TPS negotiations break down, leaving hundreds of thousands in limbo—11-02-2022
Immigration news, in context
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This week’s edition:
In The Big Picture, we examine the breakdown of settlement negotiations to find a solution for hundreds of thousands of TPS holders that the Trump administration attempted to strip of status.
In Under the Radar, we look at an effort by Texas and Louisiana to have a federal judge hold the Biden administration in contempt for a supposed refusal to expel people under Title 42.
In Next Destination, we discuss a draft proposal to send interdicted Haitian asylum seekers to a third country, or potentially repeat history by sending them to Guantánamo Bay.
The Big Picture
The news: Over a year of negotiations between the Biden Justice Department and lawyers representing over 300,000 Temporary Protected Status holders from various countries have broken down, leaving the 9th Circuit to issue a decision without the parties coming to agreement. The litigation stems from the fact that the Trump administration made a chance to how it evaluates TPS designations, which are designed to offer protection from deportation and work authorization to people from countries where it is unsafe to return due to some natural or man-made crisis.
Using this new method, which the plaintiffs argued was rooted in an illegal predetermination to terminate TPS statuses based on discriminatory intent, was used to announce the end of TPS for El Salvador, Honduras, Nicaragua, Haiti, Sudan, and Nepal. Two separate lawsuits challenged the terminations, and they were blocked by a federal judge before the injunction was overturned by a 9th Circuit panel. The plaintiffs then asked for a full-court decision, which was put on pause as the settlement negotiations continued.
The exact nature of the negotiations is secret, but an attorney involved told us that the proposals were modest. Nonetheless, the government could not agree, and the case is now moving forward. If the 9th Circuit rules against the plaintiffs, then TPS could be ended for Honduras, Nicaragua, and Nepal as soon as 120 days after the ruling, with El Salvador’s being phased out after a year (Sudan and Haiti have since been redesignated so are not subject to the same risk).
Under the Radar
Texas and Louisiana ask federal court to hold DHS in contempt over expulsions
Two states that are suing the Biden administration over its effort to end Title 42 have asked the federal court to hold the administration in contempt over its supposed “de facto [termination of] the Title 42 policy vis-à-vis citizens of Haiti.” As a reminder, the administration attempted to start phasing out Title 42 earlier this year but was blocked from doing so before the process even began, thanks to a lawsuit from a group of conservative states. Some of those states are now claiming that not only has DHS stopped applying Title 42 expulsions to Haitians, but that it is doing so in contempt of a federal injunction keeping Title 42 in place.
To be clear, Title 42 is still in place, though DHS does have a humanitarian exemption policy that allows officers to make individual determinations regarding whether to expel migrants. In practice, though, these exemptions are primarily applied to groups of people CBP cannot return to Mexico, often because Mexico won’t accept them, including Colombian, Ecuadorian, Nicaraguan, and in some cases Haitian nationals. That said, under both Trump and Biden, DHS has expelled thousands of Haitians to both Haiti and Mexico despite humanitarian concerns over their treatment both countries.
Next Destination
Biden considers detaining Haitian migrants in Guantánamo Bay
The Biden administration is gearing up for an influx of migrants from Haiti and is reportedly weighing options regarding where to detain them, NBC News reports. One option under consideration are at a third country—which internal planning documents obtained by NBC News refer to as a “lily pad”—where U.S. immigration officials can screen and process Haitian migrants who are intercepted at sea. If said country is overwhelmed, migrants would then be taken to the U.S.-run prison in Guantánamo Bay.
This wouldn’t be the first time the U.S. has detained Haitian migrants in Guantánamo. The Immigration and Naturalization Service, the precursor to ICE, started detaining Haitians there in 1991. Approximately 12,500 Haitians were held in Guantánamo that year alone. Between 1991 and 1993, the U.S. used Camp Bulkeley to detain migrants who had been granted asylum but had either tested positive for HIV or were related to someone who was.
In 1993, the Supreme Court ruled that the federal government’s practice of intercepting Haitian asylum seekers at sea and preventing them from reaching the U.S. didn’t violate the Immigration and Nationality Act or the 1967 Protocol Relating to the Status of Refugees.
The Big Picture – Premium
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