On March 11, as the number of Ukrainians arriving at the U.S.-Mexico border began to tick up, the U.S. Department of Homeland Security (DHS) issued a special memo advising border officials that they could, on a case-by-case basis, offer that particular group special treatment. Unlike tens of thousands of other migrants, fleeing violence in other countries, border guards could exempt Ukrainians from the public health order, Title 42.
The exemption, which was first reported by CBS News, was cheered by immigrant advocates and lawmakers. But many also pointed to a double standard: Ukrainians fleeing the well-documented horrors of an unprovoked war have been granted access to the U.S. relatively quickly, while people from other nations—many of whom are also fleeing sickening violence—have not seen anywhere near the same mercy. Since the Trump Administration invoked Title 42 in March 2020, border guards have used the measure to conduct nearly two million immediate expulsions, including of women and children; under the order, migrants are not able to asylum, an international right, before they are sent back across the border.
For some experts who study the U.S.’s immigration and refugee history, the March memo exempting Ukrainians from Title 42 came as no surprise. It’s consistent, they say, with the a broader pattern of American sympathy for predominately white migrants from predominately Christian countries fleeing violence that is not typically extended to people who aren’t white or non-Christian.
“This heightened sense of responsibility, while commendable, is noticeably different than what Americans usually do when there is a conflict where you have millions of refugees,” says Sahar Aziz, professor of law and Chancellor’s Social Justice Scholar at Rutgers University, whose research focuses on the intersection of race and national security policy.
Consider how Americans responded when millions of Syrians fled the Bashar al-Assad regime, regional militias, and ISIS, Aziz says. “While there were pockets of Americans who cared deeply about the Syrian refugee crisis…the majority [of the public sentiment] was ‘that’s too bad, but that’s not our problem,'” she says. “They didn’t see the Syrian as an extension of their identity.”
The U.S. response to international refugee crises typically depends on a slew of geopolitical factors as well as popular sentiment. Russians, for example, have not received the same type of exemption at the U.S.-Mexico border that Ukrainians have.
Between Feb. 1 and April 6, nearly 10,000 Ukrainians had been processed into the U.S. through official ports of entry who did not have prior authorization, according to U.S. Customs and Border Protection (CBP) data obtained by CBS News. It is unclear how many of the nearly 10,000 were processed through the U.S.-Mexico border. (Many Ukrainians come through Mexico because of easier visa access.)The United Nations Refugee Agency estimates that as of March 30, 4 million Ukrainians have fled the country, mostly to neighboring countries.
In February, the most recent public data available, CBP encountered 272 Ukrainians at the U.S.-Mexico border, a substantially smaller number than most other nationalities who arrive there. Only one Ukrainian was expelled under Title 42 that month, according to CBP data. By comparison, nearly 69% of Guatemalans, more than 68% of Hondurans, and more than 64% of El Salvadoran migrants encountered in February were expelled under Title 42, according to TIME’s analysis of CBP data. The thousands of people who have fled these Northern Triangle countries say it is because of gang violence, high homicide rates, poverty, and natural disaster.
Per an agreement with the Mexican government, Guatemalans, Hondurans, and El Salvadoran migrants can be expelled back to Mexico. But others, including Haitians, are not a part of the agreement. They are instead expelled to their home country. Between Sept. 19 and March 17, the U.S. has returned more than 18,800 Haitians back to a country riven with gang violence, political instability, economic collapse, and fallout from natural disasters.
DHS Secretary Alejandro Mayorkas has said repeatedly that the U.S. does not offer special treatment for Ukrainians. At a press conference on March 17, he said that the that the March memo was intended as a reminder to CBP personnel that they have the discretion to exempt certain vulnerable migrants from Title 42.
“What we do on an individualized basis is evaluate whether a Ukrainian family, and frankly other families from other countries qualify for our discretionary authority of granting humanitarian parole,” he told CBS’s Norah O’Donnell on April 6. “That’s not specific to just Ukrainians, we apply that across the board.” When O’Donnell again asked if there is a double standard between the treatment of Ukrainians and other migrants, Mayorkas replied, “There is not.” DHS did not immediately respond to TIME’s request for further comment.
On April 1, the CDC announced it will end Title 42 expulsions on May 23, calling to question how migrants hoping to claim asylum will be treated at the U.S.-Mexico border. For Ian Kysel, visiting assistant clinical professor of law at Cornell University, the move to exempt Ukrainians from expulsions may be a step in restoring asylum access as the U.S. prepares to end Title 42.
Countries worldwide, including the U.S., have long walked the line between pushing for complete discretion at its borders to include or exempt who it chooses, while also trying to maintain humanitarian ideals and follow international refugee and asylum laws that prevent discrimination on the basis of race, religion and other social characteristics, Kysel says. He adds that exclusion based on nationality is a grey area.
Nonetheless, preventing people from making a claim for asylum at all, which Title 42 does, goes against international law, Kysel says. “[I’m] really hoping that this is a return to the rule of law,” he says. “Because treating one group favorably when you’re preventing others from getting protection from persecution…the fundamental problem is the continued rejection of refugee law.”
For Aziz, the way Ukrainians have been received at the border raises a moral conundrum. “I think that these are important questions that all of us as Americans have to ask ourselves,” she says. “Where are the limits of our sense of humanitarianism? Do those limits have racial boundaries and religious ones? And and if so, what does that say about us as a country?”
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