Title 42 must be revoked, Expulsions to Haiti ended

Over the last few days the Biden administration has increased the removal of people from Haiti dramatically. Most of these removals appear to be Title 42 expulsions. What we’ve seen this week:

• On Monday deportation flight of 103 people to Haiti, all Title 42 removals
• On Tuesday deportation flight of 64 people to Haiti, 60 were Title 42 removals
• On Wednesday Border Patrol expelled dozens of Haitians into Ciudad Juarez, Mexico, citing Title 42
• On Thursday two deportation flights of 135 people and 126 people to Haiti, almost all Title 42 removals. The second flight seems to have been all family units.

There are another 1,400 people from Haiti expected to be expelled over the next 10 days, mostly all from border facilities where they are being temporarily held awaiting removal under Title 42. Thanks to the work of advocates putting pressure on the administration, as of Friday morning (February 5) we are hearing that flights are temporarily suspended to Haiti. 

Back in October there was a similar flurry of flights to Haiti. Then as now, this was the result of a spike of border apprehensions, including many Haitians. That earlier round of expulsions involved about half the number currently facing immediate removal. Almost all summarily expelled without due process under Title 42. 

What is Title 42?

On March 20, 2020 the Center for Disease Control and Protection (CDC) issued the Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists. This order claimed authority given to the CDC under Title 42 of the U.S. Legal Code to block entry of people into the United States as a response to a public health crisis, COVID-19 in this case. The original order was replaced by the Order Suspending the Right to Introduce Certain Persons from Countries where a Quarantinable Communicable Disease Exists on October 13, 2020. These orders are identical except that the October version includes summary evidence of the impact of the original March declaration. Referred to as “Title 42” these orders provide the basis for Customs and Border Protection to summarily expel anyone they encounter, with no access to asylum or other relief.

Since issued, “Title 42” has been the primary grounds by which migrants are removed from the United States. From March 20 through the end of December, 400,000 people were expelled under this order. The numbers are increasing now. From October to December of 2020 the number of people expelled under Title 42 averaged 2,000 a day. January numbers have not been released yet by Customs and Border Protection, but will almost certainly go up. Border Patrol agents interviewed by U.S. News and World Report indicated removals have increased since Biden took office. 

The vast majority of Title 42 expulsions involve people from Mexico and Central America. People are arrested at the border and sent back across almost immediately - at one point the Border Patrol director bragged that 90% of Title 42 expulsions happened within two hours of first encounter. People have no opportunity to request asylum or other relief, except under a very limited provision whereby someone who self-declares a fear of torture is interviewed by an agent from USCIS, who then makes a decision on the spot whether the fear is credible. None of these decisions are reviewable.

The situation for people from Haiti is somewhat different than most expelled under the order, though, like everyone, they are denied due process. When Title 42 began the government of Mexico indicated that it was only willing to receive Mexican nationals, as well as people from El Salvador, Honduras, and Guatemala. This meant that people from other countries would have to be detained briefly until they could be flown out of the United States. So, even though the rationale for Title 42 was the lack of capacity to detain and test people at the border, people are being detained anyway, and if put on a flight, some (not all) are tested. Which means, that in the case of people from Haiti (as well as Cuba, Venezuela, India, Pakistan, Cameroon and others who attempt entry at a border, but who cannot be immediately removed to Mexico) the basis for denying them asylum under Title 42 should be void. It is important to note as well, that though Haitians are not supposed to be sent back into Mexico, the expulsions this week to Ciudad Juarez mentioned above are not the first time this has happened. The Guardian reported this week concerning mothers from Haiti and elsewhere, who were expelled to Mexico under Title 42 after giving birth to children in the United States; expelled without birth certificates for their children. 

Haitians need relief from removal NOW

That said, Haitians are being expelled in large numbers now, and this must stop. To put this in perspective, “normal” deportation flights to Haiti happen about 2 times a month and include anywhere from 30 to 100 people, with the numbers mostly declining over the last 6 months (except for the last round of Title 42 exuplsions in October). The expulsion of 1,800 people to Haiti over a two week period is incredibly cruel. Though currently suspended expulsions could restarted at any point.

Haiti is in the midst of worsening political crisis, one that is likely to come to a head in the next week as the current president, Jovenal Moise, insists on staying in office, even as many legal scholars and advocates argue his term ends this Sunday, February 7. With no acting parliament, Moise had been ruling by decree since January of 2020. He intends to press a constitutional referendum in April, followed by elections in the fall. However, none of this is constitutional. Moise’s resignation has been the rallying cry for repeated protests since summer of 2018. In response, the government has increasingly employed violence against demonstrations and in November issued an executive decree increasing penalties for protest, and establishing a new intelligence service. The political situation is very tense, and could devolve quickly over the next week as the fight over Moise’s term moves once again to the streets.

Beyond the political crisis, is an ongoing economic crisis, ever present threat of mass hunger, and constant insecurity from gang activity including a large number of kidnappings. Anger over kidnappings led to a national transportation strike this week. Haiti’s institutions are failing. Now is not the time for mass expulsions.

Finally, there is this thing called the COVID-19 pandemic. Of course, the pandemic is the reason for Title 42 to begin with. The problem is that, by the time people are removed to Haiti, they’ve been detained, and that means detained in a facility where exposure to COVID-19 is highly likely. Why? Immigration and Customs Enforcement has done a horrible job of implementing protocols to protect people in its custody. One result is that people testing positive for COVID-19 have been repeatedly deported all around the world. The last thing Haiti needs now, on top of everything else, is a resurgence of COVID-19 from thoughtless removals.