TPS: An Endless Immigration Program

Since the Immigration Act of 1990 created Temporary Protected Status, the program has become vampire-like in its inability to be killed off. Like most immigration laws, the original intentions behind it appear compassionate. But also like most immigration laws, abuses become common. Yet, 30 years later, the status quo grinds on.


TPS is a protected status, the “P” and the “S,” granted to certain foreign nationals whose home countries are embroiled in war or ravaged by natural disasters which makes returning home perilous.


So far, so good.


But the “T” for temporary is a mirage, and usually means permanent. Overwhelmingly, TPS recipients never return home. Nationals from ten countries, a total of about 320,000 people, are enjoying the benefits of lawful permanent residency, most notably, employment authorization documents. The ten countries are Haiti, El Salvador, Syria, Nepal, Honduras, Yemen, Somalia, Sudan, Nicaragua and South Sudan.


TPS has a relative – Deferred Enforced Departure – that’s awarded to individuals that TPS previously covered, but which subsequently expired. Liberia is a prime DED example that expanded into a potential avenue to permanent lawful residency, a provision that’s included in the National Defense Authorization Act for Fiscal Year 2020 and known as the Liberian Refugee Immigration Fairness Act.


LRIFA is an amnesty that has nothing to do with national defense, but which, at Rhode Island Sen. Jack Reed’s urging, was nevertheless snuck into the most recent NDAA. Against the wishes of many of his supporters, President Trump signed NDAA, and thereby granted amnesty to about 4,000 Liberians.


President Trump’s TPS record is a mixed bag – a kind of close but no cigar. El Salvador, for example, was TPS-designated in 2001 after a major earthquake rocked the nation. U.S. Citizenship and Immigration Services has granted El Salvador several extensions. Nearly two decades after El Salvador received TPS, the country has become a favorite tourist destination. In 2018, El Salvador welcomed close to 1.68 million tourists, up from 1.56 million the previous year.


Since returning to El Salvador today is generally risk-free, in 2018 President Trump announced a proposed TPS phase out. But a California judge, ruling on a lawsuit that the American Civil Liberties Union filed, blocked the Trump administration which then, in February 2019, extended TPS for El Salvador and other nations until January 2020. In October 2019, President Trump extended employment authorization for Salvadoran TPS holders until January 4, 2021, and also lengthened TPS for 365 days from the date that the multiple TPS-related lawsuits have been concluded.


The TPS merry-go-round follies involving President Trump’s attempts to repatriate foreign nationals, but the courts blocking his efforts, have played out similarly to El Salvador’s example with cases involving Sudan, Nicaragua, Honduras and Haiti.


The Trump administration has amassed a dismal TPS failure record with the courts that matches his overall high failure rate on other immigration-related issues. Given the Trump administration’s poor history with the judicial system, the Ninth Circuit Court of Appeals 2-1 decision that the president could end TPS for El Salvador, Nicaragua and Sudan surprised analysts. A New York judge’s ruling that Haitians cannot be deported remains in place.


The appeals court majority opinion read, in part, that “The decision to designate any foreign country for TPS begins and ends with the [Department of Homeland Security] Secretary, so long as certain limited statutory criteria are met.” A Justice Department representative hailed the decision, and noted that the 2018 injunction “prevented the Department of Homeland Security from taking action that Congress has vested solely within the discretion of the Secretary of Homeland Security – action that is statutorily precluded from judicial review.


For federal immigration law to retain at least a shred of credibility, the most basic conditions must be met. If a program that grants affirmative benefits to its participants is labeled “temporary,” then it must be short-term. But some TPS recipients have lived in the U.S. for two decades, a laughable outcome for a “temporary” program.


TPS requires that nationals return home once in-country conditions warrant it. President Trump’s efforts to end TPS have been described as harsh and uncaring. Critics fail to note the benefits to the struggling home countries once their nationals return from the U.S. where many learned English, acquired skills and developed a strong work ethic. Those talents are in short supply in TPS-granted nations, and the returnees can help boost their home nations to greater economic success.