Caribbean & Central America - November 2017 (ISSN 1741-4458)

As many feared, the US administration led by President Donald Trump is moving to terminate the Temporary Protected Status (TPS) programme under which over 300,000 Latin American migrants have been legally living and working in the US for decades, most with families that have never known a life outside of the US.

On 6 November, the Department for Homeland Security (DHS) issued a statement announcing that the Acting Secretary of Homeland Security, Elaine Duke, had taken a decision to terminate the Temporary Protected Status (TPS) designation for Nicaragua “with a delayed effective date of 12 months to allow for an orderly transition before the designation terminates on 5 January, 2019”.

Duke also determined that “additional information” was necessary regarding the TPS designation for Honduras, and therefore said she had “made no determination regarding Honduras at this time”. As a result, the TPS designation for Honduras has been automatically extended for six months from the latest rolling expiry date of 5 January 2018 to 5 July 2018. TPS currently benefits some 57,000 Hondurans in the US.

That is of cold comfort to Hondurans, given that the State Department run by Secretary of State Rex Tillerson has already formally recommended to the DHS that the TPS be terminated for all Central American beneficiaries, on the grounds that the situations in Central America that underpinned the original TPS designation no longer apply.

Temporary Protected Status (TPS) is a form of temporary legal residency, established in the Immigration Act of 1990 that provided visas to immigrants from 10 countries experiencing ‘temporary extraordinary’ conditions, as per the following:

• An ongoing armed conflict, such as a civil war

• An environmental disaster

• Other extraordinary and temporary conditions

A person granted TPS cannot be removed from the US, and is eligible to work (and in some cases travel internationally).

Honduran migrants in the US were granted TPS following Hurricane Mitch in 1998, which destroyed 70% of the country’s infrastructure (and also affected civil war-torn El Salvador and Nicaragua). Hondurans, followed by Salvadoreans and Nicaraguans, first became eligible to request TPS in January 1999. Permission to remain under the status can be extended by six, 12, or 18 months by the DHS secretary. In the years since 1999, Hondurans requesting extensions have cited a continuing series of environmental and medical disasters, as well as unstable economic conditions, political crises, and dire insecurity. Honduras, until recently, was tagged with the ignominious title of ‘most violent country in the world’, with a homicide rate topping that even of the bloodiest war zones.

According to the DHS, “the decision to terminate TPS for Nicaragua was made after a review of the conditions upon which the country’s original 1999 designation were based and whether those substantial but temporary conditions prevented Nicaragua from adequately handling the return of their nationals, as required by statute”. “Based on all available information, including recommendations received as part of an inter-agency consultation process, Acting Secretary Duke determined that those substantial but temporary conditions caused in Nicaragua by Hurricane Mitch no longer exist, and thus, under the applicable statute, the current TPS designation must be terminated.”

It also noted that “there was also no request made by the Nicaraguan government to extend the current TPS status”, in marked contrast to the governments of Honduras, El Salvador and Haiti, who have lobbied extensively on Capitol Hill for the past six months or more for a continuation of TPS, with a view to a permanent solution for the beneficiaries (i.e. a path to legal residency).

Regarding Honduras, Acting Secretary Duke concluded that “despite receiving input from a broad spectrum of sources, additional time is necessary to obtain and assess supplemental information pertaining to country conditions in Honduras in order to make an appropriately deliberative TPS designation determination. Based on the lack of definitive information regarding conditions on the ground compared to pre-Hurricane Mitch, the Acting Secretary has not made a determination at this time, thereby automatically extending the current TPS designation for Honduras for six months.”

“However,” the statement continued, “given the information currently available to the Acting Secretary, it is possible that the TPS designation for Honduras will be terminated at the end of the six-month automatic extension with an appropriate delay”. Duke’s newly nominated successor, Kirstjen Nielsen, who was due Senate confirmation hearings on 8 November, will therefore likely have to take the final decision on Honduras.

Recognising the difficulty facing citizens of Nicaragua – and potentially citizens of other countries – who have received TPS designation for close to two decades, the statement emphasised that “Acting Secretary Duke calls on congress to enact a permanent solution for this inherently temporary programme.” Thereby – and just as happened with the Deferred Action for Childhood Arrivals (DACA, or ‘Dreamers’) scheme, which protects legal migrants who arrived the US as babies or young children – the Trump administration has thrown this ultra-sensitive problem to the US congress to deal with.

Finally, Duke noted that “to allow for an orderly transition, the effective date of the termination of TPS for Nicaragua will be delayed 12 months. This will provide time for individuals with TPS to seek an alternative lawful immigration status in the United States, if eligible, or, if necessary, arrange for their departure. It will also provide time for Nicaragua to prepare for the return and reintegration of their citizens. TPS for Nicaragua will terminate on January 5, 2019.” In the meantime, Nicaraguans and Hondurans with TPS will be required to re-register with the Citizenship and Immigration Service, “and reapply for Employment Authorization Documents in order to legally work in the United States until the end of the respective termination or extension periods”.

The arid language conceals the huge implications of this announcement. There are 2,500 Nicaraguan citizens legally resident in the US under TPS, with 200,000 Salvadoreans, and 50,000 Haitians.

US Democrats blasted the move, with the Minority Leader of the House of Representatives Nancy Pelosi (D-CA) calling the decision “senseless prejudice” and “a cowardly assault on thousands of families in communities across the nation”. Michelle Lujan Grisham (D-NM), chair of the Congressional Hispanic Caucus, said that “the Trump Administration’s irresponsible decision to end TPS for Nicaraguans will tear apart families and upend the lives of these hard-working individuals. Deporting families who are contributing to the economic and social fabric of our nation isn’t leadership; it’s a reckless and callous abuse of power.”

The almost 50,000 Haitians with protected status are nervously awaiting a DHS decision on their TPS status which is due to run out in January 2018. For Salvadoreans, the current TPS status expires in March 2018.

In May, the then-DHS Secretary, General John F. Kelly, now White House Chief of Staff, renewed TPS for Haitians, but for six months only, breaking with the 18-month extensions consistently granted by the Barack Obama administration (2009-2017). TPS was approved for Haitians after a massive earthquake in 2010 devastated the country, and killed over 200,000 people.

Kelly, formerly the head of the US military’s Southern Command (responsible for Mexico, Central-South America and the Caribbean), said the purpose of the six-month extension was to “allow Haitian TPS recipients living in the United States time to attain travel documents and make other necessary arrangements for their ultimate departure from the United States”. “The message,” he stressed, is that “TPS is temporary”. As head of SouthCom, Kelly had taken a notably tough line against migration to the US from the region in various regular posture papers presented to the US Senate. He appears to agree with the Trump administration’s stance in favour of a tightly controlled and almost exclusively merit-based US immigration policy.

Given how long the Central American migrants in particular have been in the US, many are expected to defy any orders to leave, thereby remaining illegally, joining the 700,000 young migrants facing removal of their protection under (DACA). Of the 57,000 Hondurans resident under the scheme, just over two-thirds (63%) have been in the US for the full two decades. Furthermore, an estimated 53,000 US-born children have at least one parent who benefits from the TPS designation for Honduras. In all, Haitians, Salvadoreans and Hondurans benefitting from TPS are estimated to have a combined total of 273,000 children between them who were born in the US and have US citizenship.

Democrats and many others say not only was the initial rationale for the TPS humanitarian, the rationale to grant these people permanent leave to remain and a path to citizenship is also a humanitarian issue.

TPS beneficiaries have limited benefits. Effectively, they can get authorisation to work in the US (and in some cases the ability to travel internationally), along with a reprieve from deportation. Beyond that, beneficiaries do not have legal permanent resident status, and while a small number may be eligible for green cards via the sponsorship of a family member who is a US citizen, the scheme is not intended to provide a path to citizenship.

The New York based Center for Migration Studies has also made the point that most TPS migrants would not be eligible for the Trump administration’s proposed ‘merit system’ – the median annual household income for Hondurans with TPS, for example, was US$40,000, and only 38% had high school diplomas.

The DHS has on file the personal details of all these people, including their addresses, which could lead to a situation whereby immigration enforcement agents target them for arrest and deportation, although the Immigration Bureau denies that this would be a priority. There appears to be an official expectation in the Trump administration that people would ‘self deport’ under the threat of becoming illegal and losing their existing status. The reality is that the vast majority feel there is nothing to go back to, and their families and children may have only tenuous connections to their parents’ native language and birth countries.

The Trump administration’s move to end the DACA and then TPS could ultimately be responsible for making over 900,000 more people vulnerable to deportation. The US authorities lack the capacity to deport that many, but the fear of possible deportation is not only creating extreme stress for hundreds of thousands of people, it is already creating practical difficulties for them in their daily lives, with reports of young people being unable to avail of study and work opportunities, and of older working migrants being notified by their US employers and providers that their health insurance and other protections will not be extended given their newly-uncertain status.

• TPS

The Department for Homeland Security ended TPS for several African nations this year, including Sudan and Sierra Leone. Somalia, South Sudan and Syria remain in the scheme. Central Americans and Haitians make up the vast majority of TPS beneficiaries, and have been under the scheme for the longest period of time.

• Support for TPS

The US Chamber of Commerce was among those to lobby the White House in support of TPS, to little avail. A congressional bill proposed in early November by Representative Carlos Curbelo (R-FL) would grant TPS recipients from Honduras, Haiti, El Salvador and Nicaragua a path to permanent residency.

• Haiti

Steve Forester, immigration policy coordinator with the Boston-based Institute for Justice & Democracy in Haiti, told the Miami Herald on 6 November: “Haiti is a textbook case for an 18-month extension due to Hurricane Matthew, the cholera epidemic, and incomplete earthquake recovery. No honest, informed observer could find otherwise. If the administration ends TPS for Haiti, it will indicate an ideological agenda, intentionally ignoring the clear facts on the ground and violating the national security interests of both nations.”