By: Kimberly Hernandez
Law Clerk
Bolour / Carl Immigration Group

Under the Trump Administration, former President Trump ended crucial protections for over 400,000 immigrants from six countries: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, Yemen. These individuals are now at risk of losing their legal Temporary Protected Status (“TPS”). TPS is a form of humanitarian immigration relief that allows individuals from “designated” countries to live and work lawfully in the United States when they cannot return safely to their country of origin due to armed conflict, natural disaster, or other extraordinary and temporary circumstances. See 8 U.S.C. § 1254a. With TPS designation, nations of that country may apply for individual temporary protected status. 1254a(a)(1). Individual TPS status is only available to foreign nationals who: (1) have been continuously physically present in the United States since the date of their home country’s most recent TPS designation; (2) have continuously resided in the United States from a date identified by the Secretary; and (3) are otherwise admissible as immigrants. Id. A non-citizen granted TPS is entitled to the following benefits: eligibility to work and travel in the United States, and protection against removal while their home country has TPS designation. Id.

Multiple lawsuits went underway to challenge the Department of Homeland Security’s (“DHS”) termination of TPS for several countries. In general, the suits sought to stop DHS from implementing terminations, accusing DHS of ending TPS due to racial discrimination and thereof infringing on the constitutional rights of TPS beneficiaries. Specifically, DHS justified TPS terminations with a new interpretation of the TPS statute that rejected, without explanation, a decades-old agency policy and practice of considering “intervening natural disasters, conflicts and other serious social and economic problems” as relevant factors when deciding whether to continue or terminate the TPS designation. In light of numerous statements made by former President Donald J. Trump and other officials, DHS’s new rule was likely motivated in part by racial and national-origin animus against “non-white and non-European immigrants.”

Two lawsuits resulted in preliminary injunctions that blocked the Trump administration from ending the program. One suit was filed by TPS holders from El Salvador, Haiti, Nicaragua, and Sudan, whereas a second lawsuit was filed by TPS holders from Honduras and Nepal, and their U.S. citizen children. To comply with the injunctions, DHS extended TPS for all six countries through October 2021, pending a decision by the U.S. Supreme Court. However, once the litigation is complete, and if SCOTUS issues a final ruling that the terminations were proper, DHS will proceed with a 365-day “orderly transition” period for those from El Salvador and a 120-day period for those from all other countries before deportations begin. Whether this outcome will result falls within the hands of our already right-titled U.S. Supreme Court. And although President Biden has provided some hope for TPS holders by pushing before the Houses the Congress a U.S. Citizenship Act designed to provide a clear pathway to citizenship for TPS holders, the bill’s passage is anything but certain, as is the fate of all TPS holders residing within the U.S.

Time is of the essence. Even if these lawsuits are successful, and even under the new Biden Administration, we cannot assume that the government will stop their efforts for TPS termination. The level of deference that Courts owe and provide to a President in his executive decision to exclude foreign nationals from such protections may be greater than the deference to an agency’s humanitarian relief program. Therefore, all current TPS holders are greatly urged to seek legal U.S. residency now in order to avoid the unduly and heartbreaking risk of deportation that would force hundreds of thousands of lawfully residing foreign nationals out of the country they call home, forcing them into a country of turmoil and despair, a situation they escaped from for the sake of their life and that of their families. If DHS is not barred from its TPS termination determinations, over 200,000 U.S. citizen children will face the possibility of leaving the only home they have ever known, or face growing up without one or both of their parents. In addition, some 300,000 immigrants will face the loss of their homes, jobs, careers, and communities.

The time is now for all TPS holders legally residing in the U.S. to take the proper steps to acquire legal permanent residency. This is not the time to place your bets and wish for a hopeful outcome from SCOTUS. By then, it might be too late and all hope for an optimistic future on American soil will be nothing but a dream. That is why we urge all current and former TPS holders to do what is right for themselves and for their family and take the necessary steps to obtain legal permanent residency. This is a choice a TPS holder can take, but the opportunity to take that option is ticking and so is their time in the U.S.