The Trump Administration is Forced to Extend TPS status for Six Countries



The Department of Homeland Security (DHS) announced Friday, the 1st of

November, 2019, that Temporary Protected Status (TPS) for immigrants from

six countries would be extended, protecting them from the possibility of

getting deported. TPS status for people that originally from Nicaragüa, Haiti,

El Salvador, Honduras, Nepal, and Sudan has been extended to Jan. 2021.

DHS is extending TPS in compliance with the preliminary injunctions of the

U.S. District Court for the Northern District of California in Ramos, et al. v.

Nielsen, et. al. and the U.S. District Court for the Eastern District of New York

in Saget, et. al., v. Trump, et. al., and with the order of the U.S. District Court

for the Northern District of California to stay proceedings in Bhattarai v.

Nielsen.


In October 2018, TPS holders from Sudan, Nicaragüa, Haiti, and El Salvador,

won a preliminary injunction, requiring the Trump administration to extend

their immigration protections and work authorizations while the case is

ongoing.


The one-year extension was announced days after President Donald Trump,

and his administration announces that it would extend work permits for more

than 250,000 Salvadorians as part of a deal with El Salvador agreed to work

with U.S. immigration authorities to reduce the number of people who pass

through on their way to the U.S.-Mexico border.


DHS is automictically extending the validity of TPS-related documentation for

beneficiaries under the TPS designation for El Salvador, Haiti, Honduras,

Nepal, Nicaragüa, and Sudan. TPS-related documentation will remain in effect

through the 4th of January, 2021, from the current expiration date of the 2nd

of January, 2020, for beneficiaries under TPS designation for El Salvador,

Haiti, Nicaragüa and Sudan; the 5th of January, 2020 for the beneficiaries the

TPS designation for Honduras, and the 24th of March, 2020 for beneficiaries

under the TPS designation for Nepal.


TPS holders from El Salvador, Haiti, Honduras, Nepal, Nicaragüa, and Sudan

who have employment authorization cards may show their employers their

current cards, and the Federal Register Notice to show that they are still

legally able to work.


Some may ask about the extension of Forms I-94 and Forms I-797. Both

Forms will get an automatic extension, in which the extension only applies if

The TPS beneficiary properly filed for re-registration during either the most

recent DHS-announced registration for their country or any applicable

previous DHS-announced re-registration periods for his or her country.

Current beneficiaries under TPS designation for El Salvador, Haiti, Honduras,

Nepal, Nicaragüa and Sudan do not need to pay a fee or file any application,

including application for Employment Authorization Form I-765, to maintain

that their TPS benefits through the 4th of January, 2021, provided that they

have properly re-registered for TPS during either the most recent DHS-

announced registration period for their country.


TPS beneficiaries who have failed to re-register properly for TPS during any of

those re-registration periods may still file an Application for Temporary

Protected Status (Form I-821) but must demonstrate “good cause” for failing

to re-register on time, as required by law.


During the TPS designation period, TPS beneficiaries are eligible to remain in

the United States, may not be removed, and are authorized to obtain

Employment Authorization Documents (EADs) so long as they continue to

meet the requirements of TPS.


When the Secretary of Homeland Security (the Secretary) terminates a

country’s TPS designation, beneficiaries return to one of the following: The

same immigration that they maintained before TPS, if any ( unless that status

or category has since expired or terminated); or Any other lawfully obtained

immigration status or category they received while registered for TPS, as long

as it is still valid on the date TPS terminated.


The Government has appealed both the Ramos and Saget preliminary

injunction. Should the Government prevail in its challenge to the Ramos

preliminary injunction, the Secretary’s determination to terminate TPS for El

Salvador, Haiti, Honduras, Nepal, Nicaragüa, and Sudan will take effect no

earlier than 120 days from the issuance of any appellate mandate to the

district court. The Secretary determination to terminate TPS for El Salvador

will take effect no earlier than 365 days from the issuance for any appellate

mandate to the Ramos district court. DHS provides this additional time for El

Salvador TPS beneficiaries in part because there are almost 100,000 more

such beneficiaries in the combined TPS beneficiaries population of all the

other five countries covered by this notice.


The basis of the legal challenges is that the Department of Homeland

Security’s decisions to terminate TPS stemmed from racial discrimination,

violated required Immigration and Nationality Act (INA) and Administrative

Procedures Act (APA) procedures, and overstepped the Constitutional rights

of TPS beneficiaries. The APA constrains an agency’s ability to change its

practices or policies without acknowledging the change or providing an

explanation. The agency must also show that there are good reasons for the

new policy. In the past, DHS looked not only at originating conditions but also

in the current conditions of the countries. DHS is now basing its TPS decision

solely on whether the originating conditions directly related there to persisted,

regardless of other current conditions no matter how bad, and that this was a

clear departure from prior administration practice. The Government has

offered no explanation or justification for this change.


In its preliminary injunction, the court found that the plaintiffs have provided

sufficient evidence to raise serious questions as to whether a discriminatory

purpose was a motivating factor in the decisions to terminate the TPS

designations. Specifically, the Plaintiffs have provided evidence indicating that

(1) the DHS Acting Secretary or Secretary was influenced by President Trump

and the White House in her TPS decision-making and (2) President Trump

has expressed ill will against non-white, non-European immigrants. Plaintiffs

have also pointed to several pieces of evidence suggesting that the White

House was putting pressure on DHS to end TPS. As Plaintiffs have cataloged,

there is evidence of such as reflected by statements made by President Trump

before, during, and after the TPS decision-making process.


In June 2015, Mr. Trump announced that he was running for President and

delivered remarks characterizing Mexican immigrants as drug dealers or

users, criminals, and rapists. In June 2017, President Trump stated that

“15,000 recent immigrants from Haiti ‘all have AIDS’ and that 40,000

Nigerians, once seeing the United States, would never ‘go back to their huts’ in

Africa.” On the 11th of January, 2018, during a meeting with lawmakers where

immigrants from Haiti, El Salvador, and African countries were discussed,

including concerning TPS designations that had been terminated, President

Trump asked: “Why are we having all these people from shithole countries

come here?’ He then suggested that the United States should instead bring

more people from countries such as Norway,” which has a predominantly

white population. He also told lawmakers that immigrants from Haiti “must

be left out of any deal.”


Temporary Protected Status (TPS) is awarded to nationals of a country that

the United States deems it would be inhumane to send them back to their

home country. This may be due to civil unrest, a natural disaster, or other

extreme situations. Immigrants with TPS status may stay in the U.S. legally as

long as they do not have a criminal record of more than two misdemeanors.

About 437,000 people in the U.S. currently have TPS, but they don’t

automatically get a green card or citizenship; however, they cannot be

deported from the U.S.


In the event the preliminary injunction is reversed. That reversal becomes

final, DHS will allow for an orderly transition period, ending on the later of (a)

120 days from the effective date of such a superseding, final order, or (b) on

the Secretary’s previously announced effective date for the termination of TPS

designations for each country. DHS will issue another Federal Register notice

approximately 30 days before the 4th of January, 2021, that will either extend

TPS-Related documentation for an additional nine months from the 4th of

January, 2021, or provide appropriate procedures for obtaining renewed TPS

documentation for all affected eligible beneficiaries under the TPS

designations for Sudan, Nicaragua, Haiti, and El Salvador. DHS will continue

to issue Federal Register notices at nine-month intervals so long as the

preliminary injunction remains in place and will continue its commitment to a

120-orderly transition period.

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