Victor Juhasz
This story is part of the Prospect’s series on how the next president can make progress without new legislation. Read all of our Day One Agenda articles here.
When Joe Biden takes office in January, he will have his work cut out for him—not the least of which will be the decimated immigration system. Overseen by Trump’s nationalist adviser Stephen Miller, the administration has methodically dismantled an already-cruel system into something that flatly doesn’t work. The arrival of the pandemic enabled the administration to virtually end asylum and other paths of immigration, too.
But as advocates gear up to pressure Biden, an existing statutory authority looks promising: Temporary Protected Status (TPS). Under siege during the Trump administration, the program is now beginning to look like a pathway to protect undocumented immigrants from enforcement actions.
TPS is a blanket protection offered to a country’s nationals who have experienced a natural disaster such as hurricane or earthquake, civil war, or other extraordinary circumstances. The Department of Homeland Security can designate TPS authority on a country-by-country basis, and it serves to shield immigrants from detention and deportation, and enable them to apply for work permits. It can last for years, if not decades.
Eligible individuals—those who enter the U.S. before a certain date—would have to affirmatively apply through the U.S. Citizenship and Immigration Service (USCIS) by a specified deadline. There is no numerical cap. It’s a statutory authority, which insulates its use from most litigation, and it is deployed at the discretion of the executive branch. So what’s to stop the Biden administration from declaring the pandemic an extraordinary circumstance, one that warrants TPS for all?
The statute includes a specific epidemic provision, but a pandemic also fits under the type of extraordinary and temporary conditions that could trigger TPS in another, less constricted, part of the statute. The latter would be a novel application of the statute, which has historically been applied conservatively. But some argue that shouldn’t preclude the Biden administration from acting—and that Trump’s expansive reach into shaping the immigration system sets a precedent for such an application. In other words, where there’s broad discretion for enforcement, there should also be broad discretion for relief.
There’s one catch to using broad-based deployment of TPS in reaction to the coronavirus. To use the epidemic provision in TPS, each country must affirmatively ask for protected status. Another provision in the statute, however, would allow for Biden to dramatically expand TPS without each country’s buy-in: extraordinary circumstances. A worldwide pandemic certainly falls into that category, paving the way for President Biden to use this provision. This could also protect recipients of Deferred Action for Childhood Arrivals (DACA), who may again be in jeopardy in another legal challenge set to be heard next month.
Hundreds of advocates signed a letter to the Biden campaign in September calling for expanded use of TPS. In a recent op-ed for The Hill, Leon Fresco wrote that the Trump administration paved the way for welcoming every country in the world under TPS, “when it excluded all foreign nationals from the United States on the basis of the existence of a global pandemic.” But according to Jose Magaña-Salgado, founder of the immigration policy firm Masa Group, designating additional countries for TPS requires an assessment of each country’s conditions, with each country added individually. The U.S. could exclude countries that have the pandemic under control. (Of course, this is a delicate matter, given how poorly the U.S. is handling the pandemic.)
Magaña-Salgado added that discretionary authority cuts both ways. Though the statute could offer Biden a progressive and humane solution, it also enabled Trump to deny hundreds of thousands of people humanitarian protection on a whim. Indeed, Trump terminated TPS for six countries, revoking protections for more than 300,000 people—more than 90 percent of those protected under the program—including some who have been here for decades. In September, the Ninth Circuit Court ruled against TPS holders seeking to stay in the U.S., though the ruling won’t take effect until January 4. The Department of Homeland Security also released a memo announcing it will extend TPS for several nations until October of 2021. However, this extension does not add any new, eligible recipients to the program from the same countries. It merely stalls the revocation of individuals’ existing protections.
Tom Jawetz, vice president for immigration policy at the Center for American Progress, cautions against characterizing this use of the statute as novel or expansive. Rather, designating more countries for TPS is a faithful application of the statute that the Biden administration should pursue. “The law already allows for nationals from certain countries to be granted TPS, and a sober assessment of the state of the world in a number of places would fully justify the use of that authority in line with past uses,” he said.
This fall, two Category 4 hurricanes devastated Nicaragua, Honduras, and Guatemala. Coupled with the pandemic, these natural disasters make those countries good candidates for TPS. Guatemala’s president has already asked for TPS several times during the Trump administration, to no avail.
Under siege during the Trump administration, TPS is now beginning to look like a pathway to protect undocumented immigrants from enforcement actions.
Guatemala’s buy-in and the natural disasters give the incoming administration cover to extend TPS, explained Adam Isacson, Washington Office on Latin America director for defense oversight. But they likely “will be pretty mindful of not wanting to trigger an even larger exodus at the border and having their whole agenda derailed,” he said. On the other hand, Isacson pointed to Jill Biden’s visit to the refugee tent camp in Matamoros, Mexico, and to the pressure on Biden to do something dramatic in his first hundred days. “They got their noses so badly bloodied in the South Texas counties among the Latino counties and in Miami-Dade that I think they need to fix their brand,” he added.
Biden has already committed to designate Venezuela for TPS, where more than five million people have fled shortages in food and medicine, hyperinflation, and political crisis. He has also committed to upholding DACA and to a moratorium on deportations during the first hundred days of his administration. But an expansive application of TPS, advocates say, would set the tone for a new administration.
HISTORICALLY, THE LIMITATION on TPS has been political. Politicians fear granting TPS will create an influx of immigrants, so politicians have been loath to do it unless the reasons for the designation are broadly understood—hurricanes, earthquakes, civil war. But a more expansive application of the statute could also put pressure on politicians to take more than temporary action. It’s a complex issue—one that will require immediate harm reduction in January but that will also require a more permanent solution later on.
There are crucial differences between TPS and the asylum system or even the refugee system. “The asylum system looks at certain bases for relief, which are about persecution based on a pretty narrow set of protected statuses—things like race, religion, political opinion,” said Amaha Kassa, founder and executive director of African Communities Together. “It’s very much an individualized determination. It’s not a way to respond to mass humanitarian crises, like the Ebola epidemic or the earthquake in Nepal.”
In other words, TPS and asylum aren’t necessarily in conflict. Rather, both can be used as part of a system to protect those in need. “What TPS can do is give people time to seek legal status through other means while they’re waiting,” Kassa explained. “In the meantime, they can get work authorization … and have some stability and have some protection.”
Although Biden has promised to designate Venezuela for TPS, he has neglected another country’s nationals sorely in need of protection: Cameroon, which is mired in five different armed conflicts, putting returning migrants at risk of persecution and even death. Sylvie Bello, founder and CEO of the Cameroon American Council, charged that this omission is anti-Black.
“Why is it that Biden knows about the TPS and knows about the many countries [that need TPS] and only picks Venezuela?” she asked, adding that including new countries like Cameroon would expand the TPS “pipeline,” not just re-designate countries already covered. Under the Trump administration’s draconian asylum rules, which Bello says have disproportionately hurt Black asylum seekers, Cameroonians have endured prolonged detention and even alleged torture in ICE custody. In the last two months, hundreds of Cameroonians detained in Pine Prairie detention center in Louisiana—who held a hunger strike in protest of their treatment—were deported in retaliation after being forced to sign their own deportation papers.
Bello has been campaigning for Cameroon TPS for years, and told the Prospect that designating TPS for Cameroon would offer immediate protection, despite the fact that many advocates say Cameroonians should be eligible for outright asylum. TPS would instead offer a way to circumvent the Trump asylum system.
TPS and asylum aren’t necessarily in conflict. Rather, both can be used as part of a system to protect those in need.
In November, a working group of more than 100 organizations compiled a set of recommendations for the Biden administration’s first 180 days. The memo calls for restoring TPS designations that were ended under Trump and restoring Deferred Enforced Departure (DED) for Liberia, another tool Trump targeted. Like TPS, DED is another form of temporary, country-by-country relief from deportation. It can also be issued through presidential memorandum, without individuals having to affirmatively register with USCIS. DED could be issued faster than TPS, a process that requires sign-off from the secretary of homeland security and even sometimes a country’s own government. However, unlike TPS, DED is not statutorily authorized, so an expanded use of the power would likely be subject to litigation.
“DED has worked so well as a bridge to other protections,” said Lisa Parisio, advocacy attorney for Catholic Legal Immigration Network (CLINIC). “We’re calling for an expansive use of DED on day one for all of those reasons, including all of the countries that were terminated [for TPS] and new designation countries.” These include the Bahamas, Cameroon, several Central American countries devastated by twin high-strength hurricanes (El Salvador, Guatemala, Honduras), Haiti, Venezuela, South Sudan, Somalia, Yemen, and Syria. In total, the advocates’ memo calls for TPS for at least 2.2 million people.
But during the pandemic, perhaps even countries not mentioned in the advocates’ letter could be designated for TPS—a TPS for all. According to Kassa, after Trump’s aggressive anti-immigrant policy, there are no red lines or third rails anymore. “So I think we have to be just as aggressive on our side,” he continued. “When we hold off, we end up defending a broken system and the status quo instead of speaking about what our values are.”
It is true that this tool echoes the Trump administration’s refusal to wait for Congress. Trump exercised vast and vicious authority over the immigration system. Without a legislative solution, another administration could undo any TPS designation Biden applies. “If the Democrats lose in 2024, what’s to stop the incoming Republican president from stopping TPS in every country and throwing everyone into immigration detention centers,” said Angelo Guisado, a staff attorney at the Center for Constitutional Rights. Instead, Guisado recommends expanding the refugee program—higher than the 100,000 cap Biden has promised—and ending America’s pattern of destabilizing interference. “People would not be fleeing Honduras if their democratically elected leader was able to implement the reforms that they would want to,” he noted.
If legislative reform begins to appear more unlikely, Magaña-Salgado said he thinks more groups will begin to push for new country designations for TPS. He added that advocates also see TPS as a backup to protect DACA recipients, as there’s a real danger the program will be shut down next year. TPS is hardly a perfect solution, nor a permanent one. But it would offer some immediate relief.
“The biggest obstacle is really just political,” Magaña-Salgado said. Though he has hope that Biden’s pick for DHS secretary, Alejandro Mayorkas, will be more progressive, the real resistance will come from the White House. “The Biden administration promised a lot of relief for immigrants,” he said. “If DACA gets struck down … TPS will be one of the few tools left at their disposal. There will be lots of angry people in two years and in four years when DACA is gone and [comprehensive immigration reform] hasn’t been passed and they’ll say, ‘Here was a tool you could use to protect 11 million people and you chose not to.’”
