Koh, the State Department legal adviser from 2009-2013 during the Obama administration, penned the memo as he is stepping away from his day-to-day job and taking a role at Oxford University. An administration official said Koh would be staying on in a consulting role. Reached by phone, Koh declined to comment.
Koh’s letter has been circulating across the administration over the past 48 hours. It is the latest example of internal strife within the Biden administration over its immigration policy, with some officials believing the president has continued too many of the policies implemented by the Trump administration out of fear of Republican attacks.
At the center of that debate has been the continuation of “Title 42,” the shorthand for a law that gives the administration authority to bar people from entering the country during a health crisis. The administration has used Title 42 to kick out thousands of migrants without allowing them to seek asylum, which, critics say, is in violation of U.S. and international law.
Despite such internal dissent, the White House and State Department argue that their hands are tied in amending Title 42 and that the continued use of the authority was being driven by public health determinations made by the Center for Disease Control and Prevention.
“Title 42 is a public health authority, not an immigration one, and that authority rests with the [Center for Disease Control and Prevention],” a White House official said. “The CDC has determined that the continued expulsion of certain individuals under Title 42 is necessary due to the risks of transmission and spread of COVID-19 in congregate settings, such as U.S. Customs and Border Patrol stations, as well as the threat from emerging variants.”
A senior State Department official added: “We defer to the CDC on decisions related to Title 42.”
On Sept. 16, a federal judge blocked the administration from using Title 42 to expel migrant families, saying the law can’t stop people from seeking asylum. But the U.S. Court of Appeals for the D.C Circuit last week issued a stay of that ruling, preserving the administration’s ability to use the public health order.
On Saturday, the CDC assessed that invoking Title 42 “continues to be necessary at this time.” The legal battles are ongoing.
Former President Donald Trump issued Title 42 orders to stymie the flow of migrants into the United States, leading to outcries that he was using the cover of a global pandemic to push hardline immigration policies. Advocates were hoping President Joe Biden’s team would end the practice. Instead, it has remained in place, used most recently to fly thousands of Haitians seeking asylum away from Del Rio, Texas and back to their home country — a situation Koh spotlighted atop his memo.
The security situation in Haiti has deteriorated since the country’s president was assassinated in July, and economic woes have plagued the country for decades, in part as a remnant of American policies.
Koh’s memo is the latest criticism of the Biden administration’s handling of tens of thousands of Haitian migrants once camped at the International Bridge in Del Rio.
Last month, U.S. Special Envoy to Haiti Daniel Foote left the administration because he didn’t want to be “associated with the United States’ inhumane, counterproductive decision to deport thousands of Haitian refugees and illegal immigrants to Haiti,” per a letter he wrote to Secretary of State Antony Blinken. The State Department countered his claims, saying Foote wanted U.S. troops in Haiti to provide security assistance.
The administration has also faced criticism over now-infamous images of CBP agents on horseback rounding up migrants trying to cross the border. Biden said, as president, he took responsibility for those actions but also called those scenes “horrible” and “outrageous.” CBP agents are currently prohibited from patrolling the border at Del Rio on horseback, but the measure is temporary.
The U.S. has flown roughly 2,000 people on 17 flights back to Haiti, Homeland Security Secretary Alejandro Mayorkas said during a Sept. 24 White House briefing. Around 8,000 voluntarily agreed to return to Mexico, Mayorkas continued, while over 5,000 will be processed by the Department of Homeland Security to either be expelled or placed in immigration removal proceedings.
Haitians removed from the border by Title 42 order remain incensed by the decision. In September, dozens of people at the Port-au-Prince airport tried to rush back onto a plane.
“What can we provide for our family?” Maxine Orélien, one of the people who tried to force her way on the aircraft, told the Associated Press at the time. “We can’t do anything for our family here. There is nothing in this country.”
In his memo, Koh made sure to distinguish between the administration’s use of Title 42 to expel migrants and its approach to refugees seeking entry to America from places like Afghanistan.
“[O]ur actions and approaches regarding Afghan refugees stand in stark contrast to the continuing use of Title 42 to rebuff the pleas of thousands of Haitians and myriad others arriving at the Southern Border who are fleeing violence, persecution, or torture,” he wrote.
In the memo, Koh suggested four new policies the administration should execute. He called for suspending all Title 42 flights, “especially” to Haiti; for clearly announcing to people aboard such flights where they are going; for instituting the standard of a “reasonable possibility of fear” test for deportation screenings; and to see if some of the Haitian immigrants may have legal status or family ties in other countries.
With reporting by Sabrina Rodríguez