Terminating Temporary Protected Status: A Lose-Lose-Lose Situation
Immigrants have not forgotten President Trump’s words, from “drugs, crime, and rapists” to the more recent “shithole countries.” On March 15, 2018, Haitian immigrants sued the Trump Administration for terminating Temporary Protected Status (TPS), which grants temporary protection from removal and provides work authorization to immigrants from countries with “extraordinary and temporary” conditions like war or natural disaster. Using Trump’s own words as evidence, the plaintiffs argued that racial discrimination played a role in terminating TPS, decrying the move the Trump Administration’s “racially discriminatory immigration agenda.”
Haitians are not the only TPS recipients; in fact, Salvadorans are the largest group of TPS recipients, numbering approximately 200,000. In 1990, El Salvador became the first country to receive TPS designation, after public officials decided that the Salvadoran Civil War prevented Salvadoran residents in the U.S. from safely returning. Since the first TPS designation expired in 1992, TPS has been extended nine times, due to a series of issues—stagnant country conditions, a weakened economy, or the deadly earthquakes that struck in 2001.
TPS comes with several stipulations. To be eligible, individuals must already reside in the U.S., have no felony convictions, and, most importantly, renew a status that is fundamentally temporary (at a fee of $495). While TPS recipients are eligible for a narrow range of public benefits like emergency Medicaid and K-12 education, they are mostly excluded from public assistance benefits; TPS does not automatically lead to permanent residency or citizenship. As such, TPS holders are a “naturally diminishing population,” according to Donald Kerwin, the executive director of the Center for Migration Studies, who spoke in a phone interview with The Politic.
“The numbers get smaller and smaller with each redesignation, which I think is an important point to make, because the argument on the other side is that it’s a permanent program,” Kerwin said. “And for most people, it’s not a permanent program. Even if it’s extended for many years, people fall out of that status because they qualify for something else, they leave the country, or they are not able to pay the renewal fees.”
The elimination of TPS as a “lose-lose-lose” situation, according to Kerwin. For one thing, he said that there was no legal basis for eliminating TPS. The Trump Administration has claimed that the conditions justifying the last TPS extension—the 2001 earthquake in El Salvador—no longer apply. Kerwin argued this was an “incorrect and unprecedented” reading of the statute.
“You can take into account conditions subsequent to the original designation,” Kerwin said. “If you were to look fairly at El Salvador and the prospects of violence for returning TPS recipients and other conditions in El Salvador, you would have to think they should have extended it.”
Today, El Salvador is incredibly dangerous. Amidst a backdrop of drug trafficking and gang rivalries, El Salvador has some of the highest rates of violence in the world, with a homicide occurring approximately every hour. This violence is especially dangerous for women, who face heightened risks of sexual violence.
Still, the Trump Administration has argued that during the Obama administration, about 39,000 Salvadorans were deported, demonstrating “that the temporary inability of El Salvador to adequately return their nationals after the earthquake has been addressed.”
That defense does not hold, according to Cecilia Menjívar, a professor of sociology at the University of Kansas, because the conditions for deportations and TPS are completely different.
“Deportation does not account for country conditions,” Menjívar said in a phone interview with The Politic. “The Obama Administration continued what previous administrations had done, in extending the stay for TPS holders.”
Kerwin argued that the negative consequences of eliminating TPS were three-pronged.
“First of all, you have the TPS recipients,” Kerwin stated. “Many of them lose status and become subject to deportation or go into the underground and not have the prospects they currently have in the U.S.” Although the choice of becoming undocumented seems unpalatable, many TPS recipients would still choose to be undocumented over returning, according to Menjívar.
“The average length of stay is 17 years,” Menjívar said. “Would you choose to leave after all these years?”
On top of that, the children of TPS recipients would face difficulties. As many Salvadorans have held TPS for several decades and started families, there are about an equal number of U.S. citizen children of TPS holders as there are TPS holders.
With the termination of the program, the children of TPS holders would face the options of staying with their parents and becoming undocumented, being separated from their parents, or returning with their parents to El Salvador.
“[Returning to El Salvador] is going to be very difficult because they’re not Salvadoran, they’ve been educated in the United States, and it’ll be very dangerous for them,” Kerwin said. “A U.S. citizen youth will be even more subject to gang recruitment and violence in El Salvador. Whole swaths of the country are controlled by a mafia-like dominance by these gangs.”
Kerwin believes there are no good outcomes for children of TPS holders. “At the very least, there will be significant disruption for the parent and very likely negative economic and social consequences for the child,” he said.
Some TPS holders could obtain more permanent legal status, but between the narrow qualifications and long backlogs for visas, Kerwin did not find this to be an adequate solution.
“It will be true for some percentage of [TPS holders to obtain permanent legal status], but I think it also reflects a real misconception in terms of the way our legal immigration system works,” Kerwin said.
Finally, Kerwin argued that communities in both the United States and El Salvador would be negatively impacted. TPS holders have significantly higher labor force participation than other groups; 88% of TPS recipients from El Salvador work, which is over 20% higher the national rate.
Kerwin pointed to the concentration of Salvadoran TPS workers in the construction industry, especially in states like Texas and Florida.
“Those states are digging out of conditions from natural disasters. They need construction workers,” Kerwin said. “Why in God’s name would you deport hardworking, skilled construction workers from those states when they’re trying to recover from those disasters?”
Communities in El Salvador also could face economic troubles. Salvadoran TPS holders remit significant amounts of money to family members in El Salvador. At over $4.5 billion a year, remittances make up close to one-fifth of El Salvador’s GDP.
Moreover, would El Salvador be prepared to receive potentially hundreds of thousands of returnees?
“El Salvador’s government has said that they can’t successfully accommodate [TPS holders’] return and productively reintegrate them, that it would be destabilizing. So I take them at their word,” Kerwin said. “They can’t be accommodated. So that’s a big, big problem.”
“I don’t see how anybody wins,” Kerwin said.
But for immigrant advocates like Kerwin, there may be some silver lining. With Trump’s “shithole countries” comment, lawsuits are piling up. Haitian and Salvadoran TPS holders filed another lawsuit in February 2018, alleging racial discrimination. As Salvadoran TPS holders have until TPS formally expires in September 2019, these legal challenges could be some of their last defenses against a seemingly inevitable and dismal future.