Notwithstanding President Joe Biden’s promise to pursue a more humane immigration policy than his predecessor, the Department of Homeland Security (DHS) has been illegally expelling Haitian migrants, with the Border Patrol cracking whips and herding them like cattle. When U.S. authorities put them on a plane to Haiti, “they chained us like animals — our hands, feet and waist — and once we arrived, they unchained us so journalists wouldn’t see us,” one Haitian man told John Oliver on “Last Week Tonight.”
When confronted about his administration’s use of horse reins as whips to menace Black migrants at the southern U.S. border, Biden said it was “horrible … to see people treated like they did: horses nearly running them over and people being strapped. It’s outrageous.”
Biden declared, “I promise you, those people will pay,” and noted that a federal investigation is underway. “There will be consequences. It’s an embarrassment. But beyond an embarrassment, it’s dangerous; it’s wrong. It sends the wrong message around the world. It sends the wrong message at home. It’s simply not who we are.”
Biden’s denial is reminiscent of that of Barack Obama, who reacted to the 6,700-page report of the Senate Select Committee on Intelligence that documented a widespread program of U.S. torture by saying that torture “is contrary to who we are.”
But like torture, vicious beatings of Black people have been sanctioned by the state throughout U.S. history. “The images of U.S. Customs and Border Protection (CBP) and Department of Homeland Security (DHS) agents on horseback whipping and assaulting Haitian refugees blatantly display the clear historical relationship between slavery and modern immigration policy, policing, and the carceral state,” the National Lawyers Guild said in a statement.
The Biden administration has expelled more than 4,600 Haitian migrants from the United States since September 19, conducting 43 flights from Del Rio, Texas, to Haiti, which is still reeling from its recent devastating earthquake, flooding from a tropical storm and a presidential assassination. Most of the people in the Haitian capital of Port-au-Prince have no access to drinking water, electricity or garbage collection.
The U.N. Refugee Agency (UNHCR), the International Organization for Migration (IOM), the United Nations Children’s Fund (UNICEF) and the UN Human Rights Office (OHCHR) called on states to refrain from expelling Haitians without a proper assessment of their individual protection needs and urged them to uphold fundamental human rights. In their statement, they cited the escalation of violence and insecurity in Haiti, noting that at least 19,000 people were internally displaced in Port-au-Prince during the summer of 2021. In addition, more than 20 percent of girls and boys have been victims of sexual violence, and nearly 24 percent of the population (over half of them children) live below the extreme poverty level of $1.23 per day. Nearly 46 percent of the population (4.4 million people) face acute food insecurity, and 1.2 million are at emergency levels, with 3.2 million people at crisis levels. The four organizations estimated that 217,000 Haitian children suffer from moderate-to-severe acute malnutrition.
Expelling Haitian migrants to face these horrific conditions is not only cruel; it is also racist and illegal.
The Use of Title 42 to Expel Asylum Seekers Is Racist, Illegal and Damaging
“The whipping of Haitians by mounted Border Patrol agents was spectacularly racist, but the use of Title 42 to expel asylum seekers is equally racist, and illegal, and much more damaging,” attorney Brian Concannon, a board member at the Institute for Justice & Democracy in Haiti, told Truthout.
Indeed, on September 23, Daniel Foote, U.S. special envoy for Haiti, handed in his resignation to Secretary of State Antony Blinken, stating he will “not be associated with the United States inhumane, counterproductive decision to deport thousands of Haitian refugees” from the U.S.-Mexico border. Foote called the U.S. policy toward Haiti “deeply flawed.”
Biden is continuing former president Donald Trump’s policy of misusing Title 42 in violation of U.S. treaty obligations. The Title 42 program stems from a misapplication of an obscure public health law, the Public Health Service Act of 1944. The act was designed to grant quarantine authority to health officials to expel any persons, including U.S citizens, who arrive from a foreign country. Title 42 was never intended to distinguish between noncitizens who could or could not be removed or expelled from the United States, according to Human Rights Watch.Biden is continuing former president Donald Trump’s policy of misusing Title 42 in violation of U.S. treaty obligations.
Section 265 of U.S. Code Title 42 empowers the director of the Centers for Disease Control and Prevention (CDC) to “prohibit … the introduction” into the U.S. of individuals if the director believes “there is serious danger of the introduction of [a communicable] disease into the United States.”
As Trump did, Biden is disingenuously citing the excuse of potential health hazards from COVID to justify continuing the use of Title 42 to expel migrants, in spite of the consensus by experts that there is no correlation between the entry of migrants and the danger of increased risk of COVID infection.
“Title 42 was implemented by Trump immigration adviser Stephen Miller as part of his efforts to maintain a white majority in the United States,” Concannon said. “The Biden administration knows the policy is illegal, racist and unjustified on public health grounds, but it keeps invoking it to reduce criticism from white supremacist groups.”
Federal Judge Grants Injunction Against U.S. Expulsion of Migrants, But Appellate Court Pauses Injunction
On September 16, U.S. District Court Judge Emmett G. Sullivan of the D.C. Circuit issued a preliminary injunction against the Department of Homeland Security’s use of Title 42 to expel migrants from the United States. Judge Sullivan’s 58-page ruling would require the Biden administration to process migrant families with children who want to apply for asylum. But the judge suspended the injunction for 14 days to allow the government time to appeal his ruling.
The plaintiffs asserted that the Biden administration’s use of Title 42 to deport migrants violates the Administrative Procedure Act, the Immigration and Nationality Act and the Public Health Services Act.
In granting the injunction, Judge Sullivan found that the plaintiffs were likely to prevail on the merits of their claim that the administration’s use of Title 42, which has never been applied in the immigration context, is illegal. The judge agreed with the plaintiffs’ contention that “‘nothing in [Section] 265, or Title 42 more generally, purports to authorize any deportations, much less deportations in violation of’ statutory procedures and humanitarian protections, including the right to seek asylum.”
Judge Sullivan also concluded that plaintiffs would suffer irreparable harm if an injunction were not granted, because they would be sent to their home countries which “are among the most dangerous in the world due to gang, gender, family membership, and other identity-based violence.”
Finally, Judge Sullivan determined that a preliminary injunction would not harm the government, and it would promote public health to quickly process, quarantine and regulate people who arrive at the border. He accepted the plaintiffs’ claim that the public interest requires the U.S. to refrain from wrongfully sending people to countries where they are likely to face substantial harm.
But on September 30, a three-judge panel of the D.C. Circuit Court of Appeals paused Judge Sullivan’s injunction while it reviews Biden’s appeal. As Lee Gelernt, who filed the lawsuit on behalf of the ACLU, told CBS News, this is just the first step in the appellate litigation. “Nothing stops the Biden administration from immediately repealing this horrific Trump-era policy,” Gelernt said. “If the administration is making the political calculation that if it acts inhumanely now it can act more humanely later, that calculation is misguided and of little solace to the families that are being sent to Haiti or brutalized in Mexico right now.”
Title 42 Policy Violates U.S. Treaty Obligations
The Title 42 policy violates the Refugee Convention, which grants noncitizens the right to asylum if they can demonstrate a well-founded fear of persecution due to race, religion, nationality, membership in a particular social group or political opinion, if they are sent back to their home countries. The Refugee Convention (which the United States has ratified, making it part of U.S. law under the Constitution’s Supremacy Clause) forbids refoulement, that is, sending a person to a country where it is more likely than not that the individual would face persecution on one of the protected grounds.
Furthermore, the 1967 Protocol Relating to the Status of Refugees (to which the U.S. is also a party) forbids the expulsion of asylum seekers to face threats to their lives or liberty without an opportunity to apply for asylum and have a full and fair examination of their claim.
The Biden administration’s use of Title 42 also violates the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (which the U.S. has ratified). That treaty contains a non-refoulement provision. It forbids sending an individual to a country where there is a substantial likelihood he or she would be subject to torture.
As UNHCR has noted, the International Covenant on Civil and Political Rights (which the U.S. has ratified) enshrines
the obligation [of the U.S.] not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by Articles 6 [right to life] and 7 [right to be free from torture or other cruel, inhuman or degrading treatment or punishment] of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed.
UNHCR has confirmed repeatedly during the pandemic that expelling asylum seekers and migrants at the border without an individualized determination of the need to protect them violates the non-refoulement provisions of international law. The UNHCR Assistant High Commissioner for Protection Gillian Triggs stated, “The right to seek asylum is a fundamental right. The COVID-19 pandemic provides no exception.”
Public Pressure on Biden to End Inhumane and Illegal Policy
Congressmembers and civil and human rights organizations are demanding that Biden halt the expulsions of Haitian and other Black migrants.
Four Black immigration organizations — the Haitian Bridge Alliance, UndocuBlack Network, African Communities Together and Black Alliance for Just Immigration — filed a complaint with the DHS’s Office of Civil Rights and Civil Liberties, demanding that the Biden administration halt its deportations of Haitian migrants.
Fifty-six members of Congress wrote a letter to DHS Secretary Alejandro Mayorkas and Health and Human Services Secretary Xavier Becerra, urging the administration to indefinitely halt deportations to Haiti, release detained Haitians and support administrative closure of removal cases, grant humanitarian parole to Haitians arriving at the southern U.S. border, and end the barrier to Haitian vaccine distribution.
Thirty-nine human and civil rights leaders called on the Biden administration to restore asylum access at ports of entry and rescind the CDC’s expulsion order, stop deportation flights to Haiti, and grant those seeking safety at U.S. borders their legal right to apply for asylum. The leaders further stated that the administration must end its reliance on incarceration for immigration processing and instead work with community-based legal and social service providers.
Democratic congressmembers, including Rep. Ayanna Pressley (D-Massachusetts), co-chair of the House Haiti Caucus, held a press conference outside the Capitol and called for the suspension of deportation flights. They demanded accountability for what Pressley called “the cruel, the inhumane and the flat-out racist treatment of our Haitian brothers and sisters at the southern border.”
Meanwhile, the Biden administration is seeking a private contractor to operate a migrant detention facility at Guantánamo Bay and is hiring guards who speak Spanish and Haitian Creole. But after a public outcry about sending Haitian migrants and asylum seekers to Guantánamo, White House Press Secretary Jen Psaki told reporters, “There’s never been a plan to do that.” In the early 1990s, George H.W. Bush used the base as a refugee camp to detain 12,000 Haitians fleeing their country after President Jean-Bertrand Aristide was deposed in a military coup.
Since the horrific photos of mounted Border Patrol agents menacing Black migrants with whips became public, voices against the Biden administration’s cruel, racist and illegal policies have reached a crescendo. This pressure must continue until Biden makes good on his promise to implement a truly humane immigration policy.Well this is awkward.Friend, we urgently need your support. Yes it can be awkward to ask for help, but we’ll do whatever it takes to ensure Truthout survives — we believe in this work that much.Trustworthy, fearless reporting is desperately needed, but there are far too few media sources that can deliver. Independent news outlets like this one are irreplaceable, so if you appreciate what we publish, please donate what you can, or consider starting a new monthly donation to sustain and strengthen honest journalism. DONATE NOWCopyright © Truthout. May not be reprinted without permission.Marjorie Cohn
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the bureau of the International Association of Democratic Lawyers and the advisory board of Veterans for Peace. Her books include Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. MORE BY THIS AUTHOR…