Title 42’s Long Tail of Pain

More than 1.8 million asylum-seekers have been expelled under the pandemic-era statute, which allows the Centers for Disease Control to declare a health crisis and bar immigrants from entering the country.


The helicopter flew so low at one point, only 20 yards off the ground, it blew debris and dust into our eyes, knocking down makeshift bungalows and tents and forcing the Haitians to flee the chaos. As the Texas Department of Public Safety chopper flew overhead in the Del Rio migrant camp, I spoke to Jean, a 28-year-old woman who was four months pregnant. We struggled to hear each other over the downwash of harassing noise.

The helicopter left and calm returned. Jean, whose name has been changed to protect her identity, sat on the piece of cardboard she bought for 100 pesos. Her 5-year-old son, husband, and two sisters sat beside her in the triple-digit shade. The family was in the holding area near the Del Rio-Acuña bridge awaiting their turn to seek asylum in the United States. 

“We left Haiti six years ago,” she said. “A gang killed my older sister. My house was shot at. We had to leave.”

Her story was one of 16,000 similar plights at the Del Rio camp.

Everyone felt dirty and miserable. But a few days in the encampment for a chance at safety was better than uncertain survival elsewhere. Many of those who found themselves in Del Rio fled Haiti more than a decade ago after an earthquake destroyed much of the country, killing more than 200,000 people and leaving 1.5 million homeless. They went to the Dominican Republic, Brazil, and Chile for a better life. Even before the pandemic, the Haitians steadily began moving north to the U.S., after gang violence and dwindling job prospects rendered South America inhospitable., Last year, U.S. Border Patrol apprehended more than 30,000 Haitian migrants along the southern border, the highest number since 1992 when Haitians came by boat to the U.S. after democratically elected president Jean-Bertrand Aristide was overthrown in a military coup.  

Ostensibly to prevent the spread of COVID-19, thousands of migrants at the Del Rio camp were expelled from the country under Title 42 of the U.S. Code, a public health statute passed in 1944 that allows the expulsion of migrants who attempt to enter the U.S. from an area that hosts a communicable disease. The U.S. government has used Title 42 to expel more than 1.8 million immigrants—including asylum-seekers—originating from countries with high levels of COVID infection in the past two years. Since September, more than 20,000 Haitians have been flown to Haiti from the Laredo airport alone, often in chains,  according to Witness at the Border’s flight tracker.

About 14,000 migrants, many from Haiti, camp along the Del Rio International Bridge on September 23, 2021. (AP Photo/Julio Cortez)

Earlier this spring, the Biden administration decided to lift the order because the pandemic has waned. More than 20 states, mostly GOP-led, sued to block the administration. Three days before Title 42 was set to expire on May 23, a Trump-appointed judge in Louisiana enjoined the move and ruled that Title 42 must remain in place. The Department of Justice has appealed the decision. 

Now, agents of the Office of U.S. Citizenship and Immigration Services will have the power to determine whether a migrant qualifies for asylum. At the moment, immigration judges decide whether someone is eligible for asylum based on evidence. According to Department of Homeland Security Secretary Alejandro Mayorkas, the change was made because the asylum docket is overburdened with about 1.7 million cases. Under the new rule, he expects the current 7-to-8 year asylum-decision process to shrink to less than a year.

“The idea of empowering asylum officers to give approval is not that unusual for a Ukrainian flying into the U.S. on a tourist visa,” said Jennifer Ibañez Whitlock, an attorney and policy counsel at the American Immigration Lawyers Association. 

However, the rule change will limit the time an asylum-seeker traveling by foot at the border has to make their case. 

“What will be different is, say that a Guatemalan asylum-seeker is not going in the first instance to a judge,” she said. “There is an emphasis on speed and not enough emphasis on due process and the right to counsel. Unless the migrant is well prepared, they will have a hard time getting the evidence they need. For instance, they may have fled their home country because a relative was killed and didn’t have time to get a death certificate.”

More than 234,000 migrants crossed the southern border in April, a 22-year high. The administration estimates upward of 18,000 migrants may cross each day when Title 42 is finally lifted.

Two penniless migrants on their way to California whom I met in the camp, Reggie and his pregnant wife, told me they crossed the river about an hour’s drive south. They rode out most of the pandemic in Brazil, where the couple had been living when lockdowns began, but decided it was time to return to his childhood home. 

Because of Title 42, their only chance to enter the U.S. and stay was through a dangerous river crossing. Walking through a port of entry would have likely meant immediate expulsion before they had a chance to plead their case (Reggie, a non-citizen, grew up in California and is a beneficiary of the Deferred Action for Childhood Arrivals program). After wading through the swiftly flowing Rio Grande, the couple surrendered to Customs and Border Protection, which transported them to the camp without providing them food, water, a way to prove his DACA status or an offer to request asylum. Only a ticket to sleep on the ground and wait for days in the hot, dusty wind. 

Four weeks later, Reggie and his wife were released from custody and went home.

The migrant mother of a child was rescued by United States agents from the waters of the Rio Grande after she lost her footing and the child began to be swept away by the current in Del Rio, September 2021. (AP Photo/Felix Marquez)

Since the enslaved population of Haiti revolted against the ownership class in 1791 and defeated Napoléon’s army in 1804—the only successful slave revolt in Western history—foreign meddling and support for the country’s dictators and anti-Black oligarchy has been nonstop. In 1825, through gunboat diplomacy, France demanded billions in reparations from its former colony for the land Haitians had seized from their former slave masters. The fledgling nation took on loans from U.S. and French banks to pay the French government, a debt that wasn’t satisfied until the 1940s, with reverberations that continue to destabilize Haiti to this day.  

On July 7, 2021, mercenaries assassinated Jovenel Moïse, the president of Haiti, in his Port-au-Prince home. The alleged killers, including Colombians and two Haitian-Americans, were allegedly sent by Moïse’s political and business rivals to murder him and recover a list of drug traffickers the president had promised to release. Since that time, gangs have taken over more of the capital and rural areas, killing each other and kidnapping for ransom, including a group of missionaries from Ohio and a diplomat from the Dominican Republic. An estimated 90 gangs rule much of the capital right now. 

The U.S. propped up Moïse against the wishes of the Haitian people and passed the dead president’s term that arguably expired in February 2021. After his death, the U.S. supported the unelected de facto prime minister, Dr. Ariel Henry, to run the country. His term in office expired in February this year. No date for elections has been set amid spiraling violence and gridlocked negotiations between Haiti’s ruling factions. 

Since August, more than 1,000 earthquakes have hit Haiti, including a 7.2 magnitude quake that killed more than 700 people. Starvation, economic depression, environmental dangers, and violence are dire situations that newly expelled young Haitians—children—face in a country they may never have stepped foot in before since their parents left in the wake of the 2010 earthquake. 

The Haitian Bridge Alliance and the Robert F. Kennedy Human Rights organization have documented many stories of inhumane treatment at the Del Rio migrant camp. In December, the Innovation Law Lab sued the Biden Administration for numerous alleged human rights violations inside the camp and the subsequent handling of eleven Haitians deported from the U.S. 

“Ever since I’ve been [in Haiti] I’ve been fearing for my life. I’m in hiding. I’m at risk every day,” said Michael Celon, a plaintiff in the lawsuit against the U.S. 

By September 2021, the temporary intake encampment under the international bridge in Del Rio had swelled from hundreds to thousands of migrants, primarily from Haiti. The encampment lacked basic needs to support human life, and what little was provided was quickly overwhelmed when the camp grew. CBP imposed a ticketing system. The asylum-seekers were separated into four groups, each with a different color-coded ticket: families with children, pregnant women, single men, and single women. 

The Haitian Bridge suit claims at no point were arriving migrants “given a reasonable opportunity to present themselves to a U.S. immigration officer and request access to the asylum process.” 

Filed by the Haitian Bridge Alliance, Innovation Law Lab, and Justice Action Center last December, the class-action lawsuit alleges that the Biden Administration and Department of Homeland Security did not provide the infrastructure and resources to screen for asylum, which has led to a dangerous and inhumane situation. The lawsuit cites an August 2021 memo to top officials at DHS’s Office for Civil Rights and Civil Liberties, which warned against expelling migrants to Haiti. Such expulsions may violate non-refoulment obligations under U.S. and international law, which forbids immigration authorities from returning asylum-seekers to a country where they may face danger based on their race, religion, nationality, or membership in a particular social or political group. The suit claims officials knowingly failed to prepare for the arrival of migrants, leading to inhumane conditions—a claim U.S. officials have denied.

The violence was so sudden, Jean fled without recovering her sister’s body. First, the family trekked to the Dominican Republic, then saved enough money for tickets to Chile, which they thought would be a safe haven. Instead, the family faced more violence.

“There is a problem in Chile,” Jean said. “They are racist against Haitians.”

After the woman’s landlord died, his daughter discovered her father had rented the apartment to undocumented Haitians and tried to push the family out. In July, a local gang murdered the asylum-seeker’s cousin and chased the rest of the family out of a Chilean town near Santiago. 

The family went north through Peru and traversed the Darien Gap—the treacherous jungle on the border of Colombia and Panama—walking days through trails until they could link up with a migrant caravan traveling north to Mexico. When the family arrived in Tapachula, Mexico, her son fell ill with diarrhea. His mother sold the few possessions she owned, including her cell phone, to pay for a doctor.

Broke and hungry, the family sought help at the Mexican office for refugees, Comisión Mexicana de Ayuda a Refugiados (COMAR), but officials turned them away. She and her family slept in front of the COMAR office until an employee gave them food. The family had a destination in mind all along: Del Rio, Texas. Del Rio was the easiest to reach and safest access point to the United States—at least that’s what many Haitian migrants initially hoped, based on social media messages from those who made it across the border before them. 

“Here in the U.S. camp, it feels like jail,” Jean said. 

It is a jail where the guards provide no food, shelter, or medical care. If you need the basics to survive, cross the river and buy what you need in Mexico, U.S. authorities told migrants in the camp, according to Reggie and Jean. But most people I talked to didn’t want to risk a return to Acuña, Coahuila, Mexico, fearing arrest and deportation to the countries they fled.

DHS did not respond to a request for comment. On September 20, Jen Psaki, then the White House press secretary, said, “Obviously, any circumstances where individuals are not treated humanely, whether they are coming to our border or not, is not in line with Biden administration policies.”

The woman and her family had slept outdoors near the international bridge for three days before I met her. She still didn’t know how long it would be until it was her turn to request asylum. 

I don’t know what happened to Jean and her family. She may have had a chance to enter the asylum system, or possibly the family returned to Mexico when U.S. law enforcers bulldozed the camp, or the government expelled them back to Haiti. 

As the world came to know what was happening in Del Rio, Daniel Foote, the special envoy for Haiti, quit his position in protest over the deportations.  

“The people of Haiti, mired in poverty, hostage to the terror, kidnappings, robberies. massacres of armed gangs, and suffering under a corrupt government with gang alliances, simply cannot support the forced infusion of thousands of returned migrants lacking food, shelter, and money without additional, avoidable tragedy,” Foote wrote in his resignation letter to the U.S. Secretary of State. 

“Here in the U.S. camp, it feels like jail.”

“Only Congress can fix this,” said DHS Secretary Mayorkas, referring to the catchall immigration reform. Immigration reform has become a bipartisan cliché that both Democrats and Republicans use to parry criticism of extant immigration policies and practices. As President Biden said in his State of the Union address a few months ago, “immigration reform” is a collection of many ideas like installing surveillance technology at the border, increasing the number of immigration judges, and compelling Central and South American countries to increase refugee caps and secure their borders. 

For Democrats, immigration reform also includes a pathway to citizenship for people already settled in the country, the president said, and to “revise our laws so businesses have the workers they need and so families don’t have to wait decades to reunite”— an idea that scares Republicans. Still, the Democrats are not soft-handed enforcers of immigration law. Secretary Mayorkas told reporters last week the government will increase criminal prosecutions “because the fact is, there are more cases that warrant criminal prosecution than cases that are being brought.”

To end the current migration crisis, however, local solutions are needed in the Western Hemisphere’s failed states. 

What our Haitian friends really want, Foote wrote in his resignation letter, “is the opportunity to chart their own course, without international puppeteering and favored candidates but with genuine support for that course. I do not believe Haiti can enjoy stability until her citizens have the dignity of truly choosing their own leaders fairly and acceptably.”

In the Del Rio encampment, the pregnant woman told me she feared deportation to the country where her sister was murdered. “If I went back to Haiti,” she said, “I would be on the streets. Haiti is hell. Gangs control everything. You go on the streets; you don’t know if you’re coming home.”