Temporary Protected Status: A Failed Policy
Testimony of Jack Martin, Special Projects Director, Federation For American Immigration Reform
to the COMMISSION ON IMMIGRATION REFORM
September 18, 1996
This paper is for consideration of the Commission on Immigration Reform in connection with its consultation on Temporary Protected Status as part of its mandate to study the effects of the 1990 Immigration Act and the overall immigration policy of the United States.
Our experience with Temporary Protected Status (TPS) as it is currently designed and administered reveals that it has become a back door route to permanent residence rather than providing temporary protection. Beneficiaries remain because we fail to deport them.
TPS was adopted in the Immigration Act of 1990 to protect persons seeking relief from civil strife and natural disaster, but who did not meet the persecution criteria for asylum. The impetus for the measure was the hundreds of thousands of Central Americans who fled strife in the mid-80s. Rather than seeking protection in neighboring countries, they headed for the United States where they entered illegally. When TPS was adopted, doubt was expressed whether the beneficiaries of this new policy were seeking only temporary protection or were in fact seeking to use the situation as a means to obtain legal residence in the United States-a status for which they were unlikely to qualify under our immigration law. It now is clear that those concerns were well-founded; the bulk of the beneficiaries have not voluntarily departed and, with the encouragement of the Administration, they are fighting deportation.
An unexpected distortion of TPS has been its use as a sop to foreign governments to relieve them of the responsibility for meeting the needs of their own citizens. TPS has been extended for Central Americans, even after public order has been restored, at the urging of foreign governments concerned about a weak economy at home. Thus, TPS has become a means to support foreign governments by offering employment to their nationals in the expectation that they will bolster the home country's economy through dollar remittances. It has become a type of temporary guest worker program--except that it is not designed to meet U.S. work force needs and it has proven not to be temporary.
The Commission should find that TPS was poorly conceived and has been distorted in its application, and, accordingly, it should recommend its significant revision. A needed change that the Commission should insist on is that INS adopt a means to track the whereabouts of the beneficiaries and assure their departure as soon as conditions permit.
We recommend reforming TPS rather than abolishing it. TPS has provided a statutory system for handling cases that had been handled under the Attorney General's discretionary powers to grant Extended Voluntary Departure (EVD). The rationale for adoption of TPS was to regulate the practice and provide for greater oversight of its implementation. If TPS were abolished, we would have to return to EVD. That is an unappealing prospect given the recent record of the Attorney General's misuse of the parole power in such unintended ways as to bring in thousands of Cubans. Nevertheless, the experience with a large influx of Central Americans shows that TPS is inadequate for mass migration flows. It was rejected for dealing with the most recent surge of Haitian and Cuban rafters. A redesigned TPS should be able to withstand the challenge of a mass migration.
The tens of thousands of Central Americans who were accorded TPS arid who now, when they no longer have that status, are fighting to avoid departure demonstrate that the TPS concept was a mistake. The Administration, which might reasonably be expected to have the long-term interests of the American public in mind, instead has shown itself to be heedless of public support for more limited immigration by publicly encouraging aliens to resist removal by filing applications for suspension of deportation. In effect, the Administration is promoting a form of amnesty and permanent residence for these temporary protectees. This demonstrates that TPS has come to be seen-as it was seen by some at the outset-as simply a precursor to permanent residence bypassing the eligibility criteria and orderly administration of our legal immigration system.
The failure of our removal system to deal with recalcitrant returnees is patently clear in a recent Board of Immigration Appeals (BIA) decision. The BIA decided in the In re O-J-O- case (Int. Dec. 3280, June 14, 1996) to grant suspension of deportation to a young Nicaraguan because he has lived in the U .S. for a decade and, "He has significant church and community ties in the United States." The BIA found that these factors met the standard of "extreme hardship" notwithstanding that he has no nuclear family ties here, and his sole surviving parent lives in Nicaragua. It is hard to imagine any of the former TPS beneficiaries with pending cases having any less compelling pleas for suspension of deportation.
If we are not prepared to deport illegal aliens who enter the country seeking temporary protection when it is abundantly clear that it is safe for them to return home, how can we maintain a credible immigration policy? How can we expect to be able to extend temporary protection when the alien beneficiary is easily enabled and encouraged to take advantage of our immigration law to seek permanent residence in this country?
Effects Of The Terrorism Prevention Act
When the Anti-terrorism Act takes effect, as of November 1 this year, the summary exclusion provision for persons arriving without valid documents may ameliorate the TPS problem by allowing the immediate removal of applicants for admission who are mala fide. But, because most TPS beneficiaries have either entered the country as EWI illegals or legally as nonimmigrants, this provision probably will not affect many persons. It seems clear, therefore, that the implementation of the Anti-terrorism provisions will not reduce the need for TPS reform.
Proposals For Change
We must keep in mind who the TPS beneficiaries are. They are persons who have not established eligibility for an immigrant visa in accordance with our law. They are persons who have not established a well- founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, and, therefore, are not eligible for refugee or asylum status.
Prevention As a first priority, more must be done to promote "...a new international imperative, the right of individuals to stay where they are," as suggested in the 1993 Trilateral Commission report written by Doris Meissner. That means efforts to prevent political or ethnic persecution or civil anarchy before they generate mass migration flows.
Deterrence Second, we need a policy that encourages seeking temporary protection elsewhere rather than in the United States. This requires excluding illegal aliens from eligibility for TPS. We need a new policy for dealing with those who are apprehended at the border. If they resist deportation because they come from a country in conflict, yet we find they do not have a valid asylum claim, what should we do? We can't just put them back across the border.
But, we could negotiate agreements with our neighbors, perhaps in conjunction with UNHCR or IOM, for them to assume responsibility for the ineligible entrant. Mexico, for example might agree to take back a Costa Rican who had illegally entered at El Paso. If there were widespread fighting in Costa Rica at the time, a UNHCR camp for displaced persons may exist in Nicaragua.
Mexico might have a similar agreement with Guatemala, and it with Honduras, and it with Nicaragua. The Costa Rican would end up receiving protection in the appropriate temporary facility. Alternatively, we might seek an international agreement or a bilateral one with Nicaragua that would allow us to send the Costa Rican directly to the UNHCR camp in Nicaragua.
Assure Temporariness For those aliens who are legally in the United States when changed conditions at home lead them to seek protection, we should be prepared to continue to provide TPS. But, we need to change the way that the program is administered to make it truly temporary, not a precursor to permanent residence. The best way is to stop the clock, without exception, to preclude any time spent in the United States in TPS from counting toward residence for purposes of suspension of deportation. This would require an amendment to sections 244(a) and 244A(e) of the INA. If this were done, any debate over how best to provide a permanent residence possibility for long-term TPS recipients would be rendered moot.
The argument has been made that denial of permanent residence would result in a group of second-class citizens. That argument misses the point that TPS recipients are not citizens.
TPS should fully meet all humanitarian obligations of the United States without the need for the further conferral of permanent residence and citizenship benefits. It is difficult to imagine conditions that would constitute indefinite TPS. Such conditions would normally lead to asylum. However, even if protracted TPS should happen, the numbers would be so minuscule that it is difficult to conceive of it as a public policy problem requiring a legislative solution.
With TPS recipients reduced to, at most, those cases of persons lawfully in the United States when cataclysmic events occur preventing return home, the number of TPS beneficiaries would be sufficiently reduced to also mitigate any suggestion that shaky foreign governments might be destabilized by mass deportations of their nationals. Similarly mitigated would be consideration of economic incentives for foreign governments to ease their reincorporation of returning natives.
Track Beneficiaries and Assure Departure To avoid TPS being used as a means for persons to disappear into the United States, the INS should use the IDENT system to record the identity of any TPS applicant, and establish a system of required reports to the INS by beneficiaries including a special departure form to be used to maintain a current TPS beneficiary data base. This is a necessary first step to assuring that TPS beneficiaries leave at the end of their protected status. The second step is using this system at the end of the protected status to advise former TPS beneficiaries they will be deported unless they leave voluntarily, and then actually deport those who fail to depart.
Maintain Country Designations A bad and misleading proposal for change would be to make TPS an individual-specific policy rather than the current country-specific provision. That concept would make sense only if significant numbers of persons from a given country where there is civil strife would be denied TPS status-an unlikely event. The disadvantage of this proposed change would be the vastly greater resources of time and money necessarily required by a case-by-case review at both the front end of the process (approval) and the back end (removal). If TPS is to be continued it should remain country-specific and all beneficiaries should lose protected status at the time that country conditions permit.
In summary, the following describes the categories of TPS applicant and how they would be dealt with under the policy framework outlined above.
Legal Nonimmigrants Provide TPS on a country-by-country basis for specified time periods with the ability to work, as in the current system, but without any prospect of adjustment while in the United States to permanent residence. Require periodic reports by the beneficiary to the INS detailing the beneficiary's location and employer. Issue notice at end of TPS, and deport any who do not leave voluntarily.
Illegal Aliens Persons who clandestinely entered the country (EWI) or who violated their visa status should not be allowed to benefit from TPS designation of their country .Under the Terrorism Protection Act, EWI illegal aliens will be put into exclusion proceedings and given the opportunity to request asylum. If they do not have a valid claim to asylum, they should be deported. If a third-country or internationally administered facility exists for temporary protection of such nationals, deportation could be to that location. Visa overstayers should be similarly deported, unless they were in legal status when the changed conditions occurred in their country, in which case they might be accorded TPS if they are judged to have violated their status as a result of the changed conditions rather than an intent to seek permanent residence in the United States.
The cumulative effect of these policies will be to deter the abuse of temporary protection by intending immigrants using it as a back door route to permanent residence in the United States. This policy framework will result in sufficiently low numbers of beneficiaries that public acceptance of the policy will not be at risk, and deportation, when and if it becomes necessary to maintain the policy's integrity , will be manageable. In addition, the smaller number of beneficiaries involved would not have a significant impact on a foreign government at the end of the protected status. Therefore, recent experiences of TPS coverage being extended in response to the requests of foreign governments-a blatant perversion of the intent of the law-should not recur. Nor should any consideration be required of economic sops to sweeten the receptivity of foreign governments to the forced departure of their nationals.