Resolve the temporary protected status of undocumented immigrants

The presidential election is likely to mean a new perspective on immigration policy. But the possibility of a split Congress means it may be difficult to enact immigration reform legislation that addresses major problems in America’s immigration system.

One area where most observers usually believe that there is an apparent reform is the restoration of the Child Arrivals of Action (DACA) program that the current administration has outlined for its termination. However, the problem with such a quick fix is ​​that there is a current lawsuit in federal court in Texas challenging the legality of DACA for not issuing notice, suspending, and drafting the rules and also for violating the Immigration and Nationality Act (INA). The same court previously invalidated the Obama administration’s deferred program for American Parents and Legal Permanent Residents (DAPA) for the same reasons that the DACA program is being challenged, and the composition of the Supreme Court has changed since 2016 so that many immigration cases have been conducted. Judgment in favor of the execution position.

Additionally, even in its most ambitious case, the DACA program helps only a very small percentage of the 10 to 12 million unregistered individuals who live in the United States.

However, there is a legal program that gives the president non-reviewable discretion that can assist nearly all unregistered individuals in the United States on the first day of the new presidency. Title 8, Section 1254A of United States Code specifically authorizes the President of the United States to grant any foreign citizen Temporary Protected Status (TPS) if there is an “earthquake, flood, drought, epidemic, or other environmental disaster” in the foreign citizen’s home. According to the statute, the TPS Scholarship provides: a) Exemption from Deportation; B) Ability to work in the United States. And c) the ability to become eligible for legal permanent residency if the foreign citizen has an eligible relative (spouse, parent, or child) or a US employer who will petition the individual for a green card.

The proposal available under the INA that could address the influx of DACA recipients would be, on the first day of the new administration, the President would grant TPS to every foreign citizen without the status that was present in the United States prior to March 13, 2020, the date on which the current administration declared a national emergency in relation to Corona virus outbreak. The current administration has already laid the foundation for such global grants for TPS by having the Director of the Centers for Disease Control and Prevention (CDC) issue a warrant pursuant to Section 42 Section 265 of United States Code prohibiting entry of foreigners into the United States by specifying “the presence of an infectious disease.” Around the world he stated that “COVID-19 is a global pandemic that has spread rapidly”.

The TPS announcement would allow all people already in the United States to obtain 18 months of legal status immediately, and would put many people who are already here on a path to obtaining legal permanent residency, which they cannot obtain now by virtue of being in an undocumented status. . It will also not be subject to its repeal by the courts given the clarity of the law that allows the granting of TPS to the citizens of a country in which there is an epidemic, and given that the current administration itself has recognized the existence of a global pandemic in its orders that prohibit people from entering the land borders of America due to this epidemic.

The most convenient way to remove uncertainty for DACA recipients and others in precarious immigration situations would not involve the risk of: a) Waiting for Congress to pass legislation as it may never pass; B) reinstating the deferred action or parole program that could potentially harm the courts because it was not subject to formal regulatory action; C) Spending more than a year in the formal regulatory process trying to formulate a regulatory program to which the courts may still be exposed.

The most effective solution if the goal is to provide certainty is often the easiest, and the TPS solution simply uses the path the current administration had already paved when it excluded all foreign nationals from the United States on the basis of a pandemic. It goes without saying that if it is very dangerous to accept foreign nationals from countries where the COVID-19 pandemic is common, then it is also dangerous to transfer foreign nationals in the United States to countries where the COVID-19 pandemic is spreading.

Thus, a new approach should be considered that includes the use of TPS which is the most sure path to achieving the relief intended by the DACA program, but for a larger group of individuals.

Leon Fresco is a partner in the Washington DC office of Holland and Knight, where his practice focuses on providing global immigration representation. Prior to joining Holland and Knight, he was Assistant Deputy Attorney General for the Office of Immigration Cases in the Civil Division of the US Department of Justice.

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