The Challenges of Immigration Policy Regarding Haitian and Mexican Migrants and Covid-19

© 2021 AP Photo/Felix Marquez

By Brennan Shechtman, 2L

After the Haitian president’s assassination in July, the Caribbean country has been in a state of political turmoil, unrest, and violence, with thousands of Haitian migrants seeking asylum in Mexico and the United States. Amid this recent influx, the U.S. has already been dealing with border problems with Mexico, as border patrol authorities have encountered record high numbers of Mexican migrants trying to cross the Mexico-Texas border and seek asylum in recent months. Furthermore, this comes at a time when the U.S.’s handling of border issues is complicated and inconsistent, yet extremely pertinent due to the conflicting immigration and health policies with Covid-19 under the previous Trump administration and changed procedures under the current Biden administration.

Just recently, on August 24, the United States Supreme Court upheld a fifth circuit decision in Biden v. Texas which refused to stay a preliminary injunction that a district court had issued, which prohibited the Biden administration from rescinding the “stay in Mexico” policy that the Trump administration had implemented. This had the effect of immediately reinstating the policy known as Migrant Protection Protocols (MPP) because the Biden administration did not provide an adequate reason to justify getting rid of the policy. Under the MPP program, more than 60,000 asylum seekers were sent to wait outside U.S. territory while their claims are pending—a process which usually takes between two to five years—instead of remaining in the U.S. while awaiting their approval.

The Biden Administration and immigration and human rights groups are not happy with the Court’s latest ruling, claiming that the MPP is an unlawful asylum seeking system, and that because the policy has been suspended for some months now, the abrupt reinstatement of it will “prejudice the U.S.’s relations with vital regional partners, severely disrupt its operations at the southern border, and threaten to create a diplomatic and humanitarian crisis.” However, the policy was only rescinded under the Trump Administration because a different protocol, Title 42—a public health order relating to Covid-19 and stemming from the Public Health Safety Act—permitted the U.S. to essentially do the same thing, and turn away almost all migrants trying to cross the border and seek asylum.

Now, the Biden Administration is using the Title 42 order still in effect to send thousands of Haitian migrants either back to Haiti or other countries in Central America. Human rights advocates are claiming the use of this order to deny Haitians seeking asylum entry into the U.S. is unfair and discriminatory, especially since returning back to their country means facing unsafe political corruption and civil unrest. Most recently, public outrage fueled over treatment of Haitian migrants when viral photos circulated online of U.S. border patrol on horses with whips corralling Haitian migrants at a migrant camp near Rio Grande and the Mexican-US border.

This immigration crisis poses important consequences to the U.S. besides illegal entry of undocumented immigrants, given the world is still battling a health crisis with Covid-19. Currently, migrants crossing the border who are in Customs Border Patrol (CBP) custody are not required to be vaccinated and are not tested or required to be tested for Covid-19 unless they are symptomatic. Further, CBP relies on local public health systems to test only symptomatic individuals. Meanwhile, border patrol agents are being threatened that they will be fired if they refuse to get vaccinated by November 2021. The Biden administration’s federal mandate, which orders that all federal employees be vaccinated to hold their jobs, is concerning because terminating dedicated law enforcement who do not receive the vaccine will “only make the border crisis worse and make our country less secure.”

Many factors influence immigration policies at any given time. Especially now, the ongoing health and political crises around the world makes it extremely challenging to balance competing interests and to have consistent immigration policies. However, equal treatment of migrants, recognition of human rights, and general health and safety are uncompromising factors that must always remain paramount when determining immigration policies.

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