The Biden administration has so far deported more Haitians in a few weeks than the Trump administration did in a whole year, with the use of a highly controversial Trump-era public health order denying asylum seekers basic legal rights, according to a new report.
The report, The Invisible Wall, published on Thursday by a coalition of immigrant rights groups, focuses on Title 42, part of the 1944 Public Health Service Act invoked a year ago by the Trump administration as grounds for summary expulsion of migrants because of the supposed health risk they posed during the Covid pandemic.
The Biden team has sought to place a moratorium on deportations of immigrants already in the country (though that moratorium has been blocked by a court order), but it has not stopped Title 42 expulsions of newly arrived migrants. The report found the pace of deportation flights to Haiti in particular had increased dramatically.
“More Haitians have been removed to Haiti in the weeks since President Joe Biden and Vice President Kamala Harris took office than during all of fiscal year 2020,” according to the Invisible Wall report, published by the Haitian Bridge Alliance, the Quixote Center, and the UndocuBlack Network.
In part at least, the rise in expulsions mirrors an increase in arrivals of Haitians at the border, misled by rumours and deliberate disinformation from people smugglers, that the Biden administration had relaxed the regime at the border. Most of the new arrivals have been waiting in Mexico for months hoping for a change in the rules affecting Haitians. Some of the deportees may also have been held in detention centres in the US.
“What gave Donald Trump his wall was Title 42. That has been incredibly more effective than any physical barrier,” said Ruben Garcia, the director of Annunciation House, a migrant support centre in El Paso, Texas. “This was never about the pandemic to begin with. This was precisely about border enforcement.”
The department of homeland security (DHS) pointed out that 94% of the Title 42 expulsions are migrants from Mexico and the Northern Triangle countries of Central America, with Haitians accounting for less than one per cent.
“Our immigration system was decimated over the last four years, and we are starting from square one to build an orderly system that treats people humanely and doing so in a way that protects public health in the midst of a deadly pandemic,” the DHS said in a statement to the Guardian.
“The administration has been clear that the border remains closed, and we are urging people not to come. We are building the processes that will allow them to make a claim for humanitarian relief without making the perilous journey to the border.”
It has ended Trump’s “Remain in Mexico” policy, (known formally as the Migrant Protection Protocols, or MPP) which required asylum seekers to stay south of the border while their cases were processed. The change applies to Latin American migrants, but reports from the border suggest that Haitian asylum seekers in Mexico heard about the change and hoped it would make it easier for them to ask for asylum.
“[T]he partial opening of the border has caused confusion and misinformation in Haitian communities stuck in Mexico under the Title 42 policy,” the report said.
“Marginalized and isolated in Mexico by race, culture and language, Haitian migrants generally do not understand that MPP does not apply to them. Often misled by misinformation within the community or false rumors from ‘coyotes’ [smugglers or guides], Haitian migrants optimistically hope with MPP they can now seek protection if they enter the United States outside of a port of entry.”
The new administration has sought to combat those perceptions in the hope of forestalling a wave of new immigration from Haiti. On Wednesday the US embassy in Port-au-Prince put out a message from Biden in Creole on its Twitter account, saying “Mwen ka di sa byen klé: pa vini” (“I can say quite clearly, don’t come over.”)
The report points out that the Title 42 policy was forced on a reluctant Centers for Disease Control and Prevention by the Trump White House, ordered by Vice President Mike Pence and driven by the hardline anti-immigrant presidential adviser at the time, Stephen Miller.
As the policy requires the deportees to be crammed together in detention centres and then deported on flights, the public health justification for Title 42 rings hollow, the report argues.
“As ICE’s [Immigration and Customs Enforcement agency] detention system became a massive Covid-19 hotspot in 2020, removals posed a significant danger due to the potential spread of the virus both within immigration detention facilities and to receiving countries like Haiti,” the Invisible Wall report states.
“Despite the danger, Ice failed to take adequate steps to prevent, treat or test for Covid-19,” it added.
In June 2020, Ice reported that only 30% of detainees had been tested for Covid-19, and, of those tested, about 30% tested positive for the virus.
Furthermore, even refugees who have been in quarantine and tested negative for Covid have still been expelled on the same health pretext.
Migrant advocacy groups argue Title 42 is a violation of US obligations under international law to offer asylum seekers due process. Those expelled under the policy are routinely denied access to a lawyer or the opportunity to claim a “credible fear” of what would happen to them in Haiti.
In theory they can request a screening under the Convention Against Torture (CAT), and make a credible fear claim to an immigration official. But unlike asylum seekers, they cannot have an attorney present, or appeal against the decision of the official.
“The CAT screenings appear to be a mere formality,” the report states. “In conversations with multiple attorneys, no one had heard of a single person detained under the Title 42 policy who had passed the CAT screening.”