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Given the public interest and layers of policy and historical significance here, this week we’re dedicating our entire edition to Haitian asylum seekers, both breaking down the ongoing situation and its historical underpinnings.

The news: Furor over images of would-be Haitian asylum seekers being run down by horse-mounted Border Patrol agents has caused Biden administration officials to express mock shock and shed crocodile tears while promising that horses will no longer be used to unlawfully prevent migrants from accessing the asylum system. While it’s nice that the unlawful obstructions will presumably be equine-free going forward, none of the underlying policies have been shifted and Haitians (and others) will continue to be expelled, quickly deported, or driven to death in more dangerous areas of the border.

What’s happening?

The encampment under the international crossing bridge near the Texas town of Del Rio, just across the Rio Grande from the Mexican town of Ciudad Acuña, drew national attention not just because of the brutality of the Border Patrol response, but its sheer size and squalor. Some estimates pointed to as many as 14,000 Haitians having been present at the camp’s peak earlier this month. The sudden surge in arrivals appears to have occurred at least in part due to an explosion of encouragement on online platforms like WhatsApp, where migrants were playing something like a game of telephone with Biden administration immigraiton policies.

In May of this year, Homeland Security Secretary Ali Mayorkas announced an extension of Temporary Protected Status for Haitians already in the United States. It seems this message got distorted into the belief that Haitians could arrive in the United States and subsequently obtain protections. Paired with the July assassination of Haitian President Jovenel Moïse and the earthquake followed by a tropical storm in August, many Haitians decided now was the time to attempt a humanitarian migration to the U.S.

It’s important to note here that it appears the vast majority of the migrants are not recent departures from Haiti. Most are Haitians who had left years earlier and settled in countries such as Chile and Brazil, or stuck around in Mexico after earlier attempts to reach the United States. The migrants who are attempting to reach the U.S. directly from Haiti are often doing so via sea voyage (and the administration has not slept on deploying heavy-handed enforcement there too, with Mayorkas sending out Coast Guard ships to interdict and send back Haitian migrants before they ever get a chance to reach the U.S.) Those at the Del Rio camp often came up through South and Central America, including by navigating the notoriously treacherous Darién Gap.

There are a number of interlocking concepts here that are causing a good deal of confusion when taken together, so let’s break them down one-by-one:

Yes, there is such a thing as illegal entry. No, that doesn’t preclude asylum claims

White House Press Secretary Jen Psaki and Mayorkas have both at this point intimated that this is an unfortunate but ultimately necessary exercise of executive authority; this week, for example, Mayorkas said “If you come to the United States illegally, you will be returned.  Your journey will not succeed, and you will be endangering your life and your family's lives.  This Administration is committed to developing safe, orderly, and humane pathways for migration, but this is not the way to do it.” The trouble is that this implies that illegal entry is somehow an impediment to the absolute right to present an asylum claim as guaranteed by international and domestic law, which it very much is not.

Illegal entry and unlawful presence of course do exist; the former even has potential criminal penalties as laid out in two federal statutes (one of which, though, was recently ruled unconstitutional by a federal judge). However, asylum law is very clear that the right to make a claim does not evaporate simply because someone entered the country unlawfully or is present without status. Per 8 USC § 1158(a)(1): “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title” (emphasis added).

There are some exceptions delineated within the section itself, including a time limitation and the existence of a safe third country agreement. None of those exceptions relate to method of entry, and they certainly don’t establish an exception for public health or the government’s intent to expel a migrant without a credible fear evaluation. In fact, references to immigration expulsions simply don’t exist in the U.S. Code at all, either in the immigration title or the public health title (Title 42) that is being commandeered to justify the expulsion policy. Which brings us to our next point.

Expulsions are probably still unlawful

As we’ve noted before, federal judges have already questioned the government’s insistence that Title 42 grants the right to remove anyone pursuant to a public health rationale. The statute in question grants the federal government certain powers to prevent the introduction of communicable diseases, including by stopping the entry of individuals from contiguous territories, but it never uses the word “expulsion,” or “removal” or anything of that nature, opening up the very direct argument that once someone is already on U.S. soil, it simply has no relevance. The ACLU has recently resumed a lawsuit against the administration arguing as much, though as of now, the policy remains in place and is being used to expel large numbers of the Haitian migrants, at a tune of up to seven flights to Haiti a week in the near future.

Of course, if the policy is ultimately ruled unlawful, that won’t do anything for the thousands of Haitians already expelled. It’s also worth noting that, as mentioned above, many of them have actually not been in Haiti for years, so the U.S. is not only failing to provide access to protections but actively sending them to a worse and less stable situation than they were in before. The threat of expulsions and deportations acting as a destabilizing force is a big part of why US Special Envoy for Haiti Daniel Foote resigned in protest this week.

As we wrote recently, between the administration being ordered to restart the Migrant Protection Protocols, also known as Remain in Mexico, choosing to expand expedited removal for families, and keeping Title 42 in place, there are now various systems in place that collectively very quickly send migrants either back to Mexico or to countries of origin, albeit in different ways. Some of those Haitians being sent to Haiti probably are being formally deported, which is legally distinct from an expulsion and has farther-reaching legal consequences. An Associated Press report from yesterday, citing unnamed “U.S. officials,” claimed that “thousands” of Haitians are being released into the United States with active asylum processes, though at this point it’s hard to assert with any specificity the extent to which this is happening. Those being released are apparently being given notices to appear at ICE field offices within the next sixty ideas, though for a full asylum process they’ll have to appear in immigration court and make their case.

Most of these migrants probably wouldn’t qualify for asylum

This is a thorny one, but a pure legal analysis of these migrants’ characteristics leads us to the conclusion that most would not qualify for formal asylum under the rules as currently written. There’s a common misconception that an asylum claim merely requires that a person would be in danger if returned to their country of origin; this is not the case, and in fact there have often been situations where an immigration judge will openly acknowledge that a migrant will likely be in serious peril before denying an asylum claim anyway. The reason for this is is that asylum has rather narrow criteria, mainly the requirement that someone not only be in danger but be actively persecuted either by a state actor or an actor that the state is unable to control, and the persecution has to be as a result of race, religion, nationality, membership of a particular social group, or political opinion. Social group is the least defined and the broadest, and has been used as a vehicle to, for example, protect LGBTQ+ people.

All this means that it’s nowhere near enough, legally speaking, for Haiti to be dangerous and unstable. Many of the migrants currently at the border have been outside of Haiti for years and would probably have a difficult time substantiating why they specifically and personally have a fear for return, unless they happen to fall under a group already widely recognized to be under direct threat. Rather, they would probably be considered economic migrants, and there’s no category for admission to the United States that recognizes purely economic migration (which is distinct from employment-based migration, which requires employment in certain fields and occupations as a prerequisite). That of course doesn’t mean it’s appropriate or even legal for the administration to block access to the system, but many of these Haitians migrants would have a very steep climb to establishing eligibility under the current criteria.

Mexico is not a passive entity

For anyone to be expelled directly across the border to Mexico instead of a flight to their country of origin, Mexico has to accept them in, which it has been doing. Haitian migrants in Mexico have faced raids by heavily-armed Mexican authorities, including units of the National Guard, which was created in 2019 in large part specifically to assist with migration control. As we’ve written about extensively, U.S. and Mexican security coordination on preventing migration and deterring would-be asylum seekers from even trying to reach the U.S. border has been ramping up, and is the key plank of the Biden administration’s long-term strategy on migration.

Mexico in recent months has also assisted in chain expulsions, taking expelled migrants from the United States and further expelling them to Guatemala, creating a sort of seamless continental strategy of international law violations and human rights abuses.

How we got here

The history of Haitian migration to the U.S.—and of the U.S.’s commensurate attempts to restrict Haitian migration—is particularly fraught. As David Fitzgerald wrote in Refuge Beyond Reach, his book cataloging wealthy countries’ attempts to prevent refugees and asylum seekers from ever reaching their borders, the first Haitian asylum seekers arrived in the U.S. Their arrival came shortly after dictator François Duvalier “won” his re-election by a margin of 1,320,780 votes to 0. The Immigration and Naturalization Service denied almost all of those Haitian migrants’ asylum applications, and continued to deny most Haitian migrants’ asylum claims for the next decade.

Obtaining asylum in the mid-twentieth century was hardly an apolitical process. In theory, anyone who is fleeing persecution in their home country due to their race, religion, nationality, member in a particular social group, or political opinion may qualify for asylum. In practice, migrants from countries considered “hostile” to the U.S., such as the Soviet Bloc countries, were granted asylum at much higher rates than those from friendly countries. Given that the U.S. materially supported the Duvalier regime in Haiti by supplying the dictator with money and arms, granting asylum to the people fleeing that very regime would have amounted to a tacit acknowledgement that the U.S. was allied with a government that was actively persecuting its own people. So the INS largely considered Haitians “economic migrants” instead of asylum seekers fleeing political repression.

The Refugee Act of 1980 was intended to expand and standardize the asylum and refugee systems. But the rates of protection offered to asylum seekers from “friendly” countries—not only Haiti, but also El Salvador and Guatemala—remained abysmally low. In 1980, the Carter administration built new immigrant detention facilities to address the rise in both Central American and Caribbean migration. But Haitian migrants were detained indefinitely in these facilities, while Cuban asylum seekers were released to join family or sponsors in the U.S. Migrants fleeing civil war and political instability in Central America also faced unequal treatment. In 1984, for example, 3 percent of asylum applications filed by Guatemalans and Salvadorans were granted, compared to 100 percent of Cuban asylum applications.

In 1981, Reagan’s first year in office, his administration signed an agreement with Haiti that allowed U.S. immigration authorities to board Haitian ships sailing in international waters to inspect them for migrants. Haiti agreed to accept deportees and, crucially, to not 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.” INS officials who interdicted Haitian ships were supposed to ask any Haitian migrants they encountered why they left their country and if there was any reason they couldn’t return. But according to Fitzgerald, the author of Refuge Beyond Reach, these interviews were cursory, if they happened at all. Just 28 of the 24,600 Haitians interdicted at sea between 1981 and 1991 were granted entry into the U.S. so they could apply for asylum.

The Regan administration remained committed to its characterization of Haitians as economic migrants—so much so, in fact, that in April 1982 the Justice Department sent Associate Attorney General Rudy Giuliani to confirm that there was “no political repression” in Haiti. The younger Duvalier, who had taken over after his father’s death in 1971, “personally assured” Giuliani that “Haitians returning home from the United States were not persecuted,” the New York Times reported. 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.”

Meanwhile, the INS continued detaining Haitian asylum seekers while their claims were processed (and, generally, ultimately denied). In 1982, the Haitian Refugee Center Inc. sued the Reagan administration, claiming that the INS was illegally detaining Haitian refugees indefinitely while paroling asylum seekers from other countries into the U.S. A federal judge ruled that the Reagan administration had violated the Administrative Procedure Act (which regular readers of the newsletter will recognize) by indefinitely detaining migrants. But the judge also ruled that the Refugee Center “failed to prove” that the administration was incarcerating Haitian migrants “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.”

Conditions in Haiti continued to deteriorate: Duvalier stepped down in 1986, there were two coups in 1998, and another coup in 1991, overturning democratically elected president Jean-Bertrand Aristide. In 1991, the INS began detaining Haitian migrants in Guantanamo Bay. That year alone, the Coast Guard transferred around 12,500 Haitian migrants to the Cuban detention facility, which was deemed “beyond capacity” the following year and continued holding migrants until 1993. Haitians suspected of HIV were categorically barred from entering the United States until a judge intervened. The Clinton administration continued intercepting Haitian migrants at sea, a policy upheld by a 1993 Supreme Court ruling 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.

This relatively recent history shows how the odds have been stacked against Haitian asylum seekers and migrants for decades. Haitian migrants in the U.S. have had a few narrow victories, like Temporary Protected Status, but that only applies to those already present in the country, is only implemented in the wake of a natural disaster or another emergency, and can always be revoked.

This broader history also intersects with the current situation at the border. Since March 2020, the U.S. has been “expelling” asylum seekers rather than processing them into the country so they can apply for asylum. This policy, called Title 42, is ostensibly a pandemic-related public health measure—one that top officials at the CDC urged the Trump administration not to implement because it had no meaningful public health value.

More than a year and a half later, the Biden administration has kept a haphazard version of Title 42 in place: first it decided not to apply the policy to unaccompanied migrant children, then it began allowing some families with children to enter the country while expelling others. The administration also entered an agreement with the ACLU in April, through which a few dozen families would be allowed to enter the U.S. at ports of entry each day. Through this agreement, the ACLU and its partners—migrant rights organizations and service providers on the ground—would identify which migrants were most vulnerable in Mexico. The ACLU would pass those names along to the Biden administration, and CBP would let a few of them enter the country each day. The Biden administration was reportedly ending Title 42 for families altogether by July 31—but then decided to keep the policy in place indefinitely, blindsiding the immigrant rights organizations that had been working with it on the exemption process.

Since Biden took office, the implementation of Title 42 has grown increasingly asymmetrical: some migrants are let into the country, others are expelled to Mexico (or, in some cases, to their countries of origin), and no one quite understands who gets let in or why. The rate of expulsion varies from sector to sector, and there are distinctions based on nationality as well. For migrants, the uneven implementation of Title 42—coupled with Biden’s campaign promises to implement a more humane immigration policy than Trump, and his subsequent about-face after taking office—have led to mass confusion. And for Haitians fleeing a combination of natural disaster and political instability, the Biden administration’s message to “not come” is unlikely to resonate, no matter how repressive the administration’s border policies are.

BORDER/LINES

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