Haitian Migrants at the Border: An Asylum Law Scholar explains how US Skirts Legal & Moral Duties

Haitian's at U.S. Mexican Boarder

The U.S.’s top envoy to Haiti resigned abruptly on Sept. 22, 2021, over the Biden administration’s “inhumane” treatment of Haitian migrants crossing the border via Mexico into Texas.

The resignation came amid debate over the U.S. decision to deport thousands of Haitians entering the U.S. in search of asylum or a better life. Criticism over the policy mounted as images of U.S. Border Patrol agents on horseback and carrying whip-like cords while encountering migrants gained widespread media attention and criticism from the White House. Border agents denied using whips on migrants.

The Conversation asked Karen Musalo, an expert on refugee law and policy, to unpack what went on at the U.S. border and whether the Biden administration is shirking its moral and legal obligations in deporting the Haitian migrants.

What’s behind the recent surge of Haitian refugees at the Texas border?

Haiti is beset by extraordinarily desperate conditions of political chaos and natural disasters, as well as the COVID-19 pandemic. The assassination of President Jovenel Moïse in July 2021 catapulted the country into political turmoil. The post-assassination power struggle exacerbated pre-existing political violence and dysfunction. Violent gangs, often with ties to the state, are increasingly a threat.

In addition, Haiti suffered a devastating 7.2 magnitude earthquake in August, just two days before being hit directly by tropical storm Grace, with a combined toll of over 2,200 dead, 12,000 injured and hundreds of thousands displaced, many in remote regions that have yet to receive aid. The pandemic has exacerbated these woes. Less than one-half of 1% of the population has received even a first dose of a vaccine.

This has undoubtedly swelled the number of people trying to leave the nation. But many of the migrants arriving in the U.S. in recent weeks left Haiti before the recent turmoil. Haitian migrants have been trapped in Mexico for several years under various Trump-era policies that limited, and then eliminated, the possibility for them to request asylum in the United States. At the same time, others who left Haiti in years past for countries in South America have suffered from deep antipathy and racism in their host countries, living in perilous conditions with only precarious legal status at best.

It appears many asylum seekers in Mexico, including Haitians, took heed of Biden’s promises during the presidential election campaign to restore the asylum system. That may have been a factor in their decision to present themselves at the Texas border seeking the protection guaranteed under law for those fleeing persecution.

It should be remembered that the U.S. has long played a role in Haiti’s troubles. When Special Envoy for Haiti Daniel Foote resigned, coverage focused on his protest against what he described as the inhumanity of returning Haitians to a “collapsed state … unable to provide security or basic services.” Overlooked was his equally damning indictment of the U.S. as a puppet master in Haiti’s political breakdown, for example by supporting the unelected prime minister and his political agenda.

Doesn’t the US have a legal obligation to process asylum seekers?

Both international and U.S. law recognize the basic human right to seek asylum. The U.S. has ratified two treaties, the 1967 Protocol Relating to the Status of Refugees and the 1984 Convention against Torture, which prohibit the U.S. from returning people to countries where they risk persecution or torture. As a practical matter, this means that people must be able to request asylum at the U.S. border, or within U.S. territory, so that they have the opportunity to prove whether or not they fit within the category of persons legally protected from forced return.

This international legal framework has been codified in U.S. law, primarily through the Refugee Act of 1980, along with later statutes and regulations. It is universally acknowledged, including by the Supreme Court, that in passing these laws Congress intended to bring U.S. law into conformity with the United States’ international treaty obligations.

It is entirely legal to approach U.S. borders and request asylum. Statements by the administration that people should not come, that they are doing something illegal when they seek protection, and that there is a right way and wrong way to seek asylum are, in my opinion, not only callous and cruel but also false statements of the law.

The White House has asserted that Haitians are not coming into the country through “legal methods,” which would indeed be impossible since all legal methods have been foreclosed to them.