Haitian migrants adrift in legal limbo

The United States Coast Guard is intercepting refugees from Haiti and Cuba and returning them back to their home countries in record numbers. As of August 12, 2022, the US Coast Guard had interdicted 6,812 Haitians since the current fiscal year began; over 4,000 Cubans have been intercepted as well.

The situation of Haitians caught at sea illustrates a systemic injustice in US immigration policy. The United States employs a variety of means to keep people from ever setting foot within the United States. Why? If someone is present in the United States they have the right under US law to seek asylum regardless of where or how they entered. Once on shore, in other words, the US government can not simply send people back to their home country if they demonstrate a “credible” fear of persecution. Title 42 enforcement has temporarily eroded this standard, though a federal court ruling in April of 2022 underscored the necessity of the US government to respect the principle of non-refoulement. People know their only chance to stay in the United States is to make it to shore (or across a land border), no matter how dangerous. If interdicted at sea, they will most likely be returned to Haiti.

US head of the Department of Homeland Security, Alejandro Mayorkas, made all of this quite clear last year when he said, “if you take to the sea, you will not come to the United States.” He continued, “If individuals make, establish a well-founded fear of persecution or torture, they are referred to third countries for resettlement. They will not enter the United States” (emphasis added).

At the same time avenues for seeking resettlement as a refugee have dwindled. If you are from Haiti, there is almost no way to receive humanitarian relief without first getting into the United States. Right now that means either flying to a country in South America that does not require a visa, and then traveling thousands of miles to the US/Mexico border, or getting onto a boat and taking your chances at sea. Whether by boat, or by land, the United States works very hard to make the journey as difficult as possible. People die as a result. At least 177 Haitians have been reported as dead or missing (on the high seas, that most likely means dead as well) since October of 2021.

Extra-territoriality targets Haitians

Haitians were, in fact, the original target of the United States’ extraterritorial expansion of immigration enforcement. The first step was first taken by the Reagan administration, which announced in September of 1981: “The entry of undocumented aliens from the high seas is hereby suspended and shall be prevented by the interdiction of certain vessels carrying such aliens.” The executive order required the Coast Guard to “ask the Haitians whether they are political refugees and examine any documents they may have.” Respect for Haitian refugee claims was largely non-existent. During the first ten years this executive order was in place, 24,600 Haitians were interdicted at sea; 28 of them were granted refugee status.

Even during the worst humanitarian crises, US policy has focused on keeping Haitians out. In September of 1991, the US-trained commanders of the Haitian military and police forces drove out President Aristide in a coup d’etat. Over the next three years thousands of people would die as associated paramilitary forces attempted a massive politicide against the Lavalas movement that had brought Aristide to power. Interdictions of people fleeing the violence soared. Nearly 32,000 Haitians were interdicted at sea; over 20,000 Haitians ended up detained at Guantanamo Bay at the peak of the crisis. 

Biden must allow all Haitian refugees access to humanitarian relief

The Biden administration has removed 26,000 Haitians from the United States since taking office. Most of those removals (87%) are based on the executive’s claim of Title 42 authority to engage in summary expulsions at the border due to the COVID-19 crisis. Over the same period, just over 70,000 Haitians have been processed under Title 8, and thus have a chance to appeal for humanitarian relief, underscoring the importance of making it into the country. A large number of people in this second group have been (or will be) removed anyway, as approval rates for asylum seekers from Haiti is extremely low.

There are no public statistics concerning the number of people interdicted at sea who have made an appeal for refugee status, and how many of those appeals have been approved. Guantanamo Bay is once again being used to hold people making humanitarian appeals, though how many people are being held is not known. 

At least 2,300 Haitians interdicted at sea since October of 2021 have already been repatriated to Haiti by the Coast Guard, and at least another 180 have been sent to “third countries” (Puerto Rico, Dominican Republic, and the Bahamas). What has happened to the other 4,400 is not clear. According to reporting in the Washington Examiner, all Haitians (and Cubans) are eventually repatriated: “‘Interdiction at sea is a Coast Guard function and individuals who are intercepted at sea do not get processed under immigration laws. Haitians … are taken back to Guantanamo Bay and processed at the Migrant Operations Center (MOC), then deported back to their home countries,’ Aaron Reichlin-Melnick, policy director at the Washington-based American Immigration Council, wrote in a message.’

The administration must clarify how it is using Guantanamo Bay, and what the numbers are. And Biden must stop denying refugees access to humanitarian relief within the United States. Placing barriers in the way of refugees as a means to deny them legal access to asylum processing must end. Such deterrent strategies have failed to deter, but it is getting people killed.  

We demand that the Biden administration halt all removals to Haiti, and halt the return of people interdicted at sea. You can join us in this effort here.

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