“We Are Asking Why You Treat Us This Way. Is It Because We Are Negroes?” A Reparations-Based Approach to Remedying the Trump Administration’s Cancellation of TPS Protections for Haitians

Sarah E. Baranik de Alarcón,David H. Secor,Norma Fuentes-Mayorga February, 2021

Sarah E. Baranik de Alarcón, Esq., David H. Secor, Esq., and

Norma Fuentes-Mayorga, Ph.D.*

“By listening to those who have paid the greater price for their commitment to a just world, we can move forward with them, closer to the place of peace.”¹

A. The Infection: Race-Based Discrimination in U.S.

Introduction

On November 20, 2017, then-acting Secretary of Homeland Security Elaine Duke announced that beginning in summer 2019, Haitians would no longer receive Temporary Protected Status (TPS), a short-term legal designation guaranteeing their right to remain and work in the United States.² This announcement followed an investigation by the Department of Homeland Security (DHS) into continuing TPS for Haitians that, unlike investigations in prior years, asked for crime statistics and welfare information on Haitians with TPS. The announcement followed a series of racist remarks from President Donald Trump, which included commenting that Haitians “all have AIDS”³ and asking “[w]hy are we having all these people from shithole countries come here?” in response to reports of immigration from El Salvador, Haiti, and African nations.⁴

At the time of publication, advocates have filed four lawsuits in United States (U.S.) federal courts that challenge the cancellation of TPS for Haitians.⁵ In Ramos v. Nielsen⁶ and Saget v. Trump,⁷ the Northern District of California and the Eastern District of New York, respectively, issued preliminary injunctions, essentially staying the cancellation of TPS until a final decision is made on the case.⁸

While the injunction in Ramos was reversed and vacated by the Ninth Circuit at the time of this paper’s publication, the injunction in Saget remains, the decision to cancel TPS is still on the books, and the future status of TPS continues to change pending ongoing litigation and administrative action.⁹ The justifications for canceling TPS for Haitians reflect long-standing, exclusionary racism within U.S. immigration law, and specifically, long-standing discrimination against Black immigrants.¹⁰ Those racist justifications further highlight the need to develop new humanitarian approaches to immigration law that don’t simply provide relief from harm, but actually repair the harms done.

This Article places the Trump Administration’s decision to cancel TPS for Haitians within the longer history of U.S. racism and exclusion against Haiti and Haitians, observes the legal challenges against this decision and their limitations, and imagines a future that repairs the harms caused by past and current racist policies. First, this Article briefly outlines the history of exclusionary, race-based immigration laws in the United States, and specifically how this legal framework, coupled with existing anti-Black ideologies in the United States, directly impacted Haitians and Haitian immigrants arriving in the United States. Next, the Article provides an overview of the TPS decision-making process, the Trump Administration’s openly racist comments against Haitians and other people of color before and during the decision-making process to cancel TPS, and the departure from the established administrative process for TPS cancellation. The Article then reviews the legal challenges against TPS cancellation and the arguments that the decision violated the Equal Protection Clause and how such efforts reveal the limitations of litigation as a tool to achieve social justice.

Looking towards the future, this Article discusses reparations and remittances as creative ways to repair some of the damage wrought by the United States’ history of racial discrimination in immigration and foreign policy against Haitians. Specifically, this Article explores three solutions: (1) recognizing the harms caused specifically to Haitians by the United States’ exclusionary foreign affairs and immigration policies; (2) using material and non-material forms of reparations, including extending TPS, offering a pathway for citizenship for TPS holders, or offering Haitian TPS recipients benefits to public programs; and (3) valuing the role remittances play in affirming Haitians’ autonomy and working towards eroding decades of imperialistic treatment of Haitians.

This paper recognizes that there is no instant remedy for the centuries of harm the United States inflicted upon Haitians. As Yale Professor Harlon Dalton so aptly analogizes:

Dealing with our racial wound is very much like [dealing with a physical wound]. Healing is a process that has many steps. Yet we try to move too quickly from the traumatic event to the day the bandages are removed. In our zeal to avoid inflaming the wound, we fail to clean it properly. We rush to close it, and do not check to see if our stitches have held. We ignore the possibility of infection, and convince ourselves that the occasional oozing is nothing to worry about. We cover it with material that is contaminated, and leave the dressing unchanged for fear of what we may discover underneath. And so our racial wound festers.¹¹

This Article aims to uncover the festering wound caused by decades of racism towards Haitians through national and international politics and offers ideas for healing.

I. The Wounds Caused by a History of Discrimination Against Non-White Immigrants – A Background

A. The Infection: Race-Based Discrimination in U.S. Immigration Policies

From its inception, the U.S. government has rhetorically promised to welcome immigrants of all origins, and yet has categorically failed to deliver on that promise.¹² Writing to his friend in the Netherlands, George Washington wrote, “I had always hoped that this land might become a safe and agreeable asylum to the virtuous and persecuted part of mankind, to whatever nation they might belong . .. .”¹³ Historically, however, this promise of welcome has only been a guaranteed for white Europeans.¹⁴ In reality, the rhetoric of a nation of religious freedom for immigrants of all nations contrasted starkly with the enslavement and forced immigration of African peoples, the genocide and forced relocation of indigenous peoples, and the racist ideologies held by many U.S.- Americans.¹⁵ The 1857 Dred Scott v. Sandford¹⁶ decision went so far as to declare that African Americans were not and could never be U.S. citizens.¹⁷ The forced kidnapping of enslaved individuals created a U.S. immigration system that, as immigration scholar Professor Rhonda Magee observes, “was inculcated with the notion of a permanent, quasi-citizenworker underclass and privileged white ethnics under naturalization law—its legacies we can see up to the present day.”¹⁸

Countless examples throughout U.S. history highlight both blatant and thinly veiled efforts to exclude non-European immigrants.¹⁹ For instance, the Chinese Exclusion Act of 1882 explicitly barred Chinese laborers from immigrating to the United States, a precursor to years of the United States barring individuals from entering the country based on national origin.²⁰ Congress used discriminatory measures such as literacy tests,²¹ quota systems,²² and the likelihood to “be a public charge” to further exclude underprivileged individuals of color—or those seen to be from undesired racial and ethnic groups—from entering the United States.²³

Quota systems specifically excluded individuals of African descent from immigrating to the United States by restricting the quantity of admitted immigrants from a particular nationality to a percentage of the number of immigrants of the same nationality already in the United States.²⁴ Because United States census data did not include African Americans, nearly all immigration from Africa was barred while the quota systems were in place from 1917 to 1965.²⁵

The Immigration and Nationality Act of 1965 prohibited discrimination based on race and nationality, thus ending the quota system.²⁶ However, recent policy decisions—while ostensibly race-neutral—go against the spirit of the Immigration and NationalityAct of 1965. For example, the regular categorization of Central American and Caribbean refugees as “economic migrants,” rather than asylum seekers fleeing persecution, has led to the exclusion and deportation of thousands of individuals seeking protections under international law.²⁷ The “diversity visa” program, which proposes bringing more immigrants from countries with “low” numbers of applicants, tends to favor European immigrants.²⁸

Following the September 11, 2001 attacks, a new pattern of racialization has been most apparent in the increased rates of apprehension and deportation targeting foreign-born Black, Latino, and Muslim groups.²⁹ The passing of two federal laws—the 1996 Anti-Terrorism and Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)—tied immigration policies to criminal laws.³⁰ These laws increased social control over individuals who had certain types of criminal convictions and ensured that these immigrants be deported with little recourse through due process and judicial review, as has been the case, for example, of most Dominicans in New York City, the majority of whom are legal permanent residents.³¹ The USA Patriot Act of 2001 intensified the provisions of these two 1996 laws, enhancing their effectiveness by establishing the link between local law enforcement on crime and national law enforcement on immigration.³²

These acts linking federal laws and local ordinances have resulted in the increased criminalization and deportation of non-white groups.³³ This virulent backlash continues to be racialized, as it increasingly targets mostly Black and Brown Latino and Muslim immigrants. Recent research suggests this pattern is mainly gendered, as men continue to rank top among the criminalized, perceived as threats to the U.S. national security and economy.³⁴ This is most recently evidenced by President Trump’s sustained depiction of Mexicans and Central American refugees as illegal immigrants or as invaders, arriving in “caravans.”³⁵ This criminalized portrayal reproduces systemic racialization and dehumanizes—but also ignores—the life-threatening circumstances that fuel these groups to seek refuge in the United States in the first place.³⁶ Further, the modern-day “control through deterrence” policies on the Mexican-U.S. border have resulted in the deaths of thousands of refugees yet sparked hardly any public outcry in the United States.³⁷ The rhetoric that the United States welcomes immigrants of all origins has proved to be myth that was only true for some, a case that is exemplified in the experience of Haiti and Haitians.

B. A Wound Left to Fester: From Twin Colonial Revolutions to Imperial

Subjugation: The Problematic History of Haiti and the United States

While discriminating against other non-white immigrants, including Haitians, the United States has also intervened and undermined Haitians in Haiti for much of its history. The United States failed to recognize Haiti’s sovereign status for nearly seventy years after its independence and regularly refused to recognize Haitian asylum seekers as political refugees. From the colonial era to the present-day policies that deprive the Haitian people of their agency, the United States has treated Haiti unjustly, causing lasting, residual harm to its citizens.³⁸

In 1791, enslaved men and women of African descent launched the largest insurrection of enslaved persons in world history, freeing everyone on the former French colony of Saint-Domingue within two years and establishing their independence as the first Black republic in the Western Hemisphere.³⁹ For nearly seven decades, the United States refused to recognize Haiti’s sovereignty, in large part due to fears that such a recognition of an independent Black republic would threaten the United States’ own system of racial slavery and caste.⁴⁰ The United States stood by silently as Haiti was forced to sign an agreement to compensate France for taking its “property”—the very human beings who made up the fabric of the newly-formed country—and the United States benefited from loaning to Haiti at exorbitant interest rates.⁴¹ Adjusted for inflation, it took Haiti 122 years to pay off its twenty-one billion dollar “debt” and the interest on that “debt.”⁴² This destabilized the country economically for decades because it was spending approximately 80 percent of its budget at times on repayments to lenders such as the United States.⁴³ From 1915 to 1934, the United States invaded and occupied Haiti under the guise of maintaining its financial interests.⁴⁴ Then-Secretary of State Robert Lansing justified the intervention with racist undertones, arguing that Haitians were incapable of self-government and had “an inherent tendency toward savagery and a physical inability to live a civilized life.”⁴⁵ Senator Medill McCormick echoed the sentiment, touting the occupation as necessary to “develop the country, the Government, and above all, the civilization of the people, of whom the overwhelming majority have African blood in their veins.”⁴⁶

The U.S. occupation further destabilized the country and robbed Haitians of their agency as U.S. Marines helped businesses take land from Haitian rural landowners, dismantle labor unions, and violently suppress uprisings.⁴⁷ Even though the occupation ended in 1934, the United States continued to exert control over much of Haiti’s external finances until 1947.⁴⁸ Haitian security forces trained by the United States, the Gendarmerie, and military leaders from the American Military School in Haiti continued to assert power in Haiti through the 1950s, and U.S.-backed dictators pillaged the country through the 1980s, committing numerous human rights violations, including the torture, arbitrary arrests, and disappearing of individuals to undisclosed prisons, all as part of the U.S.-led War on Drugs.⁴⁹

The colonial, white supremacist, and paternalistic attitude with which the United States treated Haiti in its finances and governance has also been reflected in its treatment of Haitian refugees. From the 1970s on, thousands of Haitians fleeing to the United States as political refugees were denied asylum because they were viewed as economic migrants and many others were returned to Haiti without an accurate determination of their asylum claim through the “Interdiction Program.”⁵⁰ At the same time, Haitians in the United States faced racial discrimination, including a ban on blood donations from Haitians due to unfounded concerns about AIDS.⁵¹ In November 1991, the Coast Guard began sending Haitian asylees to Guantanamo Bay, Cuba, where they were held in deplorable conditions and eventually repatriated without credible fear interviews for asylum, as required under international law.⁵² Those with HIV/AIDS were detained in what some have deemed the world’s first HIV/AIDS internment camp and denied protections normally afforded to refugees seeking U.S. assistance, despite legal challenges.⁵³ Professor Harold Hongju Koh, a lawyer for the interned Haitians, observed:

[T]he archetypal ‘good’ alien favored by American immigration law is a white, European, healthy, heterosexual, selfsufficient refugee, arriving alone in search of political asylum . . . it hardly surprises that black, poor Caribbean migrants arriving in large numbers, many afflicted with HIV (a disease associated with homosexuals) should fare poorly in our courts.⁵⁴

The United States’ treatment of Haitians refugees from the 1970s through the 1990s stands in stark contrast with its treatment of Cuban political refugees under the Cuban Adjustment Act (CAA), which required the United States to return Cubans intercepted at sea to Cuba while providing those Cubans who made it to the United States with protection, access to welfare programs and services, and a path to citizenship.⁵⁵ While many Cubans are categorized as “white,” Haitians are of African descent and mostly “Black.”⁵⁶ Arguably, the United States had a political interest in supporting those fleeing “communism” in Cuba, but no other nationality had—or has—the immigration benefits that Cubans were granted upon entry, including other countries with communist regimes.⁵⁷

The United States maintained a strong military presence in Haiti with multiple military interventions in the 1990s and 2000s, as well as involvement in several changes in dictators.⁵⁸ The United States supported foreign-owned sweatshops in Haiti and dumped U.S.-subsidized produce—including rice and sugar—into Haiti, greatly harming the local economy, putting local farmers out of business, furthering deforestation, and forcing people to migrate to over-crowded cities to look for work.⁵⁹ United States aid to Haiti following the 2010 earthquake supported large NGOs, many of which used outside contractors for rebuilding parts of Haiti, thus taking work away from the local economy, giving Haitians less ownership in recovery efforts, and taking agency away from the Haitian government.⁶⁰ This approach to aid created dependence on international NGOs and continues to cripple the Haitian economy and government.⁶¹ Thus, what started as a refusal to recognize the sovereignty of the first nation of freed enslaved people continues in a paternalistic refusal to recognize the ability of the Haitian government to handle international aid, a refusal to believe that conditions in Haiti have not materially improved since the 2010 earthquake, and a refusal to continue any form of protected status for Haitians, motivated by a president’s personal animus for Haiti. As Fredrick Douglass once observed: “Haiti is black, and we have not yet forgiven Haiti for being black.”⁶²

II. The TPS Band-Aid and a Wound Quickly Going Septic: A Not-So-Temporary Status With Some Protections for Haitians

The United States government granted and then cancelled Temporary Protective Status (TPS) for Haitians, in keeping with the nation’s long history of de jure and de facto xenophobic and racist treatment of Haitians. TPS falls into a long line of immigration policies that create a second-class status for immigrants and, disproportionately, immigrants of color. This Part provides an overview of TPS, the grant of TPS for Haitians, its subsequent cancellation, and the impact on Haitians, the communities they live in, and the Haitian diaspora in the United States. The historical background and disparate impact are key elements in the racebased discrimination challenges the Article will address in Part III.

A. Covering the Injury: Temporary Protected Status (TPS),

A Short Fix

Congress created TPS in 1990 as a short-term humanitarian measure to temporarily safeguard foreign nationals present in the United States.⁶³ However, the process for TPS designation has been highly political and has offered little stability for those whose TPS designation has been frequently renewed.⁶⁴ TPS applies in three situations: (1) where there is an “ongoing armed conflict within the state” that “would pose a serious threat” to the personal safety of citizens of that state;⁶⁵ (2) when a natural event causes a “substantial, but temporary, disruption of living conditions” that would make it difficult for the state to receive repatriated citizens;⁶⁶ and (3) when there are “extraordinary and temporary conditions” that would make it dangerous for individuals to return to their country of origin and their temporary stay in the United States would not compromise “the national interest of the U.S.”⁶⁷ To grant TPS to residents of a country, the Secretary of the Department of Homeland Security (“DHS Secretary”) traditionally confers with government agencies, including the Department of State, to determine the conditions in the country under consideration.⁶⁸ Notably, TPS takes the “national interest of the U.S.” into account in only one category, creating a strong statutory interpretation argument that internal politics and domestic concerns should not be considered under the other categories for granting TPS.⁶⁹

The DHS Secretary can issue or extend TPS for periods of six to eighteen months, and TPS recipients in the United States have received temporary status in the country for up to twenty-nine years based on ongoing crises.⁷⁰ TPS has been granted to a variety of groups, including Hondurans and Nicaraguans after Hurricane Mitch in 1998 and Kosovo residents during and after the genocide.⁷¹ Currently, immigrants from El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan account for 98 percent of TPS recipients.⁷²

While TPS recipients are granted legal status and authorization to work, TPS does not encourage or drive migration to the United States from designated countries—the program only protects individuals already present in the United States when natural or political disasters occur.⁷³ Unlike asylum, which is granted based on individual persecution, TPS is given when country conditions as a whole make it unsafe to return.⁷⁴ Also unlike asylum, which provides an eventual path for permanent residence in the United States, TPS offers no direct path to a stable immigration status.⁷⁵ With the continual consideration of country conditions and eighteen-month extensions, TPS holders are afforded no certainty of their immigration status and left in “legal limbo.”⁷⁶

B. The Infection Beneath the Dressage: TPS Grant and

Cancellation for Haitians

On January 12, 2010, a 7.0 magnitude earthquake struck Haiti, killing over 220,000 people.⁷⁷ Three days later, then-Secretary of Homeland Security, Janet Napolitano, announced the decision to grant TPS to Haitian nationals in the United States.⁷⁸ Nine days later, the designation was published in the Federal Register, citing the impact the earthquake had on critical infrastructure such as roads, hospitals, schools, and transportation systems for food, fresh water, and medical supplies.⁷⁹ Due to political instability, internal displacement, a cholera outbreak, subsequent natural disasters, and continued poverty, the United States extended Haiti’s TPS classification for subsequent eighteen-month periods from 2010 to 2017.⁸⁰

Under the Trump administration, the process for extending TPS differed significantly. While TPS extensions are typically based on conditions within the TPS-designated country, the Trump Administration instead began seeking crime and welfare data on Haitian TPS recipients, despite the fact that TPS holders are ineligible for welfare.⁸¹ In addition to seeking data on criminal records and welfare use of TPS recipients, USCIS Chief of Policy and Strategy Kathy Kovarik also sought data on how many Haitian TPS recipients were “illegal pre-TPS designation.”⁸² She instructed staff to provide information “[g]iven that the Sec is going to need it to make a decision.”⁸³ Following these inquiries, then- Secretary of Homeland Security John Kelly extended TPS for Haitians for six months on May 22, 2017, citing the country’s multiple camps for internally displaced persons, gender-based violence, and the fact that those who had left displacement camps had “moved back to unsafe homes or relocated to informal settlements located in hazardous areas.”⁸⁴ In his decision, Secretary Kelly also noted the impact of Hurricane Matthew on Haiti in 2016, flooding and landslides in April 2017, and increasing food insecurity in Haiti.⁸⁵ While he found the conditions in Haiti supported an extension of TPS, he also noted that Haitian TPS holders should prepare to return to Haiti.⁸⁶

In June 2017, Secretary Kelly testified to the Senate and ascribed past TPS extensions to “automatic renewals.”⁸⁷ He repeatedly stressed he wanted to focus on the word “temporary” in the program’s name and indicated he would only look at “the earthquake” in Haiti, despite the fact that previous Secretaries considered “extraordinary” conditions to determine whether the TPS extension was warranted.⁸⁸ Despite bipartisan support from prominent politicians, calls from the Haitian government to extend TPS for Haiti, and evidence from international NGOs, on November 20, 2017, DHS issued a press release stating its intention to cancel TPS for Haitians: “[b]ased on all available information . . . those extraordinary but temporary conditions caused by the 2010 earthquake no longer exist.”⁸⁹ According to the press release, the termination would have a delayed effective date of eighteen months, but the conclusions stated in the press release were not recorded in the Federal Register until two months later.⁹⁰ The reasons cited for TPS cancellation included the decrease in internally displaced persons, increasing GDP growth, and lower levels of cholera.⁹¹

Haitian TPS holders and advocates for Haitians recognized that both the decision to cancel the program and the rationale provided by DHS were inconsistent with the prior approaches to TPS and the material conditions of Haiti.⁹² Haiti’s Ambassador to the United States, Paul G. Altidor, noted that Hurricane Matthew, flooding, a cholera breakout, and further damage from Hurricanes Irma and Maria impeded Haiti’s efforts to recover and its inability to receive returning citizens.⁹³ Steve Forester, the Immigration Policy Coordinator for the Institute for Justice and Democracy in Haiti, noted, “Haiti is a textbook case for TPS.”⁹⁴ He observed, “Haiti has recently endured precisely the extraordinary blows contemplated by the TPS statute, specifically an unchecked cholera epidemic and October 2016’s Hurricane Matthew, which DHS itself cited in its analysis as recently as May [2017].”⁹⁵ Despite evidence that conditions in Haiti had not improved since the 2010 earthquake, DHS ended TPS for Haitians, meaning that Haitians in the United States who currently hold TPS will no longer be able to legally remain in the country upon its expiration.⁹⁶

C. The Wound Spreads: The Detrimental Effects of the Trump Administration

Rescinding TPS for Haitians

Many Haitian immigrants and their U.S.-born descendants predict that TPS cancellation will be devastating for both Haitians who have TPS and the communities they live and participate in.⁹⁷ In 2017, the majority of Haitians with TPS had been in the United States for seven to fifteen years and their earnings contribute both to Haiti’s recovery and the United States’ tax base.⁹⁸ Many Haitians have already been impacted by the decision: the failure of DHS to publish its November 2017 decision in the Federal Register until January 18, 2018 resulted in many Haitians losing their employment due to uncertainties regarding their legal permission to work.⁹⁹

Centro Presente v. Trump, which challenges the cancellation of TPS for Haitians and Salvadorans, highlights not only the economic but also the emotional and material harm that will be inflicted from the decision.

If TPS rescission goes into effect, Plaintiffs, and other TPS beneficiaries will suffer immediate and irreparable injuries to their rights under the U.S. Constitution and federal law; to their proprietary interests; and to their dignity. Without TPS, most beneficiaries will not have access to employment authorization which gives these immigrants (and their employers) an assurance that they may put their talents to use . . . Without employment, many TPS beneficiaries will also lose health benefits. Plaintiffs and other TPS beneficiaries will have to prepare for imminent removal. Plaintiffs will incur costs to ensure that their property rights, family relationships, and tax obligations are protected. [TPS] rescission stigmatizes immigrants of color, as well as their children and families, and imposes a dignitary harm by denying them the dignity and respect they deserve under the U.S. Constitution and federal law. By labeling TPS beneficiaries from El Salvador and Haiti as undesirable . . . the federal government ratifies and legitimizes the notion that immigrants of color . . . are worthy of lesser social stature.¹⁰⁰

Prior to TPS cancellation, advocates warned against the negative impact of cancelling TPS, noting that conditions in Haiti are not stable enough to receive deportees safely and warning of the harm that the influx of TPS recipients could have on the country.¹⁰¹ Given that Haiti is still struggling to rebuild its infrastructure since the earthquake, including housing, hospitals, schools, and other critical services, accepting an additional 58,000 individuals into the country would create enormous strain on a vulnerable country already facing significant difficulty providing for its own citizens.¹⁰² Haitian activist Marleine Bastien observed, “Haiti is not ready to absorb 58,000 [individuals] . . . . It’s going to be a disaster for the 58,000 families in the United States and a disaster for Haiti.”¹⁰³ In a bipartisan letter to DHS, members of Florida’s congressional delegation expressed a similar concern: “persistent, difficult conditions in Haiti warrant a full extension . . . We owe it to the Haitian people to assist them in their efforts, especially as they begin to make limited progress.”¹⁰⁴

In addition, many Haitian TPS holders in the United States no longer feel that they have ties to Haiti. As Paula Vilme, a young Haitian mother who has lived in the United States since age nine, observed, “I do not believe I will survive one month in Haiti. . . I’ve been here [in the United States] for so long. My whole life is here . . . [.] This is home, so when they tell you to go back, where am I going to?”¹⁰⁵ Paula is not the only Haitian TPS holder raising a family in the United States. More than 270,000 U.S. citizen children have parents who are TPS recipients from either Haiti, El Salvador, or Honduras, meaning a parent could potentially be forced to leave their children behind in the United States or a child would be forced to go to a country they do not know.¹⁰⁶ Ramos focuses further on the impact on children:

Defendants’ new rule violates the constitutional rights of school-ageU.S. citizen children of TPS holders, by presenting them with an impossible choice: they must either leave their country or live without their parents. It is well established that a U.S. citizenhas an absolute right to reside in this country. It is equally well established that families have a fundamental right to live together without unwarranted government interference.¹⁰⁷

Moreover, cancellation of TPS will impact the U.S. and Haitian economies.¹⁰⁸ The Center for American Progress estimated that an average of $10,070 is spent in deporting just one person.¹⁰⁹ Bloomberg reported that canceling TPS would cost the United States $280 million in contributions to its GDP.¹¹⁰ The Immigrant Legal Resource Center estimated that ending TPS for Haiti and Honduras would reduce Social Security and Medicaid by $6.9 billion over a decade and decrease the U.S. GDP by $45.2 billion over the same period.¹¹¹

Canceling TPS would cause Haiti to suffer the additional loss of the investment revenue that Haitians living in the United States contribute to their ancestral homeland.¹¹² For example, in 2006, remittances composed 20 percent of Haiti’s gross domestic product (GDP) and by 2019 remittances made up nearly 40 percent of GDP.¹¹³ Additionally, in Haiti, due to the fact that the financially weakened state cannot absorb all the costs of caring for its citizens, remittances make up for the state’s deficiencies, allowing many families to invest in their health or basic necessities, mainly the education of their children.¹¹⁴

Additionally, TPS holders play key roles in their communities— working, paying taxes, volunteering, participating in civic life, and building equity.¹¹⁵ According to a 2017 study, 6,200 households with Haitian TPS holders have a mortgage.¹¹⁶ Eighty-one percent of Haitian TPS holders are employed and pay into the U.S. tax base.¹¹⁷ During the COVID-19 pandemic, more than 130,000 temporary protected status holders from El Salvador, Honduras, and Haiti served as essential workers.¹¹⁸ For these individuals, termination of TPS would mean substantial financial costs to protect their assets and resettle to a country where they may no longer have ties.¹¹⁹ For communities in the United States where TPS holders live, it would mean the loss of parents, employers, employees, and people who make up the fabric of those communities.¹²⁰

An additional concern for the cancellation of TPS is that those who lose TPS will continue to live and work in the United States but as undocumented workers.¹²¹ Many undocumented workers face significant vulnerabilities to exploitation from their employers in the United States given their employers’ threats of contacting immigration enforcement if they do not comply.¹²² Undocumented workers often face wage theft, dangerous or hazardous working conditions, sexual harassment and exploitation in the workplace, and toxic, abusive working environments.¹²³

For the foregoing reasons, cancellation of TPS for Haitians would cause adverse humanitarian consequences that do not align with the purpose of TPS to temporarily protect individuals. In order to prevent future harm, TPS—and the way the United States approaches past and future immigration—should be reimagined. However, before reimagining the future, advocates must first confront the United States’ long history of structural racism and prejudice against Haitians and other non-white immigrants. A number ofrecent lawsuitshighlight how explicitly discriminatory the decision to rescind TPS for Haitians was and offer an example of how to confront racist decision-making processes.

III. Uncovering the Wound: Legal Challenges to Cancellation of TPS Due to Race-Based Discrimination

On January 24, 2018, the National Association for the Advancement of Colored People (NAACP) filed a complaint in the U.S. District Court of Maryland seeking to “enjoin DHS’s November 2017 decision to rescind Temporary Protective Status (“TPS”) for Haitian immigrants, as it reflects an egregious departure from the TPS statute’s requirements and an intent to discriminate on the basis of race and/or ethnicity.”¹²⁴ Following NAACP v. Department of Homeland Security, advocates in three other federal cases—Saget v. Trump,¹²⁵ Centro Presente v. Trump,¹²⁶ and Ramos v. Nielsen¹²⁷—challenged the termination of TPS for Haitians and other minority TPS holders on multiple grounds, including Equal Protection grounds.¹²⁸ These claims assert multiple challenges to TPS termination, including that the decisions to terminate TPS were “motivated by racism and racial, ethnic, and/or national origin discrimination.”¹²⁹ To prevail on a race-based discrimination claim, individuals are not required to show that the discriminatory purpose was the sole or primary purpose of the challenged action, only that it was a “motivating factor.”¹³⁰ When evaluating claims of intentional race-based discrimination, the Court considers both direct evidence of racial animus and circumstantial evidence of discriminatory intent, including historical background, legislative and /or administrative history, greater impact on one race than another, and contemporary statements.¹³¹ This Part briefly outlines the basic arguments the cases present for a race-based Equal Protection claim.¹³²

A. Bleeding Direct Evidence of Harm: Anti-Immigrant Animus in

Rhetorically Racialized Politics

The theory that TPS’s cancellation was motivated by racial discrimination is supported by evidence of President Trump’s racial animus against non-white, non-European individuals, since the White House oversees such policy decisions.¹³³ In the suits challenging TPS cancellation, plaintiffs included Trump’s own comments both prior to and during his term in their arguments for intentional racial discrimination.¹³⁴ Below, we outline some of the President’s more egregious comments and actions as non-exhaustive examples of his direct racial animus.¹³⁵

Well before his political career began, Trump faced a lawsuit for policies excluding Black tenants from apartment buildings he owned and operated.¹³⁶ According to the former president of Trump Plaza Hotel and Casino, Trump once stated, “laziness is a trait in the blacks.”¹³⁷ Trump also claimed for years that former President Obama was not born in the United States and used his support of the “birther” conspiracy and racist stereotypes to play on societal fears in his 2016 presidential campaign.¹³⁸

Candidate Trump began his campaign with a direct, racist attack on Mexican immigrants, calling them “rapists” and accusing them of bringing drugs and crime to the United States.¹³⁹ Later in his campaign, he reiterated this point, stating, “The Mexican government. . . send[s] the bad ones over because they don’t want to pay for them.”¹⁴⁰ He questioned the ability of District Judge Gonzalo Curiel to make a neutral decision in a lawsuit because of his Mexican heritage, a comment Speaker of the House Paul Ryan noted was “sort of like the textbook definition of a racist comment.”¹⁴¹ He also called for “a total and complete shutdown of Muslims entering the U.S.”¹⁴² Candidate Trump’s racist remarks continued with a racist tweet echoing false and manufactured statistics that Black individuals commit 81 percent of the homicides of white individuals, a figure unsupported by official data (which notes the rate is actually 15 percent).¹⁴³

President Trump continued his anti-immigrant rhetoric during his first week in office when he issued an executive order banning individuals from majority-Muslim countries and another creating the “Victims of Immigration Crime Engagement” hotline, furthering the lie that immigrants perpetuate crime.¹⁴⁴ In a June 2017 private discussion on immigration, President Trump allegedly stated that Haitians “all have AIDS,” echoing the pejorative racist stereotypes made against Haitians in the 1980s and 1990s.¹⁴⁵ During the same conversation, he noted that Nigerians, upon seeing the United States, would “never go back to their huts” in Africa.¹⁴⁶

On January 11, 2018, President Trump asked, “Why are we having all these people from shithole countries come here?” in response to reports of immigration from El Salvador, Haiti, and African nations.¹⁴⁷ During the same meeting, individuals present reported that he stated, “Why do we need more Haitians? . . . Take them out.”¹⁴⁸ The comments juxtaposed with statements urging the United States to admit more immigrants from countries “like Norway.”¹⁴⁹ In the context of so many racist comments against Black Americans and immigrants of color, it came as little surprise when the Trump administration cancelled TPS for Haitians.

B. Telltale Signs of Infection: Circumstantial Evidence in the Departure from the

Previous TPS Renewal Process

The decision-making process leading to TPS in 2017 differed greatly from previous decisions to extend TPS for Haiti, and evidence suggests that one difference was that race was a motivating factor in the government’s decision to cancel TPS for Haitians.¹⁵⁰ Under Arlington Heights, there are multiple factors to consider when deciding if there was discriminatory intent, including the “impact of the official action – whether it bears more heavily on one race than another”; the “historical background of the decision” and the “specific sequence of events leading up to the challenged decision”; and “[d]epartures from the normal procedural sequence.”¹⁵¹ As Part II of this Article provides an outline of the history of TPS and the impact of cancellation on Haitians, this current Part focuses on the departure from the previous TPS renewal process. The cases challenging TPS demonstrate how the departure from regular process and the racist motivations in that process are key factors within the Arlington Heights analysis of race-based discrimination.¹⁵²

From 2011 to 2016, each presiding Secretary of Homeland Security consulted with international organizations and considered conditions in Haiti in making each of their decisions.¹⁵³ Each decision to extend TPS was then published in the Federal Register within several days of the decision.¹⁵⁴ The 2017 decision followed no such protocol, but rather the administration sought crime and welfare information based on racial stereotypes.¹⁵⁵

In the decisions to extend TPS prior to 2017, previous Secretaries of Homeland Security noted the scale of damage, the number of people internally displaced, the impact of the cholera outbreak, the rates of malnutrition, and the portion of the population living below the poverty line.¹⁵⁶ The decisions took into account the political instability in Haiti and the country’s inability to provide adequate social services, infrastructure, education, or healthcare.¹⁵⁷ The impacts of Hurricane Sandy and Tropical Storm Isaac influenced later extensions, along with the fact that the 2010 earthquake “exacerbated pre-existing vulnerabilities, including gender-based violence, trafficking, sexual exploitation, child labor, domestic violence, and recruitment into crime or violence.”¹⁵⁸ For example, the 2014 decision noted that the “extraordinary and temporary conditions that led to Haiti’s designations continue to exist and prevent Haitian nationals . . . from returning to Haiti in safety.”¹⁵⁹

During the consideration to extend TPS in 2017, a U.S. Citizenship and Immigration Services memo noted that “[m]any of the conditions prompting the original January 2010 TPS designation persist, and the country remains vulnerable to external shocks and internal fragility.”¹⁶⁰ A large portion of the documents involved in the decision-making process were later redacted, making it difficult to determine the other factors that played into the decision.¹⁶¹ The decision to terminate TPS did not appear to take account of factors including the gender-based violence in the internally displaced persons camps, the population’s lack of access to fundamental health and nutritional services, the destruction from the earthquake, the impact of hurricanes since 2010, or food insecurity.¹⁶² As Centro Presente argues, the decision deviated from INA § 244(b)(3)’s and 8 U.S.C. § 1254a’s requirement that DHS “undertake a genuine, good faith review of the conditions in a foreign country designated for TPS to determine whether the conditions for designation continue to be met.”¹⁶³ In the 2017 publication in the Federal Register, then-Secretary Duke did not cite which “U.S. government agency” DHS consulted with in making the decision to cancel TPS.¹⁶⁴ This differs from other previous notices in the Federal Register, which referenced consultations with the Department of State.¹⁶⁵ As the NAACP v. Department of Homeland Security Complaint notes, “DHS departed from the normal decision-making process in deciding to rescind Haitian TPS by failing to engage the factors identified in the original determination, the factors identified in the four subsequent 18-month extensions, and the factors that Mr. Kelly identified in his extension just five months earlier.”¹⁶⁶ Saget and Ramos raise similar concerns.¹⁶⁷

Furthermore, as mentioned previously, DHS requested information on the number of TPS recipients receiving welfare and accused of criminal activity.¹⁶⁸ As the NAACP v. Department of Homeland Security Complaint argues, the attempts to gather data on Haitian TPS holders’ crimes and use of public benefits play “on false anti-Black stereotypes about criminality and exploitation of public benefits, and suggests the effort to manufacture a public safety rationale for the planned rescission.”¹⁶⁹ These significant changes to the TPS decision-making process provide circumstantial evidence of racial discrimination.

IV. Assessing the Injury: The Impact of Legal Challenges

The aforementioned litigation challenging TPS cancellation provides an important framework for understanding the benefits, but also the significant limitations, of impact litigation in producing outcomes that protect historically marginalized groups. The preliminary injunctions in Ramos and Saget, along with other litigation seeking to halt executive orders revoking protections for immigrants, may provide a hopeful prologue for the success of claims challenging the cancellation of TPS for Haitians.¹⁷⁰ Additionally, although the outcome of such claims is far from certain, the injunctions have been influential in extending TPS-related documentation and TPS status, and they could create precedent requiring additional scrutiny of such executive decisions or, at the very least, create a judicial record of the mistreatment of Haitians and other TPS beneficiaries.¹⁷¹

In the preliminary injunction issued in Saget, the Eastern District of New York ruled that the plaintiffs were likely to prove that DHS was influenced by the administration’s political motivations to terminate TPS and did not conduct a good-faith, evidence-based review of facts on the ground to determine whether to extend Haiti’s TPS.¹⁷² Moreover, Judge Kuntz ruled that the Plaintiffs are likely to succeed on the claim that the Trump Administration terminated TPS for Haiti based on racial animus.¹⁷³

In Ramos,¹⁷⁴ the Northern District of California issued a preliminary injunction blocking the termination of legal status for beneficiaries of TPS from El Salvador, Nicaragua, Haiti, and Sudan.¹⁷⁵ The injunction provides TPS holders the right to remain in the United States until the court rules otherwise.¹⁷⁶ In the decision, the court observed that “not only is there direct evidence of animus, but there is also circumstantial evidence of race being a motivating factor.”¹⁷⁷ However, in September 2020, the Ninth Circuit vacated the case and remanded the case to the District Court.¹⁷⁸ With regard to the Equal Protection claim, the Ninth Circuit found that, “While the district court’s findings that President Trump expressed racial animus against “nonwhite, non-European” immigrants, and that the White House influenced the TPS termination decisions, are supported by record evidence, the district court cites no evidence linking the President’s animus to the TPS terminations.”¹⁷⁹

Even if the legal claims are not successful, they raise creative arguments challenging the cancellation of TPS.¹⁸⁰ These challenges and judges’ responses will create a body of case law that future litigants can use to form successful litigation strategies.¹⁸¹ Additionally, the Complaints call attention to the racially motivated decision to cancel TPS for Haitians and other groups and the reproduction of racialized policies in immigration regulations. Furthermore, laws and lawsuits make a statement about what is important to a society and worth litigating. As such, there is an inherent value in challenging a decision to cancel protections for a group of people based on racist beliefs and a failure to consider evidence of ongoing harm in their country.

However, even if these claims are successful in enjoining the cancellation of TPS, a victory in court will not address the systemic, economic, and political inequalities that destabilized the economic, agricultural, and political landscape in Haiti which makes it so difficult for the country to recover after national disasters.¹⁸² It is also possible that the cases might be resolved on other grounds and therefore fail to address or resolve the injustice of racial discrimination that the Plaintiffs allege. Lawsuits enjoining the cancellation of TPS do not address the fact that TPS itself is a broken system. Continued extensions of TPS relegate recipients of such visas to second-class residents with no stability and a status at the whim of the administration in power.

True change requires the United States to examine its thorny racial history and consider creative ways to reconcile past wrongdoing. As discussed above, impact litigation has real limitations in accomplishing this goal. The following Part considers the impact of cancellation of TPS on the Haitian community and proposes that reparations and remittances offer a framework to approach TPS moving forward.

V. Cleaning the Wound: Viewing TPS Through the Lens of Reparations and Remittances

Lawyer and Professor Mari J. Matsuda states that “[t]he dissonance of combining deep criticism of law with an aspirational vision of law is part of the experience of people of color.”¹⁸³

In order to consider the best way to approach TPS going forward, policymakers must consider the criticisms of the current system, listen to the experiences of TPS recipients, and aspire to imagine and work towards a more just future. To envision a different future, it is important to understand that Haiti’s inability to recover from natural disasters and develop politically and economically is largely due to unfettered interference from the United States.¹⁸⁴ To truly take into account the impact that U.S. immigration policy has on countries with TPS recipients, changes and extensions to the program should be viewed through the lens of first recognizing the harm done through past immigration policies and then creatively thinking reparations and remittances.¹⁸⁵

A. Recognizing the Harm Done to People Raced as Black:

“Now Never Begins Yesterday.”¹⁸⁶

In order to truly address the issue of racism, particularly as it applies to immigration policies like TPS and its continuing impact on Black people and people of color in the United States, the country must first be honest about the historical harms done by white people in power to those seen as “other.” Lawyer and Critical Race Theory Professor Derrick Bell has noted, “Despite having completed the vital task of eliminating Jim Crow racial classifications, legal institutions still operate with a perspective that remains perceptually, analytically, and functionally colorcoded.”¹⁸⁷ Changing the narrative around immigration to include a recognition of past harms and their continued impact on racialized groups creates a chance for healing to occur.¹⁸⁸ As lawyer and activist Randall Robinson has noted, “To set afoot a new and whole black woman and man we must first tell the victims what happened to them.”¹⁸⁹ In his conception of reparations Author Ta-Nehisi Coates observes:

Reparations—by which I mean the full acceptance of our collective biography and its consequences—is the price we must pay to see ourselves squarely. The recovering alcoholic may well have to live with his illness for the rest of his life. But at least he is not living a drunken lie. Reparations beckons us to reject the intoxication of hubris and see America as it is—the work of fallible humans.¹⁹⁰

As both Coates and Robinson recognize, a collective recognition of the racial harm and history of the United States is the first step towards an honest effort at amending the harm done. Part of recognizing the harm and retelling—or, more accurately put, realistically telling—the story of U.S. immigration history and its critical intersection with race is including the voices of those who have been excluded from scholarly conversations but who are most impacted by immigration policy decisions.¹⁹¹ In addressing the harm the United States has done to Haiti in particular, it is important to recognize, as the scholar Westenley Alcenat once heard a Haitian street vendor say, “If we were not punished for our independence long ago, we would have had a better time.”¹⁹²

B. Stitching up the Injury: Reparations

Reparations for Haiti are especially important because the United States historically supported France’s demand’s for Haiti to pay “reparations” to France for the freedom granted to the enslaved people, “thus distorting the essence and meaning of reparative justice for 100 years.”¹⁹³ In order to achieve just immigration, the United States must address the racism in its past and current systems, policies, institutions, and individuals.¹⁹⁴ Reparations are one such way to provide an acknowledgement for harm done and a commitment to work towards righting the wrong.¹⁹⁵ The National Coalition for Black Reparations in America defines reparations as “a process of repairing, healing and restoring a people injured because of their group identity and in violation of their fundamental human rights by governments, corporations, institutions, and families.”¹⁹⁶ International Legal Advisor Emanuela-Chiara Gillard notes, “The aim of reparation is to eliminate, as far as possible, the consequences of the illegal act and to restore the situation that would have existed if the act had not been committed. Reparation can take various forms, including restitution, compensation or satisfaction.”¹⁹⁷ Professor Mari Matsuda explains that “[r]eparations claims are based on continuing stigma and economic harm . . . . [T]he injuries suffered—deprivation of land, resources, educational opportunity, person-hood, and political recognition—are disabilities that have precluded successful presentation of the claim at an earlier time.”¹⁹⁸ Reparations arise under the legal obligation to make victims whole and are traditionally broken down into two categories: 1) material reparations, such as monetary awards or social welfare programs, and 2) non-material or symbolic reparations, such as formal apologies.¹⁹⁹

The United States has supported reparations in the past.²⁰⁰ For example, the United States paid reparations to victims of Japanese internment and created a board, the Commission on Wartime Relocation and Internment of Civilians (CWRIC), which assessed how to extend reparations, who to extend reparations to, and when to create monuments and days of remembrance for formerly interned Japanese individuals.²⁰¹ In its findings supporting a need for reparations, the CWRIC reported a history of anti-Japanese sentiment and legislation, restrictions on Japanese immigration, and refusal of U.S.-citizenship for Japanese descendants well before internment camps began.²⁰² The Civil Liberties Act of 1988, which granted reparations to individuals of Japanese ancestry (and to Aleut villages), included many principles of reparations.²⁰³ The Act’s purposes include: (1) an acknowledgement of the injustices; (2) an apology for the action; (3) provision of a “public education fund to finance efforts to inform the public about the internment of such individuals so as information to prevent the recurrence of any similar event;” (4) restitution to those who were interned; and (5) instructions to “discourage the occurrence of similar injustices and violations of civil liberties in the future.”²⁰⁴

Traditionally, a reparation claim is presented as follows: “Plaintiff Class A (victim group members) v. Defendant Class B (perpetrator descendants and current beneficiaries of past injustice).”²⁰⁵ In the case of Haitian TPS holders, the victim group members would be the Haitians who have suffered from years of U.S. interference in their country, stereotypes in the United States regarding HIV/AIDS, job loss with the uncertainty surrounding TPS extension, and family strain as a result of almost a decade of an immigration status that is extended every eighteen months.²⁰⁶ The United States has contributed to the political unrest and instability in Haiti and continues to benefit from taxes paid by TPS recipients and contributions to the U.S. economy by such recipients.²⁰⁷

The United States could offer both material and non-material reparations to Haitians—particularly Haitian TPS holders—in the form of various immigration relief and policies. Non-material reparations could include a formal apology to the nation of Haiti for past wrongs, a study of the impact of past policies on Haitians and Haitian immigrants, and guaranteed inclusion of Haitians in future decisions about TPS extensions. A study of the impact that adverse immigration policies have had on Haiti and Haitian immigrants would be an important first step in reparations and giving stronger consideration to the international impact of U.S. immigration policy.

Material reparations could include extending TPS, offering a pathway for citizenship, and offering Haitian TPS recipients benefits to programs which they are currently excluded from, such as Medicaid and unemployment benefits.²⁰⁸ Such policies would be akin to the benefits that were offered to Cubans from 1966 to 2016 under the CAA or an adjustment of status provision which was briefly available to Haitians under the Carter administration.²⁰⁹ These material reparations would specifically address the harm done.²¹⁰

Another form of material reparations could be reforming TPS entirely and providing a framework to prevent future actions based on racial animus.²¹¹ Some have suggested that the United States could reform the system for granting TPS by creating a TPS board to weigh the merits of a TPS extension, rather than having TPS decided by a political appointee such as the Secretary of Homeland Security.²¹² The TPS board could monitor human rights situations, consult with various NGOs and state agencies, and hold hearings to fully understand the perspective of individuals with TPS.²¹³ A board re-designating TPS would ideally include members of the community who would receive TPS as part of its decision-making body.²¹⁴ Such a board would not be as politically swayed as current actors are because they could be appointed and only removable for particular reasons.²¹⁵ Additionally, a small board could act quickly.²¹⁶ Like any political body, the board would not be perfect and could have biases or be influenced by lobbying.²¹⁷ Transparency would help counter these issues, as could a concrete set of criteria to be analyzed when granting and extending TPS.²¹⁸ As the U.S. House of Representatives discussed and ultimately wrote into the language of the American Dream and Promise Act of 2019, the law surrounding TPS should be amended to provide a pathway to legal permanent residence for TPS holders who have lived in and contributed to the United States for extended periods, which would further contribute to family unity and more permanently integrate TPS holders into U.S. society.²¹⁹ These material and nonmaterial reparations could be a small step in righting past wrongs and rethinking the future of TPS and Haitian-U.S. relations.

C. Recovery Through Rethinking Aid: Remittances

Granting and extending TPS allows Haitians in the United States to contribute to their country’s development through remittances, as TPS allows these individuals to legally participate in the U.S. labor force. Remittances are funds which are sent to the home country of an immigrant living and working abroad.²²⁰ Remittance flows worldwide are more than three times that of official development aid.²²¹ According to 2019 data, remittances to Haiti made up 38.9 percent of Haiti’s GDP.²²² To facilitate remittances, the United States could encourage regulations that make sending money abroad less costly.²²³

Providing Haitians in the United States with the ability to continue to work legally ensures a more stable source of economic support to Haiti than another type of aid program.²²⁴ Previous aid programs in Haiti have created a dependency on foreign NGOs that pay the government little heed and use foreign contractors instead of local expertise.²²⁵ Additionally, foreign aid programs spend much of their funds on flying “experts” to Haiti and paying staff bonuses for “hardship pay” and “danger pay.”²²⁶ One study noted that less than a penny of every dollar dedicated to Haitian relief efforts through USAID actually went to a Haitian organization.²²⁷

Unlike aid programs, remittances provide a way to assist the country while acknowledging the agency of individual Haitians sending and receiving remittances to choose how they wish to invest in their nation.²²⁸ This does not mean that remittances will automatically solve economic or political issues in Haiti or that they come without their own challenges.²²⁹ However, facilitating remittances is a step away from imperialism and unfettered interference in Haitian affairs and a step closer to true Haitian independence.

VI. Moving Towards Healing

Although immigrants as a whole have struggled throughout U.S. history, the continued inferior treatment of immigrants of color—and particularly Haitians—is evidence of institutionalized racism within the immigration system as a whole.²³⁰ Institutionalized racism is defined as “[r]acial discrimination that has become established as normal behavior within a society or organization.”²³¹ U.S. immigration policy has excluded Haitians for years and discriminatory actions such as the cancellation of TPS for Haitians, which disproportionately impacts Black immigrants, must be confronted and prevented—not simply through legal challenges that highlight current injustices but through concrete, creative policies to address past harm.

Despite their adverse history, Haiti and the United States are neighbors, separated by only 100 miles of blue Caribbean Sea, and share a distinct, centuries-old revolutionary origin story. That common bond should motivate policies that recognize the truth of their relationship— and the extent of the harms done—but also the possibility of what could be. An honest commitment to exploring and acknowledging the pain of U.S. immigration policy could lead not only to treating current Haitian asylum seekers and TPS holders with dignity and respect but to imagining a mutually beneficial relationship that benefits both countries as well as the families and individuals caught in between Port-au-Prince and the United States. Such a model of acknowledgement, remittances, and reparations would not only serve the U.S.-Haitian relationship, but also those fleeing persecution and oppression around the world, especially those from the Global South, seeking to realize their rights under international law. As the famous Kréyol proverb goes, “dèyè mòn gen mòn,” or “beyond mountains, there are mountains.”²³² Perhaps the first step towards healing is simply to imagine what a just future could look like, somewhere just beyond those peaks.