di essere espulse durante l’attesa della decisione che li riguarda). In assenza di accordi con i paesi di origine (come nella maggioranza dei casi), le espulsioni avverranno verso i paesi di partenza.

      Tale concetto creadelle pericolose “zone grigie” in cui le persone in movimento, trattenute per la procedura accelerata di frontiera, non potranno muoversi sul territorio né tantomeno accedere a un supporto esterno. Tutto questo in spregio del diritto internazionale e della tutela della persona che, sulla carta, l’UE si propone(va) di difendere.


  • The 8km law and violence on the border

    The 8km law, that we wrote about earlier, took effect on the 5th of July. According to the legislation, anyone who is caught within 8m on the Hungarian side of the border fence may be “escorted” back to the Serbian side of the fence. This legalizes the pushbacks of people to the Serbian side and severely restricts people’s right to seek asylum. In practice, those caught and pushed back are not given a chance to ask for asylum, which is contrary to international law. We find it cruelly ironic that at the same time the Fidesz government claims that the border fence is working, the Hungarian authorities are cutting holes to this fence in order to push people back to the Serbian side. The results of the law have been catastrophic: the number of people waiting at the transit zone to apply for asylum at the border has doubled. There is no legal help available, civilian volunteers and activists have limited access, and the living conditions are abysmal, as this video from Migszol Szeged also shows.

    #Hongrie #asile #migrations #réfugiés #frontières #push-back #refoulements #milices #jeu_frontalier #extrême-droite #extrême_droite #8km #8_km