Understanding the Purpose and Meaning of the Temporary Protected Status Program
The Temporary Protected Status (TPS) program is “a congressionally created humanitarian program” crafted after the passage of the Immigration Act of 1990.[1] TPS provides temporary relief to nationals of designated foreign countries who cannot safely return in the short term to their home nation as a result of a natural disaster, armed conflict, or other “extraordinary and temporary conditions in the foreign state.”[2] The creation of the TPS program stemmed from concerns with the “extended voluntary departure” (EVD) process, which was the process for how the federal government allowed groups of nationals to remain in the United States for humanitarian reasons prior to TPS.[3] TPS currently protects roughly 317,000 people in the United States from 10 different countries.[4]
The TPS statute authorizes the Secretary of Homeland Security to designate foreign countries for TPS “after consultation with appropriate agencies of the Government” and “only if” the Secretary finds certain criteria met, including (A) “an ongoing armed conflict within the state” where “requiring the return of [nationals of that state] . . . would pose a serious threat to their personal safety”; (B) “earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected” where “the foreign state is unable, temporarily, to handle adequately the return [of its nationals] to the state,” and the state “officially has requested [this] designation”; and (C) “extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety.”[5]
TPS Determinations for Sudan, Haiti, Nicaragua, and El Salvador
In 2017 and 2018, Secretaries of the Department of Homeland Security terminated the TPS designations of four countries: Sudan, Nicaragua, Haiti, and El Salvador.[6]
In 1997, Sudan was designated for TPS because of an ongoing civil war that prevented the safe return of Sudan nationals.[7] In the next 20 years, Sudan was periodically extended or redesignated for TPS fifteen times by prior administrations, based on factors such as forced relocation, human rights abuses, famine, and denial of access to humanitarian agencies.[8] In 2017, an acting Secretary for the Department of Homeland Security terminated the TPS designation for Sudan.[9] The termination notice concluded that the conflict in Sudan was now “limited to Darfur and the Two Areas (South Kordofan and Blue Nile states) and therefore the designation was no longer necessary.[10]
In 1999, Nicaragua was designated for TPS because of conditions caused by Hurricane Mitch.[11] The designation was then periodically extended or redesignated for TPS thirteen times by prior administrators, based on factors such as “recent droughts as well as flooding from Hurricane Michelle in 2002” and subsequent natural disasters and storms.[12] In 2017, an acting Secretary for the Department of Homeland Security terminated the TPS designation for Nicaragua.[13] The termination notice concluded, inter alia, that “[r]ecovery efforts relating to Hurricane Mitch ha[d] largely been completed” and the “social and economic conditions affected by Hurricane Mitch ha[d] stabilized” by 2017.[14]
In 2001, El Salvador was designated for TPS because of the devastating effects of three earthquakes.[15] Since then, El Salvador’s designation was extended eleven times by prior administrations, based on factors such as “a subsequent drought” (2002 notice), the effects of Tropical Storm Stan, the eruption of the Santa Ana volcano, subsequent earthquakes, and Hurricane Ida (2010 notice).[16] In 2018, an acting Secretary for the Department of Homeland Security terminated the TPS designation for El Salvador.[17] The termination notice concluded, inter alia, that conditions supporting El Salvador’s 2001 designation for TPS on the basis of environmental disaster due to the damage caused by the 2001 earthquakes are no longer met.[18]
Lastly, in 2010, Haiti was designated for TPS after a 7.0 magnitude earthquake devastated the country’s population and infrastructure.[19] Since then, Haiti’s TPS designation was extended or redesignated five times, including once by the Trump administration, based on factors such as, “steady rains . . . which led to flooding and contributed to a deadly cholera outbreak.”[20] In 2018, an acting Secretary for the Department of Homeland Security terminated the TPS designation for Haiti.[21] The termination notice concluded, inter alia, the“extraordinary and temporary conditions relating to the 2010 earthquake that prevented Haitian nationals from returning safely—are no longer met.”[22]
Ramos v. Wolf
Following the terminations described above, Sudan, Nicaragua, Haiti, and El Salvador (as Plaintiffs) brought suit against acting Secretary of Homeland Security challenging termination of TPS designations for their home countries under Administrative Procedure Act (APA) and Equal Protection Clause alleging that (1) the Secretary’s actions violated the APA by departing from prior practice without an adequate explanation and (2) the decisions were motivated by a discriminatory animus in violation of the Equal Protection Clause.[23]
The Plaintiffs requested the federal district court enjoin the Department of Homeland Security (DHS) “from implementing or enforcing the decisions to terminate the TPS designations for El Salvador, Nicaragua, Haiti, and Sudan.”[24] And in response, the Department of Justice (DOJ) filed a motion to dismiss arguing that Immigration and Nationality Act (INA) Section 244(b)(5) precluded the court from reviewing DHS’s TPS terminations. Subsequently, in October 2018, the court issued a preliminary injunction enjoining DHS from terminating the TPS designations for Sudan, Nicaragua, Haiti, and El Salvador pending the outcome of the litigation.[25]
The district court found,inter alia, that the plaintiffs demonstrated a likelihood of success on the APA claim and equal protection claim.[26] In regard to the APA claim, the plaintiffs claimed the DHS changed the way in which they evaluated the countries, and now only considered whether the original basis for a country’s TPS designation had continued, without examining more recent events in the country that might warrant a TPS designation.[27] In regard to the equal protection claim, the district court found the Plaintiffs provided sufficient evidence to raise serious questions as to whether a discriminatory purpose was a motivating factor in the decisions to terminate the TPS designations.[28] In particular, Plaintiffs provided evidence indicating that (1) the DHS Acting Secretary or Secretary was influenced by President Trump and/or the White House in her TPS decision-making and (2) President Trump has expressed animus against non-white, non-European immigrants.[29]
In its order, the court determined that the plaintiffs would likely suffer irreparable injury absent a preliminary injunction given their established ties to the United States and the potentially unsafe conditions in their home countries, and that a preliminary injunction would serve the public interest.[30]
On appeal by the Government, the Ninth Circuit Court of Appeals reversed the decision of the district court.[31] The Ninth Circuit held (1) plaintiffs’APA claim was not reviewable pursuant to Immigration and Nationality Act’s bar on judicial review of any TPS designation determination, and(2) plaintiffs’ failed to raise a serious question as to the merits of their equal protection claim.[32] In regard to the APA claim, the court addressed the claim as a challenge to the agency’s new and unexplained practice of refusing to consider intervening events in its TPS decisions.[33] The Court found that because “such a claim fundamentally attacks the Secretary’s specific TPS determinations, . . . it is barred from review by section 1254a. Given that Plaintiffs may not raise their APA claim as a matter of law, the claim cannot serve as a basis for the preliminary injunction and we need not consider its likelihood of success on the merits.”[34] Moreover, in regard to the equal protection claim, the court found the plaintiffs failed in their burden of showing a likelihood of success, or even serious questions, on the merits of their claim that racial animus toward “non-white, non-European” populations was a motivating factor in the TPS terminations.[35] Accordingly, the court vacated the preliminary injunction protected the plaintiffs under TPS.[36]
The Impact of The Ninth’s Circuit Decision
The Ninth’s Circuits decision impacts thousands. As of 2016, it was estimated by the Pew Research Center that 195,000 individuals from El Salvador have TPS, 46,000 individuals from, 2,550 from Nicaragua and 450 individuals from Sudan.[37] However, many options still exist to protect those who were previously protected under TPS.
Many individuals with TPS may be eligible to remain in the United States because of “their family ties, the length of time they have been in the United States, or the conditions in their home country.”[38] First, TPS holders with close family members who are U.S. citizens or Lawful Permanent Residents (LPRs) may be eligible for adjustment of status under INA § 245.[39] Second, an individual who fears persecution or who would likely be harmed or tortured in his/her home country may apply for asylum, withholding of removal, or protection under the Convention Against Torture (“CAT”).[40] Third, a person can apply for cancellation of removal “under INA § 240A(b) if she is in removal proceedings, has been in the United States for 10 years before being served a Notice to Appear (NTA), has had good moral character for the last 10 years, has not been convicted of certain criminal offenses, and has a U.S.-citizen or LPR spouse, parent or child (under 21 years old and unmarried) who would suffer exceptional and extremely unusual hardship if she is removed from the United States.”[41] Fourth, Salvadorans may be eligible for cancellation of removal or suspension of deportation under the Nicaraguan and Central American Relief Act (NACARA).[42]
Other individuals who have lived in the United States with TPS may be eligible for other forms of relief, depending on their personal circumstances. Potential options include a U Visa[43] or VAWA Cancellation of Removal or Suspension of Deportation[44] for certain abuse victims, a T Visa for victim of human trafficking,[45] and Parole-in-Place (PIP) for close relatives of U.S. military personnel and veterans living in the United States.[46]
TPScan undoubtedly be a vital safeguard for individuals, but in the coming months, it will be important that individuals impacted by the decision in Ramos v. Wolf know of the other vital safeguards that exist for them.
[1] Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020); Pub. L. No. 101-649, 104 Stat. 4978.
[2] 8 U.S.C. § 1254a(b).
[3] See Lynda J. Oswald, Note, Voluntary Departure: Limiting the Attorney General’s Discretion in Immigration Matters, 85 Mich. L. Rev.152, 157–60 (1986).
[4] D’Vera Cohn, Jeffrey Passel, and Kristen Bialik, “Many Immigrants with Temporary Protected Status Face Uncertain Future in U.S.”, Pew research center (Nov. 27, 2019).
[5] 8 U.S.C. § 1254a(b).
[6] Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020).
[7] Designation of Sudan Under Temporary Protected Status, 62 Fed. Reg. 59737-01, 59737 (Nov. 4. 1997).
[8] See Extension of Designation of Sudan Under Temporary Protected Status Program, 63 Fed. Reg. 59,337-01 (Nov. 3, 1998); 64 Fed. Reg. 61,128-01 (Nov. 9, 1999) (extension and redesignation); 65 Fed. Reg. 67,407-01 (Nov. 9, 2000); 66 Fed. Reg. 46,031-01 (Aug. 31, 2001); 67 Fed. Reg. 55,877-01 (Aug. 30, 2002); 68 Fed. Reg. 52,410-01 (Sept. 3, 2003); 69 Fed. Reg. 60,168-01 (Oct. 7, 2004) (extension and redesignation); 70 Fed. Reg. 52,429-01 (Sept. 2, 2005); 72 Fed. Reg. 10,541-02 (Mar. 8, 2007); 73 Fed. Reg. 47,606-02 (Aug. 14, 2008); 74 Fed. Reg. 69,355-02 (Dec. 31, 2009); 76 Fed. Reg. 63,635-01 (Oct. 13, 2011); 78 Fed. Reg. 1872-01 (Jan. 9, 2013) (extension and redesignation); 79 Fed. Reg. 52,027-01 (Sept. 2, 2014); 81 Fed. Reg. 4045-01 (Jan. 25, 2016).
[9] Termination of the Designation of Sudan for TPS, 82 Fed. Reg. 47,228-02, 47,228 (Oct. 11, 2017).
[10] Id.
[11] Designation of Nicaragua Under Temporary Protected Status, 64 Fed. Reg. 526-01, 526 (Jan. 5, 1999).
[12] See, e.g., 71 Fed. Reg. at 16,334; 72 Fed. Reg. at 29, 535.
[13] Termination of the Designation of Nicaragua for TPS, 82 Fed. Reg. 59,636-01, 59,637 (Dec. 15, 2017).
[14] Id.
[15] Designation of El Salvador Under Temporary Protected Status Program, 66 Fed. Reg. 14214-01, 14215 (Mar. 9, 2001).
[16] See Extension of the Designation of El Salvador Under the Temporary Protected Status Program, 67 Fed. Reg. 46,000-01 (Jul. 11, 2002); 68 Fed. Reg. 42,071-01 (Jul. 16, 2003); 70 Fed. Reg. 1450-01 (Jan. 7, 2005); 71 Fed. Reg. 34,637-01 (June 15, 2006); 72 Fed. Reg. 46,649-01 (Aug. 21, 2007); 73 Fed. Reg. 57,128-01 (Oct. 1, 2008); 75 Fed. Reg. 39,556-01 (July 9, 2010); 77 Fed. Reg. 1710-02 (Jan. 11, 2012); 78 Fed. Reg. 32,418-01 (May 30, 2013); 80 Fed. Reg. 893-01 (Jan. 7, 2015); 81 Fed. Reg. 44,645-03 (July 8, 2016).
[17] Termination of the Designation of El Salvador for Temporary Protected Status, 83 Fed. Reg. 2654-01, 2654 (Jan. 18, 2018).
[18] Id.
[19] Designation of Haiti for Temporary Protected Status, 75 Fed. Reg. 3476-02, 3477 (Jan. 21, 2010).
[20] See Extension of the Designation of Haiti for Temporary Protected Status, 76 Fed. Reg. 29000-01 (May 19, 2011); 77 Fed. Reg. 59943-01 (Oct. 1, 2012); 79 Fed. Reg. 11,808-01 (Mar. 3, 2014); 80 Fed. Reg. 51,582 (Aug. 25, 2015); 82 Fed. Reg. 23,830-01 (May 24, 2017).
[21] Termination of the Designation of Haiti for Temporary Protected Status, 83 Fed. Reg. 2648-01, 2650 (Jan. 18, 2018).
[22] Id.
[23] Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020).
[24]. “Federal District Court Enjoins the Department of Homeland Security from Terminating Temporary Protected Status”, Congressional research service,https://crsreports.congress.gov (Mar. 18, 2019).
[25] Id.
[26] Ramos v. Nielsen, 336 F. Supp. 3d 1075, 1098 (N.D. Cal. 2018), vacated and remanded sub nom. Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020).
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] D’Vera Cohn, Jeffrey Passel, and Kristen Bialik, “Many Immigrants with Temporary Protected Status Face Uncertain Future in U.S.”, Pew research center (Nov. 27, 2019).
[38] “After TPS: Options and Next Steps”, Practice Advisory, immigration legal resource center (June 2018).
[39] Id.
[40] Id.
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] Id.
[46] Id.
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