Protesters march in front of the Supreme Court to preserve the Deferred Action for Childhood Arrivals and Temporary Protected Status programs. | Jose Luis Magana/AFP via Getty Images
A Ninth Circuit decision could end Temporary Protected Status for immigrants from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.
A federal appeals court has upheld President Donald Trump’s decision to take away legal protections for 400,000 immigrants, who could be deported next year if he wins reelection — despite having put down roots in the US over years or even decades.
Citizens of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan have been able to stay in the US through Temporary Protected Status (TPS), a protection typically offered to citizens of countries experiencing natural disasters or armed conflict that allows them to legally live and work in the US. Against the advice of senior State Department officials, Trump tried to end TPS for those countries starting in November 2017, arguing that conditions have improved enough that their citizens can now safely return.
A federal court decision had prevented Trump from proceeding to roll back those protections temporarily. But on Monday, a divided panel of judges at the Ninth Circuit lifted the lower court’s block, meaning that the administration could terminate TPS status for all countries but El Salvador on March 5, 2021 (Salvadorans would lose their status on November 5, 2021). After those dates, TPS recipients’ work permits will expire and they will lose their legal status, making them eligible for deportation.
Those affected could include roughly 130,000 essential workers, more than 10,000 of whom are in medical professions, and roughly 279,000 US-citizen children under age 18 who are living with TPS recipients and could be separated from their families if their relatives were deported.
Wilna Destin, a TPS recipient from Haiti who has lived in Florida for two decades and recently contracted Covid-19, said in a press call that the Ninth Circuit ruling represented just one in a series of challenges she has recently had to face.
“We have coronavirus, we have hurricane, and now this. For me, it’s another disaster,” she said.
The presidential election could decide what becomes of TPS holders
The fate of TPS holders hinges on the outcome of the presidential election this fall.
If former Vice President Joe Biden is elected, he has vowed to prevent TPS recipients from being sent back to countries that are unsafe and would pursue legislation providing a path to citizenship to those who have lived in the US for an “extended period of time and built lives in the US.” He would also try to expand TPS protections to Venezuelans fleeing their country’s present socioeconomic and political crisis.
If Trump wins, his administration could also decide not to move forward with ending TPS protections at any time. But what’s more likely is that Congress will face pressure to pass legislation offering permanent protections to TPS holders who have put down roots in the US, shielding them from deportation.
The Dream and Promise Act, which passed the House last year, would have made TPS holders who have lived in the US for three or more years eligible to apply for a green card and, eventually, US citizenship. It could serve as a template for further negotiations, though whether it will get any traction depends on the makeup of the next Congress.
In a second term, Trump could also move forward with his plan to terminate the Deferred Action for Childhood Arrivals program, which has allowed more than 700,000 young immigrants who came to the US as children to live and work in the US legally. (The Supreme Court has temporarily prevented him from doing so, but his administration is laying the groundwork for him to try again and has refused to fully reinstate the program.)
“Temporary Protected Status is on the ballot in November,” Frank Sharry, the executive director of the immigrant advocacy group America’s Voice, said in a statement. “And if we do not remove Trump … we could see one of the largest mass deportations and family separation crises in American history.”
The Ninth Circuit ruled that no court has the authority to review the administration’s decision to terminate TPS, which it said is a matter of agency discretion. It also dismissed the ACLU’s argument that Trump’s decision to terminate TPS was motivated by racial animus toward nonwhite, non-European immigrants in violation of the Constitution’s guarantee that everyone receive equal protection under the law, regardless of race or national origin.
The ACLU’s Ahilan Arulanantham, who represented TPS holders at the Ninth Circuit, said in a press call that the organization will ask the full appeals court to review the case and, failing that, would seek review at the Supreme Court, potentially setting up another high-profile case challenging Trump’s immigration policy.
In the meantime, immigration advocates are waiting on the result of another lawsuit now before the Second Circuit concerning some 40,000 Haitian TPS recipients. If that court decides that the administration can’t terminate their TPS status, they could be spared termination of their status before next March.
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