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Reflections on Refoulement and Haitian Centers Council, 35 Harv. Int'l L.J. 1 (1994)


In June 1993, over Justice Blackmun's dissent, the United States Supreme Court upheld the Government's policy of deliberate refoulement: the summary, forcible return of fleeing Haitian refugees to their persecutors. In retrospect, the Court's ruling in Sale v. Haitian Centers Council came as no surprise. The Court had tipped its hand in February 1992, when it denied certiorari by an identical eight-to-one vote to an earlier challenge to the Bush Administration's policy of screening Haitian refugees. During the previous two years, the Supreme Court had also twice denied stay requests from Haitian refugee groups and three times intervened to stay lower court rulings favoring the Haitians. Indeed, only three days after the Second Circuit struck down the Bush Administration's summary return policy, the Supreme Court voted seven-to-two to stay that ruling, effectively ensuring that the policy would continue for at least eleven months before final Supreme Court judgments. Having thus made itself a de facto party to the forced-return policy, the Court could not so easily turn around and declare it illegal.

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