President Biden is under great pressure to stop flying Haitian migrants back to Haiti under Title 42 without giving them an opportunity to apply for asylum. Uproar over treatment of the Haitian migrants is echoing from the streets of U.S. cities to the halls of the Capitol over what is believed to be a racist and unequal immigration system.

Title 42 permits the Director of the Centers for Disease Control and Prevention (CDC) to prohibit the entry of individuals into the United States when he believes that there is serious danger of the introduction of a communicable disease. Pursuant to that authority, the CDC director issued an order suspending the admission of certain individuals who have been in Coronavirus Impacted Areas. This applies to aliens who have entered the United States from Canada or Mexico and who would have to be processed in a crowded setting at a port of entry or in a Border Patrol station.

But Biden wasn’t complying widely with that order before the Haitian situation arose. In fact, in August, he only expelled 19 percent of the family units under Title 42. The percentage was higher for single adults: 75 percent.

Biden’s immigration enforcement and border security policies have created a crisis at the border, which adds to the pressures he is facing to help the Haitians instead of sending them back to Haiti.

As of the end of August, the Border Patrol has encountered 1,472,655 migrants between ports of entry (POEs) at the Southwest border in fiscal 2021.

Biden is doing little, if anything, to discourage migrants who are expelled after making an illegal entry from trying again. CBP has reported that 25 percent of the 208,887 encounters in August involved persons who had made more than one attempt to cross the border illegally.

Biden could let the Haitians into the country and give them work authorization so they can support themselves. But should he?

Temporary protected status?

On Aug. 3, 2021, Biden designated Haiti for Temporary Protected Status (TPS) for 18 months, effective through Feb. 3, 2023. During this TPS designation period, TPS participants are not subject to being deported, and they are eligible for employment authorization so long as they continue to meet the requirements of TPS.

It is too late for Haitian migrants coming into the country at the Southern Border now to benefit from that designation.


Published originally by The Hill.

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 him at