The U.S. Ninth Circuit Court of Appeals Upholds the Department of Homeland Security’s Decision to Terminate Temporary Protected Status for Citizens of El Salvador, Haiti, Nicaragua, and Sudan.

As elections draw nearer, we continue to see what we can expect if Trump gets reelected. In 2017 and 2018, Trump terminated Temporary Protected Status (TPS) designations for El Salvador, Nicaragua, Haiti, and Sudan. Now, a September 2020 Ninth Circuit federal court ruling (Ramos v. Wolf) has upheld Trump’s decision, stating that the temporary protected status program is not reviewable. The three-judge panel included two Republican-appointed judges who ruled in favor of the Trump administration, differing from a lower court order that prevented the removal of these protections.

This TPS news has life-changing implications for the migrants from these countries, who represent around 300,000 of them over 400,000 TPS beneficiaries. Firstly, it would mean that they can be deported despite having established roots in the United States by living here for several years. Secondly, it will have an impact on the workforce as many of the TPS holders are essential workers. Besides the recipients, the children of recipients who are under 18 may also get separated from their deported relatives.

It is noteworthy that the Trump administration took this decision against the advice of many senior State Department officials and diplomats, who were concerned that removing TPS may lead to security issues and may affect the children of those immigrants. The temporary protected status program was part of the immigration act of 1990. It was created to protect nationals from countries that are experiencing a natural disaster (epidemic, hurricane, etc.), ongoing armed conflict, or other “extraordinary and temporary” issues.

The TPS-based work permit and stay of deportation are given for 6, 12, or 18 months. Due to the ongoing issues in their native countries, many TPS holders have received multiple extensions on their permit. As of Feb 2020, Nepal, Honduras, Somalia, South Sudan, Syria, and Yemen are designated for TPS along with the four countries mentioned above, according to the American Immigration Council. The Trump administration has also terminated the TPS designation for Nepal and Honduras. Recipients from these countries have challenged the termination. Similarly, Haitian TPS beneficiaries have also challenged the move.

Normally, the Secretary of Homeland Security consults with other government departments before giving a country the TPS designation. El Salvador was designated after a 2001 earthquake. In terms of the number of TPS beneficiaries, more than half of the recipients are from El Salvador (246,697). Last year, the government announced an extension through January 4, 2021, for El Salvadorians. However, this was essentially a one-year extension after TPS-related legal proceedings to repatriate, as mentioned by the director of the U.S. Citizenship and Immigration Services, Ken Cuccinelli.

The argument given by some government officials is that enough time has passed for countries like El Salvador, Haiti, and Honduras to recover from disasters. However, this view does not take into account the after-effects of such disasters, and some senior officials in the Trump administration have also noted this fact. Writing in an internal memo to former Secretary of State Rex Tillerson, a senior official in the State Department Thomas Shannon said that while these countries have managed to rebuild, the social and economic impact of these disasters is still very much there.

Like many of the comments and policies of Trump, racial undertones were brought up in this issue as well. According to the plaintiffs, the move was motivated by Trump’s animosity towards non-white, non-European immigrants. The district court said that the Department of Homeland Security Secretaries were influenced by Trump and/or the White House; however, no evidence linked the termination to a discriminatory purpose. In their defense, the lawyers representing the plaintiffs presented remarks Trump had given about people from Mexico and other developing countries. Here is one of the pieces of evidence given by them:

In a discussion with lawmakers about TPS and immigrants from El Salvador, Haiti, and African countries, Trump inquired: “Why are we having all these people from shithole countries come here?” This remark was followed by a suggestion to “bring more people from countries such as Norway.” Moreover, “He also told lawmakers that immigrants from Haiti must be left out of any deal.”

Both with words and actions, it is clear that the reelection of Trump could mean repatriation for the vast majority of TPS holders. While the decision to reelect the president will depend on what the majority of America thinks about the current regime (and the alternative), TPS beneficiaries will be hoping for change:

In contrast to Trump, Joe Biden has clearly stated that he will stop the repatriation of TPS holders to countries that are unsafe and will work for citizenship for those who have lived in the country for an extended period. Besides promises, there is also legislation for helping TPS holders – The Dream and Promise Act of 2019 (H.R. 6). The act is intended to create a path for U.S. citizenship for current and potential TPS holders. For instance, it extends CPR status to 10 years to give applicants more time to meet PR requirements. Depending on the elected legislators, H.R. 6 can help TPS beneficiaries fulfill their dream of citizenship.

Richard Herman is a nationally renowned immigration lawyer, author, and activist. He has dedicated his life to advocating for immigrants and helping change the conversation on immigration. He is the founder of the Herman Legal Group, an immigration law firm launched in 1995 and recognized in U.S. World News & Report’s “Best Law Firms in America.” He is the co-author of the acclaimed book, Immigrant, Inc. —Why Immigrant Entrepreneurs Are Driving the New Economy (John Wiley & Sons, 2009). Richard’s poignant commentary has been sought out by many national media outlets, including The New York Times, USA Today, BusinessWeek, Forbes, FOX News (The O’Reilly Factor), National Public Radio, Inc., National Lawyers Weekly, PC World, Computerworld, CIO, TechCrunch, Washington Times, San Francisco Chronicle and InformationWeek.

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