The Department of Homeland Security (DHS) has filed a notice that it is extending Temporary Protected Status (TPS) for foreign nationals from El Salvador, Nicaragua, Haiti and Sudan until Jan. 2, 2020. The notice, published in the Federal Register March 1, explained that the extension came in response to a preliminary injunction issued by the U.S. District Court for the Northern District of California in a lawsuit challenging plans to end the special status for migrants from the four countries. Beneficiaries under the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador will retain their TPS while the preliminary injunction remains in effect, provided that an individual’s TPS is not withdrawn under Immigration and Nationality Act (INA) section 244(c)(3) or 8 CFR 244.14 because of ineligibility. TPS for those countries will not be terminated unless and until any superseding, final, non-appealable judicial order permits the implementation of such terminations.
The basis of the legal challenges is that the Department of Homeland Security’s decisions to terminate TPS stemmed from racial discrimination, violated required Immigration and Nationality Act (INA) and Administrative Procedures Act (APA) procedures, and overstepped the Constitutional rights of TPS beneficiaries. The APA constrains an agency’s ability to change its practices or policies without acknowledging the change or providing an explanation. The agency must also show that there are good reasons for the new policy. In the past, DHS looked not only originating conditions but also current conditions of the countries. DHS is now basing its TPS decision solely on whether the originating conditions directly related thereto persisted, regardless of other current conditions no matter how bad, and that this was a clear departure from prior administration practice. The government has offered no explanation or justification for this change.
In its preliminary injunction, the court found that the plaintiffs have provided sufficient evidence to raise serious questions as to whether a discriminatory purpose was a motivating factor in the decisions to terminate the TPS designations. Specifically, Plaintiffs have provided evidence indicating that (1) the DHS Acting Secretary or Secretary was influenced by President Trump and/or the White House in her TPS decision-making and (2) President Trump has expressed ill will against non-white, non-European immigrants. Plaintiffs have also pointed to several pieces of evidence suggesting that the White House was putting pressure on DHS to end TPS. As Plaintiffs have catalogued, there is evidence of such as reflected by statements made by President Trump before, during, and after the TPS decision-making process. In June 2015, Mr. Trump announced that he was running for President and delivered remarks characterizing Mexican immigrants as drug dealers or users, criminals, and rapists. In June 2017, President Trump stated that “15,000 recent immigrants from Haiti ‘all have AIDS’ and that 40,000 Nigerians, once seeing the United States, would never ‘go back to their huts’ in Africa.” On January 11, 2018, during a meeting with lawmakers where immigrants from Haiti, El Salvador, and African countries were discussed, including with respect to TPS designations that had been terminated, President Trump asked: “Why are we having all these people from shithole countries come here?’ He then suggested that the United States should instead bring more people from countries such as Norway,” which has a predominantly white population. He also told lawmakers that immigrants from Haiti “must be left out of any deal.”
Temporary Protected Status (TPS) is awarded to nationals of a country that the United States deems it would be inhumane to send them back to their home country. This may be due to a civil unrest, a natural disaster, or other extreme situations. Immigrants with TPS status may stay in the U.S. legally as long as they do not have a criminal record of more than two misdemeanors. About 437,000 people in the U.S. currently have TPS but they don’t automatically get a green card or citizenship however, they cannot be deported from the U.S.
TPS holders from El Salvador, Haiti, Nicaragua and Sudan who filed their TPS re-registration during the last TPS registration period now have automatic work authorization through January 2, 2020. Even though their work authorization card may show an earlier date, they continue to have permission to work through January 2, 2020. These TPS holders do NOT need to file an application or pay a filing fee in order to have automatic work permission through January 2, 2020, if they have properly re-registered for TPS during the most recent DHS- announced registration period for their country. Such individuals may show the Federal Register notice and their EAD to employers to demonstrate that they have employment authorization and that their TPS-Related Documentation has been extended through January 2, 2020. TPS beneficiaries who have failed to re- register properly for TPS during the last registration period may still file Form I–821 (Application for Temporary Protected Status) but must demonstrate “good cause” for failing to re-register on time, as required by law.
In the event the preliminary injunction is reversed, and that reversal becomes final, DHS will allow for an orderly transition period, ending on the later of (a) 120 days from the effective date of such a superseding, final order, or (b) on the Secretary’s previously announced effective date for the termination of TPS designations for each country. DHS will issue another Federal Register notice approximately 30 days before January 2, 2020, that will either extend TPS-Related Documentation for an additional nine months from January 2, 2020, or provide appropriate procedures for obtaining renewed TPS documentation for all affected eligible beneficiaries under the TPS designations for Sudan, Nicaragua, Haiti, and El Salvador. DHS will continue to issue Federal Register notices at nine-month intervals so long as the preliminary injunction remains in place and will continue its commitment to a 120-orderly transition period.
Patricia Elizee is the managing partner of Elizee Law Firm, P.A. The firm focuses onImmigration and Family Law cases. Ms. Elizee can be reached at (305) 371-8846. The law firm is located at 1110 Brickell Avenue, Suite 315, Miami, Florida 33131.