U.S. Haitian Migrant Policies Are Incoherent, Deadly—And Unsurprising

The U.S.’s handling of the Haitian migrant crisis is incoherent—but unsurprising. In recent days, the U.S. has been arbitrarily shackling some Haitians, rounding them up by horse, and shipping them by the planeload back to Haiti, while releasing thousands of others into the United States. The U.S. has announced no policy explaining who will be deported and who gets to stay. Instead, the Department of Homeland Security continues to reiterate that the border is closed. President Joe Biden just “took responsibility” for mishandling of the Haitian migrant crisis (of course, he had responsibility to begin with). But incoherent, cruel treatment of Haitian migrants is nothing new. The U.S. has long announced tough policies against Haitian migrants while treating others with the legal, humanitarian protocols afforded to other asylum-seekers. The U.S. must clarify its policies to protect national security, its own borders, and U.S. legitimacy in the world.

The U.S. is an outlier in its interpretation of the most important provision of international refugee law—a provision so important that it is considered binding even on states that have not signed onto the international Refugee Convention. The principle is known as “non-refoulement,” and it means that states cannot send home anyone whose lives may be in danger due to persecution or torture. The U.S. is a party to the Refugee Convention, and its own asylum law includes the principle of non-refoulement. Yet the U.S. has adopted an interpretation of non-refoulement that is not held by any other state in the world—and that is illegal under international law.

The only Supreme Court case involving non-refoulement involved another Haitian migration crisis. In 1991, Haitian President Jean-Bertrand Aristide was overthrown in a brutal coup. Hundreds of his supporters were attacked with machetes, killed, kidnapped, tortured, or had their property destroyed. Thousands fled to Cuba or the United States. Over the next six months, the U.S. Coast Guard intercepted 34,000 Haitians. Initially, the Coast Guard conducted informal screenings to determine whether the Haitians had a credible fear of torture or persecution, and thus might qualify for refugee status. But sheer numbers soon made screenings at sea impossible. The U.S. set up a camp at Guantanamo Bay to house Haitians while it conducted hearings, but the facilities soon became overcrowded. In May 1992, President Bush authorized the Coast Guard to summarily turn back Haitians without screenings.

Haitian groups quickly filed a lawsuit. As Sale v. Haitian Centers Council wound its way to the Supreme Court, the Haitian crisis became a major issue in the 1992 presidential campaign. Candidate Bill Clinton vowed to stop the Coast Guard’s interdiction program. But  upon news that Haitians were building boats in preparation for his inauguration, Clinton changed course.

At issue in the 1993 Supreme Court case was whether the principle of non-refoulement applied on the high seas, where the Coast Guard intercepted the Haitians. Using a strained interpretation of the French translation of the Convention, the Supreme Court held that this principle did not apply extraterritorially, or for U.S. forces and law enforcement operating outside the U.S., including on the high seas. The U.S.’s interpretation of non-refoulement is held by no other state in the world. It has been roundly criticized by refugee advocates and other international bodies, including the European Court of Human Rights.

Interestingly, the U.S. does not abide by the Sale decision. After lobbying by human rights organizations, President Clinton changed the direct returns policy. George W. Bush reinstated it after Aristide’s second removal from power. As of the Obama administration, the State Department’s official policy remained consistent with the Sale decision. However, military policy on interdiction and apprehending migrants at sea is to conduct asylum hearings. This “say-do” gap reveals the tension between the U.S.’s desire to interpret law narrowly to protect its sovereignty and its desire to be seen as a protector of human rights and follower of international law.

It is to the U.S.’s credit that it follows international law and humanitarian, moral obligations even when its own laws would permit it to do otherwise. However, incoherent policies can send deadly messages. News travels quickly among migrant communities. Would-be Haitian migrants know that the U.S. will give them an asylum screening on the high seas and will not turn them back if they meet certain criteria. Rationally, many Haitians would expect such treatment at the southern border. Unclear policies may serve as a “pull factor” for Haitian migrants to come to the U.S. Moreover, the U.S.’s incoherent policies of allowing some people to stay and others to leave gives migrants more false hope. Desperate people will always flee desperate circumstances if they have hope of a better life elsewhere. The hope that Haitians will be allowed to stay—and released to freedom pending hearings—will also draw many risk the dangerous journey to the U.S. Lives will be lost, and the already-overwhelmed Customs and Border Patrol and immigration courts will expend tremendous resources on those who survive.

Meanwhile, Haitian groups have seen the incoherent treatment of Haitian migrants as opposed to Cubans and Afghans, and have begun to cry racism. Cruel treatment with horses, whips and shackles—never seen with white migrants at the border—evoke horrifying reminders of slavery. While investigations are pending, it is quite possible that federal law enforcement is not immune from the pervasive racism in police forces. The claim of racist treatment of Haitians at the border may be justified. It is surely one that a beleaguered CBP and Biden administration would surely prefer to avoid. And it surely diminishes the U.S.’s image in the world.  

The U.S. must adopt coherent, humane policies involving Haitian migrants. Doing so will save Haitian lives and improve the U.S.’s ability to protect its borders. It will also improve the U.S.’s standing in the world as a beacon of human rights for all people, regardless of race.