US abuse of Haitian asylum seekers is not new — change is long overdue

US abuse of Haitian asylum seekers is not new — change is long overdue
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Last week, 15,000 mostly Haitian asylum seekers crossed the border into Del Rio, Texas. The Department of Homeland Security (DHS) sent additional border patrol agents to Del Rio to “control” the Haitians. DHS released hundreds of mostly pregnant women and families with notices to appear in immigration court. It transferred thousands of Haitians to other parts of the border for processing or expulsion to Haiti. And DHS expelled 2,324 Haitians — including many families with children, some of whom were not born in Haiti — on flights to Haiti where they will face certain suffering and danger. 

Mistreatment and poor conditions in the Del Rio camp and the lack of clear criteria regarding who would be released or expelled led thousands of Haitians to return to Mexico. There, many were rounded up by Mexican immigration authorities. The Biden administration coordinated with Mexico to push asylum seekers away from the U.S. border and keep them from migrating northward. 

Disturbing images of abuse and summary expulsions have sent shockwaves through the country, and advocates are demanding accountability. But in fact, Haitians seeking safety have been mistreated by U.S. administrations for decades. It is time for this to finally change. 

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Biden administration explanations of their policies have been insufficient. DHS Secretary Mayorkas promised investigation of particular incidents of mistreatment in Del Rio. But similar investigations have not improved the treatment of asylum seekers by the Border Patrol

When asked by a reporter why Haitians seemed to be singled out for rushed, mass expulsion, Secretary Mayorkas referred to Biden’s administration’s use of Title 42 of the Public Health Act, first invoked by Donald TrumpDonald TrumpJan. 6 panel plans to subpoena Trump lawyer who advised on how to overturn election Texans chairman apologizes for 'China virus' remark Biden invokes Trump in bid to boost McAuliffe ahead of Election Day MORE to bar asylum seekers. He said that, over the past several months, DHS expelled thousands of asylum seekers to other countries. But he did not adequately explain why the administration pursued dramatic clearance of Haitians from the camp in ways not in accord with public health, making Mayorkas’ invocation of this authority seem all the more unjustified and unlawful than already deemed by health experts and a federal court.  

Though the camp of mostly Haitian asylum seekers in Del Rio is now gone, the Biden administration continues to send several expulsion flights each day to Haiti. Haiti is wracked by gang violence and in the midst of a political and humanitarian crisis. Given this crisis, ongoing racism and barriers to secure legal status Haitians face in other countries in the hemisphere, and networks of friends and family living in the United States, Haitians will continue to seek refuge here. 

As historians have pointed out, we have seen much of this happen before under both Republican and Democratic administrations. 

In 1978, facing repression and economic hardship in Haiti and facing prejudice and risk of deportation to Haiti from the Bahamas, thousands of Haitians sailed to Florida. U.S. officials tried to discourage Haitians from coming and block them from landing. When that failed, U.S. officials detained them in jails under terrible conditions, summarily rejected their asylum claims, and sent them back to Haiti. In a 1980 decision, a federal court judge in Florida referred to this as a Carter administration “program to expel [over 4,000] Haitians.” 

In 1993, the Clinton administration initially continued the Bush administration policy of interdicting Haitians and returning them to Haiti without any asylum screening, and argued in the Supreme Court that its obligations under the Refugee Convention not to return Haitians did not apply on the high seas. The Court ruled for the administration, which a year later first switched to screening Haitians at sea and the holding at Guantanamo all those who were fleeing the island.

Instead of replaying these approaches, the Biden administration should try new ones.

First, the administration should stop expelling asylum seekers using Title 42 and reopen ports of entry to process those seeking protection. The latter would require that the administration put in place meaningful COVID-19 mitigation measures and implement promised reforms to asylum processing and adjudication that move away from detention and increase due process. DHS should provide humanitarian parole and access to the U.S. asylum system to Haitians who were in Del Rio and have been transferred to other parts of the border and havereturned to Mexico. Those who were victims and witnesses of CBP misconduct should be permitted immediate access to counsel to understand their rights, including eligibility for U and T visas — which are set aside for immigrants who are victims of crime and human trafficking respectively — and to assist in the investigations of DHS personnel.  

The Biden administration should not continue appealing a federal court decision deeming expulsions under Title 42 unauthorized by U.S. law. A ruling upholding this policy would deal a major blow to the norm of non-refoulement and, like the decision in 1993, could have negative implications for asylum seekers elsewhere in the world. The United States must uphold its non-refoulement obligations and stop sending Haitians to places where they will likely face serious harm. Dire and dangerous conditions will only lead returned Haitians to flee abroad once again, proof that expulsion is not only a violation of U.S. and international law, but the opposite of a “durable solution” to forced displacement. More proactively and productively, Congress should create humanitarian visas and a form of complementary protection for those who cannot meet the refugee standard but who will experience harm (due to violence or environmental crisis) threatening their physical integrity or ability to live. 

The Biden administration should also restart the Haitian Family Reunification Parole Program and make Haitians eligible again for H2 (temporary work) visas, thereby expanding legal pathways for Haitians to come to the United States. By passing legislation that would allow for the regularization of Temporary Protected Status holders, Congress would also make more Haitians able to lawfully sponsor the migration of relatives. The administration might also consider establishing a Haitian minors program like the one for Central American minors. It should encourage Mexico and Chile to create humanitarian, family unification and work visas for Haitians and ensure Haitians have access to asylum and work authorization. Finally, the administration should work with other countries to address the problem of separated and mixed status Haitian families and to ensure Haitian parents of children born in the United States, Mexico, Chile, or Panama can regularize their status in those countries. 

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Cooperation with other countries should focus on upholding the human rights and labor rights of migrants, establishing legal migration pathways, and sharing the responsibility to provide protection and security of displaced Haitians.  

The Biden administration campaigned on a promise of a more humane immigration and asylum system. To really build back better, they must stop repeating the mistakes of the past and start here. 

Dr. Yael Schacher is the senior U.S. advocate at Refugees International and a historian of the U.S. asylum system.