Christina Prinvil is a staff writer for Brief Policy Perspectives and a second-year MPP student.

In September 2021, the world watched as thousands of Haitian refugees, seeking help at the southern border of the United States, were prevented from crossing the Rio Grande by Border Patrol agents on horses, some of whom used their reins as whips. This forceful response, and the jarring images of it, were met with condemnation in some corners, while many on the political right argued that the Border Patrol was acting in the interest of public safety. Ultimately, hundreds of migrants were allowed to stay in the country, with instructions to appear before an immigration court in 60 days. Thousands more, however, were put on buses and planes and sent to Haiti without their cases being heard, a move fiercely criticized by immigrants-rights advocates.

The uproar over this event has prompted those on all sides of the immigration debate to take a closer look at the immigration policies that have led the U.S. to this point. Many see immigration as a partisan issue exacerbated by the Trump administration’s anti-immigrant actions in recent years. But in reality, immigration policy goes beyond party lines and needs immediate attention from federal policymakers. 

Unintended Consequences of the Illegal Immigration Reform and Immigrants Responsibility Act

The treatment of Haitian immigrants at the southern border stems from existing imigration policies like the Illegal Immigration Reform and Immigrants Responsibility Act (IIRIRA). In 1996, President Bill Clinton signed IIRIRA into law with the intention to curtail illegal immigration at the border and support legal migration. Often called the “last major immigration reform,” Ultimately, IIRIRA increased the number of Border Patrol agents, introduced new border control measures, reduced government benefits available to immigrants, increased penalties for unauthorized immigrants, and toughened procedural requirements for asylum seekers and other immigrants, according to a report from the Center of Migration Studies. 

IIRIRA created roadblocks for asylum and refugee seekers and established expedited removal through the elimination of due process, meaning asylum seekers could legally be deported at U.S. ports of entry without their cases ever being heard, as seen with Haitian asylum seekers at the southern border this fall. IIRIRA also made it harder for undocumented immigrants to become legal. Prior to 1996, immigrants only needed to prove that they, themselves, would suffer extreme hardship from deportation. Since IIRIRA, migrants have to prove that their deportation would cause “exceptional and extremely unusual hardship” to a US citizen, like their child or spouse. IIRIRA also made it so that an unauthorized immigrant could not directly apply for legal status. In a provision widely known as the “three and 10-year bars,” immigrants were banished for minimum of three years if they were undocumented for six months, and 10 years if they were undocumented for more than a year. It created 287 programs that enlist state and local law enforcement to enforce immigration law, a role that they had not traditionally played. Finally, IIRIRA enacted more immigration-related crimes, such as being undocumented, which over time conflated immigration status, or lack thereof, with criminal activity. Over the years, more laws criminalizing alienhood have continued to affirm the image of immigrants, whether documented or undocumented, as criminals. Part of the public believes that the treatment of the Haitian migrants is a justified punishment for a criminal. Overall, elements of IIRIRA are still seen today, and have created the groundwork for some controversial immigration policy.     

Title 42 and Migrant Protection Protocols

Those controversial policies include Title 42 and the Migrant Protection Protocols (MPP) which were enacted under former President Donald Trump, who ran on a zero-tolerance platform for illegal immigration. Title 42 is a clause under the 1944 Public Health Service Law that allows the government to restrict the entrance of noncitizens to the U.S. during public health crises. Rarely used before COVID-19, Title 42 was employed by the Trump administration to limit immigration to the U.S. during the pandemic, claiming that incoming migrants would be a threat to public health. Since the beginning of the pandemic, Title 42 has been used by both by President Trump and President Biden to turn away or expel, over 1.2 million people, without their cases being heard. 

Despite President Biden’s progressive immigration platform during the campaign, the Biden administration has stated that Title 42 is necessary and that it is a “public health authority” not an immigration one. But this fall, senior State Department official Harold Koh resigned from his role, his disapproval of the administration’s inhumane use of Title 42 toward Haitian immigrants as his reason for leaving. According to the American Immigration Council, federal courts have rejected the use of Title 42 to expel people, and Title 42 is currently on appeal at the D.C. Circuit Court of Appeals for its use against unaccompanied children and migrant families.  

Another Trump policy called the Migrant Protection Protocols forces asylum seekers entering the U.S. from Mexico to stay in Mexico (or anywhere outside of the U.S.), while they wait for their asylum hearing. MPP has resulted in about 68,000 people being returned to Mexico. President Bident created an executive order to terminate MPP in February 2021, but the Supreme Court overturned the administration’s suspension after hearing a legal challenge to the order from Texas. The court ruled that the Biden administration did not provide an adequate enough reason as to why the program should be ended and said that the administration must reinstate MPP. According to an October 2021 report from the American Immigration Council, “The Biden administration announced that it intends to issue a new memorandum terminating MPP, while it simultaneously negotiates with Mexico to reinstate MPP under court order.”

Policy Recommendations

There has not been a federal immigration overhaul since IRIRA, and its legacy continues to harm our current immigration system, as evidenced by current policies like Title 42 and MPP. Regardless of the political party in power, economic devastation, a worsening climate crisis, and poor governance will continue to drive migrants and refugees to our borders. The U.S desperately needs a substantial update to our immigration policy. 

Earlier this year, President Biden sent The U.S. Citizenship Act of 2021 to Congress, a piece of legislation which, if passed, would move us in the right direction on immigration policy. According to the White House, this bill would provide a pathway to citizenship for undocumented people; prevent employers from exploiting immigrant workers by strengthening labor protections; implement “smart” border controls, including safety and professionalism training programs for officers, scanning technology, and a crackdown on trafficking networks; and address the root causes of migration by increasing aid to several Central American countries and easing the backlog of asylum applications. This bill, if enacted, would start to make the wide-scale changes needed to reform our current immigration system, by creating a pathway to citizenship while addressing the specific hardships that lead individuals to leave their home. On the other hand, President Biden’s Build Back Better Act, currently making its way through Congress, does not provide a pathway to citizenship, but would provide a work permit for up to 5 years. BBB would help protect about seven million immigrants from deportation. Although the Build Back Better Act may not be the federal immigration overhaul policy that immigrant advocates have been working for, it serves as a good temporary fix. 

However, more proactive steps should be taken to terminate Title 42. Title 42 is still being used to expel immigrants, especially at the border, and this inhumane practice should stop. Asylum seekers and immigrants should be able to have a fair process where their case is heard without fear of immediate removal. The answer to this problem is smarter border control instead of harsher and increased border control.

In conclusion, Bill Clinton’s 1996 IIRIRA was the last major immigration reform and continues to pave the way for immigration regulation. It is evident that we need updated, less severe, and more humane immigration laws. If nothing is done to reform our current policies, the harsh treatment of Haitians at the border will only be the beginning of what is yet to come.