President Joe Biden has instituted a mass expedited expulsion of Haitian and other Black asylum seekers from the U.S. in one of the most aggressive deportations in recent history.
Reports of plane loads of migrants forced to return to Haiti, evocative photographs of migrant camps at Del Rio, the Texas border town on the Rio Grande, and graphic images of Black migrants pursued and rounded up by U.S. Border Patrol agents on horseback, are exactly what the Biden campaign pledged to consign to the past when it promised to “undo the moral and national shame” of the previous administration.
U.S. legal obligations to the specific class of immigrants called asylum seekers are derived from both international and domestic law. While there is not an obligation to grant asylum, U.S. law extends an opportunity to such persons for due process and a fair hearing.
This article rehearses policy areas implicated in the conduct of asylum processing these last few years. These are the border administration practice called metering or queue management, and the Covid-19 era suspension of migrant rights under Title 42.
It is clear that this set of novel routines, introduced as temporary adaptations for processing asylum seekers at ports of entry, have evolved into settled practices that contravene pre-existing obligations in law. Many asylum-seekers experience these administrative innovations not as temporary aberrations, but as insurmountable obstacles that deny them the opportunity to lodge asylum applications.
The core principle of the Convention on the Status of Refugees (1951) and its Protocol (1967) is non-refoulement. It asserts that asylum seekers should not be returned to countries where they face serious threats to their life or freedom.
The principle of non-refoulement is reiterated in the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED).
The U.S. Congress incorporated this definition into U.S. immigration law in the Refugee Act (1980). It is this legal obligation that is contravened by the recent immigration policies.
‘Metering’ Is Targeted Mainly at Black Asylum Seekers
This practice began as a temporary queue management measure. Asserting a lack of resources to manage large numbers of asylum seekers at once, border officials at San Ysidro, Calif., began a practice of ticketing in 2016.
The practice has been targeted mainly at Haitian and other Black asylum seekers. They are blocked from entry into the U.S., and expected to register onto a list on the Mexican side of the border.
Subsequently, the Trump administration extended the practice across the southern border, guiding Customs and Border Protection (CBP) to physically block entry onto U.S. soil. Once ticketed, potential asylum seekers would only present themselves at the border when their number came up.
In practice, as the process was managed by a motley of non-CBP organizations, there was no possibility of accountability; and CBP has not shown an interest in making this a fair process. This was a liminal status that built up into a lengthy backlog and that could stretch out into years, leaving people stuck in a dangerous limbo.
Summary Expulsions Under Title 42 Discriminate
This policy names a practice of summary expulsions that was initiated in the wake of the Covid-19 pandemic. Although ostensibly a public health measure, the policy is executed against the advice of medical professionals at the Centers for Disease Control and Prevention. Given the continued high volume of traffic across the border through the pandemic, it also directly discriminates against asylum seekers who form only a small fraction of all human traffic at the border.
Under the policy, a general block on land entry for immigrants was effected. These summary expulsions are a complete refusal of access to the immigration and asylum adjudication processes.
In the context of the pandemic, the effect of these expulsions has been to force already vulnerable people into encampments and other unsanitary living conditions under which the spread of the virus would be intensified. It is this policy that the administration is using to expel Haitian and other Black asylum seekers, mostly Africans.
Despite Legal Actions, Biden Continues Trump Policies
A federal court ruled in September that metering denied migrants due process; and yet the administration continued to use metering to process Black asylum seekers at Del Rio. There have been a number of legal action attempts over the legality of Title 42 policy.
Immigrant justice organizations sued the Trump administration over the practice of Title 42 subjecting unaccompanied children to expulsion which was successfully halted by a federal judge, who held that it violates the Trafficking Victims Protection Act and other laws.
After the stay of order by a federal court in January 2021, the Biden administration amended the program to exempt unaccompanied children which resulted in the exemption of unaccompanied children from expulsion as of November 2020. Similarly, groups who sued the Trump administration headed back to court to immediately halt the policy and eventually end the expulsion policy which restricts immigration at the border based on unlawful invocation of the Public Health Service Act which is stipulated under Title 42 of the U.S. Code.
Despite the legal actions against this repressive policy, the Biden administration kept the policy in place for asylum-seeking families and single adults, although unaccompanied children are formally exempted from the policy.
Beyond the moral arguments and ideological differences to be expected in wrestling with the knotted questions of immigration, advocates for migration justice understood President Biden’s campaign’s promises as a shift away from caprice and cruelty.
While we have been under no illusion about Biden’s position on enforcing immigration law in the ways previous Democratic administrations have—especially to the detriment and exclusion of Black migrants—there was, in our estimation, an expectation that asylum seekers would be protected. Instead, the Biden administration has not only continued some of the Trump policies, but has even gone as far as to challenge court decisions that have found these policies unjust.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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Nana Gyamfi is the executive director of Black Alliance for Just Immigration, the largest Black-led racial justice and immigrant rights organization in the US. She is also the current president of the National Conference of Black Lawyers.