In September 2021 US news was flooded with reports of a large influx of Haitian citizens crowding together under a bridge at the U.S.-Mexico border in Del Rio, Texas, seeking admission into the United States. Images of horseback-mounted border control officers aggressively pushing back the migrants shocked the nation. By now the U.S. government has deported thousands of them back to Haiti. Others are still being held in detention centers for immigration processing.
Who Were These Haitians and Why Did So Many Seem to Arrive at Once?
The Haitian citizens who arrived at the U.S.–Mexico border consisted of people who arrived at the border around the same time but they came from different places and for different reasons. Essentially, these Haitian citizens constituted two separate types of migrants.
One large group, consisting of many thousands of people and families, have been outside of Haiti for up to ten years now. After a devastating earthquake hit Haiti in 2010, life unbearable for thousands of Haitians and many fled to countries like Chile and Brazil where they settled and worked in construction and other jobs.. But as they became more of a noticeable presence in those countries, they faced increasing discrimination. The pandemic-driven economic downturn forced many Haitians to leave Chile and Brazil and to walk north through South and Central America for months to seek refuge in the United States. This is a treacherous journey – people die enroute and others are attacked or robbed along the way. In addition to the recent U.S. entry attempts by those Haitians who had been living for years in South American, thousands of other Haitians have fled Haiti more recently, following the July 7, 2021 assassination of Haiti’s president Jovenel Moise and the August 14, 2021 earthquake.
The election of President Biden spurred migrants’ hope that the United States would be more open than during the previous administration. The Biden administration attempted to downplay these hopes, sending clear messages to migrants traveling north through Central America that the U.S. border would not be open to anyone seeking to enter the country. These messages either were not heard or not heeded – people who are desperate, destitute and hungry continue to pin their hopes on a safe and secure future in the United States.
What Options Do Haitians and Other Migrants Have to Enter and Stay in the U.S?
Normally people who seek to enter the U.S. with valid entry document, such as a visa, are routinely processed for entry into the U.S. But U.S. Customs and Border Control (CBP) officers always have had discretion to decide whether to admit or reject an applicant for admission to the U.S. And COVID considerations have complicated the admission process even for those who have valid entry documents.
For those who lack valid entry documents, the prospect for being admitted to the United States is much less secure.
Political asylum is available to those who can prove that they have a well-founded fear of persecution on the basis of race, religion, political opinion, membership in a particular social group, or national origin. If a person left the country where they claim they would be persecuted if they were forced to return, and lived for a long time in a different country, often asylum is not an option for them. Under U.S. law, asylum is not permitted for those who have been “firmly resettled” in a different country before arriving at the U.S. border.
It is unlikely that most of those Haitians who had been gone from Haiti for so many years would have viable asylum claims. And even for the other group of Haitians who fled Haiti within the last few months, many may not have viable asylum claims.
Regardless of the likelihood of success of an asylum request, U.S. immigration law is black and white that anyone seeking asylum protection from the U.S. government has a right to make the request, and at least have their claim heard. Asylum applicants at the border who do not present valid entry documents are put into deportation proceedings and must go through a credible fear screening. This process is performed hastily, often without due process protections and by improperly trained officers. In most cases the officers find that the asylum seeker has not met his or her burden of proof, and summarily removes the person from the United States.
But despite the clear language in the immigration law, neither Haitians nor others seeking asylum at the U.S.-Mexico land border have been permitted to request asylum. This is because the Biden administration has continued to follow a policy implemented by the Trump administration, ostensibly due to the COVID pandemic, to expel anyone seeking asylum at the U.S.-Mexico border back to their home countries. Both the Trump and Biden administrations have invoked Title 42, the U.S. public health law, in an attempt to override the immigration law, effectively saying that the public health law “trumps” the immigration law in this situation.
Before President Trump used it like a weapon at the border to expel migrants, never before in the history of Title 42 had that law been used to expel people seeking U.S. protection. And arguably both administrations are wrong in their interpretation that Title 42 gives the federal government the authority to expel people from our borders. Indeed, in a September 16, 2021 decision, United States District Court for the District of Columbia Judge Emet Sullivan, granted a preliminary injunction against the Biden administration’s use of Title 42 for this purpose. The judge agreed with the plaintiffs who brought the case that Title 42 by its own terms does not grant the sweeping power that the Biden administration, like the Trump administration before it, claimed that it does. But the injunction did not take effect immediately. The judgeput the order on hold for 14 days to give the U.S. government time to respond. Undoubtedly this hotly contested issue will continue to play out in the courts in the months to come.
Unfortunately the injunction came too late for the Haitians who arrived at the border – most have already been returned to Haiti.
For those Haitians lucky enough to have already entered the U.S. by May 21, 2021 the U.S. does offer temporary relief in the form of a program called Temporary Protected Status (TPS). The current TPS program offers Haitians a temporary but legal U.S. status for a period of 18 months. But the program is not available to anyone seeking to enter the U.S., so the Haitians who were gathering at the border were not eligible for it.
To summarize, it was the combination of the lack of valid entry documents coupled with the use of Title 42 by the U.S. government to expel migrants, including those seeking asylum, that resulted in so many Haitians being forced back to Haiti in September, 2021.