Opposition to Illegal and Cruel Treatment of Haitian Refugees

Haitian refugees encampment under a bridge in Del Rio Texas in September 2021.

In an internal memo dated October 2, Harold Koh, a U.S. State Department legal advisor, called the use of the "public health authority" -- known as Title 42 -- "illegal" and "inhumane" and hence, is abandoning his role in the Biden Administration.

Koh explained that when the Trump Administration first issued its Title 42 order in March 2020 during the growing COVID-19 pandemic, "it was the first time that the Centers for Disease Control and Prevention (CDC) had invoked its authority under this statute. The extraordinarily broad order "suspended the right to introduce certain persons into the United States from countries where a quarantinable communicable disease exists" but limited that suspension to persons travelling from Canada or Mexico." Through Title 42, the Department of Homeland Security (DHS) was made responsible for the implementation of the order at the border. "But the breadth and subsequent implementation of the Title 42 authority," Koh continued, "now raises significant concerns about whether the United States is living up to its binding obligations under international law."

Koh also noted that he has spent much of his legal career seeking to ensure that the U.S. abides by its non-refoulement obligations under the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), and the 1967 Protocol Relating to the Status of Refugees (Refugee Protocol), which modifies and incorporates the terms of the 1951 Convention Relating to the Status of Refugees (Refugee Convention). CAT, he pointed out, prohibits State Parties from expelling, returning, or extraditing anyone to any State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. He added that the Refugee Convention, subject to certain exceptions, prohibits State Parties from expelling or returning refugees to "the frontiers of territories" where their life or freedom would be threatened on one of its designated grounds.

Koh noted that the Biden Administration's current implementation of the Title 42 authority "continues to violate our legal obligation not to expel or return ("refouler") individuals who fear persecution, death, or torture, especially migrants fleeing from Haiti" and said that his concerns "have only been heightened by recent tragic events" in that country.

Title 42 expulsions, he said, "are currently being executed to return Mexican, Guatemalan, Honduran, and Salvadoran families and single adults to their countries of origin, and more recently, Haitians to Haiti."

Citing U.S. Customs and Border Protection (CBP) statistics, Koh revealed that nearly 700,000 people have been expelled under Title 42 since February of this year, and that this past August alone, 91,147 people were forcibly removed from the U.S.

The former legal advisor also drew attention to the existence of "disturbing reports that some migrants were not even told where they were being taken when placed on deportation flights, learning only when they landed that they had been returned to their home country or place of possible persecution or torture, i.e. the exact act of refoulement that is forbidden by the CAT and the Refugee Convention!"

There is also no basis, he noted, for defending Title 42 expulsions on the ground that the "danger to security" exception in the Refugee Convention applies or allows the U.S. Government to exclude individuals on a public health basis. Even the UN Refugee Agency (UNHCR), he added, "explained in its March 2020 legal guidance on the COVID-19 response that state entry measures should not prevent people from seeking asylum from persecution and that states may not deny entry to people at risk of refoulement."

Mistreatment of Haitian refugees in Del Rio, Texas, September 2021.

Koh also informed that on September 17, 71 civil society organizations in the U.S. sent a joint letter to President Biden, Homeland Security Secretary Mayorkas and Attorney General Garland on Title 42, calling on the administration "to immediately end its embrace, defence, and advancement of illegal and cruel Trump administration policies that harm families and people seeking protection and bolster xenophobic rhetoric by treating people seeking protection as threats."

Continuation of Title 42 flights to Haiti, he said, is particularly unjustifiable, because of the "extraordinary and temporary conditions" that "prevent its nationals from returning safely." Temporary Protected Status (TPS) presently applies to Haitians already present in the United States as of July 30, regardless of their immigration status. The Haitian TPS designation, announced in May, cited "serious security concerns, social unrest, an increase in human rights abuses, crippling poverty, and lack of basic resources, which are exacerbated by the COVID-19 pandemic." He noted, "And that was before the assassination of President Moïse thrust the country into even greater political instability and a devastating earthquake on August 14, 2021 and Tropical Depression Grace on August 16, 2021" he noted.

Koh also cited the United Nations Office for the Coordination of Humanitarian Affairs, which notes that "Haiti is still reeling from the July 7 assassination of President Jovenel Moïse and still facing an escalation in gang violence since June that has affected 1.5 million people, with at least 19,000 displaced in the metropolitan area of Port-au-Prince." It also said: "Some 4.4 million people, or nearly 46 per cent of the population, face acute food insecurity, including 1.2 million who are in emergency levels ... and 3.2 million people at crisis levels .... An estimated 217,000 children suffer from moderate-to-severe acute malnutrition."

Amongst other things, Koh proposed that the Biden administration immediately suspend all Title 42 flights to Haiti "based on the dire humanitarian conditions there."

Demonstration in Boston, September 24, 2021 against deportation of Haitians.

(Politico. Photos: N. Conway, ajplus, redfishstream, L. Rouijeune)

This article was published in

Volume 51 Number 10 - October 10, 2021

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