Why Haitian Migrants and Refugees Should be Exempt from Title 42 § 265

A blog post by Andy Garcia, Junior Associate.

In the summer of 2021, the country of Haiti was struck with political crisis and a catastrophic natural disaster. On July 7, 2021, the President of Haiti, Jovenel Moise, was assassinated, leading to instability in the current government.[1] A month later, Haiti was struck by a 7.2 earthquake which took the lives of approximately 2,200 individuals and left thousands more without homes, hospitals, and other vital resources.[2] As a result, thousands of Haitians have attempted to migrate to the United States in hope of seeking refugee from the current situation. As of September 24, 2021, over 14,000 Haitian migrants have arrived in Mexico, waiting near the Mexico-United States border for an opportunity to seek asylum.[3] However, under the former and current executive administrations respectively, thousands of Haitian asylum seekers have been deported or banned from filing an asylum claim under U.S.C. 42 §265.[4]

During the start of the Covid-19 pandemic, the Center for Disease Control (CDC) implemented U.S.C 42 §265, a federal law that blocked the “introduction” of persons into the United States that were exposed to a serious “communicable disease[s]”[5], in this case individuals exposed to “Coronavirus Impacted Areas.”[6] The use of Title 42 as it has become more commonly known, was to ban the entrance of individuals into the United States to prevent the spread of COVID-19. The Human Rights Watch organization and medical experts from Homeland Security have rebutted the “public health justification.”[7] Experts have argued that Title 42 restrictions targets small groups and ignores ports of entry that allow thousands to enter because of business.[8] In addition, public health experts have argued that Title 42 restrictions may pose a “public health risk” as detained migrants are held together for a significant period of time before being deported, increasing possible exposure to Covid-19.[9]

Title 42 restrictions has left thousands of Haitian migrants without a legal procedure to seek asylum in the United States; leading to a 90% increase in illegal migration by Haitian refugees as no alternative exists.[10] Haitian refugees that are detained at the border are either deported back to Haiti which is dealing with violent crime, social unrest, and a lack of basic resources as the nation recovers from the August earthquake.[11] Or deported to Mexico, where migrants have been targeted by cartels “for violence and extortion.”[12]

Now, as States begin to ease and remove Covid-19 vaccination and mask restrictions in the United States[13], the federal government should revoke or under Title 42 exempt Haitian migrants from the restriction and allow the asylum-seeking process based on the humanitarian crises currently in Haiti. In the past decade, when Haiti was struck by an earthquake in 2010 and hurricane Matthew in 2016, the US government halted deportation of Haitian migrants due to the natural disasters.[14] The current administration should follow suit, as Title 42 restrictions alleged benefits no longer outweigh its detrimental consequences specifically to the Haitian community that is suffering an immeasurable crisis.

[1] Edwidge Danticat, The Assassination of Haiti’s President, The New Yorker (July 14, 2021), https://www.newyorker.com/news/news-desk/the-assassination-of-haitis-president.

[2] UN News, Rebuilding Haiti: The post-earthquake path to recovery, United Nations (Feb. 12, 2022), https://news.un.org/en/story/2022/02/1111382.

[3] Edgar Sandoval et al., Thousands of Haitians Allowed to Stay in U.S. as Texas Camp Clears Out, New York Times (Sep. 23, 2021), https://www.nytimes.com/2021/09/23/us/haitian-migrants-texas-camp.html.

[4] A Guide to Title 42 Expulsions at the Border, Am. Immigr. Couns. (Oct. 15, 2021), https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border [hereinafter Guide to Title 42].

[5] 42 U.S.C. § 265 (1944).

[6] Guide to Title 42, supra note 4.

[7] US: Treatment of Haitian Migrants Discriminatory, Human Rights Watch (Sep. 21, 2021, 2:49 PM), https://www.hrw.org/news/2021/09/21/us-treatment-haitian-migrants-discriminatory.

[8] Guide to Title 42, supra note 4

[9] Id.

[10] David J. Bier, How the U.S. Created Cuban and Haitian Illegal Immigration, Cato Inst. (Feb. 15, 2022, 11:30 AM), https://www.cato.org/blog/how-us-created-cuban-haitian-illegal-migration.

[11] Groups Urge Biden Administration to Halt Deportation Flights to Haiti, Human Rights Watch (Aug. 30, 2021, 9:00 AM), https://www.hrw.org/news/2021/08/30/groups-urge-biden-administration-halt-deportation-flights-haiti [hereinafter Groups].

[12] Bier, supra note 10.

[13] See e.g. Covid News: Several Parts of U.S. Ease Mask Rules, New York Times (Feb. 23, 2022), https://www.nytimes.com/live/2022/02/23/world/covid-19-tests-cases-vaccine (highlighting easement of restrictions in Connecticut, Massachusetts, District of Columbia, and Los Angeles County).

[14] Groups, supra note 11.

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