Saturday, June 15, 2019
Immigration Article of the Day: The Promise and Challenge of Humanitarian Protection in the United States: Making Temporary Protected Status Work as a Safe Haven by Andrew I. Schoenholtz
"The Promise and Challenge of Humanitarian Protection in the United States: Making Temporary Protected Status Work as a Safe Haven" by Andrew I. Schoenholtz, Northwestern Journal of Law and Social Policy, Forthcoming
The humanitarian program Congress created in 1990 to allow conflict refugees and those affected by significant natural disasters to live and work in the United States with legal status has only partially achieved its goals. More than 400,000 individuals have received temporary protected status (TPS). In many cases, the crisis ended, along with temporary protection. In about one-third of the designated nationalities, including the largest groups, however, conflict and instability continued, making this humanitarian protection program anything but temporary. Unfortunately, Congress did not provide the Department of Homeland Security (DHS) with the tools it needed to address such long-term crises. That was purposeful — Congress worried that this temporary program would lead to permanent immigration. To constrain the program, Congress required a supermajority of the Senate for any nationality to be granted lawful permanent resident status as a group, which would place such individuals on a path to citizenship. Congress has never granted such group status to any TPS nationality.
Congress also worried that even temporary legal status for conflict refugees and other eligible humanitarian groups would act as a magnet and attract large movements to the U.S. For that reason, Congress required that eligible individuals had to already be in the U.S. when the DHS Secretary designated their nationality for TPS. Accordingly, Congress designed TPS in a way that it did not protect ongoing arrivals fleeing a humanitarian emergency.
Congress should address both of these shortcomings. This article explains why and how it should do so. As DHS data shows, TPS has not acted as a magnet — even after DHS has opened up temporary protection for some new arrivals through re-designation. The data shows that it is not the policy that attracts people to the U.S., but rather a fear of death or very serious harm that principally motivates flight from conflict and significant violence. Accordingly, Congress can provide the same type of temporary protection to new arrivals fleeing an ongoing conflict as many nations do, including the United Kingdom and Canada, without worrying that TPS itself will act as a magnet.
Moreover, Congress did not know in 1990 that limiting access to lawful permanent resident status when a conflict does not end would effectively lead to long-term TPS programs. Given this result, Congress should look to ways to keep TPS temporary, including by facilitating return when conflict ends in a reasonable period of time, and enabling those who have become part of their American communities to be recognized as such when conflict is prolonged.
Congress will be more inclined to do this after it enacts legislation to address the problem of unauthorized immigration and creates a system that ensures that only authorized workers are employed by U.S. businesses — that is, when the U.S. has a functional system that meets the needs of employers with legal workers and controls future unauthorized immigration. Making TPS truly temporary and providing humanitarian protection to ongoing arrivals who flee conflict should be part of comprehensive immigration reform.