Temporary Protected Status
As FAIR executive director Dan Stein noted in congressional testimony on March 4, 1999,
"Our laws should not reward illegal immigrants to the United States regardless of the political or natural upheavals in their homelands. Otherwise, experience shows that we will encourage further illegal immigration. By now, we should have learned from experience that TPS is misnamed -- what we offer as "temporary" protection is most often seen by the aliens residing illegally in the United States as a foot in the door to legal permanent residence. They are happy to accept our offer of humanitarian concern, but they have no intention of departing the United States when TPS status expires."
Temporary Protected Status (TPS) was enacted in 1990 to apply to non-resident foreigners wishing to avoid returning to their homeland because of civil strife or effects of a natural disaster of "extraordinary and temporary conditions." Those foreigners who were to benefit from this Temporary Protected Status (TPS) were people not seeking permanent U.S. residence, such as asylum applicants. Students or visitors whose visas were expiring were spared from seeking a visa extension by this provision. However, in practice the true beneficiaries of TPS were not temporary visitors, but rather people who had entered the United States illegally.
This was clear from the outset, when Congress, in adopting the measure, specified that people from El Salvador should be among the first beneficiaries. The Salvadorans, for the most part, had entered the country illegally.
Not only did TPS spare illegal aliens from deportation, it provided them a quasi-legal status in the country and gave them work permits so that they could legally work.
This is also what is occurring in the 2010 declaration of TPS for Haitians. Illegal residents under deportation orders, many of them in detention, will be the primary beneficiaries. The groups advocating for adoption of TPS for the illegal alien Haitians had been pressuring for a declaration of TPS long before the devastating earthquake of January, 2010.
Distortions in the TPS Program
Clearly the test of whether the TPS program would work as intended, i.e., a temporary respite for persons who fear returning home because of temporary adverse conditions, is whether TPS status has been allowed to lapse when homeland conditions have stabilized and whether the protected populations have then left the United States to return home. By this standard, TPS has been an absolute failure. Practice has shown a pattern of unjustified extensions of TPS designations and demands for amnesty by the protected aliens so that they could stay permanently in the United States.
An example of this distortion of the TPS program may be seen in the continuing extensions of that status for Liberians since it was first granted in 1991 as a result of civil war in that country. In July 1999, Attorney General Janet Reno belatedly found that conditions in Liberia no longer justified an extension of TPS. However, President Clinton in effect overruled that finding and again extended temporary protection for Liberians. He did not do so on the basis that the Liberians would face danger or unusual hardship if they had to return home. He justified his decision on the basis that if the United States were to force Liberians to return home, other nations, especially in West Africa, might adopt similar policies toward the Liberian expatriate communities living in their countries. This, the Administration reasoned, might be destabilizing to the current Liberian government.
But, the intent of TPS was to protect individuals, not their governments. The Liberian example was not the first of the Clinton Administration heeding the concerns of foreign governments in deciding TPS designation. It had done so earlier when Central American countries that asked that the United States not deport their nationals who had benefited from TPS, arguing that they did not have jobs available for the prospective returnees. And, the practice of acceding to pressure from US "immigrant rights" groups and from the Liberian government to continue temporary protection against deportation did not end with the end of the Clinton Administration.
In 2007, President Bush found that TPS for Liberians was no longer justified and terminated it. However, at the same time he ordered that the Liberian beneficiaries of the expiring TPS not be deported and instead be granted Deferred Enforcement of Departure (DED), a status that normally is extended only on a case-by-case basis based on unusual hardship. That DED designation was set to finally to expire in 2009. But again, before it expired, it was extended for an additional year by President Obama. He did so again in March 2010 for an additional 18 months on the basis that there are "...compelling foreign policy reasons." The continuing "temporary" status of the Liberians has led to efforts to adopt an amnesty for them to provide permanent legal residence. Rep. Patrick Kennedy (D-RI) has sponsored an amnesty bill for them, arguing in 1998 that "after seven years of providing them this special protected status we can't pull the rug out from under them."
For nearly as long, TPS status for Central Americans from Nicaragua and Honduras — again mostly illegal aliens — has been extended beyond any rational humanitarian need. They received that provisional status in January 1999, and have had the status periodically renewed despite the end of emergency conditions in their homelands.
Even in instances where TPS has ended without being converted to DED status or an amnesty, that has not mean that the individuals who benefitted from that designation came under any pressure to leave the United States to return to their homeland. There is no evidence that the immigration authorities have ever used the information provided by the aliens when they registered for TPS to verify whether those no longer legally in the country have left following the lapse of TPS. Whether the immigration authorities have been under instruction to ignore the illegal residence of former TPS beneficiaries or have simply not seen them as a priority, the results have conveyed the message that there is no hurry in departing — if ever.
A meeting in 2000 between immigration authorities (then INS), the Department of State, and non-governmental immigration advocacy groups reported in the May 1, 2000 publication Interpreter Releases, (p.573) reported as follows:
"The INS stated that termination [of TPS] does not 'signify the start-up of an enforcement action,' and that individuals who fall out of status upon a termination of TPS are not singled-out for deportation."
That statement to the defenders of illegal aliens conveyed the message as well as a public announcement that there was no pressure to leave the country. It did so without the disadvantage that a public announcement might have had of raising public concern with the federal government's stated disinterest in living up to its law enforcement responsibility.
Temporary Protected Status and Amnesties
The interrelationship between the TPS status and amnesty for aliens residing illegally in the United States is clear. That link was established in the debate surrounding treatment of natives of El Salvador who were specifically designated for TPS status in the 1990 Immigration Act. These aliens, who for the most part entered the country illegally in the 1980s, and were granted temporary protection and work permits as a result of the TPS designation, never went home after political stability was reestablished in their homeland. The fact that they had been covered by TPS -- and later by Deferred Enforcement of Departure -- and during this period had put down roots, had acquired U.S.-born children, had been legally working and paying taxes was cited as sufficient reason that they should be given legal residence rather than forced to leave. These arguments led to the adoption of an amnesty for these Central Americans as well as some others. On November 19, 1997, President Clinton signed into law the Nicaraguan Adjustment and Central American Relief Act (NACARA). NACARA provided permanent residence ("green cards") to certain Nicaraguans, Cubans, Salvadorans, Guatemalans, nationals of former Soviet bloc countries and their dependents. A similar amnesty, the Haitian Refugee Immigration Fairness Act (HRIFA), which was enacted in December 2000 applied to Haitians who had been the beneficiaries of an earlier DED designation in 1995.
It should be apparent from the disparity between the intent of our policies and the practical effects, that this gap is undermining our immigration laws. Congress needs to correct the balance between compassionate policies and protecting the public against uninvited and unwanted illegal immigrants. The American public needs to be reassured that its compassion is not being taken advantage of by foreigners seeking greater economic opportunity through the opening of our hearts to victims of political or natural disasters.
To end this cycle:
- Congress needs to speak with one voice on the importance of ending mass illegal immigration, and of the importance of equipping the immigration authorities (under professional, committed leadership) to handle the large-scale apprehension and deportations required to restore integrity to the rule of law.
- TPS is unnecessary and should be abolished. The law permits the Executive Branch the power to temporarily suspend deportation in emergency situations. That is all that is necessary to cope with foreign humanitarian crises.
- Until TPS is removed, it should be limited only to foreigners who are in the U.S. legally; it should be a program available only to those who are here in the normal course of affairs and may be expected to return to their homeland at the earliest opportunity. That is not the case with illegal aliens, and they should be excluded.
- If granted, TPS must not be a stepping stone to permanent residence through amnesty provisions. Those who receive TPS should not be given any further opportunity to file claims for relief later under any other provision of U.S. law, other than as a result of a marriage to a U.S. Citizen.
Below is a chronology of the use of TPS (and DED) grants:
|El Salvador||1/91||6/92||6/92||12/94||ABC asylum|
*Executive Order 12711 in April 1990 converted to amnesty by the Chinese Student Protection Act.
Dates in red above represent current TPS declarations.