Harold Koh says deportations violate international law

  • “Title 42” was first implemented in March 2020.
  • It allows the United States to deport migrants without considering their asylum requirements.
  • Under international law, countries cannot issue a general ban on asylum.

A prominent legal adviser to the Biden administration has issued a six-page memo accusing the U.S. government of violating international law by deporting migrants without even considering their demands for asylum.

First invoked by the Trump administration, section 42 was apparently intended to protect public health. An order issued by the US Centers for Disease Control and Prevention in March 2020 cited COVID-19 as a reason to effectively close the border to migrants seeking refuge. It was then heavily criticized by public health experts outside the administration, who saw it as a means to implement a long-standing political goal of curbing immigration and using the pandemic as a justification.

Although critics of the Biden administration erroneously claim that there are now “open borders”, President Joe Biden has continued to enforce the ruling – appealing a recent court ruling that found it illegal – with exceptions for unaccompanied children and many families. Last month, nearly 4,600 Haitians, mostly women and children, were deported in a matter of days during the policy.

“Is that who we are?” That is the question posed by Prime Minister’s Legal Adviser Harold Koh in the memo obtained and published by Politico on Monday. A law professor at Yale University, Koh, notes that under international law, the United States is obligated not to deport vulnerable people back to countries where they legitimately fear persecution.

From October 2020 to August 2021, U.S. Border Patrol deported more than 938,000 people under Title 42.

It is “particularly indefensible” in the case of Haiti, Koh writes, as the administration does not even consider the Haitians’ asylum requirements, which it rejects under section 42 – despite acknowledging itself, in its granting of temporary protection status to those already living in the United States, Haiti has been shaken by political instability and natural disasters that make it an unsafe place to return.

“Section 42 allows customs officers, with the approval of supervisors, to identify persons who should
be exempt from deportation based on the totality of the circumstances, including consideration of
significant law enforcement, office and public safety, humanitarian and public health interests, “Koh noted. But if Haiti is undeniably a humanitarian disaster area, the question should be: at the moment, why is this administration returning to Haitians at all? “

Politico reported that Koh was leaving his position as adviser to the State Department and that his note had “circulated across the administration” over the weekend. He could not be immediately reached for comment.

Koh previously advised the State Department under President Barack Obama’s administration and at the time attracted controversy over his argument that the United States had a legal right to carry out extrajudicial executions, via drone strikes, in countries such as Afghanistan, Pakistan and Yemen.

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