Haitian migrants at the border: An asylum law scholar explains how US skirts its legal and moral duties


The top US envoy for Haiti resigned abruptly on September 22, 2021 because the Biden government “inhumanly” treated Haitian migrants crossing the border via Mexico into Texas.
The resignation came amid the debate over the US decision to deport thousands of Haitians entering the US in search of asylum or a better life. Criticism of the policy, expressed in the form of images of US border patrols on horseback and with whip-like cords when encountering migrants, attracted widespread media attention and criticism from the White House. Border officials denied using whips to punish migrants.
The conversation asked Karen Musalo, an expert on refugee law and policy, to clarify what happened at the US border and whether the Biden government is evading its moral and legal obligations in the deportation of Haitian migrants.
What is behind the recent flood of Haitian refugees on the Texas border?
Haiti is plagued by exceptionally desperate conditions including political chaos and natural disasters, as well as the COVID-19 pandemic. The assassination of President Jovenel Moïse in July 2021 catapulted the country into political turmoil. The power struggle after the attack exacerbated the existing political violence and dysfunction. Violent gangs, often with ties to the state, are increasingly becoming a threat.
In addition, Haiti suffered a devastating 7.2 magnitude earthquake in August just two days before aid was received directly from tropical Storm Grace. The pandemic has exacerbated these ailments. Less than half of 1% of the population has even received a first dose of a vaccine.
This has undoubtedly swelled the number of people trying to leave the nation. But many of the migrants who arrived in the US in recent weeks left Haiti before the recent riots. Haitian migrants have been trapped in Mexico for several years under various Trump-era directives that restricted and then excluded the ability for them to seek asylum in the United States. At the same time, others who have left Haiti for South American countries in recent years have suffered from deep antipathy and racism in their host countries and live in life-threatening conditions with, at best, precarious legal relationships.
It appears that many asylum seekers in Mexico, including Haitians, honored Biden’s promise in the presidential campaign to restore the asylum system. This may have been one reason for their decision to present themselves at the Texas border and seek the protection guaranteed by law for those fleeing persecution.
It should be remembered that the US has long played a role in Haiti’s problems. When Special Envoy to Haiti Daniel Foote resigned, coverage focused on his protest against what he called the inhumanity of bringing Haitians back to a “collapsed state incapable of providing security or basic services.” His equally damning charge against the US as a puppet player in Haiti’s political collapse was overlooked, for example by supporting the unelected prime minister and his political agenda.
Isn’t the US legally required to process asylum seekers?
Both international and US law recognize the basic human right to apply for asylum. The US has ratified two treaties, the 1967 Protocol on the Status of Refugees and the 1984 Convention Against Torture, which prohibit the US from returning people to countries where they risk persecution or torture. Specifically, this means that people must be able to apply for asylum at the US border or on US territory so that they have the opportunity to prove whether they fall into the group of legally protected persons.
This international legal framework was codified in US law, mainly through the Refugee Act of 1980, along with later laws and regulations. It is generally recognized, including by the Supreme Court, that in enacting these laws, Congress intended to bring US law into line with the United States’ international treaty obligations.
It is perfectly legal to approach US borders and seek asylum. Statements by the administration that people should not come, that they are doing something illegal when seeking protection, and that there is a right and a wrong way to apply for asylum are, in my opinion, not only callous and cruel, but also wrong Statements of the Law.
The White House has claimed that Haitians do not enter the country using “legal methods”, which in fact would be impossible as they have been banned from all legal methods.
As part of the Trump administration’s dismantling of the asylum system, in March 2020 the White House ordered the Centers for Disease Control and Prevention, against the objections of their own scientists, a 1944 Public Health Act known as “Title 42” , to use to ban asylum seekers from entering the US. This law had never been used before to dictate the movement of people across U.S. borders who instead fell under the jurisdiction of immigration laws. And despite the Biden campaign’s promises to restore the country’s asylum system, the government continues to rely on Title 42 – even though most Americans are now vaccinated – to keep asylum seekers out.
Can you tell me a little more about title 42?
Even before the outbreak of COVID-19, Trump administration adviser Stephen Miller inquired whether the government’s health department had closed the US borders to asylum seekers. He was told that there was no legal authority to do so. The advent of the pandemic provided an excuse for the unprecedented application of this little-known law that is over 75 years old. It was part of the Public Health Service Act of 1944 to allow the quarantine of anyone, including U.S. citizens, entering from a foreign country. It was never intended and was not used to expel non-nationals from the United States until 2020. When Congress passed the original version of this law, references to immigration were deliberately omitted in order to avoid the use of its provisions to discriminate against immigrants.
But the Trump administration’s March 2020 order targets one group, and one group only: non-citizens who have no papers and arrive by land.
All other individuals arriving in the United States, including American citizens, legal permanent residents, and tourists arriving by air or ship, are exempt. As currently applied by the government, this public health law has replaced the existing immigration law which allows people to apply for asylum. And in doing so, it has also removed the protection of due process that is part of our immigration laws.
On September 16, a federal court found the use of Title 42 to expel asylum seekers a clear violation of US law and issued an injunction against the practice. The court suspended its own order for 14 days to allow the government to appeal the decision.
Is there a history of discriminatory US migration policies against Haitians?
Haitians have suffered discriminatory immigration treatment for decades, and I believe it would be naive to attribute this negative treatment to anything other than systemic racism that pervades so many aspects of American society. Shortly after the US passed the Refugee Act of 1980, it began stopping Haitians on the high seas and bringing them back to Haiti so they could not seek asylum in that country. This violation of international law was upheld by the Supreme Court in 1993 and is still practiced today. Before the border was closed for them, Haitians who reached the US and applied for asylum were denied citizenship more than any other – despite the dire human rights situation in their country.
After the catastrophic earthquake in Haiti in 2010, the government granted Haitians who were already in the United States temporary protection status, protecting them from deportation. In 2017, the Trump administration terminated the status of Haitians and gave them until July 2019 to leave or be deported.
The Conversation is an independent, nonprofit source of news, analysis, and commentary from academic experts.

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