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How The U.S. Should Protect Haitian Refugees

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More than 21,000 Haitians fearing for their safety if they remained in their home country were stopped at the U.S.-Mexico border from September 2021 until this past June. They were put on about 240 planes and deported without an opportunity to make their asylum claims.

These deportations and the inadequate process under which they were undertaken violated the letter and spirit of U.S. refugee laws and our country’s traditional commitment to serve as a safe haven for the persecuted.

Haiti is and has been in a dire state for decades. In an opinion column in The New York Times this week, Lydia Polgreen made a compelling case for the United States and other outsiders to stop meddling in Haiti’s politics and to “get out of Haiti’s way.”

Polgreen rightly asserts, “Haiti has been used and abused by more powerful nations” since Christopher Columbus landed there in 1492. She suggests that the latest outside calls for quick elections to solve Haiti’s problems are ill-timed, given the high levels of violence and political instability still plaguing the country. What Polgreen does not directly address is the immediate humanitarian crisis facing ordinary Haitians who have been forced to flee the country.

The summary deportations of Haitian refugees were a legacy of the Trump administration. It sought to curtail the right to seek asylum in multiple ways, including by empowering the Department of Homeland Security to short-circuit the process by issuing a public health order to force immediate removal.

Title 42 of the Public Health Service Act gives federal health officials powers, during a pandemic, to take extraordinary measures to limit the transmission of infectious diseases. This type of federal authority has existed in various forms for more than a century. In March 2020, at the outset of the Covid-19 pandemic, the Trump administration invoked Title 42 authority to prohibit entry by virtually anyone coming through Mexico or Canada, effectively trying to seal those land borders.

Reliance on Title 42 in this way circumvents U.S. law, which requires that, upon reaching the border, everyone has the right to apply for asylum, a right guaranteed by the Refugee Act of 1980. Under that law, asylum applicants can present their applications to U.S. immigration officials, who then determine whether they have a well-founded fear of persecution based on their political opinions or other factors, and should be granted asylum.

Rather than reversing this order, as it should have done, the Biden administration initially continued to use it to facilitate the deportation of thousands of Haitians. The Centers for Disease Control and Prevention belatedly attempted to halt Title 42 expulsions in May, only to be stymied by a court injunction pending further litigation. Though the deportations of Haitians at the border have slowed significantly, the administration is still using Title 42 to expel other asylum seekers who are stopped at the border.

With the threat of COVID-19 diminished, and many pandemic restrictions eased, it’s simply not credible to deprive these refugees of the opportunity to apply for asylum on the pretext of public health. As more than 100 members of Congress wrote to President Biden earlier this year, “the Administration’s use of the Title 42 authority is depriving legitimate asylum seekers the opportunity to pursue their claims, contrary to our obligations under international and domestic law.”

Though the deportations of the Haitians at the U.S.-Mexican border have slowed significantly since June, another urgent problem has emerged. More than 58,000 Haitians in the U.S. are languishing in legal limbo because they arrived after August 2021 — when newly-arriving Haitians were misguidedly declared ineligible for Temporary Protection Status (TPS). This is an opportune moment for the Biden Administration to extend TPS protection to all Haitians in the U.S. until the political and security situation in Haiti improves markedly

Haiti is a failing state, with a weak, corrupt government that is doing far too little to stop or even diminish the daily violence that Polgreen viscerally reports in her column from the capital, Port-au-Prince. Armed gangs now roam the streets spreading “lawlessness and grief,” in the words of U.N. Special Representative in Haiti, Helen La Lime. She condemned these armed groups for their “indiscriminate use of abduction, murder, as well as sexual and gender-based violence, as a means to terrorize local populations.”

La Lime concluded that Haiti’s judicial system suffers from “grave structural weaknesses,” which deprive the courts of the ability to “investigate, process or try cases.” It’s not surprising that thousands of Haitians have been forced to flee the country, and that those who have done so and made their way to the United States have a well-founded fear that they will be persecuted if they are forced to return home now.

Until conditions in Haiti significantly improve, the Biden administration needs to give Haitians in the U.S. a clearer sense of security. The administration should also ensure access to refugee status remains open to Haitians and any others at the border who would likely face persecution if deported. While we can and will continue to debate the proper U.S. role in its diplomatic, economic, and security engagements with Haiti, as Polgreen and others do, there should be no debate about our obligation to protect Haitians who have fled their country’s desperate and still deteriorating human rights crisis.

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