‘Temporary’ Protected Status: A Tool for Executive Mischief By Mark Krikorian
https://www.nationalreview.com/corner/temporary-protected-status-a-tool-for-executive-mischief/
DHS secretary Alejandro Mayorkas announced over the weekend that his agency would grant a work-permit amnesty (under so-called Temporary Protected Status) to all Haitian illegal aliens in the U.S.
Haitians who were here at the time of that country’s devastating 2010 earthquake already had this “temporary” (but routinely renewed) status, but Saturday’s announcement reopened the TPS amnesty to all the new Haitian illegals who’ve come in the decade-plus since then. The Federal Register notice, which hasn’t been published yet, will offer DHS’s estimate of how many illegal aliens would benefit, but media reports put the number at 100,000 or more post–2010 illegals, on top of the 50,000 or so Haitians who already have TPS.
As my colleague (and former senior USCIS official) Rob Law noted, “The stated reasons by the Biden administration for a TPS designation do not conform with the statute.” In the press release announcing the amnesty, Mayorkas said “Haiti is currently experiencing serious security concerns, social unrest, an increase in human rights abuses, crippling poverty, and lack of basic resources, which are exacerbated by the COVID-19 pandemic” – this is simply a less scatological version of Trump’s “shithole countries” crack, but even if true, none of this prevents the return of Haitian illegal aliens.
Despite the rhetoric of activists, TPS is not mainly about preventing the deportation of illegal aliens to a country; Biden halted deportations to Haiti shortly after taking office and ICE can exercise discretion like that whenever it chooses. The sole reason for a grant of TPS is to give illegal aliens work permits (and the Social Security numbers and driver’s licenses that follow it), formally embedding them in society and making the revocation of the amnesty extremely unlikely.
And, in fact. President Trump announced in 2018 the decision to allow Haitian TPS to expire the following year, but was barred by the courts from doing so, despite the law’s specific prohibition against judicial review of TPS decisions.
This is why legislative proposals to upgrade long-term TPS holders from their current amnesty-lite to amnesty-premium (i.e., a green card, potentially leading to citizenship) are fatally flawed. The version passed by the House in March includes just such a TPS amnesty upgrade as part of a broader bill — but does nothing to change the TPS process, guaranteeing the need for more amnesties in the future. But any arrangement that gives illegal aliens “temporary” work permits that keep getting renewed for 10 or 20 years is broken and needs to be fundamentally changed.
One possibility would be to simply abolish Temporary Protected Status. On the theory that such a tool is still needed, less-ambitious proposals have been offered in prior Congresses to allow the executive to grant this “temporary” status once, but to require approval from Congress for any renewals.
Perhaps a simpler fix would be just to prohibit, by law, the issuance of all nonimmigrant visas (for tourists, students, et al.) to people (other than diplomats) from any country with TPS. After all, if the U.S. government considers it unsafe to return people to a country, why would we expect visitors to return? And if people can safely return, then what basis is there for keeping TPS in place?
And yet we issue tens of thousands of nonimmigrant visas in countries whose illegal aliens here have TPS. In 2019 the State Department reports that it issued more than 22,000 visas to Haitians, mostly for tourism – some significant share of whom undoubtedly stayed and became illegal aliens, and now will get TPS work permits. Likewise, in 2019, the State Department issued more than 40,000 visas to Salvadorans, even though a couple hundred thousand illegals from that country have had TPS work permits for 20 years on the theory that it’s unsafe to return.
Other countries whose illegals supposedly can’t be returned, but where we’re issuing new visas anyway: Nicaragua (nearly 13,000 visas in 2019), Burma (nearly 18,000), Honduras (30,000), Sudan (4,600), Syria, (1,800), and Yemen (1,300).
The underlying premise of federal immigration law has been that Congress gives the executive wide latitude to keep foreigners out of the United States, but only very strictly limited authority to let people enter or stay. The project of the Left, and its libertarian and corporate fellow-travelers, has been to turn this principle on its head, asserting the president’s unlimited power to admit aliens without visas and issue them work permits, while strictly limiting the president’s ability to exclude or remove foreigners. This is the thread that runs through the debates over DACA, asylum, refugee resettlement, immigration parole, and more. Last weekend’s grant of a TPS amnesty to Haitians is just the latest abuse of executive power in immigration.
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