The US is bracing for a potential Haitian migrant crisis Biden needs to step up

Thousands of Haitians have been displaced amid escalating gang violence in the aftermath of Haitian President Jovenel Moïse’s assassination on July 7. Many of them are expected to seek refuge in the US, but while the Biden administration has taken steps to welcome some, it has threatened others with the prospect of repatriation and shut the door on those arriving via the southern border.

In addition to pledging millions of dollars in aid to Haiti, the Biden administration will soon allow more than 100,000 Haitians who arrived in the US before May 21, 2021, to apply for Temporary Protected Status, which is typically offered to citizens of countries suffering from natural disasters or armed conflict. It will allow those people to live and work in the US for at least 18 months after the government publishes a notice in the Federal Register, which the White House said is expected “within the coming days.”

But that won’t help anyone who has decided to leave Haiti in light of the recent constitutional crisis and power struggle that has unfolded since Moïse’s assassination, nor will it aid the thousands of Haitians who have long been stranded in Mexico due to the US’s pandemic-related border restrictions.

At the same time, the Biden administration has discouraged Haitians, as well as Cubans fleeing their communist regime’s recent crackdown on anti-government protesters, from trying to reach the US by boat. Those who try will put their lives at risk, be intercepted by the US Coast Guard, and will not be permitted to enter the US, Homeland Security Secretary Alejandro Mayorkas said during a July 13 press conference.

“The time is never right to attempt migration by sea,” he said. “To those who risk their lives doing so, this risk is not worth taking. Allow me to be clear: if you take to the sea, you will not come to the United States.”

White House press secretary Jen Psaki said Wednesday that those individuals will either be repatriated back to Haiti or, if they can demonstrate the need for humanitarian protection, resettled in another country. It’s an echo of Bush- and Clinton-era policies in the early 1990s, when the federal government intercepted Haitian boats, detained HIV-positive Haitians indefinitely in Guantanamo Bay at what one federal judge referred to as a “prison camp,” and sought to repatriate them.

Immigrant advocates see the Biden administration’s response so far as an abandonment of its responsibilities to Haitians seeking humanitarian protections.

“The message is, ‘You are not welcome,’” said Denise Bell, a researcher for refugee and migrant rights at Amnesty International. “This is a message that the US is not fully upholding its human rights obligations around refugee protection. … We’re deeply concerned that the US continues offshoring its human rights responsibilities.”

But there are ways the Biden administration could open orderly, legal pathways for Haitians to come to the US and ensure they get the opportunity to make claims for protection. It can unilaterally lift pandemic-related restrictions at the US-Mexico border, guarantee that Haitians can come to the US legally via a parole program, and prevent them from being detained and deported back to dangerous conditions in their home country.

The US continues to turn away the majority of migrants arriving at the southern border â€" including Haitians â€" under pandemic-related border restrictions, with exceptions for unaccompanied minors, some families from Central America with young children, and people who were sent back to Mexico to wait for their court hearings in the US.

Last March, at the outset of the pandemic, then-President Donald Trump invoked Title 42, a section of the Public Health Service Act that allows the US government to temporarily block noncitizens from entering the US “when doing so is required in the interest of public health.”

The policy has allowed US immigration officials at the southern border to rapidly expel more than 844,000 migrants since the outset of the pandemic. Though scientists at the Centers for Disease Control and Prevention (CDC) opposed the policy initially, arguing there was no legitimate public health rationale behind it, then-Vice President Mike Pence ordered the agency to follow through with it anyway.

Biden has not overturned the policy, despite outcry from immigrant advocates and humanitarian groups who say it prevents migrants from exercising their right under US and international law to seek asylum.

“People who come [to] the US-Mexico border to ask for asylum are not doing so illegally,” Guerline Jozef, co-founder and executive director of Haitian Bridge Alliance, an organization that provides services to Black migrants at the border, said on a recent press call. “It is their legal right.”

Haitian Bridge Alliance estimates that 5,000 to 10,000 Haitians are still stuck in Mexico on account of Title 42, and most of them have been waiting between 18 months and five years for a chance to apply for asylum. They have reported facing discrimination in Mexican border towns, where they fear retribution from police or local armed groups.

And though Central American families have crossed the border and been released into the US, many Haitian families have been sent back to their home country. Immigration officials have chartered 34 flights to Haiti since Biden’s inauguration â€" including one the day before Moïse’s assassination â€" and pregnant women and infants have been among the passengers, Jozef said.

Starting in 2014, the Obama administration allowed some 8,000 Haitians to come to the US under what is known as the Haitian Family Reunification Parole Program. Certain eligible US citizens and green card holders could apply for parole on behalf of their family members in Haiti who already had pending visa applications, but would have otherwise had to face years-long wait times.

Parole is granted only in situations where the Department of Homeland Security finds there are pressing humanitarian concerns or determines it would significantly benefit the public. The program was designed to help Haiti recover from a devastating 2010 earthquake that displaced hundreds of thousands of people, in part by increasing the remittances that Haitian migrants could send to their family back home.

The Trump administration, however, terminated the program in 2019. Psaki, Biden’s press secretary, said Wednesday that the administration was weighing whether to revive parole for Haitians as well as Cubans. Over 130 human rights, humanitarian, immigration, and women’s rights organizations have supported the idea, but the groups are also calling for an even broader parole program that would apply to any Haitian arriving at a US border.

That would provide an option both for those who arrived in the US after the May cutoff and for those who continue to arrive. But in the meantime, Psaki noted, those migrants would be able to ask for asylum or other humanitarian protections.

Reinstating a Haitian parole program would offer those fleeing the country an orderly, legal path to reach the US that would “encourage people to use mechanisms that will provide them safety,” as opposed to embarking on a treacherous journey to the US by boat, Bell said. In 2019, 28 Haitians died at sea while en route to the US.

But legal pathways such as parole “should always be a complement to their rights to seek asylum,” she added. “It shouldn’t mean that somebody who does come to the border and asks for asylum is punished, but that they have other pathways to find safety.”

The Biden administration can unilaterally order immigration agencies to halt enforcement actions against Haitians and prevent them from being deported. That would merely require issuing guidance to US Immigration and Customs Enforcement officers, agents, and trial attorneys.

It can also find ways to remedy unjust deportations of Haitians that occurred under the Trump administration. To that end, the Biden administration has already indicated it intends to review thousands of Trump-era expulsions â€" not just those involving Haitians â€" and bring some of them back to the US.

But the problem remains that Haitians face unequal treatment in the asylum system. Haitians intercepted by US authorities at sea face what’s called a “shout test” â€" they can only get a screening interview for asylum or other humanitarian protections if they voice or otherwise indicate concern about returning to their home country.

What’s more, Haitian Creole speakers are at a particular disadvantage, given that the US does not require any translators to be present when interdicting boats, so they might not be able to articulate their fears effectively.

“What’s really a form of continuing inequality before the law for Haitians is how few are ever considered for resettlement when they are intercepted at sea, and then for people who do make it to the US â€" whether by sea or over land on the southern border â€" how few are actually granted asylum,” Bell said. “I don’t think that’s a function of the validity of their claims. I think it’s a form of systemic racism.”

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