Week 7: Administration will extend work permits for Salvadoran TPS holders

Immigration news, in context.

This is the seventh edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

The Big Picture

Following third-country deal, administration provides TPS concession

The News: The Salvadoran government and the Trump administration announced a one-year extension of work authorization for Salvadorans in the U.S. who have Temporary Protected Status (TPS). The extension is slated to last until January 4, 2021.

What’s happening?

Salvadoran President Nayib Bukele posted a video of the announcement on Twitter on Monday, in which he stands with U.S. Ambassador Ronald Johnson as they announce that TPS for Salvadorans has been “extended” for a year. Bukele says this will allow “decision-makers more time to find a permanent solution,” which could be an allusion to eventual permanent legal status for TPS holders, a prospect the Trump administration has been adamantly against.

Ken Cuccinelli, the acting director of U.S. Citizenship and Immigration Services, then clarified that the agreement isn’t an extension of the TPS program for El Salvador, but rather an extension of work authorization for Salvadorans with TPS. This might seem like a semantic difference, but it’s a significant legal distinction. If the Trump administration were to extend TPS, it would amount to a formal admission that conditions in El Salvador haven’t reached a point where it is safe or practical to force Salvadorans with TPS to return, which would be a reversal from the administration’s January 2018 decision to let the designation expire. Instead of extending TPS, the administration is extending the validity of the work permits already held by TPS recipients.

Generally, TPS is a legal provision (8 U.S.C. 1254a) that allows Homeland Security to determine that certain countries or regions within countries are not safe for or otherwise cannot handle the return of their nationals because of war, natural disaster, or other extreme conditions. If such a designation is made, nationals are protected from immigration enforcement and allowed to work, provided they’ve resided in the U.S. since a date recently prior to the designation as set by the government and maintain a physical presence in the U.S. after TPS goes into effect.

There are a few categories of people who are ineligible, such as people convicted of certain crimes or those deemed a national security concern. But by and large anyone from a TPS-designated country who fulfills the presence and residency requirements can apply for and receive TPS protections, even if they were undocumented before. However, since it was designed as a stopgap measure, TPS status cannot by itself be transformed into anything else. There’s no period after which, for example, TPS recipients can apply for permanent residency on the basis of having held TPS alone.

Crucially, TPS recipients who entered the country illegally are not uniformly considered “admitted” to the United States, which is generally a requisite of receiving permanent residency within the country. Due to a patchwork of court rulings, it depends on the jurisdiction: in the Ninth and Sixth Appellate Circuits, a TPS holder who entered the country illegally can apply for permanent residency if they otherwise qualify through family or employment; in the Eleventh Circuit, they explicitly cannot; other Circuits have not ruled one way or another, meaning by default they cannot. This means many TPS holders are ultimately stuck; they would have to leave the U.S. to receive permanent residency, but leaving would trigger a 10-year ban on re-entry if they had lived in the country illegally for a year or more.

But TPS can technically be extended indefinitely.  At least 60 days before an initial designation period (between 6 and 18 months) ends, DHS must determine if  the nation “no longer continues to meet the conditions for designation,” in which case the program is terminated through a notice in the Federal Register. If the country continues to meet the conditions, then the designation is extended for another period of 6, 12, or 18 months, and the process essentially repeats. 

For El Salvador, the most recent designation occurred on March 9, 2001. It’s been renewed continuously until the federal government tried to terminate it in September of this year before being blocked in court. That means all current Salvadoran TPS recipients in the U.S. have lived in the country for at least 18 years and change.

The announcement came on the same day as Acting Homeland Security Secretary Kevin McAleenan — yes, it’s still him — signed two agreements with Salvadoran Foreign Minister Alexandra Hill Tinoco, building on the preliminary third-country asylum agreements signed last month. They were a ‘Border Security Arrangement’ to have ICE and CBP agents deploy to El Salvador to advise local police, customs, and immigration agents, and a ‘Biometric Data Sharing Program Arrangement,’ which will supposedly improve the transfer of data on biometrics like fingerprints between the two governments. The framework of the asylum deal, which would let the U.S. send asylum seekers to El Salvador to petition for asylum there instead, has not been unveiled.

How did we get here?

Congress created TPS as part of the Immigration Act of 1990, which specifically laid out protections for Salvadoran nationals. The act was passed during the final years of El Salvador’s long civil war, and specifically granted El Salvador TPS designation until mid-1992. Salvadorans weren’t granted TPS again until 2001, when a series of earthquakes struck the country. 

It bears repeating that El Salvador’s TPS designation wasn’t intended to provide relief for people who were fleeing the effects of the earthquakes but rather for undocumented Salvadorans who were already in the U.S. prior to the earthquakes. In fact, the law specifically states that nothing in the eligibility 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.”

That distinction matters, because the Trump administration has argued that the conditions that led to TPS designations for Salvadorans — the destruction caused by the 2001 earthquakes — don’t exist anymore. But immigration advocates say that doesn’t mean it’s safe for TPS holders to return home, since the country continues to be plagued by high rates of gang violence and corruption and has suffered from subsequent natural disasters.

When the Obama administration extended TPS for Salvadorans in September 2016, it specifically cited a series of other natural disasters in El Salvador — including hurricanes and floods — that have worsened conditions in the country, along with the aforementioned gang violence. 

The Trump administration’s emphasis on the temporary nature of TPS may be an obfuscation. Trump’s infamous remark about “shithole countries” was a reference to countries with TPS designations — including El Salvador.

What’s next?

Practically speaking, at least for now, this agreement changes nothing on the ground. The January 4, 2021 date is really a placeholder, because the the U.S. District Court for the Northern District of California enjoined the federal government from being able to terminate TPS designations for Haiti, Sudan, Nicaragua, and El Salvador in the case of Ramos v. Nielsen, in October 2018. Work authorization for Salvadoran TPS holders had already been extended to January 2, 2020 explicitly to comply with this injunction.

If the court hadn’t stepped in, the designation would already have ended this September. Until the case is ultimately resolved, and unless the injunction is overturned, the government will not be able to end TPS for El Salvador and may have to extend it further. The more significant part of the agreement is that if and when the courts do permit the administration to end TPS protections for Salvadorans, they will receive a 365-day wind-down period before they lose the protections entirely.

One of the main points of contention in the ongoing litigation is whether the administration is following its own prior policies and procedures with regards to TPS determinations, particularly in the interpretation of whether “conditions for designation” remain. While prior administrations considered “the full range of current country conditions,” according to testimony by former U.S. Citizenship and Immigration Services Director Leon Rodriguez, the Trump administration has only considered country conditions arising specifically from whichever event or circumstance triggered a TPS decision in the first place. In the case of El Salvador, the Homeland Security evaluated the country only for whether the effects of the 2001 earthquakes remain, and not for the totality of its current security situation.

Both internal communications between DHS and White House officials and external statements made by officials including the president were also used as evidence that termination was the objective, and the evaluations were made in service to that objective. The administration has countered that the courts aren’t allowed to review its TPS decisions — the law itself reads that “[t]here is no judicial review of any determination” on TPS designations, extensions, or terminations — and that it’s not a traditional regulatory process that can’t be changed at will by the administration.

These arguments have been rejected on the grounds that it’s not the decisions but the process being reviewed, and the process is absolutely subject to charges that it was discriminatory or otherwise arbitrary and capricious. It seems like the government will have to provide a particular reason why the way it conducts TPS evaluations has changed if it wishes to win this case. Only if it does will the one-year wind-down period for Salvadoran TPS holders take effect.

As far as an outcome that would allow Salvadoran (and other) TPS holders to actually remain in the United States, the most straightforward is the courts ruling that the administration’s decision to terminate the program was deficient, and forcing an extension, at least until the government can better substantiate why it should be wound down. The case is now before the Ninth Circuit, and whichever ruling it hands down will likely be appealed to the Supreme Court.

Such an extension, however, would still be a temporary fix. A permanent solution would have to come through Congress. The Dream and Promise Act, introduced in the House in March and passed in June, would allow Dreamers as well as recipients of TPS and Deferred Enforced Departure (a program similar to TPS) to receive permanent residency if they fulfill a few requirements. That effort is extremely unlikely to see action in the Senate, at least while it remains under the control of Republican Majority Leader Mitch McConnell. Interestingly, the current TPS law actually requires that any bill to grant temporary or permanent legal status to TPS holders receive a three-fifths supermajority vote in the Senate to be enacted (1254a(h)). The availability of the filibuster renders this point moot for now, but if filibuster rules were to be changed at some point, this section could become another obstacle to a permanent solution.

Under the Radar

Is the U.S. going to start sending asylum seekers back to Guatemala?

The Trump administration is getting ready to send Salvadoran and Honduran asylum seekers to Guatemala, according to the Washington Post. If this sounds familiar, it’s because the U.S. and Guatemala signed an agreement that would let the Department of Homeland Security send certain asylum seekers to Guatemala back in July. More accurately, they signed an agreement to make a plan — and that plan will be implemented soon, three people with knowledge of the plan told the Post. (The U.S. also signed similar agreements with El Salvador and Honduras, neither of which has gone into effect yet.)

So what does this mean? DHS wants to start sending adult Hondurans and Salvadorans who ask for asylum at the U.S.-Mexico border to Guatemala shortly after the plan goes into effect, two administration officials told the Post. They’ll have to apply for — and be denied — protection in Guatemala first before being able to make an asylum claim in the U.S. That’s where things get dicey, since Guatemala only has 12 officials who process asylum claims, according to Human Rights First — and only three of them actually interview asylum seekers. The U.S. has promised to put up $47 million to help build Guatemala’s asylum system, and the UN’s High Commissioner for Refugees has pledged to help, but that’s not the kind of thing that can be done overnight.

It’s also worth noting that Guatemala’s high court, congress, and president-elect are all opposed to the deal, but that may not matter; the Trump administration has threatened to cut off vital aid to Guatemala if the country pulls out of the deal.

Attorney General Barr issues two decisions on adjudication

In the immigration court system, which is contained wholly within the Justice Department, the Attorney General acts a bit as a Supreme Court, or a final authority on legal precedent and interpretation. He can use this power to refer cases to himself from the Board of Immigration Appeals, which is the appellate level for immigration courts, and in doing so issue decisions that act as binding policy for judges throughout the system. Last Friday, Attorney General Barr did just that by issuing decisions in Matter of Thompson & Matter of Thomas and in Matter of Castillo-Pérez.

The former limits the effect of modified criminal sentences for immigration adjudication purposes. Essentially, certain local criminal sentences trigger inadmissibility or deportability for noncitizens who have received them. Some localities have responded by retroactively changing old sentences to fall below this threshold; Barr has now ruled that, unless there was an actual substantive or procedural issue in the handing down of a sentence, these changes won’t be considered valid for immigration purposes. 

The latter decision explicitly rules that two or more convictions for driving under the influence are evidence of a lack of “good moral character,” a standard that bars noncitizens from various immigration benefits and makes them much easier to deport.

Next Destination

Local cooperation with ICE is on the ballot in Virginia and Louisiana

In recent weeks, DHS officials have touted their relationship with local law enforcement, including through a rowdy press conference where a sheriff spoke disparagingly about undocumented immigrants. These antics suggest that the administration has gone on the defensive regarding its partnerships with local law enforcement agencies, particularly as sheriffs across the country — many of whom were elected last year — have pulled out of agreements with ICE. Next week, local elections will determine the fate of these agreements in three additional jurisdictions: Prince William and Culpepper counties in Virginia and Louisiana’s East Baton Rouge parish.

Incumbent sheriffs in all three counties are being challenged by insurgent candidates who have pledged to end the counties’ 287(g) agreements with ICE. These partnerships essentially let local law enforcement agencies carry out certain immigration enforcement duties, namely detaining people who ICE suspects have committed immigration violations until they can be transferred to federal custody, as well as screening everyone who gets booked into local jails to see if they may be in the country illegally. These partnerships are essential for ICE; they turn sheriff’s deputies and police officers into the agency’s eyes and ears on the ground, and are particularly vital in remote parts of the country. 

It’s possible that the insurgent challengers in these three counties will win. East Baton Rouge parish went blue in 2016, and a Democrat held one of the two congressional districts the parish is a part of during the 2018 midterms. Trump managed to win roughly 63% of the vote in Culpeper County in 2016, only for the 10th district — which contains part of the county — to flip during the midterms.