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Malicious Compliance: Haitians at the Border

The Biden administration is picking and choosing which laws to follow.

The Biden administration has been playing fast and loose with the facts and law regarding the influx of Haitian refugees by choosing, cafeteria-style, which laws to obey and which policies to honor in dealing with them. As a result, at least 13,000 Haitians have been admitted into the U.S. Most of these people have not been tested for infectious diseases – like COVID-19 – and many are unlikely to show up in the future for their immigration proceedings. Alejandro Mayorkas, secretary of Homeland Security, demonstrated the administration’s two-faced attitude toward the Haitians on Fox News.

We Keep in Touch With Them …

New banner Legal Affairs with ScottMayorkas chiefly tried to sell the notion that the Biden administration is doing as well as can be expected with the Haitians on the border. That’s just politics, but why is he so delighted that thousands of migrants, it seems at least 13,000, will enter the U.S., functionally forever lost to the system? Mayorkas told Fox host Chris Wallace that the thousands of Haitians let into the U.S. from Mexico “are in immigration court proceedings. They are monitored by us. We impose conditions upon them, so we keep in touch with them and ensure their appearance in court, as the law requires.”

That statement strains credulity. Wallace pressed, asking about the 45% of asylum seekers who miss their hearings, which can take anywhere from six months to several years to hold. Mayorkas could have admitted the futile nature of the status quo and a world without easy solutions. Instead, he whistled right past the graveyard, claiming, “we have enforcement guidelines in place that provide that individuals who are recent border crossers who do not show up for their hearings are enforcement priorities, and will be removed.”

Secretary Mayorkas continued to announce that the Biden administration is simply following the law, and it is – the law it prefers to follow. The administration could have followed the law by deporting the migrants to Haiti, but it chose not to. That’s because two separate and competing laws allow sending these people back to Haiti or letting them in to attend their immigration proceedings in the years to come – hopefully. So it depends on whether they are to be treated under the immigration laws or the public health law.

No Asylum for You

GettyImages-1235449686 Haitians at the Border

(Photo by Jair Cabrera Torres/picture alliance via Getty Images)

Title 42 expulsions are removals of foreign nationals from U.S. soil without immigration proceedings. That section of federal law allows for direct removal of people on the basis of public health, without regard to their migration request, and does not include screening for asylum. The administration is currently in federal court fighting over the right to eject people from the country directly under this law.

While refugees who come to the U.S. may apply for asylum, migrants from Honduras, Guatemala, and El Salvador can be returned to Mexico to apply for asylum at U.S. ports of entry. Mexican authorities will not accept the return of nationals of other countries, including Haitians, however. Thus, Mexican government policy has much to do with who is allowed to apply for asylum in the United States and who is subjected to Title 42 expulsions. The notion then that U.S. authorities must “just follow the law” eliminates the responsibility for Biden, Mayorkas, and the administration to be proactive.

When then-Vice President Joe Biden wanted Ukrainian Prosecutor General Viktor Shokin removed from his post, he got it done by threatening to withhold a billion dollars of loan guarantees from the country. There was no specific law he followed. The Obama administration did what it could within the bounds of the law to accomplish its goal. Yet did President Biden lift a finger to get Mexico to change its policy on immigrants? Are there no funding carrots or sticks that would make Mexican authorities stop Haitian refugees further south so they don’t present a concentrated human rights crisis at small Texas towns? That would still be following the law.

~ Read more from Scott D. Cosenza.

Read More From Scott D. Cosenza, Esq.

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