The Uncertain Fate of Haiti’s Temporary Protected Status

George Zeckler*

On January 12, 2010, Haiti experienced an earthquake that measured 7.0 on the earthquake Richter scale, occurring approximately twenty-five kilometers from Haiti’s capital city Port-au-Prince.[1]  The earthquakes affected over three million people, with death toll estimates ranging from 100,000 to 160,0000.[2]  On January 21, 2010, in response to the devastation in Haiti in the aftermath of the earthquake, the Department of Homeland Security (DHS) Secretary designated Haiti with temporary protected status (TPS) for a period of eighteen months.[3] Since then, Haiti’s TPS has been extended for periods of eighteen months up through the final extension’s termination date of January 22, 2018.[4]  Presently, over 46,000 Haitians hold TPS, out of a population of over 318,000 from various countries with temporary protected status.[5]  With the large number of Haitians at risk of losing their TPS, one should understand what TPS is and the current status of Haiti’s TPS.

TPS was adopted as part of the Immigration Act of 1990.[6]  TPS has been considered a “short-term strategy to secure the immediate physical safety of refugees” and lasts between six and eighteen months, which may be extended or redesignated.[7]  It applies to foreign nationals whose home countries are determined to be incapable of handling their safe return.[8]  These conditions include: ongoing armed conflict within the country, such as civil war; an epidemic or environmental disaster, such as earthquakes or hurricanes; or other extraordinary or temporary conditions.[9] TPS beneficiaries are not removable from the United States (even if they had entered the country illegally) until TPS is terminated, cannot be detained based on their immigration status, and can obtain employment authorization.[10]  When the DHS withdraws a country’s TPS designation, TPS beneficiaries go back to the same immigration status they had before TPS or to another status they may have received while registered under TPS.[11]

Congress enacted TPS to safeguard individuals who do not merit asylum but would be in danger if sent back to their home countries.[12]  Therefore, TPS is viewed as the statutory expression of safe haven for those foreign nationals who might not meet the legal status of refugee but are fleeing or are disinclined to return to potentially dangerous conditions in their home countries.[13] Consequently, TPS applies to foreign nationals whose home countries are determined to be incapable of handling their safe return.[14] One criticism of TPS is that it is limited to protecting only those foreign nationals who are already in the United States on the specific date of TPS designation by the DHS Secretary.[15]  Although Congress intended TPS to be a humanitarian measure,[16] Congress did not intend to consider TPS as an admissions device, providing that, “[n]othing in this section shall be construed as authorizing an alien to apply for admission to, or to be admitted to, the United States in order to apply for temporary protected status under this section.”[17] Accordingly, TPS is considered a “nonstatus” since it is officially temporary, not permanent resident status; and it does not offer a pathway to citizenship.[18]

Before Haiti’s final TPS extension expired on January 18, 2018, the DHS announced that “conditions in Haiti no longer support its designation for TPS” and terminated Haiti’s TPS designation, with an effective date of July 22, 2019, in order to provide eighteen months for an “orderly transition.”[19] However, on October 3, 2018, a federal district court enjoined DHS from implementing and enforcing the decisions to terminate TPS for Sudan, Nicaragua, Haiti, and El Salvador, pending final determination of the case.[20]  In denying the government’s motion to dismiss, the court held that the jurisdiction-stripping provision of the TPS statute does not prevent judicial review of the DHS’s “general procedures and criteria for designating, terminating, and extending foreign states’ TPS,” nor does the TPS statute preclude “colorable constitutional claims challenging individual TPS determinations.”[21]

Although the government has appealed the district court’s ruling, on October 31, 2018, DHS announced that it would comport with the court’s preliminary injunction in Ramos; and TPS would continue in effect for those four countries for the duration of the preliminary injunction.[22]  Nevertheless, the Trump administration has recently provided further reprieve for these four countries who are benefitting from the preliminary injunction.  On March 1, 2019, the DHS announced that it would “ensure its continued compliance with the preliminary injunction” in Ramos and reiterated that Haiti would retain its TPS for the duration of the preliminary injunction; and DHS further announced that this TPS extension is valid “unless and until any superseding, final, non-appealable judicial order permits the implementation of such terminations.”[23] Furthermore, DHS extended the period of TPS-related employment authorizations through January 2, 2020.[24]  Consequently, although this temporary extension is good news for the Haitians with TPS, the long-term fate of Haiti’s TPS remains uncertain as this issue makes its way through the courts.

* J.D., candidate, 2019, FIU College of Law.

[1] 2010 Haiti Earthquake, Wikipedia, https://en.wikipedia.org/wiki/2010_Haiti_earthquake (last visited Mar. 1, 2019).

[2] Id.

[3] Designation of Haiti for Temporary Protected Status, 75 Fed. Reg. 13,3476 (Jan. 21, 2010) [hereinafter Designation of TPS 2010], https://www.justice.gov/sites/default/files/eoir/legacy/2010/01/21/fr21jan10.pdf.

[4] Extension of Designation of Haiti for Temporary Protected Status, 82 Fed. Reg. 23,830 (May 24, 2017), https://www.justice.gov/eoir/page/file/970031/download.

[5] D’Vera Cohn, Jeffrey S. Passel & Kristen Bialik, Many Immigrants with Temporary Protected Status Face Uncertain Future, Pew Res. Ctr. (Feb. 21, 2019), http://www.pewresearch.org/fact-tank/2019/02/21/immigrants-temporary-protected-status-in-us/.

[6] Immigration Act of 1990, 104 Stat. 4978.

[7] Joan Fitzpatrick, Temporary Protection of Refugees: Elements of a Formalized Regime, 94 A.J.I.L. 279, 280 (2000).

[8] Chelsea Krombel, Note, The Prospective Role of Temporary Protected Status: How Discretionary Designation Has the United States’ Ability to Protect Those Displaced by Environmental Disasters, 28 Conn. J. Int’l L. 153, 155 (2012).

[9] Temporary Protected Status, 8 U.S.C.S. § 1254(a)(b)(1) (2017).

[10] Temporary Protected Status, USCIS, https://www.uscis.gov/humanitarian/temporary-protected-status#El (last visited Mar. 1, 2019).

[11] Designation of TPS 2010, supra note 3, at 13,3477.

[12] Sarah Anchors, Comment, Temporary Protected Status: Making the Designation Process More Credible, Fair, and Transparent, 39 Ariz. St. L.J. 565, 566 (2007).

[13] Ruth E. Wasem & Karma Ester, Temporary Protected Status: Current Immigration Policy and Issues, CRS Rep. for Congress, http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1562&context=key_workplace.

[14] Krombel, supra note 8, at 155.

[15] Susan Martin, Andy Schoenholtz & Deborah W. Meyers, Temporary Protection: Towards a New Regional and Domestic Framework, 12 Geo. Immigr. L.J. 543, 549 (1998).

[16] Anchors, supra note 12, at 579.

[17] Temporary Protected Status, 8 U.S.C.S. § 1254(a)(c)(5) (2017).

[18] Geoffrey Heeren, The Status of Nonstatus, 64 Am. U. L. Rev. 1115, 1119 (2015).

[19] Termination of the Designation of Haiti for Temporary Protected Status, 83 Fed. Reg. 2648 (Jan. 18, 2018), https://www.govinfo.gov/content/pkg/FR-2018-01-18/pdf/2018-00886.pdf.

[20] Ramos v. Nielsen, 321 F. Supp. 3d. 1083, 1132 (N.D. Cal. 2018).

[21] Id. at 1101, 1105.

[22] Continuation of Documentation for Beneficiaries of Temporary Protected Stats Designations for Sudan, Nicaragua, Haiti, and El Salvador, 83 Fed. Reg. 54,764 (Oct. 31, 2018), https://www.govinfo.gov/content/pkg/FR-2018-10-31/pdf/2018-23892.pdf.

[23] Continuation of Documentation for Beneficiaries of Temporary Protected Stats Designations for Sudan, Nicaragua, Haiti, and El Salvador, 84 Fed. Reg. 7103 (Mar. 1, 2019), https://www.govinfo.gov/content/pkg/FR-2019-03-01/pdf/FR-2019-03-01.pdf.

[24] Id.