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What Happens at the Border
Once they reached the United States, most of the recent wave of Haitian migrants did not find the hoped-for sanctuary. They camped out in squalid conditions waiting to be processed by immigration officials. Most were quickly sent out of the country. 7,500 Haitians were deported to Haiti over the course of just three weeks. Thousands of others chose to cross back into Mexico to avoid deportation to Haiti. (However, returning to Mexico does not guarantee a respite from the threat of deportation. In Mexico, Haitians frequently face violent, xenophobic attacks and deportation back to Haiti.)
The US Special Envoy to Haiti, Daniel Foote, resigned in protest over the deportations. He said, “The people of Haiti, mired in poverty, hostage to terror, kidnappings, robberies and massacres of armed gangs and suffering under a corrupt government with gang alliances, simply cannot support the forced infusion of thousands of returned migrants lacking food, shelter, and money without additional, avoidable human tragedy.”
The conditions Foote named raise the question: Why are the US and other countries forcibly sending migrants back to Haiti, given the conditions they will face upon their return?
Title 42 is one of the United States’ stated legal justifications. Title 42 is a public health law that allows the government to block people from entering the United States to prevent the spread of disease. Early in the COVID-19 pandemic, then-President Trump began using Title 42 to expel people at the US border without giving them a chance to apply for asylum. The Biden administration continued the practice, despite public health experts’ protests that it does not actually serve public health interests and arguments from civil rights groups that Title 42 unlawfully interferes with the right to seek asylum.
Even if Title 42 did not block them from requesting asylum, many of the migrants would likely lose their asylum cases and end up being deported back to Haiti eventually. Haitians are often classified as “economic refugees” and have one of the lowest rates of being granted asylum in the US. Advocates name racism as one reason for this outcome. Anti-Black racism and the narrow definition of asylum in US immigration law work in tandem to particularly disadvantage Haitian asylum seekers.
Under US law, a refugee (or asylee) is defined as a person who is unable to return to their home country because of “persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” This sets up two major limitations on asylum eligibility. First, an asylum seeker must show that they would be in danger because of one of the five enumerated grounds. If a country is just dangerous for everyone, that does not qualify someone from that country for asylum, even if they have a high risk of being harmed or killed there. Second, they must be afraid of “persecution.” Again, this means that not all types of threats will make someone eligible for asylum. For example, it is harder to show “persecution” by non-governmental actors (although Attorney General Garland has vacated a Trump-era rule that made this even harder).
Given these criteria, people who are fleeing situations like extreme poverty, natural disasters, or generalized violence – like current Haitian migrants – often cannot qualify for asylum, even if their lives are at risk in their home countries, because they are not afraid of “persecution” or their fear is not based on race, religion, nationality, membership in a particular social group, or political opinion. US law does have two other grounds that protect people from being deported in certain situations, but they still require that a person be in danger because of one of the five characteristics needed for asylum or be in danger of being tortured.
Immigration Law vs. Human Rights
Many international human rights instruments support the principle of non-refoulement, meaning that a person cannot be forcibly returned to a country where they will be at risk of irreparable harm. This risk could be from persecution, as contemplated by US asylum law. However, courts and international human rights mechanisms have interpreted non-refoulement much more broadly. For example, the UN Human Rights Committee has held that the principle could, in some circumstances, prevent a government from deporting someone to a country where climate change-induced conditions threaten their right to life.
This broad definition of non-refoulement could protect many Haitian asylum seekers from deportation to a country where their lives may be in danger, even if they do not qualify for asylum under current US law. Many Haitian migrants’ lives would be threatened by circumstances like extreme poverty and widespread gang violence if they had to return to Haiti. If they do not fear persecution or if their fear is not based on one of the five protected grounds, they will not be granted asylum. However, if the United States granted asylum or other relief from deportation based on a wider range of life-threatening circumstances, more of these asylum-seekers could find protection.
This September, UN agencies called on the United States to comply with international law requirements “that each case be examined individually to identify protection needs under international human rights and refugee law,” rather than expelling migrants en masse.
The agencies also warned that public discourse portraying migrants as a threat “risks contributing to racism and xenophobia and should be avoided and condemned.” This echoes concerns raised by public health experts that Title 42 perpetuates “racially-based tropes presenting migrants as vectors of disease.” Black migrants, including Haitians, are particularly targeted by xenophobia and racism in their travels through South and North America. The problem is bigger than US immigration law and policy, but this does not excuse the US government’s contribution to xenophobic narratives by portraying Haitians and other migrants in need of protection as public health threats.
The recent encampment near Del Rio may be empty now, but it was just one episode in a much longer story. Tens of thousands of people are reportedly waiting to cross the treacherous Darién Gap, many of them doubtless hoping to settle in the United States. Harsh immigration measures will do nothing to cure these people’s desperation.
The United States should learn from recent events and strive to respect the humanity of migrants seeking a better life. Ending the use of Title 42 is one crucial, overdue first step. But it is not enough. US asylum law should also be amended to recognize greater non-refoulement protections. Although the United States has ratified treaties recognizing the principle of non-refoulement, migrants can currently only gain asylum if their fear is based on persecution for particular reasons. People who fear for their lives but do not meet these criteria are not covered. If someone’s life is in danger, they should be protected – not sent back into harm’s way because they’re afraid for the wrong reasons.
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