It is perhaps an understatement to say that immigration is a controversial political issue. With Congress deeply divided regarding immigration reform, it seems improbable that any new immigration laws will be passed. However, the divisions in Congress have not stopped this Administration from proceeding with significant changes to immigration policy. From the infamous Travel Ban (all three versions), to “Extreme Vetting” and skyrocketing processing times, the new Administration has been quite effective moving forward with their restrictionist agenda without any help from Congress.
A prime example is the recent action taken towards the Temporary Protected Status (“TPS”) and Deferred Action for Childhood Arrivals (“DACA”) programs. TPS is a form of relief available to those stranded away from their countries who cannot return due to national disaster, civil war, or other unsafe conditions in the country. The DACA program was introduced by President Obama in November of 2014 and benefits young people who entered the United States as minors and are without legal status through no fault of their own.
Both TPS and DACA provide protection from removal (deportation) along with the ability to obtain an employment authorization document and an advance parole document to facilitate travel outside the United States. The rules for these programs vary, but in order to qualify applicants must demonstrate their long-standing residence in the United States in addition to a lack of any significant criminal history.
Well over 400,000 individuals from various countries are lawfully residing in the United States with TPS status. Approximately 700,000 individuals have protection under DACA. Over the years – and in some circumstances decades – of their lawful residence in the United States, TPS and DACA recipients have started families, purchased homes, maintained steady employment, paid taxes, and become deeply engrained in their communities.
However, both programs were an easy target for an Administration looking to greatly reduce the number of immigrants residing in the United States. On September 5, 2017, Attorney General Jeff Sessions announced the end of the DACA program, allowing only certain DACA recipients to reply for one final renewal. Also beginning in September of 2017, the Secretary of the Department of Homeland Security (DHS) began terminating TPS for several countries up for renewal. Thus far DHS has terminated TPS designations for Sudan, Haiti, Nicaragua and El Salvador – decisions impacting over 327,000 TPS holders who face the end of their status by 2019. In March 2018 the DHS announced the end of a similar program called Deferred Enforced Departure (DED) for over 4,000 Liberians in the United States, a program that had been in place since 2007.
It is likely that DHS will announce further TPS terminations in the coming months. For instance, although the DHS previously delayed a determination on the fate of TPS for Hondurans, given the termination of TPS for El Salvador, one would expect similar action to impact the approximately 57,000 Hondurans with TPS in the United States whose status is set to expire on July 5, 2018.
In the wake of these executive actions, what are TPS and DACA holders to do? Our firm has represented numerous individuals with both TPS and DACA applications. Some TPS and DACA holders may be eligible for other relief under our current immigration laws, including permanent residence based on sponsorship by a spouse or employer. In the absence of critically-needed legislative action, we will continue to advance every viable legal theory to ensure our clients are able to stay in their homes, communities, jobs and with their loved ones in the United States.
Many other organizations and communities have rallied to challenge the termination of various TPS designations and the DACA program. Numerous lawsuits have been filed in Federal Courts challenging the end of DACA. The plaintiffs in Regents of the University of California, et al. v. Department of Homeland Security, et al. obtained a nationwide preliminary injunction from the Court which mandates U.S. Citizenship and Immigration Services (USCIS) to continue accepting DACA renewal applications. The government has appealed to the Supreme Court. On February 26, 2018, the Supreme Court said that it will stay out of the dispute concerning DACA for now, meaning that the case will continue going through the lower courts.
Several lawsuits have been filed on the TPS front as well. The National Association for the Advancement of Colored People (NAACP) filed a lawsuit in January of 2018 challenging the termination of TPS for Haiti, alleging racial discrimination of violations of TPS holders’ rights to due process. The National Immigration Project of the National Lawyer’s Guild also filed suit seeking records relating to the decision terminating TPS for Haiti. The American Immigration Council (AIC) filed a lawsuit challenging USCIS’ interpretation of the immigration laws that prevent many TPS holders from adjusting their status to lawful permanent residence in the United States.
There is no doubt that advocates and communities impacted by these decisions will continue turning to the federal courts to challenge executive actions regarding immigration. In the meantime, Congress continues with its inability to reach consensus on the issue. Democrats seek reforms that promote family unity and provide a pathway to citizenship for TPS holders, DACA recipients, as well as many others living without lawful status in the United States. In contrast, Republicans and the President are pushing for drastic changes to our entire immigration system that would dramatically reduce legal immigration at nearly every level. One hopes that they will consider the lives of our friends, family members, co-workers and neighbors who hang in the balance.
For more information on DACA and TPS, please contact us.