Biden legally could let Haitian migrants in — and let them work — but should he?

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 more than 1.4 million 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. It was limited to eligible Haitian nationals who have continuously resided in the United States since July 29, 2021, and who have been continuously physically present in the United States since Aug. 3, 2021.

Nevertheless, the conditions that justified Haitian TPS have not changed: Haiti still is grappling with a deteriorating political crisis, violence, and human rights abuses. Moreover, Haiti faces the challenge of increasing food insecurity and malnutrition, waterborne disease epidemics, and high vulnerability to natural hazards, all of which have been exacerbated by the COVID-19 pandemic.

Although TPS is not available currently to Haitian migrants, Biden has the authority to grant them a very similar form of relief.

Deferred enforced departure

Deferred enforced departure (DED), which formerly was known as “extended voluntary departure,” is a temporary, discretionary administrative stay of removal which is granted to aliens from designated countries. It also may include employment authorization.

Unlike TPS, which is based on statutory authorization, a DED designation emanates from the president’s constitutional power to conduct foreign relations. It has no statutory basis. Eligibility requirements generally are set by the president when he issues the order.

Individuals who benefit from DED are not required to register for the status unless they are applying for work authorization. Consequently, DHS does not maintain data on the total population covered by DED. If a protected individual does not apply for work authorization or permission to make a trip abroad, his DED eligibility is not known unless he is identified for removal.

Countries currently covered by DED orders include: Hong Kong (must have arrived by Aug. 5, 2021 — expires Feb. 5, 2023); Liberia (must have arrived by Oct. 1, 2002 — expires June 30, 2022); and Venezuela (must have arrived by Jan. 20, 2021 — expires July 20, 2022).

Should Biden grant DED to Haitians?

Some consideration should be given to the fact that we still are in the midst of a deadly pandemic. As of Sept. 23, 2021, the pandemic has killed 682,468 people in the United States. This includes 48,034 deaths in the last 28 days.

And according to a New York Times list updated on Sept. 23, only 0.2 percent of the people in Haiti have been fully vaccinated against COVID-19. The percentage who have received at least one vaccination is 0.4 percent.

Moreover, although granting DED to Haiti might satisfy the people who are pressuring Biden to help the Haitian migrants, it almost certainly would encourage a great many more to come here.

Biden has to secure the border before he grants DED to Haiti or any other country.

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 his blog at https://nolanrappaport.blogspot.com.