Past Grants of Temporary Protection

By Mark Krikorian on March 4, 1999

Testimony prepared for the U.S. House of Representatives
Committee on the Judiciary
Subcommittee on Immigration, Border Security, and Claims
March 4, 1999

By Mark Krikorian
Executive Director, Center for Immigration Studies

Good morning Mr. Chairman and members of the subcommittee. My name is Mark Krikorian, and I am executive director of the Center for Immigration Studies, a non-profit, non-partisan research organization which examines and critiques the impact of immigration on the United States. The Center receives no federal funds.

President Clinton granted Temporary Protected Status (TPS) for 18 months to an estimated 90,000 Hondurans and 60,000 Nicaraguans in December of last year, in response to the devastation wreaked on those countries by Hurricane Mitch. (About 500,000 Salvadorans and Guatemalans did not receive TPS, but deportations of these groups were suspended until next week, March 8). In my comments, I want to briefly examine past grants of temporary protection, which have taken various forms, for whatever lessons they might teach us about how this arrangement works in the real world.

The concept of temporary protection, or safe haven, has been debated for some time. In effect, it is a limited grant of refugee status, offering foreigners who would not otherwise be allowed to remain in the United States limited sanctuary until an emergency in their home country passes.

Legislation to create a formal process for temporary protection was debated and voted on in Congress at various points in the late 1980s, but was not enacted into law until Temporary Protected Status was included in the Immigration Act of 1990.

The law empowers the Attorney General to grant Temporary Protected Status for a number of reasons. The relevant section of the Immigration and Nationality Act reads:

The Attorney General, after consultation with appropriate agencies of the Government, may designate any foreign state (or any part of such foreign state) under this subsection only if:

  1. The Attorney General finds that there is an ongoing armed conflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state to that state (or to the part of the state) would pose a serious threat to their personal safety;
  2. The Attorney General finds that: (i) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected, (ii) the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state, and (iii) the foreign state officially has requested designation under this subparagraph; or
  3. The Attorney General finds that there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the Attorney General finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.

(Interestingly, this last provision puts the Attorney General in the perverse position of determining that it is in the national interest to allow illegal aliens to reside in the United States.) Prior to the enactment of TPS in 1990, there was no statutory basis for permitting illegal aliens, or nonimmigrants whose visas were to expire, to remain in the United States without requesting asylum. But as early as 1960, the executive branch created "Extended Voluntary Departure" (later rechristened "Deferred Enforced Departure") for aliens from specific countries as a temporary grant of blanket relief from deportation for nationals of certain countries who feared returning to their homelands. In effect, EVD was an exercise of prosecutorial discretion by the Attorney General in deciding not to force the departure of nationals of a certain country.

Nationals from the following countries received EVD during the years listed:

  • Cuba: 1960-1966
  • Dominican Republic: 1966-1978
  • Czechoslovakia: 1968-1977
  • Chile: 1971-1977
  • Cambodia: 1975-1977
  • Vietnam: 1975-1977
  • Laos: 1975-1977
  • Lebanon: 1976
  • Ethiopia: 1977-1982
  • Hungary: 1977-1981
  • Romania: 1977-1981
  • Uganda: 1978-1986
  • Iran: 1979
  • Nicaragua: 1979-1980
  • Afghanistan: 1980-1985
  • Poland: 1982-1989

The chief impetus behind the 1990 Immigration Act's TPS provision was the desire to create a statutory vehicle allowing the deferral of deportation for thousands of illegal aliens from El Salvador. In fact, section 303 of the Act specifically designated Salvadorans for TPS. Almost 200,000 illegals were thus able to avoid deportation for a period of 18 months. However, when TPS expired in 1992, the administration still chose not to deport them and simply reverted to the old practice of EVD, though with the purely cosmetic change of changing the name of this ad hoc status from Extended Voluntary Departure to Deferred Enforced Departure (DED).

Though DED for Salvadorans ended in 1996, the settlement of the American Baptist Churches case allows Salvadorans protected under TPS and DED to re-apply for asylum (on the grounds that their previous asylum applications had not been given proper consideration for political reasons). In addition, the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) allows Salvadorans to apply for cancellation of removal under the pre-1996 rules, and the Clinton Administration, as you of course know, has announced that it is considering a blanket finding of "extreme hardship" for Salvadorans applying for green cards under this provision, resulting in what amounts to an unlegislated amnesty.

The increasing likelihood that the "temporarily" protected Salvadorans will end up staying permanently underlines the concerns many people have regarding humanitarian deferrals of deportation such as TPS. The fallout from Hurricane Mitch in Central America is precisely the kind of natural disaster TPS was intended to address, and if the 90,000 Hondurans leave after the expiration of their TPS status, then it may well serve its purpose (the Nicaraguans have already received amnesty under NACARA). But temporary protection would simply be a lie if it were used as a backdoor to permanent immigration or as a fig leaf to cover political unwillingness to enforce the law.

Most recent grants of TPS have, of course, covered very small numbers of people the 1990 law creating this status requires the Attorney General to estimate how many people would benefit, and however inaccurate the counts, they at least suggest how small the numbers are in many cases. Some of the countries and numbers who have been covered by TPS at some point are:

  • Bosnia: 400
  • Burundi: 400
  • Montserrat: 300
  • Kosovo: 5,000
  • Liberia: 8,000
  • Persian Gulf Evacuees (Palestinians in Kuwait who helped Americans during the Gulf War): 2,200
  • Rwanda: 200
  • Sierra Leone: 4,000
  • Somalia: 350
  • Sudan: 4,000

When such small numbers of people are involved, the consequences of failure are small even if all of the 20,000-plus people listed above turned their "temporary" stays into permanent ones, it wouldn't have much practical effect. And, in fact, many of these smaller groups of TPS recipients have been amnestied; more than 5,000 people from Afghanistan, Ethiopia, Poland, and Uganda who had EVD were amnestied in 1989-90. Likewise, there was a significant effort last year to enact legislation giving TPS Liberians permanent residency; Rep. Patrick Kennedy of Rhode Island introduced a bill to that effect, saying that "after seven years of providing them this special protected status we can't pull the rug out from under them." The Liberian case also demonstrates how TPS is almost routinely extended Liberians first received TPS in 1991, and it has been periodically extended. A "final" extension of TPS granted through September of last year was followed by yet another one-year extension.

As I said, these examples involve small numbers. But when larger numbers are at issue, it becomes incumbent upon policymakers to consider the real-world consequences of "temporary" protection. And experience has shown that in every case where large numbers of people have been granted "temporary" protection, they have eventually received permanent status. There has never been a grant of temporary protection that didn't turn into an amnesty, confirming the observation that "There's nothing as permanent as a temporary refugee."

In the 1960s, it was Cubans, thousands of whom fled Castro's regime during the 1960s. All were given temporary protection until Congress passed the Cuban Protection Act in 1966, which granted them, and thousands to follow, the right to remain permanently.

In the 1970s, thousands fled the communist takeover of Indochina, and they too were granted temporary protection until Congress in 1977 made their status permanent.

More recently, as a result of the 1989 government crackdown on democracy activists in Communist China, President Bush issued Executive Order 12711 in April 1990 giving an estimated 80,000 nationals of the PRC temporary protection from deportation. Then, in 1992, the Chinese Student Protection Act made this "temporary" protection permanent by allowing Chinese who entered before the issuance of the executive order to apply for a green card. Though students were supposed to be the beneficiaries of this legislation, a large number perhaps the majority of those receiving green cards were actually illegal aliens from the province of Fujian, smuggled into the United States by "snakehead" gangs.

Last year's grant of TPS to Hondurans and Nicaraguans is unlikely to be any different their TPS status is likely to be extended, perhaps replaced by DED, until such time as the aliens in question have either become permanent residents through some other means or until Congress passes legislation legalizing their status. Few, if any, Hondurans or Nicaraguans currently covered by TPS will ever depart voluntarily or be removed.

Temporary protection may be warranted for foreign policy and humanitarian reasons, and the formal articulation of a TPS mechanism for admitting small numbers of aliens for short periods in emergency situations is better than the ad hoc methods employed before 1990. But it is clear that the application of temporary protection to large numbers of people has never been, and probably can never be, successful i.e., truly temporary. Every major grant of temporary protection, whatever the label, has been a prelude to amnesty; therefore, if Congress or the Administration consider it advisable to grant an amnesty to illegal aliens from a certain country, simple honesty demands that the amnesty be called by its proper name.