The Latest Assault on Immigrants and the Need to Preserve TPS

by Debbie Smith, Associate General Counsel for Immigration Law, Service Employees International Union (SEIU)

Even as the newest Muslim ban works its way through the courts, President Trump has initiated another assault against immigrants by terminating a program providing humanitarian relief to immigrants fleeing civil war and natural disasters. Despite 30 years of Democratic and Republican administrations’ recognition of the importance of continuing this protection, unless Congress intervenes or the administration changes its mind, it is about to end.

Last Monday, the Acting Secretary of the Department of Homeland Security ended Temporary Protected Status (TPS) for 2,500 Nicaraguans and left in limbo the fate of 57,000 Hondurans who have lived and worked legally in the United States for decades. On Thanksgiving Day, DHS will decide the destiny of 50,000 Haitians who fled the earthquake that decimated their island. In January, DHS will consider whether 200,000 Salvadorans living in the U.S., many for over 20 years, can remain. By the end of 2018, the approximately 350,000 hardworking current TPS beneficiaries will be forced into the shadows and subject to expulsion from the U.S.

TPS, enacted in 1990 as an amendment to the Immigration and Nationality Act and codified as 8 U.S.C. § 1254a, provides a safe haven for immigrants who are fleeing dangerous conditions in their home countries. The law established a process for the Attorney General, later the Secretary of Homeland Security following the creation of DHS, to designate a country for TPS status, following consultation with government agencies, if the country has experienced: 1) an armed conflict; 2) an environmental disaster or 3) other extraordinary conditions. In the case of an environmental disaster, the Secretary of DHS must determine that the country cannot handle the return of its nationals and the country must also formally request TPS. 

TPS can be conferred for 6, 12, or 18 month renewable periods. Once the country is selected for TPS, its nationals who are in the U.S. as of a date certain, are eligible for work authorization and permission to remain in the U.S. during the TPS period.  The 6^th  and 9^th Circuit Courts of Appeals have held that a grant of TPS status constitutes a lawful admission and therefore TPS beneficiaries residing in the 6^th and 9^th Circuit are entitled to process applications for legal residency in the United States without returning first to their home country (adjust status). 

The 1990 amendment also specifically designated El Salvador for TPS. This statutory designation was the only country-specific congressional designation and followed a decade-long effort to protect the more than 500,000 Salvadorans who fled the violent civil war seeking safety in the United States. 

The Trump Administration is determined to eliminate TPS entirely, without consideration and review of the TPS countries’ conditions or adequate procedural process. The Washington Post reports that White House Chief of Staff John F. Kelly called Acting Secretary Elaine Duke from Japan and attempted to pressure her to terminate the Honduran program on November 6. 

Congressional representatives have introduced two bills to provide a path to legal residency for TPS beneficiaries and another bill is expected. Representative Carlos Curbelo, (R-FL) introduced bipartisan legislation to grant legal permanent resident status Nicaraguan, Honduran, Salvadoran and Haitian migrants. A second bill sponsored by Representative Velázquez (D-NY) would provide a pathway to legal resident status and citizenship for immigrants from all of the TPS countries and well as those granted another humanitarian benefit, Deferred Enforced Departure (DED).  

Advocates continue to fight to preserve TPS and prevent the wholesale removal of hundreds of thousands of TPS beneficiaries from the ten TPS countries, El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, Yemen. Without public pressure and congressional intervention, the decades-old bipartisan understanding that the U.S. should offer a safe landing to those in critical need will be broken and our national pride diminished.