TPS: A Humane Alternative to Asylum
Temporary protected status (TPS) holds the promise of protecting thousands of refugees who do not fit the increasingly narrow definition of asylum in the United States. TPS also offers a better administrative and legal solution than asylum claims due to the increasingly pressing immigration problems that the United States is facing.
As a result, designating El Salvador, Honduras, and Guatemala for TPS is an important immigration action that is within the power of the Obama administration to enact. Such adoption would reestablish the United States as a leader in international immigration and humanitarian efforts.
Why Asylum-based Claims Are Inadequate
The narrowing definition of asylum in the United States excludes many refugees who do have a reasonable and credible fear for their lives. Many flee corrupt country conditions and an overwhelming flood of gang violence and seek peace and a new life in the United States.
But immigrants hoping to gain lawful status in the United States have a difficult time making an asylum claim because they must first demonstrate that they satisfy a number of legal criteria. Asylum law offers only the most limited protection, and its protection is often unavailable to immigrants fleeing dangerous, unsafe, and all-too-common situations.
In order to make a claim for asylum, an immigrant must demonstrate that he or she fits the definition of “refugee” as expressed in the United States Code. This definition includes a requirement that the immigrant face persecution based on their “race, religion, nationality, membership in a particular social group, or political opinion.”
Thus, an essential element of an asylum claim is that the immigrant was persecuted, and was singled out or discriminatorily selected for such persecution because of some important defining characteristic. Unfortunately, a person who is the victim of indiscriminate and widespread violence in their home country will not likely have a successful asylum claim under American law.
In the Matter of M-E-V-G-, the Board of Immigration Appeals articulated some of the limitations of asylum law, and why it is often inadequate compared to TPS.
For one thing, asylum law does not extend refugee protection to victims of national or economic disaster, civil strife, or civil war. Asylum does not cover “general conditions of strife,” such as crime and other social problems. Thus, general lawlessness and violence, like the widespread gang violence problems in Central America, will not provide the basis for a successful asylum claim.
Because a large portion of the world’s population lives in such harsh conditions, the successful asylum claimant generally needs something more, such as membership in a particular social group (PSG), for example. However, demonstrating that an immigrant is a member of a PSG is itself a difficult task, with several stringent court-created requirements.
In order to fit the definition of a PSG, a group of people must possess a “common immutable characteristic,” “particularity,” and “social distinction.” Despite precedent decisions from the BIA seeking to clarify the definition of a PSG, each new opinion muddies the waters, making it even more difficult to discern who fits within a particular PSG and tightening the requirements for asylum claims in general.
In M-E-V-G- in particular, the court all but stated that asylum, in their view, is not the appropriate avenue for immigrants fleeing “a generalized state of violence” but that they should instead seek TPS.
The problem is, TPS is only available under certain circumstances.
What is Temporary Protected Status?
Temporary Protected Status, or TPS, is a status that may be granted to the nationals of certain designated countries, in order to allow those nationals to stay in the United States on a temporary basis. If an immigrant is from a TPS-designated country, and is in the United States, but finds himself unable to return to his home country due to conditions such as an environmental disaster, armed conflict, or another dangerous situation, the immigrant may be able to stay in the country after applying for TPS.
The decision whether to designate a particular country for TPS benefits is made by the Department of Homeland Security (DHS), and the program is administered by U.S. Citizenship and Immigration Services (USCIS).
If an immigrant from a TPS-designated country is in the United States, during the time that TPS is in effect, the immigrant may apply for work authorization. It should be noted that TPS does not lead to permanent resident status or a green card. It is only a way to provide temporary protection to those who would otherwise be forced to return to a dangerous situation.
Once this dangerous situation no longer exists, TPS will potentially be revoked, and those immigrants in the United States based on TPS will revert back to whatever status they held prior to their home country being designated for TPS. Thus, if an immigrant is in the country unlawfully before getting TPS, upon the expiration of their home country’s TPS designation, that immigrant will have no lawful basis for remaining in the United States.
In order to get TPS, an immigrant from a designated country must file during the initial registration period, or during a re-registration period, and have been continuously residing in the United States since the date of their home country’s most recent TPS designation.
Under certain limited circumstances, an immigrant may file late for TPS, after the registration periods have closed. An immigrant will be ineligible for TPS protection if he or she has been convicted of certain crimes, or is inadmissible for a variety of other reasons.
Purpose of TPS
According to the M-E-V-G- court, Congress created TPS to fill the large gaps left by asylum law, which is limited to immigrants subject to persecution and does not provide protection from generalized conditions of violence. TPS, in contrast, does provide protection from such conditions, and is seen as a response, guided by humanitarian impulses, to catastrophes and atrocities around the world.
TPS is only intended to provide temporary protection by preventing aliens from being compelled to return to the same dangerous situations that prompted their arrival in the United States in the first place.
However, it is not intended to be a basis for permanent immigration to the United States. As such, TPS should not be seen as a panacea, but does offer hope for a population that has found itself fleeing a dangerous situation, and has little in the way of resources in a foreign country.
TPS Compared to Asylum
A primary difference between TPS and asylum is that in order to qualify for TPS, you need not prove that you’re facing persecution in your home country. The general conditions of violence or disaster in the home country are accepted in lieu of a personal demonstration that persecution exists.
This is a significant difference, as persecution can be difficult to prove, and the courts have interpreted this requirement in such a limited way that many immigrants will never be able to make the required showing.
Under these interpretations, an alien who is the victim of general violence or intimidation in her home country has not been persecuted, and may not be eligible for asylum, no matter how gruesome, serious, and real the violence may be.
In contrast, if an alien is from a TPS-designated country, and is in the United States, that alien may stay in the country, without needing to demonstrate being singled out for persecutory violence based on something like his religion or race.
Both asylum and TPS offer the promise of protection from dangerous situations. However, asylum is only available to such a limited segment of the immigrant population, and the courts have severely limited its actual usefulness.
Accordingly, TPS has an increasingly important role to play, and its use should be expanded to include El Salvador, Honduras, and Guatemala who are currently experiencing humanitarian crises.