By: David Mancia-Orellana
Today, El Salvadorans represent the largest group of Temporary Protective Status (“TPS”) recipients in the United States, accounting for nearly two hundred thousand recipients.[1] El Salvador was designated for TPS in 2001 following major earthquakes that devastated the country.[2] In the following years, both former President George W. Bush and former President Barack Obama renewed the protections several times due to gang violence and a weak economy.[3] However, in 2018, the Trump administration announced the termination of TPS designation for El Salvador, as well as three other countries.[4] The decision to terminate is attributed, in part, to the Trump administration’s new narrow interpretation of the program statute, which only takes into account the original reason for the designation when determining whether a country’s designation should be renewed. [5] As a result, The Department of Homeland Security (“DHS”) found that “because damaged roads, schools, hospitals, homes and water systems had been reconstructed since the earthquakes, the Salvadorans no longer belonged in the program.”[6]
The TPS terminations were subsequently challenged in federal court.[7] Without ruling on the merits of the case, the U.S. District Court for the Northern District of California issued a nationwide injunction barring DHS from terminating TPS designations while the litigation was pending.[8] However, on September 14, 2020, the preliminary injunction was vacated by the Ninth Circuit Court of Appeals.”[9] The court found that DHS has full and unreviewable discretion to evaluate a country’s conditions when determining whether it continues to be eligible for TPS.[10] Thus, the court held that DHS acted within its authority to end the TPS program for El Salvador, and the other three countries.[11] The court’s decision to vacate consequently opens the door for the removal of El Salvadoran TPS recipients.[12]
The protections and benefits of TPS for El Salvadoran recipients have subsequently been prolonged following the initial termination.”[13] Due to a 2018 bilateral agreement between El Salvador and the United States, the protections of deportation and the validity of work permits for recipients were extended through January 4, 2021.[14] Moreover, recipients were provided with at least 365 days to repatriate back to El Salvador after the conclusion of lawsuits challenging the termination.[15] U.S. Ambassador Ronald Douglas Johnson attributed the achievements and good work of El Salvador’s President Nayib Bukele as enabling the agreement.[16] However, legal scholars and immigrant advocates are not persuaded that the country and its institutions can adequately handle the return of almost two hundred thousand TPS recipients and their 192,700 U.S. children.[17]
Despite the much needed firm stance against the notorious Mara Salvatrucha (MS-13) and Barrio 18 (18th Street) gangs, Bukele’s El Salvador is still estimated to have one of the largest homicide rates in the world.[18] Furthermore, the country has not improved security in gang-afflicted territories[19] and remains plagued by gang-related violence and extortion.[20] This perpetual violence has consequently inhibited investment and job creation in the county.[21] In 2016, the country’s economy had the slowest growth in all of Latin America.[22] Therefore advocates were calling for lawmakers to find a permanent solution in order to protect TPS recipients.[23]
Congress’ intent to make the TPS program temporary is undisputed. Nevertheless, the Trump administration’s new narrow interpretation of the program, in order to fuel its anti-immigrant agenda, ultimately warrants congressional action to find an effective solution.[24] Without congressional action and with the door left wide-open by the Ninth Circuit decision, one can only wonder whether the administration’s obsession of driving settled immigrants out of the country is worth the negative economic and social consequences likely to stem from the removal of TPS recipients.[25] Senior counsel for the Plaintiff’s intends to appeal the injunction.[26]
[1] Miriam Jordan. Trump Administration Says That Nearly 200,000 Salvadorans Must Leave. (Jan. 8, 2018). https://www.nytimes.com/2018/01/08/us/salvadorans-tps-end.html
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Ramos v. Nielsen, 321 F. Supp. 3d 1083 (N.D. Cal. 2018).
[8] Id.
[9] Ramos v. Wolf, No. 18-16981 (9th Cir. Crt. Sept. 14, 2020).
[10] Laura Foote Reiff. 9th Circuit Deals a Blow to Certain Immigrants Holding TPS Status – Business Calls on Congress to Act. 292 The National Law Review. (2020).
[11] Id.
[12] Id.
[13] Miriam Jordan & Kirk Semple. U.S. Extends Temporary Work Permits for El Salvador Immigrants. (Oct. 28, 2019). https://www.nytimes.com/2019/10/28/us/el-salvador-temporary-protected-status-tps.html
[14]Nicole Narea. Salvadorans on TPS will now be able to stay in the US for another year (Oct. 28, 2019 5:50 PM), https://www.vox.com/policy-and-politics/2019/10/28/20936782/el-salvador-tps-us-agreement-asylum-dhs-uscis
[15] Id.
[16] Id.
[17] Can El Salvador Handle an Influx After TPS Ends? (Jan. 17, 2018), https://www.thedialogue.org/analysis/can-el-salvador-handle-an-influx-after-tps-ends/
[18] Tartiq Zaidi. A Nation Held Hostage, (Oct. 30, 2019 1:00 AM), https://foreignpolicy.com/2019/11/30/el-salvador-gang-violence-ms13-nation-held-hostage-photography/
[19] Anna-Cathrine Brigids. El Salvador’s government cut deal with MS-13 gang bid to reduce killings, (Sep. 5, 2020 10:55 AM), https://www.washingtonpost.com/world/the_americas/el-salvador-gangs-violence/2020/09/05/8fb8734e-eee3-11ea-bd08-1b10132b458f_story.html
[20] Tartiq Zaidi. A Nation Held Hostage. (Oct. 30, 2019 1:00 AM), https://foreignpolicy.com/2019/11/30/el-salvador-gang-violence-ms13-nation-held-hostage-photography/
[21]Robbie Whelan. Why Are People Fleeing Central America? A New Breed of Gangs Is Taking Over. (Nov. 2, 2018 11:07 AM), https://www.wsj.com/articles/pay-or-die-extortion-economy-drives-latin-americas-murder-crisis-1541167619
[22] Andres Oppengeimer. Latin America’s economy is stagnating. The region has mostly itself to blame, (Aug. 02, 2019 6:53 PM), https://www.miamiherald.com/article233439232.html
[23] Daylina Miller. Immigration Advocates Push For TPS Extensions, COVID-19 Benefits. (April 20, 2020 6:22 PM), https://wusfnews.wusf.usf.edu/news/2020-04-20/immigration-advocates-push-for-tps-extensions-covid-19-benefits.
[24]Peniel Ibe. Trump’s attacks on the legal immigration system explained. (Apr. 23, 2020), https://www.afsc.org/blogs/news-and-commentary/trumps-attacks-legal-immigration-system-explained
[25]Amanda Baran, Jose Magana-Salgado, Tom Wong. Economic Contributions by Salvadoran, Honduras, and Haitian TPS Holders. Immigrant Legal Resource Center (April 2017), www.ilrc.org/report-tps-economic-cost.
[26]Miriam Jordan. 400,000 Immigrants Can Be Forced to Leave the U.S., Court Rules. (Sep. 14, 2020), https://www.nytimes.com/2020/09/14/us/immigrants-temporary-protected-status.html
