Jurisprudence

Biden Is Replaying a Forgotten U.S. Atrocity Against Haitian Refugees

A child is lifted up over a ditch by fleeing migrants.
Migrants, most from Haiti, journey through the infamous Darien Gap near Acandi, Colombia, on Oct. 5. John Moore/Getty Images

In spite of the change in administrations this past January, hardline immigration officials have continued to weaponize fears about COVID-19 as cover for the near-complete dismantling of asylum protections along the southern U.S. border. Haitians have become the public face of this program in recent months after the Department of Homeland Security sent thousands of them back to Haiti’s violence-torn capital, Port-au-Prince, without so much as an interview to determine if they might face persecution on their return.

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This is not the first time that Haitian asylum seekers have been ensnared by high-sounding public health declarations and arcane quarantine regulations. The decision to imprison several hundred HIV-positive Haitians at Guantánamo Bay during the early 1990s stands out as one of the most embarrassing incidents in recent U.S. immigration history. The cruelty and cynical justifications that gave us HIV quarantine at Guantánamo have re-emerged in the arguments for Title 42 expulsions. Dwelling on these parallels can bring into sharper focus what this latest asylum ban is and what its defenders are peddling to the American public—a bad faith reliance on pandemic fears to shirk our legal duty to asylum seekers at the border.

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The detention of HIV-positive Haitians in a quarantine camp at Guantánamo during the 1990s is a stinging reminder of the willingness of government officials to brazenly stretch public health excuses beyond their limits in support of exclusionary immigration policies. Starting in October of 1991, tens of thousands of Haitians began heading to sea to flee a wave of post-coup violence in Haiti, only to find themselves interdicted by a massive Coast Guard policing operation followed by detention in razor wire–ringed camps at Guantánamo Bay.

The Immigration and Naturalization Service implemented a two-tiered screening process at Guantánamo: Haitians requesting protection underwent an interview with an asylum pre-screening officer to determine if they had a “credible fear” of persecution, after which, if they were deemed to meet that standard, they would be shuttled to U.S. soil for further asylum proceedings under the more difficult “well-founded fear” of persecution test. By early December of 1991, the INS had sent 215 Haitians to the mainland out of approximately 700 who had passed their credible fear interviews, only to suddenly shift gears and require the remainder submit to an HIV test before leaving the base for the United States.

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Although it’s hard to fathom now, back in 1991, being HIV positive was grounds for exclusion in U.S. immigration law, although individuals could be paroled into the United States regardless of HIV status. The HIV ban, as it was often called, was itself the outgrowth of a panic over the possibility of AIDS-infected immigrants during the 1980s, a moment in which the association of Black, Haitian migrants with the virus loomed large, particularly in the rhetoric of racist South Carolina Sen. Jesse Helms, who initially proposed the ban’s codification in statute.

What’s important to recognize about this particular round of pathologization of Haitians in U.S. immigration discourse is that the HIV ban, preposterous by today’s standards, appeared equally preposterous to public health experts during the 1990s. The American Medical Association, the American Public Health Association, the CDC, and the World Health Organization all opposed the policy.

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Still, the INS of the George H.W. Bush and Bill Clinton presidencies relied on the ban to hold approximately 300 HIV-positive Haitians—individuals it had already found deserving of further asylum proceedings in the United States—in a dilapidated camp on a remote corner of a military base that lacked adequate medical facilities to treat them. As a general policy, the HIV ban made little sense. When applied to Haitians at Guantánamo, it made even less so. As physician and public health expert Dr. Michael Mann explained during the trial challenging the legality of the quarantine camp, the population being detained at the base was so small as to amount to a mere drop in the bucket given the 1 million or so individuals living with HIV in the United States at the time. Still, the Haitians languished at Guantánamo for 18 months only to be paroled into the United States under the authority Bush and Clinton officials had so obstinately refused to exercise from the outset.

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Both HIV quarantine at Guantánamo in 1991 and Title 42 expulsions on the southern border today rest on public health justifications that make a mockery of the consensus of medical experts. Our distance in time from the HIV camp, our habituation to the pandemic that fueled its absurd political machinations with regard to Haitians, and the sharp edge that the more recent history of Guantánamo adds to the tale allow us to view this episode as a mirror in which we might glimpse a reflection of our ongoing COVID fever dream. The image it reveals, if we have the stomach to look, is not flattering—it is a disturbing vision of the present likely to cause future generations to recoil as they recollect, with shame, those willing to relinquish modest legal protections for the most vulnerable at our gates in exchange for the unlikely possibility that avoiding distractions along the southern border will facilitate the pursuit of other political priorities.

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With Title 42, the stakes are high. Leaning on the fantasy that the expulsions are necessary to manage COVID, both the Trump and Biden administrations have been willing to blow up asylum protections at our land borders. The policy is wrong on so many grounds—as a matter of domestic law, as a matter of international law, and in terms of a humane U.S. policy toward Haiti. If we look back to another moment when the United States also held Black, Haitian asylum seekers in squalid camps in an effort to restrict their access to legal protections while making unsubstantiated pronouncements about pandemic danger, we might just recognize we’re making a tragic mistake yet again.

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