Tuesday, February 8, 2022
Restrictive immigration policies such as Title 42 have serious consequences on migrants. Credit: Esteban Montaño/MSF
– The specters of slave patrols and Ku Klux Klan night riders haunted the viral videos. They showed cowboy-hatted Border Patrol agents on horseback insulting and threatening Haitian families with children as they crossed the Rio Grande into Texas. The outrage reverberated around the world and inside the Beltway. But the story soon disappeared from the news cycle.
Immigrant justice groups at the border said it was the latest in a long parade of abuses inflicted by immigration enforcement. And they called for broad and deep changes.
The theatrical brutality against mainly Black immigrants, and the government’s contradictory responses to the large encampment where it took place, shone a harsh light on the exclusionary immigration policies of the Donald Trump administration, some of which have been continued by the Joe Biden administration.
The Del Rio episode laid bare internecine conflicts over how to roll back Trump’s restrictions and move towards Biden’s stated goal of a more “humane” immigration system.
Ultimately, the encampment should be understood as a massive campaign of civil disobedience asserting the right to seek asylum. It ended with starkly contrasting outcomes. Many thousands of refugees were flown back to Haiti without a chance to make their case, but a number half again larger was taken into the United States immigration system and allowed to pursue asylum.
Border Patrol follies
The drama began in early September, when thousands of migrants began arriving at the Mexican border town of Ciudad Acuña, Coahuila. Fording the river’s shallows carrying children and possessions, they improvised a tent camp under the International Bridge in Del Rio, Texas.
Most sought to ask the United States for asylum, which U.S. and international law allow them to do anywhere on U.S. territory. The majority were Haitians and many others were Central or South Americans. Two-thirds traveled in family groups.
Few Haitians, however, came to the U.S. border directly from Haiti: most had left their home country years ago after a devastating 2010 earthquake and settled in South America, mainly in Chile and Brazil. The pandemic and the ensuing economic crash reportedly left many without jobs and visas there.
The incoming Biden administration flatly told migrants that the U.S. border would remain closed to them during the pandemic. Yet many displaced Haitians heard rumors to the contrary, and apparently decided the trip north was worth the risks and costs.
Previous efforts of large groups of immigrants to reach the U.S. border together often took the form of “caravans” on foot. By contrast, many of the Haitians traveled in smaller groups, coordinating by cell phone. Some reportedly took public transportation, while others boarded a large number of buses and other vehicles arranged by organizers and possibly smugglers. Some observers said they must have had the acquiescence of Mexican officials.
Del Rio hosts a small border crossing about halfway between more crowded ports of entry downriver in the lower Rio Grande valley and upriver around El Paso. These migrants may have chosen it because of reputedly smaller presences of organized crime on the Mexican side and of border-enforcement authorities on the U.S. side. By converging together on one crossing, they sought safety in numbers.
U.S. officials were caught off guard, and thousands of migrants were able to enter the U.S. to ask for asylum. They needed to buy food and necessities, but were blocked from going to stores in Del Rio. So they had to cross the river to Ciudad Acuña to buy supplies, and then cross back to bring them to the camp. Although the border was officially closed to most migrants, U.S. authorities initially accepted this informal arrangement.
The Border Patrol officers who assaulted the migrants September 19 were apparently breaking this tacit agreement. Their performative thuggishness seemed stage managed to incite Trump’s rabidly anti-immigrant base. But it served no enforcement purpose. The migrants were not trying to escape into the U.S. interior. They had strong incentives to wait there for a chance to ask for asylum.
President Biden and Secretary of Homeland Security Alejandro Mayorkas condemned the Border Patrol actions and vowed to quickly investigate the events and punish those responsible. The Department of Homeland Security opened an investigation that Mayorkas said would be concluded in “days, not weeks”. Nearly two months later, however, DHS issued a statement that the investigation was ongoing.
“These investigation and discipline systems at the border agencies are really broken and need a complete overhaul,” Clara Long of Human Rights Watch warned. Civil-society organizations say there has long been systemic anti-migrant prejudice undergirding a culture of impunity in CBP, making it very difficult to hold officers accountable for abuses.
“Suddenly the nation realized that we have a Border Patrol that beats up Black immigrants or people of color”, Fernando García of the Border Network for Human Rights told me. “We’ve been telling that story for years. … Yesterday, they were the Haitian refugees. But in the past, we talked about Guatemalan children dying in detention centers.” These and other abuses show that “the Border Patrol acts with impunity. … So we responded by denouncing the aggression, but also by calling for systemic change.”
By the time of the Border Patrol aggression in mid-September, the encampment had grown to an estimated 15,000 people. Conditions there were called “deplorable” by United Nations High Commissioner for Refugees Filippo Grandi. Republican politicians loudly accused Biden of creating a crisis at the border.
Border authorities, some said, failed to heed reports of large groups of migrants heading north. “The arrival of vulnerable asylum-seekers is not a crisis,” Wade McMullen, an attorney at RFK Human Rights, told Michelle García of The Intercept. “The militarized response and lack of preparation — that’s the crisis.”
As the situation in Del Rio degraded, the Biden administration abruptly shifted into high gear. It deployed federal personnel from several agencies to process all the immigrants.
On September 24, DHS Secretary Mayorkas announced that the camp had been completely emptied. However, the conflicting methods employed revealed clashing policy approaches among Biden’s advisors.
The number of migrants summarily expelled to Haiti without a chance to ask for asylum rose from Mayorkas’s estimate of 2,000 to 8,700 by mid-November. A larger number – 13,000 was later reported – were allowed to request asylum in immigration courts. Of these, 10,000 were released to sponsors around the U.S., while 3,000 were held in immigration detention as their cases proceeded. Another 8,000 “voluntarily” returned to Mexico, Mayorkas said, and roughly 4,000 were still being processed by DHS.
The U.S., Mayorkas announced, had established a $5.5 million program to assist the repatriated Haitians, to be distributed through the United Nations. The cost of flying the migrants to Haiti, however, amounted to $15 million paid to a private prison company.
The mass expulsions to Haiti represented a dereliction of U.S. obligations under international and U.S. asylum law. Yet a number of migrants half again larger than those expelled was allowed to enter the immigration system and request asylum. The Biden administration said little about how it triaged people to their divergent fates.
Expulsions to Haiti
Dissension has reportedly surfaced within the administration between advisors favoring “aggressive enforcement” to deter immigrants, and others favoring more welcoming policies towards asylum seekers.
Senate Majority Leader Chuck Schumer, a close Biden ally, publicly broke with Biden’s policies. He called for an end to the expulsions back to Haiti, which he said “defy common sense”, and termination of Trump’s “hateful and xenophobic” policies. Asylum seekers, he said, should be offered due process at U.S. ports of entry.
Haiti, a small Caribbean nation, is in the throes of cascading disasters: an earthquake that killed more than 2,000, followed by a hurricane; the assassination of the president; and the dissolution of the legislature and much of the police force. Major swathes of the capital are controlled by gangs that rob and kidnap with impunity, bringing much of the already struggling economy to a halt. Haiti clearly has no capacity to receive returning emigrants.
Two veteran U.S. diplomats assigned to Haiti resigned in protest against what one called “inhumane, counterproductive decision” to expel thousands of Haitians back to a “collapsed state … unable to provide security or basic services”. The other warned that returning individuals to places where they “fear persecution, death, or torture” violates asylum law, and asserted: “Lawful, more humane alternatives plainly exist.”
International human rights authorities condemned both the summary methods used to expel the migrants and their forced return to Haiti.
Four human rights organizations of the U.N. issued a joint statement calling on governments “to refrain from expelling Haitians without proper assessment of their individual protection needs”, to uphold their human rights in mobility, and to offer better access to “regular migration pathways.”
“International law prohibits collective expulsions and requires that each case be examined individually”, they explained. “Discriminatory public discourse portraying human mobility as a problem risks contributing to racism and xenophobia and should be avoided and condemned.”
Public-health measure or asylum ban?
The mass expulsions began in March 2020, when the Trump administration invoked an obscure federal law to rapidly expel nearly all migrants at the border without any chance to request asylum. U.S. Code Title 42 enables the government to suspend normal immigration procedures in a public-health emergency. U.S. Code Title 8 codifies pre-pandemic due process allowing immigrants to petition for asylum and other relief before immigration officials.
Trump used Title 42 to expedite removal of migrants of all ages. The incoming Biden administration decided not to expel unaccompanied children, and one Mexican state has refused to accept families with small children. Yet Biden has continued Title 42 expulsions of most families and adults in the face of a crescendo of criticism. A court blocked use of Title 42, but the ruling was stayed on appeal. Meanwhile, some migrant families have sent their youngsters to request asylum alone, getting them out of the dangerous borderlands, but separating yet more families.
Numerous authorities have discredited the law’s public-health rationale, highlighted the damage it has done, and advocated for its termination.
Dr. Anthony Fauci, President Biden’s top medical advisor, told CNN: “Let’s face reality here. The problem is within our own country. Focusing on immigrants, expelling them … is not the solution to an outbreak.” Were immigrants were a major reason why COVID-19 was spreading here? “Absolutely not.”
A letter to the Biden administration from leading scientists condemned Title 42 as “scientifically baseless and politically motivated” and urged the administration to rescind the order. Signatories recommended implementing public-health measures that “process asylum seekers at the border and parole them to live in safety in their communities.” In a commentary, two public-health experts wrote that forcing migrants back to Mexico put them again “at the mercy of the violent Mexican cartels they were so desperate to escape.”
Internationally, a United Nations Refugee Agency official asserted that “protecting public health and protecting access to asylum … are fully compatible.” During the emergency, many countries deployed “health screening, testing and quarantine measures, to simultaneously protect both public health and the right to seek asylum.”
Filippo Grandi, U.N. High Commissioner for Refugees, criticized the expulsions of hundreds of thousands of people without screening, and called for the government “immediately and fully to lift its Title 42 restrictions.” Denying access to asylum procedures, he said, “may constitute refoulement” (forced return to the location of previous persecution). “Guaranteed access to safe territory and the prohibition of pushbacks of asylum-seekers are core precepts of the 1951 Refugee Convention and refugee law,” he explained.
Before the Inter-American Commission on Human Rights, advocates submitted an emergency request for protection of 31 asylum seekers excluded from the U.S. under Title 42. The commission adopted a resolution providing guidance for governments “to protect the rights of Haitians” who are migrants or otherwise displaced.
While the Biden administration has ended many of Trump’s injustices, it has persisted in defending some of his most widely condemned measures, including Title 42. “It’s like [former Trump adviser] Stephen Miller’s ghost is still pulling the strings of Biden’s immigration policies”, commented Nicole Phillips of the Haitian Bridge Alliance. The administration “needs to do more to root out Stephen Miller’s ghost.”
A door opened for some
As it summarily expelled some of the Del Rio migrants, the U.S. also accepted many more to pursue asylum in the pre-pandemic Title 8 system.
DHS Secretary Mayorkas said that 13,000 of the migrants would be allowed to “have their asylum claims heard by an immigration judge in the United States”, nearly 50 percent more than the 8,700 sent back to Haiti. Of those accepted, 10,000 were released into the U.S. to family or sponsors, while the other 3,000 were detained by ICE while their cases proceed. “The numbers placed in immigration court proceedings are a function of operational capacity and also what we consider to be appropriate,” was Mayorkas’s non-committal explanation.
The 10,000 immigrants released from Del Rio were sent initially to a network of non-governmental shelters, where they could arrange transportation to locations around the country.
The arrival of the refugees at Annunciation House in El Paso elicited an outpouring of solidarity from the local community, Hannah Hollandbyrd of Hope Border Institute told me. Volunteers took people to the airport, and tested them for COVID-19. According to shelter director Ruben Garcia, nearly all of the 2,000 refugees released there were able to move on to their final destinations after spending only a few days there.
The proportion of migrants at Del Rio released to pursue asylum followed the trend for all border encounters during the past year.
With little publicity, Biden’s immigration enforcement began to gradually reduce its reliance on Title 42. Border Patrol enforcement actions under the measure were 88.3 percent of encounters during October-December 2020, Trump’s last full quarter, denying any possibility of asylum in nearly all cases. They dropped sharply to 49.4 percent during July-September 2021 under Biden, so that half of the cases were handled under Title 8’s due process allowing for asylum claims.
“Voluntary” returnees to Mexico
Of the migrants in the Del Rio camp, Mayorkas said that some 8,000 returned to Mexico “voluntarily”, a number nearly equal to those flown back to Haiti. Many of these migrants will likely try again to enter or re-enter the U.S. at some point
Most of these migrants have relocated downriver to Mexican border cities in the lower Rio Grande valley, according to Camilo Cruz of the International Organization for Migration. Many Haitians, he said, have been applying to Mexico to regularize their migration status there. Mexican government data showed that more than 26,000 Haitians asked for asylum in Mexico in the first three quarters of 2021, up from under 6,000 in both 2019 and 2020.
In an interview in Ciudad Juárez, Chihuahua, over 400 miles upriver from Del Rio, Cruz told me that few Haitians had appeared there, but that the shelters were still beyond capacity with other migrants excluded from the U.S.
In Haiti, where the IOM gives returning Haitians financial aid after their arrival, IOM Chief of Mission Giuseppe Loprete told EFE that thousands of migrants are leaving because of the earthquake and other crises. But he noted that many who had been living in Chile or Brazil are going directly to those embassies in Haiti and asking for permission to return there.
According to an IOM report, from January through October 2021 an estimated 100,000 migrants, 62 percent of them originally from Haiti, crossed the Darien Gap between South and Central America.
However, despite some reports that more large groups of Haitian migrants might be heading north, CBP reported that border encounters with Haitians fell by 93 percent from September to October, and remained very low in November.
Welcoming the stranger
Despite the white sado-nationalism that surfaced at Del Rio, the outcome could be seen by future migrants as a partially successful campaign of non-violent civil disobedience to thwart unjust laws, such as Title 42, and brutal enforcement.
The migrants in the camp were able to request asylum relatively more frequently than asylum seekers nationally during the same period. About 60 percent of those processed by the U.S. were accepted into the asylum process under Title 8, while 40 percent were expelled to Haiti under Title 42. For all immigrants reaching the border in September, the ratio was roughly 47 percent accepted versus 53 percent expelled.
These ambiguous outcomes aside, the Biden administration’s removal of Haitian migrants to Haiti remained a gratuitously cruel operation that threw the victims into a life-threatening situation. Title 42 should have been terminated at the beginning of Biden’s term, and none of the Haitians should have been expelled to Haiti.
The global backlash against the expulsions has been politically costly. Yet ironically, the Del Rio incident did foster a consensus across a surprisingly wide political spectrum on ways to avoid future recurrences of those kinds of injustices.
The mayor of Del Rio, Bruno Lozano, and the Val Verde County executive, Lewis Owens, had criticized the Biden administration’s handling of the border. Yet both agreed that the process has to be reformed to allow migrants to ask for asylum at ports of entry.
Hollandbyrd of Hope Border Institute also emphasized the urgent need to open ports of entry to asylum seekers and end Title 42. Longer-term solutions, she said, will require restoring and expanding the asylum system, diversifying other legal pathways for immigration, and addressing the root causes of migration.
U.S. Representative Veronica Escobar, Democrat from El Paso, has introduced a bill into Congress that would establish “a humane and equitable asylum process designed for America’s immigration realities in the 21st century.”
U.N. High Commissioner Grandi voiced an international consensus: “I encourage the US administration to continue its work to strengthen its asylum system and diversify safe pathways so asylum-seekers are not forced to resort to dangerous crossings facilitated by smugglers.”
On issues of border-enforcement reform, the Border Network for Human Rights has been meeting with the local Border Patrol for many years, Executive Director García said, and has negotiated accountability mechanisms with them including standards for use of force and training in de-escalation techniques.
BNHR is part of a coalition, the New Ellis Island Border Policy Working Group, which is partnering with congressional representatives to codify transparency and accountability of border security operations in legislation.
In its foreign policy, the Biden administration has emphasized the need for a “rules-based” international order. Among the most fundamental international rules are human rights, and of these, asylum and refuge are existential. Yet human rights defenders from the United Nations to local NGOs are spotlighting grave U.S. failures to protect human beings in motion. A truly “rules-based” immigration policy would uphold these rules and welcome the stranger.
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Peter Costantini is an independent analyst based in Seattle. For nearly four decades he has written about migration and Latin America, and has volunteered with immigrant justice groups.
The full referenced analysis on which this piece is based can be downloaded as a PDF file from:
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