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.
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.
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.
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.
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."
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.
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."
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.
Photos: N. Conway, ajplus, redfishstream, L. Rouijeune)
This article was published in
Volume 51 Number 10 - October 10, 2021