The CDC order is designed to accomplish under the guise of public health a dismantling of legal protections governing border arrivals that the Trump administration has been unable to achieve under the immigration laws. Lucas Guttentag, Just Security
Between October 5th and October 20th, ICE Air Operations flew 10 “deportation” flights to Haiti. All except one flight departed from Laredo, Texas, the other left from Brownsville. From April of this year, until late September, ICE deportation flights to Haiti occurred about once every other week. These flights were rarely full – though confirmation of numbers is never available from ICE. So, what happened?
Over the last two weeks, what we’ve seen are not deportations in the regular sense. If someone is deported that is the last step in a series of activities after a person has been deemed removable from the interior, or inadmissible at the border. In other words, prior to a deportation there is a process within which one can fight for asylum, or against removal on other grounds. These processes have many problems, but there is nevertheless an opportunity to present evidence and seek relief from removal prior to a deportation.
What we have been seeing over the last two weeks is something different. These flights are part of a different program involving the summary expulsion of people; none of whom have had any realistic chance to apply for asylum. They have been apprehended by Border Patrol and then quickly removed.
The basis for these removals is a March 20, 2020 order issued by the Centers for Disease Control and Prevention that effectively closes the border to all non-essential travel, claiming authority under Title 42 of the Public Health Services Law. These “Title 42” removals have been ongoing since March, leading to the expulsion of 200,000 people (data accessed Oct. 22). Under the provisions of the order, people are removed immediately to the last country of transit (for 99% of people apprehended this is Mexico), or sent to their home country if Mexico can’t (or won’t) receive them. According to the administration, 90% of the people apprehended at the border are expelled within 2 hours.
When the order was issued, Mexico said that it would only accept people expelled if they were Mexican nationals, or from Honduras, Guatemala or El Salvador. This means people from elsewhere, eg., Haiti, Cuba, Venezuela, Pakistan, Cameroon, etc. could not simply be turned back to Mexico (though no doubt many have been anyway). What has happened to them?
There has not been much information about this. From advocates we know who are working with Haitian migrants, people being detained while awaiting their Title 42 expulsion are not given an Alien (“A”) number like someone officially detained. Which means they can’t be tracked. As a result it is difficult to get a good picture of where people are being held. From press reports we know that some families and unaccompanied children have been placed in hotels until they can be flown out. Over the last two weeks we heard that many of the people from Haiti who were being expelled were being held at an ICE facility in Val Verde County, not far from Laredo where most of the flights departed from. Neither of these locations comports with the CDC guidance on temporary detention for those who can not be immediately expelled. Such detention is supposed to be in a designated space within a Border Patrol facility, or under a tent or other soft-sided shelter (e.g. temporary facility to minimize contact).
The recent increase in expulsions to Haiti is also related to a recent increase in the number of Haitians being apprehended by Border Patrol. The Customs and Border Patrol media office for the Del Rio sector issued a release on Monday saying that 1,800 people from 26 different countries had been arrested over a two week period, 25% (450) of them were from Haiti. I have not been able to confirm numbers from other sectors, but it seems likely that the number of people who are attempting entry is increasing rapidly across the board as borders south of Mexico have begun to open again. Border Patrol apprehensions totaled 54,711 in September (48,327 were Title 42 expulsions). I requested information from the CBP media office in the Del Rio sector concerning where people were being held and if they were being tested for COVID, and received no response.
So, what we have been seeing over the past two weeks is the mass expulsion of Haitians under Title 42. Most of this increase in removals seems to be the result of increased border crossings, though it is possible some families and unaccompanied children who have been detained for longer periods are also part of the increased expulsions.
Title 42 went into effect as a 30 day measure, but has been renewed indefinitely. It is important to point out that it was also NOT an initiative of the CDC. The order was the brainchild of Steven Miller, Trump’s hardline immigration advisor. CDC officials initially refused to implement it, saying there was no public health justification for such an extreme measure – though they ultimately went along with it under pressure from the White House. What is clear is that Trump has used COVID-19 to do what courts had previously denied him: blocking asylum, even for people already on U.S. soil. The hundreds of expulsions to Haiti last week were the result of this policy, along with 200,000 other people removed under this order since March.
In a torrent of media coverage, it has been reported that Pope Francis, the spiritual and political leader of the Roman Catholic Church, has endorsed civil unions for same-sex couples. Those of us who read this story today each bring to it a different set of lenses that filter the story and color its meaning. Before considering a couple of different perspectives and raising some concerns, it is worth looking at the context in which the statement was made. Like previous seemingly earth-shattering pronouncements of Pope Francis, this statement came during an informal interaction rather than an official channel, captured in the documentary film, Francesco, screened for the first time on October 21 at the Rome Film Festival.
As reported by Reuters, the quotations taken from the film seem to cast Pope Francis as an armchair policymaker, saying, for instance, “What we have to create is a civil union law. That way they are legally covered.” Further, in a gentle tone, if somewhat antiquated language, Francis adds: “Homosexuals have a right to be a part of the family. They’re children of God and have a right to a family. Nobody should be thrown out, or be made miserable because of it. I stood up for that.”
The documentary also includes interview footage with Andrea Rubera, a married gay man and father of three, who was advised by Francis to bring his children to mass, who comments, “He didn’t mention what his opinion was about my family so (I think) he is following doctrine on this point but the attitude towards people has massively changed.”
Those who are inclined to optimism about progress on human rights may feel the triumphant sense that this age-old institution is embracing new families. But is this progress? Returning to the initial observation that there are many different perspectives from which to consider this question, it depends on where you are standing right now.
If you are standing in a country where same-sex relationships can carry penalties of imprisonment or worse, this must seem a remarkable development – having the leader of the Roman Catholic Church acknowledge that you have a right to legal recognition of your relationship and freedom from violence against you on that basis. Given the source of the statement, it is hard not to rejoice that legal campaigns led and sanctioned by church officials in recent years in places as diverse as Poland and Cameroon and the Philippines are apparently being challenged at the highest level of authority in the Church.
On the other hand, if you are standing, as I am, in a country that, after a long struggle, now affords recognition of your marriage – so designated – a civil union might feel like an attempt to carve out another class of relationship, purportedly separate but equal.
The last sentence of Francis’s quotation from the documentary, in particular, should give us pause. For the pope is not looking forward; he is looking backward, when he says, “I stood up for that.” A decade ago, the man who would become Pope Francis, Jorge Mario Bergoglio, was Archbishop of Buenos Aires in his native Argentina. At that time, he was involved in church organizing against the passage of same-sex marriage legislation, putting him into direct confrontation with the country’s president, Cristina Fernández de Kirchner. He was publicly part of church-led opposition to this legislation, calling it “a destructive attack on God’s plan.”
And he advocated the politicially expedient measure of making space for civil unions for same-sex couples as an alternative to marriage. As proposed to the Argentine bishops conference, the civil union was apparently similar to marriage – except that it would not permit such couples to adopt children. This position seems to be one he has maintained consistently, with the same idea elaborated in his 2013 book On Heaven and Earth, in which he states, “Every person needs a male father and a female mother that can help them shape their identity.” Five years later, in 2018, Francis repeated this claim: “It is painful to say this today — people speak of varied families, of various kinds of family. The family (as) man and woman in the image of God is the only one.” Last month, it was reported that Francis told some parents of LGBT children, “The Pope loves your children as they are, because they are children of God,” but, again, this statement falls short of stating they would be fit parents.
In addition to this pattern of reinforcing the two-parent, one male and one female, family as the only acceptable model, it is evident that if the Pope were really committed to change, it would be within his magisterial capacity to make declarations that can steer policy in new directions within the church, either by making an ex cathedra pronouncement (described as “infallible”) or, with a different degree of authority, through an encyclical or other document. The remarks revealed in Francesco were not issued in an encyclical, a pastoral letter, a papal bull, a motu proprio, or any other peculiarly ecclesiastical instrument of communication with a related level of authority. Surely his failure to do so on the question of embracing same-sex unions and a more inclusive understanding of family is no mistake. The Pope is quite shrewd, and it is likely he makes these statements in the ways he does in order to avoid rocking the boat. Pope Francis knows he is not breaking any new ground. He is retreading ground he has walked on before.
Regrettably, I conclude that we have no reason to think the Pope has staked out a novel position in this documentary. He has simply stated in new words what seems to be a static position over the last decade; namely, that the church should pragmatically support watered down civil unions for same-sex couples. The outcomes of such a policy position are contradictory, since its impact may vary significantly from one place to another. On the one hand, for those living in places where LGBTQ people are at risk due to legal structures that permit or facilitate physical violence and discrimination, civil unions might promote improved conditions. On the other hand, reverting to a condition in which marriage is an exclusive institution reserved for heterosexual couples concedes a rigid conception of gender upon which the church patriarchy has built a firm foundation of discrimination and exclusion. And this should not be celebrated.
For years U.S. border policy has focused on one overarching strategy, with many different tactics: Deterrence. The idea behind deterrence is that if the consequences of unauthorized migration can be made punitive enough, people will stop trying. It doesn’t work. It has never worked. For example, in the late 1990’s, as part of the Clinton administration’s “prevention through deterrence” approach, border walls were built through urban areas along the U.S./Mexico border in order to drive people trying to cross the border into the desert. The policies did not stop migration, but thousands of people have died in those deserts as a result:
Experts can only guess at the true number of lives lost over the last two decades. At a minimum, more than 7,000 people have perished, though the true total is guaranteed to be higher. During the 1990s, the Office of the Pima County Medical Examiner dealt with an average of 12 migrant deaths annually. Over an 18-year period beginning in 2000, once prevention through deterrence was humming along, that number rose to 155 per year. According to the medical examiner’s office, 2,943 sets of human remains have been found in southern Arizona from 2000 to the present.
Writing in January of 2017, just before Trump took office, the Women’s Refugee Council, KIND and Lutheran Immigration and Refugee Services issued the report, Betraying Family Values in which they documented that,
As a matter of procedure and policy, border agents routinely separate family members, including intentionally, as a punishment – or “consequences- through what DHS calls its Consequence Delivery System (CDS). The consequences are meant to deter future migration, often regardless of international protection or other humanitarian concerns.
‘CDS’ was implemented in 2005, and employed by both the Bush and Obama administrations. For example,
As families fleeing violence in Central America began making headlines in 2014, the Obama Administration implemented an aggressive deterrence policy designed to stop families from seeking protection in the United States. The Administration prioritized all recent border crossers as enforcement priorities and vastly increased the use of expedited removal and detention of mothers arriving with children.
None of this worked – but it did establish precedents for Trump to use and abuse. Yet, even as Trump has elevated the consequences severely, people have kept coming. Indeed, the highest spike in Border apprehensions in over a decade came in the year AFTER the child separation fiasco ushered in by Trump’s “zero tolerance” policy, and after the administration’s decision to detain nearly all asylum seekers. Last fiscal year (2019) the number of border patrol apprehensions reached 859,501, more than double the year before (404,142), and almost triple Trump’s first year in office (310,531). The crisis at the border throughout the spring and summer of 2019 was very real of course, but it was driven by Trump’s failed policy agenda, not asylum seekers.
The utter failure of Trump’s deterrence policies, however, have only led the administration to try even more punitive measures. Asylum seekers are no longer even admitted into the United States until after hearings before an immigration judge. 60,000+ people have been redirected to Mexico to await these hearings since January of 2019. When the hearings finally started last summer they were a fiasco. Only 1% of those who have received a hearing were granted asylum. When the COVID pandemic was declared, there were still 25,000 or more people along the U.S./Mexico border living in camps, or scraping by on the streets of Mexican border towns, waiting. Since March, the hearings have been suspended, and the border itself closed under an order by the Centers for Disease Control and Prevention. This order, dubious in origin, has led to the summary expulsion of close to 200,000 people. As a result of forcing people into crowded conditions to wait out the pandemic, the effect of the order has been to create a public health crisis on the border – not prevent one.
And yet, people are still coming. Despite all of the above, there were more Border Patrol apprehensions in September of 2020 than September of last year, and the number is only increasing. Why?
People end up at our borders from all over the world. Many are fleeing violent conflicts and the collapse of livelihoods from a variety of environmental and economic factors. Those from Central America, which make up the largest portion of asylum claims, are fleeing well documented violence at the hands of gangs, the state, or partners. Doctors Without Border issued a study just before the pandemic, based on 480 interviews and 26,000 medical records, showing that 45.7% of the people from Central America migrating through Mexico were fleeing violence – 75% of families. In one of the few empirical studies disagregating various causal factors behind migration, the Center for Global Development (2017) showed that there was a direct relationship between the murder rate in Guatemala, El Salvador and Honduras and youth migration to the United States, irrespective of U.S. border policy, which made no significant difference in the decision to migrate. The study shows that from 2011 to 2016, “the violence-migration relationship was driven by events in the region and was unaffected by changes in U.S. immigration policy during the period.”
The impacts of climate change, in the form of drought, coffee rust, and food insecurity is probably the single biggest push factor behind migration in recent years, though it can be hard to separate climate impacts from the violence that grows out of the resulting scarcity. Even Customs and Border Patrol documented crop loss as a primary reason for migration – a finding ignored by the Trump administration, which actually cut assistance to mitigate crop loss in the region among other cuts in aid; cuts made as a punishment for countries’ in Central America not doing enough (in Trump’s mind) to stop migration!(?)
The impact of COVID-19.
The last six months have only deepened the crises in Central America. Economic growth has collapsed, driving even more people into poverty. Prior to COVID-19, Latin American economies were projected to grow about 1.9% this year. In September of 2020 the International Monetary Fund revised its estimate, anticipating a regional contraction of 9.4% – a negative swing of 11.3%. Mexico is among the hardest hit economies, expected to contract by over 10% this year.
Gang violence has seen a slight reduction in Honduras, Guatemala and El Salvador, largely due to the curfews in force in all three countries. Nevertheless, the rate of killing is on the upswing as the curfews end. Honduras and Guatemala each saw just under 2,000 murders this year by the end of August. Mexico is still home to half of all the active gangs in Latin America and half of the related deaths. Gender based violence has increased in Central America during the pandemic, as it has elsewhere. In Honduras 45 women had been killed in domestic disputes by the end of May. Reports of gender based violence were up 70% in El Salvador and 65% in Mexico. State violence also increased across the region as governments sought to enforce draconian lockdowns measures with force. Honduras used the pretense of enforcing its lockdown to arrest dozens of opposition political activists.
Finally, as countries from the U.S. to Panama closed their borders in the spring, migrants already on the journey from Haiti, Cameroon, Pakistan, India, Cuba, Venezuela and elsewhere, were detained throughout Central America. These people are attempting to continue their journeys now – at least those able to. Many are now arriving at the U.S./Mexico border. During the first two weeks of October, Border Patrol arrested 1,800 people from 26 different countries in the Del Rio sector in Texas. One fourth (450) were from Haiti. Almost all were flown out over the space of a week, with no chance to apply for asylum.
The lesson here is that even with the border closed, and asylum off the table, people are still coming. And the numbers will only increase in the coming months. Deterrence has not worked. It will not work as long as economies weaken, climate change destroys livelihoods and violence leaves people with no other choice but to migrate. Indeed, for the foreseeable future, forced, survival migration will remain the norm with peaks and valleys in the movement of people, but it won’t end. Not with a wall, moat, machine gun turrets, lasers and drones. It is beyond time to acknowledge the global crises underlying displacement and stop acting like the resulting migration is something being done to us.
So, another four years of Trumpian antics won’t work. And a return to the Obama standard of massive deportations, high tech border toys and “consequence delivery systems” won’t either. What might? Well, it has already been shown that dollar for dollar, spending money on violence prevention programs targeting youth in Central America is far more effective at reducing migration than expanding the Border Patrol or changing asylum rules. Helping people mitigate the immediate impacts of climate change will do more to reduce refugee flows than 100 or 500 more miles of border wall. More importantly what these measures signify is an important truth: Treating all people with dignity is actually a better way to get results. We are all in this together, after all. Better we start acting like it.