Excerpted From: Tebbie Brix Fowler, Entitled to Better: Title 42 & the Historic Mistreatment of Haitian Migrants, 24 Rutgers Race & the Law Review 25 (2022) (220 Footnotes) (Full Document)


TebbieBrixFowlerThis paper concerns the Biden administration's use of Title 42 of the Public Health Service Act to deny Haitian asylum seekers entrance into the United States. The Act allows the United States government to send these asylees back to Haiti without a hearing under the auspices of public health due to the Covid-19 pandemic. The policy is a renewal of a Trump administration tactic used to deny predominantly Mexican immigrants entrance into the United States. The focus of this paper though will be on how the Biden administration's policy is more than merely an extension of Trump-era policies, it is a continuation of discriminatory U.S. policies implemented to stanch the flow of Haitian immigrants, particularly refugees, since the 1970s.

Part I focuses on the modern U.S. strategy towards Haitian immigrants from the 1970s until today. The paper begins in the 1970s because this is when the first ‘boat people’ arrived onto the shores of the United States. Haitian ‘boat people’ are those who left their home country by boat for economic and/or political reasons. The Nixon administration's strategy for denying these Haitians seeking refuge from both economic and political hardships included a purposeful backlog of deportation claims and shortening of asylum interviews which combined to overburden immigration attorneys. The administration, along with these denials of due process rights, used “the requirement of bond, detention [and], refusal of work authorizations” to bar Haitians from receiving asylum. The Carter administration undid some Nixon-era policies towards Haitian immigrants including allowing them to work and granting some asylum hearings. However, these changes were only temporary and eventually the Carter administration returned to many of the previous administration's tactics. This renewal involved “cancelling the work authorizations, resuming the detention of Haitian males, and expediting deportation hearings.”

The Reagan administration stopped prospective Haitian asylees even earlier, while the Bush and Clinton administrations continued and, in some respects, amplified Reagan's policy.

The Reagan administration had the Coast Guard interdict vessels carrying Haitian immigrants and return them to Haiti before they could have an asylum hearing. George H. W. Bush, Reagan's former vice president, continued a similar policy when he became president in 1989. He augmented the strategy by housing Haitian immigrants on Coast Guard ships as well as at a detention facility on Guantanamo Bay while continuing to deprive Haitian asylum seekers of many of their due process privileges. Despite initially criticizing the policy, President Clinton continued it during his two terms in office. Similar to the Biden and Trump administrations, the George H.W. Bush administration also used a health crisis (HIV and AIDS) to deny immigrants entry into the United States.

The deportation of Haitian migrants did not stop with the Bush administration. Despite the Obama administration's temporary cessation of deporting Haitians traveling to the U.S.-Mexico border following the 2010 Haitian earthquake, the Trump administration eventually reinstituted previous deportation policies concerning Haitians. It also took steps to end Temporary Protected Status (TPS) for Haitian migrants that would have allowed them to both legally stay in the U.S. and apply for work permits. The Trump administration policy which arguably garnered the most scrutiny though was its use of Title 42 of the Public Health Service Act to deport primarily Mexican immigrants under the guise of health concerns related to the COVID-19 pandemic.

Part II will discuss the Biden administration's continuation of the use of Title 42 to deport Haitians seeking asylum. I will illustrate how President Biden first disparaged former President Trump's immigration policy before incorporating one of its integral aspects. I will also discuss why thousands of Haitians have made their way to the U.S. border seeking asylum. Additionally, this section will analyze the ways in which this policy fits with how previous administrations used both health crises and a reduction of due process rights to inordinately discriminate against Haitian asylum seekers.

Finally, Part III will discuss possible solutions to these discriminatory policies towards Haitian immigrants. One tactic includes the immediate revocation of Title 42 provisions as they relate to Haitian asylum seekers. Additionally, Congress needs to pass the Refugee Protection Act to increase rights for both asylees and refugees.

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Congress needs to pass The Refugee Protection Act (RPA). The bill, which applies to both refugees and asylees, includes provisions which would strengthen the legal rights of Haitian asylees. The first is the provision which states, “establishing a presumption that the least restrictive conditions necessary should be imposed in custody proceedings for asylum seekers, including release if appropriate.” This would bring U.S. law in line with already established international law and would make it much more difficult to deport Haitian asylees without legitimate cause.

A separate RPA provision would improve the safety of Haitian asylees in Mexico and other Central American countries who have not yet received legal authorization to enter the United States. It directs “the Department of State to help other governments increase their capacity to care for and accept refugees.” This provision would allow those countries to have the funding necessary to ensure that a large number of asylees, Haitian and otherwise, do not continue to be the victims of violence.

The final RPA provision that is needed would ease the burden on immigrant processing centers in the United States. It would direct “the State Department to establish refugee processing centers in other countries in North and Central America.” This provision would have a twofold effect. First, it would ease the burden on the already overextended processing centers in the United States. Second, it would allow for better social distancing at these processing centers which would lessen the likelihood of Covid-19 spreading through the facilities.

During his presidential campaign Joe Biden heralded himself as the opposite of Donald Trump. He stated he wanted to bring fairness back to the immigration system. These policies and others can go a long way towards fixing much of the mistreatment many immigrants, including Haitians, have faced for decades. It would show that President Biden will live up to his campaign promise to asylees, particularly Haitians who have been so harmed by Title 42.


Juris Doctor Candidate, Rutgers Law School, Class of 2023.