Ending TPS for Haitians was unlawful — and racist, too

In 1889, Frederick Douglass was named U.S. minister to Haiti. After serving two years, he resigned in protest of U.S. policy towards Haiti. In a speech given at the Chicago World’s Fair in 1893, Douglass said: “Haiti is black, and we have not yet forgiven Haiti for being black.”

In November 2017, the Department of Homeland Security (DHS) ignored facts in its decision to terminate Temporary Protected Status for thousands of Haitians in the United States. The sudden departure from prior analyses of country conditions — which had justified extensions of TPS for Haiti for seven years — coupled with President Trump’s antipathy towards immigrants of color suggests that Douglass’ 19th-century critique remains true.

The NAACP Legal Defense and Educational Fund (LDF) is one of a number of organizations suing the Trump administration for denying Haitian immigrants their right to equal protection under the U.S. Constitution. TPS provides humanitarian protection to noncitizens who are unable to safely return to their country of origin. The Department of Homeland Security granted Haitians TPS after the devastating earthquake in 2010. LDF claims that DHS’ decision to terminate TPS for Haiti was “infected with the intention to discriminate,” violating the Fifth Amendment.

In support of its claim of racial animus, LDF shows that DHS willfully disregarded the facts about conditions in Haiti today. Internal documents uncovered by a Freedom of Information Act lawsuit and a memo from the Senate Foreign Relations Committee Democratic Staff show that the administration was well aware that the conditions justifying TPS for Haiti remain in effect. A DHS memo characterized post-earthquake recovery efforts as “one step forward, two steps back.”

Haiti was, and is, the poorest country in the Western Hemisphere. In January 2010, in a matter of seconds, an earthquake killed more than 220,000 people and decimated much of Port-au-Prince, including public health and government institutions and infrastructure. Days later, DHS wisely designated Haiti for TPS. The unprecedented devastation wrought by the earthquake would soon be paired with another catastrophe of historic proportions. One of the deadliest cholera outbreaks in modern history erupted in October 2010 when negligent U.N. sanitation practices led to infected raw sewage being dumped into one of Haiti’s major rivers. Haiti’s already weak infrastructure, including a public health system still reeling after the quake, was overwhelmed by the scale of these disasters. Then, in 2016, Haiti was struck by the most powerful hurricane to reach its shores in half a century — Hurricane Matthew.

Even under the best of pre-disaster circumstances, recovery from major disasters — of the sort Haiti has endured three separate times since 2010 — can take many years. One example on U.S. territory is the ongoing effort to address the damage caused by hurricanes Katrina, Rita and Wilma. The DHS Disaster Relief Fund reported to Congress that for 2017, it would spend $439 million on relief efforts related to this trio of hurricanes, which made landfall in the continental United States 13 years ago. The challenges to effective reconstruction in Haiti are well documented, and include its lack of capacity to govern, a dearth of financial and human resources and U.S. foreign policy that preferred contracts for U.S. firms over inclusive, concrete progress in Haiti.

To further bolster its contention of racial hostility, LDF presents statements that Trump has made about immigrants of color, and specifically about Haitians. Since taking office, President Trump said that Haitians “all have AIDS.” Shortly thereafter he allegedly referred to Haiti, among others, as a “shithole country.”

The termination of TPS for Haiti illustrates a haunting policy of this administration: racism.

Haiti is not yet prepared to safely repatriate the 58,000 Haitian TPS holders and their families living in the United States. Forcing their return risks plunging our Caribbean neighbor into yet another crisis. And expelling them under these conditions due to racism demonstrates how little our nation has progressed.

Ellie Happel, the Haiti project director for the Global Justice Clinic of New York University School of Law.