Asylum isn’t the solution for Haitians’ plight

In a joint statement issued on Dec. 15, Amnesty International and seven other organizations called upon the Biden administration to end all expulsions and deportations of Haitians who enter the United States illegally or seek admission without proper documents. The groups want the United States to provide the Haitians with access to its asylum system.

They claim that the expelled Haitians are being returned to a humanitarian nightmare that includes widespread gang violence, an ongoing political crisis, devastation following a recent earthquake, and a COVID-19 risk in a country where vaccination rates reportedly are around 0.4 percent.

Asylum isn’t the solution

The Haitians need help, but the Immigration and Nationality Act (INA) does not provide asylum for aliens who are fleeing from the humanitarian nightmare the joint statement describes.

Section 1158(b)(1)(A) of the INA limits asylum eligibility to aliens who are refugees within the meaning of section 1101(a)(42)(A) of the INA, which provides that a “refugee’” is a person who is outside of his own country and unwilling to return to it because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Temporary Protected Status isn’t the solution either

Temporary Protected Status (TPS) is for aliens who are already in the United States, have lived here for a specified period of time, and can’t return to their own countries because their countries are experiencing an ongoing armed conflict, an environmental disaster, or extraordinary and temporary conditions that prevent them from returning in safety.

The United States recently granted TPS for 18 months to Haitians who have continuously resided in the United States since July 29, 2021, and have been continuously physically present here since August 3, 2021. TPS is not available to Haitians who cannot meet these requirements.

Moreover, TPS is what it says it is: “temporary” protected status. It is not a path to citizenship — or even to permanent resident status. Aliens with TPS are expected to leave the United States when their temporary status expires.

But the joint statement is right that life in Haiti is a humanitarian nightmare; in fact, Vice President Kamala Harris has acknowledged that Haiti has experienced so much tragedy that the United States should help it.

She is right.

Haitian President Jovenel Moïse’s assassination in July resulted in political turmoil, and a 7.2 magnitude earthquake struck the country’s southern peninsula the following month.

Even earlier, on March 24, 2021, the United Nations Security Council reported “violations and abuses of international human rights, including some involving the alleged use of deadly force against protesters and reported arbitrary arrests and detentions.” It called upon the Inspector General of the Haitian National Police to investigate these incidents.

The following month, the State Department issued a Level 4 Travel Advisory for Haiti. Level 4 is the State Department’s highest advisory level. Travelers are advised not to visit Haiti because of kidnapping, crime, and civil unrest. Robberies and kidnappings have become a daily reality, and buses are intercepted by armed gangs controlling access to large swaths of the country.

An April report from Harvard Law School’s International Human Rights Clinic and a consortium of Haitian civil society organizations describes complicity of state officials and police in gang attacks that have left hundreds of people dead.

Violent criminal gangs pose a growing challenge to state authority. More than a third of Haiti’s voters now live in areas controlled by criminal gangs.

What can the United States do?

Assist Haitian police. Several days ago, Assistant Secretary of State for Western Hemisphere Affairs Brian A. Nichols had a meeting with Haitian officials about a request the Haitian government had made for “the training of police officers, armaments necessary to face the firepower of the gangs and an intelligence service to accompany the dismantling of the gangs.”

The United States will send trainers to Haiti to support the national police, and it will provide the police with armored vehicles, troop carriers, and lethal weapons to fight the gangs.

Military option. Charles T. Call, a senior fellow at the Brookings Institute, recommends an expanded U.N. operation with a small military component.

After a coup ousted elected President Jean-Bertrand Aristide in 2004, gangs exercised considerable territorial control in Port-au-Prince. A U.N. mission launched well-planned operations which captured or killed several gang leaders and enabled weak government forces to reestablish control. The same thing can be done again in Haiti.

The U.N. also can draw on recent hybrid models of national/international missions, such as the U.N.-backed International Commission against Impunity in Guatemala, to work side-by-side with vetted Haitian prosecutors. A specialized, vetted prosecutorial unit could try cases in anti-corruption Haitian courts presided over by vetted judges, as occurred in Guatemala and Honduras.

I just hope that efforts to help Haiti do not turn into a long-term project to address the root causes of illegal immigration from that country. That approach didn’t work in Central America when it was tried by the Obama-Biden administration, and it isn’t likely to work there now either, much less in Haiti.

The record-setting number of illegal crossings of the border with Mexico is a crisis that needs immediate attention, not long-term solutions that have little, if any chance, of working. And the same is true of the situation in Haiti.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.