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From Trump to Biden: TPS and other immigration policies

Temporary Protected Status for Venezuelans and pending TPS termination for Central Americans amid a migration surge at the US-Mexico border

The Venezuelan flag near the US Capitol [Rep. Darren Soto]

ANALYSIS Alexandria Angela Casarano

On March 8, the Biden administration approved Temporary Protected Status (TPS) for the cohort of 94,000 to 300,000+ Venezuelans already residing in the United States. Nicaragua, Honduras, El Salvador, and Haiti await the completion of litigation against the TPS terminations of the Trump administration. Meanwhile, the US-Mexico border faces surges in migration and detention facilities for unaccompanied minors battle overcrowding.

TPS and DED. The case of El Salvador

TPS was established by the Immigration Act of 1990 and was first granted to El Salvador that same year due to a then-ongoing civil war. TPS is a temporary immigration benefit that allows migrants to access education and obtain work authorization (EADs). TPS is granted to specific countries in response to humanitarian, environmental, or other crises for 6, 12, or 18-month periods—with the possibility of repeated extension—at the discretion of the Secretary of Homeland Security, taking into account the recommendations of the State Department.

The TPS designation of 1990 for El Salvador expired on June 30,1992. However, following the designation of Deferred Enforced Departure (DED) to El Salvador on June 26, 1992 by George W. Bush, Salvadorans were allowed to remain in the US until December 31, 1994. DED differs from TPS in that it is designated by the US President without the obligation of consultation with the State Department. Additionally, DED is a temporary protection from deportation, not a temporary immigration benefit, which means it does not afford recipients a legal immigration status, although DED also allows for work authorization and access to education.

When DED expired for El Salvador on December 31, 1994, Salvadorans previously protected by the program were granted a 16-month grace period which allowed them to continue working and residing in the US while they applied for other forms of legal immigration status, such as asylum, if they had not already done so.

The federal court system became significantly involved in the status of Salvadoran immigrants in the US beginning in 1985 with the American Baptist Churches v. Thornburgh (ABC) case. The ABC class action lawsuit was filed against the US Government by more than 240,000 immigrants from El Salvador, Guatemala, and former Soviet Bloc countries, on the basis of alleged discriminatory treatment of their asylum claims. The ABC Settlement Agreement of January 31, 1991 created a 240,000-member immigrant group (ABC class members) with special legal status, including protection from deportation. Salvadorans protected under TPS and DED until December 31, 1994 were allowed to apply for ABC benefits up until February 16, 1996.

Venezuela and the 2020 Elections

The 1990’s Salvadoran immigration saga bears considerable resemblance to the current migratory tribulations of many Latin American immigrants residing in the US today, as the expiration of TPS for four Latin American countries in 2019 and 2020 has resulted in the filing of three major lawsuits currently working their way through the US federal court system.

Approximately 5 million Venezuelans have left their home country since 2015 following the consolidation of Nicolás Maduro, on economic grounds and in pursuit of political asylum. Heavy sanctions placed on Venezuela by the Trump administration have exacerbated—and continue to exacerbate, as the sanctions have to date been left in place by the Biden administration—the severe economic crisis in Venezuela.

An estimated 238,000 Venezuelans are currently residing in Florida, 67,000 of whom were naturalized US citizens and 55,000 of whom were eligible to vote as of 2018. 70% of Venezuelan voters in Florida chose Trump over Biden in the 2020 presidential elections, and in spite of the Democrats’ efforts (including the promise of TPS for Venezuelans) to regain the Latino vote of the crucial swing state, Trump won Florida’s 29 electoral votes in the 2020 elections. The weight of the Venezuelan vote in Florida has thus made the humanitarian importance of TPS for Venezuela a political issue as well. The defeat in Florida has probably made President Biden more cautious about relieving the pressure on Venezuela's and Cuba's regimes.

The Venezuelan TPS Act was originally proposed to the US Congress on January 15, 2019, but the act failed. However, just before leaving office, Trump personally granted DED to Venezuela on January 19, 2021. Now, with the TPS designation to Venezuela by the Biden administration on March 8, Venezuelans now enjoy a temporary legal immigration status.

The other TPS. Termination and ongoing litigation

Other Latin American countries have not fared so well. At the beginning of 2019, TPS was designated to a total of four Latin American countries: Nicaragua, Honduras, El Salvador, and Haiti. Nicaragua and Honduras were first designated TPS on January 5, 1999 in response to Hurricane Mitch. El Salvador was redesignated TPS on March 9, 2001 after two earthquakes hit the country. Haiti was first designated TPS on January 21, 2010 after the Haiti earthquake. Since these designations, TPS was continuously renewed for all four countries. However, under the Trump administration, TPS was allowed to expire without renewal for each country, beginning with Nicaragua on January 5, 2019. Haiti followed on July 22, 2019, then El Salvador on September 9, 2019, and lastly Honduras on January 4, 2020.

As of March 2021, Salvadorans account for the largest share of current TPS holders by far, at a total of 247,697, although the newly eligible Venezuelans could potentially overshadow even this high figure. Honduras and Haiti have 79,415 and 55,338 TPS holders respectively, and Nicaragua has much fewer with only 4,421.

The elimination of TPS for Nicaragua, Honduras, El Salvador, and Haiti would result in the deportation of many immigrants who for a significant continuous period of time have contributed to the workforce, formed families, and rebuilt their lives in the United States. Birthright citizenship further complicates this reality: an estimated 270,000 US citizen children live in a home with one or more parents with TPS, and the elimination of TPS for these parents could result in the separation of families. Additionally, the conditions of Nicaragua, Honduras, El Salvador, and Haiti—in the context of the COVID-19 pandemic, recent natural disasters (i.e. hurricanes Matthew, Eta, and Iota), and other socioeconomic and political issues—remain far from ideal and certainly unstable.

Three major lawsuits were filed against the US Government in response to the TPS terminations of 2019 and 2020: Saget v. Trump (March 2018), Ramos v. Nielsen (March 2018), and Bhattarai et al. v. Nielsen (February 2019). Kirstjen Nielsen served as Secretary of Homeland Security for two years (2017 - 2019) under Trump. Saget v. Trump concerns Haitian TPS holders. Ramos v. Nielsen concerns 250,000 Salvadoran, Nicaraguan, Haitain and Sudanese TPS holders, and has since been consolidated with Bhattarai et al. v. Nielsen which concerns Nepali and Honduran TPS holders.

All three (now two) lawsuits appeal the TPS eliminations for the countries involved on similar grounds, principally the racial animus (i.e. Trump’s statement: “[Haitians] all have AIDS”) and unlawful actions (i.e. violations of the Administrative Procedure Act (APA)) of the Trump administration. For Saget v. Trump, the US District Court (E.D. New York) blocked the termination of TPS (affecting Haiti only) on April 11, 2019 through the issuing of preliminary injunctions. For Ramos v. Nielson (consolidated with Bhattarai et al. v. Nielson), the US Court of Appeals of the 9th Circuit has rejected these claims and ruled in favor of the termination of TPS (affecting El Salvador, Nicaragua, Haiti, Honduras, Nepal, and Sudan) on September 14, 2020. This ruling has since been appealed and is currently awaiting revision.

The US Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS) have honored the orders of the US Courts not to terminate TPS until the litigation for these aforementioned cases is completed. The DHS issued a Federal Register Notice (FRN) on December 9, 2020 which extends TPS for holders from Nicaragua, Honduras, El Salvador, and Haiti until October 14, 2021. The USCIS has similarly cooperated and has ordered that so long as the litigation remains effective, no one will lose TPS. The USCIS has also ordered that in case of TPS elimination once the litigation is completed, Nicaragua and Haiti will have 120 grace days to orderly transition out of TPS, Honduras will have 180, and El Salvador will have 365 (time frames which are proportional to the number of TPS holders from each country, though less so for Haiti).

The Biden Administration’s Migratory Policy

On the campaign trail, Biden repeatedly emphasized his intentions to reverse the controversial immigration policies of the Trump administration, promising immediate cessation of the construction of the border wall, immediate designation of TPS to Venezuela, and the immediate sending of a bill to create a “clear [legal] roadmap to citizenship” for 11 million+ individuals currently residing in the US without legal immigration status. Biden assumed office on January 20, 2021, and issued an executive order that same day to end the government funding for the construction of the border wall. On February 18, 2021, Biden introduced the US Citizenship Act of 2021 to Congress to provide a legal path to citizenship for immigrants residing in the US illegally, and issued new executive guidelines to limit arrests and deportations by ICE strictly to non-citizen immigrants who have recently crossed the border illegally. Non-citizen immigrants already residing in the US for some time are now only to be arrested/deported by ICE if they pose a threat to public safety (defined by conviction of an aggravated felony (i.e. murder or rape) or of active criminal street gang participation).

Following the TPS designation to Venezuela on March 8, 2021, there has been additional talk of a TPS designation for Guatemala on the grounds of the recent hurricanes which have hit the country.

On March 18, 2021, the Dream and Promise Act passed in the House. With the new 2021 Democrat majority in the Senate, it seems likely that this legislation which has been in the making since 2001 will become a reality before the end of the year. The Dream and Promise Act will make permanent legal immigration status accessible (with certain requirements and restrictions) to individuals who arrived in the US before reaching the age of majority, which is expected to apply to millions of current holders of DACA and TPS.

If the US Citizenship Act of 2021 is passed by Congress as well, together these two acts would make the Biden administration’s lofty promises to create a path to citizenship for immigrants residing illegally in the US a reality. Since March 18, 2021, the National TPS Alliance has been hosting an ongoing hunger strike in Washington, DC in order to press for the speedy passage of the acts.

The current migratory surge at the US-Mexico border

While the long-term immigration forecast appears increasingly more positive as Biden’s presidency progresses, the immediate immigration situation at the US-Mexico border is quite dire. Between December 2020 and February 2021, the US Customs and Border Protection (CBP) reported a 337% increase in the arrival of families, and an 89% increase in the arrival of unaccompanied minors. CBP apprehensions of migrants crossing the border illegally in March 2021 have reached 171,00, which is the highest monthly total since 2006.

Currently, there are an estimated 4,000 unaccompanied minors in CBP custody, and an additional 15,000 unaccompanied minors in the custody of the Department of Health and Human Services (HHS).

The migratory CBP facility in Donna, TX designated specifically to unaccompanied minors has been filled at 440% to 900% of its COVID-19 capacity of just 500 minors since March 9, 2021. Intended to house children for no more than a 72-hour legal limit, due to the current overwhelmed system, some children have remained in the facility for more than weeks at a time before being transferred on to HHS.

In order to address the overcrowding, the Biden administration announced the opening of the Delphia Emergency Intake Site (next to the Donna facility) on April 6, 2021, which will be used to house up to 1,500 unaccompanied minors. Other new sites have been opened by HHS in Texas and California, and HHS has requested the Pentagon to allow it to temporarily utilize three military facilities in these same two states.

Political polarization has contributed to a great disparity in the interpretation of the recent surge in migration to the US border since Biden took office. Termed a “challenge” by Democrats and a “crisis” by Republicans, both parties offer very different explanations for the cause of the situation, each placing the blame on the other.

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