Administration fails to re-designate TPS for Haiti or halt deportations as crisis escalates—07-09-21

Immigration news, in context

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This week’s edition:

• In The Big Picture, we look at the potential immigration implications of the assassination of Haitian President Jovenel Moïse.

• In Next Destination, we examine ICE’s new policy of not detaining pregnant women.

The Big Picture

The news: Following the brazen assassination of Haitian President Jovenel Moïse in an armed assault at his home in the early morning hours of Wednesday, acting Prime Minister Claude Joseph closed the borders and declared martial law across the nation. Despite the mushrooming emergency, the Biden administration has yet to formally re-designate Haiti for Temporary Protected Status, and has not moved to pause deportations to the country.

What’s happening?

Moïse’s murder is only the latest in a string of situations that have threatened stability in Haiti this year. He had already spent over a year ruling by decree in the absence of legislative elections. It remains unclear who exactly is responsible for the assassination and what their goals were, but what is clear is that the country is experiencing significant social and political convulsions that probably won’t be helped by continued deportations to the country.

Yet, the Biden administration has so far not taken any public steps to prevent people from being removed to Haiti. Observers pointed out that there appeared to have been a deportation charter flight to the country on Tuesday, just the day before Moïse’s assassination. Data from the TRAC project at Syracuse University shows that over 3,000 new deportation cases against Haitians have been filed through May in fiscal year 2021, the majority of which are related to Entry Without Inspection, i.e. for crossing the border.

In late May, Homeland Security Secretary Ali Mayorkas announced that Haiti would be re-designated for Temporary Protected Status for 18 months, with the date of eligibility moved up to any Haitian residing in the United States as of May 21, 2021. TPS, unlike other deferred enforcement programs like DACA, is actually codified in U.S. law, under 8 USC § 1254a, which states that people, regardless of their immigration status, can be made eligible for the program if DHS finds that there is an “ongoing armed conflict” in their country of nationality or habitual residency that would render return to that state “a serious threat to their personal safety”; if “there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions”; or otherwise if there are any extraordinary, temporary conditions in general that would make it impossible for the state in question to adequately handle their return.

You’ll notice the word “temporary” in there a lot, and indeed TPS is laid out very much as a sort of stopgap program, providing protections from deportation and work authorization for people the government decides cannot be safely sent back but including no path to permanent residency or a more lasting solution. Creating an avenue for TPS holders, many of whom have been in the country for years or decades, to permanently remain is a legislative priority for some Democrats in Congress, and formed part of a bill recently passed in the House. Still, for hundreds of thousands of people, TPS is all they have to maintain the ability to work and a somewhat stable life in the U.S.

Haiti’s current TPS redesignation dates back to July 2011, and requires Haitian to have been continuously present in the U.S. since then. The Trump administration tried to terminate TPS for Haiti along with a number of other countries, but the effort was blocked in court and remains tied up in litigation (more on that below). Mayorkas’ May announcement was welcomed by the Haitian-American community and advocacy groups not only because it provided some clarity and reaffirmed Biden’s commitment to maintaining the program, but the new eligibility date would make potentially tens of thousands of Haitians newly eligible, from those still fighting asylum cases after entering through the southern border to those who’ve settled down as undocumented immigrants in the time since the 2011 cutoff.

The problem is, the announcement has yet to be followed by an official redesignation in the Federal Register. The U.S. Citizenship and Immigration Services’ information page on Haiti TPS continues to say that “specific duration dates for the designation and instructions for applying for TPS will be included in the upcoming Federal Register notice,” but no notice has been issued. This means that the current eligibility criteria continue to apply, and Haiti TPS is nominally being upheld only by court order. It’s not clear why, a month and a half after the announcement, DHS has yet to take formal action on the redesignation. Just this morning, the department published a redesignation for Yemen, just three days after Mayorkas announced that it was coming. It’s not clear what’s causing the delay, especially given that, in the announcement, Mayorkas said “Haiti is currently experiencing serious security concerns, social unrest, an increase in human rights abuses, crippling poverty, and lack of basic resources, which are exacerbated by the COVID-19 pandemic.” All of these conditions are presumably worse now.

How we got here

The U.S. has had a contentious attitude towards Haitian immigrants for decades. According to David Fitzgerald’s Refuge Beyond Reach, the first Haitian asylum seekers began arriving in the U.S. in the 1960s, shortly after François Duvalier improbably won re-election by a margin of 1,320,780 votes to 0. They sought asylum in the U.S., but the Immigration and Naturalization Service denied their applications—and continued to deny most Haitian migrants’ asylum claims for the next decade, considering them “economic migrants” instead of refugees fleeing political repression in Haiti. 

The Refugee Act of 1980 was supposed to expand access to asylum to include people fleeing non-communist regimes. The Carter administration built detention facilities to hold Caribbean asylum seekers—not only Haitians,  but also Cubans—while their claims were processed. But, as Carl Lindskoog wrote for the Washington Post, Haitian migrants were detained indefinitely even as Cuban asylum seekers were released to join family or sponsors in the U.S.

Haitians continued to be denied asylum en masse even as the Duvalier regime continued. (After his death in 1971, François Duvalier was succeeded by his son, Jean-Claude.)  As we’ve explained in the past, Cold War-era asylum policies were more about political signaling than about protecting people from harm in their countries of origin. The U.S. regularly denied asylum claims filed by people fleeing repression or instability in countries considered U.S. allies—including Haiti, El Salvador, and Guatemala—but granted most claims filed by those fleeing communist countries, like Cuba and the Soviet Union. In 1984, for example, 3 percent of asylum applications filed by Guatemalans and Salvadorans were approved, compared to 100 percent of Cuban asylum applications.

In 1981, the Reagan administration signed an agreement with Haiti allowing U.S. immigration authorities to board Haitian ships in international waters to inspect them for migrants. In exchange, Haiti would accept deportees and agreed not to prosecute them for illegally leaving the country. Executive Order 12324, issued by Reagan in 1981 in response to “the continuing problem of migrants coming to the United States, by sea, without necessary entry documents,” technically made an exception for refugees and asylum seekers. The order stated that “no person who is a refugee will be returned without his consent.” According to Fitzgerald, INS officials on Coast Guard vessels tasked with interdicting Haitian ships were instructed to ask all Haitian migrants why they left Haiti and if there was a reason they couldn’t return to the country—but these interviews were themselves a sham. Of the 24,600 Haitians intercepted at sea between 1981 and 1991, just 28 were granted entry into the U.S. so they could apply for asylum. 

Immigration officials continued detaining Haitian migrants who weren’t intercepted at sea while their asylum cases were processed—and, in most cases, until they were ultimately denied. The Haitian Refugee Center Inc. sued the federal government in 1982, claiming that the INS was illegally detaining Haitian refugees indefinitely, even as it paroled other asylum seekers into the U.S. The Reagan administration was so committed to continuing the indefinite detention of Haitian migrants and denying Haitian asylum claims that in April 1982, the Justice Department sent its third-highest ranking official—Associate Attorney General Rudy Giuliani—to verify that there was “no political repression” in Haiti. After meeting with Duvalier, who “personally assured him that Haitians returning home from the United States were not persecuted,” per a New York Times report, Giuliani concluded that Haitians weren’t fleeing their country because of political repression. Around the same time, Attorney General William Smith told the Times that the administration considered Haitians economic refugees. “The fact of the matter,” Smith said, “is that an illegal alien can go home and stand in line with all the other people who want to enter the U.S. legally.”

The Haitian Refugee Center’s lawsuit was partly successful, with a federal judge ruling that the Reagan administration had violated the Administrative Procedure Act by indefinitely detaining migrants. However, the court also ruled that the Refugee Center “failed to prove by a preponderance of the evidence that [class members] were incarcerated because of their race and/or national origin. The evidence shows that the detention policy was not directed at Plaintiffs because they were black and/or Haitian, but because they were excludable aliens unable to establish a prima facie claim for admission and that non-Haitians were detained pursuant to this policy as well.” The court forbade the administration “from enforcing their policy of detaining excludable aliens unless they establish to INS' satisfaction a prima facie claim for admission until that policy is embodied in a rule and adopted in accordance with 5 U.S.C. §§ 552 and 553” aside from those “deemed a security risk or likely to abscond.” 

But the detention of Haitian migrants didn’t stop there. Conditions in Haiti remained unstable even after Duvalier stepped down in 1986; there were two coups in 1988 alone. After democratically elected president Jean-Bertrand Aristide was overturned by yet another coup in 1991, Haitians once again began to flee their country en masse.

Under George H.W. Bush, the INS began sending Haitian refugees to Guantanamo Bay and detaining them there. In 1991, the Coast Guard transferred around 12,500 Haitian migrants to Guantanamo Bay, according to Fitzgerald. Guantanamo was deemed “beyond capacity” in 1992, and the administration continued detaining refugees there until 1993. Migrants who were HIV-positive were quarantined in a separate section of Guantanamo called Camp Bulkeley, and were denied admission into the U.S. partly because of their HIV status. The Bush administration also had Voice of America urge Haitians not to come to the U.S., warning them that the journey by sea was dangerous and they would likely be sent back. The Clinton administration continued intercepting Haitian migrants at sea, and in 1993 the Supreme Court ruled that the federal government wasn’t violating the Immigration and Nationality Act or the 1967 Protocol by having the Coast Guard prevent Haitian asylum seekers from reaching the U.S. The Clinton administration reinstated asylum screenings for Haitian migrants intercepted at sea in 1994, but the government continued stopping Haitian ships. It also began processing refugees in international waters after signing agreements with Jamaica and Turks and Caicos. Asylum seekers’ claims were processed on Navy vessels, and those whose claims were rejected were transferred to a cruise ship before being deported. 

What’s next?

There don’t appear to have been additional deportations this week after the assassination, but there also haven’t been any assurances by the Biden administration that deportations would stop while the situation remains highly volatile. It’s not clear if Haiti’s new restrictions, which include border closures, would preclude the arrival of deportation flights. Even if they ostensibly did, there’s precedent for the U.S. government to go ahead and deport people anyway, as it did when several countries instituted border restrictions during the earlier days of the COVID-19 pandemic.

A number of Black immigrant rights groups and other advocacy organizations have already started calling on the administration to issue some sort of moratorium on deportations to Haiti. While Biden’s attempt to institute a more widespread deportation moratorium early on in his term was blocked by the courts, a more targeted approach in response to crisis might have better luck, though it’s certainly something performative xenophobes like Texas Attorney General Ken Paxton might sue over anyway.

It also remains unclear when, exactly, the Haiti TPS redesignation will occur. The prolonged limbo doesn’t necessarily bode well for its prospects, but the government did officially announce it, and it’s only going to come under increasing pressure to deliver. It’s not the sort of commitment it can back out of now, and whenever the designation is officially issued, thousands of Haitians around the country will be newly able to petition for protection from deportation and work authorization.

The investigation into what happened Wednesday morning has been chaotic and so far inconclusive, and there’s unfortunately no reason to believe that things are gonna stabilize in the near term. It seems like the conditions that might trigger a TPS designation will continue to exist for some time, and indeed the redesignation announcement specifies that the designation would be active for at least 18 months post-formal notice. The idea that additional deportations could be a destabilizing force in their own right isn’t theoretical, as we’ve explored above.

Next Destination

Biden administration to limit detention for pregnant immigrants

The Biden administration will begin limiting the use of ICE detention for pregnant, nursing, and postpartum women, according to an internal memo obtained by The Hill. The memo, dated July 1 and signed by acting ICE director Tae Johnson, says ICE should “generally … not detain, arrest or take into custody for an administrative violation of the immigration laws individuals known to be pregnant, postpartum or nursing unless release is prohibited by law or exceptional circumstances exist.” The July 1 memo reversed a Trump-era policy requiring ICE to perform pregnancy tests on women in its custody but that did not prohibit or discourage the agency from detaining pregnant people. In fiscal 2018, 2,098 pregnant women were held in ICE custody.

Notably, the July 1 memo doesn’t prohibit ICE from arresting and starting deportation proceedings against pregnant people, but it does require ICE officers to get permission from supervisor before issuing detainers for people who are pregnant or nursing.