Criminal Justice & the Rule of Law

Ending Temporary Protected Status

Paul Rosenzweig
Tuesday, January 9, 2018, 5:36 PM

The Trump Administration's decision to end the Temporary Protected Status (TPS) for El Salvadorans is garnering nothing but condemnation. Typical is report by the Washington Post headlined (on line) "Trump Heaps More Misery on Vulnerable Immigrants." That can't be a good thing.

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The Trump Administration's decision to end the Temporary Protected Status (TPS) for El Salvadorans is garnering nothing but condemnation. Typical is report by the Washington Post headlined (on line) "Trump Heaps More Misery on Vulnerable Immigrants." That can't be a good thing. But buried in this story is a larger policy problem that bears on national security and its worth at least teasing out some of the details -- and at the end of the day, while the Trump decision may be wrong (I think it is) it is not indefensible.

First, let's start with the obvious question: What is TPS?

The grant of Temporary Protected Status is based on country conditions and derives from a determination made by the Secretary of DHS that requiring people to return to that country would be inappropriate. Conditions that satisfy the statutory criteria include war (like the ongoing conflict in South Sudan), natural disaster (like the earthquake in El Salvador in 2001) and extraordinary temporary conditions. It bears noting that the statutory definition of TPS assumes the transient nature of the conditions that gives rise to the designation -- the statute mandates periodic review and it uses the word "temporary" so frequently that I don't have the patience to count all of the occurences. The bottom line is that the statute is intended as an act of grace -- when times are tough, the US will temporarily suspend application of its immigration laws.

The other piece of the definition worth noting is that TPS only applies to those who are present in the United States at the time of the TPS declaration. Thus, it covers those who might be here illegally and also those present legally but whose permission to remain might expire while the declaration is in force (think, for example, of a student whose schooling ends and who therefore loses his or her student visa authorization).

The benefits of TPS are very real. While the TPS designation is in effect, you can't be removed from the US; you can get authorization to work; you can apply for and receive permission to travel outside the US (maybe even back home); you can apply to change your immigrant status (if you qualify); and you can file any other immigration benefit application for which you might qualify (so, e.g., if you marry an American, you can apply for a change of status on that basis).

The US currently extends TPS status to the residents of 10 countries. As of late 2017 there were approximately 430,000 individuals who benefitted from TPS status. El Salvador, with more than 250,000 was, by far, the largest contingent. By contrast there were fewer than 80 TPS registrants from South Sudan. In the past, the US has granted TPS status (or its close cousin Deferred Departure) to 11 countries from which the status has since been withdrawn (a good example is that Kuwait got status during the Iraq occupation and the Gulf War).

According to DHS, the time has now come for El Salvador's TPS to end. The earthquake is now 17 years in the past; reconstruction is mostly complete; and we are returning roughly 20,000 new illegal migrants to El Salvador every year, demonstrating its capacity to receive its citizens back. DHS has given a transition period of 18 months through September 2019.

So, what are we to make of all this?

First, and in defense of DHS, this determination really is consistent with the spirit of the law, which was intended to be a temporary mark of forebearance not a permanent grant of legal presence for those effected by disaster. Second, and relatedly, it is not unreasonable to suppose that being able to terminate a "temporary" status will actually make it more likely that TPS will be granted in the future when called for. I can certainly attest to a great reluctance to consider TPS grants while I was at DHS precisely because of the concern that "temporary" was code for "permanent." If we can put the "T" back in TPS, that might actually result in greater generosity of spirit. That's a positive goal and a good outcome from this decision (and the related decisions that Trump has made on other TPS designations).

On the other hand, the program has been allowed to linger so long that it came to be seen as permanent by those who benefited from it. It created an illusion, to be sure, but the US's failure to be aggressive in enforcing the law contributed to that illusion. TPS beneficiaries have put down roots in the US; taken jobs; paid taxes; had children (reportedly 190, 000+ of them) who are US citizens. In some ways, Trump's decision and the adverse reaction is the price we pay for having allowed TPS to seem to become an entitlement. It may be that this is the only way to cauterize the wound, but we should acknowledge the pain we are causing in doing so.

More fundamentally, there is a real ground for doubting that this is a good idea from a US national security perspective. Forced return to El Salvador is likely to be deeply destablizing for that country. Accepting 20,000 returns per year is a great deal different than accepting 250,000+ in a single year. The billions of dollars in remittances that now flow to El Salvador will end, leading to financial challenges. And the State Department has warned of the dangers in El Salvador, speculating that the end of TPS may only make gang violence there worse, creating climate for narco-terrorism that will have adverse consequences in the US.

"El Salvador is simply unprepared, economically and institutionally, to receive such an influx, or to handle their 192,700 U.S. children, many of them at the perfect age for recruitment or victimization by gangs," noted the International Crisis Group last month. "At a time when levels of violence remain extraordinarily high, with exhaustion toward an unwinnable conflict voiced on both sides, the arrival of thousands of migrants back to their crime-affected homeland would impose huge strains."

There is a real policy price to be paid for our unwillingness to bite the bullet and end TPS when the time was right (for El Salvador, maybe around 2008). The Trump Administration's decision is a legitimate attempt to reset the balance -- but it offloads the cost of doing so on another country, instead of bearing the cost for our own errors ourselves. That seems, in the end, to be unwise.

Paul Rosenzweig is the founder of Red Branch Consulting PLLC, a homeland security consulting company and a Senior Advisor to The Chertoff Group. Mr. Rosenzweig formerly served as Deputy Assistant Secretary for Policy in the Department of Homeland Security. He is a Professorial Lecturer in Law at George Washington University, a Senior Fellow in the Tech, Law & Security program at American University, and a Board Member of the Journal of National Security Law and Policy.

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