This obscure, now contentious law is being used to expel thousands of migrants

Photos from the U.S.-Mexico border capture odyssey of Haitian migrants who returned to Mexico or are still waiting to cross.

Migrants cross the Rio Grande on September 19, 2021 to get back to Ciudad Acuña, Mexico from Del Rio, Texas where more than 14,000 migrants— most of them Haitians who fled their country years ago— have amassed over the past week in a high-visibility bid for entry to the United States.

More than 14,000 migrants, most of them Haitian, amassed at the border in Del Rio, Texas during the past week in a high-visibility bid for entry into the United States. But officials have moved quickly to expel the vast majority of them using a public health statute that immigration rights groups claim violates U.S. and international law.

By Thursday, the number of migrants at the makeshift camp had decreased to about 5,000. Some of the migrants left the camp to wait in Mexico for another opportunity to cross. A few were allowed to enter the U.S. to pursue asylum claims. Most were sent back to Haiti in a steady flow of deportation flights expected to continue to empty out the camp.

Also on Thursday, the U.S. State Department confirmed that Daniel Foote, special envoy to Haiti, resigned over what he labeled “inhumane” treatment of Haitians. Criticism has mounted in recent days following reports of squalor and crowding at the makeshift camp and images and video footage from Del Rio of U.S. Border Patrol agents on horseback chasing some Haitian migrants to keep them from entering the U.S.

The Biden administration has emphasized that the U.S. borders are not open and warned that those making the journey are subject to border restrictions, including expulsion.

"The President is quite hopeful, as he conveyed on his first day in office when he introduced an immigration bill, that we can take steps to put in place a more humane, a more orderly system, especially after a very broken one over the last several years, that has better asylum processing, that has a more—a better system and a range of programs individuals can apply to,” Jen Psaki, White House press secretary, said Thursday.

Here’s why the massive group of would-be entrants crowded into Del Rio—and why a 1944 health law has become so contentious.

Who can and can’t enter the U.S.?

Since 1952, all migration into the U.S. has been subject to the Immigration and Nationality Act, an extensive collection of statutes that defines who may enter the country and who is turned away. The federal law defines individuals who lack U.S. citizenship and have not been naturalized as “aliens.” Non-citizens may be deemed ineligible for a visa or admission to the country for a variety of reasons including prior criminal convictions, evidence of drug abuse, or participation in a variety of human rights violations.

Some migrants, however, are considered refugees and may seek asylum under laws developed in the wake of World War II. The current law defines “refugee” as anyone who is unwilling or unable to return to their home country because they have been persecuted, or fear being persecuted, for their race, religion, nationality, membership in a social group, or political opinion. People who have been or have been threatened with forced abortion or sterilization also qualify for asylum requests as refugees. It is not known how many of the Haitians at the border fall into any of these categories.  

For the past quarter-century, non-refugees seeking entry without a visa have been subject to a process known as expedited removal. The 1996 Illegal Immigration Reform and Immigrant Responsibility Act empowered immigration authorities to order the immediate removal of any non-citizen they suspect is ineligible for entry unless they express their intention to apply for asylum or a fear of persecution that would qualify them for asylum.

At first, expedited removal was only used in limited cases in which a non-citizens attempted to enter the country using fraud or misrepresentation, either when they failed to present eligible documentation at the border or by sneaking into the country through another means. In 2004, the U.S. Department of Homeland Security (DHS) extended the practice to people apprehended within 100 miles of the U.S. border within 14 days of entry, and within up to two years for those apprehended at sea.

Then, in 2017, President Donald Trump directed DHS to implement expedited removal to the full extent of the law. The direction was first implemented in 2019. The new policy expanded expedited removal to cover non-citizens apprehended anywhere in the U.S. who have been in the country for less than two years.

The process “has far fewer procedural protections than formal removal proceedings,” wrote legislative attorney Hillel R. Smith in a 2020 report provided to Congress by the nonpartisan Congressional Research Service. Smith noted that those who fall under the policy have no right to counsel, a hearing, or an appeal, and that non-citizens are required to be detained pending expedited removal.

Pandemic-era changes to immigration enforcement

In March 2020, the Trump administration further adjusted immigration enforcement by invoking Title 42 of the U.S. Code. It’s part of the Public Health Service Act, a 1944 law giving the federal government authority to suspend “the introductions of persons” into the United States to prevent the spread of a communicable disease.

The 1944 law was not intended originally to apply to asylum seekers, says Blaine Bookey, legal director of the University of California's Center for Gender & Refugee Studies. "It’s a very obscure statute,” she says. “People expelled under Title 42 are not afforded even the minimal protections an expedited removal process would have.”

The center participated in two challenges to the legality of the policy in federal court along with a variety of other civil rights and immigrant rights groups. But though a federal judge ordered a preliminary injunction that would have halted Title 42 removals in November 2020, the practice continued, even after President Joe Biden took office in January 2021.

Temporary protection, vanishing hopes

Meanwhile, an already fragile political situation in Haiti was unraveling. In response, the DHS deemed Haitian nationals already residing in the U.S. eligible to seek temporary protected status (TPS). The special designation offers work permits and temporary protection from detention and deportation for people from countries that either are not safe to return to or that cannot adequately handle returnees.

“The problem is that it only protects people who were already in the United States,” says Stephen Yale-Loehr, a professor of immigration law practice at Cornell Law School. The current rule only covers Haitians who were in the country before July 29. “People who are entering now are not eligible for TPS.”

In July, the situation in Haiti deteriorated even further when Jovenel Moïse, the nation’s embattled president, was assassinated. Then, on August 14, a 7.2 magnitude earthquake struck Haiti, devastating communities along the southern peninsula, killing more than 2,200 people and injuring over 12,200. Two days later, tropical depression Grace made landfall, further endangering infrastructure and crops.

As word spread about Haiti’s temporary protected status, migrants began converging on the port of entry at the U.S.-Mexico border in Del Rio, Texas. Many of the Haitian nationals had left the country after its devastating 2010 earthquake, which killed more than 300,000 and left the capital city of Port-au-Prince in shambles. They had been residing in various Latin American countries; some of the migrants who also showed up in Del Rio are not Haitian nationals.

When the number of migrants amassed along the border swelled to more than 14,000, most under a temporary holding area beneath a bridge in Del Rio, the U.S. began expelling them under Title 42. On September 18, DHS announced a new strategy involving a surge of agents and officers to the area, the removal of people from the Del Rio crossing to other border crossings, and an increase in deportation flights to Haiti and other destinations.

“The Biden administration has reiterated that our borders are not open, and people should not make the dangerous journey,” the agency said in a statement.

Lost in the shuffle

Challenges to the legality of Title 42 continue, and on September 16 a federal judge ordered that Title 42 not be used to turn away or expel families with children. The Biden administration swiftly appealed and was given two weeks to halt the practice.

In the meantime, immigrants’ rights advocates like Bookey say people with legitimate asylum claims are getting swept up in the mass expulsions. “It’s totally unprecedented for administrations to use this kind of statute with people seeking protection,” she says. “Seeking asylum in the United States at our border, whether it’s at an official port of entry or outside an official port of entry, is totally legal.”

The United Nations has even indicated that the practice of expelling individuals without screening for asylum needs might violate international law. “The summary, mass expulsion of individuals currently underway without screening for protection needs is inconsistent with international norms” said Filippo Grandi, the UN’s highest ranking official on refugees, on September 21. He said Title 42 could constitute a violation of people’s right to non-refoulement, a principle that guarantees no one should be returned to a country where they could face torture or other irreparable harm.

A legacy of detention

Haitians are only one group seeking entry into the United States. But the amassment of so many at the Del Rio port of entry has plunged them into the spotlight. Bookey says Haitian migrants have long been painted as people in search of economic opportunity, not valid protection under asylum laws: “That couldn’t be further from the truth. I think there’s been a concerted effort to paint Haitians as economic migrants as a justification to deny them protection.”

It is not the first time large numbers of Haitians seeking U.S. entry have been detained and ultimately deported.

“Our detention system began with Haitians,” says Patrice Lawrence, co-director of the UndocuBlack Network, a nonprofit network of current and formerly undocumented Black people that advocates for migrants from across the Black diaspora. Lawrence cites the indefinite detentions of Haitian migrants escaping political instability and violence in the 1980s and 1990s.

More than 10,000 of them were intercepted at sea en route to the U.S. and detained at Guantanamo Bay Naval Base in Cuba; the vast majority were denied political asylum and returned to Haiti.

U.S. immigration laws have not evolved to match the reality of mass migrations and modern displacement, says Yale-Loehr. “The United States has to realize that more people are on the move in the world than ever before. We’re never going to be able to shut off our borders.” Those who are forcibly returned to Haiti will be forced to pursue other avenues to immigration, most of which are backlogged.

 Officials say they expect to have removed all of the migrants from Del Rio within days. But it will take much longer for them to rebuild their lives. “People cannot just pull themselves up by their bootstraps and be fine,” says Lawrence. “This is not a crisis. This is a catastrophe.”

 

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