Otherwise deportable aliens cannot be deported while they have Temporary Protected Status (TPS), but they revert back to being deportable when their TPS status has been terminated. Consequently, it was not surprising when, a day after Acting DHS Secretary Elaine Duke announced that she was terminating Haitian TPS, an article appeared asking, “Is Trump going to deport 59,000 Haitians who fled a humanitarian crisis?”
Duke delayed the effective date of the termination by 18 months to allow for an orderly transition, and no one knows what Trump’s enforcement priorities will be 18 months from now. Moreover, if he does not get the immigration court backlog under control, he may not be able to put the Haitians through removal proceedings.
The same fate awaits TPS aliens from nine other countries when their status is terminated.
The American Immigration Council claims that TPS should be continued for the Haitians because they have integrated into U.S. society; they are active members of the labor force; and they make important contributions to America’s economy. Others have made similar arguments.
There are many good reasons for wanting the Haitians to be allowed to remain in the United States, but authority to continue TPS comes from statutory provisions that do not take such considerations into account.
Section 244 of the Immigration and Nationality Act provides that a foreign state may be designated for TPS only if:
- There is an ongoing armed conflict within the state and due to the conflict, sending nationals of that state home would pose a serious threat to their personal safety;
- There has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected;
- The foreign state is unable, temporarily, to handle the return of aliens who are nationals of the state; and the foreign state officially has requested a TPS designation; or
- Extraordinary and temporary conditions in the foreign state prevent aliens who are nationals of the state from returning to the state in safety.
Section 244 also requires periodic reviews to determine whether the conditions which were the basis for granting TPS still exist, and it mandates termination of the designation if they don’t.
The Haitian TPS designation was based on an earthquake that struck Haiti on January 12, 2010. Then-DHS Secretary Janet Napolitano said in a statement she issued on January 15, 2010, that this was a disaster of historic proportions.
She granted TPS to allow eligible Haitian nationals who were already in the United States to stay here for 18 months. Haitians who came to the U.S. unlawfully after January 12, 2010, however, were not eligible for TPS and would be repatriated.
According to estimates reported by CNN, the earthquake killed 220,000 to 316,000 people; injured 300,000; and displaced 1.5 million from their homes.
Seven years later, after a series of TPS extensions had been granted, Duke announced that the conditions which were the basis for Haiti’s TPS designation no longer existed.
Among other things, the number of people displaced by the earthquake has decreased by 97 percent. Steps have been taken to improve the stability and quality of life for Haitian citizens, and Haiti is now able to safely receive traditional levels of returned citizens. Moreover, Haiti has demonstrated a commitment to preparing for the return of its nationals when the TPS designation is terminated.
The Haitian TPS aliens have little recourse if they disagree with Duke’s evaluation of conditions in Haiti. Section 244(b)(5)(A) prohibits judicial review of any determination with respect to the designation, termination, or extension of TPS.
Moreover, it is apparent that Congress did not want TPS aliens to remain in the U.S. when their status has been terminated. Section 244(h) prohibits the senate from considering legislation that would adjust the status of TPS aliens to that of a lawful temporary or permanent resident.
This prohibition can be waived or suspended but it requires a supermajority, “an affirmative vote of three-fifths of the Members of the Senate duly chosen and sworn,” which is very difficult to obtain.
If Haitian TPS aliens want to remain lawfully in the U. S. when their status expires, they have to find a way to obtain lawful status that would not be related to their TPS status, or seek a new grant of TPS on the basis of current conditions in Haiti.
But nothing they do will make it possible for them to remain here permanently on the basis of TPS status.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.