Between Rights and Rightlessness: Haitian Migrants and the Elusive Promises of Humanitarianism

Naomi Paik | University of Illinois

On 10 January 2010, a massive earthquake rocked Haiti, bringing catastrophic ruin throughout the nation. Fifty-one percent of the population lost their homes; thirty-three percent lost family members. It was the worst natural disaster to hit the country in more than 200 years (Romero and Lacey 2010; Ponthieu and Derderian 2013, 36). While Haitian people have a long history of emigration, the earthquake initiated a series of rolling expulsions for thousands of migrants that is now coming to a head.

In the earthquake’s immediate aftermath, Haiti’s neighbors responded by providing financial and in-country aid, and, in some cases, opportunities for people to emigrate. Brazil, for example, granted work permits to Haitians already in the country and issued visas based on humanitarian need to new arrivals, attracting 85,000 Haitians into the country by 2016 (Jubilut, Sombra Muiños de Andrade, and de Lima Madureira 2016). Though it enjoyed a booming economy at the time of the earthquake, Brazil has since entered a dire economic recession and ongoing political crises, including the overthrow of president Dilma Roussef. The resulting loss of jobs and unstable political climate compelled Haitians to leave the country. They set out once again for destinations with more stable conditions, traversing multiple borders on overland journeys to the southern doorstep of the United States. Like Brazil, the United States responded to the earthquake in part by granting migrants reprieve from its longstanding policies excluding Haitians. The U.S. Department of Homeland Security not only suspended their expedited removals—fast-track deportations with limited judicial review—but also granted Temporary Protected Status (TPS), which gave migrants provisional permission to live and work in the United States while Haiti recovered. As in Brazil, however, the ephemerality of these humanitarian reprieves is surfacing, as the U.S. government recently reinstated expedited removals and announced the termination of TPS. Traveling extraordinary distances from Haiti to Brazil to the U.S.-Mexico border, Haitian migrants are finding themselves caught in a shifting legal landscape that lands them, not in the arms of humanitarian beneficence, but in detention and deportation proceedings.

The humanitarian assistance following the earthquake signals a break in the history of U.S. immigration policy towards Haitian migrants, which historically has been defined by exclusion, interdiction, deportation, and imprisonment. Indeed, the journeys undertaken over the past seven years continue an enduring legacy of Haitian migration resulting from the forces of empire and capital that have produced the conditions of social, economic, and political instability inducing its citizens to leave home. This history extends from Haiti’s origins in the successful slave rebellion that liberated the country from French rule and the subsequent indemnity of 150 million gold francs that crippled the new nation’s economy from the start. It includes U.S. economic and military exploits, like the military occupation from 1915-1934 and the support of repressive regimes, including those of Francois and Jean-Claude Duvalier and other leaders who facilitated the reach of corporate capital and exports into the country. In other words, the earthquake did not shatter Haiti on its own. Rather, this un/natural disaster only revealed and compounded the man-made, structural devastation that has mired Haiti in endemic poverty and political upheaval (International Federation of Red Cross and Red Crescent Societies 2001; Sullivan 2015; UNICEF 2013).^[1] And yet, while the earthquake’s wreckage largely results from longstanding, socially produced conditions, its casting as a natural disaster enables wealthier nations like the U.S. and Brazil to enter this scene of devastation as humanitarian saviors to its Haitian victims.

The end of suspended expedited removals and TPS mark not the beginning of a more repressive era of policies against Haitian migrants, but the return to the normal state of affairs. Haitian migrants have arguably existed at the cutting edge of the most repressive U.S. immigration policies. From the so-called Haitian Program to expedited removals to bilateral agreements with other nation-states to prevent migrants from reaching U.S. territory, the strategies used to expel and deter Haitians—including detention and denial of due process through mass hearings, misinformation, and barriers to accessing counsel—are now regularly deployed against a range of migrants (Paik 2016; Zucker 1983; Loyd and Mountz, forthcoming).^[2] Building over the past decades, this normal state of repression is becoming ever more dire, particularly in our current moment with the newest inhabitants of the White House openly espousing white supremacy, authorizing racialized religious bans, and promoting law-and-order regimes against migrants and other targeted people.

This latest predicament of Haitian migrants—from the earthquake to the present—sheds light on the elusive promises of humanitarianism and human rights in grappling with migration in the 21^st century, characterized by metastasizing “crises” worldwide and the largest populations of displaced persons and refugees in history (United Nations High Commissioner for Refugees 2016). What sets the post-earthquake Haitian migration apart is not the migration itself, but the conditional acceptance and reticent welcome they received, as well as the increased risks and circuitous routes they must endure when those humanitarian receptions are withdrawn.

This relatively brief interlude illumines the relationships between rights and rightlessness and between rights and state power. In my previous work, I have discussed rightlessness as a multivalent concept that encompasses, yet exceeds, the stripping of fundamental rights, like due process, as well as the violence inflicted in the absence of those protections, like indefinite detention—two dimensions of this condition Haitian migrants have endured at the hands of the U.S. state. Following Hannah Arendt, undergirding the dispossession of specific rights is the removal from the “community willing and able to guarantee any rights whatsoever” (Arendt 1968, 297). People expelled from the social and political community lose this “right to have rights,” or precondition for rights to have effective power at all. As the history of Haitian migrants to the U.S. shows, such persons are excluded and expelled from the community in order to defend the rights of those who remain part of it. For example, the U.S. has justified its systemic exclusions of Haitian migrants from its community by casting them as infectious carriers of disease who threaten U.S. public health, as potential criminals or terrorists who threaten U.S. security, and as potential burdens who threaten the U.S. economy. “The rightful—as worthy, deserving subjects—enjoy the protections of rights only because other, rightless subjects are so devalued that they are excluded from those protections,” I argued (Paik 2016, 4). What this means is that rights and rightlessness are not just related, with the former defined by the absence or failure of the former. Instead, they are co-constituted. Each depends on the other to have meaning at all. Put differently, it is against rightlessness that rights become intelligible.

State power also becomes intelligible against rights and rightlessness. On the one hand, in offering a humanitarian reprieve from the status quo of exclusion and expulsion, the U.S. state deploys its authority to take in and recognize certain rights of Haitian migrants. On the other hand, by making the sovereign decision to expel the same persons it once welcomed, however tenuously, the state exercises its power to decide which subjects are worthy or unworthy of inclusion into its social and political community. Drawing on Mimi Thi Nguyen’s concept of the gift of freedom (Nguyen 2010), I interpret the humanitarian visa, suspension of expedited removal, and TPS as gifts offered seemingly out of benevolent compassion, but ultimately buttressing the power of the state. Furthermore, these humanitarian gifts are offered only on loan, with a guaranteed retraction to happen at some undefined, but promised point in the future. The closing of the humanitarian reprieve for Haitian migrants—the retraction of this gift on loan—reveals that what the state can give, it can take away. By expelling them from its social and political community, the U.S. thus moves Haitian migrants from a condition of benefiting from some rights to a condition approaching rightlessness, again, elucidating its endemic connection to rights.

This essay examines the shifting treatment of Haitian migrants from the 2010 earthquake to the present to shed light on the limits of humanitarianism and the interdependence of rights and rightlessness, focusing particularly on U.S. state policies managing Haitian migrants and the politics of migration restriction and enforcement. It begins by reviewing how Brazil and the United States offered humanitarian aid through migration shortly after the earthquake, bringing to light the contexts from which these acts of beneficence emerged, particularly the histories behind suspended expedited removals and TPS that have been evacuated from their contemporary understandings. The essay questions how states leverage such humanitarian gifts as political tools that ultimately reinforce their power. It then delves into the revocation of these humanitarian benefits, tracing the migrations of Haitians expelled from Brazil to the U.S.-Mexico border, where they met U.S. officials already managing a “surge” of Central American and Mexican asylum seekers. It reveals how rights attain meaning against rightlessness in two ways: by comparing the treatment of Haitians against other asylum seekers and by tracing the withdrawal of humanitarian benefits from Haitians. Ultimately, this closing window of time during which Haitians enjoyed partial rights recognition elucidates the limits of humanitarianism to address the structurally produced vulnerabilities of certain people. Furthermore, it is against the near rightlessness of expulsion that the rights of those humanitarian benefits—however liminal, existing in the grey zone between the “legal” and “illegal”—become intelligible. Even those marginal rights become coveted under the threat of their revocation.

Humanitarianism on Loan

Within days of the earthquake, both Brazil and the United States moved to assist Haiti by granting documented immigration status to Haitians already residing in or newly arriving to their territories. Brazil regularized the status of the approximately 4,000 Haitians within its borders, permitted family reunification, and began issuing visas from its embassy in Port au Prince. While many traveled directly from Haiti to Brazil on these visas, waiting lists for the visas soon stretched to months, motivating thousands to travel from home through the Dominican Republic and Central and South American nations to reach their destination. To address the hundreds of migrants stuck at the Peruvian border, Brazil lifted its cap of 1,200 humanitarian visas, meaning Haitians now only needed to provide their passports to acquire these visas as well as work permits (Busse and Luque 2016, 212). Brazil in the early 2010s needed additional laborers. Its economy was flourishing. Its historically low unemployment rate below five percent meant that employers had more jobs than workers to fill them, particularly as the country prepared for the 2014 World Cup and 2016 Rio de Janeiro Olympic Games that required massive construction projects. Beyond supplying labor demands, issuing humanitarian visas to Haitians also bolstered Brazil’s political profile internationally, especially in Latin America. As human rights official Valdecir Nicácio stated, “Haiti is recovering from an extreme period of crisis, and Brazil is in a position to help” (Romero 2012). Yet, while Brazil would absorb Haitians into its labor economy, the country nevertheless closed its doors to other migrants from South Asian nations like India, Pakistan, and Bangladesh, who also traveled in search of work only to be excluded (Romero 2012). The framework of humanitarianism seemed to operate on multiple levels, elevating Brazil’s political profile regionally and recruiting needed labor selectively, without the risk of drawing too many workers from too many different origins.

Similarly, the United States softened its historically punitive approach to dealing with Haitian migrants in the days following the earthquake. It suspended expedited removals, which normally sanctions lower ranking immigration officers to quickly deport undocumented aliens caught near the border without an immigration hearing. To be clear, Haitian migrants have been targets of expedited removal long before its official implementation in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Its precursor, “summary exclusion,” which impeded the “hearing, review, and appeal process” that had been the norm for undocumented migrants arriving to a port of entry, was first recommended following the unexpected arrival of 125,000 Cuban refugees from the Mariel boatlift and 30,000 Haitians to Florida in 1980 (Siskin and Wasem 2005). Though this precursor did not become law, the U.S. did respond to Haitians fleeing their country in small boats by initiating the practice of interdiction in 1981. Brokered through a unique bilateral agreement between the U.S. and Haitian governments, the interdiction policy authorized Coast Guard cutters to intercept and immediately repatriate any Haitians found in the open waters, before they could reach U.S. territory. Twenty-one years later, following the landing of a boat in southern Florida carrying 216 migrants from Hispaniola, the Immigration and Naturalization Service (INS) first expanded expedited removals specifically for “certain aliens arriving by sea,” to “assist in deterring surges in illegal migration by sea” which, it claimed, “threaten national security” (Wasem 2010: 2; U.S. Government Publishing Office 2002). The George W. Bush Administration justified this curtailment of due process by drawing from the deep well of rationalizations the war on terror provided, arguing that terrorists may pass as Haitian asylum seekers (U.S. Government Publishing Office 2002, 6). Suggesting how Haitian migration portends greater repression for all noncitizens, the U.S. government again expanded expedited removals in 2004 to include any unauthorized migrant intercepted within one hundred miles of any border, a sweeping area where 200 million people, two-thirds of the U.S. population, resides (Lalami 2017). Expedited removals continue to expand. Given how intertwined Haitian migrants have been in its emergence and expansion, the suspension of expedited removals notably enabled Haitians who reached a port of entry to enter the U.S. on humanitarian parole. It is remarkable that the U.S. offered humanitarian relief from deportation to a group it has systemically targeted for exclusion and removal for decades.

The U.S. government further granted TPS to Haitians already residing in its territory at the time of the earthquake and later extended it to those who entered under humanitarian parole by May 2011. TPS shielded the approximately ten thousand Haitians who faced deportation orders in 2010, and drew 58,000 people to register for this sought-after designation. TPS blocks deportation and provides authorization to work and, with additional requested permission, to travel internationally and return. As a collective form of humanitarian relief, TPS provides refuge to migrants who may not qualify for asylum based on their individual cases, but are nevertheless fleeing a country whose conditions prevent their safe return, whether caused by political conflicts like civil war or by environmental disasters like the earthquake. In this way, TPS offers a stand-in for asylum or refugee statuses, one that lacks their full scope of rights.

As its name signifies, temporary duration defines this protection. Its expiration is built into its structure, even though that termination point is left in an unclear future. While given a maximum duration of eighteen months, the state often extends TPS, stretching out both its benefits and the threat of its termination indefinitely. U.S. Citizenship and Immigration Services (USCIS) explicitly states that TPS comprises a “temporary benefit that does not lead to lawful permanent resident status or give any other immigration status” (U.S. Citizenship and Immigration Services). Put differently, though a TPS recipient may live in the U.S. for many years, none of this time counts towards permanent residency or naturalization, which can be granted after five years. Furthermore, TPS does not confer rights to family reunification, meaning migrants cannot sponsor family members to join them, but must leave them in a country the U.S. considers too dangerous to return to. While withholding such benefits, TPS subjects migrants to enhanced surveillance, requiring the collection of biometric data to run background checks and verify their identities. TPS thus makes migrants under its auspices continuously visible to the government, unable to live under the radar or escape its scrutiny. The government not only promises to end TPS in the unspecified future, but it can also use any information a migrant provides to deport her once it revokes this benefit.

TPS and the humanitarian parole that comes with suspended expedited removals create liminal conditions of life for migrants, who remain lodged in indeterminate time and in between documented and undocumented statuses. Migrants know their permission to stay in the U.S. will end, but do not know when. They enjoy only attenuated rights of documented immigrants, but must submit to greater formalized surveillance than undocumented immigrants, while sharing with them the ever-looming future of deportation. This “enforced orientation to the present,” in Nicholas De Genova’s terms, inhibits them from fully establishing their lives in their ostensible safe haven, because it may expel them at any time (De Genova 2002, 427). As Alison Mountz and her collaborators argue, such substitutes for asylum “serve to prolong rather than relieve the experiences of displacement” (Mountz et. al 2002, 343). Indeed, their present existence is defined by displacement, what Eric Tang has described as a continuous state of being unsettled (Tang 2015).^[3] And yet this present may extend for years, even decades. Haitians have now held TPS for more than seven years; Nicaraguans have held it since January 1999, close to two decades (Argueta 2017, 4).^[4] During these years, migrants find housing and establish lives and communities, but these many years do not count in the eyes in the U.S. state, which always maintains its power to bring them to an end. “TPS is more a condition of exclusion and insecurity,” Miranda Cady Hallet notes, “a tenuous form of legality that could be taken away at any moment, rather than a benefit granting security” (Hallett 2014, 637). And, as I have argued, such indeterminacy can characterize rightlessness (Paik 2016, 218).^[5] Migrants under humanitarian quasi-statuses are caught in the temporal contradiction of enduring impermanence, situated in an ambivalent condition between being documented and undocumented—with only partially recognized presence in the community that could guarantee their right to have rights. The state refuses to recognize their comprising part of the social and political community, which therefore, cannot really guarantee their right to have rights.

The limits and liminal character of TPS emerge from its origins in the history of the late 1980s and early 1990s, a history largely defined by U.S. imperialism in the final years of the Cold War. During this period, U.S. foreign policy and immigration policy clashed against each other for certain migrants. Like Haitian refugees of the same era, Salvadoran and Guatemalan refugees fled their homes, driven out by the widespread economic and political violence inflicted by authoritarian regimes. Yet, because the U.S. state propped up these same governments as allies in containing communist opposition in Latin America, it refused to recognize the refugees looking to the U.S. for safe haven, precisely because it was partly responsible for their expulsion in the first place. Casting them instead as “economic migrants,” its nonrecognition of these refugees as refugees also denied the massive repression of the capitalist governments and U.S. support of them. The exact opposite was true for refugees fleeing socialist governments, like Nicaragua and Cuba. Providing safe harbor for these refugees from communism proved the justness of U.S. foreign policy. When advocates for Salvadoran and Nicaraguan refugees sued the government for discriminatory treatment of asylum claims, the Justice Department settled the case out of court, offering temporary status to refugees from those countries and ultimately paving the way for TPS. As a “legal compromise,” Hallet notes, this precursor to TPS substituted “for the refugee status the state refused” (Hallett 2014, 632). While deeply embedded in these tangled histories of U.S. Cold War foreign policy and refugee exclusion, TPS has become “increasingly depoliticized and their origins in U.S. imperialism occluded” (Hallett 2014, 633). Rather, in place of this history implicating the U.S. state, its understanding as a humanitarian act frames the U.S. not as incriminated in the man-made and un/natural disasters that brought these migrants to its territory, but as their compassionate benefactor.

Whether Brazilian or U.S. American, the state deploys humanitarianism as a useful discursive and political tool that ultimately benefits itself over the migrants it is ostensibly designed to protect. The humanitarian framework dehistoricizes—a process that, as Liisa Malkki reminds us, also always depoliticizes (Malkki 1996).^[6] It delinks natural disasters from the deep social, economic, and political roots that have ultimately compelled migrants to leave their homes, in this case misidentifying the earthquake as the cause, not the catalyst, of Haitians’ forced migration. As discussed, environmental cataclysms do not produce, but only reveal and exacerbate the social divisions that cause their devastation. “Disasters don’t just happen,” Junot Diaz notes. “They are always made possible by a series of often-invisible societal choices that implicate more than just those being drowned or buried in rubble” (Diaz 2011). Humanitarianism further veils these already invisible choices, framing disasters as inescapable acts of God. Writing over the obfuscated history (one that connects the U.S. to the earthquake’s devastation), the humanitarian treatment of migrants sets up the state as the beneficent protector who rescues Haitian victims—abject objects of salvation who cannot otherwise help themselves. This sublimation erases not only the protector’s role in creating the conditions that render the migrants victims in the first place, but also the migrants’ agency, demonstrated by their movement across borders.

Humanitarian exceptions to immigration law—like TPS, suspended expedited removals, and humanitarian visas—appear as gifts compassionately bequeathed to those in need. However, “the gift (especially the gift that announces itself as gift) incriminates an economy of exchange and obligation between giver and recipient.” In the case of TPS, this obligation partly comes in the form of its requirements, like biometric surveillance. As Mimi Thi Nguyen has further argued, “there is no gift without debt—which is to say, no gift without claim on the other’s existence.” The gift produces a relationship of power over the recipient. While appearing as a generous offering, one handed over without the expectation of payment, the gift in fact shores up the power of the giver, making the recipient beholden to that power. And for an offering as awesome as salvation from disaster and potential death, the debt can never be repaid, even as the gift can be revoked. Divested of any claims to the rights of refugees, humanitarian migrants know the gift is not theirs to keep, but only given on loan. Their gracious benefactor will eventually withdraw the gift and demand its return, demonstrating its “alarmingly provisional” character (Nguyen 2010, 6, 18, 20). In this giving and taking back, the state exercises its sovereign power, both as beneficent sponsor and as shrewd, self-interested authority. “Simultaneously symbolically reinforcing the idea of the U.S. as a benevolent force in the world and placating the nativist lobby by keeping migrants unfranchised and supposedly temporary,” Hallet argues, such humanitarian exceptions constitute “a flexible technology subjecting migrants through temporariness and in the process contingently resolving several political problems” (Hallett 2014, 639). While the liminal status of humanitarian migration affirms the migrants’ insecurity, the state deploys that ambiguity as a malleable resource it can bend according to its needs in a fluid political context.

Furthermore, the humanitarian gift exists simultaneously side-by-side, not just sequentially, with the repressive forces of the state. The U.S. responded to the Haitian earthquake not solely by offering direct aid and migrant protection, but also by taking preemptive actions to prevent mass migration to its territory. Two days after the earthquake, Janet Napolitano, Secretary of Homeland Security, set up a task force to deal with this apparently looming threat (Lubold 2010). Out of that task force, the U.S. mobilized Operation Vigilant Sentry, a “multiagency contingency plan” established in 2003 that marshals dozens of local, state, and federal agencies to deal with potential “Caribbean mass migration” (U.S. Government Accountability Office 2007, 24). It prepared its detention centers, clearing space in Miami facilities by moving hundreds of migrant prisoners to other locations and setting up the Guantánamo Naval Base (once again) for Haitian detention. The U.S. also sent sixteen Coast Guard cutters to patrol the Haitian and international waters standing between “boat people” and U.S. shores, while broadcasting a radio announcement by Haitian ambassador to the U.S. Raymond Joseph warning: “If you think you will reach the U.S. and all the doors will be wide open to you, that’s not at all the case. And they will intercept you right on the water and send you back home where you came from” (Ahlers and Mount 2010).

That the state imposes beneficence and repression simultaneously sheds light on their internal connection. They are not mutually exclusive; the role of state benevolence is not to restrain or ameliorate state repression. Rather, together, they offer multiple vectors through which the state can wield its powers. This co-constitution explains why beneficence can turn into repression at any time, depending on the state’s shifting needs and will. In the current moment defined in the U.S. by an executive office that explicitly espouses white nationalism and passes xenophobic policies, the needs of the state are bending towards the revocation of the gift. As De Genova argues: “Every ‘legalization’ has an inherently episodic and strictly partial character that never eliminates the field of ‘illegality’ but rather, in concert with the amassing of immense quantities of data for scrutiny by the authorities, simply refines and reconstitutes that field for the ineligible who will remain undocumented” (De Genova 2002, 249). Humanitarian reprieves for migrants do not ultimately resolve the divide between “legal” and “illegal” or between the relatively rightful and rightless—either for U.S. immigration politics in general, or for migrants who will lose even these liminal rights in particular. Every “legalization,” like humanitarian statuses, implies its own undoing.

Humanitarian Retractions

In Brazil, the undoing of humanitarianism for migrants coincided with its economic collapse, when the economy fell precipitously in 2014 from thriving wealth to its longest recession since the 1930s. In 2015, the economy withered 3.8%, the biggest annual decline since 1990 (Charner and Gillespie 2016). Its currency lost 24% of its value against the U.S. dollar. Inflation spiked 10%, and unemployment climbed from 4.5% in 2012 to 11.8% in 2016, leaving 13 million Brazilians out of work by 2017 (Levinson 2016). As foreigners, Haitian migrants drawn to Brazil by its post-earthquake humanitarian visas and job opportunities were some of the first to lose their jobs when the economy crashed. While the severe recession pushed them out of the job market, Brazil’s welcome to Haitian migrants had already begun to wear thin. Brazil increasingly restricted Haitian mobility across its land borders in early 2012, stranding hundreds in Peru, where some found work laboring in illegal gold mines in the Amazon (Romero and Zarate 2012).^[7] By 2017, many Haitians stopped trying to enter Brazil, while 35% of those who had already migrated began leaving the country, with approximately 40,000 departing between 2014 and 2015 (Hall 2016). These migrants left for other Latin American nations, often as intermediate stops on their way to the United States, which maintained its suspension of expedited removals. As word traveled back that Haitians could enter U.S. territory through ports of entry on the southern border, more set out on the 7,000-mile overland journey.

Haitian migrants set out again to navigate across multiple borders and legal regimes on the way, their status shifting between legal and illegal as they moved across different countries. Some countries like Ecuador would offer temporary visas to allow them to pass through their territories, while others, like Peru, maintain more stringent entry requirements. Still others, particularly in Central America, hold more punishing or restrictive polices. Panama temporarily blocked its southern border, stranding thousands in Colombia; Nicaragua, the most treacherous part of the journey, returns intercepted migrants to Costa Rica; and Guatemala detains them (Semple 2016; Charles 2016; Busse and Luque 2016). The myriad obstacles set before them make this journey, already ten times longer than the oceanic distance separating Haitian and U.S. shores, even more grueling and precarious. Success requires multiple modes of transportation—from plane travel and automobiles to canoes and hiking through jungles and swift-moving rivers—and up to $7,000 paid to smugglers, who help navigate the most arduous, forbidding sections of the passage. These overland journeys, from Haiti to Brazil and from Brazil to the United States, reveal the emerging patterns of “transit migration” that more and more people are compelled to take as states secure and militarize their borders. Migrants experience transit migration both spatially, crossing through many countries via ephemeral routes, and temporally, as a state of continuing, often compelled, mobility (Busse and Luque 2016). Transit migration is a global phenomenon. On these journeys from South to North America, Haitians joined thousands of others from an array of countries from Africa, Europe, Asia, as well as the Americas, all trying to make it to the U.S.-Mexico border (Charles 2016; Busse and Luque 2016).^[8]

U.S. border officials and NGOs noted the “unusual surge” in this diverse array of migrants, particularly of Haitians, in late 2015 (Semple 2016). The Brazilian economic crisis eventually spread its effects to the U.S. border, as more than 5,000 Haitians arrived at the San Ysidro port of entry separating Tijuana and San Diego between October 2015 and September 2016, a 500% increase over the previous year, with more trying their luck at other ports of entry along the border (Burnett 2016; Gonzalez 2016). The numbers of migrants presenting themselves peaked by summer 2016, with Haitians rushing to make it to the U.S. before the impending presidential election and potential fulfillment of a campaign promise to erect a border wall and keep new migrants from entering the country (Semple 2016).

Haitians arrived at a border already crowded with refugees fleeing dire conditions of violence in parts of Mexico and in the Central American countries of the Northern Triangle—Guatemala, El Salvador, and Nicaragua. Mexico’s Internal Displacement Monitoring Centre counted more than 280,000 internally displaced persons in 2015 (Amnesty International 2017, 9).^[9] From 2014 to 2016, at least 450,000 Central Americans fled the Northern Triangle each year, with August 2016 recording some of the highest numbers yet (O’Neil 2016). The United States is neither the first, nor the only destination where people seek refuge. The surrounding region—Belize, Costa Rica, Nicaragua, Panama, and Mexico—has collectively experienced an over 400% increase in asylum requests (United Nations High Commissioner for Refugees 2014, 15). Noting the limits of contradictory national solutions to a regional dilemma, former INS Commissioner Doris Meissner emphasized: “There has to be a much more collective, concerted approach with a lot more cooperation, collaboration in the region” (qtd. in Charles 2016). In the absence of such a concerted approach, Haitians traveling from Brazil entered into a thick, volatile situation already considered as a crisis.

U.S. immigration officials responded to this dramatic increase by deeming migrants a national security threat. The U.S. drew on a variety of repressive tools, like detention and surveillance, including ankle bracelet monitoring; fast-track, mass deportation proceedings; foreign aid to countries of origin for repatriation programs; and near categorical denials of Central American and Mexican asylum seekers (Hernandez 2015).^[10] Although the sharp increases in border apprehensions, particularly of women and unaccompanied minors fleeing gang violence, had been occurring since at least 2009, the government’s enforcement “countersurge” in practices of deterrence, detention, and deportation mounted in 2014 (Hernandez 2015). As this countersurge has intensified, migrant advocates have documented the range of tactics Customs and Border Patrol (CBP) agents use to deter Central Americans and Mexicans from even claiming asylum, including “misrepresentations, threats and intimidation, verbal abuse and physical force, and coercion” (Al Otro Lado v. Kelly 2017). Immigration officials misinform migrants that they are ineligible (which only asylum officers, not CBP, can determine), need visas to cross into the U.S., or must first request asylum from Mexican officials (American Immigration Council 2017).

While these strategies echo the history of U.S. immigration policies targeting Haitian “boat people,” the denials of Central American and Mexican asylum seekers are ironically executed in part through a procedure set up on behalf of Haitian migrants. To manage the spike in Haitians trying to enter under the humanitarian parole still in effect since the 2010 earthquake, CBP worked with Grupos Beta, the humanitarian division of Mexico’s National Institute of Migration (INM), to create a system requiring Haitians to receive a “ticket” with a future appointment with CBP, while giving them permission to stay in Mexico free from detention or deportation. Launched in May 2016 and designed solely for Haitians, this system was then used to prevent Central American and Mexican migrants from making a claim for asylum, which would move them into a lengthened asylum process protected from expedited removal proceedings (Drake, Acer, and Byrne 2017, 8; Amnesty International 2017, 21-22). Further, Mexican officials, with substantial material help from the United States, had already initiated Plan Frontera Sur in July 2014, which intensified policing on its border with Guatemala specifically to intercept Central American migrants before they reached the United States, essentially stretching U.S. migrant enforcement thousands of miles south through sovereign Mexican territory. As U.S. Assistant Secretary of International Affairs Alan Bersin stated: “The Guatemalan border with Chiapas is now our southern border” (qtd. in Kovic and Kelly 2017, 1; Amnesty International 2017, 31-32).^[11] Thus, while Central Americans continue to leave their homes at the same rate, the number making it to the U.S. border has wavered significantly due to Mexico’s enforcement (O’Neil 2016).

Although U.S. and Mexican authorities established the ticketing system to manage a humanitarian benefit to Haitians, they directed that same system to deny humanitarian recognition to other asylum seekers (Currier 2017).^[12] This rerouting of the ticketing system demonstrates the state’s flexible ability to contort such procedures to exclude migrants from those very humanitarian protections. Grupos Beta launched in the 1990s to protect the human rights of migrants near the U.S.-Mexico border regardless of status, but, in denying tickets to Central American and Mexican migrants, has been recruited into defending state sovereignty over the rights of migrants (Smith 2001). The state exercises its power to apply humanitarianism not only to bestow, but also to deny rights recognition. This dichotomy—the fact that Haitian parole is used against Central American and Mexican asylum seekers—exposes the internal connection between rights and rightlessness. To reiterate, rights attain meaning against rightlessness. The parole given to Haitians and its life-enabling capacities are plainly revealed by the denial of safe haven to other migrants fleeing lethal violence. And yet, the relative rightfulness of Haitians granted humanitarian benefits has always been radically insecure, subject to any shift in the U.S. state’s sovereign decision to sustain or take back this gift.

On 22 September 2016, just four months after establishing the ticket system, DHS resumed expedited removals of Haitian migrants arriving at the border. As thousands of Haitians reached ports of entry, DHS cast them as constituting a crisis on their own, while also escalating the existing, ongoing spike in the number of migrants seeking entry at the southern border. Whereas before, CBP would allow them entry and eventually parole them into the country with temporary authorization (though not TPS), they would now process Haitian migrants through the expedited removal process stripped of due process protections. After a years-long respite, Haitians would return to the normal of accelerated deportations and abrogated rights recognition. The order impacted new arrivals immediately, forcing an impossible decision—whether to chance trying to enter the U.S. and risk deportation to Haiti, or try to stay and find work in Mexico (Gonzalez 2016). These migrants—many having spent months and considerable sums of money traveling from home to Brazil to the U.S. border—would return to a country that had not fully recovered from the earthquake and the underlying social conditions that made its devastation so severe. Furthermore, they would return to a country devastated again by another un/natural disaster, as Hurricane Matthew, a category four storm, wrecked Haiti on 3 October 2016, killing more than one thousand people, displacing sixty thousand, and leaving nearly 1.5 million (approximately ten percent of the country’s population) in need of humanitarian assistance (Pskowski 2016; Levinson 2016). Though DHS briefly suspended its deportations due to Matthew, the fiercest hurricane to strike the Caribbean in over a decade, it again resumed expedited removals one month later, on 3 November.

The return to expedited removals set off an avalanche of repressive measures by the U.S. state against Haitian migrants. In a statement confirming the resumption of removals, DHS Secretary Jeh Johnson also announced “plans to significantly expand removal operations in the coming weeks,” including swelling its detention capacity so that migrants “can be detained and sent home as soon as possible” (U.S. Department of Homeland Security 2016) DHS tripled its processing volume from fifty to 150 Haitian migrants per day, all in service of deporting them faster (Semple 2016). Johnson fell back on reliable, well-established scripts to justify this return to exclusionary policies—using detention and deportation as deterrence: “Those who attempt to enter our country illegally must know that, consistent with our laws and our values, we must and we will send you back” (U.S. Department of Homeland Security 2016). This decree operates through its sovereign capacity to switch a migrant’s status from (quasi-)“legal” to “illegal” by unilateral fiat. Only one day before, it considered “those who attempt to enter our country illegally” “legal.” This one change reflects and extends the longer U.S. history of criminalizing migration, as the movement of people across borders and living in the U.S. without authorization have become increasingly subject to punitive regimes over the past decades.^[13] Since 2011, well before this renunciation of humanitarian parole for new arrivals, DHS had begun whittling away these exceptional protections by deporting priority migrants, like people under final removal orders who had been convicted of felony charges (U.S. Department of Homeland Security 2016). While Johnson emphasized that the reinstated expedited removals at the border would continue to focus on criminalized migrants convicted of felonies, multiple misdemeanors, or unauthorized border crossings, ICE’s own data shows that over ninety percent of more than 2,000 Haitians deported between October 2016 and January 2017 had no criminal records (Gonzalez 2017). Once again, the discourse of prioritizing “felons, not families” (as if these two categories are mutually exclusive) sets up a false dichotomy between “bad,” criminal and “good,” law-abiding migrants, while providing the means by which all migrants become criminalized. This shift from humanitarian parole to “illegality” reveals that the criminalization of migrants does not stay focused on its supposed targets (“felons”) but spreads to encompass all migrants, including those once considered humanitarian beneficiaries.

This specific shift marks another moment in the escalation of repressive border regimes under the Obama administration, even before the transfer of power following the 2016 presidential election. For example, Obama added nearly 10,000 border patrol agents during his presidency, even though this dramatic increase has not stopped migrants from attempting to cross the border, but only re-directed their routes through more dangerous territory, while bolstering black market economies for smugglers. If the past decades of the increased use of detention and deportation as deterrence have shown us anything, it is the ineffectiveness of these tactics. And yet, such repressive policies do achieve other goals. “It is precisely ‘the Border’ that provides the exemplary theater for staging the spectacle of ‘the illegal alien’ that the law produces.” As De Genova further argues, the “spectacle of ‘enforcement’” forcefully demonstrates the state’s power of subjection—of subjugating people it deems “illegal” to its dominance and of producing the “illegal alien” as a relatively rightless subject. While fundamentally incapable of addressing the core issues of economic inequality and social and political violence that compel people to migrate in the first place, the spectacle of border control naturalizes, and thereby fortifies, the legally made distinctions between the “legal” and the “illegal” (De Genova 2002, 246).

The new U.S. executive branch is wasting no time in extending this strategy. Even before officially taking over the administration, the xenophobic campaign rhetoric that equated immigrants with rapists, drug traffickers, and murderers and proposed solutions of walls and mass deportations seeped down from the new president to immigration officials making executive decisions on the ground against migrants. CBP officers have increasingly rejected asylum seekers arriving at ports of entry along the southern border since the November 2016 election, even though the number of arrivals has declined (Drake, Acer, and Byrne 2017: 1; Al Otro Lado v. Kelly 2017; Currier 2017). As multiple migrants have testified, CBP officers misinform them that the new president “just signed new laws saying there is no asylum for anyone” (Al Otro Lado v. Kelly 2017).^[14] While the highest echelons of the executive branch can plausibly deny any integrated coordination, human rights advocate Shaw Drake argued: “The trickle-down effect of the rhetoric … has opened up the floodgates of local officers who hold personal views that certain subgroups are taking advantage of the system” (qtd. in Currier 2017).

The takeover of the U.S. presidency has transformed this trickle into a deluge, starting with the slew of executive orders that put official force behind the anti-immigrant rhetoric that propelled the administration’s campaign. These executive orders include the “Muslim Ban” that also drastically reduced the total number of refugees the U.S. would accept; the intensification of immigration enforcement within the nation’s interior through tactics like immigration raids; and the augmentation of security at the southern border, including a border wall. All three executive orders, signed within two days of each other, speak to the administration’s concerted attacks on immigrants, rooted in the assertion that immigration “presents a clear and present danger to the interests of the United States” (White House Office of the Press Secretary 2017). While all three affect Haitian migrants—as people with a history of forced migration and unrecognized refugee status; as Black immigrants who face the brunt not only of ICE, but also of regular law enforcement that feeds into deportation; and as migrants arriving to the U.S-Mexico border—the border security order most directly affects those Haitians covered by humanitarian protections initiated after the earthquake. While the wall is the border security order’s signature proposal, it also commands DHS to expand detention capacity, quicken the pace of entry eligibility determinations (and, thus, of the removals that follow), and “to end the abuse of parole and asylum provisions” (White House Office of the Press Secretary 2017). Claiming that the federal government must implement these actions because it has thus far “failed to discharge this basic sovereign responsibility,” it casts its actions not as a new increase in repressive control, but as fulfilling the state’s neglected duties to its people.

The border security order treats asylum seekers and humanitarian migrants as violators of the law, who must be deported for exploiting the nation’s generosity in offering asylum and parole at all. In his memo implementing the order, then DHS secretary John Kelly asserted, “Clearly, the asylum process is rife with fraud and abuse.” To “restore [a lost] integrity to asylum,” the memo authorizes the immediate deportation of asylum seekers and demands that credible fear and removal hearings be conducted through a teleconferencing system. In this process, an asylum seeker would be repatriated and thus exposed to the very dangers they seek to escape, rather than detained or released in the U.S., while awaiting adjudication of their claim for safe haven. Their hearing would take place remotely, mediated by screens and without access to immigration lawyers, thereby dramatically reducing their chances of receiving asylum. The memo also seeks to dismantle humanitarian parole, arguing: “The practice of granting parole to inadmissible aliens in pre-designated categories in order to illegitimately create immigration programs not established by Congress, has created a border security crisis, undermined the integrity of the immigration laws and the parole process, and created an incentive for additional illegal immigration” (Kelly 2017).^[15] In essence, the new administration ends the type of humanitarian parole that recognizes group-based vulnerabilities, like those emanating from un/natural disasters like the Haitian earthquake. In delegitimizing the recognition of “pre-designated categories,” Kelly casts such migrants as already disqualified from entering the U.S., reversing the pre-determination from a blanket protection to a near total exclusion. For Haitian migrants carrying the legacy of the Haitian Program, it once again indicates a return to the norm.

Kelly further blames the border crisis on the granting of parole to migrants, which, he claims, encourages overwhelming numbers of people to leave their homes, families, and lives to come to the U.S. He makes this claim even as the growth in migration is not only regional, with increases in asylum claims in neighboring countries, but also entrenched for years. Though cast as an emergency, this border crisis did not suddenly appear out of nowhere. The procedures developed over years to deal with the crisis, including multimillion-dollar packages to Mexico for security and to the Northern Triangle for repatriation, refute such a framing. The language of crisis, David Hernandez argues, masks the deeper reasons that explain the apparent emergency. It not only frames the predicament as if it stands alone “without precedents or patterns,” but also makes “the migration of these persons seem impulsive, resulting from individual choices regarding safety or false rumors of easy acceptance after arrival to the United States” (Hernandez 2015: 13).^[16] Put differently, the way the U.S. state (as well as human rights advocates and media outlets) approaches mass migrations masks a deeper history in which the U.S. has fostered economic insecurity and widespread political and social violence that drive people across borders. It instead redirects blame to the state’s excessive beneficence in accepting the migrants it helped produce, but cannot admit it helped produce. Indeed, in naming its targets as “aliens who have no lawful authority to enter or remain in the United States” (Kelly 2017), it naturalizes the “illegality” of these migrants as existing outside of the state’s sovereign decision to decide who can “lawfully” exist within its territory in the first place.

Less than four months after passing this executive order, the new administration began moving to end TPS, starting with Nicaraguans and Haitians, but spreading to other nationalities. Although departing Secretary of State John Kerry recommended extending TPS for Haitians December 2016, USCIS Acting Director James W. McCament recommended five months later that DHS allow Haiti’s TPS designation to expire, even while admitting that Haiti still struggled with vulnerable conditions. Because Haiti’s conditions alone clearly cannot justify the revocation of TPS, USCIS sought additional rationales. McCament’s memo stated, “USCIS is unaware of any evidence or data to indicate that permitting Haitian nationals specifically to remain temporarily in the United States is contrary to the national interest of the United States” (McCament 2017). And yet, only three days before the memo’s release, policy chief Kathy Nuebel Kovarik began searching for data on “crimes of any kind,” uses of public assistance, remittances sent, and instances of travel to Haiti by TPS holders. Given that she began sending these emails on her second day in office, Nuebel Kovarik might not have understood that TPS already bars any migrant convicted of a crime and prohibits its recipients from receiving public welfare. She might not have realized that USCIS already had mechanisms of surveillance in place to ensure that TPS holders would be denied renewal if found to have committed a crime or benefited from welfare. Haitian activists have identified a different motivation behind this quest for incriminating information. Noting the executive’s “extraordinary measures and discriminatory factors,” Jonathan Jayes-Green, National Coordinator of the UndocuBlack Network, stated: “As Black immigrant communities, we are very aware of how agencies, organizations and institutions have sought to equate Blackness and poverty with criminality, and used that mantle to deny our communities of our human rights” (National Immigrant Law Center 2017). Regardless, Nuebel Kovarik looked not only to buttress the link between Haitian migrants and criminality and welfare dependence, but also to find evidence showing that TPS holders would have no difficulty returning home, like visits home. “Please dig for any stories (successful or otherwise) that would show how things are in Haiti—i.e. rebuilding stories, work of nonprofits, how the U.S. is helping certain industries,” she directed. “Even though it’s only a snapshot, ... we need more than ‘Haiti is really poor’ stories” (Caldwell 2017). Beyond hunting for evidence vilifying TPS holders, USCIS also deliberately sought any “stories” that would refute the obvious reality in Haiti.

With such thin justifications for cancelling TPS, DHS Secretary Kelly initially extended it for Haitians, but only for six, rather than the maximum eighteen, months, giving the U.S. executive branch more time to prepare for TPS’s ultimate end (U.S. Department of Homeland Security 2017). Kelly visited Haiti the week after announcing the extension to meet with president Jovenel Moise regarding this mass repatriation, seemingly laying the groundwork for the revised State Department reports required to end TPS. Secretary of State Rex Tillerson delivered on 6 November, instructing DHS that country conditions no longer justified protected status. Two weeks later, DHS announced the end of TPS. Affected Haitians will lose their TPS status in July 2019, with the extended time offered “to allow for an orderly transition” (Office of the Press Secretary 2017; United States Citizenship and Immigration Services 2017).^[17] Though country conditions must be met in order to cancel TPS, it appears that DHS’s priorities to expel TPS holders in fact drove the State Department’s decision. As an unidentified administration official stated: “With this particular law, it is very clear to this administration what needs to be done” (Miroff and DeYoung 2017). Notwithstanding actual conditions in Haiti, the current president’s administration will terminate its humanitarian beneficence to Haitian migrants and return them to a country whose conditions have hardly improved since the 2010 earthquake.

Tillerson’s revised report is based on pure assertion. Hundreds of thousands of Haitians still do not have permanent homes as a result of the earthquake (Fadel 2017). Cholera, introduced to Haiti by UN peacekeepers in the wake of the earthquake, and diphtheria continue to pose public health problems. Furthermore, Haiti’s economy has plummeted since 2014, with lower foreign investments, drastic reductions in foreign aid, and an agricultural economy suffering from drought and hurricanes, exacerbating food crises for much of the population. Inflation has leaped from five percent to over fifteen percent, while the economy is projected to shrink this year (Charles 2017). Most recently, multiple, historically fierce hurricanes have roiled through the Caribbean in the summer of 2017. While Haiti has so far been spared the near complete devastation of other islands, it has nevertheless endured the impact of these storms. Hurricane Irma, for example, destroyed crops, cattle, and cities in the northeastern part of the country, leading Fort Liberty mayor Louis Jacques Etienne to call it a “nuclear hurricane” (Bever et al. 2017). Even McCament’s previous recommendation to end TPS acknowledged that Haiti still confronted dire challenges of housing, public health, food insecurity, and state dysfunction. However, McCament argued that these problems “have plagued Haiti for decades” and thus should not comprise the basis for continuing TPS for Haitian migrants. Ultimately, he claimed, “it is not in the national interest to extend a TPS designation when the specific extraordinary and temporary conditions giving rise to a TPS designation no longer exist” (McCament 2017). Indeed, the same State Department that asserted Haiti had achieved conditions stable enough to warrant the repatriation of 60,000 migrants simultaneously maintains a travel advisory warning of the country’s “current security environment and lack of adequate medical facilities and response” (U.S. Department of State 2017). By the State Department’s own admission, then, conditions in Haiti present hazards to its citizens troubling enough to avoid a mere visit, but perfectly suitable to compel Haitian migrants to return to and live in permanently.

That Haiti has long been and will continue to be constrained by poverty and political instability is not untrue. The U.S. takes these economic and political conditions for granted. Aligned with a long and consistent history of nonrecognition, what is once again missing from its justification is the role of the United States in fostering the conditions that have continually compelled Haitians to leave home—its centuries-old imperial coercion, support of capitalist dictators, and economic exploitation. As discussed, TPS traces its historical roots to the Cold War, as a compromise offering to refugees whom the U.S. would not recognize as refugees fleeing their capitalist allies, but could not exclude as economic migrants due to judicial challenges. Hallet reminds us that this political history has been depoliticized and obscured over time, entrenching its framing as a generous humanitarian gift to victims of civil wars and un/natural disasters that have nothing to do with external forces, like U.S. global power or capitalist exploitation. The earthquake only revealed, if spectacularly, but did not create Haiti’s severe economic and political predicaments. The “specific extraordinary and temporary conditions giving rise to a TPS designation” are neither specific nor temporary. They did not emerge from the exceptional event of the earthquake, but from the structural sources that have no clear expiration date. If TPS is meant to provide reprieve from these deep conditions merely made visible by the earthquake, then it cannot be temporary.

In addition to Haiti’s inability to reintegrate thousands of repatriates, the end of TPS will tear its recipients from their lives built in the U.S., which weave together jobs, homes, friends, communities, and U.S.-born citizen children (Jordan 2017).^[18] These well-established lives factored into the decisions leading to TPS’s termination. Recounting his deliberations, Kelly stated: “I go back to this issue of, the longer that people stay in the United States, the more of an argument they have that they have become Americanized and ‘Why do I have to leave?’” (Charles 2017). Kelly ventriloquizes a legitimate question. The time that TPS holders spend in the United States gives them not just an argument for remaining in the country. During that time, already given, they have established lives here that cannot be undone by executive fiat. Not only have some recipients held the status for years, but they also know they would return to a Haiti little better than when they left. Indeed, some have already uprooted their lives to avoid deportation to a country they know cannot handle such a mass return. Since the U.S. reinitiated expedited removals of Haitian migrants, thousands have sought safe haven from repatriation by making their way across the northern border to Canada, which must now grapple with the consequences of U.S. policies (Levin 2017).^[19]

Other TPS holders and immigrant organizers have been fighting against this potential mass removal and beseeching legislators to forge a path to legalization. Such a path does exist. Legal precedents have created such “legalizations,” even for Haitians. For example, the 1986 Immigration Reform and Control Act allowed “Cuban-Haitian Entrants,” given this similarly temporary status following the Mariel Boatlift and simultaneous Haitian exodus, to become legal permanent residents (Wasem 2010; 3). In 1998, Congress passed the Haitian Refugee Immigration Fairness Act, which provided a path to legal residency for refugees paroled into the U.S. by 1995, many of whom had fled Haiti following the coup d’etat of president Jean Bertrand Aristide in 1991.^[20] Although legislators are introducing bills that would offer a path towards permanent legal status for TPS holders, such a law requires a supermajority vote of three-fifths of the Senate to become law (Undocublack Network… 2017; Nixon 2017). With the legislative and executive branches defined in part by anti-immigrant xenophobia and anti-Black racism, the prospects for finding a permanent solution for Haitian TPS holders remain dismal. And even if the government were to pass this extraordinary bill, it would not help those Haitians intercepted at the border now repatriated via expedited removals. More deeply, it would shift neither the overall conditions of re-entrenched nationalism driving these anti-immigrant policies, nor the internal ties binding the rights of the “legal” to the relative rightlessness of the “illegal.”

As demonstrated by the anti-immigrant executive orders mentioned above—as well as the recent decision to cancel Deferred Action for Childhood Arrivals (DACA), which similarly offered temporary, liminal authorization—the end of TPS and suspended expedited removals comprise just one part of a much deeper agenda targeting migrants, immigrants, refugees, and asylum seekers. Not only has the government recently resumed expedited removals for Haitians arriving at the southern border, but it also once again expanded expedited removals to apply to all inadmissible “aliens apprehended anywhere in the United States” (Kelly 2017; 6, emphasis mine). Expedited removals—first expanded to capture “aliens arriving by sea,” then expanded to any area within 100 miles of any border—have now transformed the entire U.S. territory into border space. The liminal benefits and rights offered through humanitarian parole, programs like TPS and DACA, and even paths to citizenship for the undocumented, constitute exceptions to the immigration laws and policies that seek to refine and harden the divide between the “legal” and “illegal.” Meanwhile, “the field of ‘illegality’” endures (De Genova 2002, 429).

Regardless of arguments that recipients of such humanitarian benefits, knowing that their permission to stay in the country was always only temporary, should never have built lives here, the U.S. effort to expel them constitutes an act of state violence. It demonstrates the capacity of the state to exercise its dominion over the subject under its power—whether as its beneficiaries or its targets. As I have argued before, while migrants yearn for these humanitarian statuses and limited protections, the fact that they can be taken away illustrates how, as long as the “U.S. state can decide when and where rights can be annulled,” they will always remain subject to the threat of expulsion and rightlessness (Paik 2016, 150). As Lys Isma, TPS recipient and member of the UndocuBlack Network, noted: “You cannot be surprised when a system not designed for you fails you. I live in America, I live as a Black female undocumented immigrant. Those are just many ways I was not designed to succeed. But I’m just going to have to succeed in spite of all of those factors” (Undocublack Network… 2017).

A. Naomi Paik is an assistant professor of Asian American studies at the University of Illinois, Urbana-Champaign. Her book, Rightlessness: Testimony and Redress in U.S. Prison Camps since World War II (UNC Press, 2016; winner of the Best Book in History Award, 2017, Association for Asian American Studies; finalist for the John Hope Franklin Prize for best book in American Studies, American Studies Association, 2017), reads testimonial narratives of subjects rendered rightless by the U.S. state through their imprisonment in camps. Her research and teaching interests include comparative ethnic studies; U.S. imperialism; U.S. militarism; social and cultural approaches to legal studies; transnational and women of color feminisms; carceral spaces; labor, race, and migration.

Acknowledgements

I thank the following dear friends: Nadine Naber for working alongside me and keeping me on task; Sam Vong for his reading and feedback; and Ninaj Raoul of Haitian Women for Haitian Refugees for her tireless organizing for Haitian communities.

Notes

             [1] I take the term “un/natural” from the International Federation of the Red Cross, which, while pointing to the human causes lying beneath the devastation of natural disasters, also wasted $500 million in donations to its Haitian earthquake fund, distributed not to Haitian people in need, but to third-party charities that all took major cuts of the funds for their administrative costs. UNICEF reports that Haiti is the poorest country in the Western Hemisphere with over sixty-one percent of its population living below the international poverty line on $1.25 per day.

             [2] For more on the Haitian Program and histories of Haitian migration to the United States, see my book Rightlessness: Testimony and Redress in U.S. Prison Camps Since World War II, especially chapters three and four.

             [3] By drawing on the concept of unsettled, I also mean to highlight the continuities between asylum proxies, like TPS, and asylum itself. While refugees and asylees do enjoy legal rights and protections withheld from migrants under humanitarian parole or TPS, as Tang argues, refugees and asylees can nevertheless live under conditions that subject them to the continuous uncertainty of removals and expulsions, if internal to the United States.

             [4] Currently, the U.S. grants TPS to more than 300,000 people from thirteen different countries, including El Salvador, Guinea, Haiti, Honduras, Liberia, Nepal, Nicaragua, Sierra Leone, Somalia, South Sudan, Sudan, Syria, and Yemen.

             [5] In particular, I discussed how the prison camps of Guantánamo were “situated between Cuban and U.S. legal regimes and jurisdictions,” thus holding their captives in at the “indeterminate time of indefinite detention.”

             [6] Malkki argues: “One important effect of the bureaucratized humanitarian interventions that are set in motion by large population displacements is to leach out the histories and the politics of specific refugees’ circumstances.” (1996, 379).

             [7] Brazil’s paternalistic rationale for this crackdown on migration resonates with the U.S. justification for interdiction Haitian small boats on the open ocean. While both countries instated these forms of border control to prevent Haitians from entering their territories, they justified these restrictions on an ethos of care and humanitarian concern for Haitian life.

             [8] Transit migration describes phenomena occurring around the globe, as refugees and migrants try to make their way across multiple countries after being expelled from home to places of refuge. It is particularly apparent, for example, in the migrations of Syrian refugees fleeing home for Europe. In the case of the Americas, Kirk Semple has noted that migrants traveling through the Americas hail from Afghanistan, Burkina Faso, Nigeria, Sudan, Cuba, Pakistan, Cameroon, Bangladesh, Russia, the Dominican Republic, Iraq, Côte d’Ivoire, and more.

             [9] As Amnesty International reports, El Salvador and Honduras were more lethal than conflict zones like Iraq and Afghanistan in 2012 and 2015, due to rampant violence executed by gangs that trace their origins to the United States and traveled back to Central America when the U.S. deported their members.

             [10] For more on the Central American migrant “crisis,” see Hernandez’s essay “Unaccompanied Child Migrants in ‘Crisis’: New Surge or Case of Arrested Development?”

             [11] Not only does Plan Frontera Sur resonate with the bilateral interdiction agreement brokered between the U.S. and Haiti that enabled the U.S. Coast Guard to intercept and return Haitian migrants intercepted in international waters. It also builds on longstanding bilateral migration control agreements between the U.S. and Mexico. For example, the U.S. provided Mexico $75 million in 2008 through the Merida Initiative, a “security cooperation package” that included equipment, arms, training, and advising to bolster enforcement of Mexico’s southern border.

             [12] While there is no policy from CBP ordering its officers to demand a ticketed appointment from Central American and Mexican migrants at ports of entry along the southern border, multiple migrants have reported that CBP officers demand they make an appointment through Grupos Beta.

             [13] There is a rich literature expounding on the criminalization of immigration. A few examples include Nicholas De Genova’s “Migrant ‘Illegality’ and Deportability in Everyday Life,” Kelly Lytle Hernández’s Migra!: A History of the U.S. Border Patrol, Dawn Marie Johnson’s “AEDPA and the IIRIRA: Treating Misdemeanors as Felonies for Immigration Purposes, and my essay “Abolitionist futures and the US sanctuary movement.”

             [14] Furthermore, plaintiffs in a lawsuit against the Department of Homeland Security note that CBP admitted to illegally denying asylum claims to migrants while giving testimony under oath before Congress. As they note: “On June 13, 2017, in questioning before the House Appropriations Committee, the Executive Assistant Commissioner for CBP’s OFO [Office of Field Operations] admitted that CBP officials were turning away asylum applicants at POEs along the U.S.-Mexico border.”

             [15] Kelly’s memo also expands expedited removal once again to ensnare “aliens apprehended anywhere in the United States” within two years of their entry. As discussed, the U.S. state first deployed expedited removal against Caribbean migrants arriving to U.S. shores by sea, then expanded it to encompass any undocumented migrant captured within one hundred miles of the border. The order essentially turns the entire territory of the United States into a borderland, with its abrogated rights, for undocumented persons.

             [16] See also Miriam Ticktin’s essay “Thinking Beyond Humanitarian Borders” in the journal Social Research.

             [17] Until July 2019, TPS holders are required to reapply for their work authorization documents. DHS already terminated TPS for Sudanese on September 18, 2017, with an effective date of November 2, 2018. It ended TPS for Nicaraguans on 6 November, allowing them to keep their status until January 5, 2019. It will reconsider TPS for Salvadorans on 9 March and for Hondurans on July 5, 2018.

             [18] There are approximately 30,000 U.S. citizen children born to Haitian TPS holders.

             [19] Walking the line between its strict immigration system and its humanitarians stance towards refugees, Canada both resumed deportations of Haitians since March 2017 and set up processing centers and temporary shelters for these migrants near popular crossing points along the U.S.-Quebec border.

             [20] HRIFA was passed as part of an omnibus bill that also included provisions that withheld foreign aid to Haiti unless the country committed to U.S.-backed reforms, including privatizing “three major public entities,” resigning the bilateral interdiction agreement, investigated, and ratifying “maritime counter-narcotics agreements.” Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1998, Public Law 105-277, 112 Stat. 268.

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