by Lyman Stone · January 12, 2018
Last week, the Trump administration announced that they would not renew “Temporary Protected Status” (TPS) for nearly 200,000 Salvadorans residing in America, meaning that those individuals would need to leave the country by 2019, or face deportation. The administration had already decided in December not to renew TPS for about 60,000 Haitians and Nicaraguans, and may soon announce an end to TPS for 57,000 Hondurans.
All in all, this could remove legal permission to live and work in the United States for more than 300,000 people. The reaction from progressives has been predictably histrionic. However, the reality of this policy decision is complex. Let’s unpack it piece by piece.
TPS Is Not Meant to Be ‘Permanent Legal Status’
From the program’s beginning in 1990 until 2013, the purpose of TPS was fairly clear — to give the president a way to deal with short-term, acute flows of crisis migrants the country wants to help, but who don’t fit the formal “refugee” designation. Previously, presidents had done this by arbitrarily using “prosecutorial discretion” (like DACA today) to protect large classes of migrants. Congress decided that was a bad precedent to set, so they established TPS to give an actual legal, organized program to the executive branch to protect these vulnerable migrants for between 6 weeks and 18 months.
TPS recipients must have been already in the United States when TPS is granted; it is not a formal “admission or parole” into the U.S. So when it expires, TPS-recipients have no visa to claim, and thus are unauthorized residents of the United States, and can be deported. But while TPS lasts, its recipients can legally work and participate in society normally, although they cannot receive most welfare benefits, and get far less public support than formal refugees.
Crucially, until 2013, TPS recipients could not file for a green card or citizenship, as they had not been given legal admission into the United States. This helped protect the essentially temporary nature of the program. But in 2013, a Federal court ruled against this interpretation of “admission or parole” in U.S. immigration law, and found that TPS recipients could claim green cards. Today, many TPS recipients have achieved other legal status.
The point is that after 2013, the nature of the TPS program changed. No longer temporary, it was now a legal path to citizenship, which congress had never intended. For most TPS programs, this doesn’t matter much: they end up being short-term one way or another. But three countries in central America (El Salvador, Nicaragua, and Honduras) have TPS programs stretching back more than 15 years, meaning their “temporary” programs have lasted long enough for a whole generation to grow up in America and think of themselves as Americans, with more ties here than in their home countries. For these people, the constant renewals of TPS have turned a “temporary” program into a permanent one, which, since 2013, the courts have formally recognized as a pathway to legal permanent residency.
With those program details in mind, let’s consider what the Trump administration actually did.
The Administration Actually Extended TPS for Salvadorans
The TPS program for Salvadorans began in 2001 after El Salvador was hit by devastating earthquakes. It makes sense for the U.S., with a large Salvadoran diaspora, and as the wealthiest nearby country, to do its fair share of charitably aiding earthquake victims in a just and Christian fashion. One way we do that is by direct aid, and another is by temporarily sheltering displaced people.
But El Salvador has had a rough time of it since 2001, with governance and safety conditions deteriorating over time. While the earthquake damage is essentially repaired, the country is still a pretty rough-and-tumble place. As such, Salvadoran TPS beneficiaries were not keen on moving home, and asked for extensions. Like clockwork, each administration from Bush to Obama has given TPS renewals to Salvadorans (and Hondurans and Nicaraguans). The original justification was an earthquake in El Salvador and a hurricane in Nicaragua and Honduras, but the ongoing reason is local crime, safety, and poverty conditions. Which, while charitable, isn’t the purpose of the program.
The United States is not committed to being the migratory insurance of every poor or unsafe part of central America. The TPS program is designed for acute needs, not chronic ones like “poverty” or “poor quality governance.” The fact that TPS has been extended for almost 19 years for Nicaraguans and Honduras, and 17 years for Salvadorans, is an incredible violation of the purpose of the TPS program. As such, it’s reasonable for any administration to look for a way to end this misuse of an otherwise reasonable and justifiable program.
The Trump Administration has done this in a very straightforward way. TPS for Salvadorans was scheduled to expire on March 9, 2018. That is, one way or another, TPS was going to end without special presidential action. The administration did act, and they announced that TPS would be discontinued in September of 2019. That’s in 18 months, which is the maximum amount of time they can legally extend TPS.
Let’s be clear on what happened here. The Trump Administration announced they will continue to honor TPS for the maximum amount of time they can legally commit to honoring it. But they also announced they would not renew at that latter date. So they’ve given Salvadoran TPS recipients 18 months, the most time they can give, to sort out their affairs and find a way forward. Many will apply for green cards, as they are legally able to do now. Many will seek asylum in other countries, like Canada. Some will return to their home countries, and some will try to stay in the U.S. as illegal residents.
But the point is, when left-leaning outlets say the Trump administration is prepping to deport 200,000 Salvadorans, there’s truth to that, insofar as the administration has committed to not renewing TPS after September 2019, but it’s a plain misreading of what happened, which is a commitment to honor TPS for 18 more months. The administration could have announced that they intended to allow TPS to expire in March. Or, had they taken no action at all, it would have automatically renewed for a mere 6 months.
TPS Is Obviously a Bargaining Chip
The Trump administration is trying to give itself bargaining chips in a brewing immigration debate. They’re showing that they are willing to use every legal instrument they have in the immigration debate, from refugee admissions, to deportations, to TPS, to DACA, to green cards. Any lever they have to work on immigration, they will pull. And the aim of it is clear: to force Democrats to the negotiating table.
And it worked! Well, at first it worked; the President has already wasted some of that hard-won political leverage through his habitual sin of foul speech. And even in that first meeting, it wasn’t clear what the final shape of a deal might be, but the point is that the administration’s strategy of cracking down on every piece of the immigration system all at once is indeed creating the pressure to find durable fixes. As much as Democrats may dislike what the administration is doing, a growing number are realizing a very simple fact: avoiding a legislative fix that satisfies both parties means any executive actions they take to protect immigrants can be speedily reversed once Republicans are back in power.
We don’t know what a final deal will look like. There will naturally be a wide range of opinions, and it’s not even clear from the transcripts of the recent immigration meeting that the Trump administration knows what it wants, which is a big problem. To use their leverage well, they need clear objectives, which ought to be a mix of security, improved standards and vetting for new arrivals, an orderly solution for the current states of illegal immigrants in the U.S, and new statutory limits on executive discretion, as the Heritage Foundation has suggested for the refugee program.
Congress Needs to Stop Passing the Buck and Solve This
The trick about high-stakes bargaining is that, if you lose, you lose big, and that is certainly true of TPS. The human stakes for TPS, and the economic stakes, are nothing to sneeze at. An additional 300,000 deportations in 2019 would be a hammer-blow to the rate of population growth in the United States and, since most TPS recipients work legally but can’t claim most benefits, would also be a more significant financial loss than the typical deportation of a central American immigrant.
More broadly, such a deportation binge would more than double the pace of removals, and could only be accomplished by sending law enforcement to unceremoniously haul immigrants out of schools, churches, and family gatherings. That kind of disruption of society isn’t something any conservative should be cheering for.
More to the point, in many cases, we’re talking about the immediate family of American citizens. Deporting the parent of a 3-year-old is deporting the 3-year-old, which means sending a 3-year-old U.S. citizen into crime-ridden El Salvador. Compassion on our fellow citizens should suggest against actually doing that for any fair-minded and Christian American. But even if it does not, simple self-interest should compel us: that child will be exposed to violence, gangs, and poverty, and grow up knowing he was booted out of the U.S. And guess what? Eventually, he’ll claim his rightful U.S. passport and come back here, and then we’ll have to deal with him as an adult MS13 member instead of just another law-abiding citizen.
Deporting American citizen-children to dangerous places exposes the U.S. to transnational crime and violence. While some may argue that a policy of citizenship-stripping could get the job done, ask yourself: would you have trusted President Obama with the power to strip citizenship from citizens he believed dangerous or who lived in the wrong place? No? Then probably we don’t want to give the government the power to yank citizenship from people just because they’re deemed a little bit threatening.
The Trump administration has been ramping up detentions of immigrants for deportation, as is their prerogative to do, and thus credibly shown Democrats that, if pushed, they will do it. They will deport as many illegal immigrants as they have to. But for the sake of our future safety, our economic growth, and the good order of our country, we should be hoping and praying that both sides can reach a satisfying deal.
That’s what President Trump promised to the American heartland: a deal-maker who would give lasting, statutory fixes to the executive-led chaos of the previous 16 years. Finding a stable, legislative fix for excessively discretionary immigration programs like DACA, TPS, asylum, and the refugee program is a good test case to see if he was serious.
Update: The original version of this article included a sentence saying, “I have been unable to determine if TPS recipients who have since obtained green cards are included in the “200,000” number circulating in the media. If so, then it’s important to understand that a substantial share of people who might be deported for losing TPS actually wouldn’t be deported, because they have green cards now.” I have since been informed that the 195,000 number for Salvadorans does indeed reflect only TPS recipients who do not claim to have any other legal status; 262,000 Salvadorans were granted TPS at some time; the 67,000 person gap reflects some quantity of conversions to other immigrant statuses, re-migration, death, or conversion to illegal status in the United States by failing to re-register for TPS.
The Federalist · by Lyman Stone · January 12, 2018