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October 18, 2021

Haitian Migrants Confront Racial Discrimination at our Southern Border

Last week, the American Bar Association joined hundreds of other organizations across the country in decrying the treatment of Haitian migrants along the border in Del Rio, Texas after video emerged of Border Patrol officers on horseback herding migrants to keep them from crossing the river into the U.S., with at least one officer using racial epithets. From the President on down, government officials have swiftly assured the public that such behavior will not be tolerated; the use of horses at Del Rio has been suspended, and those involved are currently under investigation.  

The deplorable incident, however, is only a symptom of a much deeper problem at the U.S. border, and emblematic of how the continued use of Title 42 pandemic restrictions to prevent asylum seekers from entering the U.S. results in racial discrimination and warps our entire system for safely and humanely receiving migrants at our southern border.

 Del Rio is not just about the recent treatment of Haitian migrants or migrants generally at our Southern border.  It recalls a long and bitter history of mistreatment of Haitians and represents the chaos that can ensue when we fail to acknowledge the multiple changes in migration patterns and the need for new, more humane methods of processing and receiving migrants. Climate change, sophisticated criminal smuggling rings, rapid communication through social media, and the lack of regional migration solutions all played a part in what culminated in Del Rio, Texas. Broader still, the ongoing deterioration in asylum rights and changing demographics of unauthorized migration (more families, more children on their own), meant that the Del Rio sector was ill-prepared to address the convergence of thousands of Haitian migrants on a sleepy section of the southern border.  Migration is changing rapidly; the U.S. is far behind in preparing for it.

But Del Rio is also the story of the relationship between the United States and Haiti,  countries that have been bound together for centuries by trade, by politics, and by migration.  Ever since Haitians declared their independence from France in 1804, the U.S. has played an oversized role in its development, particularly after occupying the country from 1915 to 1934, tacitly supporting dictatorships, and directly or indirectly intervening in its elections for decades. Nonetheless, beginning in the 1970s, brutal oppression at home led many Haitians to attempt dangerous ocean crossings to reach the United States, which, coupled with the Mariel Cuban crossings, led President Reagan to implement a policy for interdiction and return of migrants on the high seas; a policy which was later modified during the Bush administration, and largely followed in the Clinton administration, to return Haitians unless they could meet a screening for asylum eligibility, often conducted on board Coast Guard cutters. Many Haitians onboard those cutters or who sought asylum within the United States were frequently denied protection, based on assessments that they were fleeing poverty and systemic violence rather than persecution. 

The conclusion that migrants seeking asylum are fleeing poverty and violence rather than specific persecution based on a protected ground such as political opinion, race or religion is not unique to Haitians; if anything, it is the story of our asylum laws, which frequently require an extremely high level of proof to establish that one is a refugee whether from Guatemala, El Salvador, Haiti, or anywhere else in the world.  And yet the Haitian experience has been particularly egregious, as the brilliant Haitian-American writer Edwidge Danticat has so poignantly depicted not only in her novels, but in her accounts of her family’s own immigration experience, and in her political essays for the New Yorker magazine. Other evidence of Haiti’s unique status can be found in legislative and administrative policies from the last forty years, such as the implementation of Temporary Protected Status or the differences in late 1990s legalization programs designed to assist Cubans, Central Americans, and Haitians. In each case, Haitians seemed to be judged on a different standard from their Cuban and Central American counterparts, never qualifying for Temporary Protected Status or receiving the most favorable treatment in the spate of legalization bills passed in 1997 and 1998.

Following a devastating earthquake in 2010, however, the United States finally realized that Haitian migrants deserved far more support and understanding than they had ever received before.  DHS Secretary Janet Napolitano quickly issued an order granting Temporary Protected Status to Haitians living in the United States prior to the earthquake,  permitted Haitian nationals to join families in the United States, and suspended deportations to Haiti.  Thousands more Haitians left their home to work in Brazil and elsewhere in South America, filling huge labor needs and receiving temporary visas in return. As the work and the visas dried up, however, around 2014, Haitians began to make the long and dangerous journey through South America, Central America, and Mexico to reach the United States.  If they made it, the prohibition on deportations meant they would have greater freedom to pursue asylum or other immigration status.  Largely in response to this growing migration from South America and increases in migration at sea, the Obama administration ended the deportation moratorium in September of 2016, arguing that conditions in Haiti were sufficiently stable to permit returns, a statement that met with shocked silence and then outrage from the Haitian advocacy community.

The Trump administration terminated Temporary Protected Status for Haiti in 2018, but legal battles kept most Haitians with TPS safe from removal during that time.  The Biden administration  reversed course, and had already renewed TPS for existing beneficiaries when the double whammy of the assassination of President Moises in July and a 7.2 magnitude earthquake threw the country into further chaos. 

Here’s where the story diverges.  Despite granting TPS based on findings that conditions in Haiti were so unstable that its infrastructure could not support the return of Haitian nationals, the U.S. government has continued to deport Haitians.  More significantly, it also continued to rely on Trump-era pandemic restrictions (known as Title 42) that the government has interpreted to allow it to expel people without any opportunity to see a judge or to ask for asylum, in the name of protecting public health. Since March 2020, more than 940,000 migrants have been expelled without a chance to seek asylum or appear before an immigration judge justified by a fear of spreading Covid-19.

Public health officials and immigration advocates have repeatedly disputed that claim, pointing to numerous alternatives, even before vaccines were readily available,  for ensuring that public health is protected while continuing to honor our international and domestic obligations to protect those seeking asylum.  And while the Biden administration has reduced its use of Title 42 with respect to unaccompanied minors and some families, the continued existence of the policy  also meant that DHS did not have to focus on long-term solutions for upgrading its infrastructure to process people in a more humane, sustainable and dignified way. The results have been ongoing violations of the rights of asylum-seekers,

Haitians have suffered a disproportionate impact under the continued application of  Title 42,  as Nana Gyamfi, Executive Director of the Black Alliance for Just Immigration notes in Bloomberg Law.  A report from the Haitian Bridge Alliance, the Quixote Center, and UndocuBlack Network found that more Haitians were deported in the first two months of 2021 than in all of 2020. The Washington Office on Latin America reports that  in the twelve months before thousands of Haitians converged on Del Rio Texas, ICE had deported or expelled thousands of Haitians encountered along the border on 57 flights to Haiti; in a 12 day period during September 2021,however, ICE deployed another 57 flights to Haiti from the Del Rio sector alone, expelling  another 6,131 Haitians. Some reports indicate that the word got out that Del Rio was an “easier” crossing, probably fueled by smugglers hoping to prey on the misery of others, but also spread through the rapid-fire world of social media.  Both factors helped to push more than 30,000 people towards Del Rio in a short time frame transforming a sleepy part of Texas into an international flash point.

Even before Del Rio went viral, DHS had begun to mobilize a vast emergency force to process the migrants, 13,000 of whom were permitted to enter the United States.  Still, the thousands expelled arrived back to a country that many had left a decade ago; a country  in such dire straits that the minister for immigration begged the United States not to deport people back.

Del Rio has put a laser focus on the contradictions inherent in our immigration system, particularly as the government continues to rely on Title 42 to protect public health by expelling Haitians to a public health nightmare.  Harold Koh, former Dean of Yale Law School, a highly regarded lawyer and human rights scholar who departed the State Department to return to teaching a few days ago, captured these contradictions in his parting memo to the Biden administration. In a gripping and tightly argued analysis of the illegal application of Title 42 to asylum seekers, and particularly to Haitians who would be returned to a “humanitarian nightmare,” Koh implored the Biden administration to reconsider its policies so that they become “worthy of this Nation we love.”

We can and must do more to end the deportation and expulsion of Haitian migrants, to end the use of Title 42, to press Congress to adopt immigration legislation that considers past discrimination in setting policy, and to reform our methods for receiving and processing people at the border.  Whether someone is fleeing oppression or poverty, they must never be treated like animals.  To make that a reality, however, we not only need political change, but a continued commitment both to racial equality and to preparing for emergencies and unexpected needs, even if that means a high financial cost.  Serious questions about individual behavior at Del Rio must be asked, but we can only prevent another Del Rio if we also ask how can we change, how can we predict, and how can we prepare for what comes next.

The ABA is committed to pressing for due process and access to asylum and other humanitarian protections for Haitians and all qualifying migrants.  In particular, we invite members to join in opportunities to provide pro bono assistance to help Haitian migrants during this difficult time. 

Interested volunteers can find more information and sign up for shifts on the Virtual TPS Clinic: website.

Mary Giovagnoli

Senior Counsel for Legal Strategy and Special Programs at Kids In Need of Defense

Mary Giovagnoli is currently a member of the Advisory Committee for the Commission on Immigration, having served for the last three years as a Commission member.  Her career in immigration law and policy has spanned more than twenty-five years of government service with INS, DHS, and the U.S. Senate,  non-profit policy and advocacy leadership, including serving as Executive Director of Refugee Council USA, and as Deputy Assistant Secretary for Immigration Policy at DHS as an appointee in the Obama administration.  She is currently the Senior Counsel for Legal Strategy and Special Programs at Kids In Need of Defense.