By Marjorie Cohn / Truthout
As the repressive Trump-Biden Title 42 asylum policy ended on May 11, migrant rights advocates hoped that humane asylum rules would follow. Title 42, which allowed the U.S. government to expel asylum seekers with no due process, led to nearly 3 million expulsions since Donald Trump initiated the ill-conceived policy in 2020.
The Biden administration, however, “has made it a practice of recycling Trump-era policies” which will continue to harm asylum seekers, particularly those from Haiti, according to Guerline Jozef, co-founder and executive director of Haitian Bridge Alliance, a nonprofit that advocates for humane treatment of migrants.
“This latest episode in governmental efforts to ‘secure’ the border is another phase in a number of misguided policies that not only expose our nation’s failed immigration system, but also reveal the deep historical legacies of the U.S. government’s racist, imperialistic foreign policies,” Rutgers University Professor Leslie M. Alexander wrote in The Washington Post. “This pattern becomes particularly apparent when we consider that President Biden’s strategies overwhelmingly target Haitians.”
Support our Independent Journalism — Donate Today!
Since Biden took office, almost 27,000 Haitian asylum seekers have been returned to Haiti in what Alexander described as “the largest mass expulsion of asylum seekers in modern American history.”
In an open and notorious display of racism in 2021, U.S. Border Patrol agents cracked horse reins and herded Haitian migrants like cattle. When the U.S. authorities put them on a plane to Haiti, “they chained us like animals — our hands, feet and waist,” one Haitian migrant said, in a video clip aired on John Oliver’s “Last Week Tonight.”
On June 20, World Refugee Day, Amnesty International condemned the racist treatment of Haitian refugees. “Racist migration and asylum policies only exacerbate the harm already inflicted on people forced to endure and flee the humanitarian and human rights crises in Haiti,” said Erika Guevara-Rosas, Americas director at Amnesty International. “States across the Americas must fulfill their international human rights obligations without discrimination, assess the protection needs of Haitians seeking refuge in fair and effective asylum procedures and refrain from returning them to Haiti.”
Haitian migrants seek asylum to escape unbearable conditions in Haiti, many of which stem from the sordid history of U.S. occupation of Haiti and foreign meddling to further the system of racial capitalism.
Biden’s Harsh New Asylum Rules
“We welcome the long-awaited end of the Title 42 policy, but unfortunately the Biden administration has replaced it with a series of other policies that continue to block asylum seekers from accessing asylum and Convention Against Torture protection, in violation of international law,” Nicole Phillips, legal director of Haitian Bridge Alliance, told Truthout.
U.S. border policy is once again governed by Title 8, which says the government must screen asylum seekers to determine whether they have a credible fear of persecution on the basis of race, religion, nationality, political opinion or social group in their home countries.
Since Biden took office, almost 27,000 Haitian asylum seekers have been returned to Haiti.
But one of Biden’s new policies requires that migrants who travel through a third country before reaching the United States apply for asylum in that country and be denied before applying in the U.S. If they do not comply with this rule, there is a rebuttable presumption that they are “ineligible for asylum” and cannot seek asylum for five years. This rule will force migrants into the paths of human traffickers and abusive “coyotes” (smugglers).
Now asylum seekers must apply using an online app called CBP One, with which they can schedule an asylum appointment at a U.S. port of entry or apply for a two-year permit to live and work in the U.S. through the parole process, which requires a U.S. sponsor.
But CBP One has been plagued with technical problems and the demand is far greater than the approximately 1,000 appointments available on the app each day. Moreover, “CBP One app’s facial recognition technology … struggles with recognizing Black faces and raises serious privacy, discrimination, and surveillance concerns,” Amnesty International noted.
Phillips said Biden’s new rules have “a particularly detrimental effect on Haitian asylum seekers at the U.S.-Mexico border who face an impossible choice: remain in Mexico despite facing violence, kidnapping and anti-Black discrimination, or try to enter the United States and risk being deported to Haiti where a de facto government and gang violence are forcing people to flee for their lives.”
The Biden rules violate Title 8, which states that every asylum seeker present in the United States has a right to have their application considered. The ACLU and the Center for Gender & Refugee Studies are challenging the legality of the rules in federal court.
UN Race Convention Committee Urges Suspension of Forced Returns
On April 28, the UN Committee on the Elimination of Racial Discrimination(CERD), the body that administers the International Convention on the Elimination of All Forms of Racial Discrimination, a treaty the United States has ratified, called on State parties in the Americas to suspend forced returns in order to protect Haitians on the move.
CERD was “deeply concerned” about the collective expulsions of Haitians without proper individual assessments as well as reports that Haitians were victims of excessive use of force, cruel, inhuman and degrading treatment and racial profiling by law enforcement. CERD urged individual investigations of all allegations of abuse and racial profiling, protection of refugees, and the provision of rehabilitation and reparations.
A coalition of leading civil rights organizations sent a letter to Biden on May 25, calling for Temporary Protected Status (TPS) designations for foreign nationals in the United States, including nationals from Haiti, who can’t safely return to their countries. In November 2017, the Trump administration ended TPS for 59,000 Haitians. The letter was signed by the National Urban League, NAACP, Southern Poverty Law Center, Haitian Bridge Alliance, The Leadership Conference on Civil and Human Rights, and NAACP Legal Defense and Education Fund, Inc.
U.S. Intervention in Haiti Has Led to Horrific Conditions Today
“By all honest accounts, modern-day Haiti is an international crime scene, where Africans inhabiting that beautiful Caribbean Island are fighting a vicious gentrification project,” Haitian writer and activist Jean Saint-Vil wrote at Jafrikayiti. “Black Haitians have been and are still maligned by deliberate, organized, multinational white terrorism.”
Thousands of men, women, children, teenagers and young adults are homeless in Haiti today “because of the gangsterization of the state by armed groups” with guns supplied by the United States, City University of New York Professor Jean Eddy Saint Paul testified at the May 27 Haiti hearing of the International People’s Tribunal on U.S. Imperialism: Sanctions, Blockades and Coercive Economic Measures. I am serving as a juror for the tribunal. Ninety-nine percent of crime guns recovered in Haiti in 2016 came from the U.S., Saint Paul said, citing the Center for American Progress.
There are at least 300 gangs, more than half of which operate in Port-au-Prince where “they control or influence 80 percent of the area,” the UN Office for the Coordination of Humanitarian Affairs (OCHA) reported in April.
Close to 90 percent of Haitians live below the poverty line and one-third of them live in extreme poverty. There is an alarming rate of sexual violence and half of the population is suffering from severe food insecurity, OCHA said. Thousands of people have fled their homes because of the violence.
In 1804, the Haitian people rose up and achieved independence “by destroying the plantation system, annihilating the source of European profit, and shocking the system of white supremacy that had emerged around it,” Peter James Hudson, author of Bankers and Empire: How Wall Street Colonized the Caribbean, testified to the tribunal.
“Haiti became the first and only country in the Americas where enslaved Africans threw off their shackles, fought for their freedom, defeated European powers, established their own nation and swore to defend their freedom and independence until their last breath,” Alexander wrote in The Washington Post.
“Haiti’s independence in 1804 was an attack on the system of white supremacy and an attack on the system of white profits, and Haiti and all Black people have been paying the price ever since,” Hudson said.
“White people across the Atlantic World conspired to destroy Haiti, crush its independence and ensure that an independent Black nation could never thrive,” according to Alexander. It took the United States nearly 60 years to recognize Haiti’s sovereignty and afford it diplomatic recognition. And that happened only because the U.S. thought formal recognition would pave the way to “U.S. imperial expansion” into Haiti.
For two decades, from 1915 to 1934, the United States maintained a brutal military occupation of Haiti, installing an economic and political system that would serve U.S. financial interests. Although U.S. troops withdrew from Haiti in 1934, “the U.S. government ruthlessly retained fiscal control over the country until 1947,” Alexander noted. The United States later provided extensive support to the vicious Duvalier regime from 1957 to 1986.
In 1990, Jean-Bertrand Aristide defeated a neoliberal former official of the World Bank to become Haiti’s first democratically elected president. The United States was not pleased when Aristide tried to reverse Haiti’s neoliberal policies.
In 2004, Aristide was forced to leave Haiti in what was widely believed to be a kidnapping as part of a U.S.-backed coup and involuntarily flown to the Central African Republic. The George W. Bush administration ensured that Aristide’s progressive policies were reversed.
Although U.S. policies caused the economic crisis in Haiti during the 1980s, the Reagan administration cracked down on Haitians fleeing to seek asylum in the United States.
Six successive presidential administrations — those of George H.W. Bush, Bill Clinton, George W. Bush, Barack Obama, Donald Trump and now Joe Biden — continued to deter Haitian asylum seekers.
“Haiti has recurrently been a victim of Western imperialism coupled with neoliberalism that has been actively denigrating and dehumanizing Blacks, and more particularly Haitians, at the moral, spiritual, political and economic level,” Saint Paul told the tribunal.
Ironically, Haitians are fleeing to the United States, whose interference led to the conditions that caused them to flee their country.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, the bureau of the International Association of Democratic Lawyers, and the U.S. representative to the continental advisory council of the Association of American Jurists. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” Radio.