Border Patrol and Title 42: Violence Multiplied

Mounted Border Patrol at Texas border, September 2021. Still photo via KHOU-TV11

The recent, widely publicized U.S. Border Patrol aggression against Haitians at the Del Rio, Tx, crossing remains under investigation by the Office of Professional Responsibility of the Customs and Border Protection (CBP) agency.

But the horseback patrols and the actions of a few agents which left shocking images on American screens are symptoms of a larger problem going back decades.

In 1991, the U.S. was holding thousands of Haitian asylum-seekers at its naval base in Guantánamo. The point of holding the Haitians in offshore camps, surrounded by barbed-wire on foreign territory controlled by the U.S., was to keep them isolated from the U.S. justice system― both physically and legally―even as the U.S. had them in its custody.

A group of these frustrated Haitians tried to cross the concertina wire to enter Cuba itself, while others remained but protested the delays and mistreatment. An official military history reports that U.S. soldiers, in riot gear and carrying “rifles with fixed bayonets,” attacked the Haitians while they were sleeping.

“The stunned migrants offered no resistance,” writes the Marine Corps historian in his account of this “humanitarian mission.”

A few years later, American soldiers disciplined Haitian children at Guantánamo by forcing them to kneel on anthills, the newspaper Haïti Progrès reported.

The incidents at Guantánamo, like those at Del Rio last month, remind us that both Republican and Democratic administrations respond to humanitarian crises with military and militarized law-enforcement “solutions.”

Haitians have long been a special target of this violence, and the backlash over the Del Rio scenes of agents on horseback corralling Haitian people carrying food to their families put the current administration on the defensive.

President Joe Biden declared he was “heartbroken by the treatment of Haitian migrants at our border.”

Vice President Kamala Harris said she was “deeply troubled” by the images.

But the resulting order to suspend horseback patrols missed the point. The Border Patrol is itself inhumane, and the administration is using it to enforce a 1944 public health services statute called Title 42 in order to block legitimate access to asylum.

The Trump administration first utilized a determination by the Centers for Disease Control and Prevention (CDC) to justify its use of Title 42 to block or expel undocumented immigrants following the outbreak of the pandemic. But according to Human Rights First, the CDC order authorizing COVID-related expulsions was made under pressure from the Trump White House and “over the objections of the CDC’s own experts.”

Trump used the order, beginning in March 2020, “to deny thousands of refugees access to the asylum system,” Human Rights First reported.

The Biden administration has disingenuously continued the policy, calling it a legitimate public safety measure.

“Title 42 is not an immigration authority, but a public health authority,” said Department of Homeland Security (DHS) Secretary Alejandro Mayorkas. “To protect the American public. To protect the communities along the border. And to protect the migrants themselves.”

However, according to Human Rights First, citing the warnings of international public health experts, the policy might actually have exposed the migrants to greater health risk.

Haitian migrants at Texas border, September 2021. Still photo via KHOU TV 11

Although some critics claim the use of Title 42 proves that there is little distance between the Biden and Trump administrations on immigration policy, it is important to recognize that the White House under Biden has allowed some 12,400 Haitians into the U.S. from Del Rio, at least for now.

And it rightly designated and extended Temporary Protected Status (TPS) to Haitians already here.

Biden has also raised the refugee admissions cap for 2022, though only after pressure from advocates. He ordered the use of the words “noncitizen” or “migrant” to replace “alien,” a symbolic but significant move, among other executive actions.

In October, DHS Secretary Mayorkas directed Immigration and Customs Enforcement (ICE) and Customs and Border Patrol to “cease mass worksite operations,” i.e., workplace raids.

And in September, Mayorkas announced new immigration enforcement priorities, another shift from Trump’s declared policy of removing “the handcuffs” from ICE and CBP agents.

But it is not much of a defense to say that Biden is not his predecessor.

According to a reported released Oct. 6 by theQuixote Center, “since taking office Biden has expelled 9,300 people to Haiti on 94 flights. Three-fourths of those expulsions have happened over the last two weeks. The Biden administration has also repatriated 400 people interdicted at sea.”

Caitlyn Yates, in a study for the Migration Policy Institute, notes that these mass expulsions include Haitians who “had not been to their native country in years,” as well as “at least 41 children who do not hold Haitian passports.”

This is happening at a time when, as Special Envoy to Haiti Daniel Foote noted in his resignation letter protesting deportations to Haiti, “American officials are confined to secure compounds” because of the danger of armed gangs.

(Foote’s letter preceded reports of the kidnapping of 17 U.S. missionaries, including children, by armed gangs demanding a million-dollar-per-abductee ransom.)

Guatemalans, too, are being subjected to Title 42 expulsions, with a reported 34 flights in September alone.

Harold Koh, a senior State Department adviser to Biden, was one of the attorneys defending Haitians at Guantánamo in the 1990s. In early October, Koh resigned, arguing in a memo obtained by Politico that the “public health” expulsions under Title 42 at the US border “violate our legal obligation” to refugees.

Koh’s memo says that “lawful, more humane alternatives plainly exist, and there are approaching opportunities in the near future to substitute those alternatives in place of the current, badly flawed policy.”

Some 40 public health experts, calling the rationale for expelling Haitians and others at the border “spurious,” wrote administration officials “to insist the CDC rescind, in its entirety, the Title 42 order that continues to unethically and illegally exploit the COVID-19 pandemic to expel, block, and return to danger, asylum seekers and individuals seeking protection at the border.”

Administration officials are troubled by images of violence at Del Rio because they don’t typically have to see what their policies mean for the victims.

Humane alternatives won’t be adopted until they do.

Meanwhile, the Border Patrol union complains that the president criticized agents at Del Rio when they just “did their jobs,” and they’re right. When nonviolent Haitians seeking refuge are shackled at wrists, waist, and ankles, the Border Patrol is doing its job. When agents harangue migrants by shouting “your country’s shit,” they are doing their job.

The Border Patrol culture is one of racism and brutality. This is an agency in which violence and excessive force, secrecy about the mistreatment of children, and a lack of accountability are the bipartisan norm.

In this agency, as in Immigration and Customs Enforcement (ICE), cruelty has long been a virtue.

In the mid-1990s a Border Patrol supervisor in the San Diego sector told me it was a “morale booster” for his agents to make the lives of Mexicans more difficult by sending them 700 miles away to El Paso before deporting them.

During the Del Rio crisis, Mayorkas praised the Border Patrol for aiding Haitians, but agents told Fox News that morale was low because they prefer “vehicle pursuits” to “processing and caregiving duties.”

Border Patrol agents have destroyed drinking water supplies left by humanitarian workers for desert migrants, as the Tucson-based No More Deaths has documented. And agents kill with impunity directly, too. “I believe the system was clearly engineered to interfere with our efforts to hold the Border Patrol accountable,” a former internal affairs chief for Customs and Border Protection, told NPR in 2014.

At our southern border, as at Guantánamo, the mistreatment of Haitians and others will continue as long as the U.S. government fails to address humanitarian problems with humanity instead of with racism, institutionalized cruelty, and militarized violence.

This week, Biden’s nominee to head CBP, Tucson Police Chief Chris Magnus, promised at a Senate confirmation hearing to overhaul the agency and enforce its policies ”humanely.”

“I think humanity has to be part of the discussion early and often throughout the careers of CBP members,” he said.

Given the history of U.S. immigration and border enforcement, that’s not good enough. More courageous and fundamental changes are required.

Mark Dow is the author of American Gulag: Inside U.S. Immigration Prisons and Plain Talk Rising. (poems). His last article for The Crime Report was on COVID-19 in ICE detention centers.