STOP US DEPORTATIONS AND ABUSE AGAINST HAITIANS ON THE MOVE: AN URGENT STEP TOWARDS CREATING JUST POLICIES FOR HAITIANS
Between 19 September and 10 November, the US government sent nearly 9.000 Haitian migrants and asylum seekers to Haiti, largely without providing access to the US asylum system or protection screenings. These mass expulsions by the US government were followed by an increase in deportations of Haitians from across the Americas, exacerbating the crisis and leading to a joint call by UN agencies for states to provide international protection and alternative legal routes to regularization and a resolution adopted by the Inter-American Commission on Human Rights (IACHR) addressing the regional need to increase the protection of Haitians on the move.
Many expelled Haitians have disembarked US deportation flights sick, handcuffed, hungry, traumatized, and disoriented only to find themselves in a “humanitarian nightmare,” including widespread gang violence, an ongoing political crisis following assassination of Haiti’s President Jovenel Moïse, food insecurity, a health system “on the brink of collapse,” devastation following a recent earthquake, and at risk for Covid-19 in a country where vaccination rates are reportedly around 0.4%.
The US has made regular use of Title 42 – an order under the guise of public health whose misuse to conduct mass expulsions has been widely condemned by the UN, health experts, US officials, and civil society organizations from all over the world – to block Haitians and other asylum seekers from seeking asylum. And most recently the US has announced that Haitians will be subject to the Migrant Protection Protocols (MPP), which will force Haitians not expelled to Haiti under Title 42 to await their immigration proceedings in Mexico where the US has already acknowledged migrants face severe risk of harm.
This recent escalation in deportations and the inhumane and discriminatory treatment based on intersecting factors, including race and nationality of Haitians before and during the expulsions “seemingly continue a history of racialized exclusion of Black Haitians migrants and refugees at US ports of entry.” The US is violating its international obligations to eradicate discriminatory immigration practices and to screen asylum seekers to ensure that individuals are not returned to persecution or torture.
1. HUMAN RIGHTS AND HUMANITARIAN CRISIS IN HAITI: SENT BACK TO A “HUMANITARIAN NIGHTMARE”
In March 2021, a leaked report from the Department of Homeland Security suggested that the US is aware that deported individuals “may face harm upon return to Haiti” given pervasive political instability and violence. Furthermore, in May 2021, US authorities announced a new 18-month designation of Haiti for Temporary Protected Status (TPS), which provides relief from deportation to Haitians present in the United States as of July 29, 2021 – citing Haiti’s “deteriorating political crisis, violence, and a staggering increase in human rights abuses” that “prevent its nationals from returning safely”. In August, the US State Department also categorized Haiti as a Level 4 “Do Not Travel” zone – the highest risk travel category – due to its high rates of kidnapping, crime, and civil unrest.
In the past six months, the conditions in Haiti have only worsened. On 14 August, the country was hit by a 7.2 magnitude earthquake, and, two days later, tropical depression Grace further devastated the impacted area. According to the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) and the UN Migration Agency (IOM), the disasters affected at least 800.000 people and exacerbated pre-existing vulnerabilities, leaving more than 38.000 internally displaced, and 650.000 in need of emergency humanitarian assistance. This scenario is particularly concerning in a country with 4.3 million people (44% of the population) already facing acute food insecurity. Along with displacement, the UN and local health centers report a sharp increase in reports of sexual and gender-based violence by armed gang members throughout the capital.
The rampant insecurity and increasing gang violence have affected 1.5 million people, left an additional 19.000 internally displaced, and have also created the worst kidnapping wave in Haiti’s history, with more than 750 reported victims this year as of mid-October. Major and continuing gas shortages intensified in October when gangs blocked major ports cutting off fuel supplies intended to enter the country, attacking fuel delivery truck drivers, paralyzing the country and intensifying the crisis especially for the most vulnerable Haitians. The choked fuel supply has caused regular electricity blackouts, raised the price of food, transportation, and other services, disrupted telecommunications infrastructure, and caused hospitals to shut down. As a result, journalists reported there has been a recent spike in the numbers of Haitians fleeing the country by the sea since they are unable to feed their families and fear for their lives. On 10 November, the State Department urged all US citizens to leave Haiti “in light of the current security situation and infrastructure challenges.”
Gangs have reportedly targeted certain communities or groups associated with political opposition, and there is alarming evidence that has shown a pattern of state involvement. As documented by the Observatoire Haïtien des Crimes contre l’humanité (OHCCH) and Harvard Law School’s International Human Rights Clinic, massacres perpetrated by gangs with the complicity of state officials and police between 2018 and 2020 resulted in the killings of hundreds of people. The report details how the massacres were carried out with brutality, and perpetrators raped and tortured residents based on their political associations. According to the report, the attacks appear to follow a widespread and systematic pattern that “further state and organizational policies to control and repress communities at the forefront of government opposition.” Since the president’s assassination, the gangs have visibly acquired more power creating a pervasive sense of insecurity for the population.
Besides the inhumanity of returning individuals to a country facing such dire humanitarian conditions, many Haitians have bona fide fears of persecution and torture, for example where they fear being targeted by gangs, such that denying them access to asylum procedures constitutes a direct violation of US statutes and non-refoulement treaty obligations.
2. US HUMAN RIGHTS VIOLATIONS AGAINST HAITIANS ON THE MOVE
FLOUTING THE PRINCIPLE OF NON-REFOULEMENT
The mass expulsion of Haitians under Title 42 violates US asylum laws and US obligations under both domestic and international law that prohibit the return of individuals to persecution and torture. In September, the UN High Commissioner for Refugees stated: “mass expulsions of individuals currently under way under the Title 42 authority, without screening for protection needs, is inconsistent with international norms and may constitute refoulement.”
US laws require that individuals at the border who express a fear of return to their home country or an intention to apply for asylum, must have access to a fear screening prior to removal.
Former US State Department Legal Adviser Harold Koh concluded in his resignation letter that Title 42 policies “violate [US] legal obligations not to expel or return (“refouler”) individuals” – “especially migrants fleeing from Haiti.” In a leaked document from 31 August 2021, the Department of Homeland Security’s Office for Civil Rights and Civil Liberties (CRCL) communicated to the US Immigration and Customs Enforcement (ICE) and to the US Customs and Border Protection that Haitian deportees were in risk of danger “due to perceived political opinion and/or individual demographic characteristics (e.g., a high risk of refoulement).”
Despite this legal obligation, Haitians and others expelled under Title 42 are rarely asked if they intend to request asylum, nor are they screened for a fear of return to Haiti. Fear screenings for return to Mexico under MPP are similarly deficient. The US government is denying hundreds of thousands of people the right to seek asylum.
EXPOSED TO HEALTH RISKS AND RESTRICTED ACCESS TO MEDICAL ASSISTANCE
The UN Refugee Agency (UNHCR) has made clear that “measures restricting access to asylum must not be allowed to become entrenched under the guise of public health.” Public Health experts, civil society organizations and even former officials from the Centers for Disease Control and Prevention (CDC) have insisted that there is no legitimate scientific or public health rationale for the application of Title 42 to expel migrants and asylum seekers. Other effective mitigation measures exist, including testing, social distancing, and the use of masks, among others.
In addition to the misuse of Title 42 to expel hundreds of thousands of migrants and deny their right to seek asylum, the current implementation of this public health order could also spread Covid-19. Mass expulsions under Title 42 are exposing migrants and asylum seekers to health risks by denying them medical assistance at the border and by detaining thousands of people in congregate settings, then deporting them in crowded planes without providing Covid-19 tests.
These measures not only affect deported individuals but according to the UNCHR also “heighten the risk of Covid-19 transmission across national borders” especially in countries such as Haiti, where according to the Pan American Health Organization the “intensifying socio-political crisis in Haiti is having a negative impact on the health of the Haitian population” and where vaccination rates are among the lowest in the Americas.
SUBJECT TO ILL-TREATMENT AND DISCRIMINATION
By associating migrants and asylum seekers with Covid-19, the US stands to drive racism, xenophobia, stigma, and discrimination, and risks perpetuating use of health policies to implement racist anti-immigration measures. History has shown that punitive measures are rarely effective ways of responding to epidemics. Additionally, under international law, states have a duty not only to ensure that law enforcement and public bodies refrain from racial discrimination but have an obligation to develop programs and campaigns to prevent discrimination in wider society.
Despite this, Haitians have been subject to a series of shockingly abusive practices by US officials at the border and during deportation. In September, at the border in Del Rio, Texas, scenes of immigration officials on horseback using excessive force against Haitian migrants and asylum seekers, and wielding long reins to chase them and push them back across the river provoked global condemnation as it triggered memories of systemic racism inherent in the policing system throughout the country.
Haitians held in custody after crossing the border remained in detention in freezing crowded cells without sufficient food and water, and without knowing why and for how long. They were then expelled often without a fear screening or access to lawyers, language interpreters, medical care, or even basic sanitation. Some of the deported Haitians were loaded onto deportation flights in handcuffs and ankle shackles without being told where they were going.
• Immediately end all deportations to Haiti, including Title 42 expulsion flights that recurrently stand to put people at increased risk for COVID-19.
• Provide access to the asylum system with ensured access to high quality Haitian Creole interpreters, including as necessary fear screenings for all Haitians at risk of return as a key protection against refoulement.
• Refrain from placing asylum seekers in expedited removal or detaining immigrants and asylum seekers, and instead employ steps to process asylum seekers at ports of entry and quickly release them using proven community-based case support programs for those that need them.
• End discriminatory mistreatment of Haitian asylum seekers and migrants, investigate abuses and bring those responsible to justice.
• Ensure consistently enforced rules for frontline officials, including law enforcement officials, immigration authorities and asylum officials, forbidding racial profiling, and ensure robust systems of monitoring and access to effective remedy for victims.
• Take steps to address racist and xenophobic attitudes and behavior towards non-citizens, or stigmatization based on race, colour, descent or national origin by politicians, the media and wider society, as required by international law, for example, by implementing public anti-discrimination campaigns.
• Create long-term policies that support Haitian-led solutions based on the effective participation of Haitian civil society in the process of creating a more equitable Haiti where Haitians will feel less pressures to flee the country.
Center for Gender & Refugee Studies
Global Justice Clinic, NYU School of Law
Groupe d’Appui aux Rapatriés et Réfugiés (GARR)
Haitian Bridge Alliance
Rezo Fwotalye Jano Siksè
Service Jésuite aux Migrants Haiti