Fighting Over Whether Haitian Immigrants Are ‘Legal’ Misses the Point: They’re Legally Vulnerable

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As Springfield, Ohio, and its purported (largely invented) problems with its Haitian population have continued to dominate both national news and the presidential campaign, people on both sides have struggled to fit the newly-arrived Haitian population into the conventional boxes of immigration politics: “legal immigrants” versus “illegal” ones.

So-called “hawks” in the immigration space – people who are generally inclined to more restrictive attitudes – have casually declared the Haitians of Springfield (and elsewhere) illegal. “Doves” – people more inclined to leniency toward immigrants – have retorted that, actually, they are likely to have legal protections in the United States. Some hawks have responded in turn that, too bad, they’re going to keep calling them illegal.

But in terms of the actual policies that led to Haitian arrivals, neither is exactly true. And that’s important to understand.

Hawks tend to default to “illegal” as a way to express disapproval of how someone came to the United States, or a feeling that the government shouldn’t allow them to settle here – even when they’re following a process prescribed by federal law. (This is how the Biden administration’s parole programs, for example, which extend temporary legal protections to certain groups of people, have been labeled magnets for “illegal” migration.) Doves, on the flip side, tend to default to an idea that immigrants – certainly legal ones – have come to the U.S. to settle and make a better life for their families – even when the actual legal status they hold isn’t supposed to be one that allows them to live here forever.

In the case of Haitians, both are true. The lives of recent arrivals from Haiti have been shaped by the interaction of several laws and policies, which combine to put them, right now, in a space that isn’t “illegal,” but isn’t fully, irrevocably “legal” either. The dichotomy between “illegal migrants” and “legal immigrants” is not only arbitrary but, often, fundamentally unimportant to understanding what laws people are living under and what their prospects in the United States are.

Just as importantly, though, the back-and-forth obscures a stark and essential truth: that many people living with legal protections right now have no way of making those protections permanent, putting them at the mercy of president after president.

New arrivals from Haiti are a particularly salient example of this phenomenon, because they benefit from a few different Biden administration programs – which have allowed many Haitians to enter the U.S. under one legal process, but transition to another form of protection that allows them to stay in the U.S. indefinitely.

While the Biden administration has attracted attention from the left for its crackdowns on the asylum process, and from the right for allowing anyone to enter the U.S. at all, it’s also acted fairly aggressively in creating alternative processes for people to arrive in the U.S. at ports of entry rather than crossing without authorization and presenting themselves to Border Patrol agents for asylum. These have been especially important for Haitians.

The Cuban, Haitian, Nicaraguan and Venezuelan parole program (CHNV) provides 2-year grants of legal presence in the United States, along with eligibility for work permits. The implication of the program is that people will work for their two years in the United States and then (if they have not found a more durable form of legal status) return home – the government has not said that CHNV permits will be renewable, though it has not explicitly said they won’t be, either. The government grants up to 30,000 CHNV applications (filed by a U.S.-based sponsor) every month, though the number of people who actually make it to a U.S. airport under the program is usually slightly lower. As of May 2024, 172,900 Haitian nationals had come to the U.S. under the CHNV program. (All statistics in this post come from the Office of Homeland Security Statistics.)

At the U.S./Mexico border, meanwhile, the Biden administration has paired its restrictions on asylum eligibility for people who cross between ports of entry with a system using the CBP One app to register for an appointment at a port of entry and present oneself for asylum. (After initial screening at the appointment, CBP can choose to keep an asylum-seeker in detention or release them while their asylum case is pending.) Right now, under the Biden administration’s executive order declaring a border “emergency,” CBP One appointments are the only way for someone to guarantee they will even be allowed to seek asylum instead of a lesser form of protection.

Haitian Kreyol is one of only three languages in which the CBP One app is available (the other two are English and Spanish). While there continue to be many more people who want to make CBP One appointments than there are slots available, many people have successfully entered the U.S. after coming to a port of entry. Since the release of the CBP One app in January 2023, nearly 120,000 Haitians have been allowed into the U.S. after presenting themselves at ports of entry.

These aren’t the only Haitian asylum seekers who have been allowed to stay in the U.S. with pending cases since the beginning of fiscal year 2021 (which started in October 2020). Including the Haitians who were released into the U.S. from border ports of entry before the CBP One app was released (40,500) and Haitians who were released from Border Patrol custody after crossing between ports of entry (32,000), 190,000 Haitians were allowed to stay in the U.S. awaiting their asylum cases between October 2020 and May 2024.

May 2024 is the most recent month for which these statistics are available, but it’s also important for another reason. This summer, Homeland Security Secretary Alejandro Mayorkas announced that he was redesignating Haiti for Temporary Protected Status – a program which allows people who are in the U.S. from a given country, even if they have temporary visas or lack legal status entirely, to receive protections from deportation and work permits for a couple of years at a time. TPS is granted to countries that the U.S. has determined it’s not safe to deport people to, either because of conflict or natural disasters. It can be extended indefinitely, and in most cases – including Haiti, which has been under TPS since 2010 – that is exactly what has happened.

But by not only extending TPS for Haitians who already had those protections, but redesignating it, the Biden administration allowed Haitians who had arrived before June 3, 2024 to apply for TPS. This included Haitians who’d been paroled in via the CHNV program – who otherwise would have started losing those protections in January 2025 – and Haitians who lacked legal status and whose best hope had been an approval of their asylum claim years down the road.

This is an important, and underconsidered, aspect of the Biden administration’s immigration agenda. By combining new legal pathways (such as CHNV) with a generally dovish attitude toward TPS designations, the Biden administration hasn’t just extended temporary deportation protections to hundreds of thousands of people – it has allowed some people to enter the U.S. for a defined amount of time, then allowed them to convert it to indefinite protection. That means that some Haitians (and others) who had initially planned to leave the U.S. after a couple of years have been given the opportunity to change their minds and choose to settle down in communities like Springfield for the foreseeable future.

We don’t know how many people who were eligible to apply for TPS actually did. But in theory, as many as 365,000 Haitians who had come to the U.S. in the prior three and a half years – either on a new temporary program, or to seek asylum – could have been allowed to convert their status to something a tiny bit less precarious.

But only a tiny bit.

The current TPS designation for Haiti expires on February 3, 2026. Before that date, the Department of Homeland Security – whoever is leading it at that time and whichever president they report to – must come to a conclusion about whether Haitians continue to need these protections or not. If they conclude they don’t, the Haitians who had TPS – whether they are recent arrivals who received it this summer, or people who have been protected under TPS since 2010 – will lose that status.

Haitians who arrived under the CHNV program between February and May 2024 would still have legal protections under that program – for a few days or months, until the two-year window ran out. Haitians who had been denied asylum while being protected under TPS would suddenly become easy targets for deportation, since they could be removed without another court hearing. Haitians whose asylum cases had been taken off the docket (administratively closed) because they had gotten TPS instead would be able to apply for new work permits but wouldn’t have any prospects of legal status. Haitians whose cases had been fully dismissed from the immigration docket wouldn’t even be allowed to work legally. And everyone else would be simply an unauthorized immigrant, subject to arrest by ICE, detention, and the ultimate prospect of deportation.

It’s not like this is an unthinkable prospect. The Trump administration tried to sunset TPS designations for hundreds of thousands of immigrants during its term in office – starting, ironically, with Haiti in summer 2017. The effort did not succeed because federal courts found that the administration hadn’t followed the correct process in considering whether or not to review TPS – that, essentially, the political appointees at the top decided that TPS needed to end instead of looking at the evidence on country conditions compiled by civil servants. (Indeed, there was evidence that in one case, the acting homeland security secretary had changed her recommendation after receiving a call from the White House.)

Nothing would stop a future administration from making another effort. Indeed, Project 2025 calls to an end for all TPS designations – without any acknowledgment of country conditions at all – strongly implying that another hawkish president would make ending TPS a top priority.

What’s frustrating is that, more than seven years after the Trump administration tried to end TPS for Haiti, Haitians are still dependent on the decisions of presidential administrations every 24 months to retain their ability to live in the United States. TPS holders have been living in a state of “liminal legality” for decades – settled in the U.S., but with the knowledge that they could, in theory, be forced to pick up and leave nonetheless. Because TPS doesn’t create a path to permanent legal status – and because Congress hasn’t acted on any of the bills that have been introduced every two years to create one – they’re stuck with TPS as their best option.

At the end of the day, that’s far more important than whether they are currently “legal” or “illegal” – the fact that they have no idea what their futures in the United States will hold, and no ability to control their fates.

FILED UNDER: Ohio