Restoring the 'Temporary' to Temporary Protected Status

By Mark Krikorian on May 5, 2018

National Review Online, May 5, 2018

Homeland Security Secretary Kirstjen Nielsen announced Friday that Temporary Protected Status for about 86,000 Hondurans would not be renewed, though she delayed termination of the program until January 2020.

This move is part of the administration's long-overdue effort to put the "temporary" back into Temporary Protected Status. CNN has a good chart here, but the one bit of information it leaves out is when these "temporary" amnesty grants (that include work permits, Social Security numbers, etc.) were made. TPS for a quarter-million Salvador illegal immigrants (plus a few temporary legal visitors), scheduled to end next fall, was granted in 2001 because of an earthquake. Illegal aliens from Honduras and Nicaragua lucky enough to be in the United States when Hurricane Mitch struck have enjoyed this temporary amnesty since 1999. And the few hundred Somalis with TPS received this temporary status in 1991.

Once granted, this status has been renewed, pro forma, by administrations Republican and Democrat. The justifications for these renewals became increasingly fantastical as the original reasons for the grants faded from memory. Two years ago, when Honduran TPS was last extended, among the justifications offered by the Obama administration were a coffee rust epidemic and increase in mosquito-borne diseases. As I told the Times Friday, "Honduras long ago reverted to its regular messed-up state, not the special post-hurricane messed-up state required by the TPS statute."

Before the Trump administration, no one — not a single person — was ever made to leave because his TPS expired. While none of the TPS grants has actually ended yet, because of grace periods, this administration has at least set in motion the termination of TPS for almost all the 400,000-plus people who have it.

Because Canada is even more pusillanimous than we are in enforcing immigration laws, some of the 50,000-plus Haitians —who will return to being illegal aliens or temporary visitors when their TPS expires next July — were sneaking across the border into Quebec last year. And Canada is preparing for Hondurans to do the same.

But more fundamental change is needed. When President Maxine Waters is sworn in three or seven years from now, her administration could just go back to granting, and continually renewing, TPS every time there's a natural disaster in the Third World, and we'll be back where we started.

Congress needs to address the matter. Bills by Mo Brooks and Raul Labrador would tighten the system, requiring a vote of Congress to grant, or extend, respectively, TPS. This would make continual extensions more difficult and build in some political accountability. But more fundamental change is needed.

The real point to TPS is work permits. When a natural disaster hits an illegal-alien-producing country, Homeland Security always has the option to postpone deportations — no law is needed for that. By providing work permits, a grant of TPS is like winning the lottery for illegals and visitors lucky enough to be here when disaster struck back home. It enables them to put down roots and makes it politically difficult to ever end the program.

My colleague David North has suggested that the alternative to TPS is simply to freeze the migration status of people from the country in question and suspend deportations for a specified period, and then revisit the situation when that period ends. It could still be renewed repeatedly, but wouldn't bring with it the bonanza of a work permit.

But any reform would have to go further. One of the reasons TPS was invented was to provide a framework to limit presidential freelancing. Before the TPS statute was passed in 1990, presidents had simply made up phony statuses such as Extended Voluntary Departure and Deferred Enforced Departure for illegals they didn't want to deport — and gave them work permits, even though there was no legal basis for doing so. (It was this habit of — small-scale — unlawful conduct that Obama cranked up to 11 with DACA.) Any reform of TPS would have to prohibit the executive from granting work permits to anyone not explicitly authorized to have one. Otherwise, even if Congress were to repeal TPS, President George P. Bush or Chelsea Clinton would just make up new bogus statuses and hand out work permits to however many illegal aliens they thought they could get away with.

Civil-rights pioneer Barbara Jordan, chairwoman of the U.S. Commission on Immigration Reform, told the House of Representatives in 1995 that "credibility in immigration policy can be summed up in one sentence: Those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave." Restoring the "temporary" to Temporary Protected Status is an important part of such a restoration of credibility.