Haitian Immigrant Makes Rescue Plea (New Haven Independent)

Haitian Immigrant Makes Rescue Plea
BY Melissa Bailey | JAN 29, 2010 7:58 AM

Clerde Pierre asked a federal judge to save him from being sent back to his earthquake-stricken homeland. His Yale lawyers sought to make new law in order to help him.

Lawyers for Pierre, who is 31 and moved here from Haiti 16 years ago, made the plea Thursday before Judge Janet Bond Arterton in U.S. District Court on Church Street.

Members of the Yale Law School legal clinic (including students Rebecca Scholtz and Alice Hwang, left to right in photo) are trying to free Pierre. He has been locked up by immigration officials for the past 15 months pending deportation proceedings.

The legal team claim Pierre is a U.S. citizen who is being unconstitutionally detained. In their suit, they ask the court to proclaim Pierre a citizen and order him released.

Click here to read their suit, filed Dec. 23 in U.S. District Court against the federal Department of Homeland Security.

Pierre’s case is unusual for two reasons: his criminal record, and a disputed citizenship claim stemming from his out-of-wedlock birth.

Thursday’s hearing came on the heels of a move by the Obama administration to allow Haitian nationals who were in the U.S. at the time of the recent devastating earthquake to stay here for another 18 months. Pierre won’t be saved by that gesture, a federal prosecutor said Thursday.

He doesn’t qualify for Temporary Protective Status (TPS) because he classifies as an “aggravated felon,” said Lana L. Vahab, a trial attorney for the U.S. Department of Justice’s Office of Immigration Litigation.

“ICE [Immigration and Customs Enforcement] plans to continue to remove all non-TPS aliens to Haiti,” Vahab reported.

“That’s sort of a grim prospect, isn’t it?” remarked Judge Arterton.

Vahab argued that the Connecticut court was the wrong place for Pierre to try to gain his freedom. If he wants to prove his citizenship, he needs to wait and appeal his case at the end of an administrative hearing, she said.

Federal law “limits the alien to one bite of the apple,” Vahab explained.

Pierre didn’t appear in court Thursday. He remained locked up in the Franklin County Jail and House of Corrections in Massachusetts, under orders by federal immigration officials.

His team of lawyers, two students and two professors from Yale Law School’s Jerome Frank legal clinic, tried to convince Judge Arterton to take up his request for freedom. They’re asking for a writ of habeus corpus so Pierre can be freed from detention.

At the heart of their argument is a constitutional challenge to a federal statute defining when foreign-born kids are granted U.S. citizenship. They claim the old law – since updated, but still applicable to some immigrants before a cutoff date – discriminates based on gender.

Pierre claims he is a U.S. citizen because of his father’s status. The federal government disagrees.

Pierre was born out of wedlock in Petite Riviere de L’Artibonite, Haiti. He grew up in Port-au-Prince, the capital city that’s now reeling from a devastating earthquake on Jan. 13. After his mother abandoned him, his father “acknowledged and legitimated him” at age 2. Pierre’s father came to the U.S. when Pierre was still young, leaving him to be raised by relatives in Haiti. His father became a naturalized U.S. citizen in 1992, and brought Pierre to Connecticut shortly thereafter.

Pierre entered Connecticut as a lawful permanent resident. Then he got in trouble with the law. He served two years in prison for a robbery and another 30 months for gun and drug possession. When he came out of prison in November, 2008, ICE moved to kick him out of the country because of his criminal conduct.

Pierre is currently fighting an effort from ICE to boot him from the country. ICE successfully won a order of removal. But the Board of Immigration Appeals (BIA) has reopened his case in light of a new claim that Pierre has schizophrenia and would be in danger of torture if he is returned to Haiti.

He claims that his mental illness, “in combination with the dreadlocks he wears as a matter of religious conviction and his lack of family members in Haiti, would make him a target for torture in a Haitian prison,” according to court records.

Of course, that was before the Haitian capital’s main jail collapsed in the quake, setting 5,000 prisoners free.

The BIA will examine those arguments and determine whether to follow through with ICE’s request to send Pierre back to Haiti. If Pierre loses the case, immigration officials would take another look at how dangerous it is before sending him there, according to Vahab.

Meanwhile, lawyers discussed with Judge Arterton the basis of the Dec. 23 lawsuit. The government tried to get the case thrown out, arguing that it is not the right time or place to make this claim.

Vahab charged that the suit should be brought in Massachusetts, where the prisoner is being held. She added that Pierre can’t make his citizenship claim until the federal government issues an order of removal. No such order has been made yet because the BIA is still considering Pierre’s case. If he loses, he can appeal the case in 2nd Circuit Court.

Scholtz and Hwang, both second-year students at Yale Law School, argued the bulk of Pierre’s case. In an extensive back and forth with Arterton, they tried to convince the judge to take up the case, instead of making him wait “who knows how long” for his case to go through administrative proceedings.

Pierre “has been detained for 15 months, despite being a citizen, because of the government’s erroneous belief that he is an alien,” Hwang said.

Yale Professor Muneer Ahmad stepped in a couple times to aid his students in explaining the case to the judge.

After two hours of careful questioning, Arterton adjourned court for the day. She said she would consider the motions and issue an opinion at a later time.

In future hearings, the Yale lawyers hope to get to the thrust of their argument: a constitutional challenge to a citizenship statute that denies Pierre citizenship.

The federal government does not consider Pierre to be a U.S. citizen because he falls under an old statute that allows out-of-wedlock children to inherit U.S. citizenship only from their mothers, not their fathers, Scholtz said.

That gender distinction was eliminated when the law was updated and renamed the Child Citizenship Act of 2000. Under the new law, children of U.S. citizens automatically become U.S. citizens when they enter the country as a legal resident.

However, Pierre is not helped by the new law because he was too old when it was passed, Scholtz said. The Yale team plans to claim he is being unlawfully denied the right to citizenship based on a discriminatory law.

After court, Ahmad accused the government of “throwing up a series of procedural roadblocks” so that the lawyers’ central point can’t “see the light of day.”