Temporary Protected Status

On October 3, 2018, Federal Judge Edward M. Chen presiding over the United States District Court of the Northern District of California made a groundbreaking decision to grant a preliminary injunction to beneficiaries of Temporary Protected Status (TPS) from El Salvador, Haiti, Nicaragua, and Sudan. Temporary Protected Status, established by Congress in the Immigration Act of 1990, is a designation given by the Secretary of Homeland Security to countries that have been destabilized by catastrophe (war, natural disaster, epidemics, etc.) During the time that the Secretary of Homeland Security designates a country for TPS, TPS beneficiaries are not removable from the United States, can obtain employment authorization, and can be granted travel authorization. TPS grants protections to over 300,000 people in the U.S. from El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen. Through the end of 2017 and beginning of 2018, the Trump administration announced the end of TPS designation for El Salvador, Honduras, Haiti, Nicaragua, and Sudan. In response, multiple lawsuits were filed in U.S. District Courts across the United States against the administration’s decision, alleging that the administration engaged in racially discriminatory practices in choosing to end TPS designations for certain countries and violated the Administrative Procedure Act (APA), the 1946 federal statute that governs the way in which administrative agencies of the federal government may propose and establish regulations. On January 24, 2018, the National Association for the Advancement of Colored People (NAACP) filed a lawsuit against the Department of Homeland Security (DHS) in the U.S. District Court of the District of Maryland, alleging that the decision to end TPS designation for Haiti was intended to racially discriminate against Haitians, violating the Equal Protection and Due Process Clauses of the Fifth Amendment. On February 22, 2018, TPS beneficiaries from El Salvador, Haiti, and the Massachusetts immigrant’ rights organization Centro Presente filed a similar lawsuit against the DHS in the U.S. District Court of the District of Massachusetts. Lawsuits were also filed on March 12, 2018 in the U.S. District Courts of the Northern District of California, on March 15, 2018 in the Eastern District of New York, and on March 23, 2018 in the District of Maryland by TPS beneficiaries from El Salvador, Haiti, Nicaragua, and Sudan and U.S. citizen children of TPS beneficiaries.

These lawsuits are currently ongoing and have been challenged multiple times by the administration, which claims that the Courts do not have jurisdiction to hear these cases. However, Federal Judges from the U.S. District courts of the District of Massachusetts, the Northern District of California, and the Eastern District of New York have all rejected the federal government’s Motions to Dismiss, citing the very real possibility of both constitutional and procedural violation by the DHS. On August 23, 2018, the TPS beneficiaries from Northern California filed a preliminary injunction to stop the government from terminating TPS while the lawsuit is ongoing and to stop the government from beginning deportation proceedings for TPS beneficiaries from El Salvador, Haiti, Nicaragua, and Sudan, which could have begun as early as November 2, 2018. On October 3, Judge Edward M. Chen granted this preliminary injunction, enabling TPS holders to maintain their status until further decisions have been made, protecting hundreds of thousands of people in the United States from being suddenly and forcibly removed. A Case Management Conference is set for October 26. Meanwhile, the United States Citizenship and Immigration Services has not yet published instructions or guidance reflecting the injunction. Instead, USCIS states on their website that “Additional guidance with respect to evidence regarding TPS status and employment authorization is forthcoming.” We eagerly await more news.



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