Last updated on May 15th, 2019
Few news items have remained on the headlines as much as the immigration crisis the United States currently faces.
In particular, the plight of children crossing the border and fleeing the tide of gang violence in Central America has taken center stage.
While border children do have a few existing immigration options available to them today, many times immigration relief is inconsistent and insufficient.
What Options Do Border Children Have?
Asylee status and Special Immigrant Juvenile Status (“SIJS”) are two options available for undocumented children seeking lawful status in the United States.
However, there are restrictions to each of these statuses that preclude many undocumented, at-risk children from being eligible.
Restrictions on SIJS:
- Child must receive custody order by state family court by demonstrating they were abused, abandoned or neglected by at least one parent.
- Child must be demonstrate they are dependent on the court.
- It must be in the child’s best interest to remain in the United States.
Restrictions on Asylum:
- Child must apply within one year of being in the United States.
- Child must be a victim of social-group related persecution in their home country.
These restrictions severely limit the number of children eligible for SIJS and Asylum.
Also, neither of these immigration options tackle the issue of country-wide gang violence head-on, which is the actual reason the majority of border children seek refuge in America in the first place.
For children not eligible for Asylum or SIJS, Temporary Protected Status (“TPS”) would be a better fit for their situation, both from a legal and humanitarian standpoint.
How Does TPS differ from SIJS and Asylum?
TPS differs from SIJS and Asylum in several ways.
- First TPS is temporary. A TPS option in the immigration debate may calm fears of amnesty among immigration opponents. TPS is not a pathway to lawful permanent residency, citizenship, and TPS holders cannot vote.
- Only those from designated countries are eligible for TPS. Countries are designated for TPS on the basis of countrywide conditions that make it unsafe for immigrants to return.
- There is no state court component so the process can move quicker than SIJS.
- A TPS applicant does not need to make an individual showing of persecution as in asylum. Instead, the general country conditions evidence demonstrates that it would be unsafe for a TPS applicant to return.
To be eligible for TPS, a child only needs to be from an eligible country but “continually physically present”in the United States and a continuous resident of the United States.
If a child is found inadmissible for immigration under the Immigration and Naturalization Act, they may also be ineligible for TPS. Additionally, a successful TPS applicant cannot have two or more misdemeanors.
Central American Minors Program (CAM)
Recognizing the problems that border children face, the current administration has put in place the Central American Minors Program (CAM). This program allows certain parents of minors who have lawful status in the United States to apply for their children.
However, the most limiting restriction on CAM is that the child must be a resident of El Salvador, Guatemala or Honduras and be residing in their country of residence at the time of application.
While CAM is a useful tool in rescuing children from the humanitarian crises in Central America, it does not fix the crisis caused by the influx of unaccompanied minors from Central America that are already in the United States.
Which Countries Are Eligible For TPS?
USCIS extends TPS to countries who are experiencing civil war, an epidemic or other forms of disaster. A full list of countries currently eligible for TPS is available here.
USCIS specifies a window of time (usually 60 days) for recipients of TPS to reapply when their temporary status has expired. If the TPS recipient does not reapply in the specified period of time for their country, they will lose TPS and may be returned to their home country.
When the dangerous situation (ongoing armed conflict, natural disaster, etc.) is resolved in the country, USCIS may not renew TPS eligibility and TPS recipients from that country may have to return home.
TPS has not been currently designated for El Salvador, Honduras, and Guatemala on the basis of their ongoing and countrywide gang violence issues.
The Importance of TPS
For many border children seeking refuge in the United States, it would be easier to obtain lawful status through TPS than through Asylum or SIJS. Though, as the name suggests the lawful status is only temporary.
A TPS recipient may not independently adjust their status to become a permanent resident, though many TPS holders begin to make a life in the U.S. with lawful status and eventually adjust to permanent residency based on marriage or other family relationships, and sometimes work.
TPS recipients can receive work authorization during the duration of their TPS and can work legally in the United States. TPS holder pay taxes and contribute to society.
With the recent wave of undocumented children in America fleeing from violence in Central America, TPS would be an important immigration tool for children and other individuals fleeing gang violence who do not qualify for Asylum or SIJS.
TPS is a humanitarian middle ground that would prevent border children from being forced to return to deadly gang violence in their home countries.
Javier: An Example Case
To understand the necessity of TPS for central American countries, consider the following scenario.
Javier, a 14 year old boy in Honduras, was forced to flee to America when his family could no longer provide food and shelter for him because gangs took over the business his family worked for.
Once in the United States, Javier was placed in removal proceedings because he did not enter the country legally.
Since Javier was not the victim of persecution based on his membership in a legally recognized social group, he does not qualify for Asylum. He was not abandoned, neglected or abused by a parent so he is not eligible for SIJS either.
However, if forced to return to Honduras he would continue to be subject to gang violence and limited access to necessary resources such as food and shelter.
USCIS added Honduras to the list of eligible countries for TPS in 1999 in response to Hurricane Mitch. Hurricane Mitch claimed an estimated 7,000 lives.
Based on a countrywide mortality rate of 187 murders per 100,000 inhabitants in 2013, gang violence in Honduras claims approximately 14,960 lives on an annual basis.
But because an initial TPS registration period has not been issued to Hondurans on the basis of gang violence, Javier will likely be deported to the same environment of violence he fled from.
Filling The Gaps Between Asylum and SIJS
As evidenced in Javier’s example case, not every undocumented child fleeing violence fits within the boundaries of Asylum or SIJS, but would still face dangerous, life-threatening conditions if forced to return to their home country.
Due to the influx of undocumented children in the United States fleeing violence in central America, TPS could be an important tool to manage this humanitarian crisis without forcing these immigrants to live in the shadows or convert them into permanent residents.
If USCIS extended TPS to Central American countries, these undocumented children could be protected within the borders of the United States until their country is safe for return.
Central America: The Case for TPS
The United Nations named Honduras the deadliest country in the world, with the city of San Pedro Sula as the murder capitol of the world. The murder rates in El Salvador and Guatemala trail Honduras ever so slightly.
San Pedro Sula also has the highest rate of unaccompanied minors fleeing to America. During a six month period in 2013, more than 2,000 unaccompanied minors came to the United States from the Honduran city. In a year, more than 68,000 unaccompanied minors entered the United States, fleeing violence in central America.
The purpose of TPS, as stated by Congress, is to prevent foreign nationals from being forced to return to unsafe conditions in their home country.
The first example of “unsafe conditions” listed under the law authorizing TPS is an ongoing armed conflict in the country of origin.
Congress goes on to list a variety of other bases for granting TPS, including “extraordinary and temporary conditions” that prevent immigrants from returning to their countries in safety.
The gang violence in Central America, which has risen the murder rate to the highest in the world, should be considered an ongoing and extraordinary condition and make all Central American countries affected by gang violence eligible for TPS.