On September 14, 2020, the Ninth Circuit of Appeals struck a near-fatal body blow to the dreams of the Temporary Protected Status beneficiaries, leaving many of them groping for air as the program nears its death bed.
Though more vulnerable than ever before, TPS beneficiaries need not give up the fight.
However, to survive, they must realize that their best defense is a good offense.
The Battle To Keep TPS Alive
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.
For now, such action is on hold due to various court cases opposing the Adminstration’s plans to terminate TPS for several countries.
Once the courts render their decisions, all bets are off.
Update On Termporary Protected Status Court Cases
On September 14, 2020, the Ninth Circuit issued a decision allowing the termination of the Temporary Protected Status program for Sudan, Nicaragua, Haiti, Honduras, and El Salvador.
Despite this ruling, the legal battle is far from over.
The Lower Court Decisions
- On March 12, 2018, a lawsuit, Ramos v. Nielsen, was filed in the U.S. District Court for the Northern District of California on behalf of TPS beneficiaries from Sudan, Nicaragua, Haiti, and El Salvador.
- On March 15, 2018, a federal lawsuit, Saget v. Trump, was filed on behalf of Haitian Temporary Protected Status holders in Brooklyn, New York.
- On February 11, 2019, a second law suit, Bhattarai v. Nielsen, was filed in the U.S District Court for the Northern District of California, challenging the TPS terminations for Nepal and Honduras.
These cases put a temporary halt to the Trump Administration’s effort to end the TPS program.
The Impact Of The Ninth Circuit Decision
On September 14, 2020, the first shoe dropped.
As noted above, In Ramos, the Ninth Circuit issued a decision vacating the District Court’s injunction. This allows the government to proceed with terminating the TPS program for Sudan, Nicaragua, Haiti, and El Salvador.
By advance agreement between the parties, since the Bhattarai matter was filed in the same court, TPS recipients from Nepal and Honduras fall under the order in the Ramos case.
For now, Haitians are protected from the Ninth Circuit’s ruling because of the New York order in the Saget case, which is also nationwide in scope.
The ruling does not mean TPS for these countries will immediately end.
As a Buzz Feed article noted, DHS previously said that if it prevailed, the termination of TPS for Honduras, Nepal, Nicaragua, and Sudan would not take effect sooner than 120 days from an appeals court mandate.
Their deadline for leaving the country remain March 5, 2021.
For El Salvador, the termination of TPS would not take effect sooner than 365 days after the court ruling.
The deadline for Salvadorans to leave the U.S. will likely remain November 5, 2021.
Yet, the Ninth Circuit’s decision may not be the final word. Legal and community advocates have stated they plan to file suit with the U.S. Supreme Court.
These lawsuits will have a major impact on whether the Temporary Protected Status program continues to survive or is eliminated by the current administration.
Of course, the outcome of the 2020 presidential election, too, may play a future role in shaping the future of the Temporary Protected Status program.
In any event, TPS recipients from the affected nations should not minimize that TPS is merely a temporary program.
Even if these lawsuits are successful, or if a new administration takes office in January 2021, it would be imprudent to assume the government will not revamp their efforts at termination should they lose.
In other words, an ignominious ending to TPS shortly after the court cases are decided would be no surprise.
From TPS To Permanent Residence
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.
There are roads from TPS to permanent residence.
In this article, we’ll begin by exploring challenges facing the temporary protected status program. Then our attention will turn to two ways TPS recipients can still win green cards despite the program’s pending death.
The Termination Of Temporary Protected Status Begins
Shortly after Trump took office, fears about the end of TPS began to surface.
News that the grant of Temporary Protected Status for Haitian immigrants would come to a halt on January 22, 2018 heightened concerns 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 was on the chopping block assumed 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 a different set of battles in their quest for lawful permanent residence – and have different access to possible legal solutions.
Whereas the majority of DACA beneficiaries have been 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.
Note, also, that only two options to permanent residence are discussed in this post. A link to other, less common roads to legalization for TPS recipients is provided below.
On The Cutting Board: Haitian TPS
In late May 2017, 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.
TPS for Haiti is one of the newer TPS programs, 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 TPS For Honduras
In particular, recipients from El Salvador and Honduras were placed on shaky grounds.
Of the ten countries with Temporary Protected Status, they have the largest contingents. They were granted TPS status nearly 20 years before, and they had renewal deadlines in early 2018.
A perfect storm.
A demographic study on TPS, conducted by The Center For Migration Studies, estimates the 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.
At the time, Honduras TPS, first granted on January 5, 1999, was 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, was set to expire on March 9, 2018.
For an administration obsessed with reducing the number of undocumented immigrants, individuals from El Salvador and Honduras were ripe for the picking.
Why Winning TPS-Based Permanent Residence Is Critical
As the countdown to January 2018 neared, TPS jitters continued to grow.
Nonetheless, concerns about DACA beneficiaries 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 preoccupied their daily lives.
Meanwhile, the Trump Admininstration remained quiet about their TPS intentions.
In the view of TPS activists, the administration’s silence regarding the extension of TPS benefits signaled 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 news stories that discussed the end of TPS highlighted how an adverse decision would 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 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, noted she 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 explained, “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, the article shared the viewpoint of a former USCIS official of the Obama Administration that the money TPS holders regularly send back to family members in Haiti provides an economic boost which would be difficult to replace if the program ended.
Given current conditions in Haiti, he noted, “there would be tremendous human hardship on a huge scale” if thousands of people were to return to the country at once.
Similar anxieties were felt in other TPS communities, especially El Salvador and Honduras, where most TPS holders have a longer 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 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, having lived in the U.S. for 23 years, confided her mother, brother, and daughter depend on the $475 she sends them monthly to pay for their rent and food.
In Honduras, remittances from its citizens living abroad, comprise 17% 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, ear, these factors can potentially open the door to various paths to legal residency for many TPS grantees.
Two Primary Options To Win Permanent Residence For TPS Beneficiaries
Although Temporary Protected Status was not intended to create an option for permanent residency, two possibilities offer strong potential for TPS beneficiaries to win green cards.
TPS To 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.
In the TPS context, some courts have taken issue with this limitation.
The Ninth Circuit Court of Appeals, in Ramirez v. Brown, held that approved TPS grantees have been “inspected and admitted” for purposes of applying for permanent resident status. The Ninth Circuit governs cases from Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, and Washington.
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.
More recently, in Sanchez v. Secretary U.S. Department of Homeland Security, the 3rd Circuit Court of Appeals, which presides over cases in Pennsylvania, New Jersey, and Delaware, agreed with the 11th Circuit.
Despite the rulings of the 3rd and 11th Circuits, 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 TPS-based permanent residence approach offers the strongest prospect 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, children, and parents required for successful reentry into the United States.
This issue leads to a second path for permanent residency for many TPS recipients.
TPS To 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.)
In addition to these two potential solutions for TPS beneficiaries to win permanent resident status, there are other less-frequently used immigration programs that could help you and your family members.
To find out more about these legal possibilities, visit this guide on Green Card Pathways For TPS Recipients To Prevent Deportation And Avoid Family Separation.
Why TPS Recipients Deserve The Chance To Win Lawful Permanent Residence
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.