On Jan. 8, 2018, the Secretary of Homeland Security Kirstjen M. Nielsen announced the decision to terminate the Temporary Protected Status (TPS) designation for El Salvador, marking the end of a program that has protected over 200,000 individuals fleeing the troubled Central American state since 2001.
The decision to end TPS for Salvadorans living in the United States is the latest in a series of recent and widely criticized decisions to terminate this form of humanitarian protection extended to states such as Haiti, Nicaragua and Honduras. Salvadorans currently holding TPS, the largest group benefiting from the program, will lose the ability to live and work in the United States in September 2019 when the protections formally terminate. Following more than 17 years of establishing ties to the United States, immigrant advocates and the Salvadoran government lobbied to extend the program, as it has been several times since 2001. Officials maintain that the time has come for this “temporary” form of relief from removal to come to a natural end, as the underlying reason prompting the protections – devastation from a 2001 earthquake – has been ameliorated and Salvadoran nationals can safely return.
Currently, the United States provides TPS for over 300,000 foreign nationals from 10 countries – El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen. Notably, TPS – which is based on dangerous country conditions in general – differs from other forms of protections granted on a case-by-case basis, such as refugee or asylee status that are based on an individual’s fear of returning to his or her country due to past persecution and/or well-founded fear of persecution on account of a protected ground – race, religion, nationality, membership in a particular social group, or political opinion.
The Secretary of Homeland Security may elect to designate a country for TPS when one of three circumstances occurs: (1) “ongoing armed conflict” that creates unsafe conditions for returning nationals; (2) calamity such as an earthquake, flood, drought, epidemic, or other environmental disaster that makes the state temporarily unable to accept the return of its nationals, and the state has requested TPS designation; or (3) “extraordinary and temporary” conditions in a state prevent its nationals from returning safely.
At its core, TPS is the statutory embodiment of a temporary grant of safe haven for foreign nationals already present in the United States and seeking temporary refuge from peril or violence in their home country.
As the name makes clear, TPS was developed as a temporary reprieve from removal from the United States. TPS by itself does not grant permanent legal status in the United States (although, TPS-holders with U.S. citizen spouses or adult children may use TPS as a basis for applying for permanent resident status in the Sixth and Ninths Circuits), nor does it provide a pathway to U.S. citizenship. TPS beneficiaries receive provisional protection against deportation and permission to work in the United States for a limited period of time. The United States can end a country’s TPS designation once it has recovered from the triggering event and protections are no longer needed.
As outlined in her Jan. 8 statement, Secretary Nielsen reasoned that the decision to terminate TPS for El Salvador was made “after a review of the disaster-related conditions upon which the country’s original designation was based and an assessment of whether those originating conditions continue to exist as required by statute.” However, in the eyes of immigrant rights advocates, the decision is a further attack on the United States’ tradition of humanitarianism toward immigrants and refugees. Citing the perils awaiting repatriated Salvadorans – such as El Salvador’s widespread gang violence and the highest homicide rate in the world for a country not at war – advocates have urged U.S. officials to extend TPS rather than render the status of 200,000 immigrants currently living, working and paying taxes. As with 2017’s DACA debate, the media battle between immigrant advocates and rule-of-law hardliners highlights the inaction of Congress to legislate pragmatic and common-sense solutions to address the plight of undocumented immigrants living in the United States.
Unsurprisingly, the Trump administration’s decision is consistent with previous – and similarly controversial – moves. As with the DACA decision, Secretary Nielsen revealed that the administration’s position is that “only Congress can legislate a permanent solution addressing the lack of an enduring lawful immigration status of those currently protected by TPS who have lived and worked in the United States for many years.” Now, and as with the impending DACA crisis, lawmakers must reach consensus on a permanent legislative solution for TPS holders using the political momentum kicked up by such a dramatic turn of events. Now turning to an immigration system is widely derided as broken, both parties must focus on comprehensive immigration reform to present pragmatic solutions to a growing list of urgent and dramatic deadlines that leave millions hanging in the balance. Kathryn P. Russell
