By Hannah Bossert and Jayesh Rathod*

In the swell of immigration reform discussions in Washington, Temporary Protected Status (TPS), one form of humanitarian protection, has received significant attention from policymakers and advocates, but the Administration of U.S. President Joe Biden has yet to signal its intended action for significant TPS decisions arising later this year and next.

• Codified in U.S. immigration law, TPS provides relief from removal and work authorization for nationals of designated countries affected by ongoing armed conflict, natural disaster, or other extraordinary and temporary conditions. The Secretary of Homeland Security makes TPS designations for anywhere from six to 18 months, with no legal limit to the number of renewals. When conditions allow for a safe return, the federal government may choose to terminate the designations.
• As part of its agenda set on restricting immigration, the Trump Administration attempted to end TPS for six countries (including four in Latin America), prompting litigation that has extended the designations while courts review the legality of the terminations.

The Biden Administration has only begun to formulate its policies regarding TPS, which will have a major political and economic impact on immigrant communities in the United States and on the region as a whole. Twelve countries worldwide have been TPS-designated, protecting approximately 320,000 individuals, for a number of years. In March, the Administration extended protection to an estimated 323,000 eligible Venezuelans, and designated Burma in May. But pending decisions include the following:

• Today nearly 200,000 nationals of El Salvador are protected by a designation made in 2001. Designations in 1999 for Honduras and Nicaragua currently protect around 60,350 and 3,200 persons, respectively. Thanks to federal court injunctions, these work permits and protections from removal remain valid through October 4. The Biden Administration recently agreed to participate in settlement discussions to resolve the pending litigation. The White House might find a way to extend work authorization for the existing beneficiaries; alternatively, it might re-designate these countries for TPS, which would offer protection to tens of thousands who arrived after the initial designation dates. Given the roadblocks that many Central American migrants face in advancing asylum claims, re-designation could be the more attractive option as it would alleviate immigration court backlogs and would not require Congressional authorization.
• Re-designation was the Biden Administration’s preferred course of action for Haiti, which was also subject to a Trump-era termination effort. On May 22, DHS Secretary Alejandro Mayorkas re-designated Haiti for 18 months, expanding coverage to 100,000-150,000 new arrivals and providing an opportunity for those nearly 41,000 Haitians deriving status from the earlier designation to re-apply. The devastating effects of COVID‑19 and the instability surrounding the recent assassination of President Moïse both complicate return for Haitian nationals.
• Members of Congress recently penned a bicameral letter urging the Administration to consider TPS designations or redesignation for 17 countries, including El Salvador, Honduras, and Nicaragua, as well as the Bahamas and Guatemala. A Guatemala designation, recently re-requested by the country’s government in the wake of severe hurricane damage, would change its decades-long outlier status when compared to its Central American neighbors.

Despite its name, TPS has enabled decades-long residency for hundreds of thousands of migrants, allowing them to build lives and families in the United States. TPS beneficiaries from El Salvador, Haiti, and Honduras alone contribute roughly $4.5 billion to the U.S. economy, including an average yearly contribution of over $691 million to Medicare and Social Security. Despite past stagnation in considering longer-term relief for TPS holders, the reality of TPS has prompted new advocacy in Congress aimed at creating pathways to citizenship for beneficiaries via proposed legislation such as the American Dream and Promise Act of 2021 and U.S. Citizenship Act, as well as calls to enshrine these efforts within the budgetary process, as in Senator Bernie Sanders’s Budget Reconciliation Bill.

• Congressional action has become even more critical given the Supreme Court’s recent unanimous decision in Sanchez v. Mayorkas, which cut off the primary pathway to lawful permanent residence for TPS holders who had entered the United States without permission. This decision, absent  Congressional action, leaves hundreds of thousands in a prolonged and uncertain status. Given the current political climate in Washington, the path forward remains unclear.

July 21, 2021

* Hannah Bossert is  a second-year law student at the Washington College of Law and Dean’s Fellow for the Immigrant Justice Clinic, and Jayesh Rathod is Professor of Law and Director of the Immigrant Justice Clinic at the Washington College of Law.

By Dennis Stinchcomb and Jayesh Rathod*

U.S. Democratic presidential nominee Joe Biden has pledged more than just a return to the Obama-era status quo on immigration, but the historical arc of immigration policy, the pandemic, entrenched agency cultures, and the limitations of executive lawmaking point to modest progress by a would-be Biden Administration. Absent from the Biden-Harris immigration platform are many of the more progressive proposals of Biden’s rivals for the Democratic nomination, including commitments to decriminalize border crossings, abolish or restructure Immigration and Customs Enforcement (ICE), eliminate expedited removal proceedings, and temporarily halt deportations in hopes of compelling Congressional action. Even so, the Biden-Harris plan promises urgent action within their first 100 days to reverse President Trump’s sweeping changes to the immigration system, followed by novel reforms.

But the challenges faced by a Biden Administration would extend far beyond the mountain of executive formalities (and potential defensive litigation) needed to “undo Trump’s damage.” Since 1986 – the last time Congress passed comprehensive immigration legislation – two dominant trends embraced by administrations from both parties have constrained the potential for pro-immigration advances, leading to a one step forward, two steps backward dynamic from which a Biden Administration would have to break free.

• Criminalization. In the runup to his 1996 re-election, President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which laid the groundwork for the aggressive immigration enforcement regime of the Trump Administration. IIRIRA subjected legal immigrants to deportation for a range of non-violent offenses, limited the due-process rights of certain categories of immigrants facing deportation, and facilitated the recruitment of local law enforcement agencies to carry out immigration directives. Today, a remarkably broad swath of criminal activity triggers immigration consequences, and migration-related conduct (including unlawful entry) is increasingly subject to criminal sanction.
• Securitization. The Bush Administration’s framing of immigration as a security issue after 9/11 and the reorganization of the Immigration and Naturalization Service within a new Department of Homeland Security (DHS) put additional pressure on migrants. Intensive vetting of would-be migrants, including extra scrutiny of nationals from certain countries, often dovetail with the “criminal alien” narratives, particularly when migrant streams are portrayed as vectors for drug trafficking and organized crime.

President Obama gradually realigned enforcement priorities and promoted a culture of prosecutorial discretion, but the deeply entrenched notions of immigrants as lawbreakers with suspect intentions limited and undermined his pro-immigration policies. When faced with record numbers of arrivals at the southern border, the Obama Administration could not escape the enforcement paradigm, choosing to dramatically expand the practice of family detention and deport millions of noncitizens without criminal records.

• This enforcement dragnet reinforced an agency culture within ICE and other components of DHS that equated increased apprehensions and removals with success. Obama’s timid reform policies and aggressive enforcement left enshrined criminalization and securitization as hallmarks that made it easy for Trump to implement unprecedented restrictionism. The President has infused his rhetoric with repeated references to immigrants as “bad hombres” and as threats, not just to public safety, but to American culture and identity.

If Mr. Biden takes office, we can expect a deluge of executive orders undoing many of the 400-plus actions taken by the Trump Administration that dramatically curtailed legal immigration, cut off temporary protections, and dismantled the asylum system. But an immigration counterrevolution is unlikely. Biden has acknowledged the missteps of the Obama-Biden Administration, but his middle-of-the-road approach – compared to the proposals advanced by other Democrats – fails to recognize that the ills of the immigration system predate President Trump.

• Far-reaching reforms that break the decades-long trend to criminalize immigrants and view them through a security lens will require more than regulatory tinkering. Another wave of White House-mandated programs that grant temporary relief while subjecting immigrants to perpetual uncertainty is unlikely to satisfy immigrant communities and their advocates. The public health crisis caused by COVID-19, moreover, has provided renewed impetus for the securitization of immigration and may prove one of the greatest obstacles to Biden’s immigration agenda, which is silent on the pandemic.
• Hope for groundbreaking reforms may only come in the form a Democratic-controlled Senate, where a legislative overhaul might embrace the decarceration and other less punitive approaches gaining traction in the criminal justice context. But even then, a Biden Administration would have to contend with thousands of existing DHS employees with a fundamentally different vision for migration management. These conditions, which align with the broader arc of immigration policy, forecast only incremental progress.

October 13, 2020

* Dennis Stinchcomb is the CLALS Assistant Director for Research, and Jayesh Rathod is Professor of Law and Director of the Immigrant Justice Clinic at the Washington College of Law.

By Alan M. Kraut*

Donald Trump speaking to supporters at an immigration policy speech at the Phoenix Convention Center in Phoenix, Arizona. / Flickr / Creative Commons License

The coronavirus has sparked a virulent wave of racism and intolerance in the United States – as seen in past pandemics – but strong leadership can blunt or even stop it. The current wave echoes a contemporary ethnocentric nationalism that has infected many societies and political leaders around the world.

• U.S. President Donald Trump denounced the anti-Asian prejudices – including epithets and, at times, spit and punishing blows against Chinese-Americans – that were stirred by his own use of the terms “foreign virus” and “Chinese virus,” but the damage was done. A community was put on notice, “You are the ‘other’ and you endanger us all by your presence.”

Throughout human history, groups defined by race or religion have been persecuted because of their association with disease. The Black Death of the Middle Ages was blamed on Jews, triggering ferocious physical persecution that resulted in tens of thousands of deaths, often by torture. Sociologist Erving Goffman observed that the most essential version of stigma was the abomination of the body – because the disease-causing contagion cannot be detected with the naked eye or easily avoided.

• Throughout American history, epidemics have often been blamed on a specific immigrant or ethnic group and triggered anti-migrant policies. A cholera epidemic in 1832 was blamed on Irish Catholic newcomers who were poor and lived in congested conditions. The anti-Catholic passions of Protestant evangelicals were a factor.
• Before the Quarantine Act of 1878 quarantine powers shifted from the states to the federal government. Each state had its own laws and immigration depots, such as Castle Garden in New York, which opened in 1855. Later, at federal depots, physicians used increasingly sophisticated medical instrumentation and diagnostic techniques to admit the healthy and those sufficiently robust to support themselves, but their expertise did not curb xenophobic hysteria or the association of immigrant groups and their behaviors with specific diseases. Chinese laborers were blamed for bubonic plague in the San Francisco area in the 1880s, and Italians were blamed for a polio epidemic that swept through the east coast of the United States in 1916. Anti-Semitic xenophobes dubbed tuberculosis the “Tailor’s Disease” or the “Jewish Disease” despite the lower rates of the disease in Jewish communities than in many non-Jewish communities in the United States.

Xenophobia and racism have not always surged in the United States during pandemics – thanks to greater public awareness of immigrants’ contributions and to strong political leadership.

• There were fewer incidents of xenophobia during the 1918 influenza pandemic because immigration declined dramatically (from 1,218,480 a year in 1914 to 110,618 in 1918), and critics found it awkward to blame newcomers because over half a million foreign-born soldiers of 46 different nationalities were serving in the U.S. military.
• Many Presidents of both parties since then have not hesitated to encourage Americans to call upon the better angels of their nature with respect to the foreign-born. Sitting in the shadow of the Statue of Liberty, Democratic President Lyndon Johnson signed an immigration act in 1965 that abandoned the most restrictive immigration policy in American history and replaced it with a more welcoming policy. Years later, former Republican President George W. Bush echoed those sentiments, noting that “America’s immigrant history made us who we are.”
• Xenophobia during an epidemic may be a “social ritual” that reaffirms a hypernationalism in the native-born, but when the drama concludes and the curtain descends, the prejudice and acts of discrimination can either transfer to a different stage or leaders can lead us away from them.

Little such leadership has come from the current occupants of the White House. Presidential advisor Stephen Miller and his allies claim that stopping new arrivals crossing the country’s southern border is necessary to preserve public health from illnesses borne by migrants. In 2018, the surge of migrants toward the border led to inquiries that Miller hoped would reveal – but did not – the spread of highly contagious diseases that endangered residents of states where they settled. More recently, Miller has encouraged the President to use his public health powers to seal the borders. One such federal law, the Public Health Service Act of 1944, allows the Surgeon General and the President to exclude from the U.S. individuals who might pose a danger because they could bring in “communicable diseases.” Ironically, while it has been Miller’s intention to target Latinos, many of them are doing the “essential work” that has kept the nation going during the crisis – in meat processing plants, grocery stores, and hospitals, where they are involved directly in the care of Covid-19 patients. Many thousands of those providing patient care are Latino “Dreamers” protected by the Deferred Action for Childhood Arrivals (DACA) program that the White House wants to end.

May 12, 2020

* Alan M. Kraut teaches history at American University.