The Washington PostDemocracy Dies in Darkness

Senior legal adviser at State Dept. calls administration policy toward expelling migrants ‘inhumane’ and ‘illegal’

In 2011, then-State Department legal adviser Harold Koh testifies before the Senate Foreign Relations Committee.
In 2011, then-State Department legal adviser Harold Koh testifies before the Senate Foreign Relations Committee. (Chip Somodevilla/Getty Images)
Placeholder while article actions load

A top lawyer at the State Department left his job Friday and excoriated President Biden’s deportations of migrants at the southern border, calling the policy “inhumane” and “illegal.”

The rebuke by Harold Koh, the top political appointee in the Office of the Legal Adviser, is the latest example of passionate dissent within the Biden administration on immigration issues following the resignation of Biden’s special envoy for Haiti last month.

In an internal memo to colleagues, Koh takes aim at the Biden administration’s use of the public health authority known as Title 42, which has been invoked to expel hundreds of thousands of migrants since Biden came into office, saying it is unworthy of an administration “I so strongly support.”

“I believe this administration’s current implementation of the Title 42 authority continues to violate our legal obligation not to expel or return . . . individuals who fear persecution, death, or torture, especially migrants fleeing from Haiti,” he wrote in the memo, which was first reported by Politico.

President Donald Trump first invoked Title 42, a rarely used public health authority, to expel immigrants at the U.S.-Mexico border. Liberals decried the move as the exploitation of the global pandemic to impose hard-line immigration policies. Biden has continued the policy to the chagrin of immigration advocates and invoked it most recently to deport thousands of Haitian asylum seekers in Texas back to the impoverished Caribbean country.

Most of the migrants in Del Rio, Tex., camp have been sent to Haiti or turned back to Mexico, DHS figures show

In the memo, Koh said the scale of the Biden administration’s use of the authority is “startling.”

“Nearly 700,000 people have been expelled under Title 42 since February of this year, and . . . this past August alone, 91,147 were forcibly removed,” he said, citing U.S. government statistics.

When asked about the letter, White House press secretary Jen Psaki defended the continuation of the policy, saying “it remains in place because we are in the middle of a pandemic.”

In rejecting Koh’s claim that the policy is “inhumane,” Psaki said “there are several exceptions for Title 42, including those who are fleeing persecution who express a concern of fear.”

Critics have said such exceptions should apply more easily to Haitians whom the Biden administration has deported back to a country overwhelmed with an array of crises, including the proliferation of powerful armed gangs, food insecurity, the spread of the coronavirus and the aftermath of a deadly earthquake in August.

In September, Biden’s special envoy to Haiti, Daniel Foote, quit after six months on the job, saying he couldn’t be “associated with the United States’ inhumane, counterproductive decision to deport thousands of Haitian refugees and illegal immigrants to Haiti.”

Koh had been an internal critic of the Biden administration’s deportation policy for months, but the 3,000-word memo amounted to his lengthiest criticism of the policy, according to a State Department official who spoke on the condition of anonymity to discuss internal matters.

In the memo, Koh urged the administration to consider “more lawful” and “more humane” policy options, including determining whether recent Haitian migrants may have legal status and family ties in other countries where they could be sent, such as Brazil or Chile, instead of returning them to Haiti. He also calls for the immediate suspension of all Title 42 flights, “but especially to Haiti.”

Koh was appointed to the State Department in the winter and had long planned to step down this fall to take on a professorship at the University of Oxford, according to people familiar with the matter. Under the arrangement, Koh would continue consulting the department on a number of issues, though it is unclear whether the agreement remains in place following his dissent.

“I ask you to do everything in your power to revise this policy, especially as it affects Haitians, into one that is worthy of this Nation we love,” Koh wrote to his colleagues.

Felicia Sonmez contributed to this report.