Sometimes the best defense is a good offense.
Take the current situation facing Temporary Protected Status beneficiaries.
Over 300,000 individuals who have TPS status are at risk for deportation if the Trump Administration scraps the program in the near future.
Rumors abound such a decision will be abruptly made, with limited, if any, advance warning.
Such an ignominious ending would be no surprise.
Temporary Protected Status Update
On Monday, January 7, 2019, a federal lawsuit filed on behalf of Haitian Temporary Protected Status holders began in Brooklyn, New York.
The lawsuit alleges the Trump administration violated the Constitution when it ended the TPS protections for thousands of Haitian immigrants, and based its decision on racism and its political agenda more than actual evidence which were deleted to hide the facts about the real conditions in Haiti’s earthquake recovery.
The decision in New York will likely have a huge impact on keeping the TPS program alive for various countries, in addition to Haiti. There are other TPS lawsuits which will soon begin in other parts of the country. In particular, a lawsuit in California will also have a major impact on whether the Temporary Protected Status program continues to survive or is eliminate by the current administration.
On Oct. 3, 2018, the U.S. District Court for the Northern District of California, in Ramos v. Nielsen, enjoined the Department of Homeland Security from enforcing the decisions to terminate TPS for Sudan, Nicaragua, Haiti, and El Salvador. The case is ongoing.
Temporary immigration programs, dead-end in nature, with no path to legalization, are always vulnerable to rapid death.
Yet, there are flickering glimmers of light at the end of the immigration tunnel for past and present TPS recipients even if the Temporary Protected Status program is terminated.
The Dawn Of TPS-Based Permanent Residence
In recent months, the news that the grant of Temporary Protected Status for Haitian immigrants may come to a halt on January 22, 2018 has heightened fears the entire TPS program might be dumped.
Given the September 5, 2017 rescission of the Deferred Action For Childhood Arrivals policy, the worries of beneficiaries that their country’s TPS designation is on the chopping block assume a more foreboding posture.
However, DACA grantees and TPS recipients are not on the same boat. Despite the similarity in their respective legal positions, those with Temporary Protected Status face unique battles in their quest for lawful permanent residence – and have different access to possible legal solutions.
Whereas the majority of DACA beneficiaries will be forced to play defensive law in the coming months, many TPS holders should be eligible to engage in affirmative maneuvers to win legalization.
Editor’s Note: The strategies recommended in this article for obtaining green cards and permanent residency status applies to all TPS beneficiaries. Although the commentary largely address the current situation of immigrants from El Salvador, Honduras, and Haiti, the roads to lawful permanent residence, outlined below, can be used by TPS recipients from Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen with equal vigor wherever the regulatory parameters are met.
Haitian TPS Nearing Its End
In late May, after several months of public debate regarding whether Haitian TPS should be extended, the government announced a six-month extension. Set to expire on July 22, 2017, the TPS designation was lengthened to January 22, 2018 to provide Haitians time “to handle their affairs” and prepare for departure.
Homeland Security Secretary John Kelly’s announcement was not encouraging.
“This six-month extension should allow Haitian TPS recipients living in the United States time to attain travel documents and make other necessary arrangements for their ultimate departure from the United States,” he noted, “and should also provide the Haitian government with the time it needs to prepare for the future repatriation of all current TPS recipients.”
The likelihood of a sudden end to Haitian Temporary Protection Status put all TPS recipients on instant alert.
Because TPS for Haiti is a relatively new program, born in the 2010 aftermath of a massive earthquake which still plagues the country, TPS beneficiaries from other nations began to sense their days might be numbered as well.
On The Cutting Board: TPS For El Salvador And Honduras
In particular, recipients from El Salvador and Honduras are on shaky grounds.
Of the ten countries under Temporary Protected Status, they have the largest contingents, they have been granted TPS status for nearly 20 years, and they have renewal deadlines early next year.
A perfect storm.
The newest demographic study on TPS, conducted by The Center For Migration Studies, estimates the combined TPS populations of El Salvador, Honduras, and Haiti equals 302,000 grantees out of a total TPS population of 325,000.
- El Salvador 195,000
- Honduras 57,000
- Haiti 50,000
In other words, immigrants from just these three countries constitute 93% of the entire TPS universe.
Statistics from the Department of Homeland Security paint a slightly bleaker political picture for TPS recipients from these three countries.
According to the most recent DHS report on TPS submitted to Congress, there are 340,000 immigrants living in the U.S. under TPS protections – 212,000 from El Salvador, 64,000 from Honduras, and 58,000 from Haiti.
That’s 334,00 out of 340,000, or 98% of the entire Temporary Protected Status population.
In addition Honduras TPS, first granted on January 5, 1999, is set to expire on January 5, 2018, a date prior to the cut-off date for Haiti TPS.
Shortly afterwards, El Salvador TPS, in effect since March 9, 2001, is set to expire on March 9, 2018.
For an administration obsessed with reducing the number of undocumented immigrants, individuals from El Salvador and Honduras are ripe for the picking.
Impact Of Termination On TPS Beneficiaries
As the countdown to January nears, TPS jitters continue to grow.
Nonetheless, over the past month concerns about DACA beneficiaries have dominated immigration news, pushing the pending elimination of Temporary Protected Status into the political background, away from the scrutiny of the American public.
Except for TPS recipients and their families.
Distress over potential deportation and family separation preoccupies their daily lives.
Meanwhile, the Trump Admininstration remains quiet about their TPS intentions.
In the view of TPS activists, the administration’s silence regarding the extension of TPS benefits appears an eerie omen.
The TPS designation, for many beneficiaries, represented a turning point in their lives.
Being a special immigration program created out of humanitarian concerns, TPS extends a helping hand and provides a safe haven to immigrants from countries undergoing turmoil due to national disasters, civil war, or other severe conditions.
Its erratic end would mark the beginning of a fresh nightmare.
For many TPS beneficiaries, the denial of an TPS extension would have consequences far beyond the shores of the United States.
The few news stories to discuss such matters highlight how an adverse decision will force thousands of TPS beneficiaries and their families to choose between a rock and a hard place – between returning to unstable home countries or living in the shadows of American society as undocumented immigrants.
In a recent Mother Jones post, one TPS recepient, Lys Isma, painfully described how January 2010 “was the worst and best month” of her life.
Although the earthquake left her devastated and worrying about her family trapped in Haiti, the subsequent TPS designation presented an opportunity for her to assist them in ways previously foreclosed to her. “I was able to get a job and send money home and have dreams and goals for myself again.”
For such individuals, Marleine Bastien, Executive Director of Haitian Women in Miami, a non-profit organization, doesn’t have solutions when they come to her for advice if the government fails to extend the TPS designation. “Some will go back,” she says, “But I’m pretty sure that a great number will go underground.”
She explains, “This is not a decision you can really counsel people on. What do you do? Do you put your house for sale? Do you close your business?”
In addition, as a former USCIS official of the Obama Administration points out, the money TPS holders regularly send back to family members in Haiti provides an economic boost that would be difficult to replace if the program ended.
Given current conditions in Haiti, “there would be tremendous human hardship on a huge scale” if thousands of people were to return to the country at once.
Similar anxieties are being felt in other TPS communities, especially El Salvador and Honduras, where most TPS holders have a long history of residence in the U.S.
For instance, one 22 year-old U.S. citizen son of two Salvadoran-born parents living in the United States under TPS status recently told Voices of New York, “If this happened to Haitians, then it could happen to us. That is the fear the parent like mine are facing: suddenly not having any more work permits or any protection from being deported.”
In a separate BuzzFeed News article, a housekeeper from El Salvador, who has lived in the U.S. for 23 years, confided that her mother, brother, and daughter depend on the $475 she sends them monthly to pay for their rent and food.
And in Honduras, remittances from its citizens living abroad, comprise 17 percent of the nation’s Gross Domestic Product (GDP), according to World Bank estimates. Over the course of the past two decades, this economic support for family members has become the largest source of Honduran domestic income, including agriculture and manufacturing.
A Demographic Glance At TPS Recipients
Unlike the vast bulk of the DACA population, whom are in their 20s and 30s, the statistical profile of TPS beneficiaries from El Salvador, Honduras, and Haiti illustrates a strikingly different composite, more akin to the equities developed by long-term lawful permanent residents:
TPS recipients from these countries live in 206,000 households: 61,100 of these households (roughly 30 percent) have mortgages.
- About 68,000, or 22 percent, of the TPS population from these nations arrived as children under the age of 16 (which would entitle several to DREAM Act benefits).
- TPS beneficiaries from these nations have an estimated 273,000 U.S. citizen children.
- Ten percent of Salvadoran, nine percent of Haitian, and six percent of Honduran TPS beneficiaries are married to legal residents.
- More than one-half of Salvadoran and Honduran, and 16 percent of Haitian TPS beneficiaries have resided in the United States for 20 years or more.
- About 27,000, or 11 percent, of those in the labor force are self-employed, having created jobs for themselves and likely for others as well.
Even if Temporary Protected Status is eliminated for El Salvador, Honduras, and Haiti early next year, these factors can potentially open the door to various paths to legal residency for many TPS grantees.
Three Paths To Permanent Residence For TPS Beneficiaries
Although Temporary Protected Status was not intended to create a path to permanent residency, there are three primaary paths to permanent residence that will benefit the majority of TPS beneficiaries.
Path 1: Permanent Residence Through USCIS
Adjustment of Status – Some TPS beneficiaries may qualify for permanent residence as an “immediate relative” if they are married to a U.S. citizen husband or wife, or have a U.S. citizen child over the age of 21. Generally, this possibility is reserved for those who entered the country with a legal entry.
Some courts have taken issue with this limitation.
Most recently, in Ramirez v. Brown, the Ninth Circuit Court Of Appeals, which governs cases from Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, and Washington, held that approved TPS grantees have been “inspected and admitted” for purposes of applying for permanent resident status.
A few years earlier, in Flores v. USCIS, the 6th Circuit Court of Appeals, with judicial authority over cases arising out of Kentucky, Michigan, Ohio, and Tennessee, reached a similar conclusion.
On the other hand, in Serrano v. U.S.Attorney General, the 11th Circuit Court of Appeals, which oversees matters originating in Alabama, Florida, and Georgia, reached the opposite conclusion. Despite the ruling, TPS beneficiaries living in these states should not refrain from pursuing adjustment of status, if they meet all other statutory requirements.
Laws change over time.
Never discount strategies today that might sow the seeds of a victory tomorrow.
Additionally, TPS beneficiaries living in states not under the jurisdiction of the Sixth, Ninth, and Eleventh Circuits should not hesitate to apply for adjustment of status if they qualify under the interpretations of Ramirez v. Brown and Flores v. USCIS.
Simply stated, given the large number of TPS beneficiaries with a U.S. citizen spouse and U.S. children, this approach offers the strongest possibility for obtaining legal status, even if TPS benefits are curtailed in the near future.
Some TPS beneficiaries might not be eligible to seek green card status in the United States.
They may need to apply for permanent residency via consular processing, wherein they must apply for a family unity I-601 inadmissibility waiver and return to their home countries for their permanent residence interviews. Although this is a less preferred option, the positive equities they have built in the U.S. might provide the basis for demonstrating the level of hardship to spouses and parents required for successful reentry into the United States.
Path 2: Permanent Residence Through Immigration Court
Cancellation of Removal – Nearly all TPS beneficiaries who visit my San Bernardino immigration law office feel they are more vulnerable than other undocumented immigrants since the government has a list of who they are and where they live.
Such sentiments are natural given the uncertainty about their TPS future. But unless there is already a deportation order, as a matter of due process, DHS must place them in immigration court proceedings and file formal charges before they can be removed and sent back to their home country.
At this point in time, the deportation defense process begins.
Contrary to their beliefs, many TPS grantees are more qualified than most undocumented immigrants to seek permanent residence at immigration court by seeking cancellation of removal.
Eligibility is based on three factors: (1) ten years of continuous residence in the United States, (2) good moral character during that period, and (3) a U.S. citizen or lawful permanent resident spouse, child, or parent.
Once these conditions are proved, TPS beneficiaries need to demonstrate exceptional and extremely unusual hardship to his or her qualifying relatives. If they succeed, the immigration judge will not only cancel their removal, but also grant them permanent residence.
As the demographic profile of Salvadoran, Honduran, and Haitian TPS recipients shows, it is reasonable to estimate that at least 200,000 would be eligible to seek relief under cancellation of removal, and most would be able to show several compelling hardship factors supporting their claim.
Immigration court are currently backlogged 500,000 cases, with approximately only 300 judges to handle such matters. On the average, cancellation of removal cases take no less than two years to complete.
Another 200,00 TPS-based cancellation of removal cases would severely cripple the ability of immigration courts to proceed at its normal pace.
(This is not taking into account the impact of the recent DACA rescission, which also has the potential to add several hundred thousand deportation cases to the dockets of the immigration court system.)
Path 3: Permanent Residence Through Humanitarian Programs
Asylum, Withholding of Removal, and the Convention Against Torture – In some circumstances, like those facing Salvadorans and Hondurans forced to return home – where gang violence, lawlessness, and poverty is pervasive – asylum and its legal progeny, withholding of removal and the Convention Against Torture, might enable long-term “Americanized” TPS recipients to be win protection against persecution and granted asylee status.
In addition to these three potential solutions for TPS beneficiaries to win green cards, there are other legal possibilities, less frequently utilized, that could benefit you and your family members.
To find out more about these programs, visit this post on How TPS Recipients Can Avoid Family Separation.
Why Temporary Protected Status Should Not Be Abolished
The majority of TPS beneficiaries – from El Salvador, Honduras, and Haiti, as well as from Somali, the oldest TPS country, and Nicaragua – have lived and worked in the United States for nearly two decades.
They have given birth to and raised U.S. citizen children. They have purchased homes and established firm community roots. They have socially and culturally assimilated into the America lifestyle.
Many have married U.S. citizens or permanent residents.
Several have maintained ties with family members still living in their countries of origin, and are the primary financial sponsors for relatives abroad.
In other words, TPS beneficiaries merit green card status, not the elimination of their life blood.
By Carlos Batara, Immigration Law, Policy, And Politics