News & Analysis This Month/Supplement - Newly arrived Haitians legal journey begins

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A day after Jean-Ferdinand Monestime came ashore in Hallandale Beach with a hundred other Haitians, Ricardo Francois already fears the worst: His half-brother will be sent back to a dangerous island rife with abductions and street crime.

The beach was soon filled with people hoping to make a new life in America. (Photo/Click10.com) More Images

''They almost kidnapped my mother,'' said Francois, 43, a Hollywood pizza delivery driver whose mother lives in northwest Haiti. ``People know I send money.''

Francois' half-brother is among the 101 migrants, including at least 13 unaccompanied children, whom police and border patrol officers rounded up Wednesday morning after their flimsy wooden sailboat came to shore in a journey they said took 22 days. One man in his 20s died.

If history is any guide, most survivors will convince asylum officers that they have a credible fear of persecution if they go back. But after that, their bids for asylum will take divergent paths, with immigration judges likely to send most of them back.

That's what happened in October 2002 when a ship loaded with more than 200 Haitians arrived at the Rickenbacker Causeway -- about a third of them were allowed to stay.

Among those granted asylum were a married couple with two small children, but it wasn't easy. An immigration judge granted the husband asylum when he made a case that he faced political persecution in Haiti, but another judge turned the man's wife down. She eventually avoided deportation by qualifying to stay under the husband's asylum grant.

Monestime and his shipmates face a web of U.S. immigration law and policies that Haitian-American advocates say discriminate in favor of Cubans fleeing the communist island.

Under the so-called ''wet foot/dry foot'' policy, Cuban migrants who reach land -- at least 3,076 in fiscal year 2006 -- can stay without asking for asylum, but those interdicted at sea -- at least 2,293 last year -- are generally returned to Cuba. Those picked up at sea who can persuade asylum officers they have a credible fear are sent to Guantánamo to resettle in other countries.

''In a sense, Haitians are discriminated against,'' said Mark Krikorian, executive director of the Center for Immigration Studies, a Washington think-tank that supports tighter controls on immigration. ``But they're not being singled out. If the Chinese washed up there, they would be treated the same as the Haitians.''

U.S. Immigration and Customs Enforcement concluded Thursday ''there was no evidence'' that the vessel that came ashore Wednesday was part of a smuggling operation, said agency spokeswoman Barbara Gonzalez.

Forty Haitian migrants were taken to the Broward Transitional Center, a detention facility in Pompano Beach, and the rest are being processed at the Border Patrol facility in Pembroke Pines, Gonzalez said. ''Every case will be evaluated on a case-by-case basis,'' she said.

The Broward Medical Examiner's Office said a cousin identified the man who drowned Wednesday as Lufaite Lully, believed to be about 25. .

Also on Thursday, about a dozen protesters waved placards outside the Border Patrol facility in Pembroke Pines. Of concern: their inability to interview the migrants.

''There are conflicting reports -- we need to get in touch with them to get a clear idea of what happened,'' said Lucie Tondreau, a Haitian community activist from Miami.

South Florida immigration lawyers and advocates said Thursday they hoped the outcome for the newly arrived Haitians will be happier than for those who reached the shores in 2002.

''For once, the Haitians should be treated fairly and provided a meaningful opportunity to obtain release and challenge their deportation,'' said Cheryl Little, executive director of the Miami-based Florida Immigrant Advocacy Center, which helped handle the Haitian couple's successful case.

The experience of the Rickenbacker migrants can serve as a road map for what the Hallandale Beach migrants will face. When a foreign national is given asylum, he or she is entitled to apply for permanent residence and later citizenship.

In the case of the Hallandale Beach migrants, who were placed in expedited proceedings, the ''credible fear'' hurdle will be key.

If an asylum officer does not find a claim of fear credible, the migrant can be deported without an immigration court hearing. If a judge agrees with the officer's finding, the migrant is deported. Case closed.

Those who clear credible-fear interviews could, in the past, pursue their asylum cases under supervised release. But the Bush administration changed the rules in November 2002 for all sea-arriving migrants -- except Cubans.

''I hope the newly arrived Haitians are given the full protection the law requires, and a full opportunity to seek asylum'' said Randolph McGrorty, executive director of Catholic Charities Legal Services.

Once asylum seekers appear before an immigration judge, the standard is higher than credible fear. To win asylum, they must convince the judge they have a well-founded fear of persecution based on one of five grounds: race; religion; nationality; membership in a particular social group; or political opinion.

Little and McGrorty said they were trying to assemble teams of attorneys to represent each Hallandale Beach migrant. Immigration lawyers believe detained migrants stand a better chance of winning asylum if they have attorneys.

The Rickenbacker couple is a case in point. The husband, who won asylum, had an attorney from the outset. The wife did not.

Back in Francois' tiny bedroom in Hollywood, a radio with a static reception crackled with the latest news on the ordeal. Francois gave friends in Haiti updates on his cellphone. He worried about his half-brother.

''I feel so sad, man. What can I do?'' Francois said. ``I don't want them to return him to Haiti.''